Senate Report Nails Rumsfeld, Sets Up War Crimes Trial

They may not have meant to do it, but the Senate Armed Services' Committee released a report by Senators Carl Levin and John McCain that gives us the best timeline to date on administration decisions to begin torturing detainees. The report, an Inquiry into the Treatment of Detainees in U.S. Custody, also describes the means by which both the Pentagon and the CIA approached agencies within government, leading to the very top of the Bush Administration, and how the latter rushed in a series of presidential orders, and memos by the Office of Legal Counsel, to redefine torture law in order to provide legal cover for their blatant violation of the laws of war and those against torture.

The Washington Post article covering these developments, Report on Detainee Abuse Blames Top Bush Officials, is listed as the most viewed item of the day. And for good reason, for anyone who knows how to read such material can see the bombshell that resides within.

Those in the anti-torture community are fond of repeating the fact that torture is a jus cogens norm, that is:

"a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." Link

But when it comes to the question of prosecuting Rumsfeld and others for the crime of torture, it's generally accepted (by the mainstream media and cable punditry) that the Bush Administration has created sufficient legal cover for themselves, and that we will have to look to international intervention, under the concept of universal jurisdiction, to prosecute these individuals.

But even by their own pathetic lights, the Bush/Cheney/Rumsfeld troika and their assistants failed to protect themselves, as their rush to cover their tracks came TWO MONTHS TOO LATE. They are still trying to keep certain documents secret, it seems, and we must demand they see the light of day, so we can proceed with the prosecutions. (By "we" I mean an Obama Justice Department.)

Here's the key paragraphs in the narrative of the report, at least when it comes to the most vulnerable part of their defense against prosecution. Keep in mind that Levin/McCain begin their narrative with the "Presidential Order [that] Opens the Door to Considering Aggressive Techniques."

On February 7, 2002, President Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with al Qaeda and concluding that Taliban detainees were not entitled to prisoner of war status or the legal protections afforded by the Third Geneva Convention. The President’s order closed off application of Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, to al Qaeda or Taliban detainees.

So, now they think they are covered against violations of the Geneva Convention. But they didn't think, or they forgot that they were seeking to break, or already breaking the Geneva Convention, and a host of other treaties and laws, at least as early as December 2001.

Again, from the report (emphasis added):

In December 2001, more than a month before the President signed his memorandum, the Department of Defense (DoD) General Counsel’s Office had already solicited information on detainee “exploitation” from the Joint Personnel Recovery Agency (JPRA), an agency whose expertise was in training American personnel to withstand interrogation techniques considered illegal under the Geneva Conventions.

JPRA runs the military's Survival, Evasion, Resistance, Escape, or SERE program, under which military personnel considered at risk of capture are "tortured" under controlled circumstances, with the aim of inoculating them against confessing or revealing secrets under pressure. The SERE program specialized in exposing its recruits to waterboarding, nudity, stress positions, degrading behavior, and sensory overload and sensory deprivation. It was slam everything but the kitchen sink against a person to make them break. During training there are doctors and psychologists around to keep these things from getting out of control. But some of these doctors or psychologists evidently thought they could use their knowledge of the program to "reverse-engineer" it and provide interrogation expertise to the military when asked.

And they were asked first in December 2001:

Given JPRA’s role and expertise, the request from the DoD General Counsel’s office was unusual. In fact, the Committee is not aware of any similar request prior to December 2001. But while it may have been the first, that was not the last time that a senior government official contacted JPRA for advice on using SERE methods offensively. In fact, the call from the DoD General Counsel’s office marked just the beginning of JPRA’s support of U.S. government interrogation efforts.

The subsequent contact between JPRA, SERE, SERE psychologists, the CIA, and Guantanamo personnel make up the bulk of the rest of the report, and is definitely worth pursuing, and very important in its own right. (In fact, I've written much on this previously during the Senate Committee hearings.) But right now I'm concentrating on the critical first approach.

After discussing the December 2001 contact between the Department of Defense and JPRA, the narrative jumps ahead to Spring 2002. The reason for the jump will soon be clear (emphasis added):

Beginning in the spring of 2002 and extending for the next two years, JPRA supported U.S. government efforts to interrogate detainees. During that same period, senior government officials solicited JPRA’s knowledge and its direct support for interrogations. While much of the information relating to JPRA’s offensive activities and the influence of SERE techniques on interrogation policies remains classified, unclassified information provides a window into the extent of those activities.

(U) JPRA’s Chief of Staff, Lieutenant Colonel Daniel Baumgartner testified that in late 2001 or early 2002, JPRA conducted briefings of Defense Intelligence Agency (DIA) personnel on detainee resistance, techniques, and information on detainee exploitation.

(U) On April 16, 2002, Dr. Bruce Jessen, the senior SERE psychologist at JPRA, circulated a draft exploitation plan to JPRA Commander Colonel Randy Moulton and other senior officials at the agency. The contents of that plan remain classified but Dr. Jessen’s initiative is indicative of the interest of JPRA’s senior leadership in expanding the agency’s role.

We can quite clearly see the use of classification as a cover-up of culpability and probable war crimes. This is doubly true for the classification of any materials between December 2001 and February 7, 2002, the date of Bush's presidential order suspending Geneva rights, because ALL abuse and torture before that date has no cover that even the worst right-wing and pro-military wingnut could find a fig-leaf of bogus legal cover. And that's important because we don't want to win a formal argument about how international law covers Bush, Rumsfeld, et al.'s crimes, we want prosecutions, here, now, in this country. Frankly, I think there are more barriers to bringing charges abroad, for fear of confronting the United States, and we need to set an example for the world ourselves anyway, and try and undo the tremendous damage these individuals have done.

The report goes into succinct detail about the further descent into lawlessness by the administration, the military, and the CIA; how some fought back and tried to protest (military lawyers, CID investigators, etc.), but in the end the administration kept pushing their torture agenda, until the final paper reached Rumsfeld's desk:

With respect to GTMO’s October 11, 2002 request to use aggressive interrogation techniques, Mr. Haynes said that “there was a sense by the DoD Leadership that this decision was taking too long” and that Secretary Rumsfeld told his senior advisors “I need a recommendation.” On November 27, 2002, the Secretary got one. Notwithstanding the serious legal concerns raised by the military services, Mr. Haynes sent a one page memo to the Secretary, recommending that he approve all but three of the eighteen techniques in the GTMO request. Techniques such as stress positions, removal of clothing, use of phobias (such as fear of dogs), and deprivation of light and auditory stimuli were all recommended for approval....

(U) On December 2, 2002, Secretary Rumsfeld signed Mr. Haynes’s recommendation, adding a handwritten note that referred to limits proposed in the memo on the use of stress positions: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?”

In the next days and weeks I suppose (and hope) a lot more will be written on this. I have aimed this essay at what I feel is a key revelation in the Senate committee's investigation and report, one that can and should lead to the filing of charges against Donald Rumsfeld, William Haynes, and a number of others. Whether Bush can be prosecuted for his actions as president I leave to the legal minds to ponder.

Oddly, in the conclusions section of the report, the authors leave out the December 2001 solicitation to JPRA and return to a timeline wherein JPRA was approached in July 2002 for information on SERE techniques:

That solicitation, prompted by requests from Department of Defense General Counsel William J. Haynes II, reflected the view that abusive tactics similar to those used by our enemies should be considered for use against detainees in U.S. custody.

I don't know why the Committee would bury in their conclusions an aspect of the timeline that was especially culpable for the administration. Perhaps they felt that with the classification of certain documents they didn't have enough facts to back up their contentions. In that case it is even more essential to call for a declassification of all documents on the torture timeline, and the incoming Obama administration should make this a first priority, if their claims to government transparency are going to carry any weight.

In any case, there's plenty more in the report to keep any war crimes tribunal busy, and also assist those in writing a true history of the Iraq and Afghanistan wars. I will close with this statement by the committee shooting down the myth that the torture at Abu Ghraib was the result of bad training or a few "rotten apples":

The abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own. Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at GTMO. Secretary of Defense Donald Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody. What followed was an erosion in standards dictating that detainees be treated humanely.

No kidding!

Onwards to a prosecution of the war criminals and return to civilized norms in the United States.

Also posted at Daily Kos