Gitmo Torture Orders Came From The Top


British writer and international lawyer Philippe Sands is the author of The Torture Team , in stores May 5, which chronicles the role lawyers played in the introduction of the Bush administration’s program of coercive interrogation techniques. Here, Scott Horton talks to Sands about his findings.

TNR: In The Torture Team, you focus on a single document, Donald Rumsfeld’s December 2, 2002 approval of extraordinarily aggressive interrogation techniques. You give us the document’s genesis, and the revolt within the Pentagon that led to its being formally withdrawn. But what you show is a process as much as a document, and that process appears to me to be a conscious, studied circumvention of the normal procedure followed by the U.S. military. Do you agree?

Sands: When the administration released the December 2002 and other memos, it told a story that essentially said this: The new interrogation techniques came from the bottom up and had nothing to do with policy decisions driven from the top. I wanted to explore the truth of that account, by trying to talk to as many of the people involved in the decision as I could. I journeyed around America, tracking down the key players–amongst many others, Diane Beaver and Mike Dunlavey at Guantánamo; General Tom Hill at SOUTHCOM; General Dick Myers at Joint Chiefs and his lawyer, Jane Dalton; Doug Feith at the Pentagon; and Jim Haynes at the general counsel’s office. I racked up hundreds of hours of interviews with them, from which emerged a clear account of the process that was actually followed–though, of course, there are many more points of detail still to come out. The pressure for the new techniques came from the top and there was input from the top into the identification of the techniques. In pushing forward the decision-making process normal approval process was circumvented, as General Dick Myers at Joint Chiefs confirmed to me, saying, “This was not the way this should have come about.” Jim Haynes is one of the key players in this story. He was general counsel at the DoD throughout the period, Donald Rumsfeld’s Harvard Law School-trained lawyer who, it turned out, was intimately involved in the key decisions from a far earlier stage than his public accounts suggest. He may not have been the “brains” behind the whole operation–that designation must surely go to David Addington, Vice President Cheney’s lawyer at the time, and Haynes’ mentor. But Haynes was deeply and constantly involved.The man likely to go down in the history books as “Rumsfeld’s general” is Richard Myers, who served as chairman of the Joint Chiefs of Staff from 2001-05. You are impressed with his candor, and seem to like him personally, yet you write that he was “well and truly hoodwinked” in connection with the introduction of the torture techniques.

I spoke with General Myers for several hours, and I was grateful to him for meeting with me. He struck me as a man of decency and integrity, but one who was out of his depth on these issues and seemed not to have turned his mind to crucial points of detail. It was painfully clear that he had failed to understand the implications of President Bush’s February 7, 2002, decision on the Geneva Conventions (a decision that removed from all detainees at Guantnanamo the right to invoke any rights under those conventions and which removed constraints on interrogation). It was equally clear that he thought the new techniques of interrogation had come from the U.S. Army Field Manual. In fact, the Field Manual plainly prohibited all the techniques recommended by Haynes on November 27, 2002 and approved by Rumsfeld on December 2, 2002, reflecting President Lincoln’s determination, dating back to 1863, that the

U.S. military would never engage in cruelty. These were two of the more surprising–shocking, actually–moments during hundreds of hours of interviews that I conducted. I was astonished that the most senior military man in the U.S., perhaps in the world, could have had so little grasp of the import of what had been decided.

The administration’s narrative has been that a harsh set of interrogation techniques, including waterboarding and stress positions, was introduced in response to demands from interrogators in the field who concluded that what they had didn’t work. How did you reach the conclusion that, in fact, the pressure for the new techniques came from high up in the administration and worked its way down?

I have no doubt about the early, close, and active involvement of the upper echelons of the administration in the decision to request, approve and then use harsh techniques of interrogation on “Detainee 063,” Mohammed Al Qahtani. The story that emerged from the interviews was clear and it was consistent (plus, I had the opportunity to put my findings to Jim Haynes, who was the final piece of the jigsaw). The administration’s ‘bottom-up’ narrative–as spun by Mr. Haynes and others–is false, inaccurate, and misleading, and I believe it was knowingly intended to be so. The administration has scapegoated individuals who were on the ground at Guantánamo in order to protect itself. Names that could have been blacked out were not. That is deplorable, and the cover-up of what really happened will likely expose those who engaged in it to even greater difficulty.  

The lawyer whose legal analysis underpins the Rumsfeld memo is Diane Beaver, whom you describe as completely out of her depth dealing with a complex set of international law questions. But you also note, rather amazingly, how Beaver’s description of plot points from the TV show “24” directly influenced the introduction of new techniques at Guantánamo, techniques that later were replicated by American interrogators around the world. How could that happen?

The administration told a story which claimed that Diane Beaver’s legal advice was the basis for the Haynes recommendation and the Rumsfeld approval of the new techniques. That is false. When Jim Haynes wrote his memo of November 27, 2002, recommending blanket approval for 15 new techniques of interrogation, and leaving three others open for future use (including waterboarding), he had knowledge of the contents of the Department of Justice legal memo from August 1, 2002, signed by Jay Bybee and written with the assistance of John Yoo. That document provided Jim Haynes with the cover he sought, not Diane Beaver’s legal advice. She was hung out to dry by Jim Haynes, in a manner that was unbecoming of his office, deeply unfair to her and reflected what will look to many like a deliberate effort to cover up what actually happened.

Even if I don’t agree with her October 11, 2002 legal memo, I found Diane Beaver to be straight and honest. I met with her for many, many hours. In the course of our conversations it emerged that “24” had played an important role, in the sense of contributing to a climate in which the governing assumption was that ‘torture works.’ The second season of “24” went to air–and was broadcast around

Guantanamo–at the very moment in which the new techniques of interrogation were being authorized. It sent out the signal that “torture works”. She told me the program had “many friends” at Guantánamo. Of course, it turns out it also had many friends in D.C.

One of the lawyers you focus on is Doug Feith–though he makes clear in his interview with you that he was not functioning in the Pentagon as a lawyer. The exchange you record with Feith suggests he was distant from the decision process, and that he had a high opinion of and supported application of the Geneva Conventions. I remember speaking with military lawyers in 2003 repeatedly and hearing of their concern about Feith: his heavy hand, his pressure tactics, and his contempt for the Geneva Conventions and anyone who attempted to stand up for their application. What’s your assessment of Feith and his claims?

In our system of modern democratic societies, lawyers have a key role to play. They are the guardians–the gatekeepers–of legality. The rule of law requires lawyers to exercise independent judgment, and to give dispassionate, professional advice. That did not happen, at least in the upper echelons of the administration, in the Departments of Justice and Defense. Politically appointed lawyers–not the military, not the career civil servants–could be relied upon by the politicians to do what was needed, reflecting an unhappy convergence of ideology, incompetence, and weakness.

Doug Feith is a lawyer, although he was not serving the administration in that capacity. He has a helpfully dodgy memory. During our conversation he spoke with pride of his role in ensuring that none of the Guantánamo detainees should be able to rely on

Geneva. He also recalled only having become involved in the new interrogation techniques late on, when Haynes’ memo reached Rumsfeld. I pointed out to him that the memo itself said that its author had already consulted Feith. His reaction? Merely to point out that I had mispronounced his name. Following a lengthy conversation–which was recorded and makes remarkable listening because of his well-developed sense of self–my perception was clear: Doug Feith was deeply involved in the decision-making process, fully supported it, and failed to address the basic questions that one would have expected the Pentagon’s head of policy to be preoccupied with.

If there was a “station master” for the process of introducing the torture techniques, your book suggests that was Jim Haynes. Clearly, his role was more focal to the process that John Yoo or any other lawyer. Clearly, he also saw his role as that of an implementer, not as someone giving detached professional advice. The most devastating pages of your book are devoted to Haynes. You clearly feel that he lied to–or at least consciously misled–Congress when he testified about the Yoo-Bybee torture memoranda and how they were used. Did you feel that Haynes lied to you when you interviewed him?

Jim Haynes emerges as a central player in The Torture Team. He was involved throughout, at each stage of the decision-making. I have come to appreciate that he has–at best–a semi-detached relationship with truth. His propensity to mislead was evident from his first public intervention on the issues I have addressed, in June 2004, when the administration relied on him and Alberto Gonzales to spin a false narrative on the beginnings of the abuse at Guantánamo, and its relationship to Abu Ghraib. The catalogue of untruths was added to during his appearance before the Senate Judiciary Committee, in July 2006, when he was still trying to get himself nominated to a federal Court of Appeals. It is an interesting exercise to compare the account he offered on that day–as to the circumstances in which he wrote his November 2002 memo–with what actually happened. You might focus, for example, on when he first became involved and what he did when the materials were at the Joint Chiefs. It will be for others to form a view as to whether, and if so to what extent, he perjured himself.

I met with Jim Haynes on two occasions, in June 2007 and then in September 2007. He was under no obligation to meet with me. We talked openly and frankly, and I presented him with many of the most important facts as I then saw them, including the circumstances of his visit to Guantánamo in the period before he wrote his November memo. Did he lie to me? That is a question that might be put to him. If it ever is, his memory of our two meetings might be jogged by directing him to the information set out at page 99 of The Terror Presidency, the book written by Jack Goldsmith, who served as his special counsel from September 2002 until October 2003. On that page is confirmation of what I was told before I first met with Mr. Haynes, namely that he joined a delegation of the most senior lawyers in the Administration (accompanied by Messrs. Addington and Gonzales, and a senior CIA lawyer, John Rizzo, amongst others) that visited Guantánamo in late September 2002. That meeting confirmed Mr. Haynes’ early involvement in the process that led to the adoption of new techniques of interrogation, far earlier than his public narrative has indicated. Professor Goldsmith’s confirming account was published in the period between my two meetings with Mr. Haynes.

New York attorney Scott Horton teaches at Columbia Law School.