In the Penal Colony 09/29/2005 09:19 AM Click here to return to the browser-optimized version of this page. This article can be found on the web at http://www.thenation.com/doc/20050207/hajjar In the Penal Colony by LISA HAJJAR [from the February 7, 2005 issue] Alberto Gonzales's nomination to succeed John Ashcroft as Attorney General put the Abu Ghraib torture scandal back on the front pages, since he was directly implicated, as White House counsel, in the formulation of policies authorizing and justifying the mistreatment of prisoners that paved the road to Abu Ghraib. During his confirmation hearing before the Senate Judiciary Committee, Gonzales was grilled about his judgment and views on torture. His responses were emblematic of the Bush Administration's "never say sorry" record: While he expressed the requisite abhorrence of torture, he refused to give Republican Senator Lindsey Graham and others what they wanted: a clear repudiation of the reasoning in the infamous "torture memos" that were declassified in the wake of the Abu Ghraib scandal. A good deal of credit for the political pressure to release the torture memos belongs to New Yorker writer Seymour Hersh. His April 30, 2004, report on the Abu Ghraib prison investigation by Maj. Gen. Antonio Taguba provided a deeper context for the shocking photos televised one day earlier on CBS's 60 Minutes II. Taguba had discovered not only deplorable conditions and chaos but unlawful interrogation tactics and patterns of prisoner treatment linking Iraq to Afghanistan and Guantánamo. Hersh's exposé jolted Congress into bipartisan--if short-lived--action; the Senate Armed Services Committee called for Bush Administration officials to do more than blame a few "bad apples," and the dissembling, evasiveness and, in Ashcroft's case, stonewalling merely increased pressure on the Administration to come clean. In June the first batch of secret memos was released, and multiple official investigations were tasked to report on detention and interrogation policies and practices. This documentary record failed to provide the vaunted cleansing, but it has substantially enriched our understanding of the history of the present. That Hersh broke the Abu Ghraib story is no surprise, since he is unrivaled among American investigative journalists as a leak magnet for disgruntled insiders and whistleblowing frontliners. His book Chain of Command: The Road From 9/11 to Abu Ghraib, provides a clear-eyed and sweeping survey of the terrain of American policy and the dispositions and activities of its makers. The use of torture, Hersh argues, began in Afghanistan, where Pentagon civilians sought to transform what they viewed as an "overly cautious" military culture, and spread in the late summer of 2003 to Iraq, where a growing insurgency fed desperation for "actionable intelligence." The larger question that Hersh's book raises is: How did a small group of neoconservatives come to monopolize and radically reshape US policy, intimidate the press, mislead Congress and dominate the military? Good question, but while neoconservatism may help explain much about American military and foreign policy after 9/11, it doesn't account for the legal reasoning that set the conditions for the torture scandal. For that, we need to look to the Federalist Society, an organization established by right-wing lawyers in the early 1980s to redress "liberal bias" in American law schools and the legal profession. The thinking and influence of Federalist Society types who dominate legal positions (and judicial appointments) in the Bush Administration are laid bare in the torture memos, which document the triumph of international law-averse officials in the Justice Department, the Pentagon and the White House over dissenting voices in the State Department and sectors of the professional military. The victors' most egregious mistake was to conflate international humanitarian law--the laws of war--with other bodies of international law, especially human rights law, which they loathe as constraints on US sovereignty. The Torture Papers, edited by Karen Greenberg and Joshua Dratel, reproduces many of the torture memos as well as reports of four military investigations (Taguba, Mikolashek, Schlesinger and Fay-Jones) and a February 2004 report by the International Committee of the Red Cross (ICRC). Torture and Truth presents fewer memos and reports, but offers a collection of Abu Ghraib photos, affidavits of some Iraqi victims and editor Mark Danner's incisive analysis, which originally appeared in the New York Review of http://www.thenation.com/docprint.mhtml?i=20050207&s=hajjar Page 1 of 5 In the Penal Colony 09/29/2005 09:19 AM Books. Danner relates and compares the "logic of torture" in the current American wars to what happened in Vietnam, French Algeria, Northern Ireland and Israel/Palestine. Part of this history, he explains, entailed the evolution of torture tactics from sanguinary violence to methods that manipulate the body to break the mind but leave no marks. The primary documents in these two collections--memos and interrogation policy directives--were written over the span of two years to guide and wage the "global war on terror" (or GWOT, the official acronym). The earliest memos, dating from late December 2001 and early January 2002, introduced the rationale for declaring the Geneva Conventions inapplicable and the advantages of Guantánamo as a prison and interrogation center. The principal intellectual author of these and many subsequent memos is John Yoo, a University of California, Berkeley, law professor who served in the Justice Department's Office of Legal Counsel from 2001 to 2003. Yoo and his OLC colleagues reasoned that the President has the constitutional authority to declare the Geneva Conventions irrelevant to the war in Afghanistan on the grounds that it is a "failed state," and to deny prisoner of war status to the Taliban and Al Qaeda as nonstate actors and terrorists who have no rights under international humanitarian law. Such a declaration would increase flexibility for harsh interrogation, reduce the risk that Americans could be prosecuted for torture or war crimes, and enable captives to be transported to Guantánamo (or other US-controlled secret detention facilities), where they would have no habeas corpus rights and could be held incommunicado indefinitely. While the OLC lawyers hedged their views as legal opinions, a January 25, 2002, memo from Gonzales to President Bush characterized their positions as "definitive," while noting that the State Department disagreed. (The Washington Post reported on January 5, 2005, that this memo was ghost-written by Vice President Dick Cheney's counsel David Addington.) Gonzales counseled the President that there is no crime if there is no law, one good reason to declare the Geneva Conventions "obsolete." To drive home the point, he noted that the War Crimes Act of 1996, which gives domestic courts jurisdiction to prosecute Americans or anyone else for grave breaches of the Geneva Conventions, carries penalties up to the death penalty. He added, forebodingly: "It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on [the War Crimes Act]." Immediately after, Secretary of State Colin Powell sent a memo to Gonzales criticizing the faultiness and dangers of this reasoning. Perhaps with the "Pinochet precedent" (i.e., no sovereign immunity for torture) in mind, he warned that if the United States declined to adhere to the Geneva Conventions, the effect might be to "provoke some individual foreign prosecutors to investigate and prosecute our officials and troops." Ashcroft weighed in with his own memo on February 1, presenting the President with two clear choices: A "presidential determination" that the Geneva Conventions are inapplicable (i.e., the OLC position) would have status as the law of the land, and this would insure that no court would be able to "entertain charges" against American military officers, intelligence agents or law- enforcement officials for any violations. A "presidential interpretation" that the Geneva Conventions apply, even if POW status was not extended to the Taliban (i.e., the State Department position), would put US officials and agents at risk because courts "occasionally refuse to defer to presidential interpretation." Ashcroft was goading the President with the bogyman of "activist judges," a Federalist Society obsession. The prospect that the OLC's line of reasoning might prevail raised alarms at the State Department, evident in a February 2 memo by legal adviser William Taft IV to Gonzales: "A decision that the Conventions apply...demonstrates that the United States bases its conduct not just on its policy preferences but on its international legal obligations." Five days later, in a resounding defeat for the State Department, President Bush endorsed the OLC's analysis in a secret memorandum to his National Security team, while seeking to mollify the losers with the line that US forces "shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." Since all these memos were classified at the time, the public was only aware of the outcomes--no Geneva Conventions, no prisoner status review hearings, no habeas corpus or judicial oversight--not the legal reasoning or ideological preferences and panics that produced them. Almost immediately