Chalmers Johnson - Nemesis - The Last Days of the American Republic

The president’s indispensable partner in these operations was his then legal counsel (subsequently attorney general) Alberto Gonzales. In order to protect the president from being charged with illegally ordering the torture of captives, Gonzales gathered around him a remarkable coterie of right-wing lawyers from various branches of the government. These included the Korean-American scholar John Yoo, then assistant attorney general; Timothy Flanigan, deputy counsel to the president; Patrick F. Philbin, deputy assistant attorney general; William J. Haynes, general counsel for the Department of Defense; and Jay S. Bybee, assistant attorney general. 91With sophistry and ideological fervor these legal specialists prepared briefs—”torture memos”—for the president and the secretary of defense claiming, among other things, that “[i]n order to respect the President’s inherent constitutional authority to manage a military campaign, [the statutory prohibition against torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress lacks authority under Article I [of the Constitution] to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war.” 92In fact, article 1, section 8 of the Constitution expressly states: “The Congress shall have Power to declare War and make Rules concerning Captures on Land and Water.”

As Karen Greenberg and Joshua Dratel, editors of The Torture Papers and leading authorities on these machinations, argue, “The ‘torture memos’ ... deliberately disregard, even nullify, the balance-of-powers doctrine that has defined the United States since its inception.” 93Harold Hongju Koh, dean of Yale University’s law school and a former assistant secretary of state, says, “The notion that the president has the constitutional power to permit torture is like saying he has the constitutional power to commit genocide.... It’s just erroneous legal analysis.” 94Gonzales’s lawyers nonetheless argued for a “unitary executive” theory of presidential power, which essentially suggests that, in time of war (as they also insisted the president’s self-proclaimed “war on terror” was), the president as commander in chief has almost uncontestable powers to do more or less as he pleases, whatever Congress or the courts may say.

Perhaps the most shortsighted aspect of this claim to absolute presidential power is that it leads unavoidably to the president’s liability under the concept of “command responsibility”—the doctrine that a military commander is legally liable for all abuses and atrocities committed by his troops whether he knows about them or not. After World War II, the United States put Japanese general Tomoyuki Yamashita, the so-called Tiger of Malaya and subsequently commander of Japanese forces in the Philippines, on trial. A U.S. war crimes tribunal found that he had failed to uphold “command responsibility” for his troops, who had massacred thousands of innocent civilians in Manila in early 1945, even though the defense established that he had no knowledge of the crimes. Because Yamashita was tried by a military court, he appealed his case directly to the U.S. Supreme Court, which upheld his conviction by a vote of 5 to 3, thereby establishing the doctrine of command responsibility in American law. Justice Frank Murphy warned in dissent, “In the sober afterglow will come the realization of the boundless and dangerous implications of the procedure sanctioned today.... Indeed, the fate of some future President of the United States and his chief of staff and military advisers may well have been sealed by this decision.” In other words, American constitutional law already establishes the grounds on which President Bush could be held accountable for his failure to exercise command responsibility in cases of torture at Guantanamo, Abu Ghraib, and elsewhere. 95

As Justice Murphy suggested, the issue of command responsibility applies equally well to the president’s underlings, Secretary Rumsfeld and Generals Myers, Sanchez, and Miller. Rumsfeld’s potential liability is, however, greater than just being the highest official in charge of the Department of Defense who failed to stop torture when he learned about it. 96According to the journalist Seymour Hersh, in late 2001, Rumsfeld personally created a highly secret “special access program” (SAP) that directed American special forces units to kill or capture and, if possible, interrogate high-value targets. Code-named “Copper Green,” the SAP “encouraged physical coercion and sexual humiliation of Iraqi prisoners in an effort to generate more intelligence” and was at the root of the Abu Ghraib prison scandal. Both President Bush and General Myers were fully informed about these operations. 97

In addition, Rumsfeld personally reviewed and signed off on many of the techniques of humiliation, abuse, and torture that would be brought into play at the American prison at Guantanamo. In one case, in a November 27, 2002, memo on acceptable interrogation methods, he personally scribbled in the margins: “I stand for 8-10 hours a day. Why is standing [as a technique at Guantanamo] limited to 4 hours?” 98Of course, Rumsfeld was not naked and handcuffed when he stood working at his upright desk in the Pentagon.

In December 2003, before army investigators received the first photos of torture practices at Abu Ghraib, now retired colonel Stuart A. Huntington reported to the generals in Iraq that units of Army Rangers, members of Delta Force, Navy SEALs, and other special forces working with the CIA were torturing their detainees. Major General Barbara Fast, the highest-ranking intelligence official in Iraq, had commissioned Huntington, a veteran of the murderous counterinsurgency Phoenix Program during the Vietnam War, which was the model for Rumsfeld’s SAP, to look into charges of abuse by Copper Green operatives. Huntington concluded that such measures would imperil rather than aid U.S. efforts to quell the Iraqi insurgency. When Huntington was told by one officer at a high-value-target detention center in Baghdad that prisoners taken by the highly classified units showed signs of having been beaten, he asked whether the officer had alerted his superiors to the problem. The reply was, “Everyone knows about it.” 99

When on May 6, 2004, the press questioned Rumsfeld about his responsibility for widespread military torture in Afghanistan and Iraq, he replied, “My impression is that what has been charged thus far is abuse, which I believe technically is different from torture.... Therefore I’m not going to address the torture word.” 100Unfortunately, Rumsfeld’s attempt to trivialize what he had authorized did not cause the problem to disappear. It only got worse and ultimately implicated the high command.

All the torture took place during General Richard Myers’s term as chairman of the Joint Chiefs of Staff. He knew and approved of everything that was done, including a December 2002 list of new interrogation techniques signed off on by Rumsfeld that were to be used on al-Qaeda captives held at Guantanamo Bay. These techniques included sleep and food deprivation, degrading treatment such as having female soldiers in their underwear grab and kick detainees’ genitals and rub their breasts against them, insulting detainees’ religious beliefs by having women smear them with fake menstrual blood, and using agonizing “stress positions” to try to get them to talk. 101

After the torture photos were turned over to army criminal investigators, Lieutenant General Ricardo Sanchez, the senior military commander in Iraq, appointed Major General Antonio M. Taguba to investigate the situation at Abu Ghraib. Given army standards of inspecting itself that prevailed in Iraq at that time, General Taguba conducted an unusually thorough and unbiased examination. He documented numerous incidents between October and December 2003 of “sadistic, blatant, and wanton abuses.” 102General Myers, who was both Sanchez’s and Taguba’s superior, reacted to the investigation by, first, trying to prevent details of the torture at Abu Ghraib from being released to the American public and then claiming that he had simply been too busy to get around to reading Taguba’s report. In April 2004, Myers called Dan Rather, the CBS News anchorman, and persuaded him not to break the story of the Abu Ghraib tortures for at least two weeks, and in May, four months after Taguba’s report had been completed, Myers told Fox News that he had still not read it. 103