A Torture(d) Web
Col. Dan Smith, USA (ret.)
“What we know is only the tip of an iceberg.”
—Prof. Theo van Boven, former UN Special Rapporteur on Torture


HE STATEMENTS IN Army Regulation 190-8 and international law are unambiguous: “The inhumane treatment of enemy prisoners-of-war, civilian internees, [and] retained personnel is prohibited and is not justified by the stress of combat or deep provocation.” The counterclaim is that these rules were crafted in another age, for another reality, for another enemy – that on September 11, 2001, the enemy, and the world, changed forever. The shame of Guantánamo Bay (GTMO), Afghanistan, and Abu Ghraib goes well beyond those who have been or will be criminally charged or otherwise disciplined, and beyond the U.S. armed forces. Shortly after September 11, officials at the very highest levels of the U.S. government – including those entrusted with enforcing the law – actively searched for ways to circumvent customary and codified prohibitions against maltreatment and torture of individuals captured or otherwise detained during armed hostilities. Though the effort had been ongoing for some time, its extent became clear only in June 2004. Attorney General John Ashcroft, appearing before the Senate Judiciary Committee on June 8, flatly refused to provide a copy of two memoranda originated by his department’s Office of Legal Counsel dealing with protections accorded various classes of detainees under the Geneva Conventions (GC) of 1949. Partisan maneuvering in the Senate to obtain or block access to 23 related documents so supercharged the issue that the White House judged the controversy would not abate as long as it continued to withhold documents. News media calculated the White


House alone released a two-inch thick stack of papers, with other documents coming from the Justice Department (DoJ) and the Pentagon. Among the latter was a meticulous Defense Department (DoD) memo parsing the language of the GC, the Convention Against Torture, the Constitution, U.S. Army publications on interrogation techniques, and U.S. law. The memo, prepared by DoD civilians, so dismayed senior uniformed lawyers that, two weeks after the memo was completed, a number of them sought the assistance of the New York branch of the American Bar Association to stop what was manifestly an ill-conceived effort to circumvent the 1949 GC, which had eliminated technicalities in earlier international law that could be used to deny detainees status as “protected persons” as provided for in the 1949 revisions.1

The Legal Evidence
By the time the torrent abated, twelve letters and memoranda plus one report were on the Internet. Six of these originated in DoJ, one was a letter signed by President Bush, and six – including an 85-page report – originated in the Pentagon. There was also a one-page press briefing paper listing allowed interrogation techniques for GTMO detainees. These documents revealed none of the reported ambivalence of the highest ranking military lawyers about the new rules promulgated by the Pentagon pertaining to permitted and prohibited methods of interrogating detainees, whether prisoners of war or members of that new category declared by President Bush – “unlawful combatants.”2
1. Scott Horton, currently chairman of the Committee on International Law of the New York branch of the American Bar Association, confirmed to the author in a September 15, 2004, conversation that he met personally with the Service Judge Advocates General (JAGs) who went to see him in May of 2003. At the time he chaired the Association’s Human Rights Committee. 2. Among the papers released were only three of the 23 requested by Senators, and none dealt with techniques used by the Central Intelligence Agency (CIA), which is conducting its own internal investigation. The documents made public at that time are: - a January 22, 2002, memo from Department of Justice (DoJ) Assistant Attorney General Jay Bybee to White House Counsel Alberto Gonzales and Department of Defense (DoD) General Counsel William Haynes. The memo held that Afghanistan was a “failed state” and that this gave the President grounds to “suspend” U.S. obligations to Afghanistan under international treaties – including the GC; - a February 1, 2002, letter from Attorney General John Ashcroft to President Bush outlining two options justifying the position that the GC did not apply to either Taliban or al-Qaeda fighters in U.S. custody. One option was deemed to offer more conclusive “protection” against interventions by U.S. courts; - a February 7, 2002, DoJ memo (Bybee) to White House Counsel Gonzales stating that the President could issue a “determination” that captured Taliban were not entitled to

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a torture(d) web

Since 1949, the U.S. has fought major wars in Korea, Vietnam, and the Gulf and captured or otherwise interned or detained thousands of individuals. While the chronology of memos and reports presents what was happening, it does not go to the deeper – the moral – question of why. It is as if the effort to subvert the GC and other international prohibitions against torture “started without starting.” Whereas most Americans will evaluate a moral choice in terms of what will produce the greatest good or minimize evil, these memos reveal a conscious effort to dissect or “deconstruct” the meaning of rules designed to ensure respect for fundamental human dignity – with the sole aim of undercutting the legal restraints which safeguard moral conduct in war.1 One well-known example of deconstruction is President Clinton’s
prisoner-of-war status; - a February 7, 2002, memo from the President in which he claims the right to withhold Geneva Convention guarantees from captured Afghan fighters but decides not to apply his decision “at this time”; - a February 26, 2002, DoJ memo (Bybee) to DoD (Haynes) concerning applicability of constitutional protections in a court of law to prisoners’ statements made during interrogation; - an August 1, 2002, DoJ memo (Bybee) to White House Counsel Gonzales advising that interrogation methods employed against al-Qaeda captives would not contravene the Convention against Torture and were not subject to the jurisdiction of the International Criminal Court; - an August 1, 2002, DoJ memo (Bybee) to White House Counsel Gonzales asserting that under certain conditions, torture of suspected terrorists could be “legally defended.” (When these documents were made public on June 22, 2004, the Department of Justice disavowed this memo); - a December 2, 2002, DoD memo (Haynes), approved by Secretary of Defense (SECDEF) Donald Rumsfeld, specifying interrogation methods that could be employed against detainees at Guantánamo Bay; - a January 15, 2003, DoD memo (Rumsfeld) to the Commander, U.S. Southern Command, rescinding the December 2, 2002 memo’s standing approval to employ some interrogation methods at Guantánamo, but permitting special requests to use more coercive techniques for specific prisoners if the request is meticulously justified; - a January 15, 2003, DoD memo (Rumsfeld) to General Counsel Haynes directing him to assemble a working group to review all policies relating to interrogations; - a January 17, 2003, DoD memo (Haynes) to the USAF General Counsel appointing her as chairwoman of the working group requested by Rumsfeld; - an April 4, 2003, DoD report by the working group, including recommendations on what methods to allow; - an April 16, 2003, DoD memo (Rumsfeld) to Commander, U.S. Southern Command reaffirming interrogation methods approved for routine use at Guantánamo and methods whose use required his specific assent; - an undated one-page list of interrogation techniques approved and employed at Guantánamo provided to media on June 22, 2004. All of these documents can be accessed online at http://www.washingtonpost.com/wpdyn/articles/A62516–2004Jun22.html. 1. In oversimplified terms, “deconstruction” is the process of textual analysis to uncover all possible meanings by re-arranging relationships (e.g., relative importance) among

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