The Torture Memos

Editors’ Note: Below is an excerpt of original commentary from attorney Joshua Dratel, who has been involved with torture cases at Guantanamo Bay. Together with NYU law professor, Karen Greenberg, they have created the most comprehensive archive of government documents and internal memos to date to elucidate on the efforts of Bush officials in creating a policy for torturing “enemy combatant” prisoners. Those memo have just been published as a book, The Toture Papers: The Road to Abu Ghraib, by Cambridge University Press. AC / JS

While the proverbial road to hell is paved with good intentions, a host of internal government memos (collected in our book The Torture Papers) demonstrate that the path to the purgatory that is Guantanamo Bay, or Abu Ghraib, has been paved with decidedly bad intentions. The policies that resulted in rampant abuse of detainees first in Afghanistan, then at Guantanamo Bay, and later in Iraq, were product of three pernicious purposes designed to facilitate the unilateral and unfettered detention, interrogation, abuse, judgment, and punishment of prisoners:

(1) the desire to place the detainees beyond the reach of any court or law;

(2) the desire to abrogate the Geneva Convention with respect to the treatment of persons seized in the context of armed hostilities; and

(3) the desire to absolve those implementing the policies of any liability for war crimes under U.S. and international law.

Indeed, any claim of good faith–that those who formulated the policies were merely misguided in their pursuit of security in the face of what is certainly a genuine terrorist threat–is belied by the policy makers, more than tacit acknowledgment of their unlawful purpose. Otherwise, why the need to find a location–Guantanamo Bay–purportedly outside the jurisdiction of the U.S. (or any other) courts? Why the need to ensure those participating that they could proceed free of concern that they could face prosecution for war crimes as a result of their adherence to the policy? Rarely, if ever, has such a guilty governmental conscience been so starkly illuminated in advance.

That, of course, begs the question: what was it that these officials, lawyers and lay persons, feared from the federal courts? An independent judiciary? A legitimate, legislated, established system of justice designed to promote fairness and accuracy? The Uniform Code of Military Justice, which governs courts-martial and authorizes military commissions? The message that these memoranda convey in response is unmistakable: these policy makers do not like our system of justice, with its checks and balances, and rights and limits, that they have been sworn to uphold. That antipathy for and distrust of our civilian and military justice systems is positively un-American.

However, that distaste for our justice system was not symmetrical, as the memos reveal how the legal analysis was contrived to give the policy architects and those who implemented it the benefit of doubt on issues of intent and criminal responsibility while at the same time eagerly denying such accommodations to those at whom the policies were directed. Such piecemeal application of rights and law is directly contrary to our principles: equal application of the law, equal justice for all, and a refusal to discriminate based on status, including nationality or religion. A government cannot pick and choose what rights to afford itself, and what lesser privileges it confers on its captives, and still make any valid claim to fairness and due process.

These memoranda follow a logical sequence:

(1) find a location secure not only from attack and infiltration, but also, and perhaps more importantly in light of the December 28, 2001, memo that commences this trail, from intervention by the courts;

(2) rescind the U.S.’s agreement to abide by the proscriptions of the Geneva Convention with respect to the treatment of persons captured during armed conflict; and

(3) provide an interpretation of the law that protects policy makers and their instruments in the field from potential war crimes prosecution for their acts.

The result, as clear from the arrogant rectitude emanating from the memos, was unchecked power, and the abuse that inevitably followed.

The chronology of the memoranda also demonstrates the increasing rationalization and strained analysis as the objectives grew more aggressive and the position more indefensible–in effect, rationalizing progressively more serious conduct to defend the initial decisions and objectives, to the point where, by the time the first images of Abu Ghraib emerged in public, the government’s slide into its moral morass, as reflected in the series of memos published in this volume, was akin to a criminal covering up a parking violation by incrementally more serious conduct culminating in murder.

The memos also reflect what might be termed the “corporatization” of government lawyering: a wholly result-oriented system in which policy makers start with an objective and work backward, in the process enlisting the aid of intelligent and well-credentialed lawyers who, for whatever reason–the attractions of power, careerism, ideology, or just plain bad judgment–all too willingly failed to act as a constitutional or moral compass that could brake their client’s descent into unconscionable behavior constituting torture by any definition, legal or colloquial. That slavish dedication to a superior’s imperatives does not serve the client well in the end and reduces the lawyer’s function to that of a gold-plated rubber stamp.

Nor does any claim of a “new paradigm” provide any excuse, or even a viable explanation. The contention, set forth with great emphasis in these memoranda, that al Qaeda, as a fanatic, violent, and capable international organization, represented some unprecedented enemy justifying abandonment of our principles is simply not borne out by historical comparison. The Nazi party’s dominance of the Third Reich is not distinguishable in practical terms from al Qaeda’s influence on the Taliban government as described in these memos.

Al Qaeda’s record of destruction, September 11th notwithstanding–and as a New Yorker who lived, and still lives, in the shadow of the Twin Towers, which cast a long shadow over lower Manhattan even in their absence, I am fully cognizant of the impact of that day–pales before the death machine assembled and operated by the Nazis. Yet we managed to eradicate Nazism as a significant threat without wholesale repudiation of the law of war, or a categorical departure from international norms, even though National Socialism, with its fascist cousins, was certainly a violent and dangerous international movement–even with a vibrant chapter here in the United States.

Indeed, like the Nazis, punctilious legalization of their “final solution,” the memos reproduced here reveal a carefully orchestrated legal rationale, but one without valid legal or moral foundation. The threshold premise here, that Guantanamo Bay is outside the jurisdiction of the U.S. courts, was soundly rejected by the Supreme Court last June in Rasul v. Bush, and the successive conclusions built upon that premise will, like the corrupted dominoes they are, tumble in due course. There they will join the other legally instituted but forever discredited stains upon U.S. legal history: the internment of Japanese during World War II, the treatment of Native Americans, and slavery.

Review of the memoranda reveals that not all the players were villains, though. There were dissenters from this march toward ignominy. The Department of State pointed out the perils–to U.S. service personnel principally, who would likely be treated reciprocally if captured–of not applying the standards of the Geneva Convention, and the contradictory position of the U.S. with respect to the status of the Taliban as the existing government of Afghanistan. Military officers also manifested an implicit reticence, and even incredulity, in demanding explicit authority and direction before implementing the full range of “counter-resistance” techniques. Yet, unfortunately, the policy makers to whom they appealed were only too willing to oblige, and to ignore the cautions communicated by the State Department.

It would be remiss of those of us who have compiled these memoranda and reports to leave them as the record without offering some solutions. The most important change would be the recognition by the Executive that unilateral policy fails not only because it ignores the checks and balances of the other branches, but also because it creates policies distorted by only a single, subjective point of view. Even failing that voluntary reform, Congress must exercise its authority, through oversight and legislation, just as the courts have invoked their power of judicial review.

Lawyers and public officials need to be instructed, in school and on the job, to be cognizant of the real-life consequences of their policy choices. Government is not some academic political science competition, in which the prize goes to the student who can muster coherent doctrinal support, however flimsy, for the most outlandish proposition. Here, real people suffered real, serious, and lasting harm due to violations of whatever law applies–U.S., international, common, natural, moral, or religious–committed by our government, in our name.

As citizens, we surely enjoy rights, but just as surely responsibilities as well. We cannot look the other way while we implicitly authorize our elected officials to do the dirty work, and then, like Capt. Renault in Casablanca, be “shocked” that transgressions have occurred under our nose. The panic-laden fear generated by the events of Sept. 11th cannot serve as a license–for our government in its policies, or ourselves in our personal approach to grave problems–to suspend our constitutional heritage, our core values as a nation, or the behavioral standards that mark a civilized and humane society. That type of consistency in the face of danger, in the face of the unknown, defines courage, and presents a road map for a future of which we can be proud.

Copyright © 2005 by Karen J. Greenberg and JOSHUA L. DRATEL.

Karen J. Greenburg is the Executive Director of the Center on Law and Security at the New York University School of Law.

JOSHUA L. DRATEL serves on the Board of Directors of the National Association of Criminal Defense Lawyers and is currently assisting in the defense of Guantanamo detainees.