The Bush administration's "bad apples" theory turns rotten.

The Bush administration's "bad apples" theory turns rotten.

The Bush administration's "bad apples" theory turns rotten.

The law, lawyers, and the court.
June 18 2008 1:19 PM

It Was Top Down, Stupid

The Bush administration's "bad apples" theory goes sour.

Jim Haynes. Click image to expand
Former Defense Department General Counsel William Haynes II

When the Abu Ghraib scandal hit in the summer of 2004, two of the administration's most senior lawyers—White House Counsel Alberto Gonzales and the Defense Department's General Counsel Jim Haynes—stood before the world's media and laid out the official explanation for newly aggressive interrogation within the U.S. military: It was the result of a bottom-up request from an aggressive combatant commander at Guantanamo; it was implemented within the law and on the basis of careful legal advice; and it produced useful and important results. These new techniques had been essential in getting vital security information from men they labeled "the worst of the worst."

A memo Gonzales and Haynes made public that day sketched out this move to military cruelty. Written by Haynes and signed by Donald Rumsfeld on Dec. 2, 2002, the document discarded a military prohibition on cruelty promulgated by President Lincoln as long ago as 1863. Haynes' memo recommended 15 new techniques, including nudity and forced grooming, humiliation and deception, dogs, sleep deprivation, and stress positions like standing for up to four hours. Three other techniques—including water-boarding—were not given blanket approval, although their future use in individual cases was not rejected, either. Rumsfeld approved the memo, scribbling next to his signature authorizing these techniques the observation, "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?"


Four years after that memo became public, Congress has moved to examine the accuracy of the administration's account of the circumstances under which it was prepared. The author of the Rumsfeld memo became the subject of extensive questioning Tuesday before the Senate armed services committee. Many will say it is too little and too late. I disagree. Congress has a vital role to play in establishing accountability for the American torture policy, although yesterday's faltering efforts to jog Jim Haynes' memory hardly inspire confidence that it can do so.

Haynes' new interrogation techniques have been disastrous. Beyond the little matter of their patent illegality, during their short life they didn't provide meaningful or reliable information. They undermined moral authority and served as a recruiting tool for those who seek to do harm to the United States. They also made it difficult for allies to transfer detainees and cooperate in other ways—as another of Tuesday's witnesses, former Navy General Counsel Alberto Mora, made crystal clear. Plus, these techniques migrated from Guantanamo to Abu Ghraib and other places, a devastating fact that now seems incontestable. In sum, the Rumsfeld/Haynes techniques resulted in the very opposite of what their authors intended: They contributed to an extension of the conflict with al-Qaida and have endangered the very same national security they were meant to protect.

Unless the United States takes remedial actions, it is likely there will be criminal investigations abroad. Why? Because, as acting CIA General Counsel John Rizzo once told Congress, "a crime is a crime." The same point was made to me by a European judge and a prosecutor who have looked at the materials. There can be no doubt that the aggressive interrogation of Mohammed al-Qahtani (aka Detainee 063, alleged to be the 20th hijacker) amounted to torture and violated Common Article 3 of the Geneva Conventions (prohibiting cruelty and torture) and the 1984 Convention Against Torture. As a war crime and an act of torture, it can thus be prosecuted anywhere in the world.

Haynes' performance also left no doubt about the cover-up that had been perpetrated. The new materials that have emerged confirmed his early involvement in the decision-making process, as well as his role in truncating the proper assessment of the new techniques by military lawyers. Testimony on Tuesday from Jane Dalton, former general counsel to the Joint Chiefs of Staff, will surely come to be decisive in demonstrating Haynes' knowing and direct effort to short-circuit contradictory legal advice. She testified that after she attempted to conduct a legal review of the proposed techniques, she was shut down. This is not just the story of a crime. It is also a cover-up—how the administration spun a false narrative, seeking to blame those on the ground at Guantananmo.


Last month, a subcommittee of the House judiciary committee was the first to move, on the initiative of Chairman John Conyers, as it began to investigate the development of the torture program. I came over to testify, detailing ways in which the U.S. experience mirrored that of Britain, which had briefly authorized similar techniques against the IRA in the early 1970s. The five techniques, as they came to be known, were soon abandoned, but not before great damage was done. They are widely believed to have contributed to an extension of that conflict, and they have never been picked up again. Across the political spectrum in Britain, there is a shared belief that such techniques were and are wrong and can never be justified, that coercive interrogation, aggression, and torture must never be institutionalized, because once that door has been opened, it is difficult to close.

The one issue Congress must now confront is why those at the top of the Pentagon—and in particular the head of policy, Doug Feith, who testifies Wednesday before the House judiciary committee—never seem to have turned their minds to the consequences of abandoning Geneva. Having first decided to circumvent the international constraints on aggressive interrogation, they seem never to have asked themselves the predicate questions: Would these new techniques produce reliable information? Would they undermine the "war on terror" by alienating allies? Would they be used as a recruiting tool? Feith was directly involved in these decisions, from the abandonment of Geneva to the adoption of aggressive interrogation techniques. You'd never know that from his recent book, in which he airbrushes himself out of a story he dares not tell.

Next Thursday David Addington is due to testify before the House judiciary committee, after having been served with a subpoena. Whether he actually turns up is another matter. If he does, he will be alongside John Yoo, the former Department of Justice lawyer from whose fertile mind sprung the legal theories that allow the president to torture with impunity.

That should be a most fascinating hearing, as it will allow an airing on the key issue: the relationship between the infamous torture memo signed on Aug. 1, 2002, by Jay Bybee of DoJ, and Haynes' memo to Rumsfeld, recommending a slate of new interrogation techniques that were plainly inconsistent with Geneva. Haynes has always given the impression, in public at least, that he relied on the legal advice of a relatively junior lawyer down at Guantanamo. On Tuesday, he reiterated that argument to the point of incredulity. Haynes has never publicly acknowledged the fact that he relied on the torture memo or knew of its existence or contents when he wrote his own memo. Yesterday, again, he just couldn't remember. The reason for his reticence is not difficult to find: Acknowledging any connection between his actions and the DoJ torture memos destroys the administration's claim that decision-making was bottom up, not top down.

There is little point in wasting time in the House or the Senate on arcane debate on the merits and demerits of various legal theories. The Supreme Court has ruled that Common Article 3 applied at Guantanamo. With this, all doubt evaporates as to the commission of war crimes at that place. What needs thorough investigation now is how it all began: who did what and when, and how precisely the pressures from the top came to be imposed, whether directly (through visits to Guanatanamo and the transmission of Rumsfeld's informal, short memos known as "snowflakes") or indirectly (through the use of the Defense Intelligence Agency, whose role has never properly been explained). In this way a proper reckoning can take place, so that those who are truly responsible can be identified.

Tuesday's hearing leaves me doubtful as to whether Congress can ever really get to the heart of a matter that did not start on the ground, as the administration argues. Others agree. Earlier this month, 56 members of Congress wrote to the attorney general to request the appointment of a special counsel to investigate these issues, to examine whether the administration "systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law." If Congress can't sort this out, that call will become impossible to resist.