Vol. 15 No.8 (August 2005), pp.758-763
THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB, by Karen J. Greenberg and Joshua L. Dratel (eds). New York: Cambridge University Press, 2005. 1284pp. Cloth. £27.50/$50.00. ISBN: 0-521-85324-9.
Reviewed by Paul E. Parker, Social Science Division, Truman State University. Email email@example.com .
In April of 2004, photographs of abuse made Abu Ghraib a household name. The military pursued the individuals in the photographs, and now Charles Graner is serving 10 years in prison, while Lynndie England is facing a court martial and up to 11 years in prison. Against this narrative of “a few bad apples” stands the counter narrative of “official policy.” But unfortunately for Graner and England, there were no orders they were following, no clear orders they could have disobeyed. And just as unfortunately (for them), digital cameras are ubiquitous. The photographs exposed to the world the abuse that had occurred at Abu Ghraib. At the same time, the subjects in the photographs helped to limit our perception of responsibility. The volume under review here asks us to cast our gaze more broadly.
By collecting 28 memos, five reports, two bar association statements, and five appendices into one volume, the editors of THE TORTURE PAPERS have provided a valuable service. Chronologically arranged, one can trace the development of U.S. legal policy from September 25, 2001, through March 19, 2004 – a year after the U.S. invasion of Iraq, and shortly before the Abu Ghraib photographs were seen worldwide. As co-editor Joshua Dratel writes, the memos collected were “the product of three pernicious purposes . . . : (1) the desire to place detainees beyond the reach of any court or law; (2) the desire to abrogate the Geneva Convention with respect to the treatment of persons seized in the context of armed hostilities; and (3) the desire to absolve those implementing the policies of any liability for war crimes under U.S. and international law” (p.xxi).
The road to Abu Ghraib began before we attacked Afghanistan in 2001; Deputy Assistant Attorney General John Yoo’s September 25th memo of that year argues that the president “has broad constitutional power to take military action in response to the terrorist attacks” of 9/11, not only in retaliation but also to act preemptively against terrorist organizations or states, “whether or not they can be linked to the specific terrorist incidents of September 11.” The case for broad unilateral power, exercised by an unchecked executive, animates these memos (and ongoing policy discussions).
Pernicious Purpose 1, placing the detainees “beyond the reach of any court or law,” can be understood in both physical (jurisdictional) and conceptual (cause of action) terms. Physically, this goal is most clearly addressed in memo #3, which argues that the “great weight of legal authority” suggests that federal courts would not have habeas corpus jurisdiction over aliens held at [*759] Guantanamo Bay. Prepared by the Department of Justice’s Office of Legal Counsel at the request of the Department of Defense, the memo foreshadows the losing arguments made by the government in RASUL v. BUSH (2004). When approached conceptually, this purpose bridges over into Purpose 2.
Detainees can be placed beyond the reach of law if no law applies to them. Pernicious Purpose 2, placing al Qaeda and the Taliban outside of the Geneva Convention, was accomplished through a series of memos that created new categories of “unlawful combatants.” The Military Order issued by George Bush on November 13, 2001 (memo #2) laid the groundwork, but the memoranda continue into February of 2002. From the Attorney General’s Office of Legal Counsel, John Yoo (memo #4) and Jay Bybee (memo #6) argued in January of 2002 that U.S. treaties and laws, including part of the Geneva Convention, do not apply to Al Qaeda and the Taliban. This determination is forwarded by Secretary of Defense Donald Rumsfeld to the Joint Chiefs that same month (memo #5). In February Attorney General John Ashcroft (memo #9) and Assistant Attorney General Bybee (memo #12) further develop positions on excluding al Qaeda and the Taliban from the Geneva Convention.
This does not mean that the government marched lockstep on this policy. The State Department voiced concerns grounded in international law and custom about the U.S. treatment of detainees: In memo #10, State Department lawyer William H. Taft, IV argued pragmatically that not abiding by the Geneva Convention in Afghanistan “deprives our troops there of any claim to protection of the Convention . . . and weakens the protection accorded by the Convention to our troops in future conflicts” (p.129). And in memo #8, Secretary of State Colin Powell responded similarly to White House Counsel Alberto Gonzales’ January 25, 2002 memo (#7) that advised the president of “the ramifications” of deciding that the Geneva Conventions on treatment of Prisoners of War does not apply to al Qaeda and the Taliban. On February 7, 2002, President Bush sided with the DoD and the AG and signed a directive regarding the Humane Treatment of al Qaeda and Taliban Detainees (memo #11, discussed more fully below).
Most of the remaining 15 memos address interrogation methods and constraints, and it is in these memos that we find the link between Pernicious Purpose 2, abrogation of the Geneva Convention, and Pernicious Purpose 3, insulation from criminal liability– the road map to Abu Ghraib. Central among these is memo #14, Assistant Attorney General Jay Bybee’s August 1, 2002, memo to Presidential Counsel Alberto Gonzales on the “standards of conduct for Interrogation under 18 U.S.C. §§ 2340-2340A.” This is the so-called torture memo, in which the Office of Legal Counsel defines torture – forbidden under 18 U.S.C. §§ 2340-2340A – very narrowly. The narrow definition is achieved both by distinguishing torture from “cruel, inhuman, and degrading treatment,” and by establishing a high threshold to be accountable for committing torture: because (based on earlier definitions) one has to have acted “with the specific intent to inflict severe pain, the infliction of such pain must be the defendant’s [*760] precise objective” (p.174). The memo helpfully distinguishes “severe pain and suffering” from merely pain or suffering – and also defines “severe mental pain and suffering.” In the absence of statutory definitions, the memo cites authorities such as a 1935 dictionary entry and congressional acts related to disability, before concluding that “The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will result. If that pain or suffering is psychological, that suffering must result from one of the acts set forth in the statute. . . . In short, reading the definition of torture as a whole, it is plain that the term encompasses only extreme acts” (p.183).
The “torture memo” is aptly named. Not only does the memo define torture narrowly, but in by reviewing specific practices that other tribunals have said fall on the safe side of the “inhuman treatment versus torture” line, the memo appears to green-light specific interrogation techniques. But should the legal analysis wrongly predict what a court might determine, the memo offers the transgressor the defenses of self defense and necessity. Finally – and thematically important for the constitutional vision found in these memos – there is the executive trump card: “Even if an interrogation method arguably were to violate section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct a military campaign” (p.200).
A letter from the Office of Legal Counsel’s Yoo to Presidential Counsel Gonzales dated that same August 1, 2002, indicates that the torture memo was written in response to a request by Gonzales, and this memo stands as a key piece of evidence that the U.S. was seeking to interpret national law and international law and custom as not constraining the behavior of interrogators. Two caveats to this broad power apply. First, President Bush’s February 7, 2002, directive (#11), while accepting administration legal opinions that the Geneva Conventions do not apply to al Qaeda, nor for the most part to the Taliban (and accepting that he has the power to suspend those that are acknowledged to apply), concludes that the Armed Forces are to treat detainees “humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The significance of this language should be clear to all who have heard about “all deliberate speed.” Second, a series of memos (16-23) document the Department of Defense’s concern with the Geneva Conventions and also with the Uniform Code of Military Justice. This includes memos in which Secretary of Defense Donald Rumsfeld first authorized (12/02/02) and then rescinded (1/15/03) 16 techniques for Guantanamo Bay interrogators that went beyond the 17 techniques approved in the Army Field Manual.
But there are caveats to these caveats which bring us back to the expansive view of executive power, and back to the narrative of “official policy.” As law professor (and former Office of Legal Counsel attorney) Marty Lederman has discussed at length (2005a), read together, the combination of the [*761] President’s February 7 memo and the August 1 torture memo suggest precisely Pernicious Purpose #3: If we really were concerned about universally humane treatment, there would be no need for a memo that both defines torture very narrowly and distinguishes torture from cruel and inhuman treatment. Further, in addition to the February 7, 2002, presidential memo directing humane treatment “to the extent appropriate and consistent with military necessity,” it is silent as regards the CIA. As Lederman argues, the CIA would be subject to the statutory prohibitions on torture, which is why the August 1 memo is needed. And if you think that it is unfair to conclude from these two memos’ statements and silences that the CIA is implicitly authorized to engage in very far reaching coercive interrogation techniques, you need a lesson in parsing from Yoo or Bybee. I recommend the August 2, 2002, Torture Memo itself.
The bulk of these memos were written prior to Operation Iraqi Freedom; thus they applied to our conduct in Afghanistan and to interrogation of people detained at Guantanamo Bay (and presumably other secret interrogation sites). The final piece of the puzzle is how we got to the point where “between October and December 2003, at the Abu Ghraib confinement Facility (BCCF), numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees.” (Taguba Report, p.416; see also, sworn statements, pp.471-586). The Taguba Report does offer some suggestion of how measures initially discussed and approved regarding Afghanistan, al Qaeda, and the Taliban ended up in Baghdad (where the Geneva Conventions are presumed to operate): “The recommendation of MG Miller’s team that the ‘guard force’ be actively engaged in setting the conditions for successful exploitation of the internees” contributed (p.410). Major General Geoffrey Miller had been in charge of Guantanamo Bay Detention Facility before being assigned to Abu Ghraib, where he “called for the military police and military intelligence soldiers to work cooperatively, with the military police ‘setting the conditions’ for interrogations” (Schlesinger Report, p.912). As the Schlesinger Report of August 2004 notes, however, “techniques effective under carefully controlled conditions at Guantanamo became far more problematic when they migrated and were not adequately safeguarded” (p.911).
And so the Road to Abu Ghraib runs through Guantanamo Bay and back to Washington D.C. where, in December of 2002, Secretary of Defense Rumsfeld authorized broad categories of interrogation. The decision to topple Saddam Hussein without either the planning to anticipate an insurgency or the force to quell it contributed to the abuse we know of, by under-trained and under-supervised reservists in charge of more detainees than appropriate (Fay-Jones Report, p.988). The volume under review allows the reader to piece this together through the memos and reports; the editors do a great service by compiling these documents in one place. In that regard, it is a valuable resource especially useful for library collections. The memoranda are not always self-explanatory, however. Although the Taguba and Schlesinger Reports provide context, it is a volume whose entries I would not have been able to understand without Lederman’s helpful blog [*762] analyses (the electronic publishing of blogs also can provide near-immediate access to newly released reports, and analyses of them: see Lederman’s (2005b) next-day analysis of the Schmidt Report, for instance). Mark Danner’s TORTURE AND TRUTH: AMERICA, ABU GHRAIB, AND THE WAR ON TERROR (2004), based on his New York Review of Books articles, might also be of use for readers desiring more narrative; Sandy Levinson’s (2004) edited collection, TORTURE, contains essays exploring the philosophical and practical sides of torture.
In addition to being recommended for libraries, LAW AND POLITICS BOOK REVIEW readers will find that the volume also allows consideration of issues both mundane and grand. Most obviously, the expansive authority claimed by the administration invites explorations of the constitutional reach and limits of executive action; this plays out in July 2005, while this review is being written, with the White House threatening to veto a defense appropriations bill should Congress attach conditions on detainee treatment (see, e.g., White and Smith 2005). The many memos and reports also allow readers to explore the imperative of bureaucratic missions. And as Anthony Lewis notes in his Introduction, the role of the lawyer as advocate is also raised, especially by the torture memo itself. Selected memos can also profitably be used as discussion pieces for the difference between legal obligation versus policy, and whether the laws and constitution are merely a set of rules to play within, or if more broadly we want them to have an aspirational character.
The trail of documents here suggests that the pictures we have seen are the tip of an iceberg. Indeed, in late July 2005 the military defied a Federal District Court order to release 87 more photographs and 4 videotapes of Abu Ghraib abuse; the government’s position is that to do so would violate the Geneva Conventions by further humiliating detainees depicted in the photos (Zernike 2005). The power of photographs then is great, for the military has already released over 60,000 pages of documents about the abuse – 50 times what is included here. Ironically, the very photographs that draw our attention to the treatment of detainees allow us to focus on the few military personnel depicted in them. Only by reading the reports do we get a sense of how widespread the abuse was, and only by reading the memos are we forced to confront why.
Danner, Mark. 2004. TORTURE AND TRUTH: AMERICA, ABU GHRAIB, AND THE WAR ON TERROR. New York: New York Review of Books.
Lederman, Marty. 2005a. “Understanding the Torture Memos,” http://balkin.blogspot.com/2005/01/understanding-olc-torture-memos-part-i.html , accessed 7.25.05.
Lederman, Marty. 2005b. “Defining Human Down, Part III,” http://balkin.blogspot.com/2005/07/defining-humane-down-part-iii-schmidt.html , accessed 7.25.05.
Levinson, Sanford (ed). 2004. TORTURE: A COLLECTION. New York: Oxford University Press. [*763]
White, Josh, and R. Jeffrey Smith. 2005. “White House Aims to Block Legislation on Detainees.” THE WASHINGTON POST, July 23, 2005, at A-1.
Zernike, Kate. 2005. “Government Defies an Order to Release Iraqi Abuse Photos.” THE NEW YORK TIMES, July 23, 2005, at A-11.
RASUL v. BUSH, 542 U.S. 466 (2004).
© Copyright 2005 by the author, Paul E. Parker.
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