The post-9/11 legal response
The torture lawyers went into overdrive in the wake of the September 11 attacks, producing a flood of documents in a remarkably short time. As an article in the New York Times explains,
The administration’s legal approach to terrorism began to emerge in the first turbulent days after Sept.
11, as the officials in charge of key agencies exhorted their aides to confront Al Qaeda’s threat with bold imagination.“Legally, the watchword became ‘forward-leaning,’ ” said a former associate White House counsel, Bradford Berenson, “by which everybody meant: ‘We want to be aggressive. We want to take risks.’ ”
The challenge resounded among young lawyers who were settling into important posts at the White House, the Justice Department and other agencies.[310]
As an example of “forward-leaning” legal strategy, the article cites an OLC memorandum by John Yoo on how to overcome constitutional objections to the use of military force against terrorists within the US, for example “to raid or attack dwellings where terrorists were thought to be, despite risks that third parties could be killed or injured by exchanges of fire.”[311] Yoo wrote the memo just ten days after September 11. The article explains that “lawyers in the administration took the same ‘forward-leaning’ approach to making plans for the terrorists they thought would be captured.”[312]
Related to the “forward-leaning” strategy is what Ron Suskind refers to as “the Cheney Doctrine” or “the one percent doctrine,” allegedly formulated by the US Vice-President in November 2001. In Suskind’s words, “If there was even a one percent chance of terrorists getting a weapon of mass destruction... the United States must now act as if it were a certainty.”[313] “It’s not about our analysis, or finding a preponderance of evidence,” Suskind quotes Cheney as saying.
“It’s about our response.”[314] Suskind asserts that the Cheney Doctrine formed the guiding principle in the War on Terror. It carries far-reaching implications for the interrogation of captives: if even a minute chance of catastrophe must be treated as a certainty, every interrogation becomes a ticking time-bomb case - and ticking time-bomb cases are the one situation where many people who otherwise balk at torture reluctantly accept that breaking the taboo is morally justified.The most crucial portions of the “forward-leaning” strategy - which included not only interrogation issues but military tribunals and the applicability of the Geneva Conventions as well - were formulated in near-total secrecy by a small group of like-minded Administration lawyers, intentionally excluding anticipated dissenters in the State Department and the JAG Corps.[315] Indeed, when the chief JAG officers of the four military services learned of the Bybee Memo months after the fact, they responded with forceful criticism and barbed reminders that “OLC does not represent the services; thus, understandably, concern for servicemembers is not reflected in their opinion.”[316] The chief Air Force JAG reminded the Secretary of the Air Force that “the use of the more extreme interrogation techniques simply is not how the US armed forces have operated in recent history. We have taken the legal and moral ‘high road’ in the conduct of our military operations regardless of how others may operate.”[317] (This, by the way, is exactly the kind of moral reminder that a good lawyer ought to give clients.) Nevertheless, where in past administrations OLC weighed in only after relevant federal agencies had addressed legal questions, now the OLC “frequently had a first and final say.”[318] The Bush Administration took pains to bypass legal advice it did not want to hear, and Vice President Dick Cheney’s lead counsel, David Addington, was particularly suspicious that JAGs are too independent.[319] In 2006 it emerged that Defense Secretary Donald Rumsfeld had quietly signed off on a torture-permissive working group report without ever notifying officials who objected to it (and who were in the working group), including Navy general counsel Alberto Mora.
Mora had argued for months against cruel or degrading interrogation techniques. He thought he had won his argument when Defense Department general counsel William Haynes wrote a US Senator that the military would not use abusive tactics. But Haynes, who had previously approved intimidation with dogs, forced nudity, and sleep deprivation, Outmaneuvered Mora.[320] In the words of reporter Jane Mayer, “Legal critics within the Administration had been allowed to think that they were engaged in a meaningful process; but their deliberations appeared to have been largely an academic exercise, or, worse, a charade.”[321] Nor did Abu Ghraib change the Bush Administration’s desire to keep politically independent JAG officers out of the advisory loop. In response to Abu Ghraib, the US Congress enacted legislation that prohibited Defense Department officials from interfering with JAG officers offering independent legal advice.[322] But although President Bush signed the legislation, his signing statement implied that the executive branch would not abide by these prohibitions.[323]The post-9/11 OLC used the catastrophe to advance an extraordinarily militant version of executive supremacy - an agenda that, even before 9/11, had preoccupied Yoo, Cheney, and Addington.[324] Just two weeks after 9/11, a Yoo memorandum concluded “that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001.” No statute, he added, “can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.”[325] This bold assertion prefigures the Bybee Memo, because it clearly implies that the decision whether to torture would be “for the President alone to make.” The conclusion reappeared in one of the Bybee Memo’s most controversial sections, which argued that the criminal laws against torture could not be enforced against interrogators authorized by the President.[326]
One of the first steps the Administration took was to strip Geneva Convention protections from Al Qaeda and Taliban captives (a position eventually rejected by the Supreme Court in June 2006, when the Court held that common Article 3 of Geneva applies in the War on Terror and therefore protects even Al Qaeda captives).[327] In January 2002, OLC concluded that the President has unilateral authority to suspend the Geneva Conventions, and that customary international law (which incorporates Geneva protections) has no purchase on US domestic law - a deeply controversial position favored by some conservative academics but never accepted by mainstream lawyers or the Supreme Court.[328] In any event, two memos argued, the Geneva Conventions do not apply to Al Qaeda or the Taliban, because Al Qaeda is not a state and the Taliban were unlawful combatants.
The President quickly adopted this position.[329] However, the President added, because “our Nation has been and will continue to be a strong supporter of Geneva and its principles... the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”[330] Critics quickly noticed that this order applies only to the armed forces, not the CIA, and that the phrase “consistent with military necessity” creates a loophole for harsh interrogation. The carefully crafted phrasing, which makes the document superficially appear more protective of detainees than it actually is, was more handiwork of the White House torture lawyers. A few months later, Attorney General Gonzales qualified the protection even more dramatically when he stated that “humane” treatment of detainees need consist of nothing more than providing them food, clothing, shelter, and medical care.[331]Stripping away Geneva protections from the detainees was crucial to all the further work of the torture lawyers. It was essential that as few detainees as possible be classified as prisoners of war under the Third Geneva Convention, because POW status protects them not only from torture but from all forms of coercive questioning. Indeed, Article 17 provides that “prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.” Stripping away common Article 3 protections against torture and humiliation was equally essential if harsh interrogators were to avoid war crimes charges: as we have seen, violations of common Article 3, like grave breaches of the Geneva Conventions, were war crimes under federal law. Bybee and Yoo argued that because the global war on terror (the “GWOT”) is international, common Article 3 does not apply, because Article 3 is limited to armed conflicts “not of an international character.”[332] (This is the interpretation the Supreme Court eventually rejected in June 2006.) These early opinions set the stage for the torture memos that followed.