Torture as Public Policy

Paper prepared for presentation at the conference on Ethics and Integrity of Governance: Leuven, Belgium, June 2-5, 2005.

Torture and Public Management: The Ethics of Interrogation James P. Pfiffner School of Public Policy George Mason University ([email protected])

On the occasion of United Nations International Day in Support of Victims of Torture in June of 2003, President Bush proclaimed the official position of the United States with regard to torture: Freedom from Torture is an inalienable human right. . . . The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments . . . [to help] in prohibiting, investigating, and prosecuting all acts of torture. . . . in all its forms. . . .1 Yet at the time of this announcement, the president had already set in motion the series of events that led to the abuse, torture, and deaths of detainees at the hands of officials of the United States at Abu Ghraib and other detention centers in the world. There is no public evidence that President Bush ever ordered, approved, or condoned the torture of prisoners, yet he and other officers of the United States made decisions that set the conditions under which prisoners would be tortured and abused, as revealed first in the photographs taken in the fall of 2003 at Abu Ghraib prison in Iraq and later in a number of official investigative reports. The first section of this paper will establish that abuse and torture were in fact practiced by American soldiers (and civilian officials and contractors). It will then examine justifications for torture, its efficacy, and how ordinary Americans could commit such acts. Next, the official policy changes and justifications that led to abuse and torture will be examined. Then the operational changes and decisions which set the conditions for the abuses at Abu Ghraib will be analyzed. The article will conclude with an assessment of the chain of events that led to these unfortunate incidents. The argument of this paper is that, although there was no single policy on torture, the abuse and torture was a result of public policy decisions made over a period of time. Further, the abuse and torture involved more than the arbitrary actions of a few sadistic and ill-trained guards and was conducted in the context of perceived demands for actionable intelligence and loosened restraints on interrogation techniques. The policies regarding interrogation were different from those that were established in previous U.S. wars. They were different than formal doctrine as described in the Army Field Manual

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34-52 on interrogations. Changes were made in response to the “new paradigm” of war, and thus “nonlegal combatants” would be treated differently than other POWs. The policies that led to torture were developed through a series of legal memoranda, policy changes, and operational decisions that took place over several years.2 Torture per se was never explicitly established as policy. But formal decisions that denied “nonlegal combatants” the protections of the Geneva Conventions, memoranda that narrowed the definition of torture, and operational changes in handling prisoners, taken together, constituted a working policy that led to torture at Abu Ghraib and other U.S. detention centers. Arguably, this series of changes amounted to a change in policy that set the conditions under which torture and inhumane treatment of prisoners occurred. According to Final Report of the Independent Panel to Review Department of Defense Detention Operations (the Schlesinger Report) “There is no evidence of a policy of abuse promulgated by senior officials or military authorities. Still, the abuses were not just the failure of some individuals to follow known standards, and they are more than the failure of a few leaders to enforce proper discipline. There is both institutional and personal responsibility at higher levels.” 3 For purposes of this paper it is not necessary to define precisely where physical abuse becomes torture. It is merely necessary to document that violent abuse occurred and that, in a number of cases, it resulted in deaths of detainees. Military officials determined that 37 of 68 deaths of detainees in U.S. custody were possible homicides, with 11 considered justifiable.4 That aggressive techniques of interrogation led to the deaths of a number of prisoners is prima facie evidence that torture, however defined or justified, did occur. I. Torture and Inhumane Treatment of Prisoners In the spring and summer of 2004 it became clear that U.S. forces had abused and tortured detainees in a number of places throughout the world, including Guantanamo, Afghanistan, and Iraq. This paper will focus primarily on the abuses at Abu Ghraib and trace the chain of policies and operations that led to one of the worst scandals in U.S. military history. After U.S. forces had invaded Iraq and defeated the military forces of Saddam Hussein, the notorious prison at Abu Ghraib, which had been the center for much of Saddam’s torture and killing, was looted and stripped of any useful building materials. The U.S. occupying authority had the prison rebuilt and converted to use for U.S. occupying forces for the detention of prisoners. General Janice Karpinski took formal control of U.S. military prisons in Iraq on June 30, 2003 and the facility went into operation on 4 August 2004. A month later, General Geoffrey Miller, the commander of the U.S. detention center at Guantanamo Bay Cuba visited Abu Ghraib and recommended changes that would require the military police to assist military intelligence in its mission of extracting information from inmates of the prison. After this visit, particularly in October, November, and December of 2003,

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U.S. personnel engaged in the now notorious abuses that resulted in the humiliation, injury, and death of prisoners. The Taguba Report After photographic evidence of abuse of prisoners was reported in early January 2004, Major General Antonio M. Taguba was assigned on January 31, 2004 to investigate the abuses, and he submitted his report on February 26. His report was based on interviews of 50 witnesses, examination of all of the available photographs, the Criminal Investigations Division (CID) reports and interviews, and on-site visits to Abu Ghraib. General Taguba concluded that at Abu Ghraib “numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees. This systemic and illegal abuse of detainees was intentionally perpetrated by several members of the military police guard force.”5 The types of “intentional abuse of detainees by military police” documented included: Punching, slapping, and kicking detainees; jumping on their naked feet; Videotaping and photographing naked male and female detainees; Forcibly arranging detainees in various sexually explicit positions for photographing; . . . Forcing groups of male detainees to masturbate themselves while being photographed and videotaped; Arranging naked male detainees in a pile and then jumping on them; Positioning a naked detainee on a MRE Box, with a sandbag on his head, and attaching wires to his fingers, toes, and penis to simulate electric torture;. . . A male MP guard having sex with a female detainee; Using military working dogs (without muzzles) to intimidate and frighten detainees, and in at least one case biting and severely injuring a detainee; Taking photographs of dead Iraqi detainees.6 In addition, Taguba also concluded that the U.S. soldiers were guilty of: “Breaking chemical lights and pouring the phosphoric liquid on detainees; Pouring cold water on naked detainees; Beating detainees with a broom handle and a chair; . . .Sodomizing a detainee with chemical light and perhaps a broom stick.”7 Taguba concluded that abuse of prisoners was often done at the request of military intelligence personnel and “Other US Government Agency’s (OGA) interrogators” (i.e. CIA) in order to “set physical and mental conditions for favorable interrogation of witnesses.”8 That is, MPs were expected to make life miserable for detainees so that when they were interrogated by military intelligence personnel, they would be more likely to break down more quickly and answer questions. General Taguba was ordered to investigate the actions of MP personnel and did not report on the actions of military intelligence personnel during actual interrogation of detainees.

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International Committee of the Red Cross (ICRC) Report The International Committee of the Red Cross (ICRC) visited 14 U.S. detention sites in Iraq between March and November 2003 and objected to many cases of what were, in its judgment, abuse of detainees. It did not unilaterally publicize its findings because the agreed rules of its operation are that it works with governments to try to improve conditions rather than publicize abuses.9 The ICRC issued a confidential report in February 2004 which has now been released.10 The ICRC report catalogued a wide range of abuses and ill-treatment of detainees by U.S. and coalition forces. The main violations of the Geneva Conventions on treatment of those captured included: “Brutality against protected persons upon capture and initial custody, sometimes causing death or serious injury; absence of notification of arrest; physical or psychological coercion during interrogation; prolonged solitary confinement in cells devoid of daylight; excessive and disproportionate use of force. . . .11 The report then specified methods of ill-treatment that were most frequently alleged, including: hooding to disorient and interfere with breathing, handcuffing with flexi-cuffs that damaged wrists, beatings with hard objects, threats against family members, pressing the face into the ground with boots, solitary confinement without clothes, acts of humiliation, etc.”12 At Abu Ghraib, ICRC members directly witnessed and documented “the practice of keeping persons deprived of their liberty completely naked in totally empty concrete cells and in total darkness, allegedly for several consecutive days.”13 Perhaps most alarming in the ICRC Report is the statement: “Certain CF [Coalition Forces] military intelligence officers told the ICRC that in their estimate between 70% and 90% of the persons deprived of their liberty in Iraq had been arrested by mistake.”14 Even if the judgment of the military intelligence officers was vastly exaggerated, the implications are alarming. The routine rough and dehumanizing treatment of prisoners was not limited to those of potential high military value, but many detainees routinely received such treatment, as evidenced by the terrible treatment that four Reuters employees suffered at the hands of U.S. soldiers.15 Army Inspector General Report In July 2004 the Army released the report of its Inspector General, Lt. General Paul T. Mikolashek. His team examined 125 reports of possible abuses at 16 detention centers and concluded that 94 of them involved misconduct and that 20 resulted in deaths. His conclusion was that the abuses resulted from the “unauthorized actions taken by a few individuals, coupled with the failure of a few leaders to provide adequate monitoring, supervision and leadership over those soldiers. . . . these abuses, while regrettable, are aberrations.” 16 The bulk of his report, however, might lead one to the conclusion that the problems were systemic (as Taguba concluded) rather than individual. General Mikolashek cited as contributing to the abuses the psychological dynamics when one person has complete control over another, the lack of adequate

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training, ambiguous instructions concerning interrogations, and an uncertain command structure. But in addition “In the few cases involving the progression to more serious abuse by Soldiers, tolerance of behavior by any level of the chain of command, even if minor, led to an increase in the frequency and intensity of abuse.” He concluded that “In a high-stress, high pressures combat environment, soldiers and subordinate leaders require clear, unambiguous guidance well within established parameters that they did not have in the policies we reviewed.”17 The argument of this paper is that the abuses were systemic rather than idiosyncratic. That is, the abuse and torture by low-ranking individuals took place in the broader context of lack of training, inadequate resources, confusing policy changes, permissive guidance, and leadership failure. Fay Report While the Taguba Report focused on the behavior of the Military Police at Abu Ghraib, the Fay Report investigated the behavior of the 205th Military Intelligence Brigade.18 General Fay specifically identified 44 instances of alleged detainee abuse that were committed by soldiers and civilian contractors at Abu Ghraib. The physical abuse involved slapping, kicking, restricting breathing, dislocating the shoulder of a detainee, and other harsh treatment. Dogs were used to “threaten and terrify detainees,” and dogs were released in the cells with juvenile detainees. Clothes were taken away from detainees, with their nakedness used to shame them and increase their vulnerability; in addition, they were left naked in cells during severely cold weather. Detainees were forced into simulated sexual positions with other detainees. Although there are legitimate use of isolation, Fay concluded that isolation and deprivation of sleep were used in inappropriate ways at Abu Ghraib. Fay reports a death at Abu Ghraib as well as several alleged sexual assaults. The forty four specific incidents are listed and described in the final pages of the report. Fay argued that the abuses resulted from “systemic problems” and “intense pressure felt by the personnel on the ground to produce actionable intelligence from detainees. . . .”19 Fay concluded that “The climate created at Abu Ghraib provided the opportunity for such abuse to occur and to continue undiscovered by higher authority for a long period of time.”20 Jones Report Lieutenant General Anthony R. Jones was instructed to investigate the possible involvement of personnel higher in the chain of command than the 205th Military Intelligence Brigade.21 Jones distinguished two types of abuse that took place at Abu Ghraib. One type was “intentional violent or sexual abuse” which was due to individual criminal misconduct” that was in clear violation of law, policy, and Army doctrine. The other type was “inhumane or coercive” treatment of detainees in violation of international or U.S. criminal law. This latter type of behavior included clothing removal, use of dogs, improper imposition of isolation, and was conducted by soldiers who may have “honestly believed the techniques were condoned.”22 Jones argued that “the events at Abu Ghraib cannot be understood in a vacuum.” The causes of the abuses ranged from inadequate

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resources, to confusion about allowable interrogation techniques, to conflicting “policy memoranda”, to “leadership failure.”23 Jones concluded that “leadership failure, at the brigade level and below, clearly was a factor in not sooner discovering and taking actions to prevent” the abuses.24 FBI Reports In May of 2004 FBI officials in Iraq sent e-mails to Washington to request guidance regarding to what they should report as abuse.25 They said that before a change in policy in May 2005 that “an Executive Order signed by President Bush authorized the following interrogation techniques among others, sleep ‘management,’ use of MWDs (military working dogs), ‘stress positions’ such as half squats, ‘environmental manipulation,’ such as the use of loud music, sensory deprivation through the use of hoods, etc.”26 The sender requested guidance from the FBI general counsel as to what would in the future constitute abuse that they were obligated to report. In August of 2004 a FBI official at Guantanamo sent an e-mail reporting on “what I observed at GTMO.” The official said that he had observed on several occasions detainees “chained hand and foot in a fetal position to the floor, with no chair, food, or water. Most times they had urinated or defacated [sic]on themselves, and had been left there for 18 [to] 24 hours or more.” The temperature in the rooms was at times made extremely cold or “well over 100 degrees.”27

This section is merely meant to establish that physical and psychological abuse and torture occurred at Abu Ghraib. Many of the practices depicted above violated the Geneva Conventions, to which the United States is a party and which applied to U. S. personnel in Iraq. Though many of the cited abuses were intended to humiliate prisoners, many of them caused serious injury. In addition, treatment of prisoners caused death in a number of instances. While some of these deaths were the result of escape attempts or justifiable homicides, some were the result of physical mistreatment by U.S. personnel. Fifteen of those who died between December 2002 and May of 2004 were “shot, strangled or beaten” before they died. The circumstances surrounding a number of the deaths included “blunt force trauma,” “strangulation,” and “asphyxia due to smothering and chest compression,” among other things.28 Thus, despite the attempts by some commentators to dismiss the mistreatment of prisoners as “merely” humiliation, many actions involved severe physical pain that sometimes led to the death of detainees. The questions of why and how these acts happened will be addressed below. The analysis will first take up possible justifications for torture, it will then examine the series of memoranda that justified torture and set the tone for its practice; and finally it will document the series of operational changes that led to the abuses at Abu Ghraib.

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II.

Justifying Torture

This section will first examine the ticking time bomb scenario and the efficacy of torture before analyzing some behavioral elements of the propensity of ordinary humans to engage in torture. The Ticking Time Bomb Scenario The most compelling argument that torture may be necessary as a tactic is the “ticking time bomb” scenario. Blanket condemnations of torture are often countered with a hypothetical situation in which a captive knows where a time bomb has been hidden and refuses to divulge the information.29 In such a case, the argument goes, torture would be necessary in order to save many innocent lives. Thus torture would be justified. But notice the chain of premises upon which such a scenario rests: 1. 2. 3. 4. 5.

There must be a planned attack (the bomb is still ticking). The captive must know about the planned attack. Torture must be the only way to obtain the information. The captive must provide accurate information. If the information is obtained, there must be time and means to prevent the attack.

If any one of these premises is absent, torture will not solve the problem. Thus even if one posits that torture is justified in order to save innocent lives, as in the above scenario, most torture scenarios are ruled out. The further a situation is removed from the ticking bomb scenario, the less torture is justified. The ticking bomb scenario did not apply with respect to Abu Ghraib since the detainees were Iraqis who did not have knowledge of future planned attacks on the United States by al Qaeda. Although some detainees were involved with the insurgency, many were ordinary criminals, and some were innocent civilians detained by mistake. What the U.S. interrogators seemed to want was tactical intelligence about the Iraqi insurgency, presuming that the detainees had such information and that it would help U.S. forces tactically suppress the insurgency and avoid casualties. But this type of argument can easily be made in any combat situation. Enemy captives might conceivably have information that might help one side, and thus torture might be justified by any nation in any armed conflict. This likely justification for the use of torture to extract tactical information is the reason that rules of warfare have developed over the centuries and why the United States is a party to the Geneva Conventions. The generally accepted rules of warfare thus forbid torture and provide for the humane treatment of enemy captives. Without these rules, all armed forces would be vulnerable to torture if captured by the enemy; therefore all sides have a stake in limiting the use of torture.

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The Efficacy of Torture One of the key elements of the ticking time bomb scenario is the ability to get a person to divulge crucial information to save innocent lives. While there is a wide range of interrogation techniques, from seemingly friendly trickery to the most extreme infliction of pain, the results are mixed.30 Approaches that work with some people do not work with others. Even if people are forced to talk, they may or may not be telling the truth. They may say whatever it takes to stop the pain. Willie J. Rowell, an Army Criminal Investigation Division (C.I.D.) agent for 36 years is dubious “They’ll tell you what you want to hear, truth or not truth.”31 The Army Field Manual on interrogations states: “Army interrogation experts view the use of force as an inferior technique that yields information of questionable quality. The primary concerns, in addition to the effect on information quality, are the adverse effect on future interrogations and the behavioral change on those being interrogated. . . .”32 In testimony before Congress in March 2005, Porter Goss, Director of the CIA, said “As I said publicly before, and I know for a fact, that torture is not – it’s not productive. . . . That’s not professional interrogation. We don’t do torture.”33 In February of 2004 the CIA reported to the Bush administration that bin Laden aide, Ibn al-Shaykh al-Libi, had recanted his confession about cooperation between al Qaeda and Iraq. Recent investigations indicated that he may have told interrogators what they wanted to hear. Libi was the source of President Bush’s claim that Iraq had given training in “poisons and deadly gasses” to al Qaeda. Libi’s statement was made subsequent to “aggressive interrogation techniques” intended to get him to talk. 34 It would be ironic if one of the Bush administration’s reasons for war with Iraq was based on false evidence coerced by “aggressive” interrogation of an al Qaeda operative. Several British detainees at Guantanamo said that they were tortured in order to force them to admit that they went to Afghanistan to fight a holy war and that they were in a video of Osama bin Laden in 2000. They denied that they had been involved in these activities, but said that they confessed to stop the pain and ill treatment.35 Torturing prisoners to “confess” is even less defensible than revenge as a rationalization and is reminiscent of the worst of Soviet prisons and the Grand Inquisition. Behavioral Dimensions of Torture In the wake of the publication of the Abu Ghraib photographs of abuse, many citizens asked, ‘How could these violent acts have been committed by U.S. soldiers?’ Part of the answer is that most human beings can be heavily influenced by their immediate social settings. The essence of professional military forces is the channeling of violence in effective and controlled manner. Military training must first overcome the socialized inhibitions against killing other humans; then it must then limit killing to the designated enemy. The dynamics of violence are so volatile that strict discipline is essential in any

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military force. Discipline is of course necessary in order to get humans to risk their lives in the face of extreme danger and to coordinate forces in battle. But discipline is also necessary to limit the violence to mission accomplishment and not allow it to spill over to unnecessary brutality or violence to noncombatants. Thus discipline and honor have been the hallmarks of the best professional military organizations throughout history. In addition to the protection of noncombatant persons from violence, the system of limits extends to enemy forces that are captured. Despite the failure of many military organizations to live up to these ideals, the ideals are important to limit the destructiveness of warfare and the need to control the most violent tendencies of humans under pressure.36 U.S. military training includes familiarity with the general limits of violence and specifically the provisions of the Geneva Accords with regard to prisoners. What then, went wrong at Abu Ghraib? How could U.S. soldiers commit the terrible acts that have been recorded in the photographs that have been spread throughout the world? Some general conclusions about the potential for inhumane behavior by ordinary individuals will be presented before analyzing the specific preconditions for the abuses that occurred at Abu Ghraib. In trying to understand how the Holocaust could have occurred in Germany in the 1930s and 1940s, scholars have posited a number of explanations. But it has become clear that the actions necessary to exterminate Jews in large numbers were carried out in part by ordinary people (military and civilian) and not merely by Nazi party members or S.S. forces. One of the insights of Hannah Arendt, in what she describes as “the banality of evil, was that ordinary people doing what they saw as their jobs and duties, were capable of contributing to heinous acts.”37 In Unmasking Administrative Evil, Guy Adams and Danny Balfour explore how public administrators can contribute to evil acts as they conscientiously perform their expected duties. Their argument is that large scale evil is often masked; that is, the perpetrators are merely doing their assigned tasks conscientiously and do not believe they are doing anything wrong. But their acts cumulatively result in evil outcomes, as in the Holocaust.38 In the 1960s psychologist Stanley Milgram of Yale designed an experiment intended to show how Americans would not be as compliant as were Germans when asked to inflict pain on other human beings. In the experiment the subject was told that it was about the connection between electrical shock and memory. The subject was supposed to deliver a shock to a person (in reality, an actor) in the next room every time an incorrect response was given. The shocks were calibrated from 15 volts to 450 volts, and as the supposed voltage of the shocks was increased the actor expressed increased pain. If the subject hesitated to administer the next level of shock, the experimenter, with the help of a white lab coat and the voice of scientific authority, prompted the subject to apply the shock despite the screams of pain from the actor in the next room. Ninety-nine percent of the subjects were willing to administer the “strong” shock of 135 volts, and 62 percent were willing to go to the “XXX” category of 435 and 450 volts.39

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This classic experiment (which would not be allowed in any universities now) demonstrated that regular Americans, with their individualistic cultural values, were not as different from what Germans were thought (by Americans) to be with their supposedly more authoritarian and conformist culture. One of the lessons of this experiment is that Americans would go much further than was predicted (by Milgram) along a path of inflicting pain on others when it appeared to be sanctioned by science and authority. Another classic experiment on the malleability of Americans’ behavior was conducted at Stanford University in the 1970s. The purpose of the experiment was to examine the nature of adopted roles in organizational behavior. The experimenters in the psychology department selected what they determined to be 22 normal undergraduate men and randomly assigned them to be either jailors or prisoners in a simulated prison set up in the basement of the psychology building. The “ground rules” were that the prisoners would be treated as prisoners but would not be subject to any inhumane treatment. The experiment had to be terminated after six days rather than running the planned two weeks because of the brutality that the “guards” developed and their brutality toward and mistreatment of the “prisoners.” Again, this experimental evidence illustrates how seemingly ordinary and normal people can exhibit extraordinarily inhuman behavior under the right conditions. In this case the conditions were only the “prison” environment. The guards knew the prisoners were guilty of nothing but being part of the experiment which assigned them the role of prisoner. The experimenters concluded: “In less than a week, the experience of imprisonment undid (temporarily) a lifetime of learning; human values were suspended, self-concepts were challenged and the ugliest, most base, pathological side of human nature surfaced. We were horrified because we saw some boys (“guards”) treat other boys as if they were despicable animals, taking pleasure in cruelty . . . .”40 The power of role playing was also illustrated during Army training exercises at Guantanamo Bay in 2003. Specialist Sean Baker, 37, of the 438th Military Police Company was playing the role of an uncooperative detainee. Baker was beaten so harshly by four soldiers that he suffered traumatic brain injury. Finally when the soldiers realized that he could be an American, they stopped beating him.41 Given these two classic experiments, it should not surprise us that good, normal young men and women would be capable of inhumane behavior. Their behavior may have been aggravated because they were guarding prisoners who of a different racial/cultural background who they may have believed might have been guilty of attacks on U.S. forces. This is why rules, procedures, and strict adherence to standard operating procedures are so important in military prisons. How those rules, procedures and prohibitions against torture and inhuman treatment of detainees were undermined is the subject of the next two sections of this article: the legal memoranda concerning torture and the operational decisions made at Abu Ghraib. The following analyses will be used to argue against the “few bad apples” argument that the abuses were merely the result of a few sadistic guards. This paper will

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argue that rather than a few bad apples, the problem was systemic, if not widespread, and that the series of memoranda and operational changes created the conditions in which such torture could take place. III. Legal Memoranda set the Conditions for Torture Several sets of legal analyses were developed by the Bush administration that loosened the bounds traditionally set on treatment of prisoners. The memoranda argues that the Geneva Conventions did not apply to members of al Qaeda, that torture had a very high threshold, and that neither international agreements nor U.S. public law bind the President with respect to the treatment of prisoners. Suspending the Geneva Conventions The question of whether President Bush should declare that the Geneva Conventions did not apply to al Qaeda or the Taliban was the subject of a series of memoranda in early 2002. On January 9 Deputy Assistant Attorney General John Yoo wrote a memorandum concluding that the Geneva conventions do not protect members of al Qaeda because they were non state actors.42 The main justification for excluding members of al Qaeda from the Geneva Convention provisions for treatment of prisoners was that the war on terror was a new type of war that was not between traditional nation states. Yoo argued that the drafters of the Geneva Convention “could not have” contemplated a conflict between a nation state and a “transnational terrorist organization.” (p. 10) He thus concluded that the Geneva conventions should not apply to the treatment of al Qaeda prisoners. One of the main concerns of the administration seems to have been that U.S. soldiers could be prosecuted under the U.S. War Crimes Act (18 U.S.C. Par. 2441 (Sup. III 1997) (WCA). Section 2441 of the War Crimes Act defines “war crimes” as a “grave breach” of the Geneva Conventions, which includes “willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health . . . or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.”43 This January 9 Yoo memo was followed by a memorandum by Assistant Attorney General Jay S. Bybee that argued that the treaties concerning the laws of armed conflict (particularly Geneva Convention III concerning prisoners of war) do not protect members of al Qaeda because they were “non-State” actors.44 Then on January 25, 2002 Counsel to the President Alberto Gonzales wrote a memo that affirmed the reasoning of the DOJ memos and recommended that the Geneva Convention III on Treatment of Prisoners of War (GPW) should not apply to al Qaeda and Taliban prisoners. He reasoned that the war on terrorism was “a new kind of war” and that the “new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners. . . .”45 Gonzales restated the memos’ arguments that exempting captured al Qaeda and Taliban prisoners from the Geneva Convention protections would preclude the prosecution of U.S. soldiers under the

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War Crimes Act. “A determination that GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actions taken with respect to the Taliban.” (p. 2) Secretary of State Colin Powell objected to the reasoning of the Justice Department and the President’s Counsel, Alberto Gonzales. In a memo of January 26, he argued that the drawbacks of deciding not to apply the Geneva Conventions outweighed the advantages because “It will reverse over a century of policy. . .and undermine the protections of the law of war for our troops, both in this specific conflict and in general; It has a high cost in terms of negative international reaction. . . ; It will undermine public support among critical allies. . . .”46 Powell also noted that applying the Convention “maintains POW status for U.S. forces. . . and generally supports the U.S. objective of ensuring its forces are accorded protection under the Convention.” The memo also addressed the intended applicability of the Convention to non-traditional conflicts: “[T]he GPW was intended to cover all types of armed conflict and did not by its terms limit its application.”47 According to the Schlesinger Report, the Legal advisor to the Chairman, Joint Chiefs of Staff and “many [uniformed] service lawyers” agreed with the State Department’s position.48 Despite Powell’s memo, and in accord with the Justice Department and his counsel’s recommendations, President Bush signed a memorandum on February 7, 2002 that stated: “Pursuant to my authority as Commander in Chief . . . . I . . determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva.” The memo argued that the Geneva Convention applies only to states and “assumes the existence of ‘regular’ armed forces fighting on behalf of states,” and that “terrorism ushers in a new paradigm,” that “requires new thinking in the law of war.” The president also affirmed that “Of course, our values as a Nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment.”49 This determination allowed the use of aggressive techniques of interrogation used by the CIA and military intelligence at Guantanamo that were later, in the fall of 2003, transferred to the prison at Abu Ghraib. The changes in policy regarding the status of prisoners at Guantanamo upset top level military lawyers in the Judge Advocate General Corps, including lawyers in the Chairman of the Joint Chiefs of staff’s office. In 2003 a group of JAG officers went to visit the New York City Bar Association’s Committee on International Human Rights. They were concerned about “a real risk of disaster,” a concern that later proved to be prescient. 50 The point, for purposes of this paper, is not that the legal reasoning supporting the policy decision was wrong, but rather that as a policy decision, it had the drawbacks specified by Secretary Powell.51 The President’s decision also led to the expansion of interrogation techniques that were used at Guantanamo via Secretary Rumsfeld’s decisions about allowable techniques, and also to the “migration” of those techniques to

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Iraq, which, unlike Guantanamo, the United States considered to be covered by the Geneva Conventions.52 Office of Legal Counsel Memorandum on Torture The CIA requested that the Justice Department give them an opinion on the use of techniques that they had been using in their questioning of suspected al Qaeda members.53 Assistant Attorney General Jay S. Bybee, head of the Office of Legal Counsel, wrote a 50 page, single-spaced legal memorandum that was carefully argued and thoroughly researched dealing with what would constitute torture under Title 18 of the U.S. Code (criminal law) which applied the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment to the United States.54 The Geneva Conventions require that “no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever.”55 The Convention Against Torture, as ratified by the United States, emphasizes that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”56 The Torture Victims Protection Act defines torture as an: “act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”57 Part I of the Bybee memo construes the definition of torture narrowly and elevates the threshold of “severe pain” necessary to amount to torture. “We conclude that for an act to constitute torture, it must inflict pain that is . . . equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” (p. 1, 6) This narrow definition would allow a wide range of brutal actions that do not meet the exacting requirements specified in the memo. The memo specifically excludes from torture “cruel, inhuman, or degrading treatment or punishment,” some examples of which are specified, such as wall standing, hooding, noise, sleep deprivation and deprivation of food and drink. But the memo did specify that some practices would be torture, such as severe beatings with clubs, threats of imminent death, threats of removing extremities, burning, electric shocks to genitalia, rape or sexual assault. (pp. 15, 24, 28) According to the memo, for the law to apply, the torturer must have the “specific intent to inflict severe pain” and it must be his “precise objective.” (p. 3) “Thus, even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith.” Thus one could inflict pain that amounted to torture, but not be guilty of torture if the main objective was, for instance, to extract information rather than to cause pain. This reasoning borders on sophistry.58

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In Section V, the memo argues that the president’s commander-in-chief authority can overcome any law. “[T]he President enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces.” (p. 33) Thus “Any effort to apply Section 2340A in a manner that interferes with the President’s direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional.” (p. 31) Although the memo mentions al Qaeda in this connection, the arguments are broad enough to apply to any “military campaign.” (p. 36) It argues further than any effort by Congress to limit the interrogation of enemy combatants would be unconstitutional. (p. 39) This argument was made despite Article I, Section 8 of the Constitution, which provides that Congress shall have the power “To make Rules for the Government and Regulation of the land and naval Forces.”59 Finally the memo argues that any U.S. person accused of torture who was acting pursuant to the orders of the commander-in-chief could defend against the charge by arguing, among other things, “the right to self-defense,” since “the nation itself is under attack.” (p. 44.) This overly broad defense of torture could be used in virtually any military or combat situation. The use of the commander-in-chief clause to defend against a charge of torture, however, was risky for the president, because it directly connects the president and his constitutional authority with the acts of torture. A contractor, CIA agent, or soldier cannot invoke the commander-in-chief power; only the president can. The memo thus makes a direct connection between the actions of potential torturers and the president by arguing that it is the president who is not bound by the law. The Article II, Section 3 provision of the Constitution that the President “shall take care that the Laws be faithfully executed,” would thus be negated by the Commander-in-Chief clause as would the Article I, Section 8 provision that Congress has the authority to “make Rules concerning Captures on Land and Water.”60 The memo also seems to argue that the president, when acting as commander-in-chief, is above the law because no congressional enactment (whether signed by a president or not) can impinge on the president’s authority with respect to the interrogation of enemy combatants. In June of 2004 Alberto Gonzales tried to minimize the importance or the legal status of administration memos about torture, saying they were “unnecessary, over-broad discussions” and “not relied upon” by policy makers.61 But the previous year he placed strong emphasis on the legal importance of Office of Legal Counsel opinions. “OLC’s interpretation of this legal issue [Geneva Conventions applicability to al Qaeda] is definitive. The Attorney General is charged by statute with interpreting the law for the Executive Branch. This interpretive authority extends to both domestic and international law. He has, in turn, delegated this role to OLC.”62

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IV. Operational Decisions and Directives Several key changes in the operation of U.S. forces with respect to U.S. prisoners were made that allowed the abuses at Abu Ghraib to occur: special techniques of interrogation were allowed and used at Guantanamo, the techniques and procedures at Guantamo were transferred to Afghanistan, and the techniques and personnel were transferred from Afghanistan to Abu Ghraib.63 Guantanamo In January 2002, prisoners were brought to Guantanamo, which was under the command of Military Police General Rick Baccus who had prisoners treated “by the book” of Geneva rules, giving them copies of the Qur’an and posting rights of prisoners.64 But this approach did not satisfy the Defense Department leadership, and in October of 2002, Baccus was relieved and replaced by General Geoffrey Miller, a military intelligence officer. This change of control of the detention center from military police to military intelligence control foreshadowed the change in control of Abu Ghraib that would occur in 2003 and lead to the abuse publicized world-wide in photographs. On October11, 2002, LTC Jerald Phifer at Guantanamo requested approval of three categories of interrogation techniques beyond those specified in the Army Field Manual. Army Field Manual 34-52 describes a number of techniques that could be used to induce cooperation from a detainee. The techniques generally involve developing a rapport with the prisoner and using positive and negative psychological techniques to get the prisoner to reveal information that may be useful. None of these techniques approaches torture.65 The techniques in Category I included yelling at the detainee and convincing the detainee that the interrogator is from a country that practices torture. Category II included using stress positions (like standing) for four hours, isolation for up to 30 days, deprivation of light and auditory stimulation, hooding, interrogations up to 20 hours, removal of clothing, and use of special fears, such as dogs. Category III included “use of mild, non-injurious physical contact,” exposure to cold weather or water, convincing the detainee that “death or severely painful consequences are imminent for him and/or his family,” and the use of dripping water on a wet towel over the detainee’s face to induce the misperception of suffocation.66 According to one military official, “We’d been at this for a year-plus and got nothing out of them,” so it was concluded that “we need to have a less-cramped view of what torture is and is not.”67 Maj. Gen. Michael B. Dunlavey forwarded the requested changes and justified them by arguing that the normal field manual techniques “have become less effective over time.”68 His request was forwarded to Secretary Rumsfeld by Defense Department General Counsel William J. Haynes II on November 27, 2002 with the recommendation that 17 new techniques in several categories be authorized.69 In December of 2002, Secretary Rumsfeld approved all 17 techniques of interrogation included in Categories I and II and only the one in Category III that allowed non-injurious physical contact.70 Then, after some of the techniques were actually used

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in Guantanamo, concern was expressed by some military officials, and Rumsfeld on January 15, 2003 rescinded his December decision.71 He officially approved a list of 24 techniques which included those in the Army Field Manual and included the warning that some of the other techniques were likely prohibited by the Geneva Conventions, such as isolation and “attacking or insulting the ego of a detainee.”72 The Schlesinger Report concluded that “It is clear that pressure for additional intelligence and the more aggressive methods sanctions by the Secretary of Defense resulted in stronger interrogation techniques.”73 Some of the techniques approved at Guantanamo as specified in these documents violated the Geneva Conventions, such as stress position, up to 30 days of isolation, and removal of clothing.74 Most of the techniques did not amount to torture, though some of them were harsh and might amount to torture, depending on the intensity and application (e.g. 30 days isolation, sensory deprivation, 20 hours interrogations, and non-injurious physical contact).75 According to the Wall Street Journal techniques that were used included deprivation of food, deprivation of sleep (for up to 96 hours), deprivation of clothes, and shackling in stress positions.76 The problem, of course, is that in the actual practice of interrogations, as was evident at Abu Ghraib, guards and interrogators can easily get carried away and move beyond the bounds specified in the legal memoranda. Ensuring that this does not happen is the obligation of leadership. It was after General Miller “Gitmo-ized” Abu Ghraib, that the abuses and systematic humiliation occurred. Despite the use of additional interrogation techniques at Guantanamo, no ticking time bomb plots were discovered, though some useful intelligence was discovered. According to some defense officials, of the approximately 600 men imprisoned at Guantanamo, only one third to one half of the inmates seemed to be of value.77 Abu Ghraib After the initial combat phase of the invasion was completed, the ensuing looting made Abu Ghraib unusable as a U.S. detention facility. Prisoners were temporarily detained at Camp Cropper near the Baghdad airport, which was designed for 250 prisoners but which held up to 1000 at times. At the same time Camp Bucca in southern Iraq held up to 7,000 detainees. On June 30, 2003 Brigader General Janice Karpinski took command of the 800th Military Police Brigade, which was in charge of all military prisons in Iraq, and on August 4 Abu Ghraib was opened for use by U.S. military police. The prison was undermanned, and the MPs were operating under very harsh conditions, with about 450 MPs policing 7,000 inmates. In the fall of 2003, most of the prisoners were common criminals.78 The lack of personnel and resources played an important role in creating the conditions that allowed the abuse and torture to occur. The low-level MPs were overworked, ill trained, and without proper supplies to carry out their mission. The stress created by these conditions contributed to the unacceptable behavior of the guards, though it does not excuse it.

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In August, Under Secretary of Defense for Intelligence, Stephen Cambone had his deputy, Lt. General William (Jerry) Boykin, organized a visit of Guantanamo commander General Geoffrey Miller to Abu Ghraib with a view toward improving its operation and increasing the collection of intelligence about the uprising against U.S. forces. Miller favored employing some of the procedures used at Guantanamo, and his conclusion was that MPs should be actively involved in intelligence collection by “setting the conditions” for prisoner interrogation by military intelligence troops (and CIA and contractor personnel). General Karpinski said that she objected to Miller’s assertion of authority and intention to “Gitmo-ize” the facility for which she was officially responsible. His response, according to her was, “You can do this my way, or we can do it the hard way.”79 The subsequent changes in the methods of interrogation, according to Col. Thomas Pappas, Commnander of the 205th Intelligence Brigade, were “enacted as the result of a specific visit by Maj. Gen. Geoffrey Miller.”80 Other changes by Miller were intended to change the role of MPs from their official mission of detaining and caring for prisoners to actively helping military intelligence extract information from the prisoners. Although Miller maintained that it was necessary to provide a safe and humane environment, his assessment also stated that “it is essential that the guard force be actively engaged in setting the conditions for successful exploitation of the internees.”81 The problem with Gen. Miller transferring the interrogation techniques and other procedures from Guantanamo to Abu Ghraib, according to the Taguba Report, was that the two detention facilities had different functions and different types of detainees. Guantanamo was intended to hold members of al Qaeda who potentially had information related to possible future terrorist attacks on the United States, while those in Abu Ghraib held large numbers of “Iraqi criminals” and individuals involved in the uprising against U.S. forces. In addition, according to Army doctrine, the role of MPs should remain distinct from that of military intelligence personnel.82 MPs reported that military intelligence personnel encouraged them to abuse the detainees and praised them when they did. For instance, the MI personnel were quoted as saying, “Loosen this guy up for us. Make sure he has a bad night. Make sure he gets the treatment.” When they did what MI wanted, they were praised: “Good job, they’re breaking down real fast. They answer every question. They’re giving out good information. Keep up the good work.”83 When asked about the abusive techniques, one MP said, “I witnessed prisoners in the MI hold section, wing 1A being made to do various things that I would question morally. In Wing 1A we were told that they had different rules and different SOP for treatment. I never saw a set of rules or SOP for that section just word of mouth.”84 Taguba found that the the MPs at Abu Ghraib “had received no training in detention /internee operations,” and that they had little or no instruction on the Geneva rules for prisoners of war, which officially did apply to the Iraq conflict.85 In August 2003, there was no formal policy for interrogation at Abu Ghraib aside from the standard Army field manual.86 After Miller’s visit in early September,

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according to Karpinski, Col. Pappas formally asked General Sanchez to “escalate” the level of interrogations.87 In a memo dated September 14, 2003 General Sanchez relayed the specific interrogation techniques memo. The transmittal memo stated that the “Counter-Resistance Policy” was “modeled on the one implemented for interrogations conducted at Guantanamo Bay,” but modified to take into account the Geneva Conventions, and he instructed: “my intent is to implement this policy immediately.”88 The techniques included “dietary manipulation,” “adjusting temperature,” “isolation” (though for more than 30 days required special permission), use of “Military Working Dogs” (muzzled), “sleep management” of up to 20 hours per day, “loud music and light control,” and “stress positions.”89 After the objections of officials at U.S. Central Command in Florida, Sanchez on October 12 rescinded some of the tactics on the list and insisted that the use of some of them required his direct approval. These included the use of dogs, more than 30 days isolation, and maintaining stress positions for 45 minutes. At the same time, an “Interrogation Rules of Engagement” memo of October 9 said “at no time will detainees be treated inhumanely nor maliciously humiliated.”90 The Schlesinger Report found that Lt. General Sanchez’s command, “reasoning from the President’s memorandum of February 7, 2002,” believed that the presence of “unlawful combatants” justified more aggressive interrogation techniques.91 Schlesinger also concluded that these changes caused confusion among U.S. personnel at Abu Ghraib as to which techniques were acceptable and which were not.92 Military Intelligence was officially given control of Abu Ghraib on November 19, 2003, which formalized the replacement of military police control with military intelligence control. This change was criticized by the Taguba Report as being “not doctrinally sound” and confused the roles and missions of the two different types of units: the MPs to hold and care for prisoners and MI to extract as much information as possible.93 It was during the October-December period that the abuses at Abu Ghraib were photographed.

V. Conclusion: Links in the chain of torture policy There is no evidence that President Bush ever directly ordered, allowed, or condoned the torture of prisoners; nor is it likely that Secretary Rumsfeld foresaw the final consequences of his changes in policy for the interrogation of prisoners. So who was responsible for abuses and torture of U.S. prisoners during the war on terror and the war in Iraq? The argument of this paper is that formal changes from previous policy make a difference; memoranda are read and acted upon by civilian and military leaders; pressure from above for “actionable intelligence” is taken seriously. For instance, the visit of a “senior member of the National Security Council staff to Abu Ghraib in November 2003 sent a strong signal that intelligence in Iraq was valued at the highest levels of the United States government.94 Army Lt. Col Steven Jordan, head of the Joint Interrogation and Detention Center at Abu Ghraib said that he felt

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pressure to produce more actionable intelligence from senior officials who said the reports were read by Secretary Rumsfeld and particularly from the visit of Fran Townsend, deputy assistant to President Bush and one of the top aides to Condollezza Rice on the NSC staff.95 Although it is impossible to specify clearly a firm chain of causation, the thrust of this argument is that the series of actions, specified above, set the conditions for and allowed the abuse and torture at Abu Ghraib. There is no claim that the intention of higher policy makers intended that their actions would lead to the more severe abuses, but on the other hand, they did intend that their actions would have a positive effect on intelligence gathering. The following actions contributed to the conditions under which abuse and torture occurred at Abu Ghraib. • • • • • • • • • • • •

President Bush and Secretary Rumsfeld decided, against the advice of some professional military officers, to limit the number of troops sent to Iraq.96 [cite Blind into Baghadad, Jones, Schlesinger, p. 10-11.] President Bush decided that the Geneva Conventions did not apply to al Qaeda. Ast. Attny. General Bybee defined torture narrowly and argued that the commander-in-chief power negated the public law against torture. Secretary Rumsfeld expanded the range of permissable interrogation tactics. Secretary Rumsfeld decided that military intelligence would control Guantanamo. Stephen Cambone sent Gen. Miller to change interrogation policy at Abu Ghraib. Gen. Miller decided that MI priorities would prevail over MP control. Gen. Karpinski did not ensure that her MP troops were well trained or supplied. Gen. Sanchez expanded the range of interrogation techniques allowed at Abu Ghraib. Col. Pappas ran Abu Ghraib with an emphasis on extracting actionable intelligence. Members of the 205th Military Intelligence directed MPs to “set the conditions” for interrogations. Members of the 372nd Military Police Company committed the abusive acts that were photographed.

Each of the above actions was partially responsible for the abuse and torture at Abu Ghraib, whether intended or not. The proximate causes of the abuse and torture were the low ranking individuals who actually performed the actions, and they are responsible for their behavior. Their belief that their actions were ordered or encouraged by their superiors might be offered as mitigating circumstances, but “just following orders” is not a sufficient exculpation, as the Nurenberg trials established. While the most direct culpability belongs at the lowest levels, leadership responsibility is highest at the top levels. Leaders have the responsibility for the likely consequences of their official actions.

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The Army moved to discipline those who had been involved in abuse and torture. Changes in Army doctrine and procedures were made to prevent the recurrence of such actions in the future. On April 22, 2005 Army Inspector General, Lt. Gen. Stanley E. Green, issued a report that cleared four of the top five Army officers who were responsible for the prisons in Iraq in 2003 and 2004.97 The report concluded that neither General Sanchez, nor any one higher in the chain of command was deserving of discipline. The conclusion of the report was that direct culpability for the abuse was at the brigade level and below. Other officers were still being considered for administrative (not criminal) discipline in April of 2005. The Army said that 125 military soldiers and officers involved in the abuses at Abu Ghraib were given administrative reprimands or tried in courts-martial. Five of seven low ranking soldiers pleaded guilty to charges and two were being court-martialed. One of the leaders of the abuse, Spec. Charles A. Graner Jr., was sentenced to ten years in prison. Even though many individuals fell short of the high standards expected of them, it must also be kept in mind that at many points in the series of actions, courageous individuals objected to the policies that led to abuse and torture: • • • • • • •

Secretary Powell objected to excluding prisoners from the Geneva Conventions. JAG officers objected to ignoring the Geneva Conventions. U.S. officers at Guantanamo objected to the additional techniques of interrogation approved by Rumsfeld. An MP captain at Abu Ghraib refused to have his MPs keep prisoners up for 24 hours prior to interrogation at the request of military intelligence officers.98 Navy dog handler William J. Kimbro refused to have his dog be used to terrorize prisoners at Abu Ghraib.99 Specialist Joseph M. Darby turned in to military law enforcement a CD containing photographs that he found to be disturbing. Gen. Taguba took his assignment seriously and reported thoroughly on the abuses at Abu Ghraib.

In the end, the most compelling arguments against torture are moral and practical rather than legal. The practice of torture brutalizes and dehumanizes its victims, but it also brutalizes and dehumanizes those who torture their fellow human beings. A strong argument can be made that torture is never justified. If revenge for a heinous crime is the purpose, the death penalty or life imprisonment are available; torture for revenge has been rejected by all civilized countries. Even in the case of the ticking time bomb scenario, the likelihood of success is uncertain, and the dangers of its use are multiple. The main problem is that the slope from the ticking bomb to routine torture for tactical purposes is very slippery, as is evident from our Abu Ghraib experience, the French experience in Algeria, and the experience with the Landau Commission Report in Israel.100 Even in the ticking time bomb scenario, it would be better to trust the careful judgment of a military tribunal (or

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judge or jury) that torture was in that case justified. Genuine cases of the ticking time bomb scenario can arguably be used as an adequate defense for torture. The consequences of formally adopting torture in official policy, even in very narrow circumstances, are simply too dangerous. Once torture is justified, it is difficult to distinguish the “ticking bomb” scenario from the pressing need for “actionable intelligence” in tactical situations. Aside from policies that explicitly approve torture, policies that lower the bar for its use or raise the threshold for its prosecution run the risk of greasing the slippery slope to its actual use. Broad arguments (such as a “new paradigm” of war or redefining torture to narrow its applicability, or invalidating anti-torture laws that might conflict with the commander-in-chief clause) tend to signal a permissive policy toward torture that is difficult to contain. Once abuse or torture is justified for one class of prisoners (e.g. al Qaeda members) or one class of situations (e.g. possible knowledge of future terrorist attacks), it is difficult to limit its use, as the experience at Abu Ghraib demonstrates. It is, unfortunately, only a small step from special situations to the justification of further torture by the need to save lives on the battlefield and torturing any prisoner who might have any tactical knowledge that might help save the lives of one’s fellow combatants. In addition, in an institutional situation where many prisoners are incarcerated, it becomes very difficult to distinguish those who are directly linked to any specific hostile action and those who have been imprisoned merely to keep them off the battlefield or even by mistake. This lack of discrimination was evident at Abu Ghraib and is reinforced by the Stanford role playing experiment. Remember that the ICRC was told by U.S. sources that 70-90 percent of the prisoners at Abu Ghraib were there by mistake, and that some military officers judged that one-half to one-third of the prisoners at Guantanamo had little intelligence value.101 Guards accustomed to abuse and torture often do not carefully distinguish among their prisoners. It is an open question about how the broad framing of the conflict in Iraq may have affected the willingness of U.S. soldiers to torture detainees. Asserting that the occupation of Iraq is part of the Global War on Terror and that the United States is engaged in a war of good against evil and that the United States is acting in conformance with God’s will may very well make it easier to torture those who seem to be against the United States in the struggle.102 Carrying out God’s will was used as the justification for the terrors inflicted by the Catholic Church in Spain on Jews as well as other Christians during the Grand Inquisition of the 15th Century.103 But the United States should pay heed to Nietzsche’s admonition: “He who fights with monsters should be careful lest he thereby become a monster.”104

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Acknowledgments: The author would like to thank the following friends and colleagues for encouragement and advice about this paper: Debra Berghofren, Mary Anne Borrelli, Nigel Bowles, Jason DeChant, Mary Lenn Dixon, Lou Fisher, Frank Fukuyama, Matthew Holden, Loch Johnson, Don Kash, Norm Olson, Bill Richter, John Ritzert, Herman Schwartz, Bob Spitzer, Rich Stillman, Fred Timm, Ed Turner, Clyde Wilcox, and Andy Wilson. Needless to say, none of these people should be assumed to agree with my analysis; in fact, some of them disagreed, and their comments were sometimes very helpful.

Author James P. Pfiffner is University Professor in the School of Public Policy at George Mason University. He has written or edited ten books on the presidency and American National Government, including The Strategic Presidency: Hitting the Ground Running (2nd edition, 1996), The Modern Presidency (4rd edition, 2004), and The Character Factor: How We Judge Our Presidents, (2004). While serving with the 25th Infantry Division (1/8 Artillery) in 1970 he received the Army Commendation Medal for Valor in Vietnam and Cambodia.

ENDNOTES 1

The broader context of his remarks reads: “Freedom from Torture is an inalienable human right. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, ratified by the United States and more than 130 other countries since 1984, forbids governments from deliberately inflicting severe physical or mental pain or suffering on those within their custody or control. Yet torture continues to be practiced around the world by rogue regimes whose cruel methods match their determination to crush the human spirit. Beating, burning, rape, and electric shock are some of the grisly tools such regimes use to terrorize their own citizens. These despicable crimes cannot be tolerated by a world committed to justice. . . . The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments . . . in prohibiting, investigating, and prosecuting all acts of torture. . . . in all its forms. . . .Nowhere should the midnight knock foreshadow a nightmare of state-commissioned crime.” The White House; Statement by the President; United Nations International Day in Support of Victims of Torture (26 June 2003). Other statements by President Bush on torture include: “We do not condone torture. I have never ordered torture. I will never order torture. The values of this country are such that torture is not a part of our soul and our being.” (Quoted in CNN, “Administration Releases Memos on Detainee Treatment” (22 June 2004) on website cnn.allpolitics.) In and interview of President Bush on al-Hurra television, he said the Iraqis “must understand that I view those practices as abhorrent. They must also understand that what too place in that prison does not represent the America that I know.” (Terrence Hunt, AP White House Correspondent, : “Bush acknowledges mistakes, but offers no apology on Arab TV for Abuse of Iraq prisoners (5 May 2004), at www.sfgate.com, accessed 15 July 2004). 2 I am using the word “policy” to include a series of official actions by authoritative government officials that allow and direct changes from previous policy. In this sense, expanding the types of interrogation techniques beyond those allowed under the Army Field Manual constitutes a change in policy. 3 Final Report of the Independent Panel to Review Department of Defense Detention Operations (herein after, the Schlesinger Report), the Report is printed in The Abu Ghraib Investigations, edited by Steven Strasser (NY: Public affairs, 2004), p. 2. 4 Douglas Jehl and Eric Schmidt, “U.S. Military Says 26 Inmate Deaths May be Homicide,” New York Times (March 16, 2005), p. 1, A9. 5 Antonio M. Taguba, Article 15-6 Investigation of the 800th Military Policy Brigade, (26 February 2003), herein after, the “Taguba Report,” Part I, Sec. 2, No. 5. The report is printed in Greenberg and Dratel, The Torture Papers, pp. 405-465. 6 Taguba Report, Part I, Sec. 2, No. 6. 7 Taguba Report, Part I, Sec. 2, No. 8. 8 Taguba Report, Part I, Sec. 2, No. 10. 9 Neil A. Lewis, “Red Cross Found Abuses At Abu Ghraib Last Year,” New York Times (11 May 2004), p. A11.

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10

Report of the International Committee of the Red Cross (ICRC) on the Treatment by the Coalition Forces of Prisoners of War and other Protected Persons by the Geneva conventions in Iraq During Arrest, Internment and Interrogation, (February 2004). Posted at www.globalsecurity.org, accessed 12 July 2004. The report is printed in Greenberg and Dratel, The Torture Papers, pp. 383-404. 11 ICRC Report, Executive Summary. 12 ICRC Report, Sec. 3.1. 13 ICRC Report, Sec. 3.2. 14 ICRC Report, Sec. 1, paragraph 7. 15 The severe mistreatment of the Reuters employees is detailed in Mark Danner, “The Logic of Torture,” New York Review (24 June 2004), p. 71. 16 Eric Schmitt, “Army Report Says Flaws in Detention Didn’t Cause Abuse,” New York Times (23 July 2004), NY Times website. 17 Selections quoted in the Washington Post 23 July 2004), p. A14. See also the editorial, “An Army Whitewash,” Washington Post (24 July 2004), p. A20; and editorial, “Abu Ghraib, Whitewashed” New York Times (24 July 2004) 18 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade (hereinafter the Fay Report) Major General George R. Fay, Investigating Officer, printed in The Abu Ghraib Investigations, edited by Steven Strasser (NY: Public Affiars, 2004), pp. 109-171. 19 Fay Report, p. 110-111. 20 Fay Report, p. 118. 21 AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th MI Brigade, (hereinafter Jones Report)LTG Anthony R. Jones. Reprinted in The Torture Papers: the Road to Abu Ghraib, edited by Karen J. Greenberg and Joshua L. Dratel (NY: Cambridge University Press, 2005), pp. 991-1018. 22 Jones Report, pp. 15-16 of Report. 23 Jones Report, pp. 3, 4, 5, 17 of the Report. 24 Jones Report, p. 17 of Report. 25 FBI officials had complained in December 2003 that “DOD interrogators impersonating Supervisory Special Agents of the FBI” worked with detainees and that “These tactics have produced no intelligence of a threat neutralization nature to date and CITF believes that techniques have destroyed any chance of prosecuting this detainee.” They feared that if the interrogation became public, that “The FBI will [be] left holding the bag before the public.” The memo was released via a FOIA request and posted on the ACLU website. 26 E-mail printout: From [deleted] (DL) (FBI); Sent Saturday, May 22, 2004 2:08PM; To: Briese, M C (Div13) (FBI); Subject: Request for Guidance regarding OGC EC, dated 5/19/04. It is not clear what memo the writer was referring to, or whether the FBI official had seen such a memo or merely believed that it existed. The memo was released via a FOIA request and posted on the ACLU website. 27 From [deleted] BS) (FBI); Sent Monday, August 02, 2004 10:46AM; To [deleted] (INSD) (FBI); Subject: RE GTMO. The memo begins “As requested, here is a brief summary of what I observed at GTMO. The memo was released via a FOIA request and posted on the ACLU website. 28 See Tom Squitieri and Dave Moniz, “One Third of Detainees Who Died Were Assaulted,” USA Today (31 May 2004), p. 1; Bradley Graham, “Number of Army Probes of Detainee Deaths Rises to 33,” Washington Post, (22 May 2004), p. A17; Steven Lee Myers, “Military Completed Death Certificates For 20 Prisoners Only After Months Passed,” New York Times (31 May 2004), p. A8. Bradley Graham, “Army Investigates Wider Iraq Offences: Cases Include Deaths, Assaults Outside Prison,” Washington Post (1 June 2004), website; Editorial, “The CIA’s Prisoners’” Washington Post (15 July 2004), p. A20. The CIA Inspector General is conducting an investigation of a prisoner who died after questioning by CIA interrogators at Abu Ghraib. John Barry, Michael Hirsh, and Michael Isiskoff, “The Roots of Torture,” Newsweek (24 May 2004), pp. 28-34. 29 Another variation on this scenario is a case, reported by Mark Bowden, in which a young boy was kidnapped, tied, and gagged and hidden by the kidnapper. When he was captured by police, he would not reveal where the boy was. The police thought the boy might still be alive, and threatened to bring in an interrogator to apply torture to the man to get him to reveal the location of the boy (the man revealed the location, but the boy was dead). A reasonable person might conclude that torture was justified in this instance. See Mark Bowden, “The Dark Art of Interrogation,” The Atlantic Monthly (October 2003), www.theatlantic.com (accessed July 29, 2004.

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See the detailed analysis of interrogation methods by Mark Bowden, “The Dark Art of Interrogation,” The Atlantic online (October 2003) www.theatlantic.com (accessed 30 July 2004). 31 Seymour M. Hersh, “Torture at Abu Ghraib,” The New Yorker (10 May 2004), p. 47. See also, Tim Golden and Don Van Natta Jr., “U.S. Said to Overstate Value of Guantanamo Detainees,” New York Times (21 June 2004), p. 1. 32 Sec. 4A3, Current Doctrine. The relevant portions of the Army Field Manual 34-52 are attached to Secretary Rumsfeld’s Memorandum for the Commander, US Southern Command; Subject: CounterResistance Techniques in the War on Terrorism (S) (16 April 2003. 33 Douglas Jehl, “Questions Left By C.I.A. Chief On Torture Use,” New York Times (18 March 2005), p. 1, A5. 34 Michael Isikoff, “Forget the ‘Poisons and Deadly Gasses.’ ” Newsweek (5 July 2004), p. 6; Douglas Jehl, “High Qaeda Aide Retracted Claim of Link with Iraq,” New York Times (31 July 2004), nytimes.com, accessed 31 July 2004; Dana Priest, “Al Qaeda-Iraq Link Recanted,” Washington Post (1 August 2004), p. A20. 35 Vikram Dodd and Tania Branigan, “Questioned at Gunpoint, Shackled, Forced to Pose Naked, British Detainees Tell Their Stories of Guantanamo Bay,” The Guardian (4 August 04), posted on TruthOut.org, accessed 9 August 2004. 36 On the development of the rules of warfare, see L.C. Green, The Contemporary Law of Armed Conflict (Manchester University Press, 1993). 37 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (NY: Viking Press, 1963). 38 Guy B. Adams and Danny L. Balfour, Unmasking Administrative Evil, revised edition (Armonk, NY: M.E. Sharp, 2004). 39 Stanley Milgram, Obedience to Authority (NY: Harper and Row, 1974). See the detailed description of the experiment and its implications in Guy B. Adams and Danny L. Balfour, Unmasking Administrative Evil (NY: ME Sharp, 2004), pp. 36-39, from which this description is taken. 40 C. Hanley, C. Banks, and P. Zimbardo, “Interpersonal Dynamics in a Sumulated Prisons,” International Journal of Criminology and Penology Vol 1(1974), pp. 69-97. See the detailed description of the experiment and its implications in Guy B. Adams and Danny L. Balfour, Unmasking Administrative Evil (NY: ME Sharp, 2004), pp. 27-29, from which this description is taken. 41 Associated Press, New York Times (9 June 2004), p. A10. 42 From John Yoo, Deputy Assistant Attorney General, Memorandum for William J. Haynes II, General Counsel, Department of Defense (9 January 2002) RE: Application of Treaties and Laws to al Qaeda and Taliban Detainees. Reprinted in Green and Dratel, The Torture Papers, pp. 38-79. 43 Yoo memo (9 January 2002)Part I, Sec. B, p. 6 of memo. 44 Memorandum for Alberto R. Tonzales, Counsel to the President, and William J. Hayens II, General Counsel of the Department of Defense from Assistant Attorney General Jay S. Bybee, RE: Application of Treaties and Laws to al Qaeda and Taliban Detainees (January 22, 2002). Printed in Greenberg and Dratel, The Torture Papers, pp. 81-121. 45 Memorandum for the President (25 January 2002) From Albrto R. Gonzales, subject: Decision RE application of the Geneva Convention on Prisoners of War to the Conflict with al Qaeda and the Taliban.” According to Newseek, the memo was “actually” written by David Addington, Vice President Cheney’s legal aide. Daniel Klaidman, “Homesick for Texas,” Newsweek (12 July 2004), p. 32. Gonzales has been criticized in the press for saying that the “new paradigm” renders the Geneva limitations “quaint.” But the context of his use of the word “quaint” is not as damning as excerpting the word makes it seem. The end of the sentence reads: “. . . renders quaint some of it provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e. advance of monthly pay), athletic uniforms, and scientific instruments.” Whether this is a fair representation of the Geneva requirements is a separate issue. 46 Memorandum TO: Counsel to the President and Assistant to the President for National Security Affairs, FROM: Colin L. Powell (26 January 2002) SUBJECT: Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan,” pp. 2, 4. The memo is printed in Greenberg and Dratel, The Torture Papers, pp. 122-125. Many of the memoranda and oral directives included statements that detainees were to be treated “humanely” despite the more aggressive interrogation techniques to which they could be subjected. The problem was that if the detainees were in fact treated humanely, it would be more difficult to extract information from them. Thus these statements must have

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been considered to be pro forma, while the overall thrust of the directives was that detainees were to be subject to more aggressive interrogation techniques that were outside the Geneva Convention limits. 47 Memorandum TO: Counsel to the President and Assistant to the President for National Security Affairs, FROM: Colin L. Powell (26 January 2002) SUBJECT: Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan,” “Comments on the Memorandum of January 25, 2002, appended to memorandum. 48 Schlesinger Report, p. 29. 49 The White House, Washington, Memorandum of 7 February 2002, signed by President Bush. 50 John Barry, Michael Hirsh, and Michael Isiskoff, “The Roots of Torture,” Newsweek (24 May 2004), pp. 28-34; Seymour M. Hersh, “The Gray Zone,” New Yorker (24 May 2004), p. 42. 51 For a detailed analysis of the legal issues involved in the treatment of prisoners and the international and legal obligations of the United States regarding detainees, see: Robert K. Goldman and Brian D. Tittemore, “Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law,” (Washington, D.C.: American Society of International Law Task Force Paper, 2002. See also: Jennifer K. Elsea, “Lawfulness of Interrogation Techniques under the Geneva Conventions,” Washington: Congressional Research Service Report to Congress (RL32567), September 8, 2004; Elsea, “U.S. Treatment of Prisoners in Iraq: Selected Legal Issues,” Congressional Research Service Report for Congress (RL32395), December 2, 2004; and L.C. Green, The Contemporary Law of Armed Conflict (NY: Manchester University Press, 1993). 52 See the Schlesinger Report, pp, 7, 34, 35. 53 David Johnston and James Risen, “Aides Say Memo Backed Coercion for Qaeda Cases,” New York Times (27 June 2004), NYT website. 54 According to Newsweek, the memo was written in close consultation with White House lawyers. Daniel Klaidman, “Homesick for Texas,” Newsweek (12 July 2004), p. 32. 55 Article 17, paragraph 4, quoted in Jennifer K. Elsea, “Lawfulness of Interrogation Techniques under the Geneva Conventions,” Washington: Congressional Research Service Report to Congress (RL32567), September 8, 2004, p. 2. 56 Quoted in Goldman and Tittemore, “Unprivileged Combatants,” p. 49. See also Jess Bravin, “Pentagon Report Set Framework For Use of Torture,” Wall Street Journal (7 June 2004), WSJ website. From the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [General Assembly Resolution 39/46, Annex, 39 U.. GAOR Sup. No. 51, U.N. Doc. A.39/51 (1984). The Convention Against Torture (CAT) defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession. . . .” 57 28 U.S.C. Sec. 2340. 58 On December 30, 2004 the Bybee memo was superceded “in its entirety” by “Memorandum for James B. Comey, Deputy Attorney General from Acting Assistant Attorney General Daniel Levin Re: Legal Standards Applicable Under 18 U.S.C. par. 2340-2340A. The memo did not address the commander in chief powers of the president because it was “unnecessary” (p. 2). 59 Article I, Section also gives Congress the power “To provide for organizing, arming, and disciplining, [emphasis added] the Militia, and for governing such Part of them as may be employed in the Service of the United States. . . .” A significant portion of U.S. troops in Iraq were from state National Guard units, and specifically those who were photographed abusing Iraqi prisoners. 60 Article VI of the Constitution also provides that “all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land.” 61 Quoted in Dana Milbank, “the Administration vs. the Administration,” Washington Post (29 June 2004), p. A21. 62 Memorandum for the President, From: Alberto R. Gonzales; Subject: Decision Re Application of the Geneva Convention on Prisoners of War to the conflict With al Qaeda and the Taliban (25 January 2002). 63 According to the Schlesinger Report, “Interogators and list of techniques circulated from Guantanamo and Afghanistan to Iraq.” Page 7. 64 John Barry, Michael Hirsh, and Michael Isiskoff, “The Roots of Torture,” Newsweek (24 May 2004), p. 32.

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The relevant portions of the Army Field Manual 34-52 are attached to Secretary Rumsfeld’s Memorandum for the Commander, US Southern Command; Subject: Counter-Resistance Techniques in the War on Terrorism (S) (16 April 2003. 66 Memorandum for Commander, Joint Task Force 170; Subject: Request for Approval of Counter Resistance Strategies. 67 Quoted in Jess Bravin, “Pentagon Report Set Framework For Use of Torture,” Wall Street Journal (7 June 2004), WSJ website. 68 Memorandum for Commander, United States Southern Command, Subject: Counter-Resistance Strategies (11 October 2002); signed Michael B. Dunlavey. 69 Action Memo for: Secretary of Defense; From: William J. Haynes II, General Counsel; Subject: Counter-Resistance Techniques (27 November 2002). On this memo, Secretary Rumsfeld wrote by hand, “However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?” This penned comment by Rumsfeld trivializing the use of stress positions must have been intended as either a glib joke or a serious question. In either case it is unworthy of the Secretary of Defense. If he was serious, it demonstrates an amazing lack of familiarity with the stress techniques used by interrogators, which often involved standing in awkward and painful positions for long periods of time in the context of little food, little sleep, terror of dogs and disorientation due to combinations of these techniques. If he did not in fact, understand this, he was naïve. If it was a joke, it was made in poor taste for the official of the United States Government who authorized the series of techniques that led to the abuses of Abu Ghraib. A photocopy of the memo is contained in Greenberg and Dratel, The Torture Papers, p. 236. 70 See Tim Golden and Don Van Natta Jr., “U.S. Said to Overstate Value Of Guantanamo Detainees, New York Times (21 June 2004), p. 1, A12, A13. 71 Memorandum for Commander USSOUTHCOM; Subject: Counter-Resistance Techniques (15 January 2003), signed by Secretary Rumsfeld. 72 Memorandum for the Commander, U.S. Southern Command; Subject: Counter-Resistance Techniques in the War on Terrorism (S) (16 April 2003), signed by Secretary Rumsfeld. Printed in Greenberg and Dratel, The Torture Papers, p. 239. 73 Schlesinger Report, p. 33. 74 Schlesinger Report, p. 72 for specification of techniques used at Guantanamo and Afghanistan. 75 According to a DOD handout to the press of 22 June 2004, category II techniques that were actually used at Guantanamo included isolation, deprivation of light, 20 hour interrogations and forced grooming. Those approved but not used included hooding, removal of clothing, and use of dogs, and non-injurious physical contact. 76 Jess Bravin, “Pentagon Report Set Framework For Use of Torture,” Wall Street Journal (7 June 2004), WSJ website. 77 Tim Golden and Don Van Natta Jr., “U.S. Said to Overstate Value Of Guantanamo Detainees,” New York Times (21 June 2004), p. 1, A12, A13. See also Seymour Hersh, Chain of Command (NY: Harper Collins, 2004), pp. 2-3. 78 Scott Higham, Josh White, and Christian Davenport, “A Prison on the Brink,” Washington Post (9 Maya 2004), p. 1, A17, A17. 79 Mark Marzzetti, Julian E. Barnes, Edward T. Pound, “Inside the Iraq Prison Scandal,” U.S. News and World Report (24 May 2004), p. 22. See the elaboration of Karpinski on the Miller take-over of Abu Ghraib in her interview by Leon Wordon, “Newsmaker Interview: Brig. Gen. Janis Karpinski,” Signal Newspaper of Santa Clara, CA (4 July 2004) posted on Turthout.org, accessed 10 July 2004). 80 Schlesinger Report, p. 8. See also Mark Marzzetti, Julian E. Barnes, Edward T. Pound, “Inside the Iraq Prison Scandal,” U.S. News and World Report (24 May 2004), p. 22. 81 Taguba Report, “Assessment of DoD Counter-Terrorism Interrogation and Detention Operations I Iraq (MG Miller’s Assessment,” No. 2. See also Mark Marzzetti, Julian E. Barnes, Edward D. Pound, “Inside the Iraq Prison Scandal,” U.S. News and World Report (24 May 2004), p. 22. 82 Taguba Report, “10 Coments on MG Miller’s Assessment,” Sec. 1 and 2. 83 Taguba Report, Part I, Sec. 11b. 84 Taguba Report, Part I, Sec. 11. 85 Tagauba Report, Part I, Sec. 12. 86 R. Jeffrey Smith and Josh White, “General Granted Latitude At Prison,” Washington Post (12 June 2004), p. 1, A18.

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Interview by Leon Wordon, “Newsmaker Interview: Brig. Gen. Janis Karpinski,” Signal Newspaper of Santa Clara, CA (4 July 2004) posted on Truthout.org, accessed 10 July 2004). 88 Memorandum for Commander, U.S. Central Command; Subject: CJTF-7 Interrogation and CounterResistance Policy (14 September 2003), signed by General Sanchez. 89 Memorandum for C2 and C3, Combined Joint Task Force Seven, Baghdad, Iraq 09335, Commander, 205th Military Intelligence Brigade; Subject CJTF-7 Interrogation and Counter-Resistance Policy (14 September 2003). 90 R. Jeffrey Smith and Josh White, “General Granted Latitude At Prison,” Washington Post (12 June 2004), p. 1, A18. General Sanchez has denied approving the use of dogs, sleep deprivation, or noise. Jackson Diehl, “Officers’ Unheroic Example,” Washington Post (19 July 2004), p. A17. 91 Schlesinger Report, pp. 8-9. 92 Schlesinger Report, p. 9. 93 Taguba Report, Part III, Sec. C.8.A.1. 94 Schlesinger Report, p. 69. “Despite the number of visits and the intensity of interest in actionable intelligence, however, the “Panel found no undue pressure exerted by senior officials. Nevertheless, their eagerness for intelligence may have been perceived by interrogators as pressure.” 95 R. Jeffrey Smith, “Bush Adviser Toured Abu Ghraib,” Washington Post (June 19, 2004); CBS News report “Prison Officer Says He Felt Heat,” (June 18, 2004). 96 For a detailed analysis of how the civilian leaders of the Department of Defense ignored professional planning of likely post-war conditions in Iraq, see James Fallows, “Blind Into Baghdad,” The Atlantic Monthly (January/February 2004). On the lack of sufficient troop levels, see also, Micheal E. O’Hanlon, “Iraq Without a Plan,” Policy Review (December 2004 & January 2005, No. 128), published by the Hoover Institution. See also the Schlesinger Report, pp. 10-11. 97 The report exonerated General Ricardo S. Sanchez, the top commander in Iraq, General Wojdakowski, Maj. General Barbara G. Fast, the chief intelligence officer in Iraq, and Col Marc Warren, the top legal officer. Brig. General Janice Karpinski, the Army Reserve Officer who commanded the 800th Military Police Brigade was recommended for discipline. Eric Schmitt, “4 Top Officers Cleared by Army In Prison Abuses,” New York Times (April 23, 2005), p. 1, A5; Josh White, “Top Army Officers Are Cleared in Abuse Cases,” Washington Post (April 23, 2005), p. 1, A15. 98 Seymour M. Hersh, “Chain of Command,” New Yorker (17 May 2004), p. 42 99 Taguba Report, “Other Findings/Observations,” 4a. 100 The 1987 Landau Report recommended that “moderate physical pressure” be allowed in limited circumstances, but the coercive methods allowed became so widespread and indiscriminately applied that the Israeli Supreme Court reversed the recommendations in the late 1990s. See the account in Mark Bowden, “The Dark Art of Interrogation,” The Atlantic online (October 2003), www.theatlantic.com, accessed 30 July 2004. 101 ICRC Report, Sec. 1, paragraph 7. Tim Golden and Don Van Natta Jr., “U.S. Said to Overstate Value Of Guantanamo Detainees,” New York Times (21 June 2004), p. 1, A12, A13. 102 For a discussion of President Bush’s religious beliefs, see James P. Pfiffner, “George W. Bush: Policy, Politics, and Personality,” in New Challenges for the American Presidency edited by George C. Edwards III and Philip John Davies (NY: Longman, 2004), pp. 161-181. According to President Bush, “. . . our nation is chosen by God and commissioned by history to be a model to the world. . . .”, p. 168. 103 For an analysis of the Inquisition and the use of torture, see Edward Burman, The Inquisition: The Hammer of Heresy (Gloucestershire, UK: Sutton Publishing, 2004). 104 Friedrich Nietzsche, The Philosophy of Nietzsche (NY: The Modern Library, 1927, 1954), p. 466.

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