Getting Away with Torture

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By David Cole

1.

In the fall of 2002, Maher Arar, a Canadian citizen on his way home from Tunisia, was pulled out of line by US officials while changing planes at New York's John F. Kennedy Airport. He was locked up for twelve days, much of that time incommunicado, and harshly interrogated. When he was finally allowed to make a phone call, after a week in captivity, he called his mother in Canada, who found him a lawyer.

The lawyer saw Arar on Saturday. The very next night—a Sunday evening—immigration officials held an extraordinary six-hour hearing starting at 9 PM, orchestrated from Washington, D.C. When Arar asked to have his lawyer present, they told him that she had chosen not to participate in the hearing. In fact, the only "notice" they had provided was to leave a message on the lawyer's office voice mail that Sunday night. She got the message Monday morning, and immediately called the immigration service. They told her, falsely, that Arar was being transferred to New Jersey, and she could contact him the next day. In fact, that night federal agents took him on a federally chartered jet to Jordan, and from there to Syria.

In Syria, Arar was handed over to intelligence officials who imprisoned him in a cell the size of a grave, three feet by six feet by seven feet. Syrian security agents tortured him, including beating him with an electric cable, while asking the same questions that FBI interrogators had been asking at JFK—was he a terrorist, was he linked to al-Qaeda, did he know various other persons thought to be associated with al-Qaeda? (The Syrian security forces are widely known for their use of torture, as the US State Department reports every year in its annual Human Rights Country Reports.) After a year, the Syrians released Arar, concluding that he had done nothing wrong.

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Arar returned to Canada—this time bypassing JFK. Canada launched a major independent investigation, which concluded that he was wholly innocent, and that Canadian officials had erred in providing the Americans with misleading information about him while he was in US custody. The Canadians erroneously told US officials that Arar was a target of a terrorist investigation; in fact, he had merely been identified as someone who should be contacted to see if he had any information about the target, and was not suspected of any terrorist activity himself. The Canadian parliament offered Arar a unanimous apology, and Canada paid him CAD $10.5 million in compensation.^[*]

But the Canadians were unaware that the US intended to send Arar to Syria, and they had no part in that decision. It was the US, not Canada, that locked up Arar without charges, blocked his access to the courts, spirited him off to Syria, and then provided the Syrians a dossier of questions to ask him while he was being tortured. Arar filed suit in a US court, suing the federal officials who had a part in his mistreatment—including Attorney General John Ashcroft, Deputy Attorney General Larry Thompson, and FBI Director Robert Mueller. As a volunteer for the Center for Constitutional Rights, I am one of Arar's lawyers.

Arar's claims were simple: to forcibly send him to Syria to be tortured violates the Constitution's due process clause, which the Supreme Court has interpreted as forbidding conduct that "shocks the conscience," as well as the Torture Victim Protection Act, which allows torture victims to sue those who subject them to torture "under color of foreign law." Courts have long held that torture is the paradigmatic example of conduct that "shocks the conscience" and violates due process. And Arar alleged that the US defendants sent him to Syria for the purpose of subjecting him to torture under Syrian law. These allegations were largely confirmed not only by the Canadian investigation, but also by the Department of Homeland Security's inspector general. In twenty-five years as a lawyer, I have never had a clearer and more egregious case of abuse.

Yet thus far the US courts have shut the door entirely on Arar, not even allowing him to offer proof of his claims. In Arar's latest setback, an eleven-judge panel of the US Court of Appeals for the Second Circuit ruled on November 2, 2009, that "special factors counseling hesitation" barred Arar's core claim that his constitutional rights were violated when he was sent to be tortured. The Supreme Court has ruled that suits for damages are generally available for such violations of constitutional rights, but has refused to permit suits where Congress has provided an alternative remedy, or where "military discipline" would be undermined by permitting soldiers to sue their commanding officers. The Bush administration argued that Arar's claim for damages should similarly be dismissed because it implicated sensitive issues of national security, foreign policy, and secret diplomatic communications between the US and foreign governments. The seven-judge majority agreed, finding that any adjudication would likely involve classified information, and could not proceed

without inquiry into the perceived need for the [extraordinary rendition] policy, the threats to which it responds, the substance and sources of the intelligence used to formulate it, and the propriety of adopting specific responses to particular threats in light of apparent geopolitical circumstances and our relations with foreign countries.

Two things are remarkable about the majority's reasoning. First, the rationale quoted above appears to presume that sending people to be tortured may be permissible depending on the "geopolitical circumstances" or "the threats to which [the torture] responds." But under our law and international law, torture is never permissible, and thus these concerns ought not even enter the picture. Second, to dismiss Arar's case at this early stage, the court had to find that, even accepting as true his allegations that federal officials sent an innocent man to be tortured, Arar would be entitled to no remedy. The court concluded, without actually reviewing any classified evidence, that Arar's case was too sensitive to adjudicate, because it would require court review of national security policy and confidential diplomacy. The court suggested that Arar ask Congress for a remedy instead—notwithstanding that he is a foreign national with no voice in the US political process, and that US officials have prohibited him from entering the country for any purpose.

Four judges dissented. Judge Guido Calabresi, former dean of the Yale Law School, predicted that "when the history of this distinguished court is written, today's majority decision will be viewed with dismay." Judge Rosemary Pooler dismissed the majority's national security concerns as "hyperbolic and speculative," and maintained that Arar should have a remedy "to reinforce our system of checks and balances, to provide a deterrent, and to redress conduct that shocks the conscience."

Judge Barrington Parker, appointed to the Second Circuit by President George W. Bush, wrote that "if the Constitution ever implied a damages remedy, this is such a case—where executive officials allegedly blocked access to the remedies chosen by Congress in order to deliver a man to known torturers." Had Arar been able to get to a court to challenge his removal before federal officials put him on a plane, the court would plainly have had authority to review the case and forbid the removal; courts routinely enjoin removal when a foreign national faces a substantial risk of torture. The fact that the defendants lied to Arar's lawyer to keep her from filing an action when the torture could have been averted, in Parker's view, only strengthened the case for a damages remedy after the fact; otherwise, the courts are essentially rewarding the obstruction of justice.

Judge Robert Sack reasoned that if Arar had been tortured by federal officials at JFK, he would indisputably have a right to sue, and that the defendants' choice to outsource his torture abroad should not insulate them from liability:

I do not think that whether the defendants violated Arar's Fifth Amendment rights turns on whom they selected to do the torturing: themselves, a Syrian Intelligence officer, a warlord in Somalia, a drug cartel in Colombia, a military contractor in Baghdad or Boston, a Mafia family in New Jersey, or a Crip set in South Los Angeles.

What no judge pointed out, however, is that this is the same court of appeals that has regularly entertained lawsuits for torture and other gross human rights violations against foreign government officials, even when the wrongs were committed wholly outside the United States and affected only foreigners. One might think that such cases, in which we stand in judgment over other countries' alleged wrongs, would be even more diplomatically sensitive to adjudicate. Yet one month after the court dismissed Arar's suit, it affirmed a $19 million judgment against Emmanuel "Toto" Constant, the former leader of a Haitian death squad, for rape, torture, and attempted killing of three Haitian women by forces under his control. Under this precedent, had Arar been able to sue the Syrians who participated in his torture, the federal courts would have been ready and able to hear his claims. (He could not because none of the Syrians were in the United States, a prerequisite to the court exercising jurisdiction.) But because he sought to hold US officials accountable, his claims were too sensitive even to consider. International human rights, it seems, are something the US Court of Appeals for the Second Circuit stands ready to impose on others, but not on ourselves.

The same week that the court of appeals in New York dismissed Arar's case, a court in Milan, Italy, convicted twenty-two American CIA agents, a US Air Force lieutenant colonel, and two Italian military intelligence agents for the "extraordinary rendition" of a Muslim cleric, Abu Omar. He was abducted from the streets of Milan in 2003 and delivered to the Egyptian security service, which imprisoned him for four years without charges and tortured him, before returning him to Italy, uncharged.

That case involved the same sort of secret information, diplomatic communications, and conduct on the part of US officials as Arar's. In Italy, however, the courts did not deny all accountability at the threshold, but instead addressed each of these issues in turn as they arose. Some claims against some defendants were dismissed because they rested on secret information, but the case proceeded against most of the defendants. As the Italian court showed, concerns about national secrets and confidential international communications can be accommodated in the course of litigation, and need not serve as a threshold bar to any accountability whatsoever.

2.

More than sixty years ago, in a series of trials conducted in Nuremberg, Germany, the United States and its allies made history by holding Nazi officials accountable for war crimes and crimes against humanity committed during World War II—including abductions, disappearances, torture, and genocide. The Nuremberg judgments in turn had a critical part in the birth of international human rights. In the ashes of World War II, many nations, working with the United States, created a regime of rights and responsibility designed to affirm the inviolability of human dignity and to ensure that such atrocities would not happen again.

The legacy of that period includes a set of charters defining the scope of human rights, such as the Universal Declaration of Human Rights, the Geneva Conventions, and the international treaty prohibiting torture. Equally if not more importantly, however, the same legacy includes the establishment of forums for holding rights violators accountable—including international war crimes tribunals, regional human rights courts (such as the European Court of Human Rights), the International Criminal Court, and domestic courts that hear international human rights claims. Nuremberg was as much about the necessity of a forum for accountability as it was about the norms themselves. In the absence of effective enforcement, international human rights are mere words on paper.

The last forum I have mentioned—the domestic court—may be the most important. By bringing human rights home, domestic courts give them a concreteness and immediacy that is critical to their effectiveness. Here, too, the United States has been a leader. In 1980, the same court that dismissed Arar's case ruled, in a landmark decision, Filartiga v. Pena-Irala, that federal courts could adjudicate claims by foreign citizens against foreign defendants for human rights violations committed abroad. Filartiga involved a young man who had been abducted, tortured, and killed by a Paraguyan police chief. When the family learned that the officer had fled to the United States, they sued him in US court. The Court of Appeals for the Second Circuit declared that the torturer is the "enemy of all mankind," and therefore may be sued for his wrongdoing wherever he is found.

The usual reluctance to have a US court pass judgment on overseas conduct not involving any American citizens was overcome by the fact that the prohibition on torture is universal. Since that decision, US courts have adjudicated human rights claims involving brutality in Burma, South Africa, Yugoslavia, Nigeria, Mexico, the Philippines, Argentina, and many other nations. The Supreme Court upheld the practice in 2004. Yet according to the Second Circuit, the same sorts of claims are too sensitive to permit adjudication when brought against US officials.

In addition to a forum for enforcement, human rights also require equal application. Their purpose is to identify those norms so fundamental to human dignity that no government may violate them. Indeed, Nuremberg's legacy has always been somewhat clouded by the fact that the Soviet Union, itself responsible for terrible crimes against humanity, participated as a prosecutor, but was never held accountable for its own crimes. If international human rights are to be legitimate, they must be universal, and not a euphemism for "victor's justice." The torture standard does not differ based on whether the United States, Haiti, or Paraguay is engaged in the practice. The Italian court convicted Italians and Americans alike. If anything, it should be easier, not more difficult, to hold one's own government officials accountable than to hold foreign government officials accountable.

The notion that domestic courts can hold another country's torturers accountable is not an American anomaly, as the Italian case illustrates. International law recognizes a principle of "universal jurisdiction," which holds that torturers can be held to account anywhere. Applying that principle, a Spanish judge in 1998 issued an arrest warrant for former Chilean dictator Augusto Pinochet for crimes against humanity, including torture. Great Britain's highest court, the Law Lords, ruled that the warrant could be enforced to extradite Pinochet from England to stand trial. (In the end, Pinochet was returned to Chile on medical grounds, but was then indicted there.) The same Spanish judge, Baltasar Garzón, is currently investigating whether criminal charges should be leveled against the Bush administration lawyers responsible for authorizing torture at Guantánamo—John Yoo, Alberto Gonzales, David Addington, Jay Bybee, William Haynes, and Douglas Feith. The torture they authorized was inflicted on several Spanish citizens at Guantánamo, causing terrorist charges against them in Spain, also prosecuted by Garzón, to be dismissed.

The principle of universal jurisdiction recognizes that if a country is responsibly pursuing accountability for its own wrongs, a foreign court should defer to the domestic process. In his speech at the National Archives on May 21, 2009, President Obama insisted that the Justice Department and the courts "can work through and punish any violations of our laws or miscarriages of justice." Cases like Arar's belie his confidence, as does the Justice Department's failure even to investigate the lawyers who authorized the CIA and the military to engage in torture and disappearances as a means of getting suspects to talk. If we fail to carry out this responsibility, other nations, using principles that the US did much to develop, may take up the charge.

—December 16, 2009

Notes

^[*]See Raymond Bonner, "The CIA's Secret Torture," The New York Review, January 11, 2007.

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Argentina puts officials on trial over the abuses of the 'Dirty War'

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By Juan Forero
Washington post foreign service
Monday, December 28, 2009; A08

They are old and balding now, the 15 defendants standing trial before a three-judge panel near the Argentine capital's bustling port. But prosecutors say they were once the feared henchmen of a brutal military dictatorship.

Argentina has tried military men before. But this trial, of officers and policemen who ran clandestine torture centers known as the Athletic Club, the Bank and Olimpo, is one of a string of new proceedings that by next year will close some of the most emblematic cases of alleged state terrorism under Argentina's 1976-1983 dictatorship.

With former generals and admirals well into their 70s and the courts emboldened to hand down severe penalties, Argentina is finally close to delivering justice for the estimated 30,000 people killed by state security services during the "Dirty War," including some who were thrown from airplanes after being tortured and sedated.

"I think and I hope this is the beginning of the end of a long process that began in 1983 with the return of democracy," said Gastón Chillier, director of the Center for Legal and Social Studies, a Buenos Aires rights group. "Next year will be especially critical."

The trials in Argentina come as other South American countries grapple with delivering justice for the victims of dictatorships and government-linked death squads.

In Brazil, President Luiz Inácio Lula da Silva is proposing a commission to investigate allegations of torture by the military during that country's 1964-1985 dictatorship. In Peru, a former president, Alberto Fujimori, was convicted of murder in April for death-squad activities during his 10-year rule. And in Colombia, army generals and colonels accused of widespread human rights abuses are for the first time being investigated by civilian prosecutors.

Among the countries that have most aggressively sought to address past crimes is Chile, which has convicted 277 members of Gen. Augusto Pinochet's 16-year dictatorship of myriad rights abuses, according to New York-based Human Rights Watch.

But no country has gone after former state agents as sweepingly as Argentina.

Using ordinary penal law and the criminal courts, prosecutors have won about 60 convictions since 2005 against defendants accused of violating human rights. An additional 627 former military officers, policemen and officials have been charged. In all, 325 cases are open nationwide, most involving former members of the security services accused of kidnapping and killing leftists, according to the Center for Legal and Social Studies.

Achieving justice has not been easy. Barracks revolts in the 1980s led to a "full-stop" law that ended investigations and a "due obedience" law that absolved those who said they were following the orders of superiors, a defense rejected at the Nuremberg trials. In the 1990s, President Carlos Menem pardoned those who had been convicted.

But in 2005, Argentina's Supreme Court annulled the amnesties, and a revitalized judicial system began to prosecute. Convictions have been won against once-influential figures in Argentina's security forces, including Luciano Menéndez, a former regional army commander, and Miguel Etchecolatz, a former Buenos Aires provincial police commissioner.

Now, though, the men on the block include some of the dictatorship's most notorious figures.

Among them are former Gen. Jorge Rafael Videla, who led the junta that governed after a 1976 coup, and Argentina's last dictator, Reynaldo Bignone. There is also Alfredo Astiz, nicknamed "Blond Angel of Death." Using his boyish good looks, prosecutors say, Astiz infiltrated a leading human rights group in 1977. That led to the abduction and murder of three of the group's founders, a journalist and two French nuns.

In a trial that began Dec. 11, Astiz and 18 others are accused of plying their trade at the Navy Mechanics School, which processed 5,000 prisoners, most of whom never came out alive. Next year, trials begin for those charged with participating in Operation Condor, in which dictatorships across much of South America cooperated in hunting down and killing leftists.

Estela de Carlotto, president of the Grandmothers of the Plaza de Mayo, a rights group, said justice is being served.

"We are giving the predators the opportunity they never gave our children," said de Carlotto, whose daughter was abducted and never seen again. "We are giving them the opportunity to defend themselves in court, to speak out, to have a just process. But we are also asking for convictions."

The courts here have requested declassified U.S. cables that detail what the United States knew about Argentine military operations in the war against leftist guerrilla groups.

Carlos Osorio, who oversees the Argentina project for the National Security Archive, a Washington policy group that compiles government documents, said Argentine prosecutors may end up using several hundred of about 8,000 declassified State Department documents. Those papers show how U.S. Embassy officials compiled reports on such issues as the pursuit of suspected guerrillas outside Argentina's borders and details on the abductions by Argentine intelligence operatives. Osorio said Argentina's ambassador in Washington, Héctor Timerman, has been petitioning the CIA and other agencies to open their files on Argentina.

"The documents that have been declassified are very rich, but there are some holes, and they can be filled with the documents in the hands of the American intelligence agencies," Osorio said.

Delia Barrera, who was tortured in the Athletic Club detention center in 1977, is now among the witnesses for the prosecution. Speaking outside the courtroom on a recent day, she recalled how her husband told her to fight on for him after he was led away by military officers. She never saw him again.

"For me, this is a fight for justice, for memory, for truth -- it's a commitment for life," she said. "Everything I do and will continue to do, until the last day of my life, is a commitment with those words, which have stayed with me in my soul."

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Ex-Soldiers Want to Reveal Chile Dirty War Secrets - NYTimes.com

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SANTIAGO, Chile (AP) -- Hundreds of former military draftees rallying outside Chile's presidential palace were asked Sunday to come forward and reveal crimes they committed and witnessed during Gen. Augusto Pinochet's dictatorship.

The draftees have long feared that if they name names and reveal where bodies are buried, they will face prosecution by the courts or retaliation by those who ordered them to torture and kill.

But now the information they once promised to carry to their graves has become both a heavy psychological burden and a bargaining chip. By offering confessions, some of these now-aging men believe they can improve their chances of getting government pensions and mental health care.

''Perhaps today is the day when the moment has come, for us to describe what we saw and what we suffered inside the military bases, the things that we witnessed and that we did,'' said Fernando Mellado, who leads the Santiago chapter of the Former Soldiers of 1973.

Mellado told his fellow former soldiers that he's made little progress with lawmakers as he lobbies for military draftees to be recognized as victims of the dictatorship, in part because no one understands what they went through.

''Our human rights were also violated,'' he declared. ''The moment has come for former military draftees to tell our wives, our families, the politicians, the society, the country and the whole world about the brutalities they subjected us to. I believe the moment has come for us to speak, for our personal redemption.''

Mellado has been working with similar groups across Chile to figure out whether and how to turn over the information. He urged those in the crowd to provide their evidence to him, and promised to protect their anonymity.

Of the 8,000 people drafted as teenagers from Santiago alone in the tumultuous year when Pinochet overthrew Salvador Allende's government and cemented his hold on power, Mellado believes ''between 20 and 30 percent are willing to talk.''

A small crowd among the former draftees was inspired enough by Mellado's call to immediately approach Associated Press journalists at the rally.

''They made me torture -- I am a torturer -- because they threatened me that if I didn't torture, they would kill me,'' volunteered Jorge Acevedo. He said several prisoners died when he applied electricity during torture sessions, and that their bodies may have been dumped in abandoned mines at the Cerro Chena prisoner camp.

Chilean security forces killed 3,186 people during the dictatorship, including 1,197 who were made to disappear, according to an official count.

In nearly two decades of democracy since then, less than 8 percent of the disappeared have been found, said Viviana Diaz of the Assembly of Family Members of the Disappeared Detainees.

Hundreds of recovered remains, some just bone fragments, have yet to be identified. Only those who buried the bodies know where other common graves lie. Diaz, for one, hopes the former draftees do start talking, even if they do so in a way that avoids prosecution.

Chilean law allows for a ''just following orders'' defense if people submit to the mercy of the courts, naming names and providing information that could help resolve some of the thousands of crimes committed under Pinochet's 1973-1990 rule.

The defense ''theoretically applies and exists'' in Chile, and judges can even have people testify in secret, said attorney Hiram Villagra, who represents families of the dead and disappeared.

But most former soldiers fear the consequences for themselves and their families. Some worry that judges who rose through the ranks under Pinochet might protect their former superior officers instead.

Mellado maintains that the former draftees also are victims -- forced into service as minors and made to do unspeakable things -- and that many now want to get it off their chests.

One confessed to shooting an entire family. Another -- now an alcoholic who sleeps in the street in Santiago -- said he was forced to drown a 7-year-old boy in a barrel of hardening plaster. Others describe harrowing torture sessions, and loading bodies onto helicopters to be dumped at sea.

''Our mission was to stand guard outside, and listen to their screams,'' former draftee Jose Paredes said as he told the AP about his service at the Tejas Verdes torture center. ''They would end up destroyed, torn apart, their teeth and faces broken.''

''There are things that I've always said I will take to the grave,'' Paredes said, his grizzled face running with tears as he named a half-dozen officers who he said gave the orders. ''I've never told this to anyone.''

The Chilean government has made several high-profile efforts to resolve dirty war crimes, but Mellado said former draftees who wanted to testify were turned away: The Defense Ministry sent them to civilian courts, while civilian authorities considered them to be military.

Villagra agrees the time is overdue for the soldiers to seek redemption -- and sent a message of support for Mellado's efforts to gather their testimony.

''Clearly there is no desire from our part for these soldiers to carry the burden of guilt of the officers, who were the ones who made the decisions,'' Villagra said.

An AP review found 769 current and former security officers, most of them military, have been prosecuted for murders and other human rights violations. Almost all deny committing crimes. Only 276 have been sentenced.

Much of the evidence came from former prisoners. Testimony from former soldiers could do much to resolve these cases.

Lawyers for Detainee Qahtani to Get Interrogation Tapes - washingtonpost.com

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By Del Quentin Wilber and Julie Tate
Washington Post Staff Writers
Tuesday, October 6, 2009

A federal judge on Monday disclosed the existence of videotapes that may reveal potentially abusive interrogations of a Guantanamo Bay detainee, and ordered the government to provide copies of the tapes to the man's lawyers.

Lawyers for the detainee, Mohammed al-Qahtani, say they think the tapes will show that their client made incriminating statements only because he was tortured.

A top Bush administration official, Susan J. Crawford, conceded in January that Qahtani, 30, had been subjected to techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold.

She said at the time that such treatment, which took place in late 2002 and early 2003 at the U.S. military prison in Cuba, placed Qahtani in a "life threatening situation."

"We tortured" Qahtani, Crawford said at the time. She said she would not allow his military-commission trial to go forward.

The detainee's attorneys, who work for the nonprofit group Center for Constitutional Rights, are challenging the prisoner's confinement in a federal lawsuit.

The government alleges that Qahtani, a Saudi, planned to participate in the Sept. 11, 2001, attacks but was denied entry to the United States in August of that year. Authorities are justifying Qahtani's continued confinement based on incriminating statements he made after the abusive interrogations stopped.

Qahtani's lawyers say the tapes, which document an earlier interrogation period, will shed light on why their client later confessed to being sent to the United States by the mastermind of the Sept. 11 attacks.

He now denies those allegations, his lawyers say.

"Once the abuse and torture started, any subsequent statements he made were tainted by the earlier torture, the damage it caused and the fear of further torture," said one of his lawyers, Gitanjali S. Gutierrez.

Gutierrez was seeking all videotapes made by the military starting in August 2002. In her order, U.S. District Judge Rosemary M. Collyer said the government had to turn over videotapes documenting interrogations that took place between Nov. 15 and Nov. 22. That is just before the military began keeping written records of the detainee's interrogations.

A Justice Department spokesman said the government was reviewing the order.

The Torture Memos: The Case Against the Lawyers - The New York Review of Books

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By David Cole

1.

On Monday, August 24, as President Obama began his vacation on Martha's Vineyard, his administration released a previously classified 2004 report by the CIA's inspector general that strongly criticized the techniques employed to interrogate "high-value" al-Qaeda suspects at the CIA's secret prisons.^[1] The report revealed that CIA agents and contractors, in addition to using such "authorized" and previously reported tactics as waterboarding, wall-slamming, forced nudity, stress positions, and extended sleep deprivation, also employed a variety of "unauthorized, improvised, inhumane and undocumented" methods. These included threatening suspects with a revolver and a power drill; repeatedly applying pressure to a detainee's carotid artery until he began to pass out; staging a mock execution; threatening to sexually abuse a suspect's mother; and warning a detainee that if another attack occurred in the United States, "We're going to kill your children."

The inspector general also reported, contrary to former Vice President Dick Cheney's claims, that "it is not possible to say" that any of these abusive tactics— authorized or unauthorized—elicited valuable information that could not have been obtained through lawful, nonviolent means. While some of the CIA's detainees provided useful information, the inspector general concluded that the effectiveness of the coercive methods in particular—as opposed to more traditional and lawful tactics that were also used—"cannot be so easily measured." CIA officials, he wrote, often lacked any objective basis for concluding that detainees were withholding information and therefore should be subjected to the "enhanced" techniques. The inspector general further found no evidence that any imminent terrorist attacks had been averted by virtue of information obtained from the CIA's detainees. In other words, there were no "ticking time bombs."

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The same day, Attorney General Eric Holder announced that he was asking John Durham, a federal prosecutor already investigating the CIA's suspicious destruction of its interrogation videotapes, to expand his inquiry to include a preliminary investigation into some of the CIA's most extreme interrogation tactics. Holder simultaneously announced that he would not prosecute "anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees."

The latter limitation suggests that Holder has directed the investigation to focus only on those interrogators who engaged in unauthorized conduct, but not on the lawyers and Cabinet officials who authorized the CIA to use specific techniques of brutal physical coercion in the first place. If the inquiry stops there, it will repeat the pattern we saw after the revelation of the abuses at Abu Ghraib, in which a few low-level individuals were prosecuted but no higher-ups were held accountable.

Lost in all the attention given to the CIA inspector general report and Holder's announcement was still another packet of documents released later the same day, from the Justice Department's Office of Legal Counsel (OLC). When these memos, letters, and faxes are considered together with an earlier set disclosed in April 2009, it becomes clear that there is an inherent conflict of interest in the investigation Holder has initiated. Justice Department lawyers were inextricably involved in justifying every aspect of the CIA program. They wrote memo after memo over a five-year period, from 2002 to 2007, all maintaining that any interrogation methods the CIA was planning to use were legal. And now the Justice Department is investigating not itself, but only the CIA, for atrocities in which both were deeply implicated.

While the memos from the Office of Legal Counsel have received less attention than the details of brutal treatment recorded by the CIA inspector general, these memos are the real "smoking gun" in the torture controversy. They reveal that instead of requiring the CIA to conform its conduct to the law, the OLC lawyers contorted the law to authorize precisely what it was designed to forbid. They concluded that keeping suspects awake for eleven days straight, stripping them naked, exposing them to cold temperatures, dousing them with water, slamming them into walls, forcing them into cramped boxes and stress positions for hours at a time, and waterboarding them hundreds of times were not torture, not cruel, not inhuman, not even degrading, and therefore perfectly legal. The memos make clear that true accountability cannot stop at the CIA interrogators, but must extend up the chain of authority, to the lawyers and Cabinet officers who approved the "enhanced interrogation techniques" in the first place.

The OLC's defenders argue that it was difficult to define concretely exactly what constitutes torture or cruel, inhuman, or degrading treatment and that there was little direct precedent to go on. There is some truth to these arguments. Not all physically coercive interrogation is torture. Determining whether tactics qualify as torture under federal law requires difficult distinctions between "severe" and less-than-severe pain and suffering, and between "prolonged" and temporary mental harm. Former Attorney General Michael Mukasey has argued that the lawyers acted in good faith to render their best judgment on these issues in perilous times.

Precisely because many of the questions were so difficult, however, one would expect a good-faith analysis to reach a nuanced conclusion, perhaps approving some measures while definitely prohibiting others. Yet it is striking that on every question, no matter how much the law had to be stretched, the Bush administration lawyers reached the same result—the CIA could do whatever it had proposed to do. And long after federal officials acknowledged that the threat of terror had substantially subsided, the OLC continued to distort the law so as to facilitate brutality.

Most disturbingly, the OLC lawyers secretly maintained their position even as the relevant facts changed, and even after the law developed to underscore that the CIA's tactics were illegal. There was one law for public consumption, but another quite different law operating in secret. For example, when the Justice Department's initial August 2002 memo interpreting the torture statute was leaked to the press in June 2004 and widely condemned, the department publicly issued a replacement memo, dated December 30, 2004, which rejected several interpretations advanced in its earlier memo. But the recently disclosed documents reveal that the department continued in secret to approve all the same interrogation tactics.

In 2005 Congress threatened to restrict CIA tactics further by confirming that every person in US custody was protected against not only torture, but all cruel, inhuman, and degrading treatment. The Bush lawyers drafted yet another secret opinion, concluding that none of the CIA's tactics could even be considered cruel, inhuman, or degrading. And when the Supreme Court ruled in 2006 that the Geneva Conventions, which broadly prohibit all mistreatment of wartime detainees, applied to al-Qaeda, the OLC lawyers wrote still another secret opinion recommending that President Bush issue an executive order that would "authoritatively" establish that the CIA's tactics did not violate the laws of war—simply because the president said so. When considered as a whole, the memos reveal a sustained effort by the OLC lawyers to rationalize a predetermined and illegal result.

2.

History has shown that even officials acting with the best intentions may come to feel, especially in times of crisis, that the end justifies the means, and that the greater good of national security makes it permissible to inflict pain on a resisting suspect to make him talk. History has also shown that inflicting such pain—no matter how "well-intentioned"—dehumanizes both the suspect and his interrogator, corrodes the system of justice, renders a fair trial virtually impossible, and often exacerbates the very threat to the nation's security that was said to warrant the interrogation tactics in the first place.

Knowing that history, the world's nations adopted the Geneva Conventions and the Convention Against Torture (in 1949 and 1984), both of which prohibit torture in absolute terms. The Convention Against Torture provides that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

If laws such as the Geneva Conventions and the Convention against Torture are to work, however, lawyers must stand up for them. That means being willing to say no when asked whether it is permissible to subject a human being to the brutality that the CIA proposed. Yet the OLC lawyers always said yes. Where precedents were deemed helpful, they cited them even if they were inapposite; where precedents were unhelpful, they did not cite them, no matter how applicable. They treated the law against torture not as a universal moral prohibition, but as an inconvenient obstacle to be evaded by any means necessary.

Such an approach to the law is especially alarming in view of the particular role of the Office of Legal Counsel. That office is designed to serve as the "constitutional conscience" of the Justice Department. As Jack Goldsmith, one of the heads of the OLC under President Bush, has said, "OLC is, and views itself as, the frontline institution responsible for ensuring that the executive branch charged with executing the law is itself bound by law." It attracts some of the nation's best lawyers, and its alumni include former Chief Justice William Rehnquist, Justice Antonin Scalia, former Solicitors General Theodore Olson and Walter Dellinger, former Yale Law School Dean and current State Department Legal Adviser Harold Koh, Harvard Law Professor Cass Sunstein, and former Yale University President Benno Schmidt Jr.

Private lawyers are sometimes considered "hired guns," whose obligation is to interpret the law as far as possible to do their client's bidding. We rely on the adversarial system and public airing of arguments and evidence to reach a just result. Lawyers in the Office of Legal Counsel, by contrast, work in a setting that affords no adversarial presentation or public scrutiny. In that position, the lawyer's obligation is to provide objective advice as an "honest broker," not to act as an advocate or a hired gun.

When it comes to covert activities such as the CIA interrogation program, judgments of legality are often uniquely in executive hands, since the judiciary, Congress, and the public may not even know of the activities' existence. In addition, on the question of torture the OLC lawyers were the last—and only—line of defense, since the detainees were denied all recourse to the outside world.

If OLC lawyers had exercised independent judgment and said no to the CIA's practices, as they should have, that might well have been the end of the Bush administration's experiment with torture. Vice President Dick Cheney and his chief counsel, David Addington, would undoubtedly have put tremendous pressure on the OLC to change its views; but had the OLC stood firm, it is difficult to imagine even the Bush-Cheney White House going forward with a program that the OLC said was illegal.

The OLC lawyers had the opportunity, and the responsibility, to prevent illegal conduct before it occurred. The lawyers involved in drafting the "torture memos"—Jay Bybee, John Yoo, Daniel Levin, and Steven Bradbury—failed to live up to these obligations. In their hands, law became not a constraint on power but the instrument of unconscionable abuse.

3.

The "original sin" in this narrative dates to August 1, 2002, when the OLC issued two memos that approved every tactic the CIA had proposed. From that point forward, there was no turning back. Other OLC memos had already ruled that the Geneva Conventions did not protect al-Qaeda detainees. And as we would learn later, the OLC had secretly concluded that the Convention Against Torture's prohibition on cruel, inhuman, and degrading treatment did not apply to foreigners held in CIA custody abroad. The August 2002 memos, therefore, addressed what the OLC considered the sole remaining barrier to harsh interrogation tactics—a federal statute making torture a crime.

The initial August 2002 memo, written by John Yoo and signed by Jay Bybee, was leaked in 2004, and has already been widely discussed.^[2] It defined "severe pain or suffering" by reference to an obscure and inapposite health benefits statute, concluding that in order to be "severe," pain must be "equivalent in intensity to the pain accompanying organ failure, impairment of bodily function, or even death." It interpreted "prolonged mental harm" to require proof of harm lasting "months or years." It said that the president had unchecked power to authorize torture despite a federal statute making it a crime. And it argued that an interrogator who tortured could escape liability by asserting unprecedented versions of the "self-defense" and "necessity" doctrines, advancing much broader interpretations of these concepts than most criminal defense lawyers would be willing to offer.

The same day, August 1, 2002, the OLC issued a second memo, publicly released for the first time in April 2009. It concluded that all of the CIA's proposed tactics were permissible: specifically,

(1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard.

None of these techniques, the OLC insisted, inflicted pain of a severity associated with organ failure or death. While being slammed into a wall repeatedly "may hurt...any pain experienced is not of the intensity associated with serious physical injury." What was the basis for these OLC conclusions? The CIA itself. With respect to waterboarding, for example, the OLC memo stated: "[the CIA has] informed us that this procedure does not inflict actual physical harm," and on that basis the memo concluded that waterboarding "inflicts no pain or actual harm whatsoever." And waterboarding cannot cause any long-term suffering, the OLC determined, because, according to the CIA, it "is simply a controlled acute episode."

The arguments of the initial August 2002 memo were so strained that the Justice Department abandoned them as soon as the memo was made public in 2004. On December 30, 2004, the department issued a replacement memo, signed by the new OLC head, Dan Levin, that pointedly departed from the August 2002 memo on several specific points. But these disagreements were purely cosmetic; behind closed doors, issuance of the ostensibly contrite replacement memo did not change anything with respect to the CIA's program. The memo was more an exercise in public relations than in law, since it did nothing to restrict the specific techniques that had been approved previously.

This becomes clear in three secret memos issued in May 2005, and signed by Steven Bradbury, who succeeded Levin as head of the OLC. These memos sound at first reading more reasonable than the August 2002 memos. They acknowledge more contrary arguments, and even occasionally express doubt. They were written with acute awareness of the widespread public criticism of the leaked August 2002 memo, and of the damning findings of the 2004 CIA inspector general's report. By this time, almost four years after September 11, and with substantial evidence of abuse, the OLC should have known better. Yet the May 2005 memos are in a fundamental sense the worst of the lot, and ultimately reach even more unreasonable positions than the August 2002 memos.

The May memos conclude that none of the CIA techniques, used singly or in combination, constitute either torture or cruel, inhuman, or degrading treatment. Their analysis is heavily predicated on two facts: (1) American soldiers subjected to some of these techniques in the military's counter-torture training (called Survival, Evasion, Resistance, Escape, or SERE) reportedly have not suffered severe physical pain or prolonged mental harm; and (2) doctors would be present to monitor the interrogations. Neither fact remotely supports the legality of the program.

The SERE experience is wholly inapposite. A soldier who chooses to subject himself to SERE training does so voluntarily; he knows that everything that happens to him is part of a program that he knows has clear limits. He is given a code word that he can use at any time to halt the process. By contrast, an al-Qaeda suspect finds himself an involuntary captive of his enemy in a secret prison, cut off from the outside world, unaware of any limits, and utterly powerless to make his interrogators stop.

Nor does the presence of a doctor make coercive interrogation legal. The memos stressed that medical experts with SERE experience would stop the interrogations "if deemed medically necessary to prevent severe mental or physical harm." But how is a medical expert supposed to assess whether a given technique is imposing severe rather than less-than-severe pain, or might give rise to prolonged rather than temporary psychological harm? No doctor could assess these things on the spot. Indeed, at one point the December 2004 memo seems to admit this, quoting a medical journal to the effect that "pain is a subjective experience and there is no way to objectively quantify it." And if anything, experience with SERE simulations is likely to have desensitized doctors to the potential harms presented by real coercive interrogations.

A separate memo, dated May 30, 2005, the most disingenuous of all, concluded that the CIA's techniques did not even constitute cruel, inhuman, or degrading treatment, a much lower threshold than torture. The Bush OLC had previously sidestepped the prohibition against "cruel, inhuman, or degrading treatment" altogether by maintaining, again in secret, that it did not apply to foreign nationals held outside US borders. But when that interpretation was publicly disclosed, Congress vowed to overrule it. The Bush administration vigorously resisted, but in the Detainee Treatment Act, enacted in December 2005, Congress expressly prohibited cruel, inhuman, or degrading treatment of any person in US custody.

Recognizing that this change was coming, the May 30 memo stated, once again in secret, that none of the CIA's techniques were cruel, inhuman, or degrading anyway, because they would not "shock the conscience," a test imposed by the Senate when it ratified the 1984 treaty banning torture and cruel treatment. The OLC concluded that the CIA tactics did not shock the conscience because they inflicted pain not arbitrarily but for a good end, and because the government sought to "minimize the risk of injury or any suffering that does not further the Government's interest in obtaining actionable intelligence."

The case law is clear, however, that any intentional infliction of pain for interrogation purposes "shocks the conscience." And the Supreme Court has recognized no exception that would permit the infliction of pain if the government's reason is good enough. The Court has repeatedly held that any use or threat of force to coerce a confession shocks the conscience—even where employed to solve a murder.^[3]

The OLC argued in its May 30 memo that this standard ought not to apply where interrogation is used only to gather intelligence, not to convict. But in Chavez v. Martinez, the Supreme Court in 2003 reaffirmed that any intentional infliction of pain for interrogation would shock the conscience, even where the statements were not used in a prosecution. In the Chavez case, officers interrogated a man while he was suffering from gunshot wounds in a hospital, but they did not inflict any pain themselves for the purpose of questioning. While the justices disagreed about the specific conclusions to be drawn from the facts alleged, and ultimately returned the case to the lower court for resolution, all of the justices who addressed the issue agreed that the deliberate infliction of pain on an individual to compel him to talk would shock the conscience.

Justice Kennedy, writing for three justices, reasoned that police "may not prolong or increase a suspect's suffering against the suspect's will," or even give him "the impression that severe pain will be alleviated only if [he] cooperates." Justice Thomas, writing for another three justices, concluded that the interrogation was permissible, but only because he found "no evidence that Chavez acted with a purpose to harm Martinez," or that "Chavez's conduct exacerbated Martinez's injuries." Under either approach, then, a purpose to harm is illegal. The court of appeals on remand in the Chavez case unanimously held that the alleged conduct indeed shocked the conscience, a fact not even acknowledged by the OLC memo.

The OLC memo maintained that "the CIA program is considerably less invasive or extreme than much of the conduct at issue in [Chavez]." In fact, the opposite is true. The officers in Chavez inflicted no pain for purposes of interrogation. The CIA's entire program, by contrast, was based on the deliberate infliction of pain and humiliation to compel recalcitrant suspects to talk against their will.

Tellingly, at the very end of this memo, the OLC lawyers admitted that "we cannot predict with confidence that a court would agree with our conclusion." But they then went on to reassure the CIA that the question "is unlikely to be subject to judicial inquiry." Even if the treaty prohibiting torture and cruel treatment were violated, the memo continued, "the courts have nothing to do and can give no redress." In other words, the CIA for all practical purposes was operating in a "law-free zone," or at least a zone where the law was whatever the executive said it was—in secret. And no court would ever have the opportunity to disagree.

The latest OLC memo on the CIA interrogation program to be disclosed is dated July 2007, and was publicly released on August 24, 2009.^[4] By the time this memo was written, the Supreme Court had rejected the Bush administration's contention that al-Qaeda detainees were not covered by Common Article 3 of the Geneva Conventions. Common Article 3 comprehensively prohibits torture, cruelty, violence to person, and any humiliating, degrading, or inhumane treatment of wartime detainees. By 2007, the CIA had limited their interrogation tactics but were still using extended sleep deprivation, dietary manipulation, attention grasps, and slapping detainees repeatedly in the face and stomach—all of which would ordinarily violate Common Article 3.

The OLC argued that Common Article 3 permitted abuse of al-Qaeda detainees that it would not permit of any other wartime detainees, even though Common Article 3 draws no distinctions among detainees. Other courts had ruled that any deliberate infliction of pain to coerce statements from suspects is inherently degrading. The OLC rejected that view, insisting that degrading treatment was permissible as long as it was not an "outrage upon personal dignity"—but never explained why using physical pain to override a suspect's will is not inherently an outrage upon personal dignity.

Most astoundingly, the memo argued —in a footnote—that the president could avoid all of Common Article 3's requirements simply by declaring that they do not apply—even though the Supreme Court had ruled exactly the opposite one year earlier. In the OLC's view, the Military Commissions Act of 2006 gave the president the power to overrule the Supreme Court on this matter. Congress never said anything of the kind. The memo concluded with the advice that the president act somewhat less dramatically, and simply issue a regulation that "defined" Common Article 3 in a way that would allow the CIA to do what it wanted. President Bush subsequently did just that.

4.

At its best, law is about seeking justice, regulating state power, respecting human dignity, and protecting the vulnerable. Law at its worst treats legal doctrine as infinitely manipulable, capable of being twisted cynically in whatever direction serves the client's desires. Had the OLC lawyers adhered to the former standard, they could have stopped the CIA abuses in their tracks. Instead, they used law not as a check on power but to facilitate brutality, deployed against captive human beings who had absolutely no other legal recourse.

In light of these actions, it is not enough to order a cessation of such tactics, and a limited investigation of CIA agents who may have gone beyond the OLC guidelines. Official recognition that the OLC guidelines were themselves illegal is essential if we are to uphold a decent standard of law. Official repudiation is also critical if we are to regain respect around the world for the United States as a law-abiding nation, and if we hope to build meaningful safeguards against this kind of descent into cruelty happening again.

Moreover, this is not just a matter of what's right from the standpoint of morality, history, or foreign relations. The United States is legally bound by the Convention Against Torture to submit any case alleging torture by a person within its jurisdiction "to its competent authorities for the purpose of prosecution." President Obama and Attorney General Holder have both stated that waterboarding is torture. Accordingly, the United States is legally obligated to investigate not merely those CIA interrogators who went beyond waterboarding, but the lawyers and Cabinet officers who authorized waterboarding and other torture tactics in the first place.

The fact that such an investigation would be divisive, or might divert attention from President Obama's other priorities, is not an excuse for failing to fulfill this legal obligation, and not a justification for not prosecuting. The fact that a defendant has powerful allies does not warrant treating him more leniently. At the same time, prosecutors do have discretion not to bring charges for many reasons, and it would not be illegitimate to decline prosecution if a prosecutor concluded that it was not clear beyond a reasonable doubt that the lawyers and officials intended to violate the law.

But surely it is premature to make such judgments. All the facts are still not known. And even if prosecution were not warranted, it is still critical that there be some form of official acknowledgment of wrongdoing. The least President Obama should do, therefore, is to appoint an independent, nonpartisan commission of distinguished citizens, along the lines of the 9/11 Commission, to investigate and assess responsibility for the United States' adoption of coercive interrogation policies.

Only such a commission has the possibility of rising above the partisan wrangling that any attempt to hold accountable high-level officials of the prior administration is certain to set off. The facts that emerge should point to the appropriate response—whether a congressional resolution, disbarment proceedings against the lawyers, civil actions for money damages, or criminal prosecutions. Absent a reckoning for those responsible for making torture and cruel, inhuman, and degrading treatment official US policy, the United States' commitment to the rule of law will remain a hollow shell—a commitment to be honored only when it is not inconvenient or impolitic to do so.

— September 10, 2009

Notes

^[1]Office of Inspector General, "Special Review: Counterterrorism Detention and Interrogation Activities (September 2001–October 2003)," May 7, 2004, available at www.aclu.org/oigreport/.

^[2]All of the OLC memos discussed here are reproduced in The Torture Memos: Rationalizing the Unthinkable, edited by David Cole and with a foreword by Philippe Sands, just published by the New Press, with the exception of a July 2007 memo that was released only on August 24, 2009.

^[3]See, for example, Rogers v. Richmond, 365 US 534 (1961); Ashcraft v. Tennessee, 322 US 143 (1944).

^[4]"Memorandum for John A. Rizzo, Acting General Counsel, Central Intelligence Agency, Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques that May Be Used by the CIA in the Interrogation of High Value al Qaeda Detainees," July 20, 2007, available at www.usdoj.gov/olc/docs/memo-warcrimesact.pdf.

How a Detainee Became An Asset - washingtonpost.com

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Sept. 11 Plotter Cooperated After Waterboarding

By Peter Finn, Joby Warrick and Julie Tate
Washington Post Staff Writers
Saturday, August 29, 2009

After enduring the CIA's harshest interrogation methods and spending more than a year in the agency's secret prisons, Khalid Sheik Mohammed stood before U.S. intelligence officers in a makeshift lecture hall, leading what they called "terrorist tutorials."

In 2005 and 2006, the bearded, pudgy man who calls himself the mastermind of the Sept. 11, 2001, attacks discussed a wide variety of subjects, including Greek philosophy and al-Qaeda dogma. In one instance, he scolded a listener for poor note-taking and his inability to recall details of an earlier lecture.

Speaking in English, Mohammed "seemed to relish the opportunity, sometimes for hours on end, to discuss the inner workings of al-Qaeda and the group's plans, ideology and operatives," said one of two sources who described the sessions, speaking on the condition of anonymity because much information about detainee confinement remains classified. "He'd even use a chalkboard at times."

These scenes provide previously unpublicized details about the transformation of the man known to U.S. officials as KSM from an avowed and truculent enemy of the United States into what the CIA called its "preeminent source" on al-Qaeda. This reversal occurred after Mohammed was subjected to simulated drowning and prolonged sleep deprivation, among other harsh interrogation techniques.

"KSM, an accomplished resistor, provided only a few intelligence reports prior to the use of the waterboard, and analysis of that information revealed that much of it was outdated, inaccurate or incomplete," according to newly unclassified portions of a 2004 report by the CIA's then-inspector general released Monday by the Justice Department.

The debate over the effectiveness of subjecting detainees to psychological and physical pressure is in some ways irresolvable, because it is impossible to know whether less coercive methods would have achieved the same result. But for defenders of waterboarding, the evidence is clear: Mohammed cooperated, and to an extraordinary extent, only when his spirit was broken in the month after his capture March 1, 2003, as the inspector general's report and other documents released this week indicate.

Over a few weeks, he was subjected to an escalating series of coercive methods, culminating in 7 1/2 days of sleep deprivation, while diapered and shackled, and 183 instances of waterboarding. After the month-long torment, he was never waterboarded again.

"What do you think changed KSM's mind?" one former senior intelligence official said this week after being asked about the effect of waterboarding. "Of course it began with that."

Mohammed, in statements to the International Committee of the Red Cross, said some of the information he provided was untrue.

"During the harshest period of my interrogation I gave a lot of false information in order to satisfy what I believed the interrogators wished to hear in order to make the ill-treatment stop. I later told interrogators that their methods were stupid and counterproductive. I'm sure that the false information I was forced to invent in order to make the ill-treatment stop wasted a lot of their time," he said.

Critics say waterboarding and other harsh methods are unacceptable regardless of their results, and those with detailed knowledge of the CIA's program say the existing assessments offer no scientific basis to draw conclusions about effectiveness.

"Democratic societies don't use torture under any circumstances. It is illegal and immoral," said Tom Parker, policy director for counterterrorism and human rights at Amnesty International. "This is a fool's argument in any event. There is no way to prove or disprove the counterfactual."

John L. Helgerson, the former CIA inspector general who investigated the agency's detention and interrogation program, said his work did not put him in "a position to reach definitive conclusions about the effectiveness of particular interrogation methods."

"Certain of the techniques seemed to have little effect, whereas waterboarding and sleep deprivation were the two most powerful techniques and elicited a lot of information," he said in an interview. "But we didn't have the time or resources to do a careful, systematic analysis of the use of particular techniques with particular individuals and independently confirm the quality of the information that came out."

After his capture, Mohammed first told his captors what he calculated they already knew.

"KSM almost immediately following his capture in March 2003 elaborated on his plan to crash commercial airlines into Heathrow airport," according to a document released by the CIA on Monday that summarizes the intelligence provided by Mohammed. The agency thinks he assumed that Ramzi Binalshibh, a Sept. 11 conspirator captured in September 2002, had already divulged the plan.

One former U.S. official with detailed knowledge of how the interrogations were carried out said Mohammed, like several other detainees, seemed to have decided that it was okay to stop resisting after he had endured a certain amount of pressure.

"Once the harsher techniques were used on [detainees], they could be viewed as having done their duty to Islam or their cause, and their religious principles would ask no more of them," said the former official, who requested anonymity because the events are still classified. "After that point, they became compliant. Obviously, there was also an interest in being able to later say, 'I was tortured into cooperating.' "

Mohammed provided the CIA with an autobiographical statement, describing a rebellious childhood, his decision to join the Muslim Brotherhood as a teenager, and his time in the United States as a student at North Carolina Agricultural and Technical State University, from where he graduated in 1986 with a degree in mechanical engineering.

"KSM's limited and negative experience in the United States -- which included a brief jail stay because of unpaid bills -- almost certainly helped propel him on his path to becoming a terrorist," according to the intelligence summary. "He stated that his contact with Americans, while minimal, confirmed his view that the United States was a debauched and racist country."

Mohammed provided $1,000 to Ramzi Yousef, a nephew, to help him carry out the 1993 attack on the World Trade Center. In 1994, he worked in the Philippines with Yousef, now serving a life sentence at the federal "supermax" prison in Colorado, on a failed plot to down 12 U.S. commercial aircraft over the Pacific.

Mohammed told interrogators it was in the Philippines that he first considered using planes as missiles to strike the United States. He took the idea to Osama bin Laden, who "at first demurred but changed his mind in late 1999," according to the summary.

Mohammed described plans to strike targets in Saudi Arabia, East Asia and the United States after the Sept. 11 attacks, including using a network of Pakistanis "to target gas stations, railroad tracks, and the Brooklyn bridge in New York." Cross-referencing material from different detainees, and leveraging information from one to extract more detail from another, the CIA and FBI went on to round up operatives both in the United States and abroad.

"Detainees in mid-2003 helped us build a list of 70 individuals -- many of who we had never heard of before -- that al-Qaeda deemed suitable for Western operations," according to the CIA summary.

Mohammed told interrogators that after the Sept. 11 attacks, his "overriding priority" was to strike the United States, but that he "realized that a follow-on attack would be difficult because of security measures." Most of the plots, as a result, were "opportunistic and limited," according to the summary.

One former agency official recalled that Mohammed was once asked to write a summary of his knowledge about al-Qaeda's efforts to obtain weapons of mass destruction. The terrorist group had explored buying either an intact nuclear weapon or key components such as enriched uranium, although there is no evidence of significant progress on that front.

"He wrote us an essay" on al-Qaeda's nuclear ambitions, the official said. "Not all of it was accurate, but it was quite extensive."

Mohammed was an unparalleled source in deciphering al-Qaeda's strategic doctrine, key operatives and likely targets, the summary said, including describing in "considerable detail the traits and profiles" that al-Qaeda sought in Western operatives and how the terrorist organization might conduct surveillance in the United States.

Mohammed was moved to the U.S. military facility at Guantanamo Bay, Cuba, in September 2006, and his loquaciousness is now largely confined to occasional appearances before a military commission. Back in his 86-square-foot cell at the secret Camp 7 at Guantanamo, he spends most of his waking hours in prayer, according to a source familiar with his confinement who spoke on the condition of anonymity.

But Mohammed has not abandoned his intellectual pursuits. He requested a Bible for study in his cell, according to the source, in order to better understand his enemy.

Staff writer Walter Pincus contributed to this report.

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What to Do About the Torturers? - The New York Review of Books

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By David Cole

Torture Team: Rumsfeld's Memo and the Betrayal of American Values

by Philippe Sands

Palgrave Macmillan, 254 pp., $26.95

The Trial of Donald Rumsfeld: A Prosecution by Book

by Michael Ratner and the Center for Constitutional Rights

New Press, 242 pp., $23.95

Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond

by Jameel Jaffer and Amrit Singh

Columbia University Press, 374 pp., $29.95; $22.50 (paper)

The story of America's descent into torture in the wake of the terrorist attacks of September 11, 2001, has been told now by many writers. Mark Danner, Jane Mayer, and Ron Suskind have written brilliant expositions of the facts, showing how the drive to prevent the next attack led the administration's highest officials to seek ways around the legal restrictions on coercive interrogation of suspects.^[1] After the abuses at Abu Ghraib came to light, the military itself commissioned three detailed investigative reports, including highly critical ones by Major General Antonio Taguba and by a panel led by former defense secretary James Schlesinger. Among other factors, they blamed ambiguity in the standards governing interrogation—an ambiguity ultimately attributable to the attempts at evasion directed from the top. Congressional committees have held numerous public hearings into the use of coercive interrogation tactics at both Abu Ghraib and Guantánamo. The Center for Constitutional Rights, the ACLU, and the NYU Center on Law and Security have each published collections of official documents, which effectively indict the government using its own words.^[2]

But undoubtedly the most unusual and deeply revealing take on the subject is the work of the British lawyer and law professor Philippe Sands. As Alexis de Tocqueville showed long ago, sometimes it takes the eyes of an outsider to show us ourselves. Sands, a leading international lawyer and a professor at University College London, took it upon himself to conduct his own personal investigation of one aspect of the torture policy—the Army's adoption of coercive tactics to interrogate suspects at Guantánamo. This policy was not the worst of the post–September 11 abuses. As far as we know, no one has been waterboarded at Guantánamo, as some were at the CIA's secret "black sites," nor have any suspects been killed in interrogation, as happened on several occasions elsewhere. No one we know of has been rendered from Guantánamo to another country to be tortured, although some prisoners who were earlier subject to rendition and torture have since been transferred to Guantánamo.

---

---

But precisely because the Army's interrogation policy was not the worst of the worst—to borrow a phrase—its story may actually be more instructive. The CIA has always operated to a significant degree outside the law. The military, by contrast, is at its core an institution committed to discipline and order, strictly governed by the laws of war. So the fact that illegal abusive tactics were officially authorized at the Pentagon's highest levels is in some sense more shocking than the CIA's crimes. We should expect more of the military.

America's experiment with torture presents the Obama administration with one of its most difficult challenges: how should the nation account for the abuses that have occurred in the past, what are the appropriate remedies, and how can we ensure that such abuses not happen again? Torture Team offers new insight into what will surely be one of the leading human rights issues of the next several years.

1.

Sands began his investigation, as any good lawyer would, with the documents—from a memo drafted by Lieutenant Colonel Diane Beaver, a staff lawyer for the Army stationed at Guantánamo; to a log detailing the interrogation of "Detainee 063," Mohammed al-Qahtani; to a one-page memo drafted by William Haynes, Department of Defense general counsel, and signed by Defense Secretary Donald Rumsfeld himself, authorizing a series of coercive interrogation tactics beyond anything the military had previously permitted. In signing that memo, which approved sixteen coercive tactics, including forcing suspects to stand for up to four hours straight, Rumsfeld scribbled in the margin, "I stand for 8–10 hours a day. Why is standing limited to 4 hours?" As that comment itself suggests, these documents chillingly underscore the mundane banality with which cruelty and torture became official policy of the United States Department of Defense.

The smoking gun is the Army's log of the interrogation of Mohammed al-Qahtani. Al-Qahtani was thought to be the twentieth hijacker; he was denied entry to the United States in August 2001 at Orlando Airport, where Mohamed Atta, the leader of the September 11 attacks, was waiting to meet him. It was his interrogation that prompted the military to authorize new coercive techniques. The log of al-Qahtani's interrogation, leaked to the press and initially published by Time magazine, provides a detailed, minute-by-minute account of the tactics employed against al-Qahtani, all of which had been approved by Rumsfeld in his one-page memo.

Over fifty-four days, beginning in late 2002, al-Qahtani was interrogated for eighteen to twenty hours each day, denied anything more than four hours' sleep per night, threatened with dogs, stripped naked, hooded, forced to wear women's underwear on his head, humiliated sexually by female interrogators, subjected to extreme heat and cold and loud noises, doused with cold water, and injected with intravenous fluid and not allowed to go to the bathroom so that he urinated on himself. The account has been public for some time, but Sands brings it to life, using it as a kind of drumbeat of reality throughout the book by closing nearly every chapter with a short excerpt from the log.

The Army investigated the interrogation of al-Qahtani and concluded that no laws were broken and that nothing inhumane was done. Sands took the log to Dr. Abigail Seltzer, a London-based psychiatrist who consults with the Medical Foundation for the Care of Victims of Torture, in order to obtain an expert assessment. She was exceedingly thorough, marking each time that al-Qahtani was subjected to abusive treatment, required medical care, or expressed distress, but also noting each time his rights were respected. She was cautious in her analysis, remarking on the absence of physical violence and the extremely organized and disciplined way in which the tactics were employed. (Only the US Army could conduct—and record—torture with such meticulous attention to detail.)

When Sands asked Dr. Seltzer whether she thought the treatment had produced severe physical or mental pain, the legal threshold for torture, she pointed to the Army's own recording of al-Qahtani's expressions of distress. Sands puts them together in a single quotation, editing out the tactics that produced the reactions. It is the closest thing we have to seeing the experience through the eyes of its victim, and it is truly harrowing. Here is a portion:

Detainee began to cry. Visibly shaken. Very emotional. Detainee cried. Disturbed. Detainee began to cry. Detainee butted SGT R in the eye. Detainee bit the IV tube completely in two. Started moaning. Uncomfortable. Moaning. Turned his head from left to right. Began crying hard spontaneously. Crying and praying. Began to cry. Claimed to have been pressured into making a confession. Falling asleep. Very uncomfortable. On the verge of breaking. Angry. Detainee struggled. Detainee asked for prayer. Very agitated. Yelled. Agitated and violent. Detainee spat. Detainee proclaimed his innocence. Whining. Pushed guard. Dizzy. Headache. Near tears. Forgetting things. Angry. Upset. Complained of dizziness. Tired. Agitated. Yelled for Allah. Started making faces. Near crying. Irritated. Annoyed. Detainee attempted to injure two guards. Became very violent and irate. Attempted to liberate himself. Struggled. Made several attempts to stand up. Screamed....

Dr. Seltzer concluded that al-Qahtani had undoubtedly suffered severe emotional and possibly physical distress.

What makes Sands's book most intriguing, however, is that he does not merely analyze the documentary evidence. Instead, he personally set out to interview as many of the participants in this sordid tale as would talk to him. Remarkably, nearly all of them did—including Diane Beaver; Major General Michael Dunlavey, commanding officer at Guantánamo until November 2002; Douglas Feith, a leading neoconservative and, as undersecretary of defense for policy, the number three man in the Department of Defense; and General Richard Myers, chairman of the Joint Chiefs of Staff. Sands also interviewed FBI lawyers, military interrogators, the general counsels for the Department of Defense and the Navy, and several others involved in the decision-making process.

Why would so many people willingly talk to a stranger about their roles in the development and implementation of a policy that led to torture, one of the most harshly condemned practices known to mankind? In part, Sands's ability to gain access may have turned on his outsider status—as a British lawyer studying the role of lawyers in the war on terror, he was not obviously identified with any side of the warring camps within the United States on this subject. A Google search, however, would have quickly led the people he interviewed to see that his previous book, Lawless World: America and the Making and Breaking of Global Rules from FDR's Atlantic Charter to George W. Bush's Illegal War,^[3] was a biting critique of the United States' role in the realm of international law in recent years. In fact, several of the officials he approached appear to have done just that, and after initially agreeing to an interview, sought to back out at the last moment. But Sands always managed to talk his way into getting the interview anyway, and in most cases was able to build a strong rapport with his subjects, leading them to be remarkably candid in their responses to his questions.

The more convincing explanation for why so many decided to talk to Sands is that they felt they had done nothing wrong. Douglas Feith, for example, practically gloats about his role in formulating the administration's policy that the Geneva Conventions did not protect al-Qaeda or Taliban fighters. This determination, announced publicly by President Bush in February 2002, cleared the way for coercive interrogation, because if the Geneva Conventions applied, any cruel, inhumane, or degrading treatment of detainees was absolutely forbidden by Common Article 3, which sets a minimum baseline of human rights protections for all detained persons, whether or not they are uniformed fighters. Sands pressed this point with Feith, prompting a striking admission. As Sands relays the dialogue:

I was...curious about the connection between the decision on Geneva and the new interrogation rules approved by Rumsfeld at the end of 2002.... I observed to Feith that his memo to the President and the Geneva decision meant that its constraints on interrogation didn't apply to anyone at Guantánamo. "Oh yes, sure," he shot back. So that was the intention, I asked. "Absolutely," he replied, without any hesitation. Under the Geneva Conventions no one there was entitled to any protection. "That's the point."

Sands's interviews sometimes persuaded him to adopt a more sympathetic understanding of particular protagonists in the torture story. Thus, he portrays Diane Beaver, the lawyer who wrote the initial Army memo justifying coercive interrogation, including waterboarding, as well-meaning if deeply wrong. She was simply out of her depth, Sands suggests, since she had no real experience or serious training in the legal issues about which she was asked to give her opinions.

What's more, Sands contends, Beaver was in reality a scapegoat. The administration sought to portray the decision to use coercive tactics as originating from Guantánamo, but Sands makes a convincing case that the decision in fact came from the top—from Feith, Rumsfeld, Haynes, David Addington (Dick Cheney's legal counsel at the time), Justice Department lawyer John Yoo, and White House Counsel Alberto Gonzales, among others. Beaver's October 2002 memo was largely unnecessary, since it was written after the critical legal decisions had already been made in Washington. By the time Beaver wrote it, President Bush had already publicly declared that Guantánamo detainees were not protected by the Geneva Conventions, and John Yoo and Jay Bybee had already written the infamous August 2002 Justice Department "torture memo" at Gonzales's request. This memo argued that as commander in chief, the president could order torture without fear of criminal liability, and that in any event the torture statute did not prohibit threats of death, as long as the threatened death was not imminent; nor did it prohibit the infliction of intense physical pain, so long as the pain did not rise to the severity associated with organ failure or death itself. In the wake of such opinions, what a staff lawyer at Guantánamo thought was beside the point.

Others are also portrayed in a surprising light. General Richard Myers, chairman of the Joint Chiefs of Staff when the Rumsfeld memo was adopted, had, by his own account, astoundingly little understanding of what was at stake. At one point, he told Sands that all the coercive measures approved by Rumsfeld were already authorized by the Army Field Manual; in fact, none of the tactics were permitted under the manual. Sands concludes that Myers was "hoodwinked" by Rumsfeld and Haynes. General James Hill, who headed the Southern Command and passed Diane Beaver's memo up the chain to Washington, admits to Sands that he would never have approved some of the tactics Rumsfeld okayed. And military intelligence experts closely involved with the Guantánamo interrogations tell Sands that no valuable information was obtained from al-Qahtani.

Sands's book prompted the House Judiciary Committee to launch hearings last summer into the role of lawyers in the development of the interrogation policies, and those hearings in turn led the Senate Armed Services Committee to hold still further hearings. Addington, Yoo, Feith, and Haynes all testified very defensively, often refusing to answer political questions or not recalling key details. But documents disclosed in the course of the hearings now show that when the coercive measures were under consideration, top lawyers for every branch of the military—the Army, Navy, Air Force, and Marine Corps—objected that the tactics might be illegal. The comments encouraged Jane Dalton, legal counsel to General Myers, to undertake a more detailed review of the legal questions posed—until General Myers, at Haynes's request, ordered that the legal inquiry be quashed. It appears that General Myers may not have been hoodwinked after all.

Because so many of the facts surrounding the torture policy are now well known, Sands's book is illuminating not so much for breaking new factual ground as for the human insight he brings to the events. Through his interviews, he tells a story about how ordinary human beings, all working within an institution designed to fight by the rules, felt tremendous pressure to bend the rules—and in most cases did so without apparent concern or self-doubt. A narrowly pragmatic ethos guided virtually all actors. The real arguments were for the most part not about whether coercive tactics were legally or morally acceptable, but about whether they worked. Some, especially those in the FBI, felt strongly that they were counterproductive, and that building rapport through noncoercive questioning was the only way to gain credible intelligence from captives.^[4] Others thought the idea of building rapport with al-Qaeda suspects was foolish; it could not be done. But with the courageous exception of Navy General Counsel Alberto Mora, few argued that coercive tactics were wrong because they were immoral and illegal, whether or not they worked. In America after September 11, idealists were few and far between, and an amoral, blinkered pragmatism ruled the day.

Sands is an unabashed idealist. He considers it the government lawyer's obligation to be the guardian of legality, even (and especially) where one's clients, the politically elected and appointed decision-makers, have decided that the law and the rules are inconvenient. Sands argues that torture is ineffective, and that building rapport with suspects is the better course. Indeed, he demonstrates in his own interviews the power of rapport to get subjects talking candidly. But in the end, his argument is not a pragmatic one—it is an argument of principle. The prohibition against torture is absolute, and expresses a fundamental norm about human decency, not a practical judgment about what produces results in interrogation.

2.

The critical question, now that the administration is changing hands, is how to address the fact that the United States after September 11 adopted an official practice of cruel, inhuman, and degrading interrogation tactics, some of which, including at a minimum the interrogation of al-Qahtani and the waterboarding of CIA suspects, rose to the level of torture. Some, including current Attorney General Michael Mukasey and former Bush administration lawyer Jack Goldsmith, have argued that no further investigations, much less prosecutions, are needed, and we should simply move on.^[5]

Mukasey insists that everyone acted in good faith—but his judgment is compromised by his refusal even to acknowledge that waterboarding is torture. He never squares his finding of "good faith" with the fact that Haynes and Myers cut off an inquiry into the legality of the Army's tactics after the military's top lawyers objected that the tactics were illegal, or that Yoo and Bybee failed even to cite important contrary legal authority in their torture memo. And while good faith is certainly a factor to be considered in making the discretionary decision whether to prosecute, it is not in itself a legal defense to the crimes of torture or cruel, inhumane, or degrading treatment.

In Jack Goldsmith's view, the facts are already known, the normative judgments have been made, and the real risk is that an extensive investigation will induce federal officials to be overly risk-averse in their approach to controversial national security issues. Goldsmith, however, is not a disinterested party; he was Haynes's top lawyer on international law when Haynes drafted the Rumsfeld memo on interrogation tactics. Later, as head of the Office of Legal Counsel, he oversaw a review of the Yoo-Bybee "torture memo" that, while it ultimately resulted in the memo's replacement, did not reverse the office's authorization of any of the CIA's coercive tactics, including waterboarding.^[6]

Others, such as Michael Ratner and the Center for Constitutional Rights, call for criminal prosecution. Their book, The Trial of Donald Rumsfeld, convincingly makes the case that Rumsfeld committed war crimes, and is a useful companion to Torture Team because it includes excerpts from all the critical evidence and a lucid explanation of the legal issues. The center has formally petitioned the German and French governments to bring criminal charges, but both have thus far declined.^[7]

Sands's prescription is similar. His book begins with a discussion of the film Judgment at Nuremberg, which featured the trial of judges and lawyers complicit in Nazi atrocities, and closes with a discussion of the principle of "universal jurisdiction," which holds that any country has the right to prosecute certain war crimes and crimes against humanity, no matter where or by whom they were committed, so long as it observes the fundamental requirements of a fair trial. Sands himself played a part in the landmark UK extradition case against General Augusto Pinochet of Chile, in which the UK's Law Lords ruled that even a former head of state was not immune to prosecution by a foreign country (Spain) for torture and other crimes against humanity.

Criminal prosecution within or outside the United States is highly unlikely. At home, the Justice Department's "torture memo" would be a legal defense for any but the lawyers who wrote it, and Congress, in the Military Commissions Act, granted retrospective immunity to officials involved in the interrogation of al-Qaeda suspects in the wake of September 11. The latter immunity, Sands points out, actually makes US officials more susceptible to prosecution overseas, because it removes a major impediment to international prosecution—namely, the principle that universal jurisdiction should not be exercised as long as domestic remedies are available. Still, as a matter of realpolitik, it is difficult to imagine any nation greeting the Obama administration with an international prosecution of former high-level US officials.

But even if criminal prosecution seems unlikely, the acts of the past administration demand accountability. Here's what Eric Holder, whom Obama will nominate as attorney general, said several months ago:

Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the procedures that violate both international law and the United States Constitution.... We owe the American people a reckoning.

That "reckoning," owed not just to the American people but to the world, will be made especially difficult by the fact that complicity in the torture policy reaches the very top of the Bush administration. The tactics used by the CIA in its interrogations of Khalid Sheikh Mohammed and other "high-level" detainees, including waterboarding, were specifically approved in the White House situation room by Vice President Dick Cheney, Director of Central Intelligence George Tenet, Attorney General John Ashcroft, National Security Adviser Condoleezza Rice, and Secretary of State Colin Powell. Ashcroft is reported to have remarked that "history will not judge us kindly," but none of the participants is reported to have objected to the tactics.^[8] On December 15, Vice President Cheney acknowledged for the first time that he had authorized and continues to support techniques including waterboarding. "I was aware of the program, certainly, and involved in helping get the process cleared," Cheney told ABC News. Apparently CIA officials insisted on such high-level approval as a form of insurance against future prosecution.

This poses a real political dilemma: How is President Obama, committed to bipartisan leadership, to hold such officials accountable? A prosecution of any of these men would be as divisive a criminal case as the United States has ever seen—even if it could surmount the legal hurdles identified above. Just launching an investigation will be bruisingly controversial.

Must we then settle for the judgment of history that Ashcroft worried about? In some sense, that judgment has already begun to take shape, thanks to the efforts of Sands, Ratner, enterprising journalists like Mark Danner and Jane Mayer, and especially the ACLU, which forced the disclosure of over 100,000 documents on the interrogation policy by filing a lawsuit under the Freedom of Information Act. Administration of Torture, a guide to those documents with excerpts from the most interesting, will prove an immensely useful resource for future historians.

Without prosecutions or an independent investigation, significant progress toward repudiating the administration's approval of cruelty and torture has already been made. In 2006 the Supreme Court rejected President Bush's position that the Geneva Conventions do not apply to the conflict with al-Qaeda. The military rescinded its authorization of coercion, and has limited itself, in the Army Field Manual, to noncoercive interrogation tactics. The CIA has reportedly abandoned waterboarding, and there have been no reports of renditions to torture in foreign countries for several years. The Justice Department rescinded the August 2002 "torture memo"—although, as noted above, the replacement memo did not alter the department's approval of illegal CIA tactics. Congress, under the leadership of Senator John McCain, resoundingly rejected a White House interpretation that the Torture Convention's prohibition on cruel, inhuman, and degrading treatment exempted foreign nationals held outside the United States; the McCain Amendment provides that the prohibition applies to all persons held by US officials, no matter where they are located.

Critically, however, while the administration has been forced to retreat, there has been no official acknowledgment of high-level criminal wrongdoing. The treatment of prisoners authorized by the administration clearly violated the prohibitions on cruel, inhumane, and degrading treatment contained in Common Article 3 and the Torture Convention; and waterboarding unquestionably qualifies as torture. All these violations were war crimes. Yet no high-level official has been held accountable for the torture policy. The only officer convicted of any crime with respect to the Abu Ghraib scandal, for example, Lieutenant Colonel Steven Jordan, had his conviction reversed on appeal in January 2008. (And even that conviction was not for any role in the abuse itself, but for disobeying an order not to talk about the investigation.) No one has even been charged for any abuse inflicted at Guantánamo.

On December 11, the leaders of the Senate Armed Services Committee, Carl Levin and John McCain, released an important report on abusive interrogations that concluded that Donald Rumsfeld and other top Bush administration officials had

solicited information on how to use agressive (interrogation) techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.

Most of the report was classified, however. And apart from this, Congress has largely acted symbolically, avoiding any real measures to enforce accountability. The McCain Amendment, for example, provides no sanctions for its violation. The Military Commissions Act not only retrospectively gave immunity to interrogators, but prospectively watered down the War Crimes Act so that inhumane and degrading treatment of detainees is no longer a war crime.

While the CIA claims to have abandoned waterboarding, the administration has refused to say what tactics CIA interrogators are still permitted to use. Its secret prisons, into which suspects are disappeared for incommunicado interrogation, remain open. The administration has never repudiated the practice of rendering suspects to third countries for interrogation by torture, and has never held anyone accountable for that practice. And several still-secret and still-governing Justice Department memoranda from 2005 reportedly authorize the CIA to continue using coercive tactics even after the McCain Amendment was passed. In March 2008, President Bush vetoed a bill that would have required the CIA to limit itself to interrogation techniques approved in the Army Field Manual.

In short, the United States has never taken full responsibility for the crimes its high-level officials committed and authorized. That is unacceptable. In the long run, the best insurance against cruelty and torture becoming US policy again is a formal recognition that what we did after September 11 was wrong—as a normative, moral, and legal matter, not just as a tactical issue. Such an acknowledgment need not take the form of a criminal prosecution; but it must take some official form. We have been willing to admit wrongdoing in the past. In 1988, President Reagan signed the Civil Liberties Act, officially apologizing for the Japanese internment and paying reparations to the internees and their survivors. That legislation, a formal repudiation of our past acts, provides an important cultural bulwark against something similar happening again. There has been nothing of its kind with respect to torture.

We cannot move forward in reforming the law effectively unless we are willing to account for what we did wrong in the past. The next administration or the next Congress should at a minimum appoint an independent, bipartisan, blue-ribbon commission to investigate and assess responsibility for the United States' adoption of coercive interrogation policies. If it is to be effective, it must have subpoena power, sufficient funding, security clearances, access to all the relevant evidence, and, most importantly, a charge to assess responsibility, not just to look forward.^[9] We may know many of the facts already, but absent a reckoning for those responsible for torture and cruel, inhumane, and degrading treatment—our own federal government—the healing cannot begin.

—December 17, 2008

Notes

^[1]Mark Danner, Torture and Truth: America, Abu Ghraib, and the War on Terror (New York Review Books, 2004) ; Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (Doubleday, 2008) ; Ron Suskind, The One-Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11 (Simon and Schuster, 2006).

^[2]Michael Ratner and the Center for Constitutional Rights, The Trial of Donald Rumsfeld ; Jameel Jaffer and Amrit Singh, Administration of Torture ; The Torture Papers: The Road to Abu Ghraib, edited by Karen J. Greenberg and Joshua L. Dratel (Cambridge University Press, 2005).

^[3]Viking, 2005; reviewed in these pages by Brian Urquhart, May 11, 2006.

^[4]For an argument by a seasoned military interrogator that rapport-building is far more effective than torture and cruelty, see Matthew Alexander with John R . Bruning, How to Break a Terrorist: The US Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq (Free Press, 2008). Alexander, a pseudonym, led an interrogation team in Iraq that located Abu Musab al-Zarqawi, the leader of al-Qaeda in Iraq. For a more detached historical account drawing the same conclusion, and finding that there is no evidence that torture "works," see Darius Rejali, Torture and Democracy (Princeton University Press, 2007).

^[5]See "Remarks Prepared for Delivery by Attorney General Michael Mukasey at the 2008 Annual Meeting of the Federalist Society," November 20, 2008, at www.usdoj.gov/ag/speeches/2008/ag-speech-081120.html; Jack Goldsmith, "No New Torture Probes," The Washington Post, November 26, 2008.

^[6]See my review of Goldsmith's book The Terror Presidency: Law and Judgment Inside the Bush Administration in these pages, December 6, 2007.

^[7]I am a member of the Board of the Center for Constitutional Rights, although I did not take part in the efforts to have criminal proceedings initiated against Rumsfeld.

^[8]Mayer, The Dark Side, p. 143.

^[9]The International Center for Transitional Justice, which focuses on the question of how new governments can pursue accountability for the crimes of former regimes—a problem more common in the developing world, but one that the United States itself must now confront—has written a very useful brief on the benefits of such a commission, and on how it should be constituted: Policy Brief: US Inquiry into Human Rights Abuses in the "War on Terror" (November 2008).