This is an excerpt of The War in Court: The Inside Story of the Fight against Torture in the “War on Terror,” to be published by the University of California Press.
There was no fight against [US] torture, per se, before a trifecta of events in the spring and early summer of 2004 pulled back the curtain on interrogation and detention operations to reveal that the Bush administration had instituted a torture program. Before that, I was always on the lookout for news items that could confirm my sense that there was something to see, something big. Donald Rumsfeld gave that phenomenon a name: the known unknown. That phrase is one in a string of Rumsfeldisms delivered by the defense secretary at a Pentagon press briefing on February 12, 2002:
Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don't know we don't know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.
The context for these comments is important. Rumsfeld was justifying his goal to take the “war on terror” to Iraq. The known unknown to which he was referring was the contention that Saddam Hussein had an active weapons of mass destruction program. In the 1990s, UN weapons inspectors had overseen the destruction of Iraqi WMDs and in 1999, a UN panel of experts reported that “the bulk of Iraq’s proscribed weapons programs has been eliminated.” Rumsfeld didn’t accept the conclusion that Iraq no longer had WMD; his point was that just because you can’t see something doesn’t mean it isn’t there. What makes those comments so retrospectively ironic in an apocalyptic sort of way is that the fruition of Rumsfeld’s febrile dreams of war in Iraq ignited the explosions that shattered the secrecy about torture.
Rumsfeld did have a point about known unknowns, though. The “war on terror” was not launched with a well-stocked arsenal of hard, accurate information about the perpetrators, planners, and abettors of the September 11, 2001, terrorist attacks. Rather, it began as a war for information about known unknowns, a transnationalized manhunt to find and capture terrorists in order to find and capture more terrorists and in so doing, to avert the possibility of future attacks and destroy terrorist organizations and networks. As in most asymmetric wars in which states are fighting against non-state groups or non-sovereign entities, human intelligence is essential to find unconventional enemies who don’t wear uniforms or carry arms openly and in some cases—certainly in the case of al-Qaeda—don’t control swaths of territory or possess large weapons that could be spotted through aerial surveillance. The most common way for states to obtain this kind of human intelligence is to capture people alive and interrogate them. But the Bush administration’s decisions to authorize violent and degrading interrogation techniques on people taken prisoner in the “war on terror” were the fulfilment of ideological preferences, not rational imperatives. Those decisions and their consequences were secrets… for a while.
The Bush administration was able to control the narrative about the “war on terror” for a solid year-and-a-half by classifying information about the government’s war-related activities abroad and at home as well as the legal memos crafted to justify radical policy choices. In October 2001, Attorney General John Ashcroft, whose Justice Department was directing the mass roundup of Muslim immigrants inside the country, issued a memo to all federal agencies urging them to be extra-vigilant when they processed Freedom of Information Act requests. State secrecy was critical to the administration’s executive power grab because invisibility buttresses deniability about wrongdoing and fosters public compliance and gullibility. When some troubling information about prisoner abuse or a homicide in an overseas detention facility was plumbed from the shadows and reported by investigative journalists or human rights organizations, officials typically responded with frothy assurances that the government was committed to humane treatment topped off with just-trust-us assertions that secrecy was essential for national security.
That strategy to control the public narrative through secrecy and propaganda worked pretty well until the claque of neoconservatives who dominated the upper echelons of the Bush administration began pushing and planning to extend the “war on terror” to Iraq. Neocons had been hankering to re-invade Iraq since the first Gulf War ended in 1991 without storming Baghdad and toppling the regime of Saddam Hussein. After 9/11, Rumsfeld advocated starting the “war on terror” in Iraq because that country had better targets than Afghanistan and Saddam was such a photogenically reviled enemy. Although the Iraq-firsters didn’t prevail at the time because few outside their circles believed that the secular Iraqi dictator had a hand in 9/11 or was an ally of a radical Islamist like Osama bin Laden, their aspirations and influence were indicative of the ideological currents dominating the administration’s decision-making. In the Pentagon, an Office of Special Plans was set up and staffed with like-minded hawks whose mission was to find and interpret intelligence to validate Rumsfeld’s and Deputy Secretary of Defense Paul Wolfowitz’s belief that Iraq had an arsenal of WMD that had eluded the UN inspectors and that Saddam could be implicated in the 9/11 attacks. They set about taking control of the national security narrative and sidelining those in the intelligence community who didn’t believe what they wanted to be true.
When the neocons renewed their calls to attack Iraq in early 2002, the patriotic esprit de corps in the United States began to fray at the margins. A revitalized anti-war movement sprang into action with protestors waving “no blood for oil” signs at demonstrations as they tried to stop this war before it started. Anti-war demonstrations, university teach-ins, and town halls notwithstanding, a sizable majority of Americans across the political spectrum supported a war on Iraq because they were persuaded by hyperbolic contentions that Saddam had secret stockpiles of WMD and that he was in league with bin Laden, a disheartening display of the efficacy of mediatized propaganda to sway public opinion away from anything that resembled reality.
To promote the idea that Iraq posed an imminent threat to US national security, the WMD allegation was the workhorse, but what the administration really desired was evidence linking Saddam to 9/11. With the help of torture, they got it. The source was a Libyan national named Ibn al-Sheikh al-Libi (nom de guerre for Ali Muhammad Abdul Aziz al-Fakheri).
[Al-Libi was captured on the Afghan-Pakistan border in November 2001. When the CIA took possession of him, he was interrogated on the USS Bataan, which functioned as a floating detention facility. Then, in January 2002, he was extraordinarily rendered to Egypt.]
Egyptian interrogators were informed that, in CIA custody, al-Libi had said something that suggested he knew about an al-Qaeda – Iraq connection. Their questioning focused on getting him to elaborate. Other prisoners in other places were being asked the same sorts of questions in 2002 because the Bush administration wanted evidence of a connection. Al-Libi couldn’t even make up answers specific enough to satisfy his Egyptian interrogators, so they turned up the heat. He was placed in a small confinement box for about seventeen hours, but still he couldn’t come up with anything. Then he was savagely beaten and warned that this was his “last opportunity to tell the truth.” At that point, he told his interrogators that several al-Qaeda operatives had received training in Iraq for use of chemical and biological weapons. That statement made al-Libi the goose who laid the neocons’ golden egg.
In a stunning example of the deadliness of state secrets, in August 2002, CIA analysts produced a report raising serious questions about the veracity of al-Libi’s claim. The Defense Intelligence Agency had come to a similarly skeptical conclusion months earlier. This reality-check, if it were made public knowledge, would have conflicted with the administration’s objective to link Iraq to 9/11 and might have strengthened the hands of those trying to prevent the war. At a press briefing on September 27, Rumsfeld said that the link between al-Qaeda and Iraq is “accurate and not debatable.” On October 7, as Congress was about to take up the White House-backed resolution to authorize war on Iraq, President Bush delivered a speech in Cleveland in which he claimed that the United States had evidence that Saddam had “trained Al Qaeda members in bombmaking and poisons and deadly gases.” In the administration’s gambit to obtain UN Security Council endorsement for the Iraq war—which was unsuccessful, al-Libi’s statement was one the central pieces of evidence that Secretary of State Colin Powell presented on February 5, 2003. “I can trace the story of a senior terrorist operative telling how Iraq provided training in these weapons to al-Qaeda. Fortunately, this operative is now detained and he has told his story.”
[I]n January 2004 when [al-Libi] was back in CIA custody, he told debriefers that the statement he had made in Egypt was false; he said what his interrogators wanted to hear to stop the abusive treatment. George Tenet, who was director of the CIA at the time, addresses al-Libi’s recantation in his 2007 autobiography, In the Eye of the Storm: “Now, suddenly, he was saying that there was no such cooperative training… and here is where the mystery begins… He clearly lied. We just don`t know when. Did he lie when he first said that al-Qa`ida members received training in Iraq or did he lie when he said they did not? In my mind, either case might still be true… The fact is, we don`t know which story is true, and since we don`t know, we can assume nothing.”
Although a majority of Americans bought the propaganda about the necessity of a war on Iraq, it didn’t sell well on the international market. On the contrary, opposition was intense and furious. On February 15, 2003, with the declared start of the invasion a month away, millions of people in over eight hundred cities around the world participated in the largest coordinated protest in history. In Rome, three million demonstrators broke the Guinness Book of World Records for the largest single anti-war rally.
Many of the governments that had joined the coalition that went to war in Afghanistan in 2001 refused to pony up troops for a war on Iraq. Britain and Australia agreed to join what President Bush took to calling the “coalition of the willing,” but France said no. US politicians who regarded the French refusal as an affront expressed their displeasure by urging Americans to stop calling fried potatoes French fries and instead call them “freedom fries.”
The neocons would not be deterred by opposition, foreign or domestic. Their propaganda manufacturing operation went into overdrive with claims that victory in Iraq would be a “cakewalk,” that the invading military would be greeted as liberators, and that the war would pay for itself—with Iraqi oil.
The US-led invasion began on March 20 with a shock-and-awe bombing campaign that toppled the regime by early April. Saddam and other top officials, rather than surrendering, just vanished. The Pentagon war planners, who believed their own cakewalk rhetoric, had flatly rejected pre-war advice from experts about the kinds of security measures and contingency plans that would be necessary to stabilize the country after the invasion. The neocons’ priority, to the exclusion of almost every other concern, was to secure the country’s oil resources and by their ideological standards, the quick fall of the regime amounted to a victory. Decisions to eschew planning meant that no measures were instituted to prevent the mayhem or halt the massive looting that ensued, including the pillaging of thousands of national treasures and priceless artifacts from unsecured museums. Rumsfeld downplayed the chaos by declaring that looting was Iraqis’ means of expressing “pent-up feelings” after decades of oppression. “Freedom's untidy, and free people are free to make mistakes and commit crimes and do bad things. They're also free to live their lives and do wonderful things. And that's what's going to happen here.”
On May 1, President Bush delivered a victory speech from the deck of the USS Abraham Lincoln, which was docked off the coast of San Diego. Standing under a banner that read “Mission Accomplished,” he declared that “major combat operations in Iraq have ended.” A week later, L. Paul Bremer assumed the position as head of the Coalition Provisional Authority to administer the occupied country. His first decree was to ban the Ba’ath Party in all its forms. This de-Ba’athification lustration scheme affected at least 100,000 Iraqis who had held jobs in the public sector, including 40,000 teachers. Bremer’s second decree was to dismantle the Iraqi army, which made hundreds of thousands of armed, militarily trained and battle-hardened soldiers unemployed. These decisions had catastrophic consequences. The country immediately spiraled into a complex and violent conflict that generated new enemies among the occupied population. Rumsfeld was opposed to calling the violence an “insurgency” because he thought that label would lend those attacking US forces “more legitimacy than they seem to merit.” He preferred dead-enders and former regime loyalists. When it was pointed out that “loyalist” also had a too-positive connotation, they became former regime elements. But the acronym FRE sounded too much like “free.” Dead enders won the naming contest.
While there was no Iraq – al-Qaeda connection prior to the war, after the invasion Islamist militants, led by a Jordanian named Abu Musab al-Zarqawi, created al-Qaeda in Iraq and declared loyalty to the original al-Qaeda in exchange for recognition. The chaos in Iraq attracted militants from elsewhere to capitalize on the opportunity to mete violence against US and coalition forces as well as Iraqi civilians, especially Shi’a, and those who cooperated with the occupation. In August, a series of bombings, including one that devastated the building serving as the UN headquarters in Baghdad, buried the neocons’ cakewalk fantasies in rubble.
Once again, the United States was fighting a war without information. Who and where were the people blowing up buildings, setting off improvised explosive devices (IEDs), and attacking coalition troops? In a desperate bid for actionable intelligence that might help turn the tide of what had quickly become a deadly and politically humiliating debacle, thousands of Iraqi men as well as women and teenagers were rounded up and detained. At the start of the war, the Pentagon had announced that, because the enemy was the Iraqi state, the Geneva Conventions apply and therefore captured soldiers would be treated as prisoners of war and civilians would be treated as protected persons. That posture collapsed with the regime. Consequently, the legal status of prisoners in US custody became as murky as the insurgency.
At the end of August, the Pentagon dispatched Major General Geoffrey Miller, commander of Guantanamo, to Iraq to provide some advice about how to run a successful intelligence-gathering operation. (At the time, Guantanamo was still a legal black hole.) Miller brought a CD and a manual on the “advanced” techniques that Rumsfeld had approved the previous April. These techniques, which Miller had approved as standard operating practice at Guantanamo, included sensory disorientation and prolonged sleep deprivation, religious humiliation, sexual assault, the use of menacing dogs, and prolonged shackling in stress positions. Miller extolled the efficacy of the Guantanamo detention-interrogation fusion model of using guards to “soften up” detainees for interrogators. General Ricardo Sanchez, top commander in the Iraq theater of war, adopted Miller’s recommendation to “Gitmo-ize” prison operations in Iraq. He issued a memo authorizing interrogators to use an array of harsh techniques, including military working dogs to threaten and scare detainees, sleep deprivation, environmental manipulation by adjusting temperature and lighting, yelling, and loud music. Their overall purpose was “to create fear, disorientate [the] detainee and prolong capture shock.”
On September 16, Brigadier General Janis Karpinski, who commanded the 800th Military Police Brigade and was in charge of military detention facilities, told reporters that the United States was holding thousands of “security detainees.” This concept, announced earlier that month, has no basis in the Geneva Conventions or [US] Army regulations; it was used to categorize prisoners assumed to pose a threat to coalition forces or to have information about those who do. When asked by a journalist if these prisoners had any rights, Karpinski responded: “It’s not that they don’t have any rights… They have fewer rights than EPWs [enemy prisoners of war].”
Ten major facilities around the country were used to detain and interrogate people who were arrested or randomly picked up in military sweeps or at checkpoints. (Later, US officials assigned to investigate prison conditions would acknowledge that upwards of 90 percent of those detained in Iraq had no connection to anti-coalition violence.) The largest detention facility was the Abu Ghraib prison on the outskirts of Baghdad, which had served as the main torture and execution center of the Saddam regime. By early autumn, it was packed well beyond capacity and understaffed by military police who had been given no relevant training about how to run a prison or treat detainees. Captain Carolyn Wood and her unit of military interrogators were transferred from Bagram to Iraq and posted at Abu Ghraib. Back in December 2002, Wood’s unit was trying to figure out what tactics were permissible for their use on detainees in Afghanistan. They were given no written guidelines from commanders up the chain or the Pentagon; all they were told was that the Geneva Conventions don’t apply to “persons under custody,” or PUCs. To try to figure things out for themselves, they searched the internet and contacted military interrogators working at Guantanamo who told them about the harsh techniques that Rumsfeld had recently approved. Logically, they assumed that they had license to use those techniques at Bagram. By the time Wood and her unit got to Abu Ghraib, they were already experienced practitioners of coercion, degradation, and dehumanization.
The die was cast.
Many hundreds of journalists, including photojournalists, were in Iraq to cover the war. Despite Pentagon efforts to manage media reporting by encouraging journalists to embed with military units and censoring certain kinds of photos, the war was going too badly to control the messaging. The fact that there were no WMDs compounded the debacle. But one sphere that did remain under-reported for the first year was the goings on inside detention facilities and the treatment of prisoners.
ICRC representatives made twenty-nine visits to detention facilities in Iraq in 2003. After each visit, they delivered oral and written reports to US officials and reminded them of their obligations under the Geneva Conventions. In May, they reported over two hundred allegations of ill-treatment. In early July, they delivered a working paper detailing abuses perpetrated by military interrogators at Camp Cropper, one of two facilities used to hold high value detainees; these abuses included mock executions and threats to capture and imprison detainees’ family members, especially wives and daughters. (Years later, former Iraqi army soldiers and officers and members of al-Qaeda in Iraq who met each other while they were detained at Camp Cropper and the other high-value detention facility, Camp Bucca, would form a new organization, ISIS, also known as Islamic State.) In November, in response to ICRC complaints about terrible, ongoing abuses at Abu Ghraib, lawyers who reported directly to General Sanchez tried to curtail ICRC access to the facility.
In January 2004, Human Rights Watch wrote directly to Rumsfeld to protest incidents in which US forces arrested relatives of wanted suspects in order to pressure the wanted to surrender; they pointed out that this constitutes hostage-taking which is a war crime. That month, the Pentagon learned that an Army specialist named Joseph Darby had received an email from another soldier with an attachment containing shocking photos shot by MPs at Abu Ghraib. He reported the photos to his superiors. When word of the photos of prisoner abuse reached the Pentagon, Major General Antonio Taguba was assigned to investigate the situation. In his classified report, Taguba concluded that the abuses his investigation uncovered were “systematic” and “wanton.” In February, the ICRC delivered a comprehensive and devastating report based on investigations conducted between the previous March and November which noted in graphic detail that the patterns of abuse were “tantamount to torture.”
Throughout this entire period, as human rights organizations were reporting abuses, as the ICRC was confidentially complaining to officials, as several internal military reports were detailing extensive problems throughout the country, as even Bremer was warning that grotesque prison conditions were creating a blowback situation that was exacerbating anti-coalition violence, Rumsfeld never issued an order or any guidelines to prohibit interrogational violence. What he did do was transfer General Miller from Guantanamo to Iraq in April to serve as the deputy commander of detention operations.
[On April 28, 2004], the CBS program 60 Minutes II broadcast photos from Abu Ghraib showing US soldiers abusing, humiliating, and terrorizing Iraqi prisoners. In most of the photos, the prisoners were naked. Some were cowering from snarling dogs. One photo showed a dead prisoner on ice with a female soldier next to him giving a thumbs up. He had died in CIA custody and his corpse was stashed at Abu Ghraib until it could be removed under the cover of night and disposed of in the desert.
The Abu Ghraib photos created an instant global scandal, but their catalytic significance for the fight against torture was provided by the legendary journalist Seymour Hersh. Shortly after the pictures were broadcast, he published a scoop in the New Yorker about General Taguba’s investigative report which had been leaked to him. That report, wrote Hersh, “amounts to an unsparing study of collective wrongdoing and the failure of Army leadership at the highest levels.”
Rumsfeld tried to deflect his own responsibility for the Abu Ghraib scandal by feigning shock and saying it was “a body blow for all of us.” Military officials in the chain of command tried to pin all the blame on “a few bad apples”—the MPs who had perpetrated the abuses captured in the photos and posed grinning and clowning in some. General Sanchez described Abu Ghraib as “an isolated incident.” General Miller blamed the problem on “the conduct of a very very small number of our leaders and soldiers.”
But those face-saving denials were contradicted by Taguba’s report. The general had discovered that the immediate cause of the abuses at Abu Ghraib was the fact that military intelligence officers as well as CIA agents and private contractors had directed the MPs “to ‘set the conditions’ for MI interrogations” by beating, sleep-depriving, and humiliating the prisoners they were responsible for guarding. Hersh’s reporting of Taguba’s findings pulled back the curtain to expose that coercive interrogations and degrading detention conditions were neither aberrations that could be pinned on “animals on the night shift” nor unique to Abu Ghraib. Rather, these practices, including photographing naked prisoners as a humiliation technique and using dogs to terrorize them, had been occurring in Afghanistan and Guantanamo and had “migrated” to Iraq.
Until Abu Ghraib, much of the mainstream US media had walked delicately around the torture issue, putting the word in quotes or preceding it with “allegations of” and “what some might call.” Now headlines read and journalists said torture without any qualifications. At a press briefing on May 4, a reporter reminded Rumsfeld of his frequent comments that US troops don’t engage in torture and then asked: “Is this one of those rare exceptions here that torture took place?” Rather than sticking to the bad apple script or doing his pearl-clutching routine, Rumsfeld answered: “I’m not a lawyer. My impression is that what has been charged thus far is abuse, which I believe technically is different from torture… I don't know if it is correct to say what you just said, that torture has taken place… And therefore, I'm not going to address the ‘torture’ word.” With that answer, Rumsfeld was alluding to something that was still a secret: government lawyers had reinterpreted the law to empty the word “torture” of its basic meaning.
Congressional committees convened hearings throughout May to question civilian and military officials and to probe for answers about what was really going on in the shadows. Things got hotter for the administration on May 7 when the Wall Street Journal published the leaked executive summary of the ICRC’s confidential February report that US abuses of prisoners were “tantamount to torture.” Although the ICRC president denounced the leak, there was no denying that US officials had been receiving detailed information about torture and other violations which undercut all the “we’re shocked, shocked!” responses to the Abu Ghraib scandal.
[The second event in the trifecta occurred in early June when the Bush administration decided to declassify and release some documents pertaining to interrogation policy and others were leaked to the press. These were instantly and aptly nicknamed the “torture memos.”]
To be clear about the sequence of events and their relation to each other: The Abu Ghraib scandal occurred because the Bush administration had given interrogators a license to torture and that license traveled from Afghanistan and Guantanamo to Iraq. The torture memos became public because the Abu Ghraib scandal exposed the political malfeasance and disastrous consequences of decisions to invade and occupy Iraq, as well as the desperate reliance on torture everywhere the “war on terror” went. The release of the memos exposed details about the torture policy which ignited the fight against torture and mapped the lines of battle.
The third event in the trifecta occurred on June 28, 2004, when the Supreme Court handed down its decision in Rasul v Bush. This ruling upended the claim that the president has the authority to secretly detain people at Guantanamo. Its significance for the fight against torture was linked to the previous two events: The Abu Ghraib scandal and, especially, the contents of the now-public torture memos greased the skids for angry and disgusted lawyers to volunteer for duty in what would soon become a full-blown war in court.