Cheating Justice (20 page)

And as for reliance, as I noted earlier, the president did not, in fact, rely
on memos, having authorized brutal interrogations prior to their writing. But the president was not entitled to rely upon the torture memos, which were patently poor legal work—called “insane” when reviewed by a successor to Yoo at the Justice Department. Since, as the president notes, he is not a lawyer, he had a higher obligation—and that was to secure an honest opinion about the law. What the president sought instead was a legal opinion that would provide a shield—a golden shield to protect himself from the application of the criminal law.

It should be noted that John Yoo was later investigated by the Justice Department's Office of Professional Responsibility to determine whether he had engaged in professional misconduct in writing the torture memos. Despite the lack of cooperation of most high-level staff, including former attorney general John Ashcroft and Cheney's lawyer and advisor, David Addington, the professional responsibility officers determined that the memos showed blatantly bad lawyering by Yoo, poor logic, the failure to refer to important cases, and intentionally false statements.
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The decision to cite him for professional misconduct was overruled by a Justice Department bureaucrat,
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who said that it was a “close question” whether Yoo's memos were intentionally misleading but decided that they merely showed poor judgment. More central here, this determination does not relieve Yoo or Bush or Cheney or others along the chain of decision making from legal liability under the anti-torture law.

(Lawyers themselves are not immune from prosecution for torture or war crimes, either. One of the Nuremberg trials—the “Justice Trial”—charged sixteen judges and prosecutors with war crimes for their part in enforcing Nazi edicts.
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As I discuss in chapter 5 on international law, several human rights groups have sought to bring charges in Spain against six Bush administration lawyers for their role in authorizing torture.)

As was established with Nixon and Watergate, the president is sworn by his oath of office to “take care that the laws are faithfully executed,” not to manipulate the system to secure an inauthentic justification and then go ahead and break the law.

The issue of good-faith reliance upon a lawyer's advice is a very limited one, and for good reason. It's most often used in tax cases. In torture cases, in which the physical and mental health of other people is at risk, as well as the nation's moral stance on human rights and its reputation in the world,
it is utterly inappropriate and insufficient as a defense for the president of the United States.

President Bush and Vice President Cheney have repeatedly defended their activities by saying that they did not commit torture. “The United States does not torture. It's against our laws, and it's against our values,” Bush stated in 2006 when fourteen “high value” detainees were transferred to Guantánamo from secret CIA prisons (black sites) around the world.
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In a speech before the American Enterprise Institute in 2009 Vice President Cheney said, “Torture was never permitted.”
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Waterboarding is clearly considered torture. “There is no question in my mind—there's no question in any reasonable human being, there shouldn't be, that this is torture. I'm ashamed that we're even having this discussion,” said Richard Armitage, deputy secretary of state in the Bush administration, about waterboarding in the film
Torturing Democracy.
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The U.S. government itself has prosecuted cases of waterboarding as torture, even against a sheriff in Texas and a U.S. soldier in Vietnam. Even President Bush refused to answer whether he would consider waterboarding torture if it were used against U.S. personnel when asked by interviewer Matt Lauer in 2010.
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And it's not just waterboarding. The enhanced interrogation techniques, used in combination and repeatedly, also constituted torture in the eyes of human rights observers.

The techniques by themselves had brutal origins. As the report by the Senate Armed Services Committee said, “It is particularly troubling that senior officials approved the use of interrogation techniques that were originally designed to simulate abusive tactics used by our enemies against our own soldiers.”
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Using these techniques, American interrogators inflicted severe pain and suffering and prolonged mental harm. Prisoners experienced harm—Abu Zubaydah, al-Qahtani, and Slahi are but three. The International Committee of the Red Cross, a monitoring body, found torture, and the U.S. government itself, in the Taguba report, found “systemic and illegal abuse” of detainees. Some of it was apparently so bad that the United States refused to release photos depicting the treatment of detainees, which, in the words of Vice President Cheney, would be “incendiary.”
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Individuals observing the treatment of detainees understood the treatment to be torture as well. Joseph Darby blew the whistle on the degrading treatment of detainees at Abu Ghraib in Afghanistan. FBI officers “separated themselves” from aggressive interrogations, according to a 370-page report by FBI inspector general Glenn Fine.
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Although the president and his team secretly attempted to redefine torture in a way that would exclude their behavior, they cannot wash away their legal violations with linguistics. Unlike the War Crimes Act, the anti-torture law was in full force and effect, and was not modified by Congress.

The president and vice president would have us believe that actions recognized as torture by observers of all sorts—cabinet officials, FBI agents, enlistees, human rights observers, international monitors—are not, in fact, torture. But this is not a sustainable argument. As Justice Felix Frankfurter wrote in a 1949 case on abusive interrogation,
Watts v. Indiana
, such a conclusion would require us “to shut our minds to the plain significance of what here transpired.”
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The evidence of torture is potent, even overwhelming. The president, vice president, and their team can repeat “it's not torture” as often as they like, but they can't shut off the minds of ordinary people to the plain significance of what happened to detainees in U.S. custody. A defense that no torture occurred will certainly fail.

While President Bush has denied that his administration engaged in torture, he and Vice President Cheney—perhaps feeling safe from prosecution—also have taken the opposite tack and claimed in subtle and more direct ways, with a wink and a nod, that the torture “worked.”

In his 2009 speech to the American Enterprise Institute, Vice President Cheney said, “Intelligence officers of the United States were not trying to rough up some terrorists simply to avenge the dead of 9/11. . . . They were trying to prevent future killings. From the beginning of the program, there was only one focused and all-important purpose. We sought, and we in fact obtained, specific information on terrorist plans.”
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When announcing the transfer of “high value” detainees to Guantánamo from hidden black sites on September 6, 2006, the president said the prisoners in this special program had “given us information that has saved innocent lives by helping us stop new attacks—here in the United States and across the world.”
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He went on the describe examples of how
lives were saved. He talked about Abu Zubaydah at length, claiming that a plethora of leads had come from an “alternate set of procedures”—something disputed by agents who were present. The president described Khalid Sheikh Mohammed and other “high value” detainees, too, and said that attacks “to kill innocent Americans” and others had been prevented—by anthrax, a car bomb in Karachi, attacks on a Marine base in Djibouti, on Heathrow or Canary Wharf in London. These same descriptions wound their way into his 2010 memoir, where he said that the detainees who were waterboarded revealed “more than half of what the CIA knew about al-Qaeda,” and that it “helped break up plots” to attack “multiple targets.”

But intelligence officers have come away with a different view. While it was true that the detainees often talked—if nothing else, to stop the mistreatment—they did not necessarily provide useful information, and, in some cases, sent armies of investigators racing to far-flung places to check out false leads.

FBI supervisory special agent Ali Soufan and his team secured actionable intelligence from Abu Zubaydah through noncoercive questioning before the CIA entered the picture with its SERE techniques, Soufan said in an op-ed in the
New York Times
in 2009.
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But there it ended. The CIA's enhanced interrogation techniques were useless in extracting actionable intelligence.

A former U.S. intelligence officer said in an investigative article by Tim Lassetter of McClatchy Newspapers in 2008, “As far as intelligence value from those in Gitmo [Guantánamo], I got tired of telling the people writing reports based on their interrogations that their material was essentially worthless.”
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Vanity Fair
writer David Rose quoted a longtime FBI counterintelligence officer in an extensive investigative report in December 2008. “Torture has made it harder,” the agent said. He estimated that 30 to 50 percent of the leads from enhanced interrogation techniques were completely worthless.
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“You get burned out, you get jaded. And you think, ‘Why am I chasing all this stuff that isn't true?'”

The CIA inspector general was also dubious about the success of the enhanced interrogation program using the SERE techniques. He said that, while detention of the suspects removed them from possibly destructive activities, “[m]easuring the success of the EITs [enhanced interrogation techniques], however, is a more subjective process and not without some
concern.” The inspector general said the “the overall effectiveness of the EITs is challenging.”

Similarly, there is not “the tiniest shred of evidence” to support the assertion that the torture of Khalid Sheikh Mohammed saved lives, said Dan Froomkin, Washington correspondent for the
Huffington Post
in a detailed story on November 22, 2010.
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Reviewing all the claims of actionable intelligence collected through enhanced interrogation techniques, he found that every one had been “thoroughly debunked.”

When asked about the value of intelligence secured from the enhanced interrogation techniques, FBI director Robert Mueller was loath to answer, wrote David Rose in
Vanity Fair.
“I ask Mueller: So far as he is aware, have any attacks on America been disrupted thanks to intelligence obtained through what the administration still calls ‘enhanced techniques'? ‘I'm really reluctant to answer that,' Mueller says. He pauses, looks at an aide, and then says quietly, declining to elaborate: ‘I don't believe that has been the case.'”

Jay Rockefeller, Chair of the Senate Intelligence Committee, concurred. “I have heard nothing to suggest that information obtained from enhanced interrogation techniques has prevented an imminent terrorist attack. And I have heard nothing that makes me think the information obtained from these techniques could not have been obtained through traditional interrogation methods used by military and law enforcement interrogators. On the other hand, I do know that coercive interrogations can lead detainees to provide false information in order to make the interrogation stop,” he said.

Torture apologists came out of the woodwork after Osama bin Laden was killed in a raid by U.S. special forces on May 2, 2011.
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They claimed that torture led to identification of his whereabouts, something that has been completely refuted by those in the know. The basis for this spurious claim is that tortured detainees mentioned the name of a bin Laden courier. But none of the “high value” detainees subjected to enhanced interrogation techniques revealed important information about the courier. Khalid Sheikh Mohammed mentioned the courier's nickname only in response to “standard interrogation” techniques and “many months” after being waterboarded, according to an article by the Associated Press.
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In any case, the CIA actually had that same information—the courier's nickname—long before Mohammed was captured in March 2003.

CIA director Leon Panetta said that the first mention of the bin Laden courier was made in 2002 by a detainee who was in another country and
not in CIA custody.
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Senator John McCain said, “Not only did the use of enhanced interrogation techniques on Khalid Sheik Mohammed not provide us with key leads on bin Laden's courier, Abu Ahmed, it actually produced false and misleading information.” In reality, it took the CIA nine years to find bin Laden, and eight years from the time that Mohammed was interrogated. As Senator McCain noted, “In short, it was not torture or cruel, inhuman and degrading treatment of detainees that got us the major leads that ultimately enabled our intelligence community to find Osama bin Laden.”
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In many instances, the intelligence agencies were frustrated with the false leads. The “leads” were sometimes used as evidence for war propaganda. Interrogators say that they were pressured to get information linking al Qaeda to Iraq, a particular interest of the Bush-Cheney team in making a case for war in Iraq. “The Bush administration based a crucial prewar assertion about ties between Iraq and Al Qaeda on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them to escape harsh treatment,” wrote Douglas Jehl in the
Washington Post
in December 2005.
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In fact, the torture techniques may have “worked” against the United States. The torture of detainees has made it impossible to bring cases against many of them. The images of Guantánamo and Abu Ghraib became recruiting tools for terrorists. Former navy general counsel Alberto Mora reported in a statement to the Senate Armed Services Committee on June 17, 2008, that officers serving the United States maintained that the first and second identifiable causes of U.S. combat deaths in Iraq were the symbols that emerged from the harsh treatment at Abu Ghraib and Guantánamo. McCain described the images of torture as the best aid for al Qaeda: “It serves as a great propaganda tool for those who recruit people to fight against us,” he said.
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