Scott Horton - Harpers.org (June 18, 2008)

Torture from the Top Down

In a series of hearings, Congressional leaders are trying to get to the bottom of a simple question: who initiated torture techniques in the “war on terror”? What was the process by which it was done? On whose authority was it done? The use of torture techniques became a matter of public knowledge four years ago. In response to the initial disclosures, the Bush Administration first decided to spin the fable of a handful of “rotten apples” inside of a company of military police from Appalachia and scapegoated a handful of examples in carefully managed and staged show trials. When further disclosures out of Bagram and Guantánamo made this untenable, they spun a new myth, this time suggesting that the administration had responded to a plea from below for wider latitude.

In fact at this point the evidence is clear and convincing, and it points to a top-down process. Figures near the top of the administration decided that they wanted brutal techniques and they hammered them through, usually over strong opposition from the ranks of professionals.

Yesterday’s hearings in the Senate Armed Services Committee helped make that point, and brought a new focus on a figure who has been lurking in the shadows of the controversy for some times: William J. Haynes II, Rumsfeld’s lawyer and now a lawyer for Chevron. Two things emerge from the hearing. First, that Haynes was effectively a stationmaster when it came to introducing torture techniques in the “war on terror,” circumventing opposition from career military and pushing through a policy of brutality and cruelty, by stealth when necessary. And second, that Haynes lacks the courage of his convictions, a willingness to stand up and testify honesty about what he did.

So frequent in fact were Haynes’s failures of recollection that he appears ready to challenge the former Attorney General Alberto Gonzales for the distinction of having the most comprehensive and convenient memory loss of any recent government official. And, as is the case with Gonzales, speculation is starting to build over whether Haynes will be the subject of a probe over his statements to Congress which cannot be squared with the extrinsic evidence or recollections of others.

In some areas Haynes’s memory lapses follow a familiar pattern. He doesn’t want to recall having seen, discussed, or drawn upon the celebrated “torture” memorandum of the Department of Justice’s Office of Legal Counsel. That’s curious, particularly since the language and reasoning of that memorandum pervade virtually everything he did. Moreover, one witness has described in hushed tones how Haynes kept a copy of this memorandum in a vault in his office, removing it to examine like Torquemada’s Holy Grail whenever he needed nourishment in his quest for official cruelty. This man appears to be feverishly covering something up, wary all the while that he may be fated to be the target of a criminal investigation. Memory lapses were, alas, the sole tactical option available to him. “Abu Ghraib? Don’t remember that” quipped Dana Milbank this morning in the Washington Post. That sums up the Haynes testimony nicely. And the ironies were not lost on Milbank:

In two hours of testimony, Haynes managed to get off no fewer than 23 don’t recalls, 22 don’t remembers, 16 don’t knows, and various other protestations of memory loss. It was an impressive performance, to be sure. But let’s see him try to do that with a hood over his head, standing on a crate with wires attached to his arms.

Torquemada would have called that “putting the question” to Haynes. I don’t approve of that tactic, so let’s help Haynes out. What is he forgetting?

Of course, he’s forgetting that the whole push to introduce torture at Guantánamo started with the War Council in which he and David Addington played such a central role. And he’s forgetting the key role played by Vice President Cheney and David Addington, his mentors, who raised him from obscurity when they decided to elevate a retiring Army captain to be general counsel of the Army. (Haynes’s utter fidelity to his masters is impressive, and yesterday it showed. Fidelity requires the code of omertà.) He forgot his visit in September 2002 to Guantánamo with the rest of his War Council, a most convenient memory failure about which Philippe Sands confronted him during their interview. The minutes of that visit point to many private discussions between Haynes and the Guantánamo commander. Haynes doesn’t recall those, either, but immediately after them, the process of preparing requests for highly coercive techniques begins. Haynes wants us to consider this a coincidence. Experience teaches otherwise.

And he’s forgotten all about the push from the top, originating in his office, to have the SERE (“Survival, Evasion, Resistance and Escape”) techniques studied as a basis for new “gloves off” interrogation techniques. Haynes had his deputy, Richard Shiffrin, launch a dialogue with SERE trainers about techniques that could be derived from their training program. This is path through which waterboarding and a number of other illegal techniques made their passage into the interrogator’s repertoire, first for the CIA and later for the military. In July 2005, Jane Mayer reported on this in a New Yorker article, and yesterday her work was validated through disclosure of the paper trail.

He’s forgotten about the ferocious opposition to these practices that sprung up within the military, starting with the Navy’s General Counsel, Alberto Mora, and spreading to the leadership of the JAG Corps.

But most curiously, he’s forgotten all about the role played by the Justice Department and its Office of Legal Counsel. He’s forgotten about the torture memo itself. Why? The August 2002 torture memo is a smoking gun that shows torture being introduced top-down, as a project of the Cheney–Addington team of which Jim Haynes was a proud member. It refutes the whole administration narrative about torture practices coming on the strength of an appeal from below. And it puts the lie to John Yoo’s claims never to have influenced the abuses that occurred in the field in Iraq, Afghanistan, and in Guantánamo. In fact the Yoo–Bybee memorandum unleashed the abuses, and was used by Jim Haynes just for that purpose. Once more, Jim Haynes is protecting his friends and protecting himself. Once more, Haynes gives not the candor and openness he owes to a Congressional oversight body, but the code of silence that more typically binds the participants in a criminal scheme.

Haynes has been described as an inspirational leader, with the photogenic appearance of a movie star. But it’s interesting to note the sort of conduct he inspires. The most telling document to emerge in yesterday’s hearing are the notes of a meeting at Guantánamo convened in the wake of Haynes’s visit to discuss implementation of the “tough stuff.” The Yoo-Bybee torture memorandum is discussed at length, and its rationale is drawn out. And the reaction? “We’ll need documentation to protect us,” said Lieutenant Colonel Diane Beaver. “Yes, if someone dies while aggressive techniques are being used, regardless of cause of death, the backlash of attention would be severely detrimental. Everything must be approved and documented” said CIA lawyer John Fredman (now serving as a legal advisor to the Director of National Intelligence). But Fredman’s concerns were clearly addressed by the Bush Administration, because many people did die in detention, in conditions connected to the application of torture techniques (there are at least a dozen such cases already documented), and in none of these cases has a responsible person been punished. Did the Bush Administration ultimately decide that homicide was not a problem, either? Or perhaps it was concern about the information that would come to the surface if a prosecution were to be undertaken.

Yes, the conversation starts with wide recognition that the techniques which were to be introduced were criminal under federal law. And it progresses to concern about avoiding criminal liability. Throughout the documents, military officers recite the litany of reasons why these techniques should not be used. They seem to expect that the matter will work its way up to senior levels and be shot down. There is a sort of horror in the creeping recognition of the moral and ethical vacuum that has taken hold at the highest echelons of government.

Career military leaders mustered a catalog of objections to the torture techniques that Haynes and his team crammed down on the military. But it started with enlightened self-interest, the recognition that the decision to introduce torture would be a tactical victory of the highest order for the nation’s foes in Iraq and Afghanistan. Before Haynes spoke, an individual appeared who was Haynes’s diametric opposite in candor and forthrightness. It was Alberto Mora, general counsel of the Navy. Here were his comments:



And the questioning of Jim Haynes? Yesterday was a modest start. The process has only just begun.