A Plague on the Nation

By Dan Froomkin
Special to washingtonpost.com
Wednesday, June 18, 2008; 12:44 PM

The two-star general who led an Army investigation into the horrific detainee abuse at Abu Ghraib has accused the Bush administration of war crimes and is calling for accountability.

In his 2004 report on Abu Ghraib, then-Major General Anthony Taguba concluded that "numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees." He called the abuse "systemic and illegal." And, as Seymour M. Hersh reported in the New Yorker, he was rewarded for his honesty by being forced into retirement.

Now, in a preface to a Physicians for Human Rights report based on medical examinations of former detainees, Taguba adds an epilogue to his own investigation.

The new report, he writes, "tells the largely untold human story of what happened to detainees in our custody when the Commander-in-Chief and those under him authorized a systematic regime of torture. This story is not only written in words: It is scrawled for the rest of these individual's lives on their bodies and minds. Our national honor is stained by the indignity and inhumane treatment these men received from their captors.

"The profiles of these eleven former detainees, none of whom were ever charged with a crime or told why they were detained, are tragic and brutal rebuttals to those who claim that torture is ever justified. Through the experiences of these men in Iraq, Afghanistan, and Guantanamo Bay, we can see the full-scope of the damage this illegal and unsound policy has inflicted --both on America's institutions and our nation's founding values, which the military, intelligence services, and our justice system are duty-bound to defend.

"In order for these individuals to suffer the wanton cruelty to which they were subjected, a government policy was promulgated to the field whereby the Geneva Conventions and the Uniform Code of Military Justice were disregarded. The UN Convention Against Torture was indiscriminately ignored. . . .

"After years of disclosures by government investigations, media accounts, and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."

Pamela Hess of the Associated Press has more on the report, which resulted from "the most extensive medical study of former U.S. detainees published so far" and "found evidence of torture and other abuse that resulted in serious injuries and mental disorders."

So if war crimes were committed, who's responsible?

In today's installment of a major McClatchy Newspapers series on the U.S. detention system, Tom Lasseter writes: "The framework under which detainees were imprisoned for years without charges at Guantanamo and in many cases abused in Afghanistan wasn't the product of American military policy or the fault of a few rogue soldiers.

"It was largely the work of five White House, Pentagon and Justice Department lawyers who, following the orders of President Bush and Vice President Dick Cheney, reinterpreted or tossed out the U.S. and international laws that govern the treatment of prisoners in wartime, according to former U.S. defense and Bush administration officials.

"The Supreme Court now has struck down many of their legal interpretations. It ruled last Thursday that preventing detainees from challenging their detention in federal courts was unconstitutional.

"The quintet of lawyers, who called themselves the 'War Council,' drafted legal opinions that circumvented the military's code of justice, the federal court system and America's international treaties in order to prevent anyone -- from soldiers on the ground to the president -- from being held accountable for activities that at other times have been considered war crimes. . . .

"The international conventions that the United States helped draft, and to which it's a party, were abandoned in secret meetings among the five men in one another's offices. No one in the War Council has publicly described the group's activities in any detail, and only some of their opinions and memorandums have been made public. . . .

"Only one of the five War Council lawyers remains in office: David Addington, the brilliant but abrasive longtime legal adviser and now chief of staff to Cheney. His primary motive, according to several former administration and defense officials, was to push for an expansion of presidential power that Congress or the courts couldn't check."

The other members were Alberto Gonzales, first the White House counsel and then the attorney general; William J. Haynes II, the former Pentagon general counsel; former Justice Department lawyer John Yoo; and Timothy E. Flanigan, a former deputy to Gonzales.

For more on Addington's central role, see my Sept. 5, 2007 column; for more on the relationship between the administration's legal memos and torture, see my April 2 column.

The Senate Armed Services Committee made news with a hearing yesterday -- part of its continuing investigation into the administration's interrogation policies. (Here's the C-SPAN video.)

Joby Warrick writes in The Washington Post: "A senior CIA lawyer advised Pentagon officials about the use of harsh interrogation techniques on detainees at Guantanamo Bay in a meeting in late 2002, defending waterboarding and other methods as permissible despite U.S. and international laws banning torture, according to documents released yesterday by congressional investigators.

"Torture 'is basically subject to perception,' CIA counterterrorism lawyer Jonathan Fredman told a group of military and intelligence officials gathered at the U.S.-run detention camp in Cuba on Oct. 2, 2002, according to minutes of the meeting. 'If the detainee dies, you're doing it wrong.' . . .

"Fredman, whose agency had been granted broad latitude by Justice Department lawyers to conduct harsh interrogations of suspected terrorists, listed key considerations for setting a similar program at the Cuban prison. He discussed the pros and cons of videotaping, talked about how to avoid interference by the International Committee of the Red Cross and offered a strong defense of waterboarding." . . .

"Sen. Carl M. Levin (D-Mich.), the committee chairman, asked: 'How on Earth did we get to the point where a United States government lawyer would say that . . . torture is subject to perception?'."

Levin also introduced evidence that proposed methods faced opposition at the time from experts in military and international law. Warrick writes: "Among them was Mark Fallon, deputy commander of the Defense Department's Criminal Investigation Task Force. He warned in an October 2002 e-mail to Pentagon colleagues that the techniques under discussion would 'shock the conscience of any legal body' that might review how the interrogations were conducted.

"'This looks like the kind of stuff Congressional hearings are made of,' Fallon wrote. He added: 'Someone needs to be considering how history will look back at this.'"

The star witness yesterday was Haynes -- the former Pentagon general counsel, "War Council" member and Addington protege.

Mark Mazzetti and Scott Shane write in the New York Times that Haynes "sparred at length with senators seeking to pin on him some responsibility for the harsh tactics and the worldwide outrage they provoked.

"Documents released Tuesday show that some of Mr. Haynes's aides in July 2002 sought out information about aggressive interrogations.

"Mr. Haynes fended off attacks by Democrats and some Republicans, noting that the Defense Department has 10,000 lawyers and saying he had no time to conduct legal research himself on which methods were permitted.

"Moreover, Mr. Haynes said, 'as the lawyer, I was not the decision maker. I was the adviser.'

"Senator Jack Reed, Democrat of Rhode Island, said he thought Mr. Haynes's advice had led American soldiers drastically astray. 'You degraded the integrity of the United States military,' Mr. Reed said."

Dana Milbank writes in The Washington Post: "If ever there was a case that cried out for enhanced interrogation techniques, it was yesterday's Senate appearance by the Pentagon's former top lawyer.

"William 'Jim' Haynes II, the man who blessed the use of dogs, hoods and nudity to pry information out of recalcitrant detainees, proved to be a model of evasion himself as he resisted all attempts at inquiry by the Armed Services Committee. . .

"It was the most public case of memory loss since Alberto Gonzales, appearing before the Senate Judiciary Committee, forgot everything he ever knew about anything. And, like Gonzales, Haynes (who, denied a federal judgeship by the Senate, left the Pentagon in February for a job with Chevron) had good reason to plead temporary senility.

"A committee investigation found that, contrary to his earlier testimony, Haynes had showed strong interest in potentially abusive questioning methods as early as July 2002. Later, ignoring the strong objections of the uniformed military, Haynes sent a memo to Donald Rumsfeld recommending the approval of stress positions, nudity, dogs and light deprivation. . . .

"Haynes mixed his forgetfulness with a dash of insolence. He suggested to [Claire] McCaskill [(D-Mo.)] that 'it's important that you understand how the Defense Department works.' He cut off [Jack] Reed [(D-R.I.)] with a 'Let me finish, Senator!' and disclosed that he had been too busy to give more attention to the Geneva Conventions: 'I mean, there are thousands and thousands and thousands of decisions made every day. This was one.'"

Mark Benjamin of Salon offers up a timeline based on the Senate investigation. He writes that "as more and more documents from inside the Bush government come to light, it is increasingly clear that the administration sought from early on to implement interrogation techniques whose basis was torture.

Phil Carter analyzes the new evidence on washingtonpost.com

Adam Zagorin writes for Time: "Despite years of investigation into alleged abuse and death of prisoners in U.S. custody since 9/11, the only Americans held accountable have been the low-ranking 'bad apples' convicted for the worst atrocities at Iraq's Abu Ghraib prison. No official blame has been assigned to higher-ups for abuses at Guantanamo or in Afghanistan, much less for crimes allegedly committed by U.S. personnel in various secret CIA prisons around the world."

Tim Rutten writes in his Los Angeles Times opinion column: "Apart from understanding how and why the Bush/Cheney administration tricked the American people into going to war in Iraq, no question is more urgent than how the White House forced the adoption of torture as state policy of the United States."

Rutten writes that, along with earlier revelations, "the current Senate investigation has established definitively that the drive to make torture an instrument of U.S. policy originated at the highest levels of the Bush administration -- mainly in the circle that included Cheney, Rumsfeld and Addington. This group had come to Washington determined to implement its theory of 'the unitary executive,' which holds that presidential powers of all sorts have been dangerously diminished since the Vietnam War. The fact that these guys seem to have defined executive branch power as the ability to hold people in secret and torture them pushes the creepy quotient into areas that probably require psychoanalytic credentials."

Rutten, however, has nothing but scorn for the "handful of European rights activists and people on the lacy left fringe of American politics" who are calling for criminal indictments or war-crime trials.

White House spokesman Tony Fratto repeated the official administration position yesterday: "I'm telling you that abuse of detainees has never been, is not, and will never be the policy of this government. The policy of this government has been to take these detainees and to interrogate them and get the information that we can get to help protect this country, which we have been very successful at doing, and we've been very successful at getting the information that has saved lives and prevented attacks on this country and on our allies. . . .

"[W]e do not abuse and we treat detainees humanely and comporting with the law."