Friday, April 04, 2008
According to the official narrative, the Bush Administration turned to the Justice Department for legal guidance on what could be done to give interrogators the latitude they were demanding in dealing with prisoners taken in the war on terror. However, not a single element of the official narrative is entirely true. The interrogators were not “pushing for broader authority.” Indeed, the pushing was all coming out of the White House (from Vice President Cheney, to be specific), and the intelligence professionals were actually pushing back. Moreover, torture was being used almost from the start of the “war on terror.” Special operations units operating under the authority of Dr. Stephen Cambone, the Under Secretary of Defense for Intelligence, had been authorized to use torture techniques from the opening of the war, and they used them with gusto. At Guantánamo and at Bagram Air Base in Afghanistan, numerous instances of “highly coercive techniques” had been documented; indeed, the stories out of Bagram are among the most gruesome to be documented. In the documentary “Taxi to the Dark Side,” for instance (for which I consulted and in which I appear), we find footage of a senior U.S. officer in Afghanistan talking about the authority for torture, which was issued, and which military personnel were instructed to lie about or deny to keep covered up.
So why the need for Yoo Two? Jane Mayer pieced that together for us in “The Memo.” Navy officers had gotten a gander at what was up at Gitmo, and it had gotten back to Alberto Mora, the Navy general counsel in the Pentagon. He had also learned about a Rumsfeld order issued on December 2, 2002, authorizing a series of brutal techniques, including waterboarding. Other senior military lawyers quickly also learned about this. An uproar followed in the Pentagon and Haynes found himself isolated and under pressure from all sides. He folded and asked Rumsfeld to rescind the order.
The traditional military forces in the Pentagon felt they had scored a victory, but of course Haynes was determined to proceed with all the torture practices he had advised Rumsfeld to approve. He was intent on outmaneuvering the generals, admirals and figures like Mora. And while he lacked many allies in the Pentagon—other than the Neocon dead-enders like Doug Feith and Stephen Cambone—he knew he could count on the OLC to come through for him.
So the OLC memo was solicited as a trump card to override objections within the military, and to silence objections based on law. Indeed, the memo was subsequently used in the aborted Pentagon Working Group Report, whose members were told they were bound to accept the reasoning and opinions expressed in it. In fact, most of the Working Group found the memo so facially implausible and foolish in its reasoning that they refused . . . .
When Yoo Two was declassified and released, we see that not a single word of the document was blacked out or excised. And indeed, there was no basis whatsoever for the classification to start with, not even a figleaf.
So why has a legal policy statement been classified and withheld for five years? The answer to that question is now clear. The memorandum would have produced reactions of ridicule and outrage from throughout the professional community—as indeed it has. The author and the classifier knew that. They used classification as a political tool to keep something which is a quintessentially public document out of the reach of the public. Moreover, this classification reflects a regular pattern of abuse by the Bush Administration, a fact to be kept in mind when considering Attorney General Mukasey’s harsh and factually unfounded criticisms of pending legislation designed to reign in the use of state secrecy claims to cloak corruption and criminal conduct by state actors . . . .Congress should act immediately to require the full disclosure of all remaining torture memoranda. Yoo Two reveals a number of other documents upon which many of its conclusions rest. Of particular importance, it notes that Yoo conferred with the Criminal Division (then headed by Michael Chertoff, assisted by the current head, Alice Fisher), with respect to the application of statutes prohibiting torture against military actors. In testimony before Congress, Chertoff repeatedly denied involvement in the preparation of the torture memoranda, notwithstanding mounting evidence to the contrary. The candor of his testimony, and that of his successor Alice Fisher, has repeatedly been challenged by others who were involved at the time. Yoo Two puts Chertoff and Fisher right in the middle of the process of formulating torture policy, and more particularly, of giving non-prosecution assurances for purposes of inducing the application of torture practices.
Congress should insist that Steven Bradbury vacate OLC.
Until the torture documents have been publicly produced, Congress should refrain on action on all Justice Department nominees.
Congress should call Jim Haynes, under subpoena if necessary, to testify about his involvement in this matter from the outset, as well as the evidence provided by JAG officers that he orchestrated the plea bargain for David Hicks and the currently pending Guantánamo proceedings as political show trials.
Congress should recall Major General Geoffrey Miller and review in detail his conduct in connection with the introduction of torture in Iraq and his supervision of the torture regime at Guantánamo, particularly to ascertain his communications and dealings with Donald Rumsfeld, Stephen Cambone and William Boykin and their role in the introduction of the torture system . . . .
Silence will buy us a continuation of this corruption of our nation. But isn’t it worth raising your voice and articulating your anger to get our country back? It should start with insisting that Congress use the tools it has–oversight and the budget–to force changes. Say “no” to torture; it’s an easy first step on the road back to decency.