By Edward Alden, Peter Spiegel and Demetri Sevastopulo
Published: July 16 2004 22:03 | Last Updated: July 16 2004
In May 2003, a group of US military lawyers went on a quiet mission to meet Scott Horton, the former chairman of the committee on international rights of the New York City bar association.
Their presentation, he recalls, was not specific, but they were gravely concerned that the Pentagon's civilian leadership was moving in ways that could lead to serious abuses of detainees in US custody as part of the "war on terror". They urged the bar association to issue a strong statement on the need to uphold the rights of detainees under international and US laws.
Since last week, with the leak of an early draft of an April 2003 Pentagon report that attempted to find a legal basis for the harsh treatment and even torture of prisoners, Mr Horton says the picture has become far clearer. Last May the lawyers would not have been permitted to allude to the existence of the secret documents; in retrospect, he says, "it's pretty clear to me why they would have been so upset".
The report, and a previous memo written in August 2002 by the US Justice Department for the White House, are the strongest evidence yet that abuses of Iraqi prisoners at Abu Ghraib may not have been isolated events perpetrated by low-level soldiers, but were the consequence of a systematic Bush administration policy designed to extract information from reluctant detainees. "We know, when we have these kinds of orders, what happens," Senator Edward Kennedy said last week. "We get the stress test, we get the use of dogs, we get the forced nakedness that we've all seen . . . and we get the hooding."
Harold Hongju Koh, the dean of Yale University's law school, says: "This should end any questions over whether Abu Ghraib was just the actions of low-level officials."
To be sure, there remain unanswered questions and several weak links in the chain that runs from top White House and Pentagon officials to the seven members of the 372nd Military Police company facing courts martial for abuses at Abu Ghraib. Nearly all of the seven MPs insist, for example, that they were ordered to perform the acts by military intelligence. But as yet, no M I officers have emerged linking the abuse directly to senior commanders.
There is strong evidence that Major General Geoffrey Miller - the man who ran the Guantanamo Bay detention facility and was then sent to Iraq to improve intelligence gathering at Abu Ghraib - encouraged harsher interrogation methods. But those practices - putting detainees in "stress positions", giving them only basic food rations, reducing heat in winter and air conditioning in summer - come nowhere near the extreme beatings, intimidation and sexual humiliation shown in photographs from Abu Ghraib.
January 25 2002: Alberto Gonzales, the top White House lawyer, writes a memo to the president advising him that his decision to lift Geneva Convention restrictions when interrogating al-Qaeda and Taliban detainees is legal and ‘preserves flexibility’. He also notes the decision ‘substantially reduces the threat of domestic criminal prosecution under the War Crimes Act’
August 1 2002: The Justice Department sends a 50-page opinion to the White House narrowly defining what constitutes torture under US law. It finds that ‘certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within [the law’s] proscr iption against torture’. It also finds that the president can legally ignore the law in times of war
December 2002: Donald Rumsfeld approves list of new interrogation techniques that can be used on senior al-Qaeda operatives being held at Guantanamo Bay, which are used for 4 to 6 weeks on one detainee with links to the September 11 terrorist attacks. Following objections from officials in the Pentagon, Mr Rumsfeld orders the new methods to be stopped
January 15 2003: Mr Rumsfeld orders William Haynes, the Pentagon’s general counsel, to set up a working group made up of Defence and Justice Department lawyers to review all possible interrogation techniques and the laws that apply to Guantanamo Bay detainees
March 6 2003: Pentagon working group issues draft report, borrowing heavily from August 2002 Justice Department memo. It similarly interprets international conventions and US laws agains t torture narrowly, but more vigorously argues that the president’s powers as commander-in-chief give him wide authority to ignore such laws: ‘Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield’
April 16 2003: Mr Rumsfeld delivers new rules for interrogation at Guantanamo to General James Hill and Major General Geoffrey Miller, the head of Guantanamo. The new rules are based on the Pentagon’s legal analysis, the final draft of which was issued the same month, but four new interrogation techniques must be cleared by Mr Rumsfeld himself before they are used. They are eventually used on two detainees, one of whom subsequently breaks and gives new intelligence to interrogators
August 2003: Major General Geoffrey Miller, who had been credited by senior Pentagon officials with turning around intelligence operations in Guantanamo, is sent to Abu Ghraib prison in Iraq to evaluate operations. While there, he briefs junior officers on techniques used at Guantanamo, leading to accusations he helped create an atmosphere where harsher interrogation methods were tolerated. Major General Miller has insisted he differentiated between what was allowed at Guantanamo and in Iraq, which was covered by the Geneva Convention. Stephen Cambone, undersecretary of defence for intelligence, said the trip was made ‘with my encouragement and that of other senior members of the department’
September 10 2003: According to documents obtained by the Washington Post, Lieutenant General Ricardo Sanchez, commander of all ground forces in Iraq, approves of ‘Interrogation and Counter-Resistance Policy’ which closely mirrors interrogation techniques at Guantanamo. This policy is issued the day after Major General Miller departs Iraq, according to the Post
October 2003: Abuse at Abu Ghraib captured in photographs.
Staff Sergeant Ivan Frederick and Specialist Charles Graner, two former civilian
corrections officers, are singled out as ringleaders by subordinates. Nearly
all of the military police in the 372nd MP company charged in the case say they
were directed by military intelligence soldiers, who were under the direct
command of Colonel Thomas Pappas
Taken as a whole, however, a picture is emerging of a White House and Pentagon that, panicked by the prospect of terrorist attacks, sought to broaden the scope of what was legal in interrogating detainees at Guantanamo. Those practices then seem to have mushroomed when officers tried to refine them in Iraq.
The Bush administration sharply disputes this view, insisting that there is no connection between its abstract legal musings, its decision to suspend the Geneva Conventions for al-Qaeda detainees and the abuses at Abu Ghraib. "There is no wiggle room in the president's mind or my mind about torture," Donald Rumsfeld, the Defence secretary, said on Monday.
Despite the administration's denials, however, the military's investigation into Abu Ghraib now appears to be focusing on that very chain of events. Last week Lieutenant General Ricardo Sanchez, the commander of coalition ground troops in Iraq, asked to be removed from oversight of the Abu Ghraib inquiry, a sign that investigators want to question him about his role in the scandal. A high-level panel appointed by Mr Rumsfeld to oversee the investigations this week questioned Stephen Cambone, the Pentagon's undersecretary of intelligence, and Maj Gen Miller as part of its inquiry.
The chain of events under scrutiny began in the weeks f ollowing the attacks of September 11, 2001, when the US decided to move al-Qaeda prisoners detained in Afghanistan to Guantanamo Bay. Documents that have leaked out over the past month and interviews with military officials and others show that senior officials began a systematic effort to alter long-standing rules and practices for the treatment of prisoners. "They wanted to understand how far the parameters stretched," says a senior administration official.
From the outset, military officials say, the army had intended to operate Guantanamo Bay in accordance with military doctrine and international treaties including the Geneva Conventions. Army regulations say any inhumane treatment of detainees "is a serious and punishable violation". Brigadier General Rick Baccus, a military police commander, was put in charge of the camp in March 2002. He responded to complaints that prisoners were suffering in the makeshift camp by promising humane treatment in line with the conventions.
But the Pentagon ha d different notions of how the camp was supposed to operate, say military officials. The choice of Guantanamo Bay had not simply been a matter of logistics or convenience. A December 28, 2001 Justice department memorandum to the Pentagon advised that the US courts would probably have no jurisdiction over detainees held at the base.
The memo was the first of a series aimed at providing a legal basis for the Bush administration to escape both international and domestic legal constraints in its treatment of detainees. Less than a month later, the Justice department advised that it believed the Geneva conventions on the treatment of prisoners of war did not apply in the war against al-Qaeda and the Taliban, a stance that was quickly endorsed by President George W. Bush.
The effort touched off a huge struggle within the administration, pitting civilians in the Pentagon and Justice departments against opponents in the uniformed military and the State department. "From the beginning, the military lawyers have had a more stringent view of the law, the [international] conventions and how they should be applied to this situation," said a senior government official. "And there were people in the civilian branch of the Pentagon who wanted to look at this with a new eye given the threat we were facing."
Intelligence and military officers have long debated the value of aggressive interrogation in producing useful information. The army's interrogation manual notes: "The use of force is a poor technique, as it yields unreliable results . . . and can induce the source to say whatever he thinks the interrogator wants to hear."
The method of choice has long been to wear down prisoners gradually by isolating them and making them grow dependent on their captors. The tactics can be as simple as offering and withholding cigarettes, books and other amenities based on levels of co-operation. "It's really a mind game," said a former CIA official. "It can be a powerful thing, but you need a long time to do it. It's hard work."
But with Washington fearing follow-on attacks after September 11, time was not something that US officials believed they had in abundance. Instead, they began to consider the use of far harsher methods. In August 2002, the Justice department penned a 50-page memo to the White House. The memo, say former officials, was drafted by a small circle of lawyers and shared only on a "need to know" basis. The central conclusion was that domestic and international legal prohibitions against torture in no way tied Washington's hands. International law, it said, including sweeping prohibitions against inhumane treatment contained in the Geneva Conventions, was not binding on the US. Domestic laws, it concluded, were far more permissive in allowing aggressive interrogation. Further, it argued, even in cases of torture the president's wartime powers were so broad that he could disregard laws against torture passed by Congress.
The Pentagon says that such legal theories had no impact on the treatment of detainees. But two months later, in October 2002, Brig Gen Baccus was replaced at Guantanamo Bay by Maj Gen Miller, a former artillery officer with a mandate to improve the flow of intelligence.
Brig Gen Baccus said in an interview with Associated Press last month that he had faced constant pressure from military intelligence officials to bend army doctrine for the treatment of prisoners. Military intelligence wanted him to make the detainees' lives "less comfortable" to encourage co-operation. He said he resisted, arguing that the job of military police was to provide a humane and safe environment while military intelligence should be in charge of interrogations.
Maj Gen Miller overturned that regime. He brought under a single command the military intelligence officers whose job it was to interrogate prisoners and the military police whose job it was to house and control them. The result, says a military lawyer, was "to allow for intelligence to dominate how military police treated detainees" .
"You know the only other place you've seen that?" the lawyer adds. "Abu Ghraib."
In December 2002 Mr Rumsfeld for the first time explicitly authorised the use of more aggressive interrogation techniques on some Guantanamo detainees. The Pentagon has not publicly described those techniques but published reports say they included sleep and food deprivation, degrading treatment such as putting women's underwear on a prisoner's head, and the use of agonising "stress positions". A Pentagon official said the harshest techniques were reserved for one detainee: Mohammed Khatani, who was thought to be closely connected to the September 11 plot.
The effort was resisted by at least some in the uniformed military. General James Hill, who heads the US Southern Command that oversees Guantanamo Bay, said recently that after agreeing to use the harsher tactics for four to six weeks, he had second thoughts. "There was consternation over whether we were, in fact, doing the right thing," he said. At Gen Hill 's request, Mr Rumsfeld ordered a high-level legal review aimed at arriving at a definitive list of permitted interrogation techniques.
The result was a two-month Pentagon review, which in April 2003 resulted in a memorandum that largely replicated the Justice department's earlier opinion that harsh treatment of detainees was permissible under US and international law. But the list of approved techniques was narrower than in December 2002. d4 There is no clear evidence yet about whether more serious abuses of detainees have occurred at Guantanamo. Several released detainees have reported being subject to harsh treatment, including being shackled in painful positions, and some detainees have faced long periods of isolation.
Iraq, however, was another matter. As the insurgency there gathered strength last year, Mr Cambone encouraged sending Maj Gen Miller from Guantanamo to Iraq to make recommendations on improving the flow of intelligence from detainees. After travelling there in August 2003, Maj G en Miller recommended that the military police be ordered to help "set the conditions for the successful interrogation and exploitation of internees and detainees".
To many investigating the prison abuse scandal, that trip appears to have lit the fire that later burned out of control at Abu Ghraib. "If indeed Gen Miller was sent from Guantanamo to Iraq for the purpose of acquiring more actionable intelligence from detainees, then it is fair to conclude that the actions [at Abu Ghraib] are in some way connected to Gen Miller's arrival and his specific orders," said Senator Hillary Clinton.
Maj Gen Miller has insisted his recommendations were limited to reorganising a chaotic detention system and fostering more co-operation between MPs and military intelligence interrogators. But in recent weeks evidence has emerged that his Guantanamo interrogation techniques were widely circulated in Iraq - from documents that were posted on the walls of Abu Ghraib prison to debates among senior military lawyers i n Baghdad - in the days following his departure.
Senior military officials have said that Maj Gen Miller handed out the Guantanamo procedures to battalion commanders at Abu Ghraib, and Colonel Marc Warren, the top lawyer on Gen Sanchez's staff, said they were among the techniques included in a list of interrogation methods considered by military legal advisers in Baghdad. The Washington Post reported last week that some procedures appeared on a list of techniques approved by Lt Gen Sanchez the day after Maj Gen Miller left, though Lt Gen Sanchez has said he never authorised more extreme techniques such as the use of dogs against prisoners.
To Brigadier General Janis Karpinski, who was relieved of her command of Iraqi prisons in the wake of the scandal, there is no question that Maj Gen Miller's trip - and the resulting move to give command oversight of the facility to a military intelligence brigade - helped lead to the abuses by the 372nd MP company. In a recent BBC interview, she said Maj Gen Mi ller insisted prisoners should be treated "like dogs".
The link to Maj Gen Miller is crucial. Through him, a direct line can be drawn to the highest levels of the Pentagon and, in turn, the White House. But he has vehemently denied that his recommendations condoned illegal behaviour and senior military officials have rallied around him, attempting to discredit Brig Gen Karpinski.
One fact remains undisputed: less than two months after his departure from Iraq, the first of the shocking photographs were taken. Whether one event helped cause the other is the question that could decide the fate of an administration.
Additional reporting by Joshua Chaffin