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legalProceedings (41)
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Mohammed Saad Iqbal Madni (5)
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Mahmud Sardar Issa (3)
Khalifa Abdi (3)
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Saddam Salah al-Rawi (8)
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Mohamed al-Khatani (4)
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Salim Ahmed Hamdan (6)
Ali Hamza Ahmad Sulayman al-Bahlul (2)
Ibrahim Ahmed Mahmoud al-Qosi (2)
Adullah Almalk (1)
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Assad (3)
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Brahim Yadel (1)
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A.Z. (1)
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Sherbat Naim (1)
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Amadullah (0)
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Wesam Abdulrahman Ahmed Al Deemawi (1)
Hussein Abdelkadr Youssouf Mustafa (3)
Shafiq Rasul (20)
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Sahim Alwan (3)
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Faysal Galab (3)
Yahya Goba (3)
Yaseinn Taher (3)
Abdul Jabar (1)
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Mohammed Ahmed al-Kandari (1)
Thamir Issawi (0)
Haydar Sabbar Abed (1)
Abd al-Rahim al Nashiri (1)
Jan Baz Khan (1)
Unnamed prisoners (42)
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Torture, rendition, and other abuses against captives in Iraq, Afghanistan, and elsewhere

 
  

Project: Prisoner abuse in Iraq, Afghanistan and elsewhere

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September 21, 2001

       In a memo, responding to a request from Deputy White House Counsel Timothy E. Flanigan, John C. Yoo provides legal advice on “the legality of the use of military force to prevent or deter terrorist activity inside the United States.” He addresses the question of how the Fourth Amendment to the American Constitution applies to the use of “deadly force” by the military “in a manner that endangered the lives of United States citizens.” The Fourth Amendment requires the government to have some objective suspicion of criminal activity before it can infringe on an individual's liberties, such as the right to privacy or the freedom of movement. Yoo writes that in light of highly destructive terrorist attacks, “the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.” If the president determines the threat of terrorism high enough to deploy the military inside US territory, then, Yoo writes, “we think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection.” [New York Times, 10/24/2004]
People and organizations involved: John C. Yoo, Timothy E. Flanigan
          

September 25, 2001

       In a secret 15-page memo to Deputy White House Counsel Timothy Flanigan, Justice Department lawyer John Yoo reasons that it is “beyond question that the president has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks” of 9/11. Those actions can be extensive. “Force can be used,” Yoo writes, “both to retaliate for those attacks, and to prevent and deter future assaults on the nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon.” This power of the president, Yoo states, rests both on the US Congress' Joint Resolution of September 14 and on the War Powers Resolution of 1973. “Neither statute, however, can place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the president alone to make.” He argues further that the September 14 resolution does not represent the limits to the president's authority. “It should be noted here that the Joint Resolution is somewhat narrower than the president's constitutional authority,” as it “does not reach other terrorist individuals, groups or states which cannot be determined to have links to the September 11 attacks.” the president's broad power can be used against selected individuals suspected of posing a danger to the US, even though it may be “difficult to establish, by the standards of criminal law or even lower legal standards, that particular individuals or groups have been or may be implicated in attacks on the United States.” Yoo concludes: “[W]e do not think that the difficulty or impossibility of establishing proof to a criminal law standard (or of making evidence public) bars the president from taking such military measures as, in his best judgment, he thinks necessary or appropriate to defend the United States from terrorist attacks. In the exercise of his plenary power to use military force, the president's decisions are for him alone and are unreviewable.” [Sources: Memo: The President's Constitutional Authority To Conduct Military Operations Against Terrorists And Nations Supporting Them] The contents of this memo are not disclosed until mid-December 2004. [Newsweek, 12/27/2004; Newsweek, 12/18/2004]
People and organizations involved: John C. Yoo, Timothy E. Flanigan
          

November 6, 2001

       The Geneva Conventions are mentioned in a memo issued the day after the publication of the Heritage Foundation paper (see November 5, 2001), but only to suggest that suspected terrorists should not be entitled to the rights enclosed in them. Patrick F. Philbin, a deputy in the OLC, sends a confidential 35-page memo to the White House legal counsel Gonzales, arguing that the president, as Commander-in-Chief, has “inherent authority” to establish military commissions without authorization from the US Congress. The 9/11 attacks are themselves “plainly sufficient” to justify the application of the laws of war. Furthermore, putting terrorists on trial under the laws of war, “does not mean,” according to Philbin, “that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants.” The Philbin memo will serve as a basis for a Presidential order (see November 13, 2001) establishing the option of military commissions, which will be drafted by Deputy White House Counsel Timothy E. Flanigan and David S. Addington, the legal counsel to Vice President Cheney. [New York Times, 10/24/2004]
People and organizations involved: Alberto R. Gonzales, Patrick F. Philbin
          

December 28, 2001

       Deputy Assistant Attorney Generals Patrick Philbin and John Yoo send a memorandum to Pentagon General Counsel William Haynes offering the legal opinion that US courts do not have jurisdiction to review the detention of foreign prisoners at Guantanamo Bay. Therefore detentions of persons there cannot be challenged in a US court of law. The memo is endorsed by the Department of Defense and White House legal counsel Alberto Gonzales. [Newsweek, 5/24/2004] The memo addresses “the question whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the US naval base at Guantanamo Bay, Cuba.” The conclusion of Philbin and Yoo is that it cannot, based primarily on their interpretation of a decision by the US Supreme Court in the 1950 Eisentrager case, in which the Supreme Court determined that no habeas petition should be honored if the prisoners concerned are seized, tried, and held in territory that is outside of the sovereignty of the US and outside the territorial jurisdiction of any court of the US. Both conditions apply to Guantanamo according to Philbin and Yoo. Approvingly, they quote the US Attorney General in 1929, who stated that Guantanamo is “a mere governmental outpost beyond our borders.” A number of cases, quoted by the authors, “demonstrate that the United States has consistently taken the position that [Guantanamo Bay] remains foreign territory, not subject to US sovereignty.” Guantanamo is indeed land leased from the state of Cuba, and therefore in terms of legal possession and formal sovereignty still part of Cuba. But Philbin and Yoo acknowledge a problem with the other condition: namely that the territory is outside the US's jurisdiction. They claim with certainty that Guantanamo “is also outside the ‘territorial jurisdiction of any court of the United States.’ ” However, the Supreme Court should not have made a distinction between jurisdiction and sovereignty here; the wording of the decision is really, Philbin and Yoo believe, an inaccurate reflection of its intent: “an arguable imprecision in the Supreme Court's language.” For that reason, they call for caution. “A non-frivolous argument might be constructed, however, that [Guantanamo Bay], while not be part of sovereign territory of the United States, is within the territorial jurisdiction of a federal court.” [Sources: Memo to Michael Haynes, Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba, 12/28/2001]
People and organizations involved: William J. Haynes, Patrick F. Philbin, John C. Yoo, Alberto R. Gonzales
          

Late 2001

       The Department of Justice sends a memo to the CIA approving inter alia the agency's application of sleep deprivation, the use of phobias, and the deployment of “stress factors” in interrogating terrorist suspects. The only clear prohibition is “causing severe physical or mental pain.” [Newsweek International, 5/24/2004] The CIA had requested legal guidance from the Justice Department on how to make interrogations more effective. The need to improve its methods was becoming pressing as the US was getting its hands on increasing numbers of people from the Afghan theatre of operations. [Washington Post, 6/9/2004]
          

(2002-March 2003)

       Neoconservatives in Washington discuss in their internal memos how Arabs are particularly vulnerable to sexual humiliation. They often cite a book by anthropologist Raphael Patai, titled, The Arab Mind, which took note of Arab culture's conservative views about sex. In one section of the book, Patai wrote, “The segregation of the sexes, the veiling of the women, ... and all the other minute rules that govern and restrict contact between men and women, have the effect of making sex a prime mental preoccupation in the Arab world.” [The New Yorker, 5/24/2004 Sources: Unnamed US government consultant] According to one academic source interviewed by Seymour Hersh, the book is “the bible of the neocons on Arab behavior.” Neoconservatives are convinced that “one, ... Arabs only understand force and, two, that the biggest weakness of Arabs is shame and humiliation.” [The New Yorker, 5/24/2004 Sources: Unnamed academic]
          

January 9, 2002

       John Yoo of the Department of Justice's Office of Legal Counsel and Justice Department special counsel Robert J. Delahunty prepare a 42-page draft memo addressed to Pentagon legal counsel William Haynes, titled “Application of Treaties and Law to al-Qaeda and Taliban Detainees.” It declares that the laws of war, including the Geneva Conventions, do not apply to the conflict in Afghanistan, as Yoo's colleague Philbin already suggested in his memo of November 6, 2001 (see November 6, 2001). Furthermore, according to the memo, the president has seemingly unrestricted powers with regard to military operations. “Restricting the president's plenary power over military operations (including the treatment of prisoners),” the memo says, would be “constitutionally dubious.” Lawyers from the Army Judge Advocate General's office and the State Department are not consulted. When the State Department's lawyers read the memo, they are “horrified” (see January 11, 2002). [Newsweek, 5/24/2004; New York Times, 5/21/2004 Sources: DOJ Memo, Application of Treaties and Laws to al Qaeda and Taliban Detainees, June 9, 2002]
People and organizations involved: William J. Haynes, Robert J. Delahunty, John C. Yoo
          

January 11, 2002

       William Howard Taft IV, the State Department's chief legal adviser, responds to John Yoo's January 9 memo (see January 9, 2002) saying that Yoo's analysis is “seriously flawed.” Taft writes: “In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the [Geneva] Conventions. I have no doubt we can do so here, where a relative handful of persons is involved.” [Newsweek, 5/24/2004] Applying the Geneva Conventions, according to Taft, would demonstrate that the United States “bases its conduct on its international legal obligations and the rule of law, not just on its policy preferences.” Taft ends with a scorching criticism. “Your position is, at this point, erroneous in its substance and untenable in practice. Your conclusions are as wrong as they are incomplete. Let's talk.” [Le Monde, 10/25/2004]
People and organizations involved: John C. Yoo, William Howard Taft IV
          

January 19, 2002

       Rumsfeld sends a memo to General Richard Myers informing him that Bush has declared the Geneva Conventions invalid with regard to conflicts with al-Qaeda and the Taliban (see January 18, 2002). In this “Memorandum for Chairman of the Joint Chiefs of Staff,” Rumsfeld states: “The United States has determined that al-Qaeda and Taliban individuals under the control of the Department of Defense are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.” Nevertheless, “[t]he Combatant Commanders shall, in detaining al-Qaeda and Taliban individuals under the control of the Department of Defense, treat them humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949.” [Sources: Memo from Donald Rumsfeld to the Chairman of the Joint Chiefs of Staff, 1/19/2002] The same day, the memorandum is disseminated as an order by the Joint Chiefs of Staff. [Sources: Order from Joint Chiefs of Staff, 1/19/2002]
People and organizations involved: Donald Rumsfeld, Richard B. Myers
          

January 22, 2002

       The Department of Justice issues a memo titled “Application of Treaties to al-Qaeda and Taliban detainees,” signed by Jay Bybee, which argues for extremely limited rights under international law for prisoners from the Afghan battlefield. [Sources: Department of Justice Memorandum, 1/22/2002]
People and organizations involved: Jay S. Bybee
          

January 25, 2002

       White House lawyer Alberto Gonzales completes a draft memorandum to the president advising George Bush not to reconsider his decision (see January 18, 2002) declaring Taliban and al-Qaeda fighters ineligible for prisoner of war status as Colin Powell has apparently recommended. [Newsweek, 5/24/2004 Sources: Draft memo to the President from Alberto Gonzales, January 25, 2004] Gonzales writes to Bush that Powell “has asked that you conclude that GPW [Third Geneva Convention] does apply to both al-Qaeda and the Taliban. I understand, however, that he would agree that al-Qaeda and the Taliban fighters could be determined not to be prisoners of war (POWs) but only on a case-by-case basis following individual hearings before a military board.” Powell believes that US troops will be put at risk if the US renounces the Geneva Conventions in relation to the Taliban. Rumsfeld and his chairman of the Joint Chiefs of Staff, Gen. Richard B. Meyers allegedly agree with Powell's argument. [New York Times, 10/24/2004] But Gonzales says that he agrees with the Justice Department's Office of Legal Counsel, which has determined that the president had the authority to make this declaration on the premise that “the war against terrorism is a new kind of war” and “not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW [Geneva Convention on the treatment of prisoners of war].” Gonzales thus states, “In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” [Newsweek, 5/24/2004] Gonzales also says that by declaring the war in Afghanistan exempt from the Geneva Conventions, the president would “[s]ubstantially [reduce] the threat of domestic criminal prosecution under the War Crimes Act [of 1996] (see August 21, 1996).” The president and other officials in the administration would then be protected from any future “prosecutors and independent counsels who may in the future decide to pursue unwarranted charges....” [New York Times, 5/21/2004; Newsweek, 5/24/2004] When Powell reads the memo (see January 26, 2002), he reportedly “hit[s] the roof” and immediately arranges for a meeting with the president. [Newsweek, 5/24/2004]
People and organizations involved: Alberto R. Gonzales, Colin Powell, George W. Bush
          

February 1, 2002

       In a letter to Bush, Ashcroft argues that the Third Geneva Convention should not be applicable to the Taliban, based on two grounds. First, Afghanistan is a failed state and cannot therefore be considered a party to the treaty. Second, Taliban fighters acted as unlawful combatants. Explaining the advantages of this proposal, Ashcroft notes, “[A] Presidential determination against treaty applicability would provide the highest assurance that no court would subsequently entertain charges that American military officers, intelligence officials and law enforcement officials violated Geneva Convention rules relating to field conduct, detention conduct or interrogation of detainees.” [Sources: Letter from US Attorney General John Ashcroft to George Bush, 2/1/2002] As Judge Evan J. Wallach will later observe, “Attorney General Ashcroft's letter seems to make it clear that by the end of January, at least, consideration was being given to conduct which might violate [the Third Geneva Convention's] strictures regarding the detention and interrogation of prisoners of war.” [International Law Of War Association, 9/29/2004]
People and organizations involved: George W. Bush, John Ashcroft
          

February 2, 2002

       In a reply to Alberto Gonzales (see January 25, 2002), the State Department's Legal Director, William Howard Taft IV, tries again (see January 11, 2002) to put his view forward. He writes: “The president should know that a decision that the Conventions do apply is consistent with the plain language of the Conventions and the unvaried practice of the United States in introducing its forces into conflict over fifty years.” [Sources: Letter from US Attorney General John Ashcroft to George Bush, 2/1/2002]
People and organizations involved: Alberto R. Gonzales, William Howard Taft IV
          

February 7, 2002

       The White House declares that the United States will apply the Geneva Conventions to the conflict in Afghanistan, but will not grant prisoner-of-war status to captured Taliban and al-Qaeda fighters. Though Afghanistan was party to the 1949 treaty, Taliban fighters are not protected by the Conventions, the directive says, because the Taliban is not recognized by the US as Afghanistan's legitimate government. Likewise, al-Qaeda fighters are not eligible to be protected under the treaty's provisions because they do not represent a state that is party to the Conventions either. The presidential directive is apparently based on Alberto Gonzales' January 25 memo (see January 25, 2002). The directive also concludes that President Bush, as commander-in-chief of the United States, has the authority to suspend the Geneva Conventions regarding the conflict in Afghanistan, should he feel necessary. Though not scheduled for declassification until 2012, the directive will be released by the White House in June 2004 to demonstrate that the president never authorized torture against detainees from the wars in Afghanistan and Iraq. [Newsweek International, 5/24/2004; CNN, 2/7/2002; Truthout, 1/19/2005]
People and organizations involved: George W. Bush
          

February 26, 2002

       A memorandum sent by the Justice Department to Department of Defense General Counsel William J. Haynes states that the military commissions intended to try enemy combatants are “entirely creatures of the president's authority as commander in chief ... and are part and parcel of the conduct of a military campaign.” [Sources: Memorandum for William J. Haynes, II, General Counsel, Department of Defense, 2/26/02] This raises questions regarding the independence of the commissions. The US government will try the detainees itself, which is why Human Rights Watch later concludes, “Under the rules, the president, through his designees, serves as prosecutor, judge, jury, and, potentially, executioner.” [Human Rights Watch, 1/9/2004] Amnesty International will similarly criticize the fact that “the commissions will lack independence.” [Amnesty International, 10/27/2004] Trial by a court that is not in complete independence from a government acting as a prosecutor is a violation of the defendants' human rights. Article 14(1) ICCPR [International Covenant on Civil and Political Rights] states: “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law.” Article 14(5) ICCPR furthermore grants “[e]verybody convicted of a crime ... the right to his conviction and sentence being reviewed by a higher tribunal according to law.” But in the plans of the US government such a right is not foreseen. According to Human Rights Watch, “There is no appeal to an independent civilian court, violating a fundamental precept of international law as well as settled practice in the US military justice system.” [Human Rights Watch, 1/9/2004] The Justice Department memorandum advises that “incriminating statements may be admitted in proceedings before military commissions even if the interrogating officers do not abide by the requirements of Miranda.” The “Miranda warnings” are normally a prerequisite for allowing incriminating declarations by a defendant to the proceedings of a criminal trial.
People and organizations involved: William J. Haynes
          

March 13, 2002

       A memo titled “The President's Power as Commander in Chief to Transfer Captive Terrorists to the Control and Custody of Foreign Nations” summarizes the legal authority under which renditions and other forcible transfers may be conducted. Officials interviewed by the Washington Post say Gonzales was instrumental in the drafting of this memo. [Washington Post, 1/6/2005]
People and organizations involved: Alberto R. Gonzales, Michael Scheuer
          

April 28-29, 2002

       In Guantanamo, the 300 detainees (see April 28, 2002) being held in at Camp X-Ray are transferred to Camp Delta. Although cells at Camp Delta are even smaller than at Camp X-Ray (8 ft x 6 ft, 8 inches compared to 8 ft x 8 ft), [American Forces Press Service, 1/14/2003] the cells are now equipped with a flush toilet, a sink with running water and a metal bed frame. “There is indoor plumbing, exercise areas are better controlled, and detainees are out of the sun more,” Brig. Gen. Rick Baccus, the commander of Military Police at Guantanamo says. [American Forces Press Service, 1/14/2003] The new facility also has the advantage of being more secure. “We've a much more secure facility to house them in Camp Delta. For instance, the guards don't have to escort them to the bathroom all the time and those types of things. That's a great improvement in terms of how the guards have to deal with them on a daily basis.” [American Forces Press Service, 1/14/2003] Recreation time goes up from 5 minutes a day at Camp X-Ray to 15 minutes at Camp Delta. [The Mirror, 3/12/2004] Use of Camp X-ray does not end. An undated Pentagon memo shows the camp is still used for isolation purposes between December 2002 and January 15, 2003. [Sources: GTMO Interrogation techniques, n.d.] Still, according to a Pentagon adviser, around the middle of 2002, some high-security prisoners will enjoy their recreation time strapped into heavy, straitjacket-like clothing, with their arms tied behind them, goggles over their eyes and their heads hooded. Describing what he was told by a Pentagon official, investigative reporter Seymour Hersh writes in the Guardian of London: “The restraints forced [these prisoners] to move, if he chose to move, on his knees, bent over at a 45-degree angle. Most prisoners just sat and suffered in the heat.” [The Guardian, 9/13/2004]
People and organizations involved: Rick Baccus
          

August 1, 2002

       The Justice Department's Office of Legal Counsel (OLC) sends a non-classified memo to White House Counsel Alberto Gonzales, offering the opinion that a policy allowing suspected al-Qaeda members to be tortured abroad “may be justified.” [Sources: Memorandum for Alberto R. Gonzales, Counsel to the President, 8/1/2002] The 50-page memo is signed and authored by Jay S. Bybee, head of OLC, and co-authored by John Yoo, a deputy assistant attorney general. Gonzales had formally asked for the OLC's legal opinion in response to a request by the CIA for legal guidance. A former administration official, quoted by the Washington Post, says the CIA “was prepared to get more aggressive and re-learn old skills, but only with explicit assurances from the top that they were doing so with the full legal authority the president could confer on them.” [Washington Post, 6/9/2004] “We conclude that the statute, taken as a whole,” Bybee and Yoo write, “makes plain that it prohibits only extreme acts.” Addressing the question of what exactly constitute such acts of an extreme nature, the authors proceed to define torture as the infliction of “physical pain” that is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Purely mental pain or suffering can also amount to “torture under Section 2340,” but only if it results “in significant psychological harm of significant duration, e.g. lasting for months or even years.” [Washington Post, 6/9/2004] Bybee and Yoo appear to conclude that any act short of torture, even though it may be cruel, inhuman or degrading, would be permissible. They examine, for example, “international decisions regarding the use of sensory deprivation techniques.” These cases, they notice, “make clear that while many of these techniques may amount to cruel, inhuman or degrading treatment, they do not produce pain or suffering of the necessary intensity to meet the definition of torture. From these decisions, we conclude that there is a wide range of such techniques that will not rise to the level of torture.” More astounding is Bybee and Yoo's view that even torture can be defensible. “We conclude,” they write, “that, under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A.” Inflicting physical or mental pain might be justified, Bybee and Yoo argue, “in order to prevent further attacks on the United States by the al-Qaeda terrorist network.” In other words, necessity or self-defense may justify torture. Moreover, “necessity and self-defense could provide justifications that would eliminate any criminal liability.” [Washington Post, 6/8/2004] International anti-torture rules, furthermore, “may be unconstitutional if applied to interrogations” of suspected terrorists. [US News and World Report, 6/21/2004] Laws prohibiting torture would “not apply to the president's detention and interrogation of enemy combatants” in the “war on terror,” because the president has constitutional authority to conduct a military campaign. [Washington Post, 6/27/2004] “As commander in chief,” the memo argues, “the president has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy.” [Washington Post, 6/9/2004] According to some critics, this judgment—which will be echoed in a March 2003 draft Pentagon report (see March 6, 2003) —ignores important past rulings such as the 1952 Supreme Court decision in Youngstown Steel and Tube Co v. Sawyer, which determined that the president, even in wartime, is subject to US laws. [Washington Post, 6/9/2004] The memo also says that US Congress “may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” [Washington Post, 6/27/2004] After the memo's existence is revealed, Attorney General John D. Ashcroft denies senators' requests to release it and refuses to say if or how the president was involved in the discussion. “The president has a right to hear advice from his attorney general, in confidence,” he says. [The Washington Post, 6/9/2004; Bloomberg, 6/8/2004; New York Times, 6/8/2004] Responding to questions about the memo, White House press secretary Scott McClellan will reason that the memo “was not prepared to provide advice on specific methods or techniques,” but was “analytical.” But the 50-page memo seems to have been considered immensely important, given its length and the fact that it was signed by Jay S. Bybee, head of the Office Legal Counsel. “Given the topic and length of opinion, it had to get pretty high-level attention,” Beth Nolan, a former White House Counsel (1999-2001), will tell The Washington Post. This view is confirmed by another former Office of Legal Counsel lawyer who tells the newspaper that unlike documents signed by deputies in the Office of Legal Counsel, memorandums signed by the Office's head are considered legally binding. [The Washington Post, 6/9/2004]
People and organizations involved: John Ashcroft, Scott McClellan, Beth Nolan, Jay S. Bybee, Alberto R. Gonzales
          

October 11, 2002

       Two days after Gen. Rick Baccus has been relieved from duty as the guard commander at Guantanamo (see October 9, 2002), and almost one and a half months since the writing of the Office of Legal Counsel's (OLC) August memo on torture (see August 1, 2002), military intelligence at Guantanamo begin suggesting new rules of interrogation. Lt. Col. Jerald Phifer, Director J2, sends a memo, to Maj. Gen. Michael E. Dunlavey, Commander of Joint Task Force (JTF) 170, requesting approval for more severe interrogation techniques. The memo states: “The current guidelines for interrogation procedures at GTMO [Guantanamo] limit the ability of interrogators to counter advanced resistance.” Phifer proposes three categories of techniques. The mildest, which includes yelling and weak forms of deception, are included in category one. Category two techniques are more severe and require approval by an “interrogator group director.” They include the use of stress positions for up to four hours; use of falsified documents; isolation for up to thirty days; sensory deprivation and hooding; twenty-hour interrogations; removal of comfort and religious items; replacing hot food with cold military rations; removal of clothing; forced grooming, including the shaving of beards; and playing on detainees' phobias to induce stress, such as a fear of dogs. The harshest techniques, listed in category three, are to be reserved for a “very small percentage of the most uncooperative detainees” and only used with permission from the commander of the prison. These methods include using non-injurious physical contact like poking or grabbing; threatening a detainee with death or severe pain or threatening that a family member would be subjected to such harm; exposing him to cold weather or water; using a wet towel to “induce the misperception of suffocation.” [Sources: DoD JTF-170 Memo from Lt. Col. Jerald Phifer to Maj. Gen. Michael E. Dunlavey, 10/11/2002] The request is prompted in part by military intelligence's belief that Guantanamo detainee Mohamed al-Khatani has more information than the FBI has managed to extract from him. “Al Khatani is a person in ... whom we have considerable interest,” Dell'Orto will explain during a 2004 press briefing at the White House. “He has resisted our techniques. And so it is concluded at Guantanamo that it may be time to inquire as to whether there may be more flexibility in the type of techniques we use on him. ” [6/22/2004] The same day, a staff judge advocate, Lt. Col. Diane E. Beaver, reviews Phifer's proposed techniques for legality and, while making qualifications and recommending further review, concludes in a memo to Dunlavey that they are legal. Also the same day, Dunlavey sends the list of techniques to his superior, Gen. James T. Hill, commander of the Southern Command, requesting approval for their use. Dunlavey writes: “Although [the techniques currently employed] have resulted in significant exploitable intelligence the same methods have become less effective over time. I believe the methods and techniques delineated in the accompanying J-2 memorandum will enhance our efforts to extract additional information.” [Sources: DoD JTF-170 Memo from Lt. Col. Jerald Phifer to Maj. Gen. Michael E. Dunlavey, 10/11/2002]
People and organizations involved: Michael E. Dunlavey, Diane E. Beaver, Daniel J. Dell'Orto, James T. Hill, Rick Baccus, Mohamed al-Khatani
          

October 25, 2002

       Gen. James T. Hill, commander of the Southern Command, sends a memo to Chairman of the Joint Chiefs of Staff Gen. Richard B. Myers providing him information on the new interrogation techniques that have been requested for use at Guantanamo (see October 11, 2002). He says that new methods are needed because, “despite our best efforts, some detainees have tenaciously resisted our current interrogation methods.” He says he thinks Categories I and II techniques are “legal and humane.” He only questions the legality of category three techniques, recommending additional legal advice from lawyers at the Pentagon and the Justice Department. Hill writes: “I am particularly troubled by the use of implied or expressed threats of death of the detainee or his family. However, I desire to have as many options as possible at my disposal ....” [Sources: DoD memo from Gen. James T. Hill to Gen. Myers, 10/25/2002] Gen. Hill later says, “We weren't sure in the beginning what we had; we're not sure today what we have. There are still people who do not talk to us. We could have the keys to the kingdom and not know it.” [New York Times, 6/21/2004]
People and organizations involved: James T. Hill, Richard B. Myers
          

November 27, 2002

       Department of Defense General Counsel William Haynes sends Donald Rumsfeld an action memo to approve for use, at General James T. Hill's discretion, all techniques from Categories I and II, and the “mild, non-injurious contact” from category three that were suggested by the Guantanamo legal staff (see October 25, 2002). With regard to the remaining harsh techniques in category three, the death threats, and use of wet towels, Haynes writes that they “may be legally available [but] as a matter of policy, a blanket approval ... is not warranted at this time.” Haynes mentions having discussed the matter with “the deputy, Doug Feith and General Myers,” who, he believes, join him in the recommendation. He adds, “Our Armed Forces are trained to a standard of interrogation that reflects a tradition of restraint.” [Sources: DoD action memo from General Counsel Haynes to Donald Rumsfeld, 11/27/2002]
People and organizations involved: William J. Haynes, Douglas Feith, James T. Hill, Donald Rumsfeld, Richard B. Myers
          

March 6, 2003

       A working group appointed by the Defense Department's general counsel, William J. Haynes II, completes a 100-page-plus classified report justifying the use of torture on national security grounds. The group—headed by Air Force General Counsel Mary Walker and including top civilian and uniformed lawyers from each military branch—consulted representatives of the Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency, and other intelligence agencies in drafting the report. It was prepared for Secretary of Defense Donald Rumsfeld and was meant to respond to complaints from commanders working at the Guantanamo Bay base in Cuba who claimed that conventional interrogation tactics were inadequate. The conclusions in the report are similar to those of an August 1, 2003 memo (see August 1, 2002) drafted by the Justice Department's Office of Legal Counsel (OFC). The OFC is said to have also contributed to this report. [Los Angeles Times, 6/10/2004; Wall Street Journal, 6/7/2004 Sources: March 16 draft Working Group Report on Detainee Intertogations in the Global War on Terorrism]
Conclusions of the report -

One of the main conclusions of the report is that the president's authority as commander-in-chief permits him during times of war to approve almost any physical or psychological interrogation method—including torture—irrespective of any domestic or international law. The draft report clearly states that neither Congress, the courts, nor international law has jurisdiction over the president's actions when the country is waging war. The report asserts that “without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority” to wage war. Furthermore, “any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the commander-in-chief authority in the president.” According to the document, the federal Torture Statute simply does not apply. “In order to respect the president's inherent constitutional authority to manage a military campaign ... (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority,” the report states (The parenthetical comment is in the original document). A career military lawyer will later tell the Wall Street Journal that many lawyers disagreed with these conclusions, but that their concerns were overridden by the political appointees heading the drafting of the report. The lawyer explains that instead, military lawyers focused their efforts on limiting the report's list of acceptable interrogation methods. [Wall Street Journal, 6/7/2004]

The draft report lists several possible arguments that US civilian or military personnel might use to defend themselves against charges of torture or other war crimes. According to the administration's lawyers, one argument would be that such actions were “necessary” in order to prevent an attack. This rational however seems to ignore very clear statements in the Convention Against Torture—ratified by the US in 1994—which states 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.” Another line of defense, the report says, would be to claim that the accused had been acting under “superior orders” and that therefore no “moral choice was in fact possible.” Likewise, the report cites a Justice Department opinion, which the draft report says “concluded that it could not bring a criminal prosecution against a defendant who had acted pursuant to an exercise of the president's constitutional power.” However, as the Wall Street Journal notes, this contradicts the Convention against Torture which states that orders from superiors “may not be invoked as a justification of torture.” The authors of the report also suggest in the draft report that accused officials could argue that they had “mistakenly relied in good faith on the advice of lawyers or experts,” adding, “Good faith may be a complete defense.” The memo also argues that the International Covenant on Political and Civil Rights (ICCPR), to which the US is a party, “does not apply outside the United States or its special maritime and territorial jurisdiction (SMTJ), and that it does not apply to operations of the military during an international armed conflict,” as the US “has maintained consistently.” Since the “Guantanamo Bay Naval Station (GTMO) is included within the definition of the special maritime and territorial jurisdiction of the United States,” the ICCPR does not apply to Guantanamo Bay. The authors are also convinced that officials would not be prosecutable under US law, concluding that “constitutional principles” precluded the possibility that officials could be punished “for aiding the president in exercising his exclusive constitutional authorities” and neither Congress nor the courts had the authority to “require or implement the prosecution of such an individual.” [Wall Street Journal, 6/7/2004]

The document attempts to define the parameters of lawful interrogation methods in terms of the degree of pain or psychological manipulation they cause. The report states that the infliction of physical or mental suffering does not constitute torture. To violate Section 2340 A of the US Code, prohibiting physical torture, suffering must be “severe,” the lawyers advise, noting that according to a dictionary definition, this would mean that the pain “must be of such a high level of intensity that ... [it] is difficult for the subject to endure.” It must also be “inflicted with specific intent,” they say, meaning that the perpetrator expressly intends to cause severe pain and suffering. But if the defendant simply used pain and suffering as a means to an end, such specific intent would not exist. Under certain circumstances, the lawyers explain, the US would be justified in resorting to illegal measures like torture or homicide. They argue that such measures should be considered “self-defense” in cases where officials “honestly believe” that such actions would prevent an imminent attack against the US. “Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law,” the draft document asserts. “In sum,” the panel determines, “the defense of superior orders will generally be available for US Armed Forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.” Civil law suits, the panel notes, by a foreign victim of torture will not apply to the US government. [Wall Street Journal, 6/7/2004 Sources: March 16 draft Working Group Report on Detainee Intertogations in the Global War on Terorrism]

People and organizations involved: Mary Walker, William J. Haynes, Donald Rumsfeld  Additional Info 
          

(April 2003)

       The Justice Department advises in a set of legal memorandums that if “government officials ... are contemplating procedures that may put them in violation of American statutes that prohibit torture, degrading treatment or the Geneva Conventions, they will not be responsible if it can be argued that the detainees are formally in the custody of another country.” That is because, according to one official, “It would be the responsibility of the other country.” The memos seem to suggest that top government officials may be concerned that they are in violation of international laws. One administration figure involved in discussions about the memos tells the New York Times in May 2004: “The criminal statutes only apply to American officials. The question is how involved are the American officials.” [New York Times, 5/13/2004]
          

April-June 2003

       At an Iraqi police station in Samarra, a town north of Baghdad, Sgt. Greg Ford witnesses soldiers repeatedly abuse detainees during interrogations. Ford, a soldier from the California National Guard, is part of a four-member team of the 223rd Military Intelligence Battalion. He sees his three fellow team members threaten prisoners with guns, stick lit cigarettes in their ears, and strangle them until they collapse. At one point he witnesses his team leader point a pistol at a detainee's head. On another occasion, he sees one of the soldiers stand on the back of the neck of a handcuffed detainee and pull his arms until they pop out of their sockets. Sgt. Ford later recalls trying to prevent the abuse. “I had to intervene because they couldn't keep their hands off of them. You weren't supposed to stand on their neck or put lit cigarettes in their ears. Twice I had to pull burning cigarettes out of detainees' ears.” In June, according to Ford, he reports the incidents to his commanding officers, but they dismiss his complaints. “Immediately, within the same conversation, the command said, ‘Nope, you're delusional, you're crazy, it never happened.’ They gave me 30 seconds to withdraw my request for an investigation.” But, he adds, “I stood my ground.” He is then ordered to see combat stress counselors, who send him out of Iraq. The Commander of the 223rd Military Intelligence Battalion, Lt. Col. Drew Ryan, later says, “All the allegations were found to be untrue, totally unfounded and in a number of cases completely fabricated.” [Associated Press, 6/9/2004] However, a report obtained by the New York Times details allegations of prisoner abuse in Samarra in the spring of 2003 that resemble the account by Sgt. Ford. The report says military personnel “forced into asphyxiations numerous detainees in an attempt to obtain information” over a period of 10 weeks. It concerned an official US army overview of the deaths and alleged abuse of prisoners in Iraq and Afghanistan. [The Guardian, 5/26/2004]
People and organizations involved: Drew Ryan, Greg Ford
          

July 15, 2003

       The 519th Military Intelligence Battalion produces a memo laying down new “Interrogation Rules of Engagement” (IROE), for use in its new mission in Iraq. [Sources: AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade, 8/23/2004] The person apparently mostly responsible for writing the memo is Cpt. Carolyn A. Wood, formerly in charge of military intelligence interrogators at Bagram, which serves as the main screening area in Afghanistan. [The Guardian, 6/23/2004] Col. Billy Buckner, the chief public affairs officer at Fort Bragg, home to the 519th Military Intelligence Battalion, later says that Wood brought the interrogations rules used at Bagram with her to Iraq. [Associated Press, 5/24/2004] But the rules are also adapted and made somewhat less aggressive. “Those rules were modified,” according to Buckner, “to make sure the right restraints were in place.” [The Guardian, 6/23/2004] The modifications nevertheless fall outside normal military doctrine. According to a classified portion of the later Fay report (see August 25, 2004), the memo allows the “use of stress positions during fear-up harsh interrogation approaches, as well as presence of military working dogs, yelling, loud music, ... light control,” sleep management, and isolation. [New York Review of Books, 10/7/2004] The memo is adopted from interrogation procedures known as “Battlefield Interrogation Team and Facility Policy,” in use by a secretive unit called Joint Task Force (JTF) 121 , that is active in both Iraq and Afghanistan. The 519th Military Intelligence Battalion worked in close cooperation with Special Operations Forces like JTF-121 during its tour in Afghanistan, and “at some point,” according to the Fay report, it “came to possess the JTF-121 interrogation policy.” [New York Times, 8/27/2004] Cpt. Wood adopts the JTF-121 policy “almost verbatim.” [New York Times, 8/27/2004] Like the highest US command in Iraq, the 519th Military Intelligence Battalion apparently believes the standard Army Field Manual is an insufficient guideline for interrogations. Interrogation techniques falling outside the scope of standard military doctrine have already been devised at the Pentagon, but only for use in Afghanistan and Guantanamo Bay. These “non-doctrinal approaches, techniques, and practices,” according to Gen. George R. Fay, nevertheless, become “confused at Abu Ghraib.” [Sources: AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade, 8/23/2004] JTF-121 consists of CIA officials and Special Operations troops, including soldiers from the Army's Delta Force and Navy Seals. The unit is later alleged to have been instrumental in the capture of Saddam Hussein. [New York Times, 5/17/2004]
People and organizations involved: Saddam Hussein, George R. Fay, Troy Armstrong, Carolyn A. Wood
          

July 16, 2003

       The CIA's Baghdad station sends a cable to the agency's headquarters in Langley, Virginia informing superiors that it is concerned about the aggressive interrogation techniques being used by Joint Task Force (JTF) 121. A senior intelligence official says, “We were not happy and the station was not happy that the military was using certain interrogation techniques as part of the battlefield interrogation process.” [New York Times, 9/11/2004]
          

October 12, 2003

       Lt. Gen. Ricardo Sanchez writes a classified memo calling for a “harmonization” of policing and intelligence tasks at Abu Ghraib in order to ensure “consistency with the interrogation policies ... and maximize the efficiency of the interrogation.” [Washington Post, 5/15/2004] The memo instructs that intelligence is to work more closely with military police in order to “manipulate an internee's emotions and weaknesses” by controlling the detainee's access to “lighting, heating, ... food, clothing, and shelter.” [Washington Post, 5/21/2004] It says that “it is imperative that interrogators be provided reasonable latitude to vary their approach” according to the prisoner's background, strengths, resistance, and other factors. [Washington Post, 5/15/2004] The memo is a revision of Gen. Geoffrey Miller's September 9 memo (see September 9, 2003), which included a list of acceptable interrogation techniques. Sanchez's memo, however, drops the list replacing it with a general statement that “anything not approved, you have to ask for,” [Washington Post, 5/21/2004] and adding that the detainees must be treated humanely and that any dogs used during the interrogations must be muzzled. [Washington Post, 5/15/2004]
People and organizations involved: Ricardo S. Sanchez
          

November 2003

       US military officials in Baghdad receive internal documents citing at least 20 complaints of abuse at Abu Ghraib. [New York Times, 6/19/2004]
          

November 30, 2003

       Col. Thomas M. Pappas sends a classified cable to Lt. Gen. Ricardo Sanchez requesting permission to use more intense interrogation methods on a 31-year-old Syrian suspected of having knowledge about the illegal flow of money, arms, and foreign fighters into Iraq. Pappas says in the cable that the interrogators at Abu Ghraib would like to use the “fear up harsh” method, which according to military documents means “significantly increasing the fear level in a security detainee.” The Washington Post will later report that the plan's details were as follows: “First, the interrogators were to throw chairs and tables in the man's presence at the prison and ‘invade his personal space.’ Then the police were to put a hood on his head and take him to an isolated cell through a gantlet of barking guard dogs; there, the police were to strip-search him and interrupt his sleep for three days with interrogations, barking, and loud music....” [Washington Post, 5/15/2004]
People and organizations involved: Ricardo S. Sanchez, Thomas M. Pappas
          

December 5, 2003

       An FBI official complains in a memo about questionable interrogation practices being used by Defense Department interrogators at Guantanamo, and calls attention to one incident in particular (see June 2003) when an interrogator impersonating an FBI agent employed certain interrogation methods not practiced by FBI: “These tactics have produced no intelligence of a threat neutralization nature to date and CITF believes that techniques have destroyed any chance of prosecuting this detainee. If this detainee is ever released or his story made public in any way, DOD [Department of Defense] interrogators will not be held accountable because these torture techniques were done [by] the ‘FBI’ interrogators. The FBI will [be] left holding the bag before the public.” [Sources: FBI email, 12/5/2003] An FBI official will later say in an email that these techniques were “approved by the Dep. Sec. Def.,” [Sources: FBI email, 1/21/2004] meaning possibly Stephen A. Cambone, who is responsible for interrogation policy at the Pentagon.
People and organizations involved: Stephen A. Cambone
          

December 12, 2003

       A battalion commander in Iraq is fined $5,000 for firing his pistol near the head of an Iraqi prisoner after his soldiers had punched the detainee. [Seattle Times, 12/13/2003; Human Rights Watch, 5/7/2004]
          

June 25, 2004

       In a two-page “info memo,” Vice Adm. Lowell E. Jacoby, the director of the Defense Intelligence Agency (DIA), reports to Stephen A. Cambone, under secretary of Defense for Intelligence, an incident involving abuse in Iraq that happened after the Abu Ghraib photographs were publicly revealed. The day before, Jacoby received a report from two members of his agency, describing mistreatment of detainees by Task Force (TF) 6-26, the successor to TF-121, and composed of members of Special Forces units. Earlier that month, two members of the DIA observed that prisoners were brought into the “Temporary Detention Facility in Baghdad” who had burn marks on their backs and bruises and complained of pain in their kidneys. One of the DIA officials then witnessed an interrogator from TF-6-26 “punch a prisoner in the face to the point the individual needed medical attention.” When this intelligence official subsequently took pictures of the victim, the photos were confiscated. When the two intelligence personnel objected to the treatment, they were threatened and told to keep quiet. The keys to their vehicles were confiscated and they were instructed “not to leave the compound without specific permission, even to get a haircut.” They were told their e-mail messages would be screened. Their witnessing had apparently been a mistake on the part of the Special Forces soldiers. The two witnesses nevertheless persevered in reporting the incident to their superiors and their account found its way to Adm. Jacoby. [New York Times, 12/8/2004; Washington Post, 12/8/2004] The Pentagon will report on December 8, 2004 that four members of the Task Force were disciplined in connection with this incident and reassigned to other duties. [The Guardian, 12/9/2004]
People and organizations involved: Stephen A. Cambone, Defense Intelligence Agency, Lowell E. Jacoby
          

December 30, 2004

       The Justice Department issues a 17-page memo which officially replaces the August 2002 memorandum (see August 1, 2002), written by Jay S. Bybee, head of Office of Legal Counsel (OLC), and co-authored by John C. Yoo, a deputy assistant attorney general. The controversial memo had asserted that the president's wartime powers superseded international anti-torture laws and treaties. It had also considered legal arguments that US officials and other personnel could use if ever faced with criminal charges. Additionally, the memo put forth a very narrow definition of torture, describing it is as a tactic that produces pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The new memo, authored by acting chief of the OLC and Acting Assistant Attorney General Daniel Levin, is ostensibly meant to deflect criticisms that the Bush administration condones torture. In fact, the very first sentence reads, “Torture is abhorrent both to American law and values and to international norms.” But the White House insists that the new memo does not represent a change in policy because the administration has always respected international laws prohibiting the mistreatment of prisoners. The primary concern of the new memo is to broaden the narrow definition of torture that had been used in the August memo. Levin adopts the definition of torture used in congressional anti-torture laws which says that torture is the infliction of physical suffering “even if it does not involve severe physical pain.” But the pain must still be more than “mild and transitory,” the memo says. Like the original memo, Levin says that torture may include mental suffering. But to be considered so it would not have to last for months or years, as Bybee and Yoo had asserted two years earlier. The most contested conclusions of the August 2002 memo—concerning the president's wartime powers and potential legal defense for US personnel charged with war crimes—are not addressed in the Levin memo. “Consideration of the bounds of any such authority would be inconsistent with the president's unequivocal directive that United States personnel not engage in torture,” the memo says. [Associated Press, 12/31/2004 Sources: (Acting Assistant Attorney General), Memorandum for James B. Comey, Deputy Attorney General, 12/30/2004] The memo also attempts to quell concerns that the administration believes national security may be used as justification for tactics that could be considered as torture. The memo states: “[A] defendant's motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute.” [Sources: (Acting Assistant Attorney General), Memorandum for James B. Comey, Deputy Attorney General, 12/30/2004]
People and organizations involved: Daniel Levin, Bush administration, John C. Yoo, Jay S. Bybee
          


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