Go to Original
The Memo
By Jane Mayer
The New Yorker
Monday 27 February 2006
How an internal effort to ban the abuse
and torture of
detainees was thwarted.
One night this January, in a ceremony at the Officers' Club at Fort
Myer, in Arlington, Virginia, which sits on a hill with a commanding
view across the Potomac River to th Washington Monument, Alberto J.
Mora, the outgoing general counsel of the United States Navy, stood next
to a podium in the club's ballroom. A handsome gray-haired man in hi
mid-fifties, he listened with a mixture of embarrassment and pride as
his colleagues toasted his impending departure. Amid the usual tributes
were some more pointed comments
"Never has there been a counsel with more intellectual courage or
personal integrity," David Brant, the former head of the Naval Criminal
Investigative Service, said. Brant added somewhat cryptically, "He
surprised us into doing the right thing." Conspicuous for his silence
that night was Mora's boss, William J. Haynes II, the general counsel of
the Department of Defense.
Back in Haynes's office, on the third floor of the Pentagon, there was a
stack of papers chronicling a private battle that Mora had waged against
Haynes and other top Administration officials, challenging their tactics
in fighting terrorism. Some of the documents are classified and, despite
repeated requests from members of the Senate Armed Services Committee
and the Senate Judiciary Committee, have not been released. One
document, which is marked "secret" but is not classified, is a
twenty-two-page memo written by Mora. It shows that three years ago Mora
tried to halt what he saw as a disastrous and unlawful policy of
authorizing cruelty toward terror suspects.
The memo is a chronological account, submitted on July 7, 2004, to Vice
Admiral Albert Church, who led a Pentagon investigation into abuses at
the U.S. detention facility at Guantánamo Bay, Cuba. It reveals that
Mora's criticisms of Administration policy were unequivocal,
wide-ranging, and persistent. Well before the exposure of prisoner abuse
in Iraq's Abu Ghraib prison, in April, 2004, Mora warned his superiors
at the Pentagon about the consequences of President Bush's decision, in
February, 2002, to circumvent the Geneva conventions, which prohibit
both torture and "outrages upon personal dignity, in particular
humiliating and degrading treatment." He argued that a refusal to outlaw
cruelty toward U.S.-held terrorist suspects was an implicit invitation
to abuse. Mora also challenged the legal framework that the Bush
Administration has constructed to justify an expansion of executive
power, in matters ranging from interrogations to wiretapping. He
described as "unlawful," "dangerous," and "erroneous"
novel legal
theories granting the President the right to authorize abuse. Mora
warned that these precepts could leave U.S. personnel open to criminal
prosecution.
In important ways, Mora's memo is at odds with the official White House
narrative. In 2002, President Bush declared that detainees should be
treated "humanely, and to the extent appropriate and consistent with
military necessity, in a manner consistent with the principles" of the
Geneva conventions. The Administration has articulated this standard
many times. Last month, on January 12th, Secretary of Defense Donald
Rumsfeld, responding to charges of abuse at the U.S. base in Cuba, told
reporters, "What took place at Guantánamo is a matter of public
record
today, and the investigations turned up nothing that suggested that
there was any policy in the department other than humane treatment." A
week later, the White House press spokesman, Scott McClellan, was asked
about a Human Rights Watch report that the Administration had made a
"deliberate policy choice" to abuse detainees. He answered that the
organization had hurt its credibility by making unfounded accusations.
Top Administration officials have stressed that the interrogation policy
was reviewed and sanctioned by government lawyers; last November,
President Bush said, "Any activity we conduct is within the law. We do
not torture." Mora's memo, however, shows that almost from the start of
the Administration's war on terror the White House, the Justice
Department, and the Department of Defense, intent upon having greater
flexibility, charted a legally questionable course despite sustained
objections from some of its own lawyers.
Mora had some victories. "America has a lot to thank him for," Brant,
the former head of the N.C.I.S., told me. But those achievements were
largely undermined by a small group of lawyers closely aligned with
Vice-President Cheney. In the end, Mora was unable to overcome
formidable resistance from several of the most powerful figures in the
government.
Brant had joked at the farewell party that Mora "was an incredible
publicity hound." In fact, Mora-whose status in the Pentagon was
equivalent to that of a four-star general-is known for his professional
discretion, and he has avoided the press. This winter, however, he
agreed to confirm the authenticity and accuracy of the memo and to be
interviewed. A senior Defense Department official, whom the Bush
Administration made available as a spokesman, on the condition that his
name not be used, did so as well. Mora and the official both declined to
elaborate on internal Department of Defense matters beyond those
addressed in the memo. Mora, a courtly and warm man, is a cautious,
cerebral conservative who admired President Reagan and served in both
the first and the second Bush Administrations as a political appointee.
He strongly supported the Administration's war on terror, including the
invasion of Iraq, and he revered the Navy. He stressed that his only
reason for commenting at all was his concern that the Administration was
continuing to pursue a dangerous course. "It's my Administration, too,"
he said.
Mora first learned about the problem of detainee abuse on December 17,
2002, when David Brant approached him with accusations of wrongdoing at
Guantánamo. As head of th Naval Criminal [Investigative] Service, Brant
often reported to Mora but hadn't dealt with him on anything so
sensitive. "I wasn't sure how he would react," Brant, a tall, thin
ma
with a mustache, told me. Brant had already conveyed the allegations to
Army leaders, since they had command authority over the military
interrogators, and to the Air Force, but h said that nobody seemed to
care. He therefore wasn't hopeful when he went to Mora's office that
afternoon
When we spoke, Mora recalled the mood at the Pentagon at the time, just
fifteen months after the September 11th attacks. "The mentality was that
we lost three thousand Americans, and we could lose a lot more unless
something was done," he said. "It was believed that some of the
Guantánamo detainees had knowledge of other 9/11-like operations that
were under way, or would be executed in the future. The gloves had to
come off. The U.S. had to get tougher." Mora had been inside the
Pentagon on September 11th and recalled the jetliner crashing into the
building one facet over. He said that it "felt jarring, like a large
safe had been dropped overhead." From the parking lot, he watched the
Pentagon burn. The next day, he said, he looked around a room full of
top military leaders, and was struck by the thought that "these guys
were going to be the tip of the spear."
Brant oversaw a team of N.C.I.S. agents working with the F.B.I. at
Guantánamo Bay, in what was called the Criminal Investigative Task
Force. It had been assigned to elicit incriminating information from the
nearly six hundred detainees being held there. Unlike a group run by
Army intelligence, Joint Task Force 170, or J.T.F.-170, which was
looking for intelligence that would help American authorities determine
Al Qaeda's next move, Brant's investigators gathered evidence that
eventually could be used for prosecutions in military tribunals or
civilian courts. He and his agents had experience and training in law
enforcement: Brant, a civilian, holds an advanced degree in criminology,
and worked as a policeman in Miami in the nineteen-seventies.
Brant informed Mora that he was disturbed by what his agents told him
about the conduct of military-intelligence interrogators at Guantánamo.
These officials seemed poorly trained, Brant said, and were frustrated
by their lack of success. He had been told that the interrogators were
engaging in escalating levels of physical and psychological abuse.
Speaking of the tactics that he had heard about, Brant told me,
"Repugnant would be a good term to describe them."
Much of Brant's information had been supplied by an N.C.I.S.
psychologist, Michael Gelles, who worked with the C.I.T.F. and had
computer access to the Army's interrogation logs at Guantánamo. Brant
told me that Gelles "is phenomenal at unlocking the minds of everyone
from child abusers to terrorists"; he took it seriously when Gelles
described the logs as shocking.
The logs detailed, for example, the brutal handling of a Saudi detainee,
Mohammed al-Qahtani, whom an F.B.I. agent had identified as the "missing
twentieth hijacker"-the terrorist who was supposed to have been booked
on the plane that crashed in a Pennsylvania field. Qahtani was
apprehended in Afghanistan a few months after the terrorist attacks.
Qahtani had been subjected to a hundred and sixty days of isolation in a
pen perpetually flooded with artificial light. He was interrogated on
forty-eight of fifty-four days, for eighteen to twenty hours at a
stretch. He had been stripped naked; straddled by taunting female
guards, in an exercise called "invasion of space by a female"; forced
to
wear women's underwear on his head, and to put on a bra; threatened by
dogs; placed on a leash; and told that his mother was a whore. By
December, Qahtani had been subjected to a phony kidnapping, deprived of
heat, given large quantities of intravenous liquids without access to a
toilet, and deprived of sleep for three days. Ten days before Brant and
Mora met, Qahtani's heart rate had dropped so precipitately, to
thirty-five beats a minute, that he required cardiac monitoring.
Brant told me that he had gone to Mora because he didn't want his team
of investigators to "in any way observe, condone, or participate in any
level of physical or in-depth psychological abuse. No slapping,
deprivation of water, heat, dogs, psychological abuse. It was pretty
basic, black and white to me." He went on, "I didn't know or care
what
the rules were that had been set by the Department of Defense at that
point. We were going to do what was morally, ethically, and legally
permissible." Recently declassified e-mails and orders obtained by the
American Civil Liberties Union document Brant's position, showing that
all C.I.T.F. personnel were ordered to "stand clear and report" any
abusive interrogation tactics.
Brant thinks that the Army's interrogation of Qahtani was unlawful. If
an N.C.I.S. agent had engaged in such abuse, he said, "we would have
relieved, removed, and taken internal disciplinary action against the
individual-let alone whether outside charges would have been brought."
Brant said he feared that such methods would taint the cases his agents
needed to make against the detainees, undermining any attempts to
prosecute them in a court of law. He also doubted the reliability of
forced confessions. Moreover, he told me, "it just ain't right."
Another military official, who worked closely with Brant and who has
been denied permission to speak on the record, told me that the news
"rocked" Mora. The official added that Mora "was visionary about
this.
He quickly grasped the fact that these techniques in the hands of people
with this little training spelled disaster."
In his memo, Mora noted that Brant asked him if he wanted to hear more
about the situation. He wrote, "I responded that I felt I had to."
Mora was a well-liked and successful figure at the Pentagon. Born in
Boston in 1952, he is the son of a Hungarian mother, Klara, and a Cuban
father, Lidio, both of whom lef behind Communist regimes for America.
Klara's father, who had been a lawyer in Hungary, joined her in exile
just before the Soviet Union took control. From the time Alberto wa a
small boy, Klara Mora told me, he heard from his grandfather the message
that "the law is sacred." For the Moras, injustice and abuse were
not
merely theoretical concepts. One o Mora's great-uncles had been
interned in a Nazi concentration camp, and another was hanged after
having been tortured. Mora's first memory, as a young child, is of
playing on th floor in his mother's bedroom, and watching her crying as
she listened to a report on the radio declaring that the 1956
anti-Communist uprising in Hungary had been crushed. "Peopl who went
through things like this tend to have very strong views about the rule
of law, totalitarianism, and America," Mora said
At the time, Mora's family was living in Cuba. His father, a
Harvard-trained physician, had taken his wife and infant son back in
1952. When Castro seized power, seven years later, the family barely
escaped detention after a servant informed the authorities that they
planned to flee to America. In the ensuing panic, Alberto obtained an
emergency passport from the American Embassy in Havana. "This was my
first brush with the government," he said. "When I swore an oath of
allegiance to the American government, part of the oath involved taking
up arms to defend the country. And I was thinking, This is a serious
thing for me to be an eight-year-old boy, raising my hand before the
American vice-consul and taking the oath of allegiance." Cuban customs
officials, seeing Alberto's American passport, threatened not to let him
board a ship. At the last minute, one of his father's colleagues, who
had been put in charge of the port, allowed Alberto's emigration.
Mora's family settled in Jackson, Mississippi, where his father taught
at the state medical school and Mora attended a Catholic school. For the
most part, Jackson was "a wonderful place," Mora recalled, although
it
was also "very conservative." Racism was rampant and everyone, including
Mora, backed Barry Goldwater in the 1964 election. Mora had never met
anyone who opposed the Vietnam War until he enrolled at Swarthmore
College, a school that he chose after reading an S.A.T.-preparation
booklet that described it as small and especially rigorous. He also had
never met a feminist before going to hear Kate Millett speak at Bryn
Mawr, during his freshman year; her talk infuriated him. After growing
up in the South among friends who played sports, drank beer, and had a
good time, he found the Northeastern liberal élite curiously "nerdish."
The girls had thrown away their skirts-if they'd ever had them, he
joked-and there were no parties. Yet he loved the intellectual
environment. "You just had these intense discussions," he recalled.
"I
revelled in it." Mora said that he was the only person among his friends
who wasn't a conscientious objector to the war.
Mora graduated in 1974 with honors, and joined the State Department,
working in Portugal; in 1979, he entered law school in Miami. Finding
litigation work more "a living than a life," Mora said, he was happy
to
get an appointment as general counsel of the U.S. Information Agency in
the first Bush Administration. During the Clinton years, he was
appointed to a Republican seat on the Broadcasting Board of Governors,
where he was an advocate for Radio Martí, the American news operation
aimed at Cuba. He also practiced international law in several private
firms. When George W. Bush was elected, Mora-with the backing of former
Defense Secretary Frank Carlucci, whom he had befriended in Portugal-was
appointed general counsel of the Navy. He expected to spend most of his
time there streamlining the budget.
The day after Mora's first meeting with Brant, they met again, and Brant
showed him parts of the transcript of Qahtani's interrogation. Mora was
shocked when Brant told him tha the abuse wasn't "rogue activity"
but
was "rumored to have been authorized at a high level in Washington."
The
mood in the room, Mora wrote, was one of "dismay." He added, "
was
under the opinion that the interrogation activities described would be
unlawful and unworthy of the military services." Mora told me, "I
was
appalled by the whole thing. It wa clearly abusive, and it was clearly
contrary to everything we were ever taught about American values.
Mora thinks that the media has focussed too narrowly on allegations of
U.S.-sanctioned torture. As he sees it, the authorization of cruelty is
equally pernicious. "To my mind, there's no moral or practical
distinction," he told me. "If cruelty is no longer declared unlawful,
but instead is applied as a matter of policy, it alters the fundamental
relationship of man to government. It destroys the whole notion of
individual rights. The Constitution recognizes that man has an inherent
right, not bestowed by the state or laws, to personal dignity, including
the right to be free of cruelty. It applies to all human beings, not
just in America-even those designated as 'unlawful enemy combatants.' If
you make this exception, the whole Constitution crumbles. It's a
transformative issue."
Mora said that he did not fear reprisal for stating his opposition to
the Administration's emerging policy. "It never crossed my mind,"
he
said. "Besides, my mother would have killed me if I hadn't spoken up. No
Hungarian after Communism, or Cuban after Castro, is not aware that
human rights are incompatible with cruelty." He added, "The debate
here
isn't only how to protect the country. It's how to protect our values."
After the second meeting with Brant, Mora called his friend Steven
Morello, the general counsel of the Army, and asked him if he knew
anything about the abuse of prisoners at Guantánamo. Mora said that
Morello answered, "I know a lot about it. Come on down."
In Morello's office, Mora saw what he now refers to as "the package"-a
collection of secret military documents that traced the origins of the
coercive interrogation policy at Guantánamo. It began on October 11,
2002, with a request by J.T.F.-170's commander, Major General Michael
Dunlavey, to make interrogations more aggressive. A few weeks later,
Major General Geoffrey Miller assumed command of Guantánamo Bay, and,
on
the assumption that prisoners like Qahtani had been trained by Al Qaeda
to resist questioning, he pushed his superiors hard for more flexibility
in interrogations. On December 2nd, Secretary of Defense Rumsfeld gave
formal approval for the use of "hooding," "exploitation of phobias,"
"stress positions," "deprivation of light and auditory stimuli,"
and
other coercive tactics ordinarily forbidden by the Army Field Manual.
(However, he reserved judgment on other methods, including
"waterboarding," a form of simulated drowning.) In Mora's memo, Morello
is quoted as saying that "we tried to stop it." But he was told not
to
ask questions.
According to a participant in the meeting, Mora was "ashen-faced"
when
he read the package. The documents included a legal analysis, also dated
October 11th, by Lieutenant Colonel Diane Beaver, who was then the top
legal adviser to J.T.F.-170. She noted that some of the more brutal
"counter-resistance" techniques under consideration at Guantánamo,
such
as waterboarding (for which soldiers had been court-martialled in
earlier conflicts), might present legal problems. She acknowledged that
American military personnel at Guantánamo, as everywhere else in the
world, were bound by the Uniform Code of Military Justice, which
characterizes "cruelty," "maltreatment," "threats,"
and "assault" as
felonies. Beaver reasoned, however, that U.S. soldiers preparing to
violate these laws in their interrogations might be able to obtain
"permission, or immunity" from higher authorities "in advance."
The senior Defense Department official designated to speak for the
Administration acknowledged that Beaver's legal argument was inventive.
"Normally, you grant immunity after the fact, to someone who has already
committed a crime, in exchange for an order to get that person to
testify," he said. "I don't know whether we've ever faced the question
of immunity in advance before." Nevertheless, the official praised
Beaver "for trying to think outside the box. I would credit Diane as
raising that as a way to think about it." (Beaver was later promoted to
the staff of the Pentagon's Office of General Counsel, where she
specializes in detainee issues.)
Mora was less impressed. Beaver's brief, his memo says, "was a wholly
inadequate analysis of the law." It held that "cruel, inhuman, or
degrading treatment could be inflicted on the Guantánamo detainees with
near impunity"; in his view, such acts were unlawful. Rumsfeld's
December 2nd memo approving these "counter-resistance" techniques,
Mora
wrote, "was fatally grounded on these serious failures of legal
analysis." Neither Beaver nor Rumsfeld drew any "bright line"
prohibiting the combination of these techniques, or defining any limits
for their use. He believed that such rhetorical laxity "could produce
effects reaching the level of torture," which was prohibited, without
exception, under both U.S. and international law. Mora took his concerns
to Gordon England, the Secretary of the Navy, who is now the Deputy
Secretary of Defense. Then, on December 20th, with England's
authorization, Mora went to William Haynes, the Pentagon's general
counsel; they met in Haynes's office, an elegant suite behind vault-like
metal doors.
In confronting Haynes, Mora was engaging not just the Pentagon but also
the Vice-President's office. Haynes is a protégé of Cheney's influential
chief of staff, David Addington. Addington's relationship with Cheney
goes back to the Reagan years, when Cheney, who was then a
representative from Wyoming, was the ranking Republican on a House
select committee investigating the Iran-Contra scandal. Addington, a
congressional aide, helped to write a report for the committee's
Republican minority, arguing that the law banning covert aid to the
Contras-the heart of the scandal-was an unconstitutional infringement of
Presidential prerogatives. Both men continue to embrace an
extraordinarily expansive view of executive power. In 1989, when Cheney
was named Secretary of Defense by George H. W. Bush, he hired Addington
as a special assistant, and eventually appointed him to be his general
counsel. Addington, in turn, hired Haynes as his special assistant and
soon promoted him to general counsel of the Army.
After George W. Bush took office, Addington came to the White House with
Cheney, and Haynes took his boss's old job at the Pentagon. Addington
has played a central part in virtually all of the Administration's legal
strategies, including interrogation and detainee policies. The office of
the Vice-President has no statutory role in the military chain of
command. But Addington's tenacity, willingness to work long hours, and
unalloyed support from Cheney made him, in the words of another former
Bush White House appointee, "the best infighter in the Administration."
One former government lawyer described him as "the Octopus"-his hands
seemed to reach into every legal issue.
Haynes rarely discussed his alliance with Cheney's office, but his
colleagues, as one of them told me, noticed that "stuff moved back and
forth fast" between the two power centers. Haynes was not considered to
be a particularly ideological thinker, but he was seen as "pliant,"
as
one former Pentagon colleague put it, when it came to serving the agenda
of Cheney and Addington. In October, 2002, almost three months before
his meeting with Mora, Haynes gave a speech at the conservative
Federalist Society, disparaging critics who accused the Pentagon of
mistreating detainees. A year later, President Bush nominated him to the
federal appeals court in Virginia. His nomination is one of several that
have been put on hold by Senate Democrats.
In his meeting with Haynes, Mora told me, he said that, whatever its
intent, what Rumsfeld's memo permitted was "torture."
According to Mora, Haynes replied, "No, it isn't."
Mora asked Haynes to think about the techniques more carefully. What did
"deprivation of light and auditory stimuli" mean? Could a prisoner
be
locked in a completely dark cell? If so, could he be kept there for a
month? Longer? Until he went blind? What, precisely, did the authority
to exploit phobias permit? Could a detainee be held in a coffin? What
about using dogs? Rats? How far could an interrogator push this? Until a
man went insane?
Mora drew Haynes's attention to a comment that Rumsfeld had added to the
bottom of his December 2nd memo, in which he asked why detainees could
be forced to stand for only four hours a day, when he himself often
stood "for 8-10 hours a day." Mora said that he understood that the
comment was meant to be jocular. But he feared that it could become an
argument for the defense in any prosecution of terror suspects. It also
could be read as encouragement to disregard the limits established in
the memo. (Colonel Lawrence Wilkerson, a retired military officer who
was a chief of staff to former Secretary of State Colin Powell, had a
similar reaction when he saw Rumsfeld's scrawled aside. "It said, 'Carte
blanche, guys,' " Wilkerson told me. "That's what started them down
the
slope. You'll have My Lais then. Once you pull this thread, the whole
fabric unravels.")
Haynes said little during the meeting with Mora, but Mora left the room
certain that Haynes would realize he had been too hasty, and would get
Rumsfeld to revoke the inflammatory December 2nd memo. Mora told me, "My
feeling was it was just a blunder." The next day, he left Washington for
a two-week Christmas holiday.
The authorization of harsh interrogation methods which Mora had seen was
no aberration. Almost immediately after September 11th, the
Administration had decided that protectin the country required
extraordinary measures, including the exercise of executive powers
exceeding domestic and international norms. In January, 2002, Alberto
Gonzales, then th White House counsel (he is now the Attorney General),
sent a memo to President Bush arguing for a "new paradigm" of
interrogation, declaring that the war on terror "render obsolete"
the
"strict limitations on questioning of enemy prisoners" required by
the
Geneva conventions, which were ratified by the United States in 1955.
That August, the Justic Department's Office of Legal Counsel, which
acts as an in-house law firm for the executive branch, issued a memo
secretly authorizing the C.I.A. to inflict pain and suffering o
detainees during interrogations, up to the level caused by "organ
failure." This document, now widely known as the Torture Memo, which
Addington helped to draft, also advise that, under the doctrine of
"necessity," the President could supersede national and international
laws prohibiting torture. (The document was leaked to the press in 2004,
after the Ab Ghraib scandal broke.
Lawrence Wilkerson, whom Powell assigned to monitor this unorthodox
policymaking process, told NPR last fall of "an audit trail that ran
from the Vice-President's office and the Secretary of Defense down
through the commanders in the field." When I spoke to him recently, he
said, "I saw what was discussed. I saw it in spades. From Addington to
the other lawyers at the White House. They said the President of the
United States can do what he damn well pleases. People were arguing for
a new interpretation of the Constitution. It negates Article One,
Section Eight, that lays out all of the powers of Congress, including
the right to declare war, raise militias, make laws, and oversee the
common defense of the nation." Cheney's view, Wilkerson suggested, was
fuelled by his desire to achieve a state of "perfect security." He
said,
"I can't fault the man for wanting to keep America safe, but he'll
corrupt the whole country to save it." (Wilkerson left the State
Department with Powell, in January, 2005.)
At the time, the Administration's embrace of interrogation measures
normally proscribed by the Army Field Manual remained largely unknown to
the public. But while Mora was on Christmas vacation, the Washington
Post published a story, by Dana Priest and Barton Gellman, alleging that
C.I.A. personnel were mistreating prisoners at the Bagram military base,
in Afghanistan. Kenneth Roth, the director of Human Rights Watch, warned
that if this was true U.S. officials who knew about it could be
criminally liable, under the doctrine of command responsibility. The
specific allegations closely paralleled what Mora had seen authorized at
Guantánamo.
Upon returning to work on January 6, 2003, Mora was alarmed to learn
from Brant that the abuse at Guantánamo had not stopped. In fact, as
Time reported last year, Qahtani had been stripped and shaved and told
to bark like a dog. He'd been forced to listen to pop music at an
ear-splitting volume, deprived of sleep, and kept in a painfully cold
room. Between confessing to and then recanting various terrorist plots,
he had begged to be allowed to commit suicide.
Mora suspected that such abuse was a deliberate policy, and widened his
internal campaign in the hope of building a constituency against it. In
the next few days, his arguments reached many of the Pentagon's top
figures: Deputy Secretary of Defense Paul Wolfowitz; Captain Jane
Dalton, the legal adviser to the Joint Chiefs of Staff; Victoria Clarke,
who was then the Pentagon spokeswoman; and Rumsfeld.
Meanwhile, on January 9, 2003, Mora had a second meeting with Haynes.
According to Mora's memo, when he told him how disappointed he was that
nothing had been done to end the abuse at Guantánamo, Haynes explained
that "U.S. officials believed the techniques were necessary to obtain
information," and that the interrogations might prevent future attacks
against the U.S. and save American lives. Mora acknowledged that he
could imagine "ticking bomb" scenarios, in which it might be
moral-though still not legal-to torture a suspect. But, he asked Haynes,
how many lives had to be saved to justify torture? Thousands? Hundreds?
Where do you draw the line? To decide this question, shouldn't there be
a public debate?
Mora said he doubted that Guantánamo presented such an urgent ethical
scenario in any event, since most of the detainees had been held there
for more than a year. He also warned Haynes that the legal opinions the
Administration was counting on to protect itself might not withstand
scrutiny-such as the notion that Guantánamo was beyond the reach of U.S.
courts. (Mora was later proved right: in June, 2004, the Supreme Court,
in Rasul v. Bush, ruled against the Administration's argument that
detainees had no right to challenge their imprisonment in American
courts. That month, in a related case, Justice Sandra Day O'Connor
declared that "a state of war is not a blank check for the President.")
Mora told Haynes that, if the Pentagon's theories of indemnity didn't
hold up in the courts, criminal charges conceivably could be filed
against Administration officials. He added that the interrogation
policies could threaten Rumsfeld's tenure, and could even damage the
Presidency. "Protect your client!" he said.
Haynes, again, didn't say much in response, but soon afterward, at a
meeting of top Pentagon officials, he mentioned Mora's concerns to
Secretary Rumsfeld. A former Administration official told me that
Rumsfeld was unconcerned; he once more joked that he himself stood eight
hours a day, and exclaimed, "Torture? That's not torture!" ("His
attitude was 'What's the big deal?' " the former official said.) A
subordinate delicately pointed out to Rumsfeld that while he often stood
for hours it was because he chose to do so, and he could sit down when
he wanted. Victoria Clarke, the Pentagon spokeswoman, also argued that
prisoner abuse was bad from a public-relations perspective. (Clarke
declined to discuss her conversations with Administration officials,
other than to say that she regarded Mora as "a very thoughtful guy, who
I believed had a lot of important things to say.")
By mid-January, the situation at Guantánamo had not changed. Qahtani's
"enhanced" interrogation, as it was called in some documents, was
in its
seventh week, and other detainees were also being subjected to extreme
treatment. Mora continued to push for reform, but his former Pentagon
colleague told me that "people were beginning to roll their eyes. It was
like 'Yeah, we've already heard this.' "
On January 15th, Mora took a step guaranteed to antagonize Haynes, who
frequently warned subordinates to put nothing controversial in writing
or in e-mail messages. Mora delivered an unsigned draft memo to Haynes,
and said that he planned to "sign it out" that afternoon-making it
an
official document-unless the harsh interrogation techniques were
suspended. Mora's draft memo described U.S. interrogations at Guantánamo
as "at a minimum cruel and unusual treatment, and, at worst, torture."
By the end of the day, Haynes called Mora with good news. Rumsfeld was
suspending his authorization of the disputed interrogation techniques.
The Defense Secretary also was authorizing a special "working group"
of
a few dozen lawyers, from all branches of the armed services, including
Mora, to develop new interrogation guidelines.
Mora, elated, went home to his wife and son, with whom he had felt bound
not to discuss his battle. He and the other lawyers in the working group
began to meet and debated the constitutionality and effectiveness of
various interrogation techniques. He felt, he later told me, that "no
one would ever learn about the best thing I'd ever done in my life."
A week later, Mora was shown a lengthy classified document that negated
almost every argument he had made. Haynes had outflanked him. He had
solicited a separate overarching opinion from the Office of Legal
Counsel, at the Justice Department, on the legality of harsh military
interrogations-effectively superseding the working group
There was only one copy of the opinion, and it was kept in the office of
the Air Force's general counsel, Mary Walker, whom Rumsfeld had
appointed to head the working group. While Walker sat at her desk, Mora
looked at the document with mounting disbelief; at first, he thought he
had misread it. There was no language prohibiting the cruel, degrading,
and inhuman treatment of detainees. Mora told me that the opinion was
sophisticated but displayed "catastrophically poor legal reasoning."
In
his view, it approached the level of the notorious Supreme Court
decision in Korematsu v. United States, in 1944, which upheld the
government's internment of Japanese-Americans during the Second World War.
The author of the opinion was John Yoo, a young and unusually
influential lawyer in the Administration, who, like Haynes, was part of
Addington's circle. (Yoo and Haynes were also regular racquetball
partners.) In the past, Yoo, working closely with Addington, had helped
to formulate the argument that the treatment of Al Qaeda and Taliban
suspects, unlike that of all other foreign enemies, was not covered by
the Geneva conventions; Yoo had also helped to write the Torture Memo.
Before joining the Administration, Yoo, a graduate of Yale Law School,
had clerked for Justice Clarence Thomas and taught law at Berkeley. Like
many conservative legal scholars, he was skeptical of international law,
and believed that liberal congressional overreaction to the Vietnam War
and Watergate had weakened the Presidency, the C.I.A., and the military.
However, Yoo took these arguments further than most. Constitutional
scholars generally agreed that the founders had purposefully divided the
power to wage war between Congress and the executive branch; Yoo
believed that the President's role as Commander-in-Chief gave him
virtually unlimited authority to decide whether America should respond
militarily to a terror attack, and, if so, what kind of force to use.
"Those decisions, under our Constitution, are for the President alone to
make," he wrote in a law article.
A top Administration official told me that Yoo, Addington, and a few
other lawyers had essentially "hijacked policy" after September 11th.
"They thought, Now we can put our views into practice. We have the
ability to write them into binding law. It was just shocking. These
memos were presented as faits accomplis."
In Yoo's opinion, he wrote that at Guantánamo cruel, inhumane, and
degrading treatment of detainees could be authorized, with few restrictions.
"The memo espoused an extreme and virtually unlimited theory of the
extent of the President's Commander-in-Chief authority," Mora wrote in
his account. Yoo's opinion didn't mention the most important legal
precedent defining the balance of power between Congress and the
President during wartime, Youngstown Sheet & Tube Company v. Sawyer. In
that 1952 case, the Supreme Court stopped President Truman from forcing
the steel worker's union, which had declared a strike, to continue
producing steel needed in the Korean War. The Court upheld congressional
labor laws protecting the right to strike, and ruled that the
President's war powers were at their weakest when they were challenging
areas in which Congress had passed legislation. Torture, Mora reasoned,
had been similarly regulated by Congress through treaties it had ratified.
In an e-mail response to questions this month, Yoo, who is now back at
Berkeley, defended his opinion. "The war on terrorism makes Youngstown
more complicated," he said. "The majority opinion explicitly said
it was
not considering the President's powers as Commander-in-Chief in the
theater of combat. The difficulty for Youngstown created by the 9/11
attacks is that the theater of combat now includes parts of the domestic
United States." He also argued that Congress had ceded power to the
President in its authorization of military force against the
perpetrators of the September 11th attacks.
Mora concluded that Yoo's opinion was "profoundly in error." He wrote
that it "was clearly at variance with applicable law." When we spoke,
he
added, "If everything is permissible, and almost nothing is prohibited,
it makes a mockery of the law." A few days after reading Yoo's opinion,
he sent an e-mail to Mary Walker, saying that the document was not only
"fundamentally in error" but "dangerous," because it had
the weight of
law. When the Office of Legal Counsel issues an opinion on a policy
matter, it typically requires the intervention of the Attorney General
or the President to reverse it.
Walker wrote back, "I disagree, and I believe D.O.D. G.C."-Haynes,
the
Pentagon's general counsel-"disagrees."
On February 6th, Mora invited Yoo to his office, in the Pentagon, to
discuss the opinion. Mora asked him, "Are you saying the President has
the authority to order torture?"
"Yes," Yoo replied.
"I don't think so," Mora said.
"I'm not talking policy," Yoo said. "I'm just talking about
the law."
"Well, where are we going to have the policy discussion, then?" Mora
asked.
Mora wrote that Yoo replied that he didn't know; maybe, he suggested, it
would take place inside the Pentagon, where the defense-policy experts
were. (Yoo said that he recalled discussing only how the policy issues
should be debated, and where. Torture, he said, was not an option under
consideration.)
But Mora knew that there would be no such discussion; as the
Administration saw it, the question would be settled by Yoo's opinion.
Indeed, Mora soon realized that, under the supervision of Mary Walker, a
draft working-group report was being written to conform with Yoo's
arguments. Mora wrote in his memo that contributions from the working
group "began to be rejected if they did not conform to the OLC"-Office
of Legal Counsel-"guidance."
The draft working-group report noted that the Uniform Code of Military
Justice barred "maltreatment" but said, "Legal doctrine could
render
specific conduct, otherwise criminal, not unlawful." In an echo of the
Torture Memo, it also declared that interrogators could be found guilty
of torture only if their "specific intent" was to inflict "severe
physical pain or suffering" as evidenced by "prolonged mental harm."
Even then, it said, echoing Yoo, the Commander-in-Chief could order
torture if it was a military necessity: "Congress may no more regulate
the President's ability to detain and interrogate enemy combatants than
it may regulate his ability to direct troop movements on the battlefield."
A few days after his meeting with Yoo, Mora confronted Haynes again. He
told him that the draft working-group report was "deeply flawed."
It
should be locked in a drawer, he said, and "never let out to see the
light of day again." He advised Haynes not to allow Rumsfeld to approve
it.
In the spring of 2003, Mora waited for the final working-group report to
emerge, planning to file a strong dissent. But the report never
appeared. Mora assumed that the draft based on Yoo's ideas had not been
finalized and that the suspension of the harsh techniques authorized by
Rumsfeld was still in effect.
In June, press accounts asserted that the U.S. was subjecting detainees
to "stress and duress" techniques, including beatings and food
deprivation. Senator Patrick Leahy, Democrat of Vermont, wrote to
Secretary of State Condoleezza Rice, asking for a clear statement of the
Administration's detainee policy. Haynes wrote a letter back to Leahy,
which was subsequently released to the press, saying that the Pentagon's
policy was never to engage in torture, or cruel, inhumane, or degrading
treatment-just the sort of statement Mora had argued for. He wrote in
his memo that he saw Haynes's letter as "the happy culmination of the
long debates in the Pentagon." He sent an appreciative note to Haynes,
saying that he was glad to be on his team.
On April 28, 2004, ten months later, the first pictures from Abu Ghraib
became public. Mora said, "I felt saddened and dismayed. Everything we
had warned against i Guantánamo had happened-but in a different
setting. I was stunned.
He was further taken aback when he learned, while watching Senate
hearings on Abu Ghraib on C-SPAN, that Rumsfeld had signed the
working-group report-the draft based on Yoo's opinion-a year earlier,
without the knowledge of Mora or any other internal legal critics.
Rumsfeld's signature gave it the weight of a military order. "This was
the first I'd heard of it!" Mora told me. Mora wrote that the Air
Force's deputy general counsel, Daniel Ramos, told him that the final
working-group report had been "briefed" to General Miller, the commander
of Guantánamo, and General James Hill, the head of the Southern Command,
months earlier. (The Pentagon confirmed this, though it said that the
generals had not seen the full report.) "It was astounding," Mora
said.
"Obviously, it meant that the working-group report hadn't been
abandoned, and that some version of it had gotten into the generals'
possession."
The working-group report included a list of thirty-five possible
interrogation methods. On April 16, 2003, the Pentagon issued a
memorandum to the U.S. Southern Command, approving twenty-four of them
for use at Guantánamo, including isolation and what it called "fear
up
harsh," which meant "significantly increasing the fear level in a
detainee." The Defense Department official told me, "It should be
noted
that there were strong advocates for the approval of the full range of
thirty-five techniques," but Haynes was not among them. The techniques
not adopted included nudity; the exploitation of "aversions," such
as a
fear of dogs; and slaps to the face and stomach. However, combined with
the legal reasoning in the working-group report, the April memorandum
allowed the Secretary to approve harsher methods.
Without Mora's knowledge, the Pentagon had pursued a secret detention
policy. There was one version, enunciated in Haynes's letter to Leahy,
aimed at critics. And there was another, giving the operations officers
legal indemnity to engage in cruel interrogations, and, when the
Commander-in-Chief deemed it necessary, in torture. Legal critics within
the Administration had been allowed to think that they were engaged in a
meaningful process; but their deliberations appeared to have been
largely an academic exercise, or, worse, a charade. "It seems that there
was a two-track program here," said Martin Lederman, a former lawyer
with the Office of Legal Counsel, who is now a visiting professor at
Georgetown. "Otherwise, why would they share the final working-group
report with Hill and Miller but not with the lawyers who were its
ostensible authors?"
Lederman said that he regarded Mora as heroic for raising crucial
objections to the Administration's interrogation policy. But he added
that Mora was unrealistic if he thought that, by offering legal
warnings, he could persuade the leaders of the Administration to change
its course. "It appears that they weren't asking to be warned," Lederman
said.
The senior Defense Department official defended as an act of necessary
caution the decision not to inform Mora and other legal advisers of
official policy. The interrogation techniques authorized in the signed
report, he explained, were approved only for Guantánamo, and the
Pentagon needed to prevent the practices from spreading to other
battlefronts. "If someone wants to criticize us for being too careful,
I
accept that criticism willingly, because we were doing what we could to
limit the focus of that report . . . to Guantánamo," the official
said.
In fact, techniques that had been approved for use at Guantánamo were
quickly transferred elsewhere. Four months after General Miller was
briefed on the working-group report, the Pentagon sent him to Iraq, to
advise officials there on interrogating Iraqi detainees. Miller, who
arrived with a group of Guantánamo interrogators, known as the Tiger
Team, later supervised all U.S.-run prisons in Iraq, including Abu
Ghraib. And legal advisers to General Ricardo Sanchez, the senior U.S.
commander in Iraq at the time, used the report as a reference in
determining the limits of their interrogation authority, according to a
Pentagon report on Abu Ghraib.
A lawyer involved in the working group said that the Pentagon's
contention that it couldn't risk sharing the report with its authors
"doesn't make any sense." He explained, "We'd seen everything
already."
The real reason for their exclusion, he speculated, was to avoid
dissent. "It would have put them in a bind," he said. "And it
would have
created a paper trail."
Meanwhile, Mora's warnings about the legal underpinnings of the
working-group report proved prophetic. In December, 2003, in an
extraordinary repudiation of the Administration's own legal work, the
Office of Legal Counsel quietly withdrew the Yoo opinion. The new head
of the O.L.C., Jack Goldsmith, a conservative legal scholar who now
teaches at Harvard Law School, told the Pentagon that it could no longer
rely on the legal analysis. Among other problems, Goldsmith had found
Yoo's interpretation of the President's powers overly broad. In March,
2005, the Pentagon declared the working-group report a non-operational
"historical" document. By that time, however, much of the most serious
abuse at Guantánamo had already occurred.
At the Pentagon in recent weeks, officials portrayed Mora's memo as
ancient history. They argued that they had acted quickly to rectify the
wrongs he helped expose, by limitin the list of approved interrogation
techniques. But while Mora believes that the use of cruel treatment in
interrogation has diminished, he feels that the fight to establish
clear, human standards for the treatment of detainees is not over. He
also worries that the Administration's views on interrogation have
undermined American foreign policy, in part by threatenin the
international coalition needed to fight terrorism. Allied countries may
not be able to support U.S. military actions, he said, if detainees are
treated in a manner that most nation deemed illegal
Just a few months ago, Mora attended a meeting in Rumsfeld's private
conference room at the Pentagon, called by Gordon England, the Deputy
Defense Secretary, to discuss a proposed new directive defining the
military's detention policy. The civilian Secretaries of the Army, the
Air Force, and the Navy were present, along with the highest-ranking
officers of each service, and some half-dozen military lawyers. Matthew
Waxman, the deputy assistant secretary of defense for detainee affairs,
had proposed making it official Pentagon policy to treat detainees in
accordance with Common Article Three of the Geneva conventions, which
bars cruel, inhumane, and degrading treatment, as well as outrages
against human dignity.Going around the huge wooden conference table,
where the officials sat in double rows, England asked for a consensus on
whether the Pentagon should support Waxman's proposal.
This standard had been in effect for fifty years, and all members of the
U.S. armed services were trained to follow it. One by one, the military
officers argued for returning the U.S. to what they called the high
ground. But two people opposed it. One was Stephen Cambone, the
under-secretary of defense for intelligence; the other was Haynes. They
argued that the articulated standard would limit America's
"flexibility." It also might expose Administration officials to charges
of war crimes: if Common Article Three became the standard for
treatment, then it might become a crime to violate it. Their opposition
was enough to scuttle the proposal.
In exasperation, according to another participant, Mora said that
whether the Pentagon enshrined it as official policy or not, the Geneva
conventions were already written into both U.S. and international law.
Any grave breach of them, at home or abroad, was classified as a war
crime. To emphasize his position, he took out a copy of the text of U.S.
Code 18.2441, the War Crimes Act, which forbids the violation of Common
Article Three, and read from it. The point, Mora told me, was that "it's
a statute. It exists-we're not free to disregard it. We're bound by it.
It's been adopted by the Congress. And we're not the only interpreters
of it. Other nations could have U.S. officials arrested."
Not long afterward, Waxman was summoned to a meeting at the White House
with David Addington. Waxman declined to comment on the exchange, but,
according to the Times, Addington berated him for arguing that the
Geneva conventions should set the standard for detainee treatment. The
U.S. needed maximum flexibility, Addington said. Since then, efforts to
clarify U.S. detention policy have languished. In December, Waxman left
the Pentagon for the State Department.
To date, no charges have been brought against U.S. personnel in
Guantánamo. The senior Defense Department official I spoke to affirmed
that, in the Pentagon's view, Qahtani's interrogation was "within the
bounds." Elsewhere in the world, as Mora predicted, the controversy is
growing. Last week, the United Nations Human Rights Commission called
for the U.S. to shut down the detention center at Guantánamo, where,it
said, some practices "must be assessed as amounting to torture." The
U.N. report, which the White House dismissed, described "the confusion
with regard to authorized and unauthorized interrogation techniques" as
"particularly alarming."
Mora recently started a new job, as the general counsel for Wal-Mart's
international operations. A few days after his going-away party, he
reflected on his tenure at the Pentagon. He felt that he had witnessed
both a moral and a legal tragedy.
In Mora's view, the Administration's legal response to September 11th
was flawed from the start, triggering a series of subsequent errors that
were all but impossible to correct. "The determination that Geneva
didn't apply was a legal and policy mistake," he told me. "But very
few
lawyers could argue to the contrary once the decision had been made."
Mora went on, "It seemed odd to me that the actors weren't more troubled
by what they were doing." Many Administration lawyers, he said, appeared
to be unaware of history. "I wondered if they were even familiar with
the Nuremberg trials-or with the laws of war, or with the Geneva
conventions. They cut many of the experts on those areas out. The State
Department wasn't just on the back of the bus-it was left off the bus."
Mora understood that "people were afraid that more 9/11s would happen,
so getting the information became the overriding objective. But there
was a failure to look more broadly at the ramifications.
"These were enormously hardworking, patriotic individuals," he said.
"When you put together the pieces, it's all so sad. To preserve
flexibility, they were willing to throw away our values."
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