[Reader-list] 13 People who made torture the American way

[Paul D. Miller]

interesting article. I actually think that there were alot more people over the course of the 20th century - one of the bloodiest epochs of human history - that dealt with alot more "volume" of people, but hey... this is just the sideshow of the spectacle of imperial decline. Ladies and gents, we present "The Torture 13."

Paul/Dj Spooky

The 13 People Who Made Torture Possible 
The Bush administration's Torture 13. 

They authorized it, they decided how to implement it,
and they crafted the legal fig leaf to justify it.

by Marcy Wheeler

Published on Monday, May 18, 2009 by Salon.com 
Distributed by Common Dreams
http://www.commondreams.org/view/2009/05/18-13

On April 16, the Obama administration released four
memos that were used to authorize torture in
interrogations during the Bush administration. When
President Obama released the memos, he said, "It is our
intention to assure those who carried out their duties
relying in good faith upon legal advice from the
Department of Justice that they will not be subject to
prosecution."

Yet 13 key people in the Bush administration cannot
claim they relied on the memos from the DOJ's Office of
Legal Counsel. Some of the 13 manipulated the federal
bureaucracy and the legal process to "preauthorize"
torture in the days after 9/11. Others helped implement
torture, and still others helped write the memos that
provided the Bush administration with a legal fig leaf
after torture had already begun.

The Torture 13 exploited the federal bureaucracy to
establish a torture regime in two ways. First, they
based the enhanced interrogation techniques on
techniques used in the U.S. military's Survival,
Evasion, Resistance and Escape (SERE) program. The
program -- which subjects volunteers from the armed
services to simulated hostile capture situations --
trains servicemen and -women to withstand coercion well
enough to avoid making false confessions if captured.
Two retired SERE psychologists contracted with the
government to "reverse-engineer" these techniques to
use in detainee interrogations.

The Torture 13 also abused the legal review process in
the Department of Justice in order to provide
permission for torture. The DOJ's Office of Legal
Counsel (OLC) played a crucial role. OLC provides
interpretations on how laws apply to the executive
branch. On issues where the law is unclear, like
national security, OLC opinions can set the boundary
for "legal" activity for executive branch employees. As
Jack Goldsmith, OLC head from 2003 to 2004, explains
it, "One consequence of [OLC's] power to interpret the
law is the power to bestow on government officials what
is effectively an advance pardon for actions taken at
the edges of vague criminal statutes." OLC has the
power, Goldsmith continues, to dispense
"get-out-of-jail-free cards." The Torture 13 exploited
this power by collaborating on a series of OLC opinions
that repeatedly gave U.S. officials such a
"get-out-of-jail-free card" for torturing.

Between 9/11 and the end of 2002, the Torture 13
decided to torture, then reverse-engineered the
techniques, and then crafted the legal cover. Here's
who they are and what they did:

1. Dick Cheney, vice president (2001-2009)

On the morning of 9/11, after the evacuation of the
White House, Dick Cheney summoned his legal counsel,
David Addington, to return to work. The two had worked
together for years. In the 1980s, when Cheney was a
congressman from Wyoming and Addington a staff attorney
to another congressman, Cheney and Addington argued
that in Iran-Contra, the president could ignore
congressional guidance on foreign policy matters.
Between 1989 and 1992, when Dick Cheney was the elder
George Bush's secretary of defense, Addington served as
his counsel. He and Cheney saved the only known copies
of abusive interrogation technique manuals taught at
the School of the Americas. Now, on the morning of
9/11, they worked together to plot an expansive grab of
executive power that they claimed was the correct
response to the terrorist threat. Within two weeks,
they had gotten a memo asserting almost unlimited power
for the president as "the sole organ of the Nation in
its foreign relations," to respond to the terrorist
attacks. As part of that expansive view of executive
power, Cheney and Addington would argue that domestic
and international laws prohibiting torture and abuse
could not prevent the president from authorizing harsh
treatment of detainees in the war against terror.

But Cheney and Addington also fought bureaucratically
to construct this torture program. Cheney led the way
by controlling who got access to President Bush -- and
making sure his own views preempted others'. Each time
the torture program got into trouble as it spread
around the globe, Cheney intervened to ward off legal
threats and limits, by badgering the CIA's inspector
general when he reported many problems with the
interrogation program, and by lobbying Congress to
legally protect those who had tortured.

Most shockingly, Cheney is reported to have ordered
torture himself, even after interrogators believed
detainees were cooperative. Since the 2002 OLC memo
known as "Bybee Two" that authorizes torture premises
its authorization for torture on the assertion that
"the interrogation team is certain that" the detainee
"has additional information he refuses to divulge,"
Cheney appears to have ordered torture that was illegal
even under the spurious guidelines of the memo.

2. David Addington, counsel to the vice president
(2001-2005), chief of staff to the vice president
(2005-2009) David Addington championed the fight to
argue that the president -- in his role as commander in
chief -- could not be bound by any law, including those
prohibiting torture. He did so in two ways. He advised
the lawyers drawing up the legal opinions that
justified torture. In particular, he ran a "War
Council" with Jim Haynes, John Yoo, John Rizzo and
Alberto Gonzales (see all four below) and other trusted
lawyers, which crafted and executed many of the legal
approaches to the war on terror together.

In addition, Addington and Cheney wielded bureaucratic
carrots and sticks -- notably by giving or withholding
promotions for lawyers who supported these illegal
policies. When Jack Goldsmith withdrew a number of OLC
memos because of the legal problems in them, Addington
was the sole administration lawyer who defended them.
Addington's close bureaucratic control over the legal
analysis process shows he was unwilling to let the
lawyers give the administration a "good faith"
assessment of the laws prohibiting torture.

3. Alberto Gonzales, White House counsel (2001-2005),
and attorney general (2005-2008)

As White House counsel, Alberto Gonzales was nominally
in charge of representing the president's views on
legal issues, including national security issues. In
that role, Gonzales wrote and reviewed a number of the
legal opinions that attempted to immunize torture. Most
important, in a Jan. 25, 2002, opinion reportedly
written with David Addington, Gonzales paved the way
for exempting al-Qaida detainees from the Geneva
Conventions. His memo claimed the "new kind of war"
represented by the war against al-Qaida "renders
obsolete Geneva's strict limitations on questioning of
enemy prisoners." In a signal that Gonzales and
Addington adopted that position to immunize torture,
Gonzales argued that one advantage of not applying the
Geneva Convention to al-Qaida would "substantially
reduce the threat of domestic criminal prosecution
under the War Crimes Act." The memo even specifically
foresaw the possibility of independent counsels'
prosecuting acts against detainees.

4. James Mitchell, consultant

Even while Addington, Gonzales and the lawyers were
beginning to build the legal framework for torture, a
couple of military psychologists were laying out the
techniques the military would use. James Mitchell, a
retired military psychologist, had been a leading
expert in the military's SERE program. In December
2001, with his partner, Bruce Jessen, Mitchell
reverse-engineered SERE techniques to be used to
interrogate detainees. Then, in the spring of 2002,
before OLC gave official legal approval to torture,
Mitchell oversaw Abu Zubaydah's interrogation. An FBI
agent on the scene describes Mitchell overseeing the
use of "borderline torture." And after OLC approved
waterboarding, Mitchell oversaw its use in ways that
exceeded the guidelines in the OLC memo. Under
Mitchell's guidance, interrogators used the waterboard
with "far greater frequency than initially indicated"
-- a total of 183 times in a month for Khalid Sheikh
Mohammed and 83 times in a month for Abu Zubaydah.

5. George Tenet, director of Central Intelligence
(1997-2004)

As director of the CIA during the early years of the
war against al-Qaida, Tenet had ultimate management
responsibility for the CIA's program of capturing,
detaining and interrogating suspected al-Qaida members
and briefed top Cabinet members on those techniques.
Published reports say Tenet approved every detail of
the interrogation plans: "Any change in the plan --
even if an extra day of a certain treatment was added
-- was signed off on by the Director." It was under
Tenet's leadership that Mitchell and Jessen's SERE
techniques were applied to the administration's first
allegedly high-value al-Qaida prisoner, Abu Zubaydah.
After approval of the harsh techniques, CIA
headquarters ordered Abu Zubaydah to be waterboarded
even though onsite interrogators believed Zubaydah was
"compliant." Since the Bybee Two memo authorizing
torture required that interrogators believe the
detainee had further information that could only be
gained by using torture, this additional use of the
waterboard was clearly illegal according to the memo.

6. Condoleezza Rice, national security advisor
(2001-2005), secretary of state (2005-2008)

As national security advisor to President Bush, Rice
coordinated much of the administration's internal
debate over interrogation policies. She approved (she
now says she "conveyed the authorization") for the
first known officially sanctioned use of torture -- the
CIA's interrogation of Abu Zubaydah -- on July 17,
2002. This approval was given after the torture of
Zubaydah had begun, and before receiving a legal OK
from the OLC. The approval from the OLC was given
orally in late July and in written form on Aug. 1,
2002. Rice's approval or "convey[ance] of
authorization" led directly to the intensified torture
of Zubaydah.

7. John Yoo, deputy assistant attorney general, Office
of Legal Counsel (2001-2003)

As deputy assistant attorney general of OLC focusing on
national security for the first year and a half after
9/11, Yoo drafted many of the memos that would
establish the torture regime, starting with the opinion
claiming virtually unlimited power for the president in
times of war. In the early months of 2002, he started
working with Addington and others to draft two key
memos authorizing torture: Bybee One (providing legal
cover for torture) and Bybee Two (describing the
techniques that could be used), both dated Aug. 1,
2002. He also helped draft a similar memo approving
harsh techniques for the military completed on March
14, 2003, and even a memo eviscerating Fourth Amendment
protections in the United States. The Bybee One and DOD
memos argue that "necessity" or "self-defense" might be
used as defenses against prosecution, even though the
United Nations Convention Against Torture explicitly
states that "no exceptional circumstances whatsoever,
whether a state of war or a threat or war ... may be
invoked as a justification of torture." Bybee Two,
listing the techniques the CIA could use in
interrogation, was premised on hotly debated
assumptions. For example, the memo presumed that Abu
Zubaydah was uncooperative, and had actionable
intelligence that could only be gotten through harsh
techniques. Yet Zubaydah had already cooperated with
the FBI. The memo claimed Zubaydah was mentally and
physically fit to be waterboarded, even though Zubaydah
had had head and recent gunshot injuries. As Jack
Goldsmith described Yoo's opinions, they "could be
interpreted as if they were designed to confer immunity
for bad acts." In all of his torture memos, Yoo ignored
key precedents relating both specifically to
waterboarding and to separation of powers.

8. Jay Bybee, assistant attorney general, Office of
Legal Counsel (2001-2003) As head of the OLC when the
first torture memos were approved, Bybee signed the
memos named after him that John Yoo drafted. At the
time, the White House knew that Bybee wanted an
appointment as a Circuit Court judge; after signing his
name to memos supporting torture, he received such an
appointment. Of particular concern is the timing of
Bybee's approval of the torture techniques. He first
approved some techniques on July 24, 2002. The next
day, Jim Haynes, the Defense Department's general
counsel, ordered the SERE unit of DOD to collect
information including details on waterboarding. While
the record is contradictory on whether Haynes or CIA
General Counsel John Rizzo gave that information to
OLC, on the day they did so, OLC approved
waterboarding. One of the documents in that packet
identified these actions as torture, and stated that
torture often produced unreliable results.

9. William "Jim" Haynes, Defense Department general
counsel (2001-2008) As general counsel of the Defense
Department, Jim Haynes oversaw the legal analysis of
interrogation techniques to be used with military
detainees. Very early on, he worked as a broker between
SERE professionals and the CIA. His office first asked
for information on "exploiting" detainees in December
2001, which is when James Mitchell is first known to
have worked on interrogation plans. And later, in July
2002, when CIA was already using torture with Abu
Zubaydah but needed scientific cover before OLC would
approve waterboarding, Haynes ordered the SERE team to
produce such information immediately.

Later Haynes played a key role in making sure some of
the techniques were adopted, with little review, by the
military. He was thus crucial to the migration of
torture to Guantanamo and then Iraq. In September 2002,
Haynes participated in a key visit to Guantanamo (along
with Addington and other lawyers) that coincided with
requests from DOD interrogators there for some of the
same techniques used by the CIA.

Haynes ignored repeated warnings from within the armed
services about the techniques, including statements
that the techniques "may violate torture statute" and
"cross the line of 'humane' treatment." In October
2002, when the legal counsel for the military's Joint
Chiefs of Staff attempted to conduct a thorough legal
review of the techniques, Haynes ordered her to stop,
because "people were going to see" the objections that
some in the military had raised. On Nov. 27, 2002,
Haynes recommended that Secretary of Defense Donald
Rumsfeld authorize many of the requested techniques,
including stress positions, hooding, the removal of
clothing, and the use of dogs -- the same techniques
that showed up later in the abuse at Abu Ghraib.

10. Donald Rumsfeld, secretary of defense (2001-2006)

As secretary of defense, Rumsfeld signed off on
interrogation methods used in the military, notably for
Abu Ghraib, Bagram Air Force Base and Guantanamo Bay.
With this approval, the use of torture would move from
the CIA to the military. A recent bipartisan Senate
report concluded that "Secretary of Defense Donald
Rumsfeld's authorization of interrogation techniques at
Guantanamo Bay was a direct cause of detainee abuse
there." Rumsfeld personally approved techniques
including the use of phobias (dogs), forced nudity and
stress positions on Dec. 2, 2002, signing a one-page
memo prepared for him by Haynes. These techniques were
among those deemed torture in the Charles Graner case
and the case of "20th hijacker" Mohammed al-Qahtani.
Rumsfeld also personally authorized an interrogation
plan for Moahmedou Ould Slahi on Aug. 13, 2003; the
plan used many of the same techniques as had been used
with al-Qahtani, including sensory deprivation and
"sleep adjustment." And through it all, Rumsfeld
maintained a disdainful view on these techniques, at
one point quipping on a memo approving harsh
techniques, "I stand for eight to 10 hours a day. Why
is standing limited to four hours?"

11. John Rizzo, CIA deputy general counsel (2002-2004),
acting general counsel of the Central Intelligence
Agency (2001-2002, 2004-present)

As deputy general counsel and then acting general
counsel for the CIA, John Rizzo's name appears on all
of the known OLC opinions on torture for the CIA. For
the Bybee Two memo, Rizzo provided a number of
factually contested pieces of information to OLC --
notably, that Abu Zubaydah was uncooperative and
physically and mentally fit enough to withstand
waterboarding and other enhanced techniques. In
addition, Rizzo provided a description of waterboarding
using one standard, while the OLC opinion described a
more moderate standard. Significantly, the description
of waterboarding submitted to OLC came from the Defense
Department, even though NSC had excluded DOD from
discussions on the memo. Along with the description of
waterboarding and other techniques, Rizzo also provided
a document that called enhanced methods "torture" and
deemed them unreliable -- yet even with this warning,
Rizzo still advocated for the CIA to get permission to
use those techniques.

12. Steven Bradbury, principal deputy assistant
attorney general, OLC (2004), acting assistant attorney
general, OLC (2005-2009)

In 2004, the CIA's inspector general wrote a report
concluding that the CIA's interrogation program might
violate the Convention Against Torture. It fell to
Acting Assistant Attorney General Steven Bradbury to
write three memos in May 2005 that would dismiss the
concerns the IG Report raised -- in effect, to affirm
the OLC's 2002 memos legitimizing torture. Bradbury's
memos noted the ways in which prior torture had
exceeded the Bybee Two memo: the 183 uses of the
waterboard for Khalid Sheikh Mohammed in one month, the
gallon and a half used in waterboarding, the 20 to 30
times a detainee is thrown agains the wall, the 11 days
a detainee had been made to stay awake, the extra
sessions of waterboarding ordered from CIA headquarters
even after local interrogators deemed Abu Zubaydah to
be fully compliant. Yet Bradbury does not consider it
torture. He notes the CIA's doctors' cautions about the
combination of using the waterboard with a physically
fatigued detainee, yet in a separate memo approves the
use of sleep deprivation and waterboading in tandem. He
repeatedly concedes that the CIA's interrogation
techniques as actually implemented exceeded the SERE
techniques, yet repeatedly points to the connection to
SERE to argue the methods must be legal. And as with
the Bybee One memo, Bradbury resorts to precisely the
kind of appeal to exceptional circumstances -- "used
only as necessary to protect against grave threats" --
to distinguish U.S. interrogation techniques from the
torture it so closely resembles around the world.

13. George W. Bush, president (2001-2009)

While President Bush maintained some distance from the
torture for years -- Cheney describes him "basically"
authorizing it -- he served as the chief propagandist
about its efficacy and necessity. Most notably, on
Sept. 6, 2006, when Bush first confessed to the
program, Bush repeated the claims made to support the
Bybee Two memo: that Abu Zubaydah wouldn't talk except
by using torture. And in 2006, after the CIA's own
inspector general had raised problems with the program,
after Steven Bradbury had admitted all the ways that
the torture program exceeded guidelines, Bush still
claimed it was legal.

"[They] were designed to be safe, to comply with our
laws, our Constitution and our treaty obligations. The
Department of Justice reviewed the authorized methods
extensively, and determined them to be lawful."

With this statement, the deceptions and bureaucratic
games all came full circle. After all, it was Bush who,
on Feb. 7, 2002, had declared the Geneva Conventions
wouldn't apply (a view the Supreme Court ultimately
rejected).

Bush's inaction in torture is as important as his
actions. Bush failed to fulfill legal obligations to
notify Congress of the torture program. A Senate
Intelligence timeline on the torture program makes
clear that Congress was not briefed on the techniques
used in the torture program until after Abu Zubaydah
had already been waterboarded. And in a 2003 letter,
then House Intelligence ranking member Jane Harman
shows that she had not yet seen evidence that Bush had
signed off on this policy. This suggests President Bush
did not provide the legally required notice to
Congress, violating National Security Decisions
Directive-286. What Bush did not say is as legally
important as what he did say.

Yet, ultimately, Bush and whatever approval he gave the
program is at the center of the administration's
embrace of torture. Condoleezza Rice recently said, "By
definition, if it was authorized by the president, it
did not violate our obligations in the Convention
Against Torture." While Rice has tried to reframe her
statement, it uses the same logic used by John Yoo and
David Addington to justify the program, the shocking
claim that international and domestic laws cannot bind
the president in times of war. Bush's close allies
still insist if he authorized it, it couldn't be
torture. (c) 2009 Salon.com

Marcy Wheeler writes her blog, emptywheel, for
FireDogLake.com