The George W. Bush Administration
The degree of civilization in a society can be judged by entering its prisons.*
—ATTRIBUTED TO FYODOR DOSTOYEVSKY
Before the Clinton administration, extraordinary rendition was a tool the CIA and FBI had used a total of three times.1 Extraordinarily rendered people are “kidnapp[ed] . . . and [spirited] out of their sanctuaries, either for trial in America or in their country of origin.”2 However, under Clinton’s secret Presidential Decision Directive (PDD) 39, the CIA would begin spiriting these suspects to “Jordan, Syria, Morocco, or Egypt, all of which have legal systems that employ torture as a matter of course.”3 Clinton personally authorized more than seventy such renditions in his tenure: “[I]n [the few] cases” where suspects were ordered to appear in U.S. court, they made trial; the rest were more valuable for intelligence and sent to “third countries where they would have no legal rights.”4
Vice President Gore, Richard Clarke, and Madeleine Albright were “strong support[ers]” of the program, joining in President Clinton’s “intense” interest in it.5 Egypt’s most famous terrorist, Talaat Fouad Qassem, was “seized in Croatia, flown to the USS Adriatic, a navy warship, interrogated, then flown to Egypt for [torture and] execution.”6 Egypt’s secret police, the Gihaz al-Mukhabarat al-Amma, is widely known for its brutal torture regime, “real Macho interrogation . . . enhanced interrogation techniques on steroids” and was used by both Presidents Bush and Clinton.7
Congress attempted to end this program in 1998. The Foreign Affairs Reform and Restructuring Act slipped in a passage making it the policy of the United States not to “expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”8 Clinton vetoed the bill in late October,9 paving the way for Bush and Cheney’s unprecedented expansion of the program that made torture a matter of course for the United States in dealing with state enemies.
Bush’s Supreme Court: The Office of Legal Counsel
Cheney, being Bush’s right and left hands when it came to national security, rejected the slightly less constitutionally antithetical, Clintonesque law enforcement approach of using prosecution and investigation to end terrorism via rendition.10 In the wake of 9/11, “Cheney began drawing up plans for ambitious global kidnapping . . . operations in which certain elements of the CIA would initially take a leading role.”11 Further, “according to former CIA and State Department officials, [Cheney] began effectively directing a global manhunt using a mesh of Special Operations Forces and operatives from the CIA.”12
The Bush administration shut off its rendition efforts from “US military commanders and even CIA station chiefs around the world,” welding executive power into the hands of the president and his advisors, removing the lower and middle institutional echelons of executive advice and power.13 Bush was carrying out his war with the tack of Wilson or FDR in stripping civil liberties. However, Wilson’s propaganda would become the literal truth of American prison systems. Prisoners would be sexually and physically abused at the hands of U.S. and U.S.-led-third-party interrogators operating under the color of unilateral executive permission. In turn, this would become al Qaeda’s propaganda, but unlike Wilson’s, it would be true.
The Bush administration expanded upon Clinton’s PDD 39, which would not be declassified until 2007,14 with a secret body of laws in the Office of Legal Counsel (OLC) and other agency memoranda. Under the Bush administration’s imperial or unitary executive theory of government, classified, senior-aide-written memoranda such as these are the “conclusive statements” of constitutionality and law for the federal bureaucracy’s conduct: “OLC effectively functioned as an internal Supreme Court for the executive branch—a secret Supreme Court.”15
President Bush, in claiming this power to interpret the Constitution in secret, was robbing the judiciary of a governmental function that has been well established since the 1803 case of Marbury v. Madison: The federal judiciary under the Supreme Court and the Court itself constitute the final and absolute arbiters of constitutionality, not the president and his advisors.16 Bush and those who served at his pleasure were creating legal doctrine contrary to long-standing Supreme Court jurisprudence similar to Wilson’s National War Labor Board. This was a power similar to that which kings of England once held before it was taken away because of abuse.
The Torture Memos, as they are collectively referred to, comprise a cache of classified OLC, White House, and internal Department of Defense documents authorizing and creating the legal standards for “constitutional” torture, as oxymoronic as that sounds.17 Of the more notable documents, two memos were written by then Assistant U.S. Attorney General Jay S. Bybee and one letter by John Yoo. Of the remaining authorizations and documents, some were written by Defense Secretary Donald Rumsfeld (one of which included an unpleasant little “joke” about elongating stress position duration).18
The first document, Standards of Conduct for Interrogation under 18 U.S.C. §§2340–2340A, (OLC standards), is a memorandum from Bybee to Attorney General Alberto Gonzales.19 Title 18, Section 2340 of the U.S. Code defines torture, and Section 2340A criminalizes torturing or attempting to torture under the color of lawful authority.20 This statute represents the principle embodied in the Constitution that no one shall be subjected to “cruel and unusual punishments.”21 Section 2340 defines torture as intentional behavior by a governmental person “intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”22 The law further criminalizes prolonged mental duress torture such as threats against the person or life of the individual or another person.23 Also prohibited is the use of “procedures calculated to disturb profoundly or affect the senses or the personality.”24
Bybee’s memo offered a “creative” interpretation of that statute, which vastly expanded the powers of the executive over the physical person and inherent dignity of war prisoners, reviving the tradition of English royal torture warrants.25 The OLC standards gave a medieval interpretation of what the anti-torture statute meant:
Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. . . . We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.26
Bybee, who now sits on the U.S. Court of Appeals for the Ninth Circuit, authored one of the most morally groundless, ethically repugnant, logically dubious, and constitutionally challenged sentences in American history, and George W. Bush probably rejoiced when it was read to him.
Further, the memo adopted the conclusion that in the course of conducting the war, “enforcement of the statute would represent an unconstitutional infringement of the President’s authority to conduct war.”27 The president’s authority to conduct war, according to Bybee, Yoo, and their colleagues, superseded the natural right to be free from punishment without conviction, the human right to be governed by the plain meaning and traditional understanding of the law, and the constitutional right to due process.
The memo noted that the Torture Victims Prevention Act of 1991, which was signed into law by President George H. W. Bush and created a right of action in U.S. courts against foreign officials who tortured individuals, would not apply to U.S. officials—and certainly not the president—but that the standards and case law would provide guidance.28 Cases under the torture statute itself could provide no guidance, as the first prosecution under it began in 2006.29 The precedent of an imperial presidency that Bush set, expanding upon Clinton, would be used by his successor to assert an even more extreme question regarding the natural right to life. He would use it to justify murder.
In reaching the conclusion that torture must involve pain akin to organ failure, Bybee began by explaining that “Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture.”30 The memo compared severity of pain that rises to the legal level of torture not to police interrogations, prisoner of war interrogations, or any sort of legal or procedural context involving confinement, but to the medical definition of an “emergency condition” for insurance health benefit reasons.31 This statute provided restrictive enough language to provide a basis, albeit a totally irrelevant and frivolous one, for a broad definition of how severe pain must be for it to constitute torture.32 It is inconceivable that the congressional drafters of an insurance benefit statute, pre-Obamacare, thought they were defining torture.
Even more curiously, in looking to what would rise to mental torture under the Act, Bybee would note that the prolonged prong of the torture statute required a definition of prolonged which the U.S. Code did not provide.33 Bybee would again ignore the guidance of any sort of police or war interrogation common law, which provides an extensive body of cases on when and how “prolonged” mental duress could constitute cruel and unusual punishment, and instead looked to the dictionary, which provided the broader definition that Cheney and Bush were seeking.34
In all, Bybee would conclude that seven conditions would constitute torture, some of which, as will be discussed below, clearly contradicted even these minimally human standards: “(1) severe beatings using instruments such as iron barks, truncheons, and clubs; (2) threats of imminent death, such as mock executions; (3) threats of removing extremities; (4) burning, especially burning with cigarettes; (5) electric shocks to genitalia or threats to do so; (6) rape or sexual assault, or injury to an individual’s sexual organs, or threatening to do any of these sorts of acts; and (7) forcing the prisoner to watch the torture of others.”35
Relying on international decisions, the memo would, however, justify using stress positions, sleep deprivation, sensory deprivation, hooding, and diet reduction, despite precedent calling these cruel and unusual punishment.36
Moreover, the Bybee torture memo managed to find an extensive list of U.S. precedents where “the defendant tortured the plaintiff” and stuffed the precedents into an appended list.37 Notably on that list was Daliberti v. Republic of Iraq, where the D.C. District Court found that five days of enduring diet restriction and sleep deprivation, stripping, threatening extreme physical duress, and blindfolding were “more than enough” to fall within the ambit of the Torture Victim Prevention Act.38 America was about to step into such illustrious human rights company as Hussein’s Iraq, which George W. Bush many times stated he invaded in order to put an end to Saddam’s “torture chambers” and “rape rooms.”39 The memo would also instruct its readers that they could invoke necessity and the principle of national self-defense to justify their actions, subjecting their decisions to a utilitarian and arbitrary moral calculus that could theoretically justify any behavior by government agents.40
Bybee’s second torture memo was even more chilling. Entitled “Interrogation of al Qaeda Operative,” it specifically authorizes ten “interrogation” methods: “(1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard.”41 Some portions of it regarding the use of insects are blacked out even today.42 Detainees would be subjected to such treatment by CIA operatives and to far worse treatment at the hands of third parties to whom they were rendered.
The third memo of importance is an untitled letter from Yoo to Gonzales.43 Essentially, it outlined the legal arguments for avoiding international criminal jurisdiction under the Convention Against Torture because of a more restrictive U.S. intent requirement, justifying the programs under international law.44 Now no obstacle—natural, constitutional, or international—could obstruct the president’s exercise of unbridled power over the personhood of his war prisoners.
The Cheney Program: Under the Color of Law
Much like the World War Congresses, the War on Terror Congresses have been unceasingly adherent to the executive in matters of national security.* In the beginning, the Bush administration’s rendition and torture program was an “ad hoc operation with prisoners stuffed into shipping containers.” However, Cheney’s secret interrogation program would expand quickly upon Clinton’s use of PDD 39 “authority”:
Eventually the CIA would build up its own network of secret “black sites” in at least eight countries, including Thailand, Poland, Romania, Mauritania, Lithuania and Diego Garcia in the Indian Ocean. But in the beginning, lacking its own secret prisons, the Agency began funneling suspects to Egypt, Morocco and Jordan for interrogation. By using foreign intelligence services, prisoners could be freely tortured without any messy congressional inquiries.
. . . The administration also unilaterally decided to reduce the Gang of Eight members of Congress [privy to intelligence briefings] to just four: the chairs and ranking members of the House and Senate intelligence committees. Those members were prohibited from discussing these briefings with anyone. In effect, it meant that Congress had no oversight of the . . . program. And that was exactly how Cheney wanted it.45
The United States was in illustrious company: Mauritania did not abolish slavery until 1981 and didn’t criminalize owning slaves until 2007, the very last country to do either.46
However, the Bush administration, driven by the idea of a completely imperial executive, soon discovered that the CIA would have too many lawyers and too much oversight for their liking; they wanted a clandestine war.47 Rumsfeld, who had become jealous of Cheney’s standing at the forefront of defense policy, advocated a more independent use of the military to avoid any congressional oversight because war acts wouldn’t show up in the intelligence briefing of covert acts.48 Cheney agreed, and the administration would use the war power in this manner to claim state secrecy in “the most controversial and secret activities.”49
In order to carry out these operations, the Joint Special Operations Command (JSOC), the most elite of the Special Forces, would rise under Rumsfeld, Cheney, and the presidential war power to become the administration’s personal, global, secret police.50 Rumsfeld and Cheney would build up JSOC to conduct operations that the CIA had been doing—but without the accountability and with the reach of a global battlefield—and downgrade the CIA’s role. The CIA’s fall from grace was precipitated by its refusal and inability to fall into lockstep on invading Iraq by providing the necessary intelligence to justify war.51
Because the CIA could not produce intelligence suggesting Iraq had WMDs or was linked to 9/11, Rumsfeld and Cheney switched the responsibility for that to Rumsfeld’s Defense Department in March 2002.52 JSOC personnel and Rumsfeld, observing the tactics used by the CIA, decided they were insufficiently gruesome to elicit more effective responses.53 That’s when the United States created its own torture program, extrapolated from the Special Forces’ dreaded Survival, Evasion, Resistance, and Escape (SERE) program.54
“The SERE program was created to introduce US soldiers, sailors, and airmen to the full spectrum of torture that ‘a totalitarian evil nation with a complete disregard for human rights and the Geneva Convention’ could use on them if captured.”55 SERE was built on the lessons of “Communist China, North Korea, the Vietcong, Nazi Germany, and scores of other regimes and terror groups.”56 Over the course of 2002, the administration would reverse engineer an interrogation program from the SERE program.57 The CIA was the primary administrator of the Cheney Program, but eventually JSOC would usurp it and run a parallel program because of the benefits of “greater flexibility and far less oversight.” Despite later denying it, congressional leadership, such as then House Minority Whip Nancy Pelosi, was briefed on tactics being used.58
In December 2002, CIA Director George Tenet claimed that the United States had already detained more than three thousand suspected al Qaeda operatives in secret prisons in more than a hundred countries.59 President Bush publicly admitted that the CIA and JSOC secretly subjected about one hundred detainees to torture.60 Later reports would put the number of persons tortured under the “enhanced” techniques at 136, but “[t]here may be many more individuals.”61 The International Committee of the Red Cross would later report what would happen to military detainees upon processing for military custody:
The detainee would be photographed, both clothed and naked prior to and again after transfer. A body cavity check (rectal examination) would be carried out and some detainees alleged that a suppository (the type and effect of such suppositories was unknown by the detainees) was also administered at that moment.
The detainee would be made to wear a diaper and dressed in a tracksuit. Earphones would be placed over the ears, through which music would sometimes be played. He would be blindfolded with at least a cloth tied around the head and black goggles. . . .
The detainee would be shackled by [the] hands and feet and transported to the airport by road and loaded onto a plane. He would usually be transported in a reclined sitting position with his hands shackled in front. The journey times . . . ranged from one hour to over twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if necessary was obliged to urinate and defecate into the diaper.62
Moreover, once a detainee’s initial processing was complete, the treatment only got worse. The Bush administration’s secret prisons were torture mills. In his most recent book, Dirty Wars, Jeremy Scahill provides incredible detail about the treatment and selections of prisoners.
Between 2002 and 2003, the render and torture program was primarily a CIA operation.63 These extraordinarily rendered individuals would be locked in solitary confinement, sometimes for years on end, with their families knowing nothing of where they were.64 Masked men interrogated them:65
During the course of their imprisonment, some of the prisoners were confined in boxes and subjected to prolonged nudity—sometimes lasting for several months. Some of them were kept for days at a time, naked, in “stress standing positions,” with their “arms extended and chained above the head.” During this torture, they were not allowed to use a toilet and “had to defecate and urinate over themselves.” Beatings and kickings were common, as was a practice of placing a collar around the prisoner’s neck and using it to slam him against walls or yank him down hallways. Loud music was used for sleep deprivation, as was temperature manipulation. If prisoners were perceived to be cooperating, they would be given clothes to wear. If they were deemed uncooperative, they’d be stripped naked. Dietary manipulation was used—at times the prisoners were put on liquid-only diets for weeks at a time.66
Prisoners were also told that no legally enforceable rules applied to their detention, and some were waterboarded.67 Like the Soviet Union’s secret police, the CIA and JSOC made rendered individuals simply disappear.68 Detainees were also selected arbitrarily, without regard to whether they were “complicit,” “innocent,” “knowledgeable,” or “truly clueless.”69
However, the military interrogations were the most brutal and unquestionably wrong acts of the Bush administration’s exercise of war power. Because the CIA’s operations were “not harsh enough,” Cheney created the parallel JSOC secret interrogation operation.70 The JSOC operation was run out of many camps, but this discussion will focus on a few of the better-documented incidences: One from the infamous Guantanamo Bay (Gitmo) Detention Center, which this writer visited in 2003, and the other at Camp “Nasty-A—Military Area” (NAMA), a former Hussein torture facility the JSOC occupied and resurrected, leaving the “meat hooks that hung from the ceiling during the Iraqi dictator’s reign of terror in place for their use,”71 and some from the military prison in Bagram, Afghanistan.
Mohamedou Ould Slahi was captured, rendered in Jordan at the behest of U.S. officials.72 While there, he was starved until he “looked like a ghost” and subjected to interrogation about his role in the Millennium Plot (a planned attack on Los Angeles International Airport and the USS The Sullivans that law enforcement foiled).73 Prisoners like Slahi who were rendered to Jordan were “interrogated with ‘electric shocks, long periods of sleep deprivation, forced nakedness, and made to sit on sticks and bottles,’ the latter being ‘a form of sexual violence,’ according to another former Jordanian detainee.”74
Other prisoners rendered from U.S. custody to places like Jordan suffered far worse fates. One al Qaeda operative, Binyam Mohamed, was rendered to Morocco for “ ‘unspeakable torture’ ”:
“They took the scalpel to my right chest. . . . Then they cut my left chest. This time I didn’t want to scream because I knew it was coming,” Mohamed said, “One of them took my penis in his hand and began to make cuts. He did it once, and they stood for maybe a minute, watching my reaction. One of them said it would be better to cut it off, as I could only breed terrorists.”
Mohamed said he signed the confessions put in front of him, and then endured SERE-style “brainwashing.” . . .
[Military] [c]omissions prosecutors ridiculed such claims. “If we examine Binny’s [penis],” one joked while relaxing at a bar, “It’ll be to look for [his defense counsel’s] teeth marks.”75
The rendition and torture program had obviously violated all legal and ethical boundaries for custodial care, including genital mutilation and threats of castration.
Slahi was then transferred to U.S. custody at a former Soviet installation, the Bagram Theater Internment Facility in Afghanistan, in June 2002 via a process the same as the one the CIA used for new detainees; the FBI would receive custody of him in Gitmo a month later.76 He was given the same respect a person in civilian custody would receive in accord with due process; according to the president that respect was not a right that Slahi had by virtue of his humanity, but a benefice of the president.77
The president and his army could take it away. And in February 2003, they did: Slahi was transferred to military custody.78 Jess Bravin in his book The Terror Courts detailed the military’s abhorrent treatment of Slahi:
[Y]elling, strip searches, shaving the head and beard, and twenty-hour days. Water would be poured on Slahi’s head to “enforce control.” He could be ridiculed, placed in a mask, made to wear signs with Arabic labels like “liar,” “coward,” or “dog.” Dogs could be brought in “to bark and agitate” him. Slahi himself could be forced to act like a dog—collared, barking, and performing tricks.
He could be treated as a woman and forced to wear a burka or confronted with a female interrogator in “close physical contact.” The plan called for preventing Slahi from praying or, alternatively, forcing him to worship a stag idol. Violating such “religious taboos” would “reduce the detainee’s ego and establish control,” the plan explained. . . .
. . . [The torture program] was designed, the document said, to “replicate and exploit the ‘Stockholm Syndrome’ between detainee and his interrogators.” Successfully implemented, “the subject feels that he is about to be killed,” the NCIS [Naval Crime Investigative Service] chief psychologist, Michael Gelles, wrote regarding a similar special projects plan. . . .
Other female interrogators removed their camouflage tops and rubbed their breasts against the shackled prisoner, fondled his genitals, insulted him, and laughed at him. Photographs of the reproductive process, of vaginas and birth canals and babies, were plastered on the walls. A woman interrogator ridiculed him for failing to impregnate his wife.79
The constitutional and human rights violations abounded. In any U.S. criminal jurisdiction, doing that to a prisoner would be torture, abuse, and sexual abuse. Inmates are given robust protection from having their worship restricted, let alone being forced to worship a false idol.80 Another Guantanamo inmate, Qahtani, was subjected to the military’s “Varsity plan”: A torture scheme approved by Rumsfeld that “focused on sexual and excretory humiliations, including forced enemas.”81 His military prosecutors jocularly referred to him and others subjected to similar treatment as “ ‘enema combatant[s].’ ”82
Ahmed al-Darbi was subjected to JSOC’s version of the Cheney Program, the one that used the broader extension of presidential war powers rather than civilian covert authorities like the CIA employed. In 2004, Darbi finally trusted investigators enough to talk about his abuse:
Two CITF [Counterintelligence Task Force] agents interviewed Darbi over two days. The Bagram he described was a chamber of horrors, and he personally had witnessed soldiers torturing an Afghan man named Dilawar, a taxi driver mistakenly held as a terrorist. From his own cage, Darbi had watched a screaming Dilawar suspended from his arms for two days, his feet dangling above the ground, as soldiers beat him. Dabi said he heard—correctly, it turned out—that Dilawar died soon thereafter.
Darbi’s own experience involved continuous pain, degradation, and fear. “His hands were cuffed above his head, his face was sprayed with water and pepper was blown onto his face. He was dragged and thrown against walls. The dragging and being thrown were considered normal things that occurred [every] day,” the agents wrote.83
His interrogators threw used toilet paper at him, made him defecate in public streets, threatened to sodomize him on multiple occasions, and put their genitals near his face.84 At one point, an interrogator showed Darbi a condom and offered to demonstrate its use on him.85 “Inmates [at Bagram] often were subjected to enemas.”86 Two prisoners would die at Bagram under interrogations and accountability and oversight systems (or a total lack thereof) created under the color of authority of the president’s war powers and in clear contravention of the Torture Statute and Due Process Clause.87
Camp NAMA provided another macabre image of JSOC torture mills in action. After being captured, the combatant would be “place[d] . . . under the guard of soldiers he had just been trying to kill” for three days.88 Unsurprisingly, incidents of mistreatment followed.89 When the captives were finally interrogated, it got worse:
The interrogations [in the punishment for some reason room] often incorporated extremely loud music, strobe lights, beatings, environmental and temperature manipulation, sleep deprivation, twenty-hour interrogation sessions, water and stress positions, and personal, often sexual, humiliation. The forced nudity of prisoners was not uncommon. Almost any act was permissible against the detainees as long as it complied with the “No Blood, No Foul” motto. But, eventually, even blood was okay.
One former prisoner—the son of one of Saddam’s bodyguards—said he was made to strip, punched repeatedly in the spine until he fainted, was doused with cold water and forced to stand in front of the air conditioner and kicked in the stomach until he vomited. Prisoners held at other facilities also described heinous acts committed against them by interrogators and guards, including sodomizing detainees with foreign objects, beating them, forcing water up their rectums and using extreme dietary manipulation—nothing but bread and water for more than two weeks in one case.
Members of the task force would beat prisoners with rifle butts and spit in their faces. One member of the task force reported that he had heard interrogators “beating the s— out of the detainee.” . . . On at least one occasion, they abducted the wife of a suspected insurgent being hunted by the task force “to leverage the primary target’s surrender.” The woman was a twenty-eight-year-old mother of three who was still nursing her six-month-old baby. After interviewing numerous members of the task force at NAMA, Human Rights Watch concluded, “the abuses appear to have been part of a regularized process of detainee abuse—‘standard operating procedure.’ ”90
The evidence points conclusively to a systematic, presidentially approved, vice presidentially directed, top-to-bottom, unilateral program to vitiate the natural, constitutional, and lawful right to be free from torture and cruel and unusual punishments. These were Bush’s Japanese prison camps, but he didn’t have FDR’s equivalent of a World War II victory over a tyrant who attacked the United States to secure a relatively popular place in mainstream history.
Although not done pursuant to any order, the CIA’s version of the program contributed to the largest public human rights shaming the U.S. government has experienced in recent memory. The policy of essentially restrictionless torture, endorsed by the CIA, led to the creation of a culture of zero-restriction treatment among the Military Police (MPs) at the “U.S.-run gulag,” Abu Ghraib.*
Detainee treatment at Abu Ghraib became public in 2004, discussed below, causing immeasurable global damage to the credibility of the United States as a defender of natural and civil liberty. According to the initial Abu Ghraib investigator, Army Maj. Gen. Antonio M. Taguba, the prison’s MPs engaged in similar treatment to the JSOC camps described above, but also in much more heinous treatment of which there was video or photographic evidence, including “ ‘a video of a male American soldier in uniform sodomizing a female detainee,’ ” and images of “ ‘torture, abuse, rape and every indecency.’ ”91
Even under the broadest reading of the Constitution, war powers do not permit the president and his military agents knowingly or even negligently to permit torture. The president and his senior officials enormously expanded war powers to effect inhumane and shameful treatment upon U.S. prisoners92—truly among those in society most at the mercy of the government and its agents—while concentrating power in the hands of a few depraved individuals who carried out this systematic regime of torture under an ideological, imperial, unitary presidency.93 These detainees were not just tortured with programs designed from the best of totalitarian torture regimes for the purposes of war under the president’s power to defend the realm—or necessity as Bybee’s memos strain to argue—but in no small part to provide a basis for one of the most unjustifiable wars in U.S. history.
That is the penultimate height of power of the noble lie and the imperial presidency, done chillingly with medieval brutality. The zenith of the imperial president’s war power would be achieved by Bush’s successor, Barack H. Obama: The unilateral “right” to adjudicate by secret fiat whom of his “subjects” are enemies of the state and then to execute them without trial.
Bush’s power and sanction of torture would be challenged by the other two branches of the government—Congress and the Supreme Court—and his own advisors in the OLC.
The President’s Advisor Tries to Kill the Policy
In 2004, Abu Ghraib’s regime of systematic prisoner abuse became a widely public matter when a segment about it aired on CBS’s 60 Minutes.94 After that, there was increasing public pressure for investigation of the abuses in the detainee program, and the other branches would challenge the Bush administration’s power to torture. Moreover, Jay S. Bybee, the former head of the OLC, was appointed to sit on the Ninth Circuit Court of Appeals in 2003 (before his Torture Memos became public). His departure from OLC left an opening that would be filled first by the other Torture Memo author John Yoo and then by Professor Jack Goldsmith in October 2003.95
Goldsmith, as it would later be revealed in a 2007 New York Times article, had been attempting to get OLC to rescind Yoo’s August 2002 opinion;96 he believed the legal reasoning to be poor at best.97 After Abu Ghraib, he gained the momentum to do so, and he withdrew Yoo’s memo after it was leaked.98 It was the first time an administration had reversed its own OLC memo on a grave matter.99 However, Goldsmith resigned in June 2004, citing the fact that his colleagues in the administration doubted his “reliability” after the withdrawal of Yoo’s memos.100 The next acting OLC head, Daniel Levin, expanded the definition of torture so it was consistent with what the prior Yoo opinion authorized101 and thus consistent with Cheney’s wishes.
In 2005, the next OLC acting head, Steven Bradbury, wrote three Torture Memos, effectively reauthorizing the previously permitted Yoo torture procedures.102 After Jack Goldsmith resigned, the Senate would not confirm anyone as the full-time head of OLC.103
The Detainee Treatment Act of 2005 and the Non-Veto Veto
In May 2005, the New York Times brought to light the “brutal” circumstances surrounding the deaths of two detainees at JSOC’s Bagram Prison and Abu Ghraib.104 Shortly thereafter, the public demanded better respect of human rights from the president and the Pentagon, but as was just discussed, the Bush administration was none too keen to give up such a power once seized. Congress, however, rose to the occasion.
In 2005, Congress passed the Detainee Treatment Act of 2005 (DTA).105 The Act created “Combatant Status Review Tribunals,” whose decisions were appealable to a regular circuit court.106 The Act prohibited the president and the armed forces from using the reverse-engineered SERE techniques, yet it approved the techniques in the Army Field Guide, which are torturous, and thus unlawful, yet infinitely more humane and less degrading.107 What has become of us as a people that we now discuss gradations of torture?
The DTA granted combatants anywhere held by the Department of Defense or in U.S. custody generally the writ of habeas corpus, which the Constitution mandates only Congress may suspend in times of rebellion and had been unavailable to detainees by executive fiat.108
President Bush made the nominal concession of signing the Act into law, but in his signing statement declared the following:
The executive branch shall construe . . . the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. . . . Finally, given the decision of the Congress reflected in . . . [the part of Act pertaining to habeas corpus], shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.109
President Bush, known for sounding tongue-tied, engaged in Orwellian doublespeak. Somehow, Bush believed that he had the power to suspend the writ of habeas corpus for persons in U.S. custody because the constitutional authority of the unitary president, per the Bush administration, is limitless over the individual in wartime. The signing statement should be read as what it is: A veto. The president conducted himself accordingly.
Hamdan v. United States: The Supreme Court Is Angered
Before the Detainee Treatment Act, in 2004, the Supreme Court recognized that the Constitution protected the right to habeas corpus to all detainees under U.S. control in the first detainee case, Rasul v. Bush.110 Eight hours after hearing combined oral argument on April 28th 2004 for the second and third detainee cases to reach the Supreme Court, Rumsfeld v. Padilla and Hamdan v. United States, the Abu Ghraib scandal hit the news.111 During oral argument earlier that day, responding to a pointed line of questions on the ordered torture of “ ‘harmless, detained enemy combatant[s],’ ” Deputy Solicitor General Paul Clement tritely stated to the Court, “ ‘Well, our executive doesn’t [order torture].’ ”112
In 2006, the Supreme Court heard Hamdan v. Rumsfeld.113 The Hamdan Court held that Common Article 3 of the Geneva Conventions applies in full to detainees in U.S. custody.114 Common Article 3 prevents “outrages upon personal dignity, in particular, humiliating and degrading treatment,” as well as violence against a person in custody that is “cruel treatment and torture.”115
President Bush responded to what he saw as encroachments on his imperial, unitary prerogative. In a 2007 executive order and totally ignoring Hamdan, he announced that based on his and congressional action and pursuant to “the authority of the President to interpret the meaning and application of the Geneva Conventions,” Common Article 3 applies to detainees, subject to his interpretation.116
Unsurprisingly, the president “hereby determine[d] that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3.”117 Moreover, in July 2007, Bradbury authored an OLC memo which would—in a footnote—state that in light of the Military Commissions Act of 2006, discussed above, the president may reassert “his pre-Hamdan conclusion that Common Article 3 does not apply to the armed conflict against al Qaeda,” or “lawfully . . . reassert his pre-Hamdan interpretation of the treaty” by administrative interpretation.118
Five days before President Bush’s second term in office was to end, Bradbury issued an OLC memo recanting the Bush view of the allocation of war powers between the president and Congress. That is the largest concession any branch of government could get from Bush on the power to torture.119 His successor would make modest concessions, scaling back the rendition and torture program to more Clintonesque levels.*
Perhaps the legacy for which George W. Bush will best be remembered is his use of torture. For all his silly-sounding and amoral efforts to redefine and hide it, its potency shall always stick to Bush’s name. Yet no practice in the history of humanity has been more consistently condemned. As we shall see, he even tried to make it a tool for prosecutors.
* Commonly, perhaps erroneously, attributed to Fyodor Dostoyevsky. Regardless of its accuracy, the attribution captures the heart of Dostoyevsky’s later work on the miserable conditions society imposes on prisoners who have been convicted in some way of violating the state’s wishes. See Fyodor Dostoyevsky, The House of the Dead (1862).
* Later on, in President Obama’s second term, however, this would show signs of changing.
* “Several Army and Department of Defense investigations found that the CIA presence may have contributed to the abuse committed by military police. ‘There was at least the perception, and perhaps the reality, that non-DOD agencies had different rules regarding interrogation and detention operations,’ an investigation report by Lt. Gen. Anthony R. Jones concluded. ‘Such a perception encouraged soldiers to deviate from prescribed techniques.’ ” Michael Scherer and Mark Benjamin, “Other Government Agencies,” Salon, March 14, 2006, http://www.salon.com/2006/03/14/chapter_5/. See Jeremy Scahill, Dirty Wars: The World Is a Battlefield (New York: Nation Books, 2013), 160.
* The debate over torture presents a perfect opportunity to demonstrate the difference between neoconservative and classical liberal philosophy. In the Republican Party, there are neoconservatives and classical liberals. Both sides want less government intrusion into the economy because of a robust belief in property rights and markets, but classical liberals believe that these rights against interference extend from personhood, which axiomatically encapsulates the private and personal realm. Thus, neoconservatives can justify majoritarian stripping of personhood rights like the right to bodily integrity, which precludes torture, trouncing social natural rights like privacy, and oppressing the rights of gays to marry whom they love. Classical liberals consider such incursions unnatural and abhorrent.