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Site Map THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB |
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Timeline September 14, 2001: President Bush issues “Declaration of National Emergency by Reason of Certain Terrorist Attacks.” September 25, 2001: John Yoo, Deputy Assistant Attorney General, U.S. Department of Justice advises Timothy E. Flanigan, Deputy Council to the President, that the President has “broad constitutional power” in the matter of military force, military preemption and retaliatory measures against terrorists (persons, organization or States) and those who harbor them. October 7, 2001: [1] President Bush announces that on his orders, “the United States military has begun strikes against al Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan.” [2] November 13, 2001: George W. Bush, “Military Order of November 13, 2001,” “Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism,” authorizes the detention of alleged terrorists and subsequent trial by military commissions that, given the threat of terrorism, should not be subject to the same principles of law and rules of evidence recognized in US criminal courts. December 28, 2001: Deputy Assistant Attorney General John C. Yoo and Deputy Assistant Attorney General Patrick F. Philbin advise William J. Haynes II, General Counsel, U.S. Department of Defense, that Federal Courts in the United States lack jurisdiction to hear habeus corpus petitions of prisoners held in Guantanamo Bay, Cuba. This opinion becomes the basis of the government’s legal strategy of trying to prevent detainees from challenging their detention in U.S. courts. January 9, 2002: Justice Department lawyer John C. Yoo, a U.C. Berkeley law professor, and Special Counsel Robert J. Delahunty advise William J. Haynes II, General Counsel, U.S. Department of Defense, that the Geneva Conventions do not protect members of the al Qaeda network or the Taliban militia. January 16, 2002: The first suspected al Qaeda and Taliban prisoners arrive at Guantanamo Bay, Cuba. January 19, 2002: Secretary of Defense Donald Rumsfeld informs the Chairman of the Joint Chiefs of Staff, Richard B. Myers, that al Qaeda and Taliban members are “not entitled to prisoners of war status” under the Geneva Conventions but should be treated “to the extent appropriate” in a manner consistent with the Geneva Conventions of 1949. January 22, 2002: Then–Assistant Attorney General Jay S. Bybee writes to White House Counsel Alberto R. Gonzales and Department of Defense General Counsel William J. Haynes II, arguing that the Geneva Conventions do not apply to “non-state actors” and are not entitled to prisoner of war status. January 25, 2002: White House Counsel Alberto R. Gonzales, in a memo to President Bush, considers Secretary of State Colin Powell’s objections “unpersuasive” on the grounds that determining that members of al Qaeda and the Taliban are not prisoners of war “holds open options for the future conflicts in which it may be more difficult to determine whether an enemy force as a whole meets the standard for POW status.” This memo also refers to the President’s decision that the Geneva Conventions, in the Treatment of the Prisoners of War, “do not apply with respect to the conflict with the Taliban,” and “that al Qaeda and Taliban detainees are not prisoners of war” under the Geneva Conventions. January 26, 2002: Secretary of State Colin Powell asks for reconsideration of the Administration’s stance on al Qaeda and Taliban members as not entitled to POW status on the grounds that this determination should only be made on a case-by-case basis. He argues that this should be done in order not to jeopardize the United States in matters of reciprocity, international cooperation and legal vulnerability. January 27, 2002: Defense Secretary Donald Rumsfeld visits Guantanamo Bay and says the prisoners there “will not be determined to be POWs.” [3] February 1, 2002: Attorney General John Ashcroft, in a memo to President Bush, argues that the Geneva Conventions do not apply to members of al Qaeda or the Taliban. February 2, 2002: In a memo to White House Counsel Alberto Gonzales, State Department Legal Advisor William H. Taft IV argues that the Geneva Conventions do apply to the war in Afghanistan. February 7, 2002: President Bush signs an order declaring, “I accept the legal conclusion of the Attorney General and the Department of Justice that I have the authority under the Constitution to suspend Geneva (Conventions) as between the United States and Afghanistan, but I decline to exercise that authority at this time.” He then says that he is reserving the right to do so “in this or future conflicts.” February 7, 2002: In a memo to White House Counsel Alberto Gonzales, Assistant Attorney General in the Department of Justice’s Office of Legal Counsel Jay S. Bybee writes that the Taliban do not deserve protection under Article 4 of the Third Geneva Convention because they do not meet legal conditions to be considered legal combatants. February 26, 2002: DOJ Assistant Attorney General Jay S. Bybee concludes in a memo to General Counsel in the Department of Defense William J. Haynes III that information de- rived from military interrogations is admissible in Article III Courts, even without Miranda warnings. His memo raises the question of the relationship between coercive interrogation and Miranda rights. August 1, 2002: Jay S. Bybee states in a memo to Alberto R. Gonzales that the text of the Torture Convention “prohibits only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for ‘cruel, inhuman, or degrading treatment or punishment.’ ” October 11, 2002: A series of memos are issued, considering acceptable counter-resistance techniques. These memos include:
October 25, 2002: U.S. Southern Command Commander General James T. Hill sends a memo to Chairman of the Joint Chiefs of Staff Richard B. Myers, commenting upon the October 11 memos defining counter-resistance techniques and their legality. Hill is “uncertain whether all the techniques in the third category are legal under U.S. law, given the absence of judicial interpretation of the U.S. torture statute.” November 27, 2002: Department of Defense General Counsel William J. Haynes advises Secretary of Defense Donald Rumsfeld to apply only Category I and II techniques and “mild, non-injurious physical conduct” techniques from Category III during interrogations. December 2, 2002: Secretary of Defense Rumsfeld approves the techniques outlined in William J. Haynes’ November 27 memo. January 15, 2003: In a memo to U.S. Southern Commander James T. Hill, Secretary of Defense Rumsfeld rescinds permission to use previously approved Category II and III techniques during Guantanamo interrogation and approves use of these techniques only on a case-by-case basis and with the approval of the Secretary of Defense. Rumsfeld also convenes a working group to assess legal policy and operational issues relating to detainees. January 17, 2003: Memo from William J. Haynes designates Mary L. Walker, the General Counsel for the Department of the Air Force, to chair the Working Group assessing legal policy and operational issues relating to interrogation. March 6, 2003: Working Group Report recommends taking the Geneva Conventions into account but determines that Taliban detainees do not qualify as prisoners of war and the Geneva Conventions do not apply to the other prisoners at Guantanamo, as they are non-state actors. The United States is, however, bound to the Torture Convention of 1994 (as long as it is in accord with U.S. constitutional Amendments 5, 8 and 14) which includes in the definition of torture the requirement of specific intent “to inflict severe mental pain or suffering” and in cases of mental pain, the damage must be prolonged. The report includes debate over 8th Amendment precedents on torture as well as standard defenses to criminal conduct. March 14, 2003: Memorandum for William J. Haynes II, General Counsel of the Department of Defense, from John C. Yoo, declassified March 31, 2008. March 19, 2003: President Bush announces that on his orders, “coalition forces have begun striking selected targets of military importance” in Iraq. [4] April 4, 2003: The updated version of the March 6, 2003, Working Group Report argues that it may be necessary to interrogate detainees “in a manner beyond that which may be applied to a prisoner of war who is subject to the Geneva Conventions.” In greater detail than the March 6 report, this report discusses the affirmative defenses for the use of torture and the legal technicalities that can be used to create a “good faith defense against pros- ecution.” Includes a chart that lists the utility of various interrogation techniques, along with a system displaying their consistency with both U.S. domestic law and international norms. April 16, 2003: In a memo to U.S. Southern Command Commander General James T. Hill, Secretary of State Rumsfeld provides a new list of approved interrogation techniques that include most Category I techniques and a limited number of Category II techniques. Some of the techniques listed require the specific approval of the Secretary of Defense, on the grounds that they may be perceived as in violation of the Geneva Conventions on prisoners of war. March 19, 2004: Assistant Attorney General in the Office of Legal Counsel, Jack Goldsmith, justifies the forcible removal of persons who have not been accused of an offense from Iraq “for a brief but not indefinite period” for the purposes of interrogation. Goldsmith argues that Article 49 of the Fourth Geneva Convention prohibition on deportations does not apply to aliens in occupied territory and does not “forbid the removal from occupied territory ...of ‘protected persons’ who are illegal aliens.” _______________ Notes: 1. Italicized dates refer to events of note that took place, not to memos. 2. Presidential Address to the Nation, October 7, 2001. <www.whitehouse.gov/news/releases/2001/10/20011007.8> 3. "Rumsfeld Visits Camp X-Ray," CNN.com/Transcripts, January 27, 2002. <www.cnn.com/TRANSCRIPTS/0201/27/sun.09.html> 4. Presidential Address to the Nation, March 19, 2003. <www.whitehouse.gov/news/releases/2003/03/20030319-17>
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