THE ATTACK ON THE WORLD TRADE CENTER SHOWED THE weakness of American intelligence gathering. Top secret information obtained by one agency was silo’ed from others, making it impossible to aggregate intelligence and obtain a full picture of the security threats. The CIA knew that two of the 9/11 hijackers were on American soil in San Diego, but didn’t share the information with the FBI, who were actively trying to track them down.1 September 11 was a crippling intelligence failure, and in the immediacy of that failure many in President George W. Bush’s administration felt the need to do something radical. Greater sharing of intelligence, naturally. But much more as well. Two main solutions were devised, or revived: total surveillance and tortured interrogations. They represent the first prong of the counterinsurgency approach.
In effect, 9/11 set the stage both for total NSA surveillance and torture as forms of total information awareness. The former functioned at the most virtual or ethereal, or “digital” level, by creating the material for data-mining and analysis. The latter operated at the most bodily or physical, or “analog” level, obtaining information directly from suspects and detainees in Iraq, Pakistan, Afghanistan, and elsewhere. But both satisfied the same goal: total information awareness, the first tactic of counterinsurgency warfare.
The first, total NSA surveillance. In the aftermath of 9/11, the US government put in place a web of illicit and licit signal intelligence programs with the ambition to capture and collect all communications around the world. This effort gave birth to bulk data collection programs ranging from the Section 215 program of the USA PATRIOT Act to those myriad NSA programs made public through the Edward Snowden revelations. With names like PRISM, UPSTREAM, and BOUNDLESS INFORMANT, these surveillance programs would give the US government access to all communications flowing through the underwater cables and satellites orbiting around earth, as well as through the servers of Internet companies and social media. These post–9/11 intelligence programs provide the US government direct access to any foreigner’s e-mails, attachments, videos, VoIP calls—in sum, practically all foreign digital communications and Internet traffic. The different programs are targeted at different systems and use different techniques—from simple cable-splicing in order to make integral copies of all the digital data flowing through fiber-optic cables, to the more complex introduction of malware into intercepted and surreptitiously opened hardware being sold to foreigners. What they aim for is totality.
You may recall the Total Information Awareness (TIA) program that Admiral John Poindexter tried to pioneer in the late 1990s and to resuscitate in the wake of 9/11. The program had that ominous image of an eye at the top of a pyramid seeing the entire world, with the Baconian logo scientia est potentia (“knowledge is power”). The objective was a massive surveillance system that would capture absolutely all communications. The TIA program was originally shelved in 1999 in part because of the controversy surrounding Admiral Poindexter, who had been the highest-ranking official in the Reagan administration found guilty during the Iran-Contra affair. The TIA program was revived and funded for a while after 9/11, before eventually being scrapped again because of the renewed storms surrounding Poindexter.2 But the architecture, vision, and ambition of “total information awareness” captured perfectly the first prong of counterinsurgency strategy.
The ambition here was total information, and our new digital technologies have now made this possible. American Civil Liberties Union (ACLU) legal director David Cole reminds us of a PowerPoint slide leaked by Edward Snowden that gives a sense of the capabilities and the ambition. The NSA document reveals, Cole writes, that “the NSA’s ‘new collection posture’ is to ‘collect it all,’ ‘process it all,’ ‘exploit it all,’ ‘partner it all,’ ‘sniff it all,’ and, ultimately, ‘know it all.’”3 Yes, “know it all”: that is the goal. US government today tries to gain access, to monitor and surveil practically all foreign communications, including e-mails, Facebook posts, Skype messaging, Yahoo video-chat platforms, Twitter tweets, Tumblr photos, Google searches, etc.—in sum, all telecom data including social media and Internet traffic. And of course, it is not only the US government that tries to achieve these capabilities, but also its Five Eyes partners—the intelligence agencies of Australia, Canada, New Zealand, and the United Kingdom—and other allies like France and Germany, as well as the intelligence agencies of most developed countries large and small, from China or Russia to Israel. And in our new digital age, such surveillance is becoming easier, cheaper, and more efficient daily.
The goal of total information awareness has been carried out through licit and illicit activities—the latter most dramatically illustrated by the infamous hospital episode the night of March 10, 2004. The NSA had been carrying out, for two years, a warrantless eavesdropping program known as Stellar Wind that monitored telecom and e-mail communications between US citizens and foreign citizens if either party was linked to a terrorist group. The warrantless program was ultimately deemed illegal by the Department of Justice. Despite that, and shortly thereafter, then White House counsel Alberto Gonzales and President Bush’s chief of staff rushed to the hospital late at night to get the ailing attorney general, John Ashcroft, semiconscious and in his sickbed in the intensive-care unit, to reauthorize the warrantless eavesdropping program. Ashcroft was so sick, in fact, that his powers had been transferred to his deputy, James Comey. Significant legal controversy also surrounded the Section 215 program, which was deemed illegal by several federal judges—before it was eventually modified, ever so slightly, in June 2015 to require that the telecoms hold the metadata rather than the NSA, at taxpayer’s expense.4 The full scope and reach of the NSA programs, and their constitutionality, have not, to date, been sufficiently recognized or properly adjudicated.
What is clear, though—as I document in Exposed—is that the myriad NSA, FBI, CIA, and allied intelligence agencies produce total information, the first and most important prong of the counterinsurgency paradigm. Most important, because both of the other prongs depend on it. As the RAND Corporation notes in its lengthy 519-page report on the current state of counterinsurgency theory and practice, “Effective governance depends on knowing the population, demographically and individually.” The RAND report reminds us that this insight is not novel or new. The report then returns, pointedly for us, to Algeria and the French commander, David Galula: “Galula, in Counterinsurgency Warfare, argued that ‘control of the population begins with a thorough census. Every inhabitant must be registered and given a foolproof identity card.’”5 Today, that identity card is an IP address, a mobile phone, a digital device, facial recognition, and all our digital stamps. These new digital technologies have made everyone virtually transparent. And with our new ethos of selfies, tweets, Facebook, and Internet surfing, everyone is now exposed.
Second, tortured interrogation. The dual personality of counterinsurgency warfare is nowhere more evident than in the intensive use of torture for information gathering by the United States immediately after 9/11. Fulfilling the first task of counterinsurgency theory—total surveillance—this practice married the most extreme form of brutality associated with modern warfare to the formality of legal process and the rule of law. The combination of inhumanity and legality was spectacular.
In the days following 9/11, many in the Bush administration felt there was only one immediate way to address the information shortfall, namely, to engage in “enhanced interrogation” of captured suspected terrorists—another euphemism for torture. Of course, torture of captured suspects would not fix the problem of silo’ed information, but they thought it would at least provide immediate information of any pending attacks. One could say that the United States turned to torture because many in the administration believed the country did not have adequate intelligence capabilities, lacking the spy network or even the language abilities to infiltrate and conduct regular espionage on organizations like Al Qaeda.6
The tortured interrogations combined the extremes of brutality with the formality of the rule of law. We are familiar with the first, but the details nevertheless remain stunning—and numbing. Waterboarding a suspect over 183 times. Forcing a detainee to remain in a standing stress position for 7.5 days, or almost 180 hours. Locking a prisoner in a coffin-sized confinement box for nearly 2 weeks. These unconscionable practices were administered by CIA agents and contractors, including psychologists, beginning in 2002, in black-site prisons far and wide—from Afghanistan to Thailand—many times after extensive and lengthy FBI interrogations.
Even the more ordinary instances of “enhanced interrogation” were harrowing—and so often administered, according to the Senate report, after the interrogators believed there was no more information to be had, sometimes even before the detainee had the opportunity to speak. One prisoner, named Ridhar al-Najjar, is described as “having been left hanging—which involved handcuffing one or both wrists to an overhead bar which would not allow him to lower his arms—for 22 hours each day for two consecutive days.” Another prisoner, Gul Rahman, was subjected to “48 hours of sleep deprivation, auditory overload, total darkness, isolation, a cold shower, and rough treatment,” before then being “shackled to the wall of his cell in a position that required [him] to rest on the bare concrete floor […] wearing only a sweatshirt.” (He was found dead the next day. The cause of death was hypothermia.) Another prisoner, Abd al-Rahim al-Nashiri, was placed “in a ‘standing stress position’ with ‘his hands affixed over his head’ for approximately two and a half days,” and then later, a CIA officer “placed a pistol near al-Nashiri’s head and operated a cordless drill near al-Nashiri’s body.”7
Ramzi bin al-Shibh was subjected to this type of treatment immediately upon arrival in detention, even before being interrogated or given an opportunity to cooperate—in what would become a “template” for other detainees. Bin al-Shibh was subjected first to “sensory dislocation” including “shaving bin al-Shibh’s head and face, exposing him to loud noise in a white room with white lights, keeping him ‘unclothed and subjected to uncomfortably cool temperatures,’ and shackling him ‘hand and foot with arms outstretched over his head (with his feet firmly on the floor and not allowed to support his weight with his arms).’” Following that, the interrogation would include “attention grasp, walling, the facial hold, the facial slap… the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation beyond 72 hours, and the waterboard, as appropriate to [bin al-Shibh’s] level of resistance.”8 This template would be used on others—and served as a warning to all.
The more extreme forms of torture were also accompanied by the promise of life-long solitary confinement or, in the case of death, cremation. Counterinsurgency torture in the past had often been linked to summary disappearances and executions. Under the Bush administration, it was tied to what one might call virtual disappearances.
During the Algerian war, as noted already, the widespread use of brutal interrogation techniques meant that those who had been victimized—both the guilty and innocent—became dangerous in the eyes of the French military leadership. FLN members needed to be silenced, forever; but so did others who might be radicalized by the waterboarding or gégène. In Algeria, a simple solution was devised: the tortured would be thrown out from helicopters into the Mediterranean. They became les crevettes de Bigeard, after the notorious French general in Algeria, Marcel Bigeard: “Bigeard’s shrimp,” dumped into the sea, their feet in poured concrete—a technique the French military had apparently experimented with earlier in Indochina.9
The CIA would devise a different solution in 2002: either torture the suspect accidentally to death and then cremate his body to avoid detection, or torture the suspect to the extreme and then ensure that he would never again talk to another human being. Abu Zubaydah received the latter treatment. Zubaydah had first been seized and interrogated at length by the FBI, had provided useful information, and was placed in isolation for forty-seven days, the FBI believing that he had no more valuable information. Then the CIA took over, believing he might still be a source.10 The CIA turned to its more extreme forms of torture—utilizing all ten of its most brutal techniques—but, as a CIA cable from the interrogation team, dated July 15, 2002, records, they realized beforehand that it would either have to cover up the torture if death ensued or ensure that Zubaydah would never talk to another human being again in his lifetime. According to the Senate report, “the cable stated that if Abu Zubaydah were to die during the interrogation, he would be cremated. The interrogation team closed the cable by stating: ‘regardless which [disposition] option we follow however, and especially in light of the planned psychological pressure techniques to be implemented, we need to get reasonable assurances that [Abu Zubaydah] will remain in isolation and incommunicado for the remainder of his life.’”11 In response to this request for assurance, a cable from the CIA station gave the interrogation team those assurances, noting that “it was correct in its ‘understanding that the interrogation process takes precedence over preventative medical procedures,’” and then adding in the cable:
There is a fairly unanimous sentiment within HQS that [Abu Zubaydah] will never be placed in a situation where he has any significant contact with others and/or has the opportunity to be released. While it is difficult to discuss specifics at this point, all major players are in concurrence that [Abu Zubaydah] should remain incommunicado for the remainder of his life.12
“Incommunicado for the remainder of his life”: this statement may explain why the Guantánamo prison camp remained operative for so long. Abu Zubaydah made his first public appearance at a Periodic Review Board hearing at Guantánamo fourteen years later, on August 23, 2016—after fourteen years incommunicado. As of this writing, he remains detained at Guantánamo. The agency was given a governmental promise, at the highest levels.
Such measures and assurances, of course, were not the product of a demented interrogator, a deranged superior, or commanders gone native or mad. These routines were approved at the uppermost level of the US government, by the president of the United States and his closest advisers. These practices were put in place, designed carefully and legally—very legalistically, in fact—to be used on suspected enemies. They were not an aberration. There are, to be sure, long histories written of rogue intelligence services using unauthorized techniques; there is a lengthy record, as well, of CIA ingenuity and creativity in this domain, including, among other examples, the 1963 KUBARK Counterintelligence Interrogation manual.13 But after 9/11, the blueprint was drawn at the White House and the Pentagon, and it became official US policy—deliberate, debated, well-thought-out, and adopted as legal measures.
President George W. Bush himself specifically approved the transfer of the first detainee who would be interrogated by the CIA, Abu Zubaydah, to a black site in a foreign country because (among other reasons which are blacked out in the report) there would be a “lack of US court jurisdiction” there. “That morning, the president approved moving forward with the plan to transfer Abu Zubaydah to Country [redacted],” the Senate report states. Thereafter, and deliberately, the president kept willfully ignorant of the location of detainees “to avoid inadvertent disclosures,” but he tacitly approved it all.14
In this context, the explicit decisions regarding the transfer and treatment of detainees, and the interrogation methods used, fell to the secretaries of defense and of state, the attorney general, and, whenever possible, the vice president. John Ashcroft, the attorney general of the United States and the highest-ranking lawyer in the country, on July 24, 2002, “verbally approved the use of 10 interrogation techniques, which included: the attention grasp, walling, the facial hold, the facial slap (insult slap), cramped confinement, wall standing, stress positions, sleep deprivation, use of diapers, and use of insects.” Two days later, the Senate report states, “the attorney general verbally approved the use of the waterboard.” And in early August, according to the Senate report, “the National Security Council legal advisor informed the DCI’s chief of staff that ‘[National Security Adviser] Dr. Rice had been informed that there would be no briefing of the President on this matter,’ but that the DCI had policy approval to employ the CIA’s enhanced interrogation techniques.”15
A year later, in July 2003, after being briefed by the DCI and CIA General Counsel on the enhanced interrogation techniques—including a description of the waterboard techniques that substantially understated the number of times it had been used on detainees Khalid Sheikh Mohammed and Abu Zubaydah—Vice President Cheney and Rice spoke on behalf of the White House and reauthorized the use of torture.16
Practically every enhanced interrogation measure used—except perhaps the use of a drill and a broom handle—was also vetted at CIA headquarters and approved as an interrogation plan at the top level of the CIA. Prior to using “enhanced interrogation techniques,” multiple cables and authorizations went back and forth between the detention facilities and CIA headquarters.17 These uses of torturous methods were planned, authorized, supervised, analyzed, and reconfirmed and reinforced by the highest government authorities.
In 2003, the CIA General Counsel communicated with the National Security Council principals, White House staff, and Department of Justice personnel, and expressed concern that CIA interrogation methods “might be inconsistent with public statements from the Administration that the US Government’s treatment of detainees was ‘humane.’” The result was not what one might have expected. As the Senate torture report indicates, instead of putting a halt to these practices, following the communiqué, “the White House press secretary was advised to avoid using the term ‘humane treatment’ when discussing the detention of al-Qa’ida and Taliban personnel.”18 Clearly, these were not accidental practices. They were fully discussed, deliberated, and made legal. The government’s decision to avoid talk of “humane treatment” perfectly embodies the combination of brutality and official government sanction characteristic of a counterinsurgency regime.
The Janus face of torture was its formal legality amidst its shocking brutality. Many of the country’s best lawyers and legal scholars, professors at top-ranked law schools, top government attorneys, and later federal judges would pore over statutes and case law to find legal maneuvers to permit torture. The felt need to legitimate and legalize the brutality—and of course, to protect the officials and operatives from later litigation—was remarkable.
The documents known collectively as the “torture memos” fell into two categories: first, those legal memos regarding whether the Guantánamo detainees were entitled to POW status under the Geneva Conventions (GPW), written between September 25, 2001, and August 1, 2002; and second, starting in August 2002, the legal memos regarding whether the “enhanced interrogation techniques” envisaged by the CIA amounted to torture prohibited under international law.
The first set of memos, dealing with the Geneva Conventions, ultimately led President Bush to declare, on February 7, 2002, that the GPW did not apply in the conflict against Al Qaeda. Secretary of State Colin Powell had previously asked President Bush to reconsider that conclusion, arguing that the GPW should apply.19 In the ensuing exchange, it became clear that one of the principal concerns within the administration was whether the president or other US officials were opening themselves up to criminal liability for violating the GPW.
Alberto Gonzales, then White House counsel, made this concern clear. In his recapitulation of the pros and cons of changing views on the GPW, Gonzales focused on the risk of prosecution. Sticking with the view that the GPW did not apply, he argued,
substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441). […] It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.20
Secretary Colin Powell also emphasized that his proposal to apply the GPW would not entail “any significant risk of domestic prosecution against US officials.” President Bush ultimately denied GPW status to the detainees, but ordered that they would nevertheless be treated humanely. The problem of the “rogue prosecutor” loomed large in the torture memos.21 The president, his cabinet, and closest advisers were trying to ensure that they would never be prosecuted or that they would have a defense in case they were prosecuted for violating the ban on torture. The extensive legal back and forth would have been offered to prove that these officials were trying to comply with the law. And after the publication of the Senate torture report revealed the use of certain extreme forms of torture (such as “rectal rehydration”), John Yoo, who had been at the Office of Legal Counsel and authored several of the torture memos, stated he was not aware of that type of torture being used and that it would probably violate the prohibition on torture. This defensive maneuver was precisely the kind of protection sought and provided by the legal documentation.
The next set of memos concerned the use of torture. These memos began immediately after the first wave, on February 26, 2002, and reached a climax during August 2002. The timing is important. The Senate torture report reveals that Zubaydah was being waterboarded in August 2002, and other reports suggest he was being tortured earlier in the summer. These torture memos were being written to justify practices that were already taking place. They justified torture by setting the threshold of torture so high that protections would only trigger in the case of extreme physical abuse with specific intent to cause death or organ failure. As Jay Bybee, then at the Office of Legal Counsel and now a federal judge, wrote in his August 1, 2002, memo:
We conclude that torture as defined in and proscribed by [18 US Code] Sections 2340-2340A, covers only extreme acts. Severe pain is generally of the kind difficult for the victim to endure. Where the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. Severe mental pain requires suffering not just at the moment of infliction but also requires lasting psychological harm, such as seen in mental disorders like post-traumatic stress disorder. […] Because the acts inflicting torture are extreme, there is significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.22
This definition of torture was so demanding that it excluded the brutal practices that the United States was using. It set the federal legal standard, essentially, at death or organ failure.
By October 2002, the interrogation teams were asking for permission to use methods including waterboarding—“Use of a wet towel and dripping water to induce the misperception of suffocation”—and other forms of generally recognized torture. Secretary of Defense Donald Rumsfeld approved a number of techniques on December 2, 2002, adding, in a handwritten note, that he himself stands eight hours a day. By the time Rumsfeld finally approved a longer list of techniques on April 16, 2003, they were twenty-four in number and were written in such a way as to seem innocuous. Gone also is waterboarding.23 They resembled more the type of forensic interrogation techniques discussed in Miranda v. Arizona, or in the infamous police interrogation manuals of the time. The Senate torture report, however, documents the unusually brutal ways in which they were actually implemented.
The turn to legality and legal process—the turn to the most legalistic treatment at the highest levels of United States law making, including the attorney general and the Office of Legal Counsel—is telling. The authors of the torture memos were not military officers improvising on the field of battle under hostile gunfire. Nor were they under the pressure of a ticking time bomb.24 Instead, they participated in a slow, bureaucratic, deliberate legal negotiation, fully reasoned, regarding the government regulation of prohibited conduct at a time when a deep international consensus—including international treaties and customary law—held that actions like waterboarding would violate sovereign responsibilities.
None of it is unprecedented, of course. In fact, for centuries torture was fully legal and deeply regulated—both inquisitorial torture to gain information and punitive torture for corporal or capital punishment. The history of the oversight and minute regulation of torture—state sanctioned at the highest level—goes far back. The Justinian Digest codified the strict regulation of the use of torture on slaves and served as a model to later codifications during the early Middle Ages and to the practices of the Inquisition. A good illustration of the latter, for instance, is the methodical and meticulous recitation of waterboarding—the toca, the classic, definitional form of torture during the Spanish Inquisition—at the formal inquisition of Marina González in Toledo in 1494, as reported by the notary at trial. This interrogation would typically have occurred in a separate, secret chamber, where only Marina González, the inquisitor, and the notary would be present. Here is a literal translation from the fifteenth-century archive:
She was stripped of her old skirts and put on the rack, and her arms and legs were tied tightly with cords. She also had a cord tied tightly around her head. They put a hood in front of her face, and with a jar that held three pints, more or less, they started to pour water down her nose and throat.
[…]His reverence ordered her to be given water until the three-pint jar ran out; she never said a word. […] They tied her up again and began to give her more water from the jar, which they had refilled […]
They gave her more water, and she said that she would tell everything, for Holy Mary’s sake.25
These practices were highly regulated and limited, but fully codified in law and supervised by magistrates during the Inquisition. They were also tame compared to the practices in the new millennium.
The torture memos effectively tried to replicate this legal framework, but it did so in a unique manner. Instead of officially codifying the practices—which would have been impossible given the treaties and laws on the books and customary international law—the executive branch assumed a quasi-judicial function. The Bush administration formed itself as a minijudiciary, with legal briefs going back and forth, legal arguments, and pretend judicial opinions. It “legalized” the practices by constituting itself as its own judicial system.
Through the process of legalization, the president’s men appropriated the judicial function. The lawyers at the White House and departments of justice, state, and defense filed briefs with each other, trying to persuade each other, contesting but ultimately deciding the questions at issue: they rendered judgment. The memos became “legal briefs”—in fact, it says so on many of them26—and then, effectively, judicial opinions. The executive branch became a minijudiciary, with no effective oversight or judicial review. And in the end, it worked. The men who wrote these memos have never been prosecuted nor seriously taken to task, as a legal matter, for their actions. The American people allowed a quasi-judiciary to function autonomously, during and after. These self-appointed judges wrote the legal briefs, rendered judgment, and wrote the judicial opinions that legitimized these brutal counterinsurgency practices. In the process, they rendered the counterinsurgency fully legal. They inscribed torture within the fabric of law.
One could go further. The torture memos accomplished a new resolution of the tension between brutality and legality, one that we had not witnessed previously in history. It was an audacious quasi-judicial legality that had rarely been seen before. And by legalizing torture in that way, the Bush administration provided a legal infrastructure for counterinsurgency-as-governance more broadly.
In this sense, it is illusory to draw distinctions, as contemporary counterinsurgency theorists do, between good and bad forms of modern warfare—between what are referred to as the “kill-capture” or “win-the-population” approaches, between the “enemy-centric” and “population-centric” strategies, or even between President Bush’s “war on terror” and the newer “global war on terror” (GWOT).27 These variations are all simply different versions of the counterinsurgency paradigm, revolving around the same three central strategies.28 Some parts of that paradigm are more enemy-centric, such as extracting information through brutal means and eradicating the active minority. Other pieces of the paradigm are more population-centric, such as total information awareness and winning the hearts and minds. But they do not represent distinct models of warfare, just variations on the theme of the counterinsurgency model. And the Bush administration’s turn to legality created a legal prototype for the counterinsurgency paradigm to become a form of governing—to unleash its political nature.
Ultimately, turning torture into this legal practice—outside the formal legal system but regulated by this new quasi-judiciary—loosened all the constraints: torture began to pervade the liminal spaces and to exceed the bounds of mere extraction of information. Abu Ghraib, black sites, Guantánamo—these spaces became places of torture, not only in the interrogation rooms, but through the solitary confinement, the horrid conditions, even the ordinary custodial measures.29 The entire spaces filled up with torture as torture became the new legal norm.
And through this process of legalization, these broader torturous practices spilled over into the second prong of counterinsurgency: the eradication of an active minority. Torture began to function as a way to isolate, punish, and eliminate those suspected of being insurgents.