In their rush to protect America from terrorism, Bush administration officials employed counterproductive tactics that verged on torture

June 26, 2013

By Matthew E. Milliken
June 26, 2013

In many ways, the United States was unprepared for the battle against terrorists that was triggered by the Sept. 11, 2001, attacks. The nation’s leaders had to implement new objectives and policies geared to fighting al Qaeda and its ilk. This enemy, unlike others faced and vanquished by America, did not control a nation; had no formal government; dispatched warriors who wore no uniform. Yet American soldiers and spies would have to capture, interrogate and possibly send to trial these new foes.

This is one of many threads tracked by Kurt Eichenwald in his 2012 book, 500 Days: Secrets and Lies in the Terror Wars. As is now well known, officials in the administration of President George W. Bush took extremely expansive views of the powers that a wartime president and his delegates could wield legally. Unfortunately, Eichenwald’s book shows, that perspective was one of several factors that helped facilitate the torture of detainees by Americans and American allies.

Around the time the U.S. began invading Afghanistan, in October 2001, several lawyers met to lay groundwork for handling captives. Attending were John Yoo, a Justice Department lawyer from the group tasked with providing legal advice to the executive branch; Alberto Gonzales, the chief White House counsel; Gonzales’ deputy, Tim Flanigan; and David Addington, senior counsel to Vice President Dick Cheney. Yoo was shown a draft presidential order modeled on one President Franklin Delano Roosevelt had issued.

The order would establish military commissions to try terrorism suspects in the same fashion as Roosevelt did to try a handful of civilian saboteurs apprehended during World War II. Roosevelt’s action had been the subject of a lawsuit, Ex Parte Quirin.

They had used Roosevelt’s order as a template, [Addington] explained, making very few changes, since it had already been challenged in the Supreme Court and ruled constitutional.

“Well, it’s been sixty years,” Yoo said. “A lot has changed since then.”

Yoo spent another minute reading.

“This is a huge step,” he said. “If the president issues this, it’s going to be a big deal.”

“We know,” Addington replied. “But we think things are going too slowly. We’ve got to make a decision.”

Yoo noticed some wording that suggested that the White House lawyers wanted to exclude the courts from having the authority to review anything related to the commissions. Not a good idea — the Supreme Court had already considered military commissions in the Quirin case. That precedent established the authority of the judiciary. The justices wouldn’t agree to give that up just because a president said they should.

“Well,” Flanigan said, “what, if anything, in here might be considered unconstitutional?”

Before Yoo responded, Addington broke in. “Why would any of it be unconstitutional?” he asked. “Tell me if I’m wrong. This is FDR’s order. The Supreme Court upheld it. Why would anything in it be unconstitutional?”

Because the court had changed, Yoo replied. “Look, there is a political portion that you’re overlooking,” he said. “We’ve got a very divided court. Look at the Bush v. Gore lineup. The court is made up of politicians, they’re political actors. So just because FDR’s court upheld this sixty years ago doesn’t mean the court wil do the same thing.“

Politicians? The other lawyers chuckled. “That’s pretty cynical,” Flanigan said.

No, thinking otherwise was naive. “I clerked at this court before,” Yoo said. “I’ve seen how the sausage is made. I wish they were like a machine that would do the law in a predictable way, and I think most of the people in this country think they’re like that. But they’re not.”

“I don’t buy your explanation of the court,” Addington replied. “The court said this in Ex Parte Quirin, and that’s the law. They’re not going to change it.”

Yoo shrugged. “They change the law all the time.”

This is completely astonishing for two reasons: First, because attorneys at the highest level of government evidently had a less sophisticated understanding of the Supreme Court than a law student; and second, because these attorneys imagined that the president could establish an independent extrajudicial process at the stroke of a pen.

But I quoted that passage at length because, sadly, it seems representative of how Addington and other Bush officials thought and operated. At nearly every opportunity, it seemed, they insisted that presidential authority could be exerted without limit or check. Addington and others also consistently acted as if they were completely unable to consider or comprehend opposing viewpoints.

Eichenwald documents this in his description of a June 2002 strategy session. Ted Olson, the solicitor general, was concerned that the Supreme Court might not buy into the administration’s sweeping detention policies.

At the meeting in Gonzales’ office, [White House attorney] Bradford Berenson was arguing that Olson had good reason for his misgivings. Berenson had worked as a clerk for Justice Anthony Kennedy, who was frequently the swing voter between the Supreme Court’s conservative and liberal jurists; Brett Kavanaugh, another White House lawyer who had worked for Justice Kennedy, agreed.

“You have to understand,” Berenson told the group, “Justice Kennedy will never accept that the president has absolute discretion to lock up an American citizen and deny him access to a lawyer. His feelings about the right to consel are very, very strong.“

Addington broke in. “It’s ridiculous to surrender the president’s authority based on a supposition about what Kennedy might do. No one knows that.“

“David, you’ve got two people in this room who have both worked very closely with Justice Kennedy,” Berenson said. “We are the best sources of information you’ve got about how he thinks. And both of us are telling you the same thing. He will never go along with this.“

“That’s naive,” Addington said.

“And that is know-nothingness!” Berenson shouted, slapping the coffee table. His hand caught the edge of an empty candy dish; it flipped into the air, landing with a clatter.

The shouting continued, when a secretary appeared at the door of the office.

“Everything okay in here?” she asked.

“Yes, it’s fine,“ Gonzales replied with a smile. “Don’t worry.”

The secretary left and closed the door. For a moment, no one spoke.

Addington broke the stillness. His voice was calm. He had shifted from anger to teaching mode. He glanced around at each of his colleagues.

“Is there anybody in this room who believes that what we are about to do here is actually unlawful or unconstitutional?” he asked.

No one replied.

“And is this the policy that is the most protective of the citizens of the United States?”

Again, silence.

Addington sat back as he raised his arms and shrugged. “So what more is there to discuss?” he asked.

Thus were laid the foundations for expansive detention policies that were later rebuked by the Supreme Court. And thus also were created conditions under which many American officials felt empowered to apply physically coercive tactics — and, in some cases, to outright torture — detainees.

When al Qaeda struck, neither the military nor the Central Intelligence Agency had actively interrogated captives in decades — not since the Vietnam war, essentially. This became evident in spring 2002 after the capture of Abu Zubaydah, a Qaeda operative involved with deadly attacks on the USS Cole and two American embassies in Africa. CIA leaders, believing Zubaydah had information about a possible coming attack, were desperate to pry it out of him rapidly. “Perhaps they should place Zubaydah in a cell filled with corpses,” Eichenwald writes, recounting ideas that were considered. “Surround him with naked women. Administer electric shocks to his teeth.”

Unfortunately, these officials were being advised by one Jim Mitchell. “Despite his own lack of expertise in the methodology of interrogations or the psychology of Arab terrorists,“ Eichenwald writes, “Mitchell’s calm self-assurance captivated the others in the room.”

Mitchell, a psychologist, had recently retired from the Joint Personnel Recovery Agency, a military organization that ran survival, evasion, resistance and escape educational programs “designed to train American fighters how to tolerate brutal questioning.” Eichenwald continues:

The soldiers were subjected to abusive tactics that had been employed by the Chinese Communists decades before to obtain false confessions that could be used for propaganda purposes. The names of the methods were bland — sensory deprivation, sleep disturbance, slapping, waterboarding — but the impact on the well-being of those subjected to such treatment was extensively documented.

None of these methods were used in the Defense Department programs to produce interrogation results. No one at SERE cared whether the abuse worked; the sole concern was whether American military personnel were braced to withstand cruel questioning tactics.

That distinction was quickly lost in the rush to develop new interrogation programs.

Pentagon officials began trying to reverse-engineer military survival training tactics for use on captives; similarly, Mitchell and a former SERE colleague were recruited by the CIA for a parallel effort. “These two psychologists — who had never conducted an interrogation, who never performed research on the subject, who knew nothing about al-Qaeda — were now the point men for the CIA in structuring its interrogation program,” Eichenwald writes.

In Eichenwald’s book, as in other accounts of American interrogation practices in the wake of the 2001 terror attacks, Federal Bureau of Investigation employees emerge as principled, if not heroic. Here Eichenwald describes what happened when FBI agents Ali Soufan and Steve Gaudin arrived at a secret base in Thailand to question a newly captured Qaeda official.

They went to Zubaydah and spoke with him in Arabic and English; Zubaydah was fluent in both languages. At first, Zubaydah insisted he was not the person that the agents thought. His name was Daoud, he said, not Zubaydah.

Soufan smiled. “How about I call you Hani?”

It was the nickname Zubaydah’s mother had given him as a child; Soufan had found that tidbit by digging through FBI files. Zubaydah couldn’t hide his surprise. These men had come prepared.

“Okay,” he said.

With that, the agents and the terrorist began to talk.

Here and elsewhere, FBI interrogators and their colleagues from the criminal-justice branch of the Department of Defense are portrayed as professionals who took the time to learn background material on the interrogation subjects and who treated the subjects humanely.

It seems that there were multiple reasons why criminal investigators consistently took a measured, non-coercive approach to interrogation. One is that a number of FBI agents brought in to question terrorism suspects were veteran operatives who were well versed in terror organizations. Soufan and Gaudin, for instance, had helped probe Qaeda’s 1998 embassy bombings in Africa.

Another is that traditionally, a key goal of law enforcement is prosecuting criminals, a distinctly different activity than disrupting criminal activity. In the American justice system, a suspect who isn’t convicted in court will ultimately be freed. But a judge who could be convinced that a suspect was tortured or seriously mistreated by authorities might issue the equivalent of a get-out-of-jail-free card to that defendant, regardless of actual evidence of guilt.

Moreover, under normal circumstances, American authorities found to have mistreated suspected criminals might themselves be criminally charged.

True, a relationship-building approach to interrogation takes time, and it is hardly foolproof. For instance, in August 2001, FBI and Immigration and Naturalization Service agents detained and questioned Zacarais Moussaoui but weren’t able to learn anything that tipped them to the following month’s attacks. (Unfortunately, FBI officials in Washington, D.C., disbelieving warnings from the field agents about Moussaoui, blocked a requested search of Moussaoui’s computer as well as wiretaps.)

By all accounts, skilled interrogators using law enforcement’s relationship-building approach produced much more in results than the coercive tactics pursued by the military and CIA. That’s not to say that torture never works or never generated any useful information; there is some evidence that coercive tactics may have helped Americans locate and subsequently assassinate Osama bin Ladin. But — setting aside the entire matter of the morality of torture — the consensus of experts is that physical and mental coercion generally elicits unreliable information.

Unfortunately, not only were many American interrogators not aware of this, they conducted interrogations in manners that simply made no sense at all. In one case at Guantanamo Bay, Eichenwald writes, “interrogators sprang into action like a bunch of Keystone Kops, dragging random detainees in for questioning and screaming at them to reveal what they know about [a] bomb plot. It was like shooting in the dark at an unseen target in the desperate hope of hitting the bull’s-eye.”

In another passage, Eichenwald documents the frustration of Britt Mallow, head of a team of military investigators at Guantanamo Bay. “At the detention center, he had witnessed some of the asinine interrogations conducted by young, poorly trained soldiers. No one had yet seemed to notice that screaming, ‘Where is bin Laden?’ at detainees had zero effect.”

Mallow wrote an e-mail message warning that coercive tactics were counterproductive. And he was hardly alone in doing so. Soufan and other FBI authorities repeatedly criticized the heavy-handed tactics they saw the CIA and military employ. After researching interrogation tactics in the summer of 2002, Lt. Col. Daniel Baumgartner of the Joint Personnel Recovery Agency wrote two memoranda to his supervisors saying that physical coercion didn’t elicit accurate answers.

But time and again, officials disregarded warnings from experts. Just as Addington had in discussions about detainee policy and Supreme Court oversight, U.S. leaders forged ahead without heeding words of caution.

In fact, Bush administration lawyers actively worked to loosen and bypass restrictions against coercive tactics. Eichenwald details work done in 2002 by a young attorney named Jennifer Koester and her colleagues that redefined and weakened anti-torture laws and regulations.

The antitorture statute didn’t just say that inflicting severe pain was illegal. Rather, its wording required that an individual had to have the “specific intent” to cause pain. That wording had always been applied in a simple way — essentially, if an action taken by an official accidentally caused severe pain, it was not illegal. ….

When they used the harsh techniques, the interrogators did not have the objective of hurting detainees; rather, they were applying the tactics for the purpose of compelling answers to questions. They believed that the aggressive methods would not harm detainees — whether that belief was reasonable, the lawyers concluded, was irrelevant. And the fact that individuals with medical training would be observing the interrogations — and could stop them at any time — also suggested a lack of specific intent.

The antitorture prohibitions, the lawyers decided, did not apply to harsh questioning of suspected terrorists… No specific intent to cause severe pain, no legal violation.

It seems that it would be difficult to find a clearer case of parsing language in such a way that it obeys the letter but violates the spirit of the law. And remember: This was done to enable the use of interrogation techniques that not only are widely viewed as immoral but that also rarely produce reliable information.

It’s hard to overstate how arrogant and misguided Bush administration officials sometimes were. A unit at the Justice Department ultimately investigated the legal opinions issued by Yoo and his colleagues.

Based on his analysis, the president at a time of war could lawfully set up concentration camps for Muslims, murder the children of terrorist suspects to force the suspects to talk, and whatever else he chooses to do so long as he believes it is necessary for national security. Yoo acknowledged as much during his questioning by lawyers with the Office of Professional Responsibility for their report; when asked if the president could lawfully order the massacre of a village of civilians during wartime, Yoo’s response was “Sure.”

To give Yoo the benefit of the doubt, his analyses may in fact be correct. But if so, they provide legal cover for a breathtaking variety of actions, many of which — such as the extermination of a village — are clearly immoral, others of which — coercive interrogation — are arguably so. And unquestionably, the sweeping executive powers claimed by Addington, Yoo and their peers laid the groundwork for treatment of detainees that damaged America’s moral standing around the world.

But on this front, Eichenwald offers some words of caution. Here, he offers the perspective of Jack Goldsmith, who in 2003 became head of the Office of Legal Counsel, where Yoo had worked.

However the decisions on the interrogation tactics are viewed, they have to be considered in context. While Goldsmith was deemed by some as a hero for withdrawing the original interrogation memos [by Yoo and colleagues], he bristled at the hostility shown to Yoo and other lawyers by the press and the public. None of this was a “struggle between the forces of good and evil,” he wrote. No one wanted to shred the Constitution. Administration lawyers began formulating analyses when the Twin Towers and the Pentagon were still burning and the number of dead was still unknown. Everyone — at the White House, in Congress, at the CIA, at the Pentagon, in business and among the general public — believed correctly that al-Qaeda was plotting more attacks. Lawyers were caught up in an almost unbearable dilemma of being forced to make rulings, on the fly, that might deflect an unimaginably destructive second blow by al-Qaeda, but perhaps at the cost of sacrificing, if only for a time, certain of America’s founding principles. Those who believe such decisions would be easy, Goldsmith argued, are fooling themselves.

It’s well worth bearing this in mind when evaluating the choices, many of them unfortunate, that Bush officials made in the aftermath of 9/11. It’s certainly worth avoiding personal animosity toward Yoo, Addington and assorted peers, even if one disagrees violently with their conclusions.

But it’s also worth remembering that their expansive claims were promulgated based on both arrogance and ignorance, and that they ended up doing great harm. If American officials ever again find themselves facing similar circumstances, one hopes that they will be able to avoid the dangerous and counterproductive overreach that we saw following the 9/11 attacks.

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