Our journey toward Abu Ghraib began in earnest with a single document -- written and signed without the knowledge of the American people
On February 7, 2002 -- ten years ago to the day, tomorrow -- President George W. Bush signed a brief memorandum titled "Humane Treatment of Taliban and al Qaeda Detainees." The caption was a cruel irony, an Orwellian bit of business, because what the memo authorized and directed was the formal abandonment of America's commitment to key provisions of the Geneva Convention. This was the day, a milestone on the road to Abu Ghraib: that marked our descent into torture -- the day, many would still say, that we lost part of our soul.
Drafted by men like John Yoo, and pushed along by White House counsel Alberto Gonzales, the February 7 memo was sent to all of the key players of the Bush Administration involved in the early days of the War on Terror. All the architects and functionaries who would play a role in one of the darker moments in American legal history were in on it. Vice President Dick Cheney. Attorney General John Aschroft. Secretary of State Donald Rumsfeld. CIA Director George Tenet. David Addington. They all got the note. And then they acted upon it.
When we talk today of the "torture memos," most of us think about the later memoranda, like the infamous "Bybee Memo" of August 1, 2002, which authorized the use of torture against terror law detainees. But those later pronouncements of policy, in one way or another, were all based upon the perversion of law and logic contained in the February 7 memo. Once America crossed the line 10 years ago, the memoranda that followed, to a large extent, were merely evidence of the grinding gears of bureaucracy trying to justify itself.
There will likely be other opportunities in 2012 to look back at some of those other memos. Perhaps Jay S. Bybee himself, inexplicably rewarded for his role in the scandal by getting a federal judgeship, will say something. Let's leave that for the dog days of August. Today is a day instead to look at one of the first of these odious documents. It is a day to note how simple and easy it was, it still is, for political leadership to make monumental decisions on our behalf without really telling us -- or by simply telling us something that isn't true.
This is not a nostalgic indictment of the Bush Administration's approach to the detainees. Ten years later, the topic is still timely. Right now, another administration is justifying another extraordinary departure from American legal policy-- the assassination of U.S. citizens abroad, with drone strikes, in a secret manner, without affording those citizens any due process. Trust us, the Bush folks said, when it comes to treatment of detainees. Trust us, the Obama White House says, now when it comes to which citizens we are entitled to kill without trial.
Before the Memo
On September 18, 2001, just one week after the terror attacks upon America, President Bush signed the Authorization for use of Military Force. He did this a mere four days after Congress had passed the extraordinary measure by overwhelming margins (98-0 in the Senate, 420-1 in the House of Representatives). The Congressional authorization was essentially a blank check to the executive branch to go after the people who had taken down the Twin Towers. The U.S. now was authorized "to use all necessary and appropriate force" against them.
This language -- with its obvious and ominous international design -- immediately raised the eyebrows of the folks at the International Committee of the Red Cross. They smelled a rat. And so they shared their concerns with the State Department and then they went to the United Nations. On October 11, 2001, exactly one month after the attacks, a U.N. High Commissioner issued this brief letter reminding his host country of the "non-derogable nature" of its obligation to the Geneva Convention against Torture. The UN wrote:
The Committee against Torture is confident that whatever responses to the threat of international terrorism are adopted by State parties, such responses will be in conformity with the obligations undertaken by them in ratifying the Convention against Torture.
In conformity with the obligations undertaken. By early January 2002, lawyers for the White House and the Defense Department had ginned up an argument they reckoned they could sell with a reasonably straight face, both to their superiors in the Bush Administration and then, if need be, to the international community or a future court of law. We only have to be in conformity with the obligations undertaken by the Geneva Convention, they argued, if we have obligations under the Convention, and we only have those obligations if and when we say so.
It is at this point that Alberto Gonzales played another of his dubious roles in U.S. history. As White House counsel, he first pitched the argument to his old Texas pal, the president, who promptly bought it. No surprise. Even back then, the two had a long history of enabling one another's legal malfeasance. However, Gonzales got push-back from Secretary of State Colin Powell, the decorated war hero, who argued that U.S. soldiers would pay the ultimate price for their government's decision to blow off the Geneva Convention on Prisoners of War.
This prompted Gonzales to write a memo, on January 25, 2002, that is still chilling to read. In it, he argued that the War on Terror required new interpretations of old rules. He wrote: "This new paradigm
renders obsolete Geneva's strict limitations on questioning of enemy prisoners
and renders quaint some of its provisions requiring that captured enemy be afforded
such things as commissary privileges." By making the War on Terror sound like an episode of Hogan's Heroes, in other words, Gonzales convinced President Bush to see things his way.
What the February 7 Memo Said
In retrospect, It's hard to know what is more offensive about the memo -- the policy it adopted or the language it employed in doing so. From its title on down, the two-page document sought to reassure future readers (and judges and jurors) that the administration had found a lawful balance between the mandates of the Geneva Convention on prisoners of war and the mandate government officials wished to deploy in prosecuting the War on Terror. Whatever else it was, the memo was dishonest by its own terms, a mess of inherent contradiction.
Echoing the Gonzales memo two weeks earlier, the February 7 memo began by arguing briefly that the United States was not bound by its obligations under the Geneva Convention because the international treaty applied only to "High Contracting Parties" and not stateless entities like Al Qaeda; because it contemplated "the existence of 'regular' armed forces" unlike the quasi-criminal/quasi-terrorist plotters of 9/11; and because "the new paradigm" of the War on Terror required "new thinking" about America's commitment to international norms.