Anatomy of a War Crime

In the past few days I have been falling asleep with a perversely fascinating book by Jane Mayer, a reporter for the New Yorker, which represents the most comprehensive biography of Bush's "war on terror." The book titled "The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals," is the most detailed account (to my knowledge) of the behind-the-scenes activities of key Bush officials after September 11th in drafting the policy of torture, illegal imprisonment, and Guantanamo Bay. In short, it is a harrowing story of a war crime in the making by top US officials, including President Bush himself. There are many interesting aspects to the story but in this post I will focus on one: how did the legal infrastructure authorizing torture and indefinite imprisonment of "illegal enemy combatants" come into being following the September 11th attacks on our country.

The key officials in the Bush administration who were responsible for drafting this policy were known as the War Council and were composed of Vice President Dick Cheney's chief counsel David Addington, White House Counsel Alberto Gonzales, Pentagon's Legal Counsel William Haynes, and the now infamous Jon Yoo, who was at the time a deputy chief in the Justice Department's Office of Legal Counsel. The self-appointed War Council was thus composed of unelected lawyers with extreme far-right legal views which had been in developing since the Watergate era. The War Council reported to Dick Cheney personally who in turn controlled the flow of information to President.

The main intellectual thrust of these right-wingers, many of whom were members of the Federalist Society, came from their deep seated conviction that in the aftermath of Nixon's Watergate shenanigans, the Congress had curtailed the power of the President way too much. The mentor of the group and Cheney's long-time confidant David Addington, who would emerge as the main brainpower of the torture policy, was a firm believer in the so-called Unitary Presidency which argued that in the time of war, the President had an unlimited authority to override basically any law he wished if he declared it to be in the interest of national security. In other words, the War Council members believed in Nixon's (in)famous credo that "if President does it, it is no longer illegal." And September 11th offered a once-in-a-lifetime opportunity for these people to put their ideas into action: to emasculate the Congress and entrust the President with literally limitless power. In short it was the mobilization of the long-forgotten absolutist credo so articulately voiced by Louis XIV: "L'etat, c'est moi!" David Addington's acerbic, ironic, and far right-wing ideology was abhorrent even to the highest officials in the Bush administration. Jane Mayer quotes one of his colleagues, who was present at many of the meetings David Addington presided over, who said: "Who let this fucking lunatic run the country." In the words of another long-term colleague, "David just didn't believe in the Constitution." The War Council also cooperated with a Mormon layer by the name of James Flannigan who lived conservatism in his everyday routine (he had 14 children!). John Yoo, who would emerge as the public face of Addington, was a former Berkley law professor whose obsession with the Unitary Presidency was intensely personal: as a son of Korean immigrants he abhorred what he saw was the Supreme Court's attempts to curtail the power of President Truman to wage the Korean War (more about this later). In short, the Council was purely ideological and it was composed of highly skilled lawyers, filling the gap in the Bush administration's cabinet which consisted of very few lawyers, in contrast to Clinton's and now Obama's cabinet(both Clinton and Obama had been constitutional law professors before becoming President).

The reason why Addington emerged as the intellectual mentor of the group is because he was a long-time confidant to Dick Cheney with whom he had participated in evacuation exercises orchestrated by the US government during the first Bush and Reagan administration, in case the executive branch was ever to be wiped out in a terrorist attack. Thus, underground bunkers and threats of a massive biological/nuclear attack had dominated both, Cheney's and Addington's thinking. Addington articulated through law what Cheney felt in his gut. It was truly a scary team.

Abrogating the Geneva Convention. Cheney's minions hated international organizations and treaties and high on the list of these was the Geneva Conventions, a series of treaties on treatment of prisoners and conducts of war which had been negotiated under the leadership of the United States in the aftermath of World War I (1929) and finally in 1949 after the horrors of the Holocaust and WWII. David Addington and Co. mocked the provisions of the Geneva Conventions which mandated that states treat all prisoners humanely on the basis of our common humanity. They argued that the heinous nature of 9/11 and the viciousness of our new enemy was nothing like we had seen before. This is why in the days after 9/11 one of the main CIA people Coffer Black said "the gloves come off." But there needed to be a legal justification for this new war and the War Council led the effort to provide such.

John Yoo and Addington argued that the Geneva Conventions were "quaint" because we were facing a new and vicious enemy. They mocked the provisions of the carefully negotiated treaties which gave prisoners of war the right to athletic exercise among other things, access to fresh air, etc. They forgot to mention that these provisions were inserted at the insistence of US negotiators and eagerly ratified by Republicans and Democrats in Congress in the aftermath of WWII. Further, the War Council argued that the Geneva Conventions did not cover combatants who were not soldiers for a state and who themselves did not recognize the rules of war. In their mind, Afghanistan was a "failed state" so the members of Al-Queada and Taliban had no rights to Geneva Protections.

According to Mayer's exhaustive investigation, which included interviews with many legal scholars including some pretty conservative ones, this reading of the Geneva Conventions was simply not true and was blatantly cynical. For example, Yoo forgot to mention that while some provisions of the Geneva Conventions gave prisoners of war the right to athletic exercise the other provisions authorized the state to execute on spot those it deemed to be spies. Further, the conventions also mandated that states convene Article 5 Tribunals at times of war during which it would weed out civilians from combatants. The US had done this even at the height of the Vietcong attacks on the US soldiers and even as recently as the Gulf War in 1991. Article 5 Tribunals had become a routine practice in the Military Code of Justice. Hence, when Bush instituted the military commissions many generals were outraged at what they saw as degradation of the venerable tradition. Finally, the Geneva conventions (in letter and spirit) included all possible categories of people including those deemed to be non-state actors, like French resistance fighters in World War II. Ironically, the argument that terrorists were not included was the same argument the Vietcong used against the Americans.

What is particularly remarkable about the whole process is that Cheney and Co. cut out of the loop everyone who did not agree with the War Council. This included Secretary of State Collin Powell and his Chief of Staff Wilkerson, Condi Rice and her lawyer Bellinger who, get this, WAS IN CHARGE OF NATIONAL SECURITY! Every time a new memo would come out justifying ignoring the Geneva Conventions or authorizing illegal wiretapping, the Powell wing of the administration (which included the State Dept) would be outraged but wasn't able to do much because this is what "the Vice President wants" many would say. It was Vice President and David Addington who had the final say on every document that reached Bush's desk. They controlled the vital flow of information to Bush and this is where the ultimate power of the executive was hidden--in the flow of information.

Interrogations. The abrogation of the Geneva Conventions was the legal justification for Bush's "enhanced" interrogation policy, which eventually came to include waterboarding, chaining the prisoner to a floor in fetal position, attacks by dogs, ramming the prisoner's head through a wall (a practice the CIA learned from Israeli intelligence), nudity, food deprivation, anal intrusion with sharp objects, and the list goes on. There are even reports by several former prisoners who claimed they were threatened to be anally raped by specially trained German shepard. In short, the Cheney Council had authorized unimaginable torture. However, Yoo devised such a narrow definition of torture which clearly violated the letter and the spirit of the Geneva Conventions. More importantly, it violated the US Convention Against Torture of 1984, making these practices multiple felonies carrying maximum prison sentences.

That this is not reporting by some wide-eyed liberal journalist is confirmed by the honorable behavior of the FBI through the whole ordeal. After Bush himself ordered the CIA, run by the cowering George Tenet, to run the interrogation policy he cut out of the process thousands of FBI interrogators who had been trained for decades in anti-terrorism strategies, including interrogations, and who had a deep experience of the Middle East, and knew the intricacies of the law regulating these practices. The latter is what made Cheney distrust the FBI so much. For example, after witnessing an interrogation of an Al-Queada operative Zubayda in Afghanistan (who according to multiple reports was rammed head first through a wall and let to bleed on a bed for days), the FBI was ordered by its director Mueller to walk out and have nothing to do with the CIA interrogations. To its great credit, the FBI would consistently try to thwart the torture methods, pointing out that the CIA and the Bush administration were not only violating the US law but possibly committing a war crime. Mayer interviews many FBI interrogators with long experience in combating terrorism and Al-Queda in particular and they all argue that torture never works, it just simply makes people tell the interrogators what they want to hear. And this is where Bush becomes personally implicated.

After one of the earliest Al-Q people al-Libi was captured in Afghanistan (and he himself admitted running a terrorist camp), FBI interrogators started questioning him (this is based on Mayer's conversation with these interrogators). At their surprise he was very talkative and told them many things about the camps, terrorist activities, plans, etc. However, under intense pressure from Cheney and Bush to link Al-Q to Iraq in the prelude to the war against Iraq, CIA took over interrogations and started torturing al-Libi after which he completely shut down. The FBI was once again completely left out of the loop. Al-Libi became the first detainee to be "outsourced" to Egyptian prisoners where he was beaten severely, held in a cage for 80 hours and urinated on by the guards. Finally he started telling very confusing stories about Saddam's links to his camps and the information was dispatched to Cheney's office and eventually to Bush. Hence, Bush used it in a Cincinnati speech in which he claimed that Saddam was developing nuclear weapons in cooperation with Al-Q. What he didn't say however is that Tenet had been warned of the dubious nature of al-Libi's confessions--an independent intelligence analysis of his testimony showed up on the intra-agency computer system and anyone working at the CIA (especially Tenet) would know about it. The information also never made it to Colin Powell who used al-Libi's confession in his infamous speech to the UN Security Council justifying the war. By 2004, the CIA itself was confirming that al-Libi's testimony was a pure fabrication. Again, this was never reported to the American people. What is most remarkable to me about this story is that Bush's use of this information in a speech shows his direct knowledge of al-Libi's interrogation and might be the clearest instance of linking him personally to torture.

Mayer's brilliant description of the creation of the war on terror leaves no doubt that serious crimes were committed not JUST by individual CIA interrogators but especially by top US officials, including Dick Cheney and George Bush. What is particularly tragic is that with this policy, the Bush administration violated an honorable tradition of the US' respect for the Geneva Conventions and the rules of war. This doesn't mean there were never aberrations but they were only that--aberrations which were condemned, and corrected, but never EVER justified in legal documents.

The lawyers of the War Council ignored the long history of American jurisprudence banning torture. George Washington himself ordered his troops in the Revolutionary War to treat British prisoners humanely despite the fact that the Brits had tortured the American "terrorists" in ways that were even then seen as inhumane. Far from being an altruistic order, George Washington was a brilliant military commander who knew degrading treatment of prisoners wreaks havoc on army morale and performance. During the American Civil War, a Columbia Law Professor drafted the "Lieber Code" which remained in force until the 20th century and mandated humane treatment of military prisoners. After both world wars, America was the leading force behind the institutionalization of anti-torture laws which it has recently so blatantly and tragically violated.

I think we should all write letters to our representatives and anyone who will listen to put pressure on the Obama administration and Congress to conduct a thorough investigation of this. I have no doubt that any criminal investigation would result in a lot of formerly high-level people going to prison for very very long time. Only then will America's honor be restored.