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?"

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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.

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