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THE TORTURE PAPERS:  THE ROAD TO ABU GHRAIB

Edited by Karen J. Greenberg, Joshua L. Dratel, Introduction by Anthony Lewis
© Karen J. Greenberg and Joshua L. Dratel 2005

"Self-defense is a common-law defense to federal criminal offenses, and nothing in the text, structure or history of section 2340A precludes its application to a charge of torture ... If hurting him is the only means to prevent the death or injury of others put at risk by his actions, such torture should be permissible."
-- Memorandum for William J. Haynes, II, from John C. Yoo, 3/14/03
***
"Every act constituting torture under the Convention constitutes a criminal offense under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as justification for torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstance (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension."
-- "United States report to the U.N. Committee Against Torture," 1999 cited in The Association of the Bar of the City of New York, Committee on International Human Rights, and Committee on Military Affairs and Justice’s Report
***
"The prohibition of torture is, moreover, one of the few norms which has attained peremptory norm or jus cogens status, and is recognized as such by United States courts.  Jus cogens is defined as a peremptory norm “accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
-- American Bar Association Report to the House of Delegates Re: Uses of Torture
***
“A democratic, freedom-loving society does not accept that investigators use any means for the purpose of uncovering the truth. The interrogations practices of the police in a given regime are indicative of a regime’s very character."
-- Israeli Supreme Court, "Judgment Concerning The Legality Of The General Security Service’s Interrogation Methods," cited in The Association of the Bar of the City of New York, Committee on International Human Rights, and Committee on Military Affairs and Justice’s Report
***
"The use of torture and cruel, inhuman or degrading treatment by United States personnel in the interrogation of prisoners captured in the Afghanistan and Iraq conflicts has brought shame on the nation and undermined our standing in the world. While the U.S. government has acknowledged, and is moving to punish, the acts at Abu Ghraib that have been documented on videotape, this does not address the substantial, fundamental concerns regarding U.S. interrogation policy and the treatment of detainees.

"The U.S. government maintains that its policies comport with the requirements of law, and that the violations at Abu Ghraib represent isolated instances of individual misconduct. But there apparently has been a widespread pattern of abusive detention methods. Executive Branch memoranda were developed to justify interrogation procedures that are in conflict with long-held interpretations and understandings of the reach of treaties and laws governing treatment of detainees. Whether and to what extent the memoranda were relied upon by U.S. officials may be open to question, but it is clear that those legal interpretations do not represent sound policy, risk undercutting the government’s ability to assert any high moral ground in its “war on terrorism”, and put Americans at risk of being tortured or subjected to cruel, inhuman or degrading treatment by governments and others willing to cite U.S. actions as a pretext for their own misconduct."
-- American Bar Association Report to the House of Delegates Re: Uses of Torture
***
"In its Report on the Treatment by the Coalition Forces of Prisoners of War and other protected persons in Iraq, the International Committee of the Red Cross (ICRC) draws the attention of the Coalition Forces to a number of serious violations of International Humanitarian Law: .... (1) Brutality against protected persons upon capture and initial custody, sometimes causing death or serious injury; (2) Physical or psychological coercion during interrogation to secure information; (3) Prolonged solitary confinement in cells devoid of daylight;
(4) Excessive and disproportionate use of force against persons deprived of their liberty resulting in death or injury during their period of internment."
-- 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
 ***
On 6 September 2006, President Bush publicly announced that fourteen “high value” detainees had been transferred from the High Value Detainee Program run by the Central Intelligence Agency (hereafter CIA detention program) to the custody of the Department of Defense in Guantanamo Bay Internment Facility (hereafter Guantanamo). The fourteen detainees (hereafter the fourteen) were reportedly held in the CIA detention program from the time of their arrest, or shortly thereafter, until their arrival in Guantanamo. Throughout their time in CIA custody—which ranges from 16 months to almost four and a half years—these persons were held in undisclosed detention. Prior to this public announcement, the ICRC had never been informed by the US authorities of the existence of the CIA detention program, nor of the presence in US custody of the fourteen. This is despite the fact that thirteen of the fourteen had been included in the above-mentioned ICRC written requests to the US authorities concerning undisclosed detention, the first of which were made in January 2003. The remaining detainee was not known to the ICRC. ...

In the ICRC’s view, the fourteen were placed outside the protection of the law during the time they spent in CIA custody. Indeed, one of the main effects of the transfers was to place the fourteen in secret detention facilities in unspecified locations in a number of different countries, outside the reach of any judicial or administrative system. As such, they were, for instance, apparently both precluded from knowing the reasons for their detention and denied access to any mechanism capable of independently reviewing the lawfulness of their detention. They were also denied contact with their families, including any information to the families of their detention. The totality of the circumstances in which the fourteen were held effectively amounted to an arbitrary deprivation of liberty and enforced disappearance, in contravention of international law.

As regards conditions of detention and treatment of the fourteen, the effects of their being in undisclosed detention were severe and multifaceted, as the present report shows. The absence of scrutiny by any independent entity—including the ICRC— inevitably creates conditions conducive to excesses that would not otherwise be permitted. Persons held in undisclosed detention are especially vulnerable to being subjected to ill-treatment. Indeed, the allegations of the fourteen include descriptions of treatment and interrogation techniques—singly or in combination—that amounted to torture and/or cruel, inhuman or degrading treatment.
-- Report of the International Committee of the Red Cross (ICRC) on the Treatment of Fourteen "High Value Detainees" in CIA Custody 
***
"Abuses at Abu Ghraib and elsewhere are strong evidence that in the war on terror this nation’s detention policies have lost their moral compass. Rather than seek to excuse or minimize these failings, the U.S. must take responsibility for violations of treaties and international law, condemn those violations, investigate all plausible allegations of violations, and punish all those responsible, no matter how high ranking. It is vital to ensure that this disgraceful behavior does not happen again. Any individual who alleges that he or she has been subjected to torture must be provided with a meaningful opportunity to complain to, and to have his/her case promptly and impartially examined by, competent authorities."
-- American Bar Association Report to the House of Delegates Re: Uses of Torture

"18 U.S.C. § 2340A–torture or attempted torture committed outside the United States by a person acting under color of law, where death results. United States jurisdiction under this provision covers offenses where the alleged offender is a U.S. national or where the alleged offender is present in the United States, regardless of the nationality of the victim or alleged offender."
-- Capital Punishment:  An Overview of Federal Death Penalty Statutes, by CRS Report for Congress

***

More than seven years ago, a suspected Afghan militant was brought to a dimly lit CIA compound northeast of the airport in Kabul. The CIA called it the Salt Pit. Inmates knew it as the dark prison. Inside a chilly cell, the man was shackled and left half-naked. He was found dead, exposed to the cold, in the early hours of Nov. 20, 2002.
-- Salt Pit Death:  Gul Rahman, CIA Prisoner, Died of Hypothermia in Secret Afghanistan Prison

Rasul v. Bush, President of the United States, et al.
Hamdan v. Rumsfeld, Secretary of Defense, et al.
Boumediene, et al. v. Bush, President of the United States, et al.
Hamdi v. Rumsfeld
FM 34-52 Intelligence Interrogation -- September 28, 1992, by Department of the Army
JTF GTMO SERE Interrogation Standard Operating Procedure
Communist Attempts to Elicit False Confessions From Air Force Prisoners of War, by Albert D. Biderma, M.A.
A Situationist Perspective on the Psychology of Evil:  Understanding How Good People are Transformed Into Perpetrators, by Philip G. Zimbardo, Ph.D.
Obedience to Authority, by Stanley Milgram
Moral Disengagement In the Perpetration of Inhumanities, by Albert Bandura
Trust No Fox on His Green Heath and No Jew on His Oath, by Elwira Bauer
The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions, by Jordan J. Paust
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
 Agent's Investigation Report 0106-04-CID259-80185 (Abu Ghraib)
Info Memo for Undersecretary of Defense for Intelligence, by L.E. Jacoby
 Standard Operating Procedure, directed by Errol Morris -- Illustrated Screenplay & Screencap Gallery
Taxi to the Dark Side, directed by Alex Gibney -- Illustrated Screenplay & Screencap Gallery
Sir!  No Sir! -- Illustrated Screenplay & Screencap Gallery, by David Zeiger
 Winter Soldier -- Illustrated Screenplay & Screencap Gallery, by Winterfilm, Inc.
Terrorist / Torture Collages, by Tara Carreon
The Machine Vignette from "The Princess Bride," by Rob Reiner
 Abu Ghraib Photo Gallery
CIA Destroyed 2 Tapes Showing Interrogations, by Mark Mazzetti
Testimony of Mr. Douglas A. Johnson, Executive Director, Center of Victims of Torture
 Verbatim Transcript of Combatant Status Review Tribunal Hearing for ISN 10024 (Khalid Shaikh Muhammad

Table of Contents

  • Opening Pages
  • Acknowledgements
  • Introduction:  Anthony Lewis
  • From Fear to Torture:  Karen J. Greenberg
  • The Legal Narrative:  Joshua L. Dratel
  • Timeline
  • Missing Documents
  • Biographical Sketches
  • Memoranda

    • Memo 1. September 25, 2001
      To: Timothy Flanigan, Deputy Counsel to the President
      From: John Yoo, Deputy Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel
      Re: Memorandum Opinion for the Deputy Counsel to the President Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them

    • Memo __, September 25, 2001 (not included in book)
      To:  David S. Kris, Associate Deputy Attorney General
      From:  John C. Yoo, Deputy Assistant Attorney General
      Re:  Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the "Purpose" Standard for Searches

    • Memo __, October 23, 2001 (not included in book)
      To:  Alberto R. Gonzales, Counsel to the President; William J. Haynes, II, General Counsel, Department of Defense
      From:  John C. Yoo, Deputy Assistant Attorney General; Robert J. Delahunty, Special Counsel
      Re:  Authority for Use of Military Force to Combat Terrorist Activities Within the United States

    • Memo 2. November 13, 2001
      Military Order of November 13, 2001 issued by President George W. Bush

    • Memo 3. December 28, 2001
      To: William J. Haynes II, General Counsel, Department of Defense
      From: Patrick F. Philbin, Deputy Assistant Attorney General and John Yoo, Deputy Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel
      Re: Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba

    • Memo 4. January 9, 2002
      To: William J. Haynes II, General Counsel, Department of Defense
      From: John Yoo, Deputy Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel and Robert J. Delahunty, Special Counsel, U.S. Department of Justice
      Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees

    • Memo 5. January 19, 2002
      To: Chairman of the Joint Chiefs of Staff
      From: Donald Rumsfeld, Secretary of Defense
      Re: Status of Taliban and al Qaeda

    • Memo 6. January 22, 2002
      To: Alberto R. Gonzales, Counsel to the President, and William J. Haynes, General Counsel, Department of Defense
      From: Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice
      Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees

    • Memo 7. January 25, 2002
      To: President Bush
      From: Alberto R. Gonzales, Counsel to the President
      Re: Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with al Qaeda and the Taliban

    • Memo 8. January 26, 2002
      To: Counsel to the President, Assistant to the President for National Security Affairs
      From: Colin L. Powell, U.S. Department of State
      Re: Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan

    • Memo 9. February 1, 2002
      To: President Bush
      From: John Ashcroft, Attorney General
      Re: Justice Department’s position on why the Geneva Convention did not apply to al Qaeda and Taliban detainees

    • Memo 10. February 2, 2002
      To: Counsel to the President
      From: William H. Taft IV Legal Advisor, U.S. Department of State
      Re: Comments on Your Paper on the Geneva Convention

    • Memo 11. February 7, 2002
      To: The Vice President, The Secretary of State, The Secretary of Defense, The Attorney General, Chief of Staff to the President, Director of CIA, Assistant to the President for National Security Affairs, Chairman of the Joint Chiefs of Staff
      From: George W. Bush
      Re: Humane Treatment of al Qaeda and Taliban Detainees

    • Memo 12. February 7, 2002
      To: Alberto R. Gonzales, Counsel to the President
      From: Jay B. Bybee, Assistant Attorney General, U.S. Department of Justice
      Re: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949

    • Memo 13. February 26, 2002
      To: William J. Haynes II, General Counsel, Department of Defense
      From: Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice
      Re: Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan

    • Memo __.  March 13, 2002 (not included in book)
      To:  William J. Haynes, II, General Counsel, Department of Defense
      From: Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice
      Re:  The President's Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations

    • Memo __.  April 8, 2002 (not included in book)
      To:  Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs
      From:  Patrick Philbin, Deputy Assistant Attorney General
      Re:  Swift Justice Authorization Act

    • Memo __.  June 8, 2002 (not included in book)
      To:  The Attorney General
      From:  Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel
      Re:  Determination of Enemy Belligerency and Military Detention

    • Memo __.  June 27, 2002 (not included in book)
      To:  Daniel J. Bryant, Assistant Attorney General, Office of Legislative Affairs
      From:  John C. Yoo
      Re:  Applicability of 18 U.S C. § 4001(a) to Military Detention of United States Citizens

    • Memo 14. August 1, 2002
      To: Alberto R. Gonzales, Counsel to the President
      From: Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice
      Re: Standards of Conduct for Interrogation under 18 U.S.C. § § 2340-2340A

    • Memo __, August 1, 2002 (not included in book)
      To:  John Rizzo, Acting General Counsel of the Central Intelligence Agency
      From: Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice
      Re:  Interrogation of al Qaeda Operative
      Memo 15. August 1, 2002
      To: Alberto R. Gonzales, Counsel to the President
      From: John Yoo, Deputy Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel
      Re: Letter regarding “the views of our Office concerning the legality, under international law, of interrogation methods to be used on captured al Qaeda operatives”

    • (The following three memos (#s 16, 17, 18) are cover letters to the requests for approval of Counter-Resistance Strategies, which follow #s 19, 20.)

    • Memo 16. October 25, 2002
      To: Chairman of the Joint Chiefs of Staff, Washington D.C.
      From: General James T. Hill, Department of Defense, U.S. Southern Command, Miami, FL
      Re: Counter-Resistance Techniques

    • Memo 17. October 11, 2002
      To: General James T. Hill, Commander, U.S. Southern Command, Miami, FL
      From: Maj. Gen. Michael Dunlavey, Department of Defense, JTF 170, Guantanamo Bay, Cuba
      Re: Counter-Resistance Strategies

    • Memo 18. October 11, 2002
      To: General James T. Hill, Commander, Joint Task Force 170
      From: Diane Beaver, Staff Judge Advocate, Department of Defense, JTF 170, Guantanamo Bay, Cuba
      Re: Legal Review of Aggressive Interrogation Techniques

    • Memo 19. October 11, 2002
      To: General James T. Hill, Commander, Joint Task Force 170
      From: Jerald Phifer, Director, J2, Department of Defense, JTF 170, Guantanamo Bay, Cuba
      Re: Request for Approval of Counter-Resistance Strategies

    • Memo 20. October 11, 2002
      To: General James T. Hill, Commander, Joint Task Force 170
      From: Diane Beaver, Staff Judge Advocate, Department of Defense, JTF 170, Guantanamo Bay, Cuba
      Re: Legal Brief on Proposed Counter-Resistance Strategies

    • Memo 21. November 27, 2002 (approved by Rumsfeld December 2, 2002)
      To: Donald Rumsfeld, Secretary of Defense
      From: William J. Haynes II, General Counsel, Department of Defense
      Re: Counter-Resistance Techniques

    • Memo 22. January 15, 2003
      To: General Counsel of the Department of Defense
      From: Donald Rumsfeld, Secretary of Defense
      Re: Detainee Interrogations

    • Memo 23. January 15, 2003
      To: Commander U.S. Southern Command
      From: Donald Rumsfeld, Secretary of Defense
      Re: Counter-Resistance Techniques

    • Memo 24. January 17, 2003
      To: General Counsel of the Department of the Air Force
      From: William J. Haynes II, General Counsel, Department of Defense
      Re: Working Group to Assess (Interrogation issues)

    • Memo 25. March 6, 2003
      Classified by: Donald Rumsfeld, Secretary of Defense
      DRAFT: Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations

    • Memo __. March 14, 2003 (not included in book)
      To:  William J. Haynes II, General Counsel of the Department of Defense
      From: John C. Yoo
      Re:  Military Interrogation of Alien Unlawful Combatants Held Outside the United States

    • Memo 26. April 4, 2003
      Classified by: Donald Rumsfeld, Secretary of Defense
      Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations

    • Memo 27. April 16, 2003
      To: James T. Hill, Commander, U.S. Southern Command
      From: Donald Rumsfeld, Secretary of Defense
      Re: Counter-Resistance Techniques in the War on Terrorism

    • Memo __, January 19, 2004 (Not included in book)
      To: Commander, United States Central Command
      From: Ricardo S. Sanchez, Lieutenant General, USA, Commanding
      Re: Request for Investigating Officer

    • Memo 28. March 19, 2004
      To: William H. Taft IV, General Counsel, Department of State, William J. Haynes II, General Counsel, Department of Defense, John Bellinger, Legal Adviser for National Security, Scott Muller, General Counsel, Central Intelligence Agency
      Distributed to Alberto R. Gonzales, Counsel to the President
      From: Jack Goldsmith III, Assistant Attorney General, Office of Legal Counsel
      Re: Draft of an opinion concerning the meaning of Article 49 of the Fourth Geneva Convention as it applies in occupied Iraq.

    • Memo __, May 10, 2005 (Not included in book)
      To:  John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency
      From:  Steven G. Bradbury, Principal Deputy Assistant Attorney General
      Re:  Application of 18 U.S.C. §§ 2340-2340A to the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees

    • Memo __, May 10, 2005 (Not included in book)
      To:  John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency
      From:  Steven G. Bradbury, Principal Deputy Assistant Attorney General
      Re:  Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques  That May Be Used in the Interrogation of a High Value al Qaeda Detainee

    • Memo __, May 30, 2005 (Not included in book)
      To:  John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency
      From:  Steven G. Bradbury, Principal Deputy Assistant Attorney General
      Re:  Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Certain Techniques That May Be Used in the Interrogation of High Value al Qaeda Detainees

    • Memo __, October 6, 2008 (Not included in book)
      To:  File
      From:  Steven G. Bradbury, Principal Deputy Assistant Attorney General
      Re:  October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities

  • Reports

  • Afterword

  • Appendices

    • Appendix A:  GTMO Interrogation Techniques (a one-page summary issued to reporters by Bush aides on June 22, 2004, listing which specific techniques were approved and/or used)

    • Appendix B:  Recommended readings on torture

    • Appendix C:  Torture-related laws and conventions

    • Appendix D:  Legal Cases relevant to the incidences of torture

  • Index

_______________

Librarian's Comment:    Americans have been torturing people for a long time.  See "A People's History of American Empire," by Howard Zinn, Mike Konopacki and Paul Buhle:

Teddy Roosevelt, who became President after William McKinley was assassinated in 1901, also supported the war.  "This is a war to extend Anglo-American progress and decency!"

[Howard Zinn]  Decency?  Charges of torture were common during our occupation of the Philippines, including the infamous Water Cure.  U.S. Intelligence officers defended it as necessary to gather information.  American troops used the Water Cure to interrogate Filipino prisoners, forcing water down their throats until they nearly drowned.  Torturers then pounded the victims' stomachs to make them talk.  This editorial cartoon ridiculed the practice.

"Chorus in Background:  "Those pious Yankees can't throw stones at us anymore." -- William Walker, Life, May 22, 1902

See also The Phoenix Program, by Douglas Valentine. 

At the end of the hearings Representatives McCloskey, John Conyers, Ben Rosenthal, and Bella Abzug stated their belief that "The people of these United States ... have deliberately imposed on the Vietnamese people a system of justice which admittedly denies due process of law. ... In so doing, we appear to have violated the 1949 Geneva Convention for the protection of civilian peoples at the same time we are exerting every effort available to  us to solicit the North Vietnamese to provide Geneva Convention protections to our own prisoners of war. 

"Some of us who have visited Vietnam," they added, "share a real fear that the Phoenix program is an instrument of terror; that torture is a regularly accepted part of interrogation ... and that the top U.S. officials responsible for the program at best have a lack of understanding of its abuses." They concluded "that U.S. civilian and military personnel have participated for over three years in the deliberate denial of due process of law to thousands of people held in secret interrogation centers built with U.S. dollars," and they suggested that "Congress owes a duty to act swiftly and decisively to see that the practices involved are terminated forthwith."

Obviously, Congress has done nothing to remedy this.