Sunday, May 16, 2004

 

Bigger Than Just Abu Ghraib

Dig deeper, and it seems that the Bush Administration had created a framework for stepping away from the Geneva Conventions and allowing secret detentions.

The Roots of Torture
The road to Abu Ghraib began after 9/11, when Washington wrote new rules to fight a new kind of war. A NEWSWEEK investigation

NEW YORK - The focus of the Iraq prisoner abuse scandal shifted Sunday with a report in Newsweek magazine on whether the Bush administration established a legal basis that opened the door for the mistreatment.

Newsweek reports that, as a way to prevent a repeat of the events of Sept. 11, 2001, “Bush, along with Defense Secretary [Donald] Rumsfeld and Attorney General John Ashcroft, signed off on a secret system of detention and interrogation that opened the door to such methods.”

The story begins in the months after September 11, when a small band of conservative lawyers within the Bush administration staked out a forward-leaning legal position. The attacks by Al Qaeda on the World Trade Center and the Pentagon, these lawyers said, had plunged the country into a new kind of war. It was a conflict against a vast, outlaw, international enemy in which the rules of war, international treaties and even the Geneva Conventions did not apply. These positions were laid out in secret legal opinions drafted by lawyers from the Justice Department's Office of Legal Counsel, and then endorsed by the Department of Defense and ultimately by White House counsel Alberto Gonzales, according to copies of the opinions and other internal legal memos obtained by NEWSWEEK.

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Cut out of the process, as usual, was Colin Powell's State Department. So were military lawyers for the uniformed services. When State Department lawyers first saw the Yoo memo, "we were horrified," said one. As State saw it, the Justice position would place the United States outside the orbit of international treaties it had championed for years. Two days after the Yoo memo circulated, the State Department's chief legal adviser, William Howard Taft IV, fired a memo to Yoo calling his analysis "seriously flawed." State's most immediate concern was the unilateral conclusion that all captured Taliban were not covered by the Geneva Conventions. "In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions," Taft wrote. "I have no doubt we can do so here, where a relative handful of persons is involved."

The White House was undeterred. By Jan. 25, 2002, according to a memo obtained by NEWSWEEK, it was clear that Bush had already decided that the Geneva Conventions did not apply at all, either to the Taliban or Al Qaeda. In the memo, which was written to Bush by Gonzales, the White House legal counsel told the president that Powell had "requested that you reconsider that decision." Gonzales then laid out startlingly broad arguments that anticipated any objections to the conduct of U.S. soldiers or CIA interrogators in the future. "As you have said, the war against terrorism is a new kind of war," Gonzales wrote to Bush. "The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians." Gonzales concluded in stark terms: "In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."

Gonzales also argued that dropping Geneva would allow the president to "preserve his flexibility" in the war on terror. His reasoning? That U.S. officials might otherwise be subject to war-crimes prosecutions under the Geneva Conventions. Gonzales said he feared "prosecutors and independent counsels who may in the future decide to pursue unwarranted charges" based on a 1996 U.S. law that bars "war crimes," which were defined to include "any grave breach" of the Geneva Conventions. As to arguments that U.S. soldiers might suffer abuses themselves if Washington did not observe the conventions, Gonzales argued wishfully to Bush that "your policy of providing humane treatment to enemy detainees gives us the credibility to insist on like treatment for our soldiers."

When Powell read the Gonzales memo, he "hit the roof," says a State source. Desperately seeking to change Bush's mind, Powell fired off his own blistering response the next day, Jan. 26, and sought an immediate meeting with the president. The proposed anti-Geneva Convention declaration, he warned, "will reverse over a century of U.S. policy and practice" and have "a high cost in terms of negative international reaction." Powell won a partial victory: On Feb. 7, 2002, the White House announced that the United States would indeed apply the Geneva Conventions to the Afghan war—but that Taliban and Qaeda detainees would still not be afforded prisoner-of-war status. The White House's halfway retreat was, in the eyes of State Department lawyers, a "hollow" victory for Powell that did not fundamentally change the administration's position. It also set the stage for the new interrogation procedures ungoverned by international law.

What Bush seemed to have in mind was applying his broad doctrine of pre-emption to interrogations: to get information that could help stop terrorist acts before they could be carried out. This was justified by what is known in counterterror circles as the "ticking time bomb" theory—the idea that when faced with an imminent threat by a terrorist, almost any method is justified, even torture.

With the legal groundwork laid, Bush began to act. First, he signed a secret order granting new powers to the CIA. According to knowledgeable sources, the president's directive authorized the CIA to set up a series of secret detention facilities outside the United States, and to question those held in them with unprecedented harshness. Washington then negotiated novel "status of forces agreements" with foreign governments for the secret sites. These agreements gave immunity not merely to U.S. government personnel but also to private contractors. (Asked about the directive last week, a senior administration official said, "We cannot comment on purported intelligence activities.")

John Barry, Michael Hirsh and Michael Isikoff, Newsweek

*Emphasis added.

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