The Evolution of the Pentagon's Interrogation Policy
by TChris
A number of military lawyers have objected to the Bush administration's aggressive use of coercive techniques to interrogate detainees. The administration, of course, refused to listen. It continued a policy of cruel mistreatment while assuring the public that detainees were all treated humanely.
Writing in the New Yorker, Jane Mayer tells the story of Alberto Mora's effort to persuade the Pentagon to obey the law. As general counsel of the Navy, Mora challenged the administration's "disastrous and unlawful policy of authorizing cruelty toward terror suspects." Crucial to the story is a 22 page memo (pdf) marked "secret."
It reveals that Mora's criticisms of Administration policy were unequivocal, wide-ranging, and persistent. Well before the exposure of prisoner abuse in Iraq's Abu Ghraib prison, in April, 2004, Mora warned his superiors at the Pentagon about the consequences of President Bush's decision, in February, 2002, to circumvent the Geneva conventions, which prohibit both torture and "outrages upon personal dignity, in particular humiliating and degrading treatment." He argued that a refusal to outlaw cruelty toward U.S.-held terrorist suspects was an implicit invitation to abuse. Mora also challenged the legal framework that the Bush Administration has constructed to justify an expansion of executive power, in matters ranging from interrogations to wiretapping. He described as "unlawful," "dangerous," and "erroneous" novel legal theories granting the President the right to authorize abuse.
In important ways, Mora's memo is at odds with the official White House narrative. In 2002, President Bush declared that detainees should be treated "humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles" of the Geneva conventions. The Administration has articulated this standard many times. ... Mora's memo, however, shows that almost from the start of the Administration's war on terror the White House, the Justice Department, and the Department of Defense, intent upon having greater flexibility, charted a legally questionable course despite sustained objections from some of its own lawyers.
Mora understands what's at stake in the administration's use of cruelty as a weapon in its war against terror.
"If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America--even those designated as 'unlawful enemy combatants.' If you make this exception, the whole Constitution crumbles. It's a transformative issue."
Mora's concerns reached Donald Rumsfeld.
"His attitude was 'What's the big deal?' " [a former administration] official said.
At that point, John Yoo was enlisted to write his infamous memo justifying the use of torture against detainees.
"The memo espoused an extreme and virtually unlimited theory of the extent of the President's Commander-in-Chief authority," Mora wrote in his account.
Unlike Mora's reasoned analysis, Yoo's take was what the administration wanted to hear.
Mora knew that there would be no [policy] discussion; as the Administration saw it, the question would be settled by Yoo's opinion.
Worse, Mora was kept in the dark as to the administration's actual policy.
Without Mora's knowledge, the Pentagon had pursued a secret detention policy. There was one version ... aimed at critics. And there was another, giving the operations officers legal indemnity to engage in cruel interrogations, and, when the Commander-in-Chief deemed it necessary, in torture. 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.
This is a powerful story. Mora believes he "witnessed both a moral and a legal tragedy" during his tenure at the Pentagon. Now that he's free to do so, he's telling the truth about what he saw. What will the White House do to discredit him?
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