The framework that allowed the abuse of detainees in Afghanistan and Guantánamo, and kept them detained for years without due process, was not the product of American military policy or the fault of a few rogue soldiers.
It was largely the work of five White House, Pentagon and Justice Department lawyers who, following the orders of President Bush and Vice President Dick Cheney, reinterpreted or tossed out the U.S. and international laws that govern the treatment of prisoners in wartime, according to former U.S. defense and Bush administration officials.
Many of their legal interpretations have now been struck down by the Supreme Court. On June 12, the Court ruled that keeping detainees from challenging their detention in federal courts, was unconstitutional [and violated the military's own legal code and the 1949 Geneva Conventions].
The quintet of lawyers, who called themselves the "War Council," drafted legal opinions that circumvented the military's code of justice, the federal court system, and America's international treaty obligations in order to permit rough treatment of detainees and to prevent anyone — from soldiers on the ground to the president — from being held accountable for activities that at other times have been considered war crimes.
Sen. Carl Levin, who's leading an investigation into the origins of the harsh interrogation techniques, said at a hearing Tuesday that the abuse wasn't the result of "a few bad apples" within the military, as the White House has claimed. "The truth is that senior officials in the United States government sought information on aggressive techniques, twisted the law to create the appearance of their legality and authorized their use against detainees," said Levin, a Michigan Democrat.
The international conventions that the United States helped draft, and to which it's a party, were abandoned in secret meetings among the five men in one another's offices. No one in the War Council has publicly described the group's activities in any detail, and only some of their opinions and memorandums have been made public.
Neither the White House nor the Department of Defense has taken responsibility, and the U.S. military's top uniformed leadership remained silent in public while its legal code was being discarded. It was left to lawyers in the military's legal system, the Judge Advocate General's Corps, to defend the rule of law. They never had a chance.
Only one of the five War Council lawyers remains in office: David Addington, the brilliant but abrasive longtime legal adviser and now chief of staff to Cheney. His primary motive, according to several former administration and defense officials, was to push for an expansion of presidential power that Congress or the courts couldn't check.
Alberto Gonzales, first the White House counsel and then the attorney general, resigned last August amid allegations of perjury related to congressional hearings about the firings of U.S. attorneys.
The Defense Department in February abruptly announced the resignation of William J. Haynes II, the former Pentagon general counsel, amid sharp public criticism by military lawyers that he failed to ensure a just system of detainee trials at Guantánamo.
Even some conservatives have condemned former Justice Department lawyer John Yoo for what many called sloppy legal work in drafting key memorandums about detention policy. He's now a law professor at the University of California at Berkeley.
The last and least known member of the group, Timothy E. Flanigan, a former deputy to Gonzales, withdrew his nomination to be deputy attorney general in 2005 amid mounting questions in the Senate about his role in drafting the administration's legal definition of torture and other issues.
All five refused to answer questions from McClatchy for this story. Only Flanigan gave a reason, saying that he doesn't discuss past clients, in this case the U.S. government. Yoo previously has denied any connection between his work and detainee abuse.
The quintet did more than condone harsh treatment, however. It created an environment in which it was nearly impossible to prosecute soldiers or officials for alleged crimes committed in U.S. detention facilities.
The Bush administration pursued a strategy from the beginning to exempt American soldiers and operatives from legal repercussions for their actions, said Nigel Rodley, a British lawyer and professor who was the United Nations' special rapporteur on torture from 1993 to 2001.
The U.S. said it was continuing to follow the rule of law but at the same time it sidestepped any international treaties that could create problems for soldiers or officials, said Rodley, a member of the U.N. Human Rights Committee.
The legal architecture, he said, hinged on the notion that "The treaties that were relevant to U.S. criminal law were not relevant. That was the trick."
The administration, in other words, set out to circumvent any law that might have restricted Bush's detainee and interrogation programs.
MEMOS THAT PAVED THE WAY
A handful of legal opinions opened the way to the abuses documented in McClatchy's investigation. Among them:
- In a Jan. 9, 2002, memorandum for Haynes, co-author Yoo opined that basic Geneva Convention protections known as Common Article Three forbidding humiliating and degrading treatment and torture of prisoners didn't cover alleged al Qaeda or Taliban detainees — the entire incoming population of detainees in Afghanistan and Guantánamo.
- In a memorandum to Bush dated Jan. 25, 2002, Gonzales said that rescinding detainees' Geneva protections "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act."
Doing so, Gonzales wrote, also would create a solid defense against prosecutors or independent counsels who may in the future "decide to pursue unwarranted charges based on Section 2441," the U.S. War Crimes Act, which prohibits violations of the Geneva Conventions. Gonzales added that by withholding Geneva protections and prisoner-of-war status, Bush could avoid case-by-case reviews of detainees' status.
- On Feb. 7, 2002, Bush issued a memorandum declaring that alleged al Qaeda or Taliban members wouldn't be considered prisoners of war and, further, that they wouldn't be granted protection under Common Article Three.
Most nations accept Article Three, common to all four Geneva Conventions, as customary law setting the minimum standard for conduct in any conflict, whether internal or international.
- An Aug. 1, 2002, memorandum that Gonzales requested from the Justice Department defined torture as "injury such as death, organ failure or serious impairment of body functions," a high bar for ruling interrogation techniques or detainee treatment illegal. U.S. law, according to the memorandum's analysis, "prohibits only extreme acts."
- A March 14, 2003, memorandum that Yoo prepared at Haynes' request concluded that even if an interrogation method violated U.S. criminal statutes — such as the one against war crimes — the interrogators involved most likely couldn't be prosecuted because they were operating within the scope of Bush's constitutional authority to wage war against al Qaeda and other militant groups.
"In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy," Yoo wrote.
Now it appears that reinterpreting the law to lift legal protections for detainees could backfire.
On May 13, the Pentagon announced that it was dropping all charges against Mohammed al Qahtani, a Saudi man held in Guantánamo who's accused of planning to take part in the 9/11 attacks as the "20th hijacker."
The official overseeing the case, Susan J. Crawford, gave no reason for the move, which followed the leak of an interrogation log that detailed harsh attempts at Guantánamo to break Qahtani mentally. Among the methods used were forcing him to act like a dog, putting women's underwear on his head, keeping him in stress positions and accusing him of homosexuality.
Less than a month later came the Supreme Court's decision to restore the right of habeas corpus, that is, the detainee's right to challenge the cause of their detention.
The five lawyers on the War Council met every few weeks behind closed doors in Gonzales' or Haynes' office to plot legal strategy, according to Jack Goldsmith, a former senior Justice Department lawyer.
Several other former U.S. officials confirmed that the group was the driving force for White House policy on detainees.
Fears of future prosecution motivated many officials in the administration, Goldsmith said in his book "The Terror Presidency," published last year. The five lawyers saw legal opinions drafted by Yoo and others in the Justice Department's Office of Legal Counsel as a shield, Goldsmith wrote, that would make it hard to convict someone of acting on legal advice from the premier legal office in the administration.
"In my two years in the government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worrying that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgment calls," wrote Goldsmith, who declined interview requests.
As the head of the Office of Legal Council from the fall of 2003 to the summer of 2004, Goldsmith reversed the August 2002 and March 2003 opinions.
MILITARY LAWYERS CONCERNED
The military's lawyers were among those who were most concerned about what the new policies would mean for soldiers in the field.
Though not well known to the public, the Judge Advocate General's corps prides itself on defending the Uniform Code of Military Justice, the military's law book, which demands strict discipline and moral behavior in wartime. The legal officers are fond of saying that military commanders can depend on two people for honest advice: their chaplains and their JAG lawyers.
The military legal community complained, to little avail, that the policies hatched with the consent of Bush, Cheney and then-Defense Secretary Donald H. Rumsfeld were replacing decades of U.S. military policy on handling detainees.
When they protested, the War Council shut them out.
"We were absolutely marginalized," said Donald J. Guter, a rear admiral who served as the Navy's judge advocate general from 2000 to 2002. "I think it was intentional, because so many military JAGs spoke up about the rule of law."
Thomas Romig, a major general who was the Army's judge advocate general from 2001 to 2005, agreed that the JAGs were pushed to the side: "It was a disaster," he said.
Trust between the uniformed military lawyers and the Bush administration collapsed in the months after 9/11.
Guter said he began to think that Haynes "was playing games" in late 2001, when the two met regularly to figure out how to handle detainees in Afghanistan.
Haynes, then the Pentagon's head lawyer, had asked whether hundreds of the prisoners could be detained on Navy warships. The security and logistics involved in operating a ship while maintaining a maximum-security prison onboard would have been impossible. Guter thought that Haynes was raising such ideas to push him toward establishing a prison at the Guantánamo Bay U.S. Naval Base.
Guter said "it became apparent pretty quickly" that Haynes wanted a place "outside of the courts," where no judge could consider whether detainees were being held lawfully or under appropriate conditions.
"What they were looking for was the minimum due process that we could get away with," said Guter, who's now the dean of Duquesne University's law school. "I felt like they knew the answer they wanted to hear."
Romig recalled tense discussions with Yoo in November and December 2001 about setting up military commissions to try detainees.
"John Yoo wanted to use military commissions in the manner they were used in the Indian wars," Romig said. "I looked at him and said, 'You know, that was 100-and-something years ago. You're out of your mind; we're talking about the law.' "
The military commissions that the U.S. used against Native Americans during the mid-19th century were often ad hoc and frequently resulted in natives being hanged or shot.
"As they viewed it, due process is legal mumbo jumbo," said Romig, who's now the dean of Washburn University's law school. "They wanted to get them, get the facts and convict them. . . . If you're caught as a terrorist, you're presumed guilty and you have to prove you're innocent. It was crazy."
When Romig objected to pushing the boundaries of interrogation procedures during meetings in late 2002 or early 2003, he recalled that civilian defense officials replied that the time for law had passed.
"Guys, it's time to wake up and smell the coffee. It's time to take the gloves off," Romig said he was told by Marshall Billingslea, a deputy to Douglas Feith — who was then the undersecretary of defense for policy, the Pentagon's third-ranking official.
Romig said that he and other military officers asked, "Do you realize the implications of what you're saying?"
Like many in the military, Romig doubted the quality of intelligence gathered by physical coercion.
Haynes, who also was present, had no objections to what Billingslea had said, according to Romig. Billingslea and Haynes declined requests for comment.
In June 2006, over the objections of the White House, the Supreme Court ruled that Common Article Three of the Geneva Conventions was applicable to detainees at Guantánamo Bay.
Four months later, Bush signed the Military Commissions Act, which said that no foreign unlawful combatant subject to trial by military commission could invoke the Geneva Conventions as a source of rights, and that no U.S. court or judge has jurisdiction to hear cases in which such detainees contest their incarceration.
The bill also rewrote part of the U.S. legal code on war crimes, changing the definition of a war crime from conduct that "constitutes a violation of Common Article 3" to the much higher standard of "a grave breach of Common Article 3."
Within that new definition, it excluded "pain or suffering incidental to lawful sanctions," meaning harsh treatment that's allowed by the Bush administration's legal interpretations.
Among those whom Bush thanked at a bill-signing ceremony were Cheney — Addington's main backer in the White House — and Gonzales.
Two years later, the Supreme Court ruled the federal judges should be able to hear detainee appeals - striking down that section of the Military Commissions Act. The Court said the law applies to everyone. "From an early date it was understood that the King, too, was subject to the law," the court wrote in its 5-4 decision.
The policies hatched in the offices of Gonzales, Addington and Haynes muddied decades of U.S. military policy on handling detainees.
Changes to detainee law such as rescinding Common Article Three give a "dehumanizing message about the people (detainees) we're dealing with," said Army Lt. Col. Bryan Broyles, a defense attorney in the Office of Military Commissions, which was set up to try detainees at Guantánamo.
"The people who pursue that sort of academic, intellectual pursuit," said Broyles, who represents Qahtani, "don't understand the effect it has on the people (soldiers) who only see the end result."