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1984: Reagan Announces End to Aid for Contras

US President Ronald Reagan publicly claims to end aid to the contras in accordance with a congressional ban. However his administration continues the support, leading to the Iran-Contra scandal. [BBC, 6/5/2004; Columbia Encyclopedia. Sixth edition, 2005]

Entity Tags: Ronald Reagan

Timeline Tags: US-Nicaragua (1979-), Iran-Contra Affair

Informant Emad Salem, pictured bent over in a green shirt, enables the FBI to take surveillance footage like this of the plotters making a bomb.Informant Emad Salem, pictured bent over in a green shirt, enables the FBI to take surveillance footage like this of the plotters making a bomb. [Source: National Geographic]Eight people are arrested, foiling a plot to bomb several New York City landmarks. The targets were the United Nations building, 26 Federal Plaza, and the Lincoln and Holland tunnels. This is known as the “Landmarks” or “Day of Terror” plot. The plotters are connected to Ramzi Yousef and the “Blind Sheikh,” Sheikh Omar Abdul-Rahman. If the bombing, planned for later in the year, had been successful, thousands would have died. An FBI informant named Emad Salem had infiltrated the group, gathering information that leads to arrests of the plotters (see April 23, 1993). [US Congress, 7/24/2003] Abdul-Rahman will eventually be sentenced to life in prison for a role in the plot. Nine others will be given long prison terms, including Ibrahim El-Gabrowny and Clement Rodney Hampton-El. [New York Times, 1/18/1996] Siddig Siddig Ali, who was possibly the main force behind the plot (see April 23, 1993), will eventually be sentenced to only 11 years in prison because he agreed to provide evidence on the other suspects [New York Times, 10/16/1999]

Entity Tags: Ramzi Yousef, Siddig Siddig Ali, Ibrahim El-Gabrowny, Clement Rodney Hampton-El, Emad Salem, Omar Abdul-Rahman

Timeline Tags: Complete 911 Timeline

One of Ramzi Yousef’s timers seized by Philippines police in January 1995.One of Ramzi Yousef’s timers seized by Philippines police in January 1995. [Source: Peter Lance]Responding to an apartment fire, Philippine investigators uncover an al-Qaeda plot to assassinate the Pope that is scheduled to take place when he visits the Philippines one week later. While investigating that scheme, they also uncover Operation Bojinka, planned by the same people: 1993 WTC bomber Ramzi Yousef and 9/11 mastermind Khalid Shaikh Mohammed (KSM). [Independent, 6/6/2002; Los Angeles Times, 6/24/2002; Los Angeles Times, 9/1/2002] Many initial reports after 9/11 will claim the fire was accidental and the police discovery of it was a lucky break, but in 2002 the Los Angeles Times will report that the police started the fire on purpose as an excuse to look around the apartment. In the course of investigating the fire, one of the main plotters, Abdul Hakim Murad, is arrested. [Los Angeles Times, 9/1/2002] The plot has two main components. On January 12, Pope John Paul II is scheduled to visit Manila and stay for five days. A series of bombs along his parade route would be detonated by remote control, killing thousands, including the Pope. Yousef’s apartment is only 500 feet from the residence where the Pope will be staying. [Reeve, 1999, pp. 78; Lance, 2006, pp. 138] Then, starting January 21, a series of bombs would be placed on airplanes. [Insight, 5/27/2002] Five men, Yousef, Wali Khan Amin Shah, Abdul Hakim Murad, Abd al-Karim Yousef (a.k.a., Adel Anon, Yousef’s twin brother), and Khalid Al-Shaikh (thought to be an alias for KSM) would depart to different Asian cities and place a timed bomb on board during the first leg of passenger planes traveling to Los Angeles, San Francisco, Honolulu, and New York. They would then transfer to another flight and place a second bomb on board that flight. In all, 11 to 12 planes would blow up in a two day period over the Pacific. If successful, some 4,000 people would have been killed. [Agence France-Presse, 12/8/2001; Insight, 5/27/2002; Contemporary Southeast Asia, 12/1/2002] According to another account, some of the bombs would be timed to go off weeks or even months later. Presumably worldwide air travel could be interrupted for months. [Lance, 2003, pp. 260-61] A second wave of attacks involving crashing airplanes into buildings in the US would go forward later, once the pilots are trained for it (see February-Early May 1995).

Entity Tags: Abd al-Karim Yousef, Khalid Shaikh Mohammed, Ramzi Yousef, Wali Khan Amin Shah, Operation Bojinka, Al-Qaeda, Abdul Hakim Murad

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

Law professor John Yoo writes a lengthy essay for the California Law Review entitled “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” in which he argues that the Founding Fathers intended to empower presidents to launch wars without Congressional permission. Yoo has clerked for conservative judge Laurence Silberman and equally conservative Supreme Court Justice Clarence Thomas, and served for a year as counsel to then-Senate Judiciary Committee Chairman Orrin Hatch (R-UT). He has become a regular speaker at Federalist Society events, the informal but influential group of conservative lawyers, judges, and legal scholars who will come to have so much influence in the Bush administration. You argues that for generations, Constitutional scholars have misread the Constitution: the Founders actually supported, not repudiated, the British model of executive power that gave the king the sole power of declaring war and committing forces to battle. The Constitution’s granting of the legislature—Congress—the power to “declare war” is merely, Yoo writes, a reference to the ceremonial role of deciding whether to proclaim the existence of a conflict as a diplomatic detail. The Founders always intended the executive branch to actually declare and commence war, he writes. Most other Constitutional scholars will dismiss Yoo’s arguments, citing notes from the Constitutional Convention that show the Founders clearly intended Congress, not the president, to decide whether to commit the country to war. One of those Founders, James Madison, wrote in 1795 that giving a president the unilateral ability to declare war “would have struck, not only at the fabric of the Constitution, but at the foundation of all well organized and well checked governments. The separation of the power of declaring war from that of conducting it, is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.” [Savage, 2007, pp. 80-81] Yoo will go on to join the Bush administration’s Office of Legal Counsel, and write numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002).

Entity Tags: Federalist Society, John C. Yoo

Timeline Tags: Civil Liberties

August 21, 1996: War Crimes Act Becomes Law

The War Crimes Act (HR 3680) becomes Public Law No: 104-192. It prohibits Americans—top officials and soldiers alike—from committing “grave breaches” of the Geneva Conventions. It states: “Whoever, whether inside or outside the United States, commits a grave breach of the Geneva Conventions,” provided that the perpetrator or the victim is a member of the US military or a national of the US, “shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.” [Newsweek, 11/5/2001]

Entity Tags: Geneva Conventions, War Crimes Act

Timeline Tags: Torture of US Captives, Civil Liberties

Diana Dean.Diana Dean. [Source: Seattle Times]Al-Qaeda operative Ahmed Ressam is arrested in Port Angeles, Washington, attempting to enter the US with components of explosive devices. One hundred and thirty pounds of bomb-making chemicals and detonator components are found inside his rental car. He subsequently admits he planned to bomb Los Angeles International Airport on December 31, 1999. [New York Times, 12/30/2001] Alert border patrol agent Diana Dean stops him; she and other agents nationwide had been warned recently to look for suspicious activity. Ressam’s bombing would have been part of a wave of attacks against US targets over the New Year’s weekend (see December 15-31, 1999). He is later connected to al-Qaeda and convicted. [US Congress, 9/18/2002; PBS Frontline, 10/3/2002]

Entity Tags: Diana Dean, Ahmed Ressam, Los Angeles International Airport, Al-Qaeda

Timeline Tags: Complete 911 Timeline

Attendees of the Malaysian summit. Top row, from left: Nawaf Alhazmi, Khalid Almihdhar, Khalid Shaikh Mohammed. Middle row, from left: Khallad bin Attash, Abd al-Rahim al-Nashiri, Hambali. Bottom row, from left: Yazid Sufaat, Ramzi bin al-Shibh, Abu Bara al-Taizi. Attendees of the Malaysian summit. Top row, from left: Nawaf Alhazmi, Khalid Almihdhar, Khalid Shaikh Mohammed. Middle row, from left: Khallad bin Attash, Abd al-Rahim al-Nashiri, Hambali. Bottom row, from left: Yazid Sufaat, Ramzi bin al-Shibh, Abu Bara al-Taizi. [Source: FBI]About a dozen of Osama bin Laden’s trusted followers hold a secret, “top-level al-Qaeda summit” in the city of Kuala Lumpur, Malaysia. [CNN, 8/30/2002; San Diego Union-Tribune, 9/27/2002] According to an unnamed senior CIA official, before the summit started, the CIA learned that “11 young guys” were going to attend, and “young guys” is slang for operatives traveling. [Bamford, 2008, pp. 18] Plans for the October 2000 bombing of the USS Cole (see October 12, 2000) and the 9/11 attacks are discussed. [USA Today, 2/12/2002; CNN, 8/30/2002] At the request of the CIA, the Malaysian Secret Service monitors the summit and then passes the information on to the US (see January 5-8, 2000 and Shortly After). Attendees of the summit are said to include:
Nawaf Alhazmi and Khalid Almihdhar - The CIA and FBI will later miss many opportunities to foil the 9/11 plot through Alhazmi and Almihdhar and the knowledge of their presence at this summit. The CIA already knows many details about these two by the time the summit begins (see January 2-4, 2000), and tracked Almihdhar as he traveled to it (see January 2-5, 2000).
Yazid Sufaat - Sufaat is a Malaysian who owns the condominium where the summit is held. He is also a trained biologist and is said to be a leading figure in al-Qaeda’s attempts to get a biological or chemical weapon. [New York Times, 1/31/2002; Newsweek, 6/2/2002] Malaysian officials also recognize Sufaat from summit surveillance photos, as he is a long-time Malaysian resident (see Shortly After January 8, 2000). [New Straits Times, 2/10/2002] A possibility to expose the 9/11 plot through Sufaat’s presence at this summit will later be missed in September 2000 (see September-October 2000). Sufaat will travel to Afghanistan in June 2001 and be arrested by Malaysian authorities when he returns to Malaysia in late 2001 (see December 19, 2001). [Australian, 12/24/2002] He will be released in 2008 (see December 4, 2008).
Hambali - An Indonesian militant known as Hambali, or Nurjaman Riduan Isamuddin [BBC, 8/15/2003] , was heavily involved in the Bojinka plot, an early version of the 9/11 plot (see January 6, 1995 and June 1994). [CNN, 3/14/2002; CNN, 8/30/2002] The FBI was aware of who he was and his connections to the Bojinka plot at least by 1999 and identified a photograph of him by that time (see May 23, 1999). He will be arrested by Thai authorities in August 2003 (see August 12, 2003). [CNN, 8/14/2003; CBS News, 8/15/2003] Malaysian officials recognize Hambali from summit surveillance photos, as he is a long-time Malaysian resident. But the US does not tell them of his Bojinka connections, so they will not know to arrest him after the summit is over (see Shortly After January 8, 2000). [New Straits Times, 2/10/2002]
Khalid Shaikh Mohammed - Mohammed is sometimes referred to as “KSM,” an al-Qaeda leader and the alleged “mastermind” of the 9/11 attacks. The US has known KSM is an Islamic militant since the exposure of Operation Bojinka in January 1995 (see January 6, 1995), and knows what he looks like. US officials will state that they only realized the summit was important in 2001, but the presence of KSM should have proved its importance. [Los Angeles Times, 2/2/2002] Although the possible presence of KSM at this summit will be disputed by US officials, one counterterrorism expert will testify before the 9/11 Commission in 2003 that he has access to transcripts of KSM’s interrogations since his capture, and that KSM has admitted leading this summit and telling the attendees about a planes-as-weapons plot targeting the US (see July 9, 2003). [Newsweek, 7/9/2003; New York Post, 7/10/2003] Many other media reports will identify him as being there. [Independent, 6/6/2002; CNN, 8/30/2002; CNN, 11/7/2002; Canadian Broadcasting Corporation, 10/29/2003] For instance, according to Newsweek: “Mohammed’s presence would make the intelligence failure of the CIA even greater. It would mean the agency literally watched as the 9/11 scheme was hatched—and had photographs of the attack’s mastermind… doing the plotting.” [Newsweek, 7/9/2003] In Hambali’s 2008 Guantanamo file, it will be mentioned that KSM stays a week at Sufaat’s condominium with Alhazmi and Almihdhar, which would seem to make clear that KSM is there for the entire duration of the summit (see Early January 2000). [US Department of Defense, 10/30/2008]
Khallad bin Attash - Khallad bin Attash, a “trusted member of bin Laden’s inner circle,” is in charge of bin Laden’s bodyguards, and serves as bin Laden’s personal intermediary at least for the USS Cole bombing. [Newsweek, 9/20/2001 pdf file] He is also thought to be a “mastermind” of that attack. Attash is reportedly planning to be one of the 9/11 hijackers, but will be unable to get a US visa. [9/11 Commission, 6/16/2004, pp. 8] US intelligence had been aware of his identity as early as 1995. [US Congress, 9/18/2002] A possibility to expose the 9/11 plot through bin Attash’s presence at this summit will be missed in January 2001 (see January 4, 2001). Bin Attash had been previously arrested in Yemen for suspected terror ties, but was let go (see Summer 1999). [Contemporary Southeast Asia, 12/1/2002] He will be captured in Pakistan by the US in April 2003 (see April 29, 2003). In 2008, Newsweek will report that bin Attash confessed during interrogation that, while staying at Sufaat’s condominium, he and Alhazmi talked “about the possibility of hijacking planes and crashing them or holding passengers as hostages.” [Newsweek, 12/16/2008]
Abd al-Rahim al-Nashiri - Al-Nashiri is one of al-Qaeda’s top field commanders and operates out of Malaysia while 9/11 is being prepared. [Los Angeles Times, 10/10/2001; Gunaratna, 2003, pp. 188; Graham and Nussbaum, 2004, pp. 59] He was involved in an arms smuggling plot (see 1997) and the East African embassy bombings (see August 22-25 1998), in which his cousin was martyred (see 10:35-10:39 a.m., August 7, 1998). He also organized the attack against the USS The Sullivans (see January 3, 2000), and will be involved in the attacks against the USS Cole (see October 12, 2000) and the Limburg (see October 6, 2002). He will be arrested in the United Arab Emirates in November 2002 (see Early October 2002). An al-Qaeda operative identified a photo of al-Nashiri for the FBI in late 1998 (see August 22-25 1998). [9/11 Commission, 7/24/2004, pp. 152-3] (Note: in the sources, al-Nashiri is referred to by two of his aliases: Muhammad Omar al-Harazi and Al Safani.) [CNN, 12/11/2000; Central Intelligence Agency, 9/6/2006]
Ramzi bin al-Shibh - Investigators believe he wants to be the 20th 9/11 hijacker. His presence at the summit may not be realized until after 9/11, despite the fact that US intelligence has a picture of him next to bin Attash, and has video footage of him. [Newsweek, 11/26/2001; Washington Post, 7/14/2002; Time, 9/15/2002; Die Zeit (Hamburg), 10/1/2002; CNN, 11/7/2002] German police will have credit card receipts indicating bin al-Shibh is in Malaysia at this time. [Los Angeles Times, 9/1/2002] Ulrich Kersten, director of Germany’s federal anticrime agency, the Bundeskriminalamt, will later say, “There are indications that Ramzi bin al-Shibh was in Kuala Lumpur for the meeting.” [New York Times, 8/24/2002] Another account noting he was photographed at the summit will further note that he enters and leaves Thailand three times in the first three weeks of January 2000. [Los Angeles Times, 10/17/2001] Anonymous Malaysian officials will later claim he is at the summit, but US officials will deny it. Two local militants who serve as drivers for the attendees will later be arrested in Malaysia. They will be shown photos of the attendees, and confirm that bin al-Shibh was at the summit. [Associated Press, 9/20/2002] One account will say he is recognized at the time of the summit, which makes it hard to understand why he is not tracked back to Germany and the Hamburg cell with Mohamed Atta and other 9/11 hijackers. [Der Spiegel (Hamburg), 10/1/2002] Another opportunity to expose the 9/11 plot through bin al-Shibh’s presence at this summit will be missed in June. It appears bin al-Shibh and Almihdhar are directly involved in the attack on the USS Cole in October 2000 (see October 10-21, 2000). [Guardian, 10/15/2001; Washington Post, 7/14/2002; Newsweek, 9/4/2002]
Salem Alhazmi - Alhazmi, a 9/11 hijacker and brother of Nawaf Alhazmi, is possibly at the summit, although very few accounts will mention it. [Australian, 12/24/2002] US intelligence intercepts from before the summit indicate that he at least had plans to attend. [US Congress, 7/24/2003, pp. 51 pdf file]
Abu Bara al-Taizi (a.k.a. Zohair Mohammed Said) - A Yemeni al-Qaeda operative, al-Taizi is reportedly meant to be one of the 9/11 hijackers, but will be unable to enter the US due to greater scrutiny for Yemenis. [9/11 Commission, 6/16/2004, pp. 8] Al-Taizi will be captured in Pakistan in February 2002, and then sent to the US prison in Guantanamo a few months later (see February 7, 2002). According to his 2008 Guantanamo file, he traveled from Afghanistan to Malaysia with bin Attash about two weeks before the summit. Bin Attash was missing a leg, and he had a prosthetic leg fitted and then stayed in the hospital to recover from the surgery. Bin Attash and al-Taizi stay at Sufaat’s house for the duration of the summit. Al-Taizi then flies to Yemen to visit his family there. [US Department of Defense, 10/25/2008]
Others - Unnamed members of the Egyptian-based Islamic Jihad are also said to be at the summit. [Cox News Service, 10/21/2001] Islamic Jihad merged with al-Qaeda in February 1998. [ABC News, 11/17/2001] However, according to the Wall Street Journal, bin Attash and Fahad al-Quso are suspected of being Islamic Jihad members at one point, so this may just be a reference to them. [Wall Street Journal, 10/8/2001] Note that there are a total of 10 names mentioned above, and it will be reported that the CIA learned that 11 operatives were to attend, so either not all of them make it, or some names of attendees will remain unknown.
Summit Associates - The following individuals are probably not at the summit meetings, but are in the region and assisting or linked with the attendees at this time:
Fahad Al-Quso - Al-Quso is a top al-Qaeda operative who is involved in the bombing of the USS Cole. Some sources will indicate al-Quso is present in Malaysia, and a person who looks like him will later be seen in a photograph of the meeting (see June 11, 2001). [Newsweek, 9/20/2001 pdf file] However, other sources will say al-Quso did not reach Kuala Lumpur, but met with bin Attash around this time in Bangkok, Thailand (see January 5-6, 2000 and January 8-15, 2000). [9/11 Commission, 7/24/2004, pp. 159; Wright, 2006, pp. 330] Although al-Quso apparently is not at the summit, there are a series of phone calls during the time of the summit between his hotel in Bangkok, a phone booth near the condominium where the summit is held, and his family home in Yemen (see (January 5-8, 2000)). Al-Quso will be arrested by Yemeni authorities in the fall of 2000 (see Late October-Late November 2000), but the FBI will not be given a chance to fully interrogate him before 9/11. He will escape from prison in 2003. [CNN, 5/15/2003]
Ahmad Sajuli Abdul Rahman - An operative of Jemaah Islamiyah, al-Qaeda’s Southeast Asian affiliate, Sajuli takes the visiting Arabs around Kuala Lumpur, but apparently does not attend the summit meetings. [US Congress, 10/17/2002] According to the later Guantanamo file of summit attendee al-Taizi, one of the attendees Sajuli escorts around town is future 9/11 hijacker Khalid Almihdhar. Sajuli also helps arrange al-Taizi’s transportation at the end of the summit. [US Department of Defense, 10/25/2008] Sajuli will be arrested in Malaysia in December 2001 (see December 29, 2001).
Ahmad Hikmat Shakir - A suspected al-Qaeda agent of Iraqi nationality, Shakir is a greeter at Kuala Lumpur airport. He meets Almihdhar there and travels with him to the apartment where the summit is held, but he probably does not attend the summit meetings. [Associated Press, 10/2/2002; Newsweek, 10/7/2002; Australian, 12/24/2002; Knight Ridder, 6/12/2004] After 9/11, he will be linked to the 1993 World Trade Center bombing and the 1995 Bojinka plot. Jordan will arrest him and let him go after the US says it doesn’t want to take custody of him (see September 17, 2001).
Dhiren Barot - Dhiren Barot (a.k.a. Abu Eissa al-Hindi) is a British citizen of Indian descent. According to a 2006 Observer article, Barot “is not believed to have been present” at the summit meetings. However, he does go to Kuala Lumpur during the time of the summit with summit attendee bin Attash. And shortly after the summit, Barot holds meetings with Hambali. It will later be reported that Barot is sent by KSM to New York City in early 2001 to case potential targets there, although whether this is part of the 9/11 plot or some other plot is unclear (see May 30, 2001). Barot will be arrested in 2004 in Britain for plotting attacks there, and sentenced to 30 years in prison (see August 3, 2004). [Observer, 12/12/2006]
Another Unnamed Local Militant - Malaysian officials will say that two local Jemaah Islamiyah act as drivers for the attendees. These drivers apparently have no idea who the attendees are or what they are doing; they are just tasked to drive them around. In a 2002 Associated Press article, officials will not name these drivers, but will say that they are among the dozens of alleged Jemaah Islamiyah militants arrested in December 2001 and January 2002. Since Sajuli mentioned above is arrested at that time, he presumably is one of these drivers. It is not known who the other driver is. (Sufaat will be arrested at that time as well, but the Associated Press article will make clear Sufaat is not one of the drivers.) [Associated Press, 9/20/2002]
Probably Not Involved: Mohamed al-Khatani - A Saudi, he allegedly will confess to attending the summit while being held in the US Guantanamo prison (see July 2002). He apparently will unsuccessfully attempt to enter the US in August 2001 to join the 9/11 plot (see August 4, 2001). However, al-Khatani will later recant his testimony and say he lied to avoid torture (see October 26, 2006). Furthermore, his 2008 Guantanamo file, leaked to the public in 2011, contains no hint of him even possibly attending the summit. The contents of the file must be treated with extreme caution, especially since he is repeatedly and brutally tortured (see August 8, 2002-January 15, 2003 and January 14, 2009). But according to the general narrative of the file, al-Khatani had no involvement with Islamist militancy in early 2000, only starts to get involved with militants in mid-2000, and first attends a militant training camp in Afghanistan in late 2000. [US Department of Defense, 10/30/2008]

Entity Tags: Hambali, Abu Bara al-Taizi, Dhiren Barot, Central Intelligence Agency, Ahmad Hikmat Shakir, Ahmad Sajuli Abdul Rahman, Al-Qaeda, Abd al-Rahim al-Nashiri, Islamic Jihad, Jemaah Islamiyah, Fahad al-Quso, Khalid Shaikh Mohammed, Ulrich Kersten, Yazid Sufaat, Khalid Almihdhar, Ramzi bin al-Shibh, Salem Alhazmi, Mohamed al-Khatani, Malaysian Secret Service, Khallad bin Attash, Nawaf Alhazmi

Timeline Tags: Complete 911 Timeline, 9/11 Timeline

John Yoo, an associate law professor at the University of California at Berkeley, makes a presentation at a Cato Institute seminar on executive power. Yoo, who will go on to become one of the Bush administration’s primary advocates of unchecked executive power (see March 1996), accuses the Clinton administration of upending the Constitution to give the executive branch unwarranted authority (see March 24 - Mid-June, 1999). “[T]he Clinton administration has undermined the balance of powers that exist in foreign affairs, and [they] have undermined principles of democratic accountability that executive branches have agreed upon well to the Nixon administration,” he says. Regarding the Clinton administration’s stretched interpretation of the Anti-Ballistic Missile Treaty (see June 2000), Yoo says that the Clinton “legal arguments are so outrageous, they’re so incredible, that they actually show, I think, a disrespect for the idea of law, by showing how utterly manipulatible it is.” [Savage, 2007, pp. 67]

Entity Tags: Bush administration (43), John C. Yoo, Nixon administration, Clinton administration

Timeline Tags: Civil Liberties

Patrick Philbin.Patrick Philbin. [Source: Daylife (.com)]Patrick Philbin joins the Justice Department’s Office of Legal Counsel (OLC). Philbin is an old friend and colleague of the OLC’s John Yoo; both graduated from Yale and both clerked for Judge Laurence Silberman and Supreme Court Justice Clarence Thomas. Philbin has no experience in the legalities surrounding national security issues; he spent the 1990s working for a corporate law firm helping telecommunications companies sue the Federal Communications Commission. Philbin joins the OLC with the expectation of working solely with administrative law. But after the 9/11 attacks, he will be asked to help Yoo handle the unexpected raft of national security issues. His first real work in the area of national security will be his finding (see November 6, 2001) that the president has untrammeled power to order the establishment of military commissions (see Late October 2001 and November 13, 2001). [Savage, 2007, pp. 136]

Entity Tags: John C. Yoo, US Department of Justice, Patrick F. Philbin, Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

A self-styled White House “war council” begins meeting shortly after the 9/11 attacks, to discuss the administration’s response to the attacks and the methods it will use (see (After 10:00 a.m.) September 11, 2001). The ad hoc group is composed of White House counsel Alberto Gonzales, Justice Department lawyer John Yoo, Pentagon chief counsel William J. Haynes, and the chief aide to Vice President Dick Cheney, David Addington. According to Jack Goldsmith, who will become head of the Justice Department’s Office of Legal Counsel (OLC) in 2003 (see October 6, 2003), the four believe that the administration’s biggest obstacle to responding properly to the 9/11 attacks is the body of domestic and international law that arose in the 1970s to constrain the president’s powers after the criminal excesses of Richard Nixon’s White House. Chief among these restraints is the Foreign Intelligence Surveillance Act (FISA) of 1978 (see 1978). Though Addington tends to dominate the meetings with his imposing physical presence and aggressive personality, Yoo is particularly useful to the group; the head of the OLC, Jay Bybee (whom Goldsmith will replace) has little experience with national security issues, and delegates much of the responsibility for that subject to Yoo, even giving him the authority to draft opinions that are binding on the entire executive branch. Yoo agrees wholeheartedly with Addington, Gonzales, and Cheney about the need for vastly broadened presidential powers. According to Goldsmith, Yoo is seen as a “godsend” for the White House because he is eager to draft legal opinions that would protect Bush and his senior officials from any possible war crimes charges. However, Yoo’s direct access to Gonzales angers Attorney General John Ashcroft, who feels that the “war council” is usurping legal and policy decision-making powers that are legally his own. [New York Times Magazine, 9/9/2007] In 2009, Goldsmith will say, “[I]it was almost as if they [Cheney and Addington] were interested in expanding executive power for its own sake.” [Vanity Fair, 2/2009]

Entity Tags: Richard (“Dick”) Cheney, William J. Haynes, Richard M. Nixon, Office of Legal Counsel (DOJ), Jay S. Bybee, Jack Goldsmith, John C. Yoo, Bush administration (43), Foreign Intelligence Surveillance Act, Alberto R. Gonzales, David S. Addington

Timeline Tags: Civil Liberties

In a memo, responding to a request from Deputy White House Counsel Timothy E. Flanigan, Justice Department lawyer John C. Yoo provides legal advice on “the legality of the use of military force to prevent or deter terrorist activity inside the United States.” He addresses the question of how the Fourth Amendment to the US Constitution applies to the use of “deadly force” by the military “in a manner that endangered the lives of United States citizens.” The Fourth Amendment requires the government to have some objective suspicion of criminal activity before it can infringe on an individual’s liberties, such as the right to privacy or the freedom of movement. Yoo writes that in light of highly destructive terrorist attacks, “the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.” If the president determines the threat of terrorism high enough to deploy the military inside US territory, then, Yoo writes, “we think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection.” [New York Times, 10/24/2004] A month later, the Justice Department will issue a similar memo (see October 23, 2001).

Entity Tags: John C. Yoo, Timothy E. Flanigan, US Department of Justice

Timeline Tags: Torture of US Captives, Civil Liberties

John Yoo, a deputy assistant attorney general in the Department of Justice (DOJ) Office of Legal Counsel (OLC), issues a legal opinion that says the US can conduct electronic surveillance against its citizens without probable cause or warrants. According to the memo, the opinion was drafted in response to questions about whether it would be constitutional to amend the Foreign Intelligence Surveillance Act (FISA) to state that searches may be approved when foreign intelligence collection is “a purpose” of the search, rather than “the purpose.” Yoo finds this would be constitutional, but goes further. He asserts that FISA is potentially in conflict with the Constitution, stating, “FISA itself is not required by the Constitution, nor is it necessarily the case that its current standards match exactly to Fourth Amendment standards.” Citing Vernonia School Dist. 47J v. Acton, in which the Supreme Court found that warrantless searches of students were permissible, Yoo argues that “reasonableness” and “special needs” are also the standards according to which warrantless monitoring of the private communications of US persons is permissible. According to Yoo, the Fourth Amendment requirement for probable cause and warrants prior to conducting a search pertain primarily to criminal investigations, and in any case cannot be construed to restrict presidential responsibility and authority concerning national security. Yoo further argues that in the context of the post-9/11 world, with the threat posed by terrorism and the military nature of the fight against terrorism, warrantless monitoring of communications is reasonable. Some information indicates the NSA began a broad program involving domestic surveillance prior to the 9/11 attacks, which contradicts the claim that the program began after, and in response to, the attacks (see Late 1999, February 27, 2000, December 2000, February 2001, February 2001, Spring 2001, and July 2001). [US Department of Justice, 9/25/2001 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file; New York Times, 3/2/2009; Inspectors General, 7/10/2009]
Yoo Memo Used to Support Legality of Warrantless Surveillance - Yoo’s memo will be cited to justify the legality of the warrantless domestic surveillance program authorized by President Bush in October 2001 (see October 4, 2001). NSA Director General Michael Hayden, in public remarks on January 23, 2006, will refer to a presidential authorization for monitoring domestic calls having been given prior to “early October 2001.” Hayden will also say, “The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general.” The various post-9/11 NSA surveillance activities authorized by Bush will come to be referred to as the President’s Surveillance Program (PSP), and the first memo directly supporting the program’s legality will be issued by Yoo on November 2, 2001, after the program has been initiated (see November 2, 2001). Many constitutional authorities will reject Yoo’s legal rationale. [Michael Hayden, 1/23/2006]
Yoo Memo Kept Secret from Bush Officials Who Might Object - According to a report by Barton Gellman and Jo Becker in the Washington Post, the memo’s “authors kept it secret from officials who were likely to object,” including ranking White House national security counsel John Bellinger, who reports to National Security Adviser Condoleezza Rice. Bellinger’s deputy, Bryan Cunningham, will tell the Post that Bellinger would have recommended having the program vetted by the Foreign Intelligence Surveillance Court, which oversees surveillance under FISA. Gellman and Becker quote a “senior government lawyer” as saying that Vice President Dick Cheney’s attorney, David Addington, had “open contempt” for Bellinger, and write that “more than once he accused Bellinger, to his face, of selling out presidential authority for good ‘public relations’ or bureaucratic consensus.” [Washington Post, 6/24/2007]

Entity Tags: US Department of Justice, John Bellinger, National Security Agency, Bryan Cunningham, Condoleezza Rice, David S. Addington, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Office of Legal Counsel (DOJ), John C. Yoo, George W. Bush, Richard (“Dick”) Cheney

Timeline Tags: Civil Liberties

Bradford Berenson.Bradford Berenson. [Source: PBS]In the weeks following 9/11, government lawyers begin to formulate a legal response to the newly perceived threat of terrorism. Four related issues are at hand: forceful prevention, detention, prosecution, and interrogation. What degree of force can the government employ to prevent acts of terrorism or apprehend suspected terrorists? How and where can it best detain terrorists if captured? How can it best bring them to trial? And how can it best obtain information from them on terrorist organizations and plots? These questions are handled in a new atmosphere that is more tolerant towards flexible interpretations of the law. Bradford Berenson, an associate White House counsel at this time, later recalls: “Legally, the watchword became ‘forward-leaning’ by which everybody meant: ‘We want to be aggressive. We want to take risks.’” [New York Times, 10/24/2004] This attitude is seemingly in line with the president’s thinking. Counterterrorism “tsar” Richard Clarke will later recall President Bush saying, “I don’t care what the international lawyers say. We are going to kick some ass” (see (9:00 p.m.-10:00 p.m.) September 11, 2001). [Clarke, 2004, pp. 23-24] At the center of legal reconstruction work are Alberto R. Gonzales, the White House counsel, his deputy Timothy E. Flanigan, and David S. Addington, legal counsel to Vice President Cheney. [New York Times, 12/19/2004] They will find a helpful hand in the Justice Department’s Office of Legal Counsel (OLC), most notably its head, Assistant Attorney General Jay S. Bybee [Los Angeles Times, 6/10/2004] and his deputies John C. Yoo [New York Times, 8/15/2004] and Patrick F. Philbin. Most of the top government lawyers dwell in fairly conservative circles, with many being a member of the Federalist Society, a conservative legal fraternity. Some have clerked for conservative Supreme Court Justices Antonin Scalia and Clarence Thomas, whose ruling effectively lead to the presidency being awarded to George W. Bush after the 2000 presidential election. [New York Times, 10/24/2004] Others worked for Judge Lawrence H. Silberman, who set up secret contacts with the Iranian government under President Reagan leading to the Iran-Contra scandal, and who advised on pursuing allegations of sexual misconduct by President Clinton. [Inter Press Service, 2/6/2004]

Entity Tags: Patrick F. Philbin, Richard A. Clarke, John C. Yoo, Joan Claybrook, Alberto R. Gonzales, Bradford Berenson, Jay S. Bybee, Alan M. Dershowitz, Rena Steinzor

Timeline Tags: Torture of US Captives, Civil Liberties

The Justice Department’s John Yoo, an official in the Office of Legal Counsel (OLC), issues a secret opinion regarding legal statutes governing the use of certain interrogation techniques. The opinion will not be made public; its existence will not be revealed until October 18, 2007, when future OLC head Steven Bradbury will note its existence as part of an American Civil Liberties Union (ACLU) lawsuit. [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: US Department of Justice, American Civil Liberties Union, John C. Yoo, Office of Legal Counsel (DOJ), Steven Bradbury

Timeline Tags: Civil Liberties

The Justice Department’s John Yoo and Robert Delahunty issue a memo to White House counsel Alberto Gonzales claiming President Bush has sweeping powers in wartime that essentially void large portions of the Constitution. The memo, which says that Bush can order military operations inside the US (see October 23, 2001), also says that Bush can suspend First Amendment freedoms: “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It adds that “the current campaign against terrorism may require even broader exercises of federal power domestically.” [American Civil Liberties Union [PDF], 1/28/2009 pdf file; New York Times, 3/2/2009]

Entity Tags: John C. Yoo, George W. Bush, Robert J. Delahunty, US Department of Justice, Alberto R. Gonzales

Timeline Tags: Civil Liberties

Deputy White House counsel Timothy Flanigan presents his subordinate, associate counsel Bradford Berenson, with a draft presidential order he has written establishing military tribunals for suspected terrorists. The draft order declares that President Bush is invoking his wartime powers as commander in chief to establish a system of military tribunals, sometimes called military commissions.
Commissions More 'Flexible' - In the White House’s view, military tribunals offer several advantages over either civilian court trials or military courts-martial, as is being discussed in the interagency working group on prosecuting terrorists at the State Department (see Shortly Before September 23, 2001). Civilian trials would be subject to public scrutiny and media spectacle, and would pose a problem of security risks. Military courts-martial are quite rigid in their procedures and rules of evidence. Military commissions, as envisioned by Flanigan and the two other White House lawyers who put together the scheme—Berenson and David Addington, the chief counsel for Vice President Cheney—would offer more “flexibility” for the use of evidence gathered either under battlefield conditions or in interrogations, evidence that might not meet the standards of either a court-martial or a civilian trial. And, as author Charlie Savage will later note, “commissions enhanced presidential power by concentrating the process in the executive branch alone.”
A 'Relic' - Savage will explain: “Under normal trials, Congress defines a crime and sets the sentence for it; the executive branch investigates and prosecutes people who are accused of committing the crime; and the judicial branch runs the trial, decides whether to admit evidence, determines whether the defendant is guilty or innocent, and hears any appeal. With a military commission, all these powers were collapsed into the hands of the armed forces and, ultimately, their commander in chief. Although fairly common in nineteenth-century conflicts, military commissions were a relic: They had not been used by the United States since World War II.”
Support from Justice Department Lawyer - Their work will be bolstered when Justice Department lawyer Patrick Philbin issues a secret memo declaring that the president has the inherent authority to order military commissions (see November 6, 2001). Flanigan, Berenson, and Addington never inform the interagency working group of their own work, although they made use of the working group’s research. Flanigan, Berenson, and Addington cite Philbin’s memo as the definitive word on the president’s authority. When President Bush announces the order establishing the commissions (see November 13, 2001), the order abruptly short-circuits the interagency working group and renders its work irrelevant. [Savage, 2007, pp. 134-135]

Entity Tags: Patrick F. Philbin, Bush administration (43), Bradford Berenson, Charlie Savage, George W. Bush, US Department of State, David S. Addington, Richard (“Dick”) Cheney, Timothy E. Flanigan

Timeline Tags: Civil Liberties

John Yoo, the Justice Department’s (DOJ) Office of Legal Counsel (OLC) deputy assistant attorney general, sends a classified memo to Attorney General John Ashcroft justifying warrantless surveillance of US persons. The National Security Agency (NSA)‘s domestic surveillance authorized by President Bush (see October 4, 2001, Early 2002, and December 15, 2005) will come to be publicly referred to as the President’s Surveillance Program (PSP). This is not the first Yoo memo supporting warrantless surveillance (see September 25, 2001), but a 2009 report on the PSP jointly issued by the inspectors general (IGs) of the Department of Defense (DOD), DOJ, CIA, National Security Agency (NSA), and Office of the Director of National Intelligence (ODNI) will refer to it as “[t]he first OLC opinion directly supporting the legality of the PSP.” The IGs’ report will quote from and comment on the memo, noting that “deficiencies in Yoo’s memorandum identified by his successors in the Office of Legal Counsel and the Office of the Deputy Attorney General later became critical to DOJ’s decision to reassess the legality of the program in 2003.” According to the IGs’ report, Yoo asserts that warrantless surveillance is constitutional as long as it is “reasonable” under the Fourth Amendment, which only protects against “unreasonable searches and siezures.” On this point, the IGs’ report will note that Yoo’s successors were troubled by his failure to discuss the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), which found the president’s wartime authority to be limited. His memo does acknowledge that the Foreign Intelligence Surveillance Act (FISA) “purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence,” but asserts that it is only a “safe harbor for electronic surveillance” because it cannot “restrict the president’s ability to engage in warrantless searches that protect the national security.” Yoo also writes that Congress has not “made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area.” The IGs’ report will state that Yoo’s successors considered this problematic because Yoo has omitted discussion of the fact that FISA explicitly authorizes the president to conduct warrantless surveillance during the first 15 days following a declaration of war by Congress, which they considered an expression of Congress’s intent to restrict warrantless surveillance to a limited period of time and specific circumstances. The IGs’ report will also state that Yoo’s memo discusses “the legal rationale for Other Intelligence Activities authorized as part of the PSP,” and that Yoo concludes, “[W]e do not believe that Congress may restrict the president’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.” The IGs’ report will say that “Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities,” and that Yoo’s successors considered his discussion of these other activities to be “insufficient and presenting a serious impediment to recertification of the program as to form and legality.” [Inspectors General, 7/10/2009, pp. pp. 11-13]
Memo's Existence Revealed by ACLU Lawsuit - On December 15, 2005, the New York Times will report that Bush authorized an NSA warrantless domestic surveillance program after the 9/11 attacks (see December 15, 2005). The American Civil Liberties Union (ACLU) will request records pertaining to the program under the Freedom of Information Act (FOIA) and then sue the Justice Department for the release of records. The existence of Yoo’s November 2 memo will first be revealed in an October 19, 2007 deposition filed by then head of the OLC Steven Bradbury in response to the ACLU lawsuit, which says that it “[concerns] the legality of certain communications intelligence activities.” After the 2009 release of the IGs’ report the ACLU will notify the court and the government will agree to reprocess four OLC memos, including Yoo’s November 2 memo. This memo and a May 6, 2004 memo by Yoo’s OLC successor Jack Goldsmith that disputes many of Yoo’s conclusions will be released in heavily redacted form on March 18, 2011. [ACLU.org, 2/7/2006; United States District Court of DC, 10/19/2007; American Civil Liberties Union, 3/19/2011]
Constitutional Experts Dispute Yoo's Legal Rationale - Numerous authorities on the law will question or reject the legal bases for warrantless domestic surveillance. In 2003, Yoo will leave the OLC. Goldsmith will begin a review of the PSP, after which he will conclude it is probably illegal in some respects and protest, within the executive branch, its continuation (see Late 2003-Early 2004 and December 2003-June 2004). Following the public disclosure of its existence, a January 5, 2006 report by the Congressional Research Service will find it to be of dubious legality (see January 5, 2006). On January 19, 2006, the DOJ will issue a 42-page white paper laying out the legal bases for the program (see January 19, 2006). These bases will be reviewed and rejected by 14 constitutional scholars and former government officials in a joint letter to Congress on February 2, 2006. [al [PDF], 2/2/2006 pdf file] The American Bar Association will adopt a resolution on February 13, 2006 that rejects DOJ’s arguments and calls on Congress to investigate the program. [Delegates, 2/13/2006 pdf file] On August 17, 2006, in the case ACLU v. NSA, US district judge Anna Diggs Taylor will reject the government’s invocation of the “state secrets privilege” and its argument that plaintiffs’ lack standing due to their being unable to prove they were surveilled, and will rule that warrantless surveillance is in violation of “the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA, and Title III” (see August 17, 2006). Taylor’s ruling will be overturned on appeal, on the grounds that the plaintiffs lack standing as they cannot prove that surveillance has occurred. In another case, Al Haramain v. Barack Obama, the government will make the same arguments, but US district judge Vaughn Walker will reject these and conclude in 2010 that illegal surveillance occurred (see March 31, 2010). [Al-Haramain v. Obama, 3/31/2010]

Entity Tags: Steven Bradbury, Vaughn Walker, Ronald Dworkin, George W. Bush, John C. Yoo, American Bar Association, Office of Legal Counsel (DOJ), American Civil Liberties Union, John Ashcroft, Anna Diggs Taylor, US Department of Justice

Timeline Tags: Civil Liberties

In conjunction with the Federalist Society, the Heritage Foundation publishes a legal paper that appears to reflect much of the thinking at this time of prominent White House and Justice Department lawyers. The paper espouses the use of military commissions, arguing that this will offer the government several advantages. “In particular,” the paper’s authors argue, “trials before military tribunals need not be open to the general public and they may be conducted on an expedited basis, permitting the quick resolution of individual cases and avoiding the disclosure of highly sensitive intelligence material, which would have to be made public in an ordinary criminal trial.” The disadvantage of a normal trial would be that they would be limited by constitutional rules with regard to “what can be done to protect classified information.” In addition, in “federal district courts, the government has an obligation under Article III and the Sixth Amendment to conduct a ‘public trial’ and present to the jury, in open court, the facts on which it is relying to establish a defendant’s guilt.” But the authors do acknowledge that “[t]he use of military commissions with respect to individuals not regularly enrolled in a military force, represents a clear departure from normal legal processes and some of America’s most fundamental judicial traditions.” Surprisingly, the Geneva Conventions of 1949 are not mentioned even once. Almost in passing, the authors suggest an option that is to become reality. “[I]t is likely,” they write, “that the Supreme Court would allow the trial overseas by military commission of al-Qaeda members captured in Afghanistan, regardless of how it would treat defendants in this country.” [Rivkin, Casey, and Bartram, 11/5/2001; Rivkin, Casey, and Bartram, 11/5/2001] It is an indication that by this time the government contemplates using the US Naval Station at Guantanamo Bay, which is formally on Cuban soil, to accommodate suspected al-Qaeda and Taliban detainees.

Entity Tags: US Department of Justice, Geneva Conventions, Heritage Foundation, Federalist Society, Bush administration (43)

Timeline Tags: Torture of US Captives

The Geneva Conventions are mentioned in a memo issued the day after the publication of the Heritage Foundation paper (see November 5, 2001), but only to suggest that suspected terrorists should not be entitled to the rights enclosed in them. Patrick F. Philbin, a deputy in the OLC, sends a confidential 35-page memo to the White House legal counsel Gonzales, arguing that the president, as Commander-in-Chief, has “inherent authority” to establish military commissions without authorization from the US Congress. The 9/11 attacks are themselves “plainly sufficient” to justify the application of the laws of war. Furthermore, putting terrorists on trial under the laws of war, “does not mean,” according to Philbin, “that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants.” The Philbin memo will serve as a basis for a Presidential order (see November 13, 2001) establishing the option of military commissions, which will be drafted by Deputy White House Counsel Timothy E. Flanigan and David S. Addington, the legal counsel to Vice President Cheney. [New York Times, 10/24/2004]

Entity Tags: Patrick F. Philbin, Alberto R. Gonzales

Timeline Tags: Torture of US Captives

The Army’s Judge Advocate General, Major General Thomas J. Romig, hastily meets with JAG lawyers Colonel Lawrence Morris and Brigadier General Scott Black to prepare suggestions for improving a draft presidential order establishing military commissions (see Late October 2001 and November 9, 2001), with an eye on bringing the order closer to existing military legal standards. The order is modeled on a single World War II military commission (see 1942), and ignores the body of relevant law that came after that commission, including the Uniform Code of Military Justice and the Geneva Conventions (see November 6, 2001). In their view, the Bush administration seems determined to ignore 60 years of law and go back to a rough system of justice that, Romig will later say, “was going to be perceived as unfair because it was unnecessarily archaic.” The three work through the Veterans’ Day weekend on a number of suggestions that would bring the order closer to existing military legal standards. The final order, however, will include none of the lawyer’s recommendations. “They hadn’t changed a thing,” a military official will later recall. [New York Times, 10/24/2004; Savage, 2007, pp. 137-138]

Entity Tags: Thomas J. Romig, Lawrence J. Morris, Scott Black, Bush administration (43)

Timeline Tags: Torture of US Captives, Civil Liberties

At a private lunch meeting, Vice President Cheney presents President Bush with a four-page memo, written in strict secrecy by lawyer John Yoo of the Justice Department’s Office of Legal Counsel (see November 6-10, 2001), and a draft executive order that establishes military commissions for the trial of suspected terrorists (see November 10, 2001). The legal brief mandates that foreign terrorism suspects held in US custody have no access to any courts whatsoever, civil, criminal, military, domestic, or foreign. They can be detained indefinitely without charges. If they are to be tried, they can be tried in closed “military commissions.” [White House, 11/13/2001; Savage, 2007, pp. 138; Washington Post, 6/24/2007]
Military Commissions Suitable to 'Unitary Executive' Agenda - According to author Craig Unger, military commissions are a key element of Cheney’s drive towards a “unitary executive,” the accretion of governmental powers to the presidency at the expense of the legislative and judicial branches. Federal trials for terror suspects would put them under all the legal procedures provided under the US judicial system, an unacceptable alternative. Military courts-martial would give them the rights granted by the Geneva Conventions. Military commissions, however, are essentially tribunals operating outside of both civilian and military law. Defendants have few rights. Secret evidence can be admitted without being disclosed to the defendants. Hearsay and coerced testimony are admissible. Prisoners can be held indefinitely. [Unger, 2007, pp. 221-222]
No Bureaucratic Footprints - After Bush peruses the memo and the draft order, Cheney takes them back with him to his office. After leaving Bush, Cheney takes extraordinary steps to ensure that no evidence of his involvement remains. The order passes from Cheney to his chief counsel David Addington, and then to associate White House counsel Bradford Berenson. At Berenson, the provenance of the order breaks, as no one tells him of its origin. Berenson rushes the order to deputy staff secretary Stuart Bowen with instructions to prepare it for signature immediately, without advance distribution to Bush’s top advisers. Bowen objects, saying that he had handled thousands of presidential documents without ever sidestepping the strict procedures governing coordination and review. Bowen relents only after being subjected to what he will later recall as “rapid, urgent persuasion” that Bush is standing by to sign and that the order is too sensitive to delay. Berenson will later say he understood that “someone had briefed” Bush “and gone over it” already. “I don’t know who that was.” When it is returned to Bush’s office later in the day, Bush signs it immediately (see November 13, 2001). Virtually no one else has seen the text of the memo. The Cheney/Yoo proposal has become a military order from the commander in chief.
Dodging Proper Channels - The government has had an interagency working group, headed by Pierre Prosper, the ambassador at large for war crimes, working on the same question (see Shortly Before September 23, 2001). But Cheney and Addington have refused to have any contact with Prosper’s group; one of Cheney’s team later says, “The interagency [group] was just constipated.” Cheney leapfrogged over Prosper’s group with their own proposal, performing an adroit bureaucratic move that puts their proposal in place without any oversight whatsoever, and cutting Prosper’s group entirely out of the process. When the news of the order is broadcast on CNN, Secretary of State Colin Powell demands, “What the hell just happened?” An angry Condoleezza Rice, the president’s national security adviser, sends an aide to find out. Virtually no one, even witnesses to the presidential signing, know that Cheney promulgated the order. In 2007, Washington Post reporters Barton Gellman and Jo Becker will call the episode “a defining moment in Cheney’s tenure” as vice president. Cheney has little Constitutional power, but his deft behind-the-scenes manuevering and skilled bureaucratic gamesmanship enable him to pull off coups like this one, often leaving even the highest White House officials none the wiser. “[H]e has found a ready patron in George W. Bush for edge-of-the-envelope views on executive supremacy that previous presidents did not assert,” the reporters write. [White House, 11/13/2001; Unger, 2007, pp. 221-222; Washington Post, 6/24/2007]
Quiet Contravening of US Law - Six years later, Unger will observe that few inside or outside Washington realize that Cheney has, within a matter of days, contravened and discarded two centuries of American law. He has given the president, in the words of former Justice Department lawyer Bruce Fein, “the functions of judge, jury, and prosecutor in the trial of war crimes [and] the authority to detain American citizens as enemy combatants indefinitely… a frightening power indistinguishable from King Louis XIV’s execrated lettres de cachet that occasioned the storming of the Bastille.” [Unger, 2007, pp. 223-224]

Entity Tags: Stuart W. Bowen, Office of Legal Counsel (DOJ), Richard (“Dick”) Cheney, US Department of Justice, John C. Yoo, David S. Addington, George W. Bush, Barton Gellman, Bradford Berenson, Jo Becker, Bruce Fein, Condoleezza Rice, Craig Unger, Colin Powell, Pierre-Richard Prosper

Timeline Tags: Civil Liberties

President Bush issues a three-page executive order authorizing the creation of military commissions to try non-citizens alleged to be involved in international terrorism (see November 10, 2001). The president will decide which defendants will be tried by military commissions. Defense Secretary Rumsfeld will appoint each panel and set its rules and procedures, including the level of proof needed for a conviction. A two-thirds vote is needed to convict a defendant and impose a sentence, including life imprisonment or death. Only the president or the secretary of defense has the authority to overturn a decision. There is no provision for an appeal to US civil courts, foreign courts, or international tribunals. Nor does the order specify how many judges are to preside on a tribunal or what qualifications they must have. [US Department of Defense, 11/13/2001; Washington Post, 11/14/2001; New York Times, 10/24/2004]
Questionable Rule of Evidence Adopted - The order also adopts a rule of evidence stemming from the 1942 Supreme Court case of United States v. Quirin that says evidence shall be admitted “as would… have probative value to a reasonable person.” This rule, according to Judge Evan J. Wallach, “was repeatedly used [in World War II and in the post-war tribunals] to admit evidence of a quality or obtained in a manner which would make it inadmissible under the rules of evidence in both courts of the United States or courts-martial conducted by the armed forces of the United States.” [Wallach, 9/29/2004] Evidence derived from torture, for example, could theoretically be admitted. It should be noted that the order is unprecedented among presidential directives in that it takes away some individuals’ most basic rights, while claiming to have the power of law, with the US Congress not having been so much as consulted.
Specifics Left to Rumsfeld - Bush’s executive order contains few specifics about how the commissions will actually function. Bush will delegate that task to Rumsfeld, although, as with the order itself, White House lawyers will actually make the decision to put Rumsfeld in charge, and Bush will merely sign off on the decision (see March 21, 2002). [Savage, 2007, pp. 138]
Dispute over Trial Procedures - During the next few years, lawyers will battle over the exact proceedings of the trials before military commissions, with many of the military lawyers arguing for more rights for the defendants and with Defense Department chief counsel William J. Haynes, and Justice Department and White House lawyers (including White House counsel Alberto Gonzales, vice presidential counsel David Addington, and Gonzales’ deputy Timothy Flanigan) taking a more restrictive line. [New York Times, 10/24/2004]
Out of the Loop - Both National Security Adviser Condoleezza Rice and Secretary of State Colin Powell were left outside of the circle during the drafting of this directive (see November 6, 2001 and November 9, 2001). Rice is reportedly angry about not being informed. [New York Times, 10/24/2004]
Serious 'Process Failure' - National Security Council legal adviser John Bellinger will later call the authorization a “process failure” with serious long-term consequences (see February 2009).

Entity Tags: George W. Bush, John Bellinger, Donald Rumsfeld, Colin Powell, Condoleezza Rice, David S. Addington, Alberto R. Gonzales, William J. Haynes, Timothy E. Flanigan

Timeline Tags: Torture of US Captives, Civil Liberties

John Yoo and Robert Delahunty of the Justice Department’s Office of Legal Counsel (OLC) write a classified memo to John Bellinger, the senior legal counsel to the National Security Council. Yoo and Delahunty claim that President Bush has the unilateral authority to “suspend certain articles” of the Anti-Ballistic Missile Treaty between the US and Russia (see May 26, 1972). Six months later, President Bush will withdraw the US from the treaty (see December 13, 2001). [US Department of Justice, 11/15/2001 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file] The memo will not be released until two months after the Bush administration leaves the White House (see March 2, 2009).

Entity Tags: National Security Council, John Bellinger, John C. Yoo, US Department of Justice, Robert J. Delahunty, Office of Legal Counsel (DOJ)

Timeline Tags: US International Relations

Justice Department lawyer John Yoo, an official with the Office of Legal Counsel (OLC), issues a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but its existence will be revealed in a June 2007 deposition filed in the course of an American Civil Liberties Union (ACLU) lawsuit. The memo is known to cover the War Crimes Act, the Hague Convention, the Geneva Conventions, the federal criminal code, and detainee treatment. [American Civil Liberties Union [PDF], 1/28/2009 pdf file] It is co-authored by OLC special counsel Robert Delahunty. [ProPublica, 4/16/2009]

Entity Tags: Robert J. Delahunty, American Civil Liberties Union, Office of Legal Counsel (DOJ), John C. Yoo, US Department of Justice

Timeline Tags: Civil Liberties

According to a 2009 Senate Armed Services Committee report (see April 21, 2009), the Pentagon begins asking the Joint Personnel Recovery Agency (JPRA) for assistance in developing a set of procedures for “harsh interrogations”—torture—to be used against suspected terrorists captured by US soldiers and intelligence operatives. JPRA has “reverse-engineered” a training program, Survival, Evasion, Resistance, and Escape (SERE), which trains US soldiers to resist torture techniques if captured by an enemy, to produce harsh techniques to be used in interrogating suspected terrorists. [Washington Post, 4/22/2009]
Methods Already in Use - Military interrogators have already begun using the methods inflicted on them during SERE training on their prisoners, and SERE instructors—often having no training in interrogation procedures and no experience with other cultures—have been reassigned as interrogators. [Savage, 2007, pp. 216] The JPRA program will result in the personal approval of 15 “harsh” techniques by Defense Secretary Donald Rumsfeld. The policies will be adopted by US interrogators in Afghanistan, at Abu Ghraib prison in Baghdad, and at Guantanamo. [New York Times, 4/21/2009] In a June 2004 press conference, General James T. Hill, the commander of the US Southern Command (SOCOM), which oversees the Guantanamo detention facility, will say that US officials tapped the “SERE School and developed a list of techniques.” Hill will say that he was reassured by Pentagon officials that the techniques were “legally consistent with our laws.”
Methods Devised to Produce Propaganda, Not Reliable Information - Trained interrogators are, in the words of reporter Charlie Savage, “aghast at this policy.” Savage will write that unlike many Pentagon officials, Special Forces troops, and even SERE instructors, they know full well where SERE techniques originated: from the techniques used by Chinese and North Korean interrogators to torture and brutalize US soldiers during the Korean War. The Koreans and Chinese were experts at coercing American captives to “confess” to “war crimes” and other offenses; those confessions were used for propaganda purposes. “After the war,” Savage will write, the captured soldiers “all told the same story: Chinese interrogators, working with the North Koreans, had put them through a series of sustained torments” identical to those used in SERE training “until their minds had bent and they had made the false confessions.” The stories led to the concept of Chinese “brainwashing” techniques made famous by such books and films as The Manchurian Candidate. In 1963, the CIA concluded that the techniques were virtually useless at producing reliable intelligence, but worked very well in coercing victims to say whatever interrogators wanted them to say. “[U]nder sufficient pressure subjects usually yield but their ability to recall and communicate information accurately is as impaired as the will to resist.” Savage will write, “Neither SERE trainers, who run scenarios by following the instructions in basic military manuals, nor their Special Forces trainees understood that the coercive techniques used in the program were designed to make prisoners lose touch with reality so that they will falsely confess to what their captors want to hear, not for extracting accurate and reliable information.” Colonel Steve Kleinman, the former head of the Air Force’s strategic interrogation program, will later comment: “People who defend this say ‘we can make them talk.’ Yes, but what are they saying? The key is that most of the training is to try to resist the attempts to make you comply and do things such as create propaganda, to make these statements in either written or videotaped form. But to get people to comply, to do what you want them to do, even though it’s not the truth—that is a whole different dynamic than getting people to produce accurate, useful intelligence.” [Savage, 2007, pp. 216-217]

Entity Tags: Steve Kleinman, Central Intelligence Agency, Charlie Savage, US Department of Defense, Donald Rumsfeld, Joint Personnel Recovery Agency, Senate Armed Services Committee, James T. Hill

Timeline Tags: Torture of US Captives

The Justice Department’s John Yoo sends a classified memo to the Defense Department’s general counsel, William Haynes. The contents will not be made public, but the American Civil Liberties Union (ACLU) will eventually learn that the memo concerns possible criminal charges to be brought against an American citizen who is suspected of being a member of either al-Qaeda or the Taliban. The ACLU believes the memo discusses the laws mandating that US military personnel must adhere to the Uniform Code of Military Justice, and how those laws may not apply to military personnel during a so-called “undeclared war.” [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: US Department of Justice, American Civil Liberties Union, Office of Legal Counsel (DOJ), John C. Yoo

Timeline Tags: Civil Liberties

Defense Secretary Donald Rumsfeld makes a public announcement that he is planning to move Taliban and al-Qaeda suspects to the Guantanamo Bay Naval Station. The number of people in US custody and destined for Guantanamo is allegedly small. According to the Chairman of the Joint Chiefs of Staff, Air Force Gen. Richard B. Myers, they number eight individuals aboard the USS Peleliu and 37 at a US base near Kandahar airport. [Dawn (Karachi), 12/28/2001] Troops, earlier stationed at nearby Camp Rhino, where John Walker Lindh was detained, are being transferred to Guantanamo. [GlobalSecurity (.org), 1/15/2005] The reason for choosing Guantanamo for detaining suspected al-Qaeda and Taliban members is unclear. Rumsfeld says: “I would characterize Guantanamo Bay, Cuba, as the least worst place we could have selected. Its disadvantages seem to be modest relative to the alternatives.” [Dawn (Karachi), 12/28/2001] Rumsfeld does not inform reporters of the legal opinion about to be released by the Office of Legal Counsel (OLC) that he feels makes Guantanamo uniquely qualified to serve as a prisoner for terror suspects (see December 28, 2001). According to the OLC opinion, Guantanamo is outside the US itself, so US courts have no jurisdiction to oversee conditions or activities there. It is also not on soil controlled by any other court system. And, unlike other facilities considered for housing terror suspects (see January 11, 2002), Guantanamo is not on the soil of a friendly government with which the US has lease and status of force agreements, but rather on the soil of a hostile Communist government whose predecessor had signed a perpetual lease with the US. The base, therefore, is, according to the OLC, under the sole jurisdiction of the US military and its commander in chief, and not subject to any judicial or legislative review. In 2007, author and reporter Charlie Savage will write, “Guantanamo was chosen because it was the best place to set up a law-free zone.” [Savage, 2007, pp. 145]

Entity Tags: Al-Qaeda, US Department of Defense, Charlie Savage, Richard B. Myers, Taliban, Donald Rumsfeld

Timeline Tags: Torture of US Captives, War in Afghanistan

Deputy Assistant Attorney Generals Patrick Philbin and John Yoo send a memorandum to Pentagon General Counsel William J. Haynes offering the legal opinion that US courts do not have jurisdiction to review the detention of foreign prisoners at Guantanamo Bay. Therefore detentions of persons there cannot be challenged in a US court of law. The memo is endorsed by the Department of Defense and White House legal counsel Alberto Gonzales. [Newsweek, 5/24/2004] The memo addresses “the question whether a federal district court would properly have jurisdiction to entertain a petition for a writ of habeas corpus filed on behalf of an alien detained at the US naval base at Guantanamo Bay, Cuba.” The conclusion of Philbin and Yoo is that it cannot, based primarily on their interpretation of a decision by the US Supreme Court in the 1950 Eisentrager case, in which the Supreme Court determined that no habeas petition should be honored if the prisoners concerned are seized, tried, and held in territory that is outside of the sovereignty of the US and outside the territorial jurisdiction of any court of the US. Both conditions apply to Guantanamo according to Philbin and Yoo. Approvingly, they quote the US Attorney General in 1929, who stated that Guantanamo is “a mere governmental outpost beyond our borders.” A number of cases, quoted by the authors, “demonstrate that the United States has consistently taken the position that [Guantanamo Bay] remains foreign territory, not subject to US sovereignty.” Guantanamo is indeed land leased from the state of Cuba, and therefore in terms of legal possession and formal sovereignty still part of Cuba. But Philbin and Yoo acknowledge a problem with the other condition: namely that the territory is outside the US’s jurisdiction. They claim with certainty that Guantanamo “is also outside the ‘territorial jurisdiction of any court of the United States.’” However, the Supreme Court should not have made a distinction between jurisdiction and sovereignty here; the wording of the decision is really, Philbin and Yoo believe, an inaccurate reflection of its intent: “an arguable imprecision in the Supreme Court’s language.” For that reason, they call for caution. “A non-frivolous argument might be constructed, however, that [Guantanamo Bay], while not be part of sovereign territory of the United States, is within the territorial jurisdiction of a federal court.” [US Department of Justice, 12/28/2001 pdf file]

Entity Tags: John C. Yoo, Alberto R. Gonzales, Patrick F. Philbin, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

Most of Task Force 5’s members are called home from Afghanistan to prepare for operations in Iraq. In early 2002, there were roughly 150 Task Force 5 commandos in Afghanistan. After the massive transfer, Task Force 5’s numbers dip to as low as 30 men. Task Force 5 is a top-secret elite group that includes CIA paramilitary units and military “special mission units,” or SMUs. One of the SMUs is the former Delta Force. The name of the other unit, which specializes in human and technical intelligence operations, is not known. The Washington Post will later note, “These elite forces, along with the battlefield intelligence technology of Predator and Global Hawk drone aircraft, were the scarcest tools of the hunt for jihadists along the Afghanistan-Pakistan border.” According to Flynt Leverett, a career CIA analyst assigned to the State Deparmtent, “There is a direct consequence for us having taken these guys out prematurely. There were people on the staff level raising questions about what that meant for getting al-Qaeda, for creating an Afghan security and intelligence service [to help combat jihadists]. Those questions didn’t get above staff level, because clearly there had been a strategic decision taken.” [Washington Post, 10/22/2004] In 2003, Task Force 5 will be disbanded and then merged into the new Task Force 121, which is to operate in both Iraq and Afghanistan. [New York Times, 11/7/2003]

Entity Tags: Flynt Leverett, Task Force 5, 1st Special Forces Operational Detachment--Delta, Central Intelligence Agency

Timeline Tags: Complete 911 Timeline, Events Leading to Iraq Invasion, War in Afghanistan

John Yoo, a neoconservative lawyer in the Justice Department’s Office of Legal Counsel serving as deputy assistant attorney general, writes a classified memo to senior Pentagon counsel William J. Haynes, titled “Application of Treaties and Law to al-Qaeda and Taliban Detainees.” [New York Times, 5/21/2004]
Yoo: Geneva Conventions Do Not Apply in War on Terror - Yoo’s memo, written in conjunction with fellow Justice Department lawyer Robert Delahunty, echoes arguments by another Justice Department lawyer, Patrick Philbin, two months earlier (see November 6, 2001). Yoo states that, in his view, the laws of war, including the Geneva Conventions, do not apply to captured Taliban or al-Qaeda prisoners, nor do they apply to the military commissions set up to try such prisoners.
Geneva Superseded by Presidential Authority - Yoo’s memo goes even farther, arguing that no international laws apply to the US whatsoever, because they do not have any status under US federal law. “As a result,” Yoo and Delahunty write, “any customary international law of armed conflict in no way binds, as a legal matter, the president or the US armed forces concerning the detention or trial of members of al-Qaeda and the Taliban.” In essence, Yoo and Delahunty argue that President Bush and the US military have carte blanche to conduct the global war on terrorism in any manner they see fit, without the restrictions of law or treaty. However, the memo says that while the US need not follow the rules of war, it can and should prosecute al-Qaeda and Taliban detainees for violating those same laws—a legal double standard that provokes sharp criticism when the memo comes to light in May 2004 (see May 21, 2004). Yoo and Delahunty write that while this double standard may seem “at first glance, counter-intuitive,” such expansive legal powers are a product of the president’s constitutional authority “to prosecute the war effectively.” The memo continues, “Restricting the president’s plenary power over military operations (including the treatment of prisoners)” would be “constitutionally dubious.” [Mother Jones, 1/9/2002; US Department of Justice, 6/9/2002 pdf file; Newsweek, 5/21/2004; New York Times, 5/21/2004]
Overriding International Legal Concerns - Yoo warns in the memo that international law experts may not accept his reasoning, as there is no legal precedent giving any country the right to unilaterally ignore its commitment to Geneva or any other such treaty, but Yoo writes that Bush, by invoking “the president’s commander in chief and chief executive powers to prosecute the war effectively,” can simply override any objections. “Importing customary international law notions concerning armed conflict would represent a direct infringement on the president’s discretion as commander in chief and chief executive to determine how best to conduct the nation’s military affairs.” [Savage, 2007, pp. 146] The essence of Yoo’s argument, a Bush official later says, is that the law “applies to them, but it doesn’t apply to us.” [Newsweek, 5/21/2004] Navy general counsel Alberto Mora later says of the memo that it “espoused an extreme and virtually unlimited theory of the extent of the president’s commander-in-chief authority.” [Savage, 2007, pp. 181]
White House Approval - White House counsel and future Attorney General Alberto Gonzales agrees (see January 25, 2002), saying, “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” [Mother Jones, 1/9/2002]
Spark for Prisoner Abuses - Many observers believe that Yoo’s memo is the spark for the torture and prisoner abuses later reported from Iraq’s Abu Ghraib prison (see Evening November 7, 2003), Guantanamo Bay (see December 28, 2001), and other clandestine prisoner detention centers (see March 2, 2007). The rationale is that since Afghanistan is what Yoo considers a “failed state,” with no recognizable sovereignity, its militias do not have any status under any international treaties. [Newsweek, 5/21/2004; Newsweek, 5/24/2004]
Resistance from Inside, Outside Government - Within days, the State Department will vehemently protest the memo, but to no practical effect (see January 25, 2002).

Entity Tags: Patrick F. Philbin, Robert J. Delahunty, US Department of Justice, Office of Legal Counsel (DOJ), Taliban, John C. Yoo, Colin Powell, Geneva Conventions, Al-Qaeda, George W. Bush, Alberto Mora, US Department of State, Alberto R. Gonzales, William J. Haynes

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

William Howard Taft IV.William Howard Taft IV. [Source: PBS]William Howard Taft IV, the State Department’s chief legal adviser, responds to John Yoo’s January 9,2002, memo (see January 9, 2002) saying that Yoo’s analysis is “seriously flawed.” Taft writes: “In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the [Geneva] Conventions. I have no doubt we can do so here, where a relative handful of persons is involved.” [Newsweek, 5/24/2004] Applying the Geneva Conventions, according to Taft, would demonstrate that the United States “bases its conduct on its international legal obligations and the rule of law, not just on its policy preferences.” Taft ends with a scorching criticism. “Your position is, at this point, erroneous in its substance and untenable in practice. Your conclusions are as wrong as they are incomplete. Let’s talk.” [Le Monde (Paris), 10/25/2004]

Entity Tags: William Howard Taft IV, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

Justice Department lawyers John Yoo and Robert Delahunty send a classified memo to the chief legal adviser for the State Department, William Howard Taft IV. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo concerns the Justice Department’s interpretation of the War Crimes Act. According to Yoo and Delahunty, the War Crimes Act does not allow the prosecution of accused al-Qaeda and Taliban suspects. Yoo will cite this memo in a 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: Office of Legal Counsel (DOJ), American Civil Liberties Union, John C. Yoo, William Howard Taft IV, US Department of Justice, War Crimes Act, US Department of State

Timeline Tags: Civil Liberties

Siding with the Pentagon and Justice Department against the State Department, President Bush declares the Geneva Conventions invalid with regard to conflicts with al-Qaeda and the Taliban. Secretary of State Colin Powell urges Bush to reconsider, saying that while Geneva does not apply to al-Qaeda terrorists, making such a decision for the Taliban—the putative government of Afghanistan—is a different matter. Such a decision could put US troops at risk. Both Defense Secretary Donald Rumsfeld and Joint Chiefs chairman General Richard B. Myers support Powell’s position. Yet another voice carries more weight with Bush: John Yoo, a deputy in the Justice Department’s Office of Legal Counsel (OLC—see October 23, 2001). Yoo says that Afghanistan is a “failed state” without a functional government, and Taliban fighters are not members of an army as such, but members of a “militant, terrorist-like group” (see January 9, 2002). White House counsel Alberto Gonzales agrees with Yoo in a January 25 memo, calling Yoo’s opinion “definitive.” The Gonzales memo concludes that the “new kind of war” Bush wants to fight should not be equated with Geneva’s “quaint” privileges granted to prisoners of war, or the “strict limitations” they impose on interrogations (see January 25, 2002). Military lawyers dispute the idea that Geneva limits interrogations to recitals of name, rank, and serial number, but their objections are ignored. For an OLC lawyer to override the judgment of senior Cabinet officials is unprecedented. OLC lawyers usually render opinions on questions that have already been deliberated by the legal staffs of the agencies involved. But, perhaps because OLC lawyers like Yoo give Bush the legal opinions he wants, Bush grants that agency the first and last say in matters such as these. “OLC was definitely running the show legally, and John Yoo in particular,” a former Pentagon lawyer will recall. “Even though he was quite young, he exercised disproportionate authority because of his personality and his strong opinions.” Yoo is also very close to senior officials in the office of the vice president and in the Pentagon’s legal office. [Ledger (Lakeland FL), 10/24/2004]
Undermining, Cutting out Top Advisers - Cheney deliberately cuts out the president’s national security counsel, John Bellinger, because, as the Washington Post will later report, Cheney’s top adviser, David Addington, holds Bellinger in “open contempt” and does not trust him to adequately push for expanded presidential authority (see January 18-25, 2002). Cheney and his office will also move to exclude Secretary of State Colin Powell from the decision-making process, and, when the media learns of the decision, will manage to shift some of the blame onto Powell (see January 25, 2002). [Washington Post, 6/24/2007]
Final Decision - Bush will make his formal final declaration three weeks later (see February 7, 2002).

Entity Tags: US Department of Defense, US Department of Justice, Richard B. Myers, US Department of State, Taliban, Office of Legal Counsel (DOJ), John C. Yoo, Alberto R. Gonzales, Richard (“Dick”) Cheney, Colin Powell, Al-Qaeda, Condoleezza Rice, Donald Rumsfeld, John Bellinger, George W. Bush, Geneva Conventions, David S. Addington

Timeline Tags: Torture of US Captives, Civil Liberties

Defense Secretary Rumsfeld sends a memo to Joint Chiefs of Staff Chairman General Richard Myers informing him that Bush has declared the Geneva Conventions invalid with regard to conflicts with al-Qaeda and the Taliban (see January 18-25, 2002). In this “Memorandum for Chairman of the Joint Chiefs of Staff,” Rumsfeld states: “The United States has determined that al-Qaeda and Taliban individuals under the control of the Department of Defense are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.” Nevertheless, “[t]he Combatant Commanders shall, in detaining al-Qaeda and Taliban individuals under the control of the Department of Defense, treat them humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949.” [US Department of Defense, 1/19/2002 pdf file] The same day, the memorandum is disseminated as an order by the Joint Chiefs of Staff. [Chairman of the Joint Chiefs of Staff, 1/19/2002 pdf file]

Entity Tags: Richard B. Myers, Donald Rumsfeld

Timeline Tags: Torture of US Captives

Attorney General John Ashcroft publicly defends the president’s decision (see January 18-25, 2002) to deny detainees the protections of Geneva Conventions. He calls the detainees “terrorists” who “are uniquely dangerous.” [CNN, 1/22/2002]

Entity Tags: John Ashcroft

Timeline Tags: Torture of US Captives

Jay Bybee, the head of the Justice Department’s Office of Legal Counsel (OLC), and OLC lawyer John Yoo send a memo to White House counsel Alberto Gonzales and Defense Department chief counsel William Haynes. Known as the “Treaties and Laws Memorandum,” the document addresses the treatment of detainees captured in Afghanistan, and their eventual incarceration at Guantanamo and possible trial by military commissions. The memo asserts that the Geneva Conventions do not apply to al-Qaeda detainees, and the president has the authority to deny Taliban members POW status. The document goes on to assert that the president is not bound by international laws such as the Geneva Conventions because they are neither treaties nor federal laws. [US Department of Justice, 1/22/2002 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: Office of Legal Counsel (DOJ), John C. Yoo, Jay S. Bybee, US Department of Justice

Timeline Tags: Torture of US Captives, Civil Liberties, War in Afghanistan

John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel (OLC), sends a classified memo to White House counsel Alberto Gonzales. The contents of the memo will remain secret, but the American Civil Liberties Union (ACLU) will later learn that the memo is about the Geneva Conventions and is applicable to prisoners of war. Yoo’s boss, OLC head Jay Bybee, sends another secret memo about the Geneva Conventions to Deputy Attorney General Larry Thompson. [American Civil Liberties Union [PDF], 1/28/2009 pdf file]

Entity Tags: Jay S. Bybee, American Civil Liberties Union, Geneva Conventions, US Department of Justice, John C. Yoo, Office of Legal Counsel (DOJ), Larry D. Thompson

Timeline Tags: Civil Liberties

White House lawyer Alberto Gonzales completes a draft memorandum to the president advising him not to reconsider his decision (see January 18-25, 2002) declaring Taliban and al-Qaeda fighters ineligible for prisoner of war status as Colin Powell has apparently recommended. [US Department of Justice, 1/25/2004 pdf file; Newsweek, 5/24/2004] The memo recommends that President Bush accept a recent Office of Legal Counsel (OLC) memo saying that the president has the authority to set aside the Geneva Conventions as the basis of his policy (see January 9, 2002). [Savage, 2007, pp. 146]
Geneva No Longer Applies, Says Gonzales - Gonzales writes to Bush that Powell “has asked that you conclude that GPW [Third Geneva Convention] does apply to both al-Qaeda and the Taliban. I understand, however, that he would agree that al-Qaeda and the Taliban fighters could be determined not to be prisoners of war (POWs) but only on a case-by-case basis following individual hearings before a military board.” Powell believes that US troops will be put at risk if the US renounces the Geneva Conventions in relation to the Taliban. Rumsfeld and his chairman of the Joint Chiefs of Staff, Gen. Richard B. Myers, allegedly agree with Powell’s argument. [New York Times, 10/24/2004] But Gonzales says that he agrees with the Justice Department’s Office of Legal Counsel, which has determined that the president had the authority to make this declaration on the premise that “the war against terrorism is a new kind of war” and “not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW [Geneva Convention on the treatment of prisoners of war].” Gonzales thus states, “In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” [Newsweek, 5/24/2004] Gonzales also says that by declaring the war in Afghanistan exempt from the Geneva Conventions, the president would “[s]ubstantially [reduce] the threat of domestic criminal prosecution under the War Crimes Act [of 1996]” (see August 21, 1996). The president and other officials in the administration would then be protected from any future “prosecutors and independent counsels who may in the future decide to pursue unwarranted charges.” [New York Times, 5/21/2004; Newsweek, 5/24/2004]
Memo Actually Written by Cheney's Lawyer - Though the memo is released under Gonzales’s signature, many inside the White House do not believe the memo was written by him; it has an unorthodox format and a subtly mocking tone that does not go with Gonzales’s usual style. A White House lawyer with direct knowledge of the memo later says it was written by Cheney’s chief lawyer, David Addington. Deputy White House counsel Timothy Flanigan passed it to Gonzales, who signed it as “my judgment” and sent it to Bush. Addington’s memo quotes Bush’s own words: “the war against terrorism is a new kind of war.” [Washington Post, 6/24/2007]
Powell 'Hits the Roof' over Memo - When Powell reads the memo (see January 26, 2002), he reportedly “hit[s] the roof” and immediately arranges for a meeting with the president (see January 25, 2002). [Newsweek, 5/24/2004]

Entity Tags: George W. Bush, Office of Legal Counsel (DOJ), Geneva Conventions, Alberto R. Gonzales, Colin Powell, David S. Addington, Al-Qaeda, Taliban, Richard B. Myers

Timeline Tags: Torture of US Captives, Civil Liberties

US Secretary of State Colin Powell responds to Alberto Gonzales’ January 25 draft memo to the president (see January 25, 2002). He argues that it does not provide the president with a balanced view on the issue of whether or not to apply the Geneva Conventions to the conflict in Afghanistan. Powell lists several problems that could potentially result from exempting the conflict from the Conventions as Gonzales recommends. For example, he notes that it would “reverse over a century of US policy and practice in supporting the Geneva conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.” The decision will furthermore have “a high cost in terms of negative international reaction.” It will “undermine public support among critical allies, making military cooperation more difficult to sustain,” and other states would “likely have legal problems with extradition or other forms of cooperation in law enforcement, including in bringing terrorists to justice.” But perhaps most ominously, Powell charges that the proposed decision “may provoke some individual foreign prosecutors to investigate and prosecute our officials and troops” and “make us more vulnerable to domestic and legal challenge.” The end of the memo consists of several rebuttals to points that Gonzales made in his memo. [US Department of State, 1/26/2004 pdf file; New York Times, 5/21/2004; Newsweek, 5/24/2004]

Entity Tags: Geneva Conventions, Alberto R. Gonzales, Colin Powell

Timeline Tags: Torture of US Captives, Civil Liberties

In a reply to White House Counsel Alberto Gonzales (see January 25, 2002), the State Department’s Legal Director, William Howard Taft IV, tries again (see January 11, 2002) to put his view forward supporting obeying the Geneva Conventions. He writes: “The president should know that a decision that the Conventions do apply is consistent with the plain language of the Conventions and the unvaried practice of the United States in introducing its forces into conflict over fifty years.” [US Attorney General, 2/1/2002]

Entity Tags: William Howard Taft IV, Alberto R. Gonzales

Timeline Tags: Torture of US Captives, Civil Liberties

The White House declares that the United States will apply the Geneva Conventions to the conflict in Afghanistan, but will not grant prisoner-of-war status to captured Taliban and al-Qaeda fighters. Though Afghanistan was party to the 1949 treaty, Taliban fighters are not protected by the Conventions, the directive states, because the Taliban is not recognized by the US as Afghanistan’s legitimate government. Likewise, al-Qaeda fighters are not eligible to be protected under the treaty’s provisions because they do not represent a state that is party to the Conventions either.
Administration Will Treat Detainees Humanely 'Consistent' with Geneva - In the memo, President Bush writes that even though al-Qaeda detainees do not qualify as prisoners of war under Geneva, “as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.” The presidential directive is apparently based on Alberto Gonzales’s January 25 memo (see January 25, 2002) and a memo from Vice President Cheney’s chief of staff, David Addington (see January 25, 2002).
Bush Chooses Not to Suspend Geneva between US and Afghanistan - The directive also concludes that Bush, as commander in chief of the United States, has the authority to suspend the Geneva Conventions regarding the conflict in Afghanistan, should he feel necessary: Bush writes, “I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.” Though not scheduled for declassification until 2012, the directive will be released by the White House in June 2004 to demonstrate that the president never authorized torture against detainees from the wars in Afghanistan and Iraq. [George W. Bush, 2/7/2002 pdf file; CNN, 2/7/2002; Newsweek, 5/24/2004; Truthout (.org), 1/19/2005; Dubose and Bernstein, 2006, pp. 191]
Overriding State Department Objections - Bush apparently ignores or overrides objections from the State Department, including Secretary of State Colin Powell (see January 25, 2002) and the department’s chief legal counsel, William Howard Taft IV (see January 25, 2002). Both Powell and Taft strenuously objected to the new policy. [Savage, 2007, pp. 147]
Ignoring Promises of Humane Treatment - The reality will be somewhat different. Gonzales laid out the arguments for and against complying with Geneva in an earlier memo (see January 18-25, 2002), and argued that if the administration dispensed with Geneva, no one could later be charged with war crimes. Yet, according to Colin Powell’s chief of staff, Lawrence Wilkerson, sometime after the Bush memo is issued, Vice President Cheney and Defense Secretary Rumsfeld decide to ignore the portions promising humane treatment for prisoners. “In going back and looking at the deliberations,” Wilkerson later recalls, “it was clear to me that what the president had decided was one thing and what was implemented was quite another thing.” [Dubose and Bernstein, 2006, pp. 190-191]

Entity Tags: Geneva Conventions, George W. Bush, Colin Powell, Lawrence Wilkerson, William Howard Taft IV, Richard (“Dick”) Cheney, Bush administration (43)

Timeline Tags: Torture of US Captives, Civil Liberties

Valerie Plame Wilson.Valerie Plame Wilson. [Source: PEP]In response to questions from Vice President Dick Cheney (see (February 13, 2002)), CIA operative Valerie Plame Wilson and officials from the CIA’s DO counterproliferation division (CPD) meet to discuss what the agency should do to determine the validity of recent Italian intelligence reports (see October 15, 2001 and February 5, 2002) alleging that Iraq had sought to purchase uranium from Niger. During the meeting, Plame Wilson suggests sending her husband, Joseph Wilson, an Africa expert and former US diplomat, to Niger to investigate the reports. [US Congress, 7/7/2004] The meeting is chronicled in an internal agency memo obtained by the Wall Street Journal in October 2003. [Wall Street Journal, 10/17/2003] Intelligence officials subsequently will not deny that Plame Wilson was involved in the decision to send Wilson to Niger, but will say she was not “responsible” for the decision. [Wall Street Journal, 10/17/2003]
CIA Alerted to Cheney's Concerns - In her 2007 book Fair Game, Plame Wilson recalls that shortly after Cheney’s initial questions, a young officer rushes into her CPD office and tells her “someone from the vice president’s office” just called the officer on her secure telephone line. The caller, apparently a member of Cheney’s staff, wants information about an intelligence report that the Italian government has passed to the US, alleging that in 1999 Iraq attempted to buy yellowcake uranium from Niger. Cheney is, according to the staffer, “interested and want[s] more information.” Plame Wilson will write, “If the report was true at all, I knew that it would be damning evidence indeed that Iraq was seeking to restart its nuclear program.”
'Nonplussed' at White House Contact - “I was momentarily nonplussed that someone from the vice president’s office had reached down into the junior working levels of the agency to discuss or find an answer to an intelligence report,” she will write. “In my experience, I had never known that to happen. There were strict protocols and procedures for funneling intelligence to policy makers or fielding their questions. Whole offices within the agency were set up and devoted to doing just that. A call to a random desk officer might get the policy maker a quick answer in the heat of the moment, but it was also a recipe for trouble. Handing a senior policy maker ‘raw’ intelligence that had not been properly vetted, placed into context, or appropriately caveated by intelligence professionals usually led to misinterpretation—at a minimum.” She adds that at the time, she is “not aware of the unprecedented number of visits the vice president had made to our headquarters to meet with analysts and look for any available evidence to support the Iraq WMD claims the administration was beginning to make.… I was still blissfully ignorant of any special visits or pressure from the administration vis-a-vis Iraq. I just wanted to get some answers.”
Decision to Ask Wilson Originates with Records Officer, Not Plame Wilson - Plame Wilson tables her concerns about the unusual contact, and begins pondering how best to find answers to Cheney’s questions. The “first and most obvious choice,” she will write, “would be to contact our [REDACTED] office in Niger and ask them to investigate these allegations using local sources available on the ground.” But the budget cuts of the mid-1990s had forced the closing of numerous CIA offices in Africa, including its station in Niamey, Niger. Plame Wilson will recall, “A midlevel reports officer who had joined the discussion in the hallway enthusiastically suggested, ‘What about talking to Joe about it?’” The reports officer is referring to Plame Wilson’s husband, former ambassador Joseph Wilson. “He knew of Joe’s history and role in the first Gulf War (see September 5, 1988 and After and September 20, 1990), his extensive experience in Africa, and also that in 1999 the CIA had sent Joe on a sensitive mission to Africa on uranium issues. Of course, none of us imagined the firestorm this sincere suggestion would ignite. At the moment, the only thought that flashed through my mind was that if Joe were out of the country for an extended period of time I would be left to wrestle two squirmy toddlers into bed each evening.… So I was far from keen on the idea, but we needed to respond to the vice president’s office with something other than a lame and obviously unacceptable, ‘We don’t know, sorry.’” Plame Wilson and the reports officer make the suggestion to send Wilson to Niger; her supervisor decides to meet with Wilson “and the appropriate agency and State [Department] officials.” At her supervisor’s behest, Plame Wilson sends an e-mail to her division chief (whom she will only identify as “Scott”), informing him of the decision and noting that “my husband has good relations with both the PM [prime minister] and the former minister of mines (not to mention lots of French contacts), both of whom could possibly shed some light on this sort of activity.” Plame Wilson will write that her words are intended to “gently remind [her division chief] of Joe’s credentials to support why my boss thought he should come into headquarters in the first place.” She will note: “Months later, those words would be ripped out of that e-mail and cited as proof that I had recommended Joe for the trip (see February 13, 2002). But at the time, I simply hit the ‘send’ button and moved on to the other tasks that were demanding my attention.” That night, Plame Wilson broaches the subject of going to Niger with her husband; he agrees to meet with her superiors at the CPD. [US Congress, 7/7/2004; Wilson, 2007, pp. 108-110]
Cheney Later Denies Knowledge of Iraq-Niger Claims - During the investigation of the Plame Wilson leak (see September 26, 2003), Cheney will repeatedly deny any knowledge that the CIA was following up on his request for more information. This is a lie. Among other refutations, the Senate Intelligence Committee will report in 2004 that he was told on February 14 that CIA officers were working with clandestine sources to find out the truth behind the Niger allegations (see July 9, 2004). [Wilson, 2007, pp. 368]

Entity Tags: Joseph C. Wilson, Central Intelligence Agency, Counterproliferation Division, Valerie Plame Wilson, Richard (“Dick”) Cheney

Timeline Tags: Events Leading to Iraq Invasion, Niger Uranium and Plame Outing

Joseph Wilson and Valerie Plame Wilson.Joseph Wilson and Valerie Plame Wilson. [Source: Haraz N. Ghanbari / Associated Press]Officials in the CIA’s Directorate of Operations (DO) Counterproliferation Division (CPD) decide to send former ambassador Joseph Wilson to Niger to investigate allegations that Iraq sought to procure uranium from that country. Wilson’s wife, Valerie Plame Wilson, a senior CPD officer (see April 2001 and After), relays the request to him explaining that “there’s this crazy report” asserting that Iraq made a deal with Niger on the sale of a large quantity of uranium. [US Congress, 7/7/2004] Shortly afterwards, she sends an overseas cable requesting concurrence with the agency’s decision to send her husband to Niger (see February 13, 2002). She writes, “[B]oth State and [the Department of Defense] have requested additional clarification and indeed, the vice president’s office just asked for background information” (see (February 13, 2002)). [US Congress, 7/7/2004]

Entity Tags: Counterproliferation Division, Central Intelligence Agency, Joseph C. Wilson, Valerie Plame Wilson

Timeline Tags: Events Leading to Iraq Invasion, Niger Uranium and Plame Outing

Jay Bybee, the chief of the Justice Department’s Office of Legal Counsel (OLC), issues a classified memo to William Howard Taft IV, the chief counsel of the State Department, titled “The President’s Power as Commander in Chief to Transfer Captive Terrorists to the Control and Custody of Foreign Nations.” The memo, actually written by Bybee’s deputy John Yoo, says Congress has no authority to block the president’s power to unilaterally transfer detainees in US custody to other countries. In essence, the memo grants President Bush the power to “rendition” terror suspects to countries without regard to the law or to Congressional legislation, as long as there is no explicit agreement between the US and the other nations to torture the detainees. [US Department of Justice, 3/12/2002 pdf file; Savage, 2007, pp. 148; American Civil Liberties Union [PDF], 1/28/2009 pdf file; New York Times, 3/2/2009] The memo directly contradicts the 1988 Convention Against Torture (see October 21, 1994), which specifically forbids the transfer of prisoners in the custody of a signatory country to a nation which practices torture. Once the treaty was ratified by Congress in 1994, it became binding law. But Yoo and Bybee argue that the president has the authority as commander in chief to ignore treaties and laws that supposedly interfere with his power to conduct wartime activities. [Savage, 2007, pp. 148-149] In 2009, when the memos are made public (see March 2, 2009), Jennifer Daskal of Human Rights Watch says she is shocked at the memo: “That is [the Office of Legal Counsel] telling people how to get away with sending someone to a nation to be tortured. The idea that the legal counsel’s office would be essentially telling the president how to violate the law is completely contrary to the purpose and the role of what a legal adviser is supposed to do.” [Washington Post, 3/3/2009]

Entity Tags: John C. Yoo, Jay S. Bybee, Office of Legal Counsel (DOJ), US Department of Justice

Timeline Tags: Civil Liberties

A suspected Taliban member named Abdullah is taken into US custody, together with 34 other members of the Taliban army. According to Abdullah, the men have their heads hooded and their hands tied behind their backs with plastic zip ties. They are then taken to the US base in Kandahar where for several hours they are ordered to lie down on the stony ground. During this time, Abdullah is kicked in the ribs. The men are shaved of all their facial and body hair. Abdullah later complains that he was shaved by a woman. [Amnesty International, 8/19/2003] This means that the technique of “forced grooming,” authorized by Defense Secretary Donald Rumsfeld for use at Guantanamo between December 2, 2002 and January 15, 2003 (see December 2, 2002), is allegedly already being used in Afghanistan in the spring of 2002. This technique is considered extremely humiliating for Muslim males.

Entity Tags: Donald Rumsfeld

Timeline Tags: Torture of US Captives, War in Afghanistan

The house in Faisalabad, Pakistan, where Abu Zubaida is arrested.The house in Faisalabad, Pakistan, where Abu Zubaida is arrested. [Source: New York Times]Al-Qaeda leader Abu Zubaida is captured in Faisalabad, Pakistan. He is the first al-Qaeda leader considered highly important to be captured or killed after 9/11.
Zubaida Injured during Raid - A joint team from the FBI, the CIA, and the ISI, Pakistan’s intelligence agency, raids the house where Zubaida is staying. Around 3 a.m., the team breaks into the house. Zubaida and three others wake up and rush to the rooftop. Zubaida and the others jump to a neighbor’s roof where they are grabbed by local police who are providing back-up for the capture operation. One of Zubaida’s associates manages to grab a gun from one of the police and starts firing it. A shoot-out ensues. The associate is killed, several police are wounded, and Zubaida is shot three times, in the leg, stomach, and groin. He survives. About a dozen other suspected al-Qaeda operatives are captured in the house, and more are captured in other raids that take place nearby at the same time. [New York Times, 4/14/2002; Suskind, 2006, pp. 84-89] US intelligence had slowly been closing in on Zubaida’s location for weeks, but accounts differ as to exactly how he was found (see February-March 28, 2002). He had surgically altered his appearance and was using an alias, so it takes a few days to completely confirm his identity. [New York Times, 9/10/2006]
Link to Pakistani Militant Group - A later US State Department report will mention that the building Zubaida is captured in is actually a Lashkar-e-Toiba safehouse. Lashkar-e-Toiba is a Pakistani militant group with many links to al-Qaeda, and it appears to have played a key role in helping al-Qaeda operatives escape US forces in Afghanistan and find refuge in Pakistan (see Late 2001-Early 2002). [US Department of State, 4/30/2008]
Rendition - Not long after his arrest, Zubaida is interrogated by a CIA agent while he is recovering in a local hospital (see Shortly After March 28, 2002). He then is rendered to a secret CIA prison, where he is interrogated and tortured (see Mid-May 2002 and After). Throughout his detention, members of the National Security Council and other senior Bush administration officials are briefed about Zubaida’s captivity and treatment. [Senate Intelligence Committee, 4/22/2009 pdf file]
Is Zubaida a High-Ranking Al-Qaeda Leader? - Shortly after the arrest, the New York Times reports that “Zubaida is believed by American intelligence to be the operations director for al-Qaeda and the highest-ranking figure of that group to be captured since the Sept. 11 attacks.” [New York Times, 4/14/2002] But it will later come out that while Zubaida was an important radical Islamist, his importance was probably overstated (see Shortly After March 28, 2002).
Tortured While in US Custody - Once Zubaida has sufficiently recovered from his injuries, he is taken to a secret CIA prison in Thailand for more interrogation. [Observer, 6/13/2004; New York Review of Books, 3/15/2009] One unnamed CIA official will later say: “He received the finest medical attention on the planet. We got him in very good health, so we could start to torture him.” [Suskind, 2006, pp. 94-96, 100] Defense Secretary Donald Rumsfeld publicly vows that Zubaida will not be tortured, but it will later come out that he was (see Mid-May 2002 and After and April - June 2002). [New York Times, 4/14/2002]

Entity Tags: Pakistan Directorate for Inter-Services Intelligence, National Security Council, Donald Rumsfeld, Lashkar-e-Toiba, Central Intelligence Agency, Federal Bureau of Investigation, Al-Qaeda, Bush administration (43), Abu Zubaida

Timeline Tags: Torture of US Captives, Complete 911 Timeline

In the days following the capture of al-Qaeda operative Abu Zubaida (see March 28, 2002), a group of top White House officials, the National Security Council’s Principals Committee, begins a series of meetings that result in the authorization of specific torture methods against Zubaida and other detainees. The top secret talks and meetings eventually approve such methods to be used by CIA agents against high-value terrorism suspects. The US media will not learn of this until six years later (see April 9, 2008). The Principals Committee meetings are chaired by National Security Adviser Condoleezza Rice, and attendees include Vice President Dick Cheney, CIA Director George Tenet, Secretary of Defense Donald Rumsfeld, Secretary of State Colin Powell, and Attorney General John Ashcroft. Tenet’s successor, Porter Goss, will also participate in the meetings. Sometimes deputies attend in place of their superiors. Rice’s group not only discusses and approves specific “harsh” methods of interrogation, but also approves the use of “combined” interrogation techniques on suspects who prove recalcitrant. The approved techniques include slapping and shoving prisoners, sleep deprivation, and waterboarding, or simulated drowning, a technique banned for decades by the US military. Some of the discussions of the interrogation sessions are so detailed that the Principals Committee virtually choreographs the sessions down to the number of times CIA agents can use specific tactics. [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008] The Principals Committee also ensures that President Bush is not involved in the meetings, thereby granting him “deniability” over the decisions, though Bush will eventually admit to being aware of the decisions (see April 11, 2008). The Principals Committee, particularly Cheney, is described by a senior intelligence official as “deeply immersed” in the specifics of the decisions, often viewing demonstrations of how specific tactics work. [Associated Press, 4/10/2008]
Imminent Threat Calls for Extreme Measures - The move towards using harsh and likely illegal interrogation tactics begins shortly after the capture of Zubaida in late March 2002 (see Late March through Early June, 2002 and March 28, 2002). Zubaida is seen as a potentially critical source of information about potential attacks similar to 9/11. He is kept in a secret CIA prison where he recovers from the wounds suffered during his capture, and where he is repeatedly questioned. However, he is allegedly uncooperative with his inquisitors, and CIA officials want to use more physical and aggressive techniques to force him to talk (see March 28, 2002-Mid-2004 and April - June 2002). The CIA briefs the Principals Committee, chaired by Rice, and the committee signs off on the agency’s plan to use more extreme interrogation methods on Zubaida. After Zubaida is waterboarded (see April - June 2002), CIA officials tell the White House that he provided information leading to the capture of two other high-level al-Qaeda operatives, Khalid Shaikh Mohammed (see Shortly After February 29 or March 1, 2003) and Ramzi bin al-Shibh (see Late 2002 and May 2002-2003). The committee approves of waterboarding as well as a number of “combined” interrogation methods, basically a combination of harsh techniques to use against recalcitrant prisoners.
The 'Golden Shield' - The committee asks the Justice Department to determine whether using such methods would violate domestic or international laws. “No one at the agency wanted to operate under a notion of winks and nods and assumptions that everyone understood what was being talked about,” a second senior intelligence official will recall in 2008. “People wanted to be assured that everything that was conducted was understood and approved by the folks in the chain of command.” In August 2002, Justice Department lawyers in the Office of Legal Counsel will write a memo that gives formal legal authority to government interrogators to use harsh, abusive methods on detainees (see August 1, 2002). The memo is called the “Golden Shield” for CIA agents who worry that they could be held criminally liable if the harsh, perhaps tortuous interrogations ever become public knowledge. CIA veterans remember how everything from the Vietnam-era “Phoenix Program” of assassinations to the Iran-Contra arms sales of the 1980s were portrayed as actions of a “rogue,” “out-of-control” CIA; this time, they intend to ensure that the White House and not the agency is given ultimate responsibility for authorizing extreme techniques against terror suspects. Tenet demands White House approval for the use of the methods, even after the Justice Department issues its so-called “Golden Shield” memo explicitly authorizing government interrogators to torture suspected terrorists (see August 1, 2002). Press sources will reveal that Tenet, and later Goss, convey requests for specific techniques to be used against detainees to the committee (see Summer 2003). One high-ranking official will recall: “It kept coming up. CIA wanted us to sign off on each one every time. They’d say: ‘We’ve got so and so. This is the plan.’” The committee approves every request. One source will say of the discussions: “These discussions weren’t adding value. Once you make a policy decision to go beyond what you used to do and conclude it’s legal, [you should] just tell them to implement it.” [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008] In April 2008, law professor Jonathan Turley will say: “[H]ere you have the CIA, which is basically saying, ‘We’re not going to have a repeat of the 1970s, where you guys have us go exploding cigars and trying to take out leaders and then you say you didn’t know about it.’ So the CIA has learned a lot. So these meetings certainly cover them in that respect.” [MSNBC, 4/10/2008] A former senior intelligence official will say, “If you looked at the timing of the meetings and the memos you’d see a correlation.” Those who attended the dozens of meetings decided “there’d need to be a legal opinion on the legality of these tactics” before using them on detainees. [Associated Press, 4/10/2008]
Ashcroft Uneasy at White House Involvement - Ashcroft in particular is uncomfortable with the discussions of harsh interrogation methods that sometimes cross the line into torture, though his objections seem more focused on White House involvement than on any moral, ethical, or legal problems. After one meeting, Ashcroft reportedly asks: “Why are we talking about this in the White House? History will not judge this kindly.” However, others in the discussions, particularly Rice, continue to support the torture program. Even after Jack Goldsmith, the chief of the Justice Department’s Office of Legal Counsel (OLC), withdraws the “Golden Shield” memo and after Powell begins arguing that the torture program is harming the image of the US abroad, when CIA officials ask to continue using particular torture techniques, Rice responds: “This is your baby. Go do it.”
Reaction after Press Learns of Meetings - After the press learns of the meetings (see April 9, 2008), the only person involved who will comment will be Powell, who will say through an assistant that there were “hundreds of [Principals Committee] meetings” on a wide variety of topics and that he is “not at liberty to discuss private meetings.” [ABC News, 4/9/2008; Associated Press, 4/10/2008; ABC News, 4/11/2008]

Entity Tags: Office of Legal Counsel (DOJ), Porter J. Goss, US Department of Justice, Ramzi bin al-Shibh, Richard (“Dick”) Cheney, Principals Committee, Khalid Shaikh Mohammed, Jack Goldsmith, John Ashcroft, Bush administration (43), Al-Qaeda, Abu Zubaida, Central Intelligence Agency, Colin Powell, Condoleezza Rice, George W. Bush, George J. Tenet, Donald Rumsfeld, Jonathan Turley, National Security Council

Timeline Tags: Torture of US Captives, Civil Liberties

Justice Department lawyer Patrick Philbin sends a classified memo to Daniel Bryant, a lawyer with the Justice Department’s Office of Legal Counsel, concerning the “Swift Justice Authorization Act.” The memo states that Congress has no power to interfere with President Bush’s authority to act as commander in chief to control US actions during wartime, including Bush’s authority to promulgate military commissions to try and sentence suspected terrorists and other detainees taken by the US as part of its “war on terror.” Philbin’s colleague, OLC lawyer John Yoo, will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [US Department of Justice, 4/8/2002 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file] The memo will be made public in early 2009 (see March 2, 2009).

Entity Tags: Office of Legal Counsel (DOJ), Patrick F. Philbin, US Department of Justice, Daniel Bryant, John C. Yoo

Timeline Tags: Civil Liberties

Coming from Pakistan, Jose Padilla steps off the plane at Chicago’s O’Hare International Airport and is arrested by FBI agents. Padilla is carrying $10,526, a cell phone, the names and phone numbers of his al-Qaeda training camp sponsor and recruiter, and e-mail addresses of other al-Qaeda operatives. The FBI takes him to New York and holds him in federal criminal custody on the basis of a material witness warrant in connection to a grand jury investigation into the 9/11 attacks. Padilla is a Muslim convert and also goes by the name of Abdullah Al-Muhajir. [Associated Press, 6/2004; Supreme Court opinion on writ of certiorari to the United States Court of Appeals for the Second Circuit. Donald Rumsfeld v. Jose Padilla, 6/28/2004]

Entity Tags: Federal Bureau of Investigation, Al-Qaeda, Jose Padilla

Timeline Tags: Torture of US Captives

President George Bush designates Padilla, who has been in custody since May 8 (see May 8, 2002), an “enemy combatant” on advice from Defense Secretary Donald Rumsfeld and Attorney General John Ashcroft (see June 8, 2002), and directs Rumsfeld to see that he his taken into military custody. Padilla is taken to the Consolidated Naval Brig in Charleston, South Carolina sometime during the middle of that night. At the time of the transfer, Padilla was awaiting a judgment on a request made by his counsel to have the material witness warrant (see May 8, 2002) vacated. [CNN, 6/11/2002]

Entity Tags: Jose Padilla, Donald Rumsfeld, John Ashcroft

Timeline Tags: Torture of US Captives

John Yoo, a lawyer with the Office of Legal Counsel (OLC), sends a classified memo to Daniel J. Bryant, another OLC lawyer. Yoo concludes that the Constitution “vests full control of the military operations of the United States to the president,” and denies Congress any role in overseeing or influencing such operations. The memo is consisent with an earlier Justice Department memo (see April 8, 2002). Yoo will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [US Department of Justice`, 6/27/2002 pdf file; American Civil Liberties Union [PDF], 1/28/2009 pdf file] The memo ignores the Non-Detention Act, which states, “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress.” [ProPublica, 4/16/2009] It will be made public in early 2009 (see March 2, 2009).

Entity Tags: John C. Yoo, Daniel Bryant, Office of Legal Counsel (DOJ), US Department of Justice

Timeline Tags: Civil Liberties

Instructors from the Joint Personnel Recovery Agency (JPRA), which oversees the military’s Survival, Evasion, Resistance, and Escape (SERE) training program, conduct a training seminar for intelligence officials. JPRA officials, including senior psychologist Bruce Jessen, have proposed a set of interrogation procedures that amounts to torture (see January 2002 and After and April 16, 2002), and the JPRA instructors are now training CIA and other agency officials in those procedures. Two JPRA legal advisers tell the group that such harsh interrogation methodologies are already deemed acceptable, even though the Justice Department has not yet issued such approval (see August 1, 2002). The lawyers tell the seminar participants, “They [interrogators] could use all forms of psychological pressure discussed, and all the physiological pressures with the exception of the ‘water board.’” The lawyers say that waterboarding might also be permitted, but interrogators “would need prior approval.” [Washington Post, 4/22/2009] During the seminar, CIA agents are given two days of training in waterboarding (see July 1-2, 2002). In 2009, the media learns that Jessen and his partner, James Mitchell, are paid $1,000 a day for the training (see April 30, 2009).

Entity Tags: US Department of Justice, James Elmer Mitchell, Central Intelligence Agency, Bruce Jessen, Joint Personnel Recovery Agency

Timeline Tags: Torture of US Captives

John Yoo, a lawyer with the Office of Legal Counsel (OLC), sends a classified memo to White House counsel Alberto Gonzales. The memo’s contents will remain secret, but the American Civil Liberties Union (ACLU) will learn that the memo regards the 1984 Convention Against Torture. According to the memo, the first fifteen articles of the Convention, ratified by the United States almost a decade before, “are non-self executing and place no affirmative obligations on the executive branch.” Furthermore, international law in general “lacks domestic legal effect, and in any event can be overridden by the president,” the memo states. In essence, Yoo concludes that the Convention can be ignored by the president. Yoo will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [United Nations High Commissioner for Human Rights, 12/10/1984; American Civil Liberties Union [PDF], 1/28/2009 pdf file; ProPublica, 4/16/2009]

Entity Tags: John C. Yoo, Alberto R. Gonzales, American Civil Liberties Union, Convention Against Torture, Bush administration (43), US Department of Justice, Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

Justice Department lawyer John Yoo, of the Office of Legal Counsel (OLC), signs off on a secret opinion that approves a long, disturbing list of harsh interrogation techniques proposed by the CIA. The list includes waterboarding, a form of near-drowning that some consider mock execution, and which has been prosecuted as a war crime in the US since at least 1901. The list only forbids one proposed technique: burying a prisoner alive (see February 4-5, 2004). Yoo concludes that such harsh tactics do not fall under the 1984 Convention Against Torture (see October 21, 1994 and July 22, 2002) because they will not be employed with “specific intent” to torture. Also, the methods do not fall under the jurisdiction of the International Criminal Court because “a state cannot be bound by treaties to which it has not consented”; also, since the interrogations do not constitute a “widespread and systematic” attack on civilian populations, and since neither Taliban nor al-Qaeda detainees are considered prisoners of war (see February 7, 2002), the ICC has no purview. The same day that Yoo sends his memo, Yoo’s boss, OLC chief Jay Bybee, sends a classified memo to the CIA regarding the interrogation of al-Qaeda members and including information detailing “potential interrogation methods and the context in which their use was contemplated” (see August 1, 2002). [US Department of Justice, 8/1/2002; Washington Post, 6/25/2007; American Civil Liberties Union [PDF], 1/28/2009 pdf file] Yoo will later claim that he warns White House lawyers, as well as Vice President Cheney and Defense Secretary Donald Rumsfeld, that it would be dangerous to allow military interrogators to use the harshest interrogation techniques, because the military might overuse the techniques or exceed the limitations. “I always thought that only the CIA should do this, but people at the White House and at [the Defense Department] felt differently,” Yoo will later say. Yoo’s words are prophetic: such excessively harsh techniques will be used by military interrogators at Guantanamo, Abu Ghraib, and elsewhere. [Washington Post, 6/25/2007]

Entity Tags: US Department of Defense, Richard (“Dick”) Cheney, Bush administration (43), Central Intelligence Agency, Convention Against Torture, Donald Rumsfeld, Office of Legal Counsel (DOJ), US Department of Justice, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

The interrogation and abuse of suspect Mohamed al-Khatani (sometimes spelled “al-Qahtani”—see February 11, 2008) at Guantanamo Bay begins. He is alleged to have tried to enter the US to participate in the 9/11 plot as the twentieth hijacker. He is classified as “Detainee 063.” He is subjected to 160 days of isolation in a pen flooded 24 hours a day with bright artificial light, that treatment starting well before harsher interrogation tactics begin six weeks later (see November 23, 2002). The tactics include:
bullet He is interrogated for 48 of 54 days, for 18 to 20 hours at a stretch.
bullet He is stripped naked and straddled by taunting female guards, in an exercise called “invasion of space by a female.”
bullet He is forced to wear women’s underwear on his head and to put on a bra.
bullet He is threatened by dogs, placed on a leash, and told that his mother was a whore.
bullet He is stripped naked, shaved, and forced to bark like a dog.
bullet He is forced to listen to American pop music at ear-splitting volume. He is subjected to a phony kidnapping (see Mid-2003).
bullet He is forced to live in a cell deprived of heat
bullet He is given large quantities of intravenous liquids and denied access to a toilet
bullet He is deprived of sleep for days on end.
bullet He is forcibly given enemas, and is hospitalized multiple time for hypothermia.
Impact - Towards the end of the extended interrogation session, Al-Khatani’s heart rate drops so precipitously (to 35 beats a minute) that he is placed under cardiac monitoring. Interrogators meticulously note his reactions to his treatment, and make the following notes at various times: “Detainee began to cry. Visibly shaken. Very emotional. Detainee cried. Disturbed. Detainee began to cry. Detainee bit the IV tube completely in two. Started moaning. Uncomfortable. Moaning. Began crying hard spontaneously. Crying and praying. Very agitated. Yelled. Agitated and violent. Detainee spat. Detainee proclaimed his innocence. Whining. Dizzy. Forgetting things. Angry. Upset. Yelled for Allah. Urinated on himself. Began to cry. Asked God for forgiveness. Cried. Cried. Became violent. Began to cry. Broke down and cried. Began to pray and openly cried. Cried out to Allah several times. Trembled uncontrollably.” In November 2002, an FBI agent describes al-Khatani’s condition, writing that he “was talking to non-existent people, reporting hearing voices, [and] crouching in a corner of the cell covered with a sheet for hours on end.” Al-Khatani confesses to an array of terrorist activities and then recants them; he begs his interrogators to be allowed to commit suicide. The last days of al-Khatani’s interrogation session is particularly intense, since interrogators know that their authorization to use harsh techniques may be rescinded at any time. They get no useful information from him. By the end of the last interrogation, an Army investigator observes that al-Khatani has “black coals for eyes.” [New Yorker, 2/27/2006; Vanity Fair, 5/2008]
Reaching the Threshold - In the summer of 2007, Dr. Abigail Seltzer, a psychiatrist who specializes in trauma victims, reviews the logs of al-Khatani’s interrogations. Seltzer notes that while torture is not a medical concept: “[O]ver the period of 54 days there is enough evidence of distress to indicate that it would be very surprising indeed if it had not reached the threshold of severe mental pain…. If you put 12 clinicians in a room and asked them about this interrogation log, you might get different views about the effect and long-term consequences of these interrogation techniques. But I doubt that any one of them would claim that this individual had not suffered severe mental distress at the time of his interrogation, and possibly also severe physical distress.” Everything that is done to al-Khatani is part of the repertoire of interrogation techniques approved by Secretary of Defense Donald Rumsfeld (see December 2, 2002).
Fundamental Violation of Human Rights - In 2008, law professor Phillippe Sands will write: “Whatever he may have done, Mohammed al-Khatani was entitled to the protections afforded by international law, including Geneva and the torture convention. His interrogation violated those conventions. There can be no doubt that he was treated cruelly and degraded, that the standards of Common Article 3 were violated, and that his treatment amounts to a war crime. If he suffered the degree of severe mental distress prohibited by the torture convention, then his treatment crosses the line into outright torture. These acts resulted from a policy decision made right at the top, not simply from ground-level requests in Guantanamo, and they were supported by legal advice from the president’s own circle.” [Vanity Fair, 5/2008]

Entity Tags: Geneva Conventions, Mohamed al-Khatani, Donald Rumsfeld, Abigail Seltzer, Phillippe Sands

Timeline Tags: Torture of US Captives

Michael H. Mobbs, the special adviser to the undersecretary of defense for policy, files a six-page document asserting that “enemy combatant” Jose Padilla (see June 9, 2002) “has been closely associated with known members and leaders of the al-Qaeda terrorist network”; that he trained at al-Qaeda camps and “met with senior Osama Bin Laden lieutenant Abu Zubaida,” whom he approached “with [a] proposal to conduct terrorist operations within the United States”; and that he talked about a plan “to build and detonate a ‘radiological dispersal device…’ within the United States, possibly in Washington, D.C.” But the document also acknowledges that the “plan” was “still in the initial planning stages.” Finally, the declaration states that “it is believed that al-Qaeda members directed Padilla to return to the United States to conduct reconnaissance and/or other attacks on behalf of al-Qaeda.” The declaration concedes that the evidence on which its assertions are based are not entirely solid, noting that its intelligence sources “have not been completely candid about their association with al-Qaeda and their terrorist activities” and that “some information provided by the sources remains uncorroborated and may be part of an effort to mislead or confuse US officials.” [Fox News, 8/28/2002; Washington Post, 9/1/2002; Newsweek, 6/9/2004]

Entity Tags: Michael H. Mobbs, Jose Padilla

Timeline Tags: Torture of US Captives

Several high-level Bush administration lawyers arrive in Guantanamo. The group includes White House counsel Alberto Gonzales; Vice President Cheney’s chief of staff David Addington, who had helped the Justice Department craft its “torture memo” (see August 1, 2002); CIA legal counsel John Rizzo, who had asked the Justice Department for details about how interrogation methods could be implemented (see June 22, 2004); and the Pentagon’s general counsel, William J. Haynes. They are at Guantanamo to discuss the case of suspected “20th hijacker” Mohamed al-Khatani (see August 8, 2002-January 15, 2003).
Pressure from Washington - The commander of the Guantanamo facility, Major General Michael Dunlavey, will recall: “They wanted to know what we were doing to get to this guy, and Addington was interested in how we were managing it… They brought ideas with them which had been given from sources in DC. They came down to observe and talk.” Dunlavey will say that he was pressured by Defense Secretary Donald Rumsfeld himself to expedite the interrogation and use extraordinary means to squeeze information from the suspect. “I’ve got a short fuse on this to get it up the chain,” Dunlavey recalls. “I was on a timeline. This guy may have been the key to the survival of the US.” Asked how high up the pressure was from, Dunlavey will say, “It must have been all the way to the White House.” Rumsfeld is “directly and regularly involved” in all the discussions of interrogations.
'Do Whatever Needed to Be Done' - Staff judge advocate Lieutenant Colonel Diane Beaver will recall that Addington is “definitely the guy in charge,” taking control of the discussions. Gonzales is quiet. Haynes, a close friend and colleague of Addington’s, seems most interested in how the military commissions would function to try and convict detainees. The lawyers meet with intelligence officials and themselves witness several interrogations. Beaver will recall that the message from Addington and his group is “Do whatever needed to be done.” In essence, the Guantanamo interrogators and commanders are given a green light from the administration’s top lawyers, representing President Bush, Vice President Cheney, Rumsfeld, and the CIA. [Vanity Fair, 5/2008]

Entity Tags: William J. Haynes, US Department of Justice, Mohamed al-Khatani, Michael E. Dunlavey, David S. Addington, Diane E. Beaver, Central Intelligence Agency, Alberto R. Gonzales, Bush administration (43), Richard (“Dick”) Cheney, Donald Rumsfeld, John Rizzo, George W. Bush

Timeline Tags: Torture of US Captives, Civil Liberties

Lieutenant Colonel Diane Beaver, the top legal adviser to the Army’s interrogation unit at Guantanamo, JTF-170, writes a legal analysis of the extreme interrogation techniques being used on detainees. Beaver notes that some of the more savage “counter-resistance” techniques being considered for use, such as waterboarding (the use of which has resulted in courts-martials for users in the past) might present legal problems. She acknowledges that US military personnel at Guantanamo are bound by the Uniform Code of Military Justice, which characterizes “cruelty,” “maltreatment,” “threats,” and “assaults” as felonies. However, she reasons, if interrogators can obtain “permission,” or perhaps “immunity,” from higher authorities “in advance,” they might not be legally culpable. In 2006, a senior Defense Department official calls Beaver’s legal arguments “inventive,” saying: “Normally, you grant immunity after the fact, to someone who has already committed a crime, in exchange for an order to get that person to testify. I don’t know whether we’ve ever faced the question of immunity in advance before.” The official praises Beaver “for trying to think outside the box. I would credit Diane as raising that as a way to think about it.” Beaver will later be promoted to the staff of the Pentagon’s Office of General Counsel, where she will specialize in detainee issues. But Naval General Counsel Alberto Mora is less impressed. When he reads Beaver’s legal analysis two months later (see December 17-18, 2002), he calls it “a wholly inadequate analysis of the law.” According to Mora, the Beaver memo held that “cruel, inhuman, or degrading treatment could be inflicted on the Guantanamo detainees with near impunity.” Such acts are blatantly illegal, Mora believes. Mora will note that Defense Secretary Donald Rumsfeld bases his decision to approve such harsh “counter-resistance” techniques (see December 2, 2002) in part on Beaver’s memo. He will write that Rumsfeld’s decision “was fatally grounded on these serious failures of legal analysis.” Neither Beaver nor Rumsfeld will draw any “bright line” prohibiting the combination of these techniques, or defining any limits for their use. As such, this vagueness of language “could produce effects reaching the level of torture,” which is prohibited without exception both in the US and under international law. [New Yorker, 2/27/2006]
Written under Difficult Circumstances - Beaver later tells a more complete story of her creation of the memo. She insists on a paper trail showing that the authorization of extreme interrogation techniques came from above, not from “the dirt on the ground,” as she describes herself. The Guantanamo commander, Major General Michael Dunlavey, only gives her four days to whip up a legal analysis, which she sees as a starting point for a legal review of the interrogation policies. She has few books and materials, and more experienced lawyers at the US Southern Command, the Judge Advocate General School, the Joint Chiefs of Staff, and the DIA refuse to help her write the analysis. She is forced to write her analysis based on her own knowledge of the law and what she could find on the Internet. She bases her analysis on the previous presidential decision to ignore the Geneva Conventions, later recalling, “It was not my job to second-guess the president.” Knowing little of international law, she ignores that body of law altogether. She fully expects her analysis to be dissected and portions of it overridden, but she is later astonished that her analysis will be used as a legal underpinning for the administration’s policies. She has no idea that her analysis is to be used to provide legal cover for much more senior White House officials (see June 22, 2004). She goes through each of the 18 approved interrogation techniques (see December 2, 2002), assessing them against the standards set by US law, including the Eighth Amendment, which proscribes “cruel and unusual punishment,” the federal torture statutes, and the Uniform Code of Military Justice. Beaver finds that each of the 18 techniques are acceptable “so long as the force used could plausibly have been thought necessary in a particular situation to achieve a legitimate government objective, and it was applied in a good faith effort and not maliciously or sadistically for the very purpose of causing harm.” Law professor Phillippe Sands later observes: “That is to say, the techniques are legal if the motivation is pure. National security justifies anything.” The interrogators must be properly trained, Beaver notes, and any interrogations involving the more severe techniques must “undergo a legal, medical, behavioral science, and intelligence review prior to their commencement.” However, if all of the criteria are met, she “agree[s] that the proposed strategies do not violate applicable federal law.” Sands points out that her use of the word “agree” indicates that she “seems to be confirming a policy decision that she knows has already been made.”
'Awful' but Understandable - Sands later calls her reasoning “awful,” but understands that she was forced to write the memo, and reasonably expected to have more senior legal officials review and rewrite her work. “She could not have anticipated that there would be no other piece of written legal advice bearing on the Guantanamo interrogations. She could not have anticipated that she would be made the scapegoat.” Beaver will recall passing Vice President Cheney’s chief of staff David Addington in a Pentagon hallway shortly after she submitted the memo. Addington smiled at her and said, “Great minds think alike.” [Vanity Fair, 5/2008]

Entity Tags: Michael E. Dunlavey, Donald Rumsfeld, Diane E. Beaver, Defense Intelligence Agency, David S. Addington, Alberto Mora, Geneva Conventions, Judge Advocate General School, US Department of Defense, US Department of the Army, Phillippe Sands, Joint Chiefs of Staff, US Southern Command

Timeline Tags: Torture of US Captives, Civil Liberties

Shortly after the October 11, 2002, request by Guantanamo commander Major General Michael Dunlavey for approval of new, harsh interrogation techniques, and after Guantanamo legal counsel Diane Beaver submitted her analysis justifying the use of those techniques (see October 11, 2002), General James T. “Tom” Hill forwards everything to General Richard Myers, the chairman of the Joint Chiefs of Staff. Hill includes a letter that contains the sentence, “Our respective staffs, the Office of the Secretary of Defense, and Joint Task Force 170 [the Army unit in charge of interrogating Guantanamo detainees] have been trying to identify counter-resistant techniques that we can lawfully employ.” In the letter, Hill is clearly ambivalent about the use of severe interrogation methods. He wants the opinion of senior Pentagon lawyers, and requests that “Department of Justice lawyers review the third category [the most severe] of techniques.” But none of this happens. The Joint Chiefs should have subjected the request to a detailed legal review, including scrutiny by Myers’s own counsel, Jane Dalton, but instead, Pentagon general counsel William J. Haynes short-circuits the approval process. Navy General Counsel Alberto Mora recalls Dalton telling him: “Jim pulled this away. We never had a chance to complete the assessment.” Myers later recalls being troubled that the normal procedures had been circumvented. Looking at the “Haynes Memo,” Myers will point out, “You don’t see my initials on this.” He notes that he “discussed it,” but never signed off on it. “This was not the way this should have come about.” Myers will come to believe that there was “intrigue” going on “that I wasn’t aware of, and Jane wasn’t aware of, that was probably occurring between [William J.] Haynes, White House general counsel [Alberto Gonzales], and Justice.” Instead of going through the proper channels, the memo goes straight to Haynes, who merely signs off with a note that says, “Good to go.” [Vanity Fair, 5/2008]

Entity Tags: Joint Chiefs of Staff, US Department of Justice, Diane E. Beaver, Alberto R. Gonzales, Alberto Mora, James T. Hill, Jane Dalton, Richard B. Myers, Michael E. Dunlavey, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

The new commander at the Guantanamo detention facility, General Geoffrey Miller, receives a “voco”—a vocal command—to begin aggressively interrogating suspected “20th hijacker” Mohamed al-Khatani (see August 8, 2002-January 15, 2003). This is well before Defense Secretary Donald Rumsfeld gives written authorization for these techniques to be used (see November 27, 2002 and December 2, 2002), but after the request had been submitted for approval (see October 11, 2002). Considering Miller’s rank, it seems unlikely that anyone lower in the chain of command than Rumsfeld would have issued the order, and Rumsfeld is unlikely to make such a “voco” without the support of Pentagon general counsel William J. Haynes. The interrogation log of al-Khatani for November 23 indicates the immediate effect of the “voco”: “The detainee arrives at the interrogation booth. His hood is removed and he is bolted to the floor.” [Vanity Fair, 5/2008]

Entity Tags: William J. Haynes, Donald Rumsfeld, Mohamed al-Khatani, Geoffrey D. Miller

Timeline Tags: Torture of US Captives

James T. Hill.James T. Hill. [Source: Defense Department]Department of Defense General Counsel William J. Haynes sends Defense Secretary Donald Rumsfeld an “action memo” to approve a set of interrogation tactics for use. The techniques are to be used at the discretion of General James T. Hill, commander of the US Southern Command, and are those previously classified in Categories I and II, and the “mild, non-injurious contact” techniques from Category III that were suggested by the Guantanamo legal staff (see October 25, 2002). The mildest techniques, Category I, can be used by interrogators at will and include yelling and mild forms of deception. Category II techniques are to be approved by an “interrogator group director,” and include the use of stress positions for up to four hours; use of falsified documents; isolation of a detainee for up to thirty days; sensory deprivation and hooding; twenty-hour interrogations; removal of hygiene and religious items; enforced removal of clothing (stripping); forced grooming, including the shaving of beards; and playing on detainees’ phobias, such as a fear of dogs, to induce stress and break resistance. With regard to the remaining harsh techniques in Category III—physical contact, death threats, and use of wet towels (waterboarding)—Haynes writes that they “may be legally available [but] as a matter of policy, a blanket approval… is not warranted at this time.” Haynes mentions having discussed the matter with “the deputy, Doug Feith and General Myers,” who, he believes, join him in the recommendation. He adds, “Our armed forces are trained to a standard of interrogation that reflects a tradition of restraint.” [Human Rights Watch, 8/19/2004] Rumsfeld will sign the so-called “Haynes Memo” (see December 2, 2002), and add the following handwritten comment: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?” [Vanity Fair, 5/2008]

Entity Tags: James T. Hill, Donald Rumsfeld, Douglas Feith, Richard B. Myers, William J. Haynes

Timeline Tags: Torture of US Captives

The Pentagon informs the FBI that it will again take over interrogations of Guantanamo detainee Mohamed al-Khatani, believing that the use of aggressive techniques, which are about to be authorized by Defense Secretary Donald Rumsfeld (see November 27, 2002), will be more successful. [New York Times, 6/21/2004] However, the first tactic used against al-Khatani is a subtle one. According to the detention logs of al-Khatani, or “Detainee 063,” his interrogators suggest that he has been spared by Allah to reveal the true meaning of the Koran and to help bring down Osama bin Laden. During a routine medical check, a sergeant whispers to al-Khatani: “What is God telling you right now? Your 19 friends died in a fireball and you weren’t with them. Was that God’s choice? Is it God’s will that you stay alive to tell us about his message?” Al-Khatani reacts violently to the exhortation, throwing his head back and butting the sergeant in the eye. Two MPs wrestle him to the ground, and as al-Khatani thrashes and tries to spit on the sergeant, he crouches down next to the prisoner and says: “Go ahead and spit on me. It won’t change anything. You’re still here. I’m still talking to you and you won’t leave until you’ve given God’s message.” [Time, 6/12/2005]

Entity Tags: Mohamed al-Khatani

Timeline Tags: Torture of US Captives

David Brant, the head of the Naval Criminal Investigative Service (NCIS), learns disturbing information about detainees in US custody being abused at the Guantanamo detention facility. Brant is in charge of a team of NCIS agents working with the FBI at Guantanamo, called the Criminal Investigative Task Force. The task force’s job is to obtain incriminating information from the detainees for use in future trials or tribunals. Brant, an experienced law enforcement officer, finds what his task force agents tell him about interrogations at Guantanamo troubling. According to his agents, who have examined the interrogation logs, the military intelligence interrogators seem poorly trained and frustrated by their lack of success. Brant learns that the interrogators are engaging in ever-escalating levels of physical and psychological abuse, using tactics that Brant will later describe as “repugnant.” Much of his information comes from NCIS psychologist Michael Gelles, who has access to the Army’s top-secret interrogation logs at Guantanamo. [New Yorker, 2/27/2006; Vanity Fair, 5/2008] Gelles learned of the torture techniques being used at Guantanamo while reading through those logs for an internal study. He is taken aback at what author and reporter Charlie Savage will later call “a meticulously bureaucratic, minute-by-minute account of physical torments and degradation being inflicted on prisoners by American servicemen and women.” [Savage, 2007, pp. 178] Brant will later recall that Gelles “is phenomenal at unlocking the minds of everyone from child abusers to terrorists.” Therefore, when Gelles tells Brant that he finds the logs “shocking,” Brant takes it seriously. One of the most horrific cases is that of Mohamed al-Khatani (see December 17, 2002). [New Yorker, 2/27/2006; Vanity Fair, 5/2008] Brant says that NCIS will pull its interrogators out of Guantanamo if the abuses continue, and goes to the Navy’s general counsel, Alberto Mora, for help (see December 17-18, 2002). [Savage, 2007, pp. 178]

Entity Tags: Michael Gelles, David Brant, Mohamed al-Khatani, Alberto Mora, Charlie Savage, Naval Criminal Investigative Service

Timeline Tags: Torture of US Captives, Civil Liberties

Rumsfeld’s handwritten note at the bottom of the memo he signs: “However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?”Rumsfeld’s handwritten note at the bottom of the memo he signs: “However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?” [Source: HBO]Defense Secretary Donald Rumsfeld approves General Counsel William J. Haynes’ recommendations for interrogations methods (see November 27, 2002) and signs the action memo. [Associated Press, 6/23/2004] He adds in handwriting: “However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?” In signing the memo, Rumsfeld adds for use at Guantanamo Bay 16 more aggressive interrogation procedures to the 17 methods that have long been approved as part of standard US military practice. [New York Times, 8/25/2004] The additional methods, like interrogation sessions of up to 20 hours at a time and the enforced shaving of heads and beards, are otherwise prohibited under US military doctrine. [MSNBC, 6/23/2004]

Entity Tags: William J. Haynes, Donald Rumsfeld

Timeline Tags: Torture of US Captives

David Brant, the head of the Naval Criminal Investigative Service (NCIS), approaches Naval General Counsel Alberto Mora about the abuse of detainees in US custody at Guantanamo, abuse perhaps authorized at a “high level” in Washington. Brant is in charge of a team of NCIS agents working with the FBI at Guantanamo, called the Criminal Investigative Task Force. The task force’s job is to obtain incriminating information from the detainees for use in future trials or tribunals.
Troubling Information - Brant has learned troubling information about the interrogations at Guantanamo (see Early December, 2002). Brant had never discussed anything so sensitive with Mora before, and later recalls, “I wasn’t sure how he would react.” Brant had already discussed the allegations of abuse with Army officials, since they have command authority over the detainees, and to Air Force officials as well, but goes to Mora after deciding that no one in either branch seems to care. He is not hopeful that Mora will feel any differently.
Worried about Abuse - Brant goes to Mora because, he will recall, he didn’t want his investigators to “in any way observe, condone, or participate in any level of physical or in-depth psychological abuse. No slapping, deprivation of water, heat, dogs, psychological abuse. It was pretty basic, black and white to me.… I didn’t know or care what the rules were that had been set by the Department of Defense at that point. We were going to do what was morally, ethically, and legally permissible.” Brant had ordered his task force members to “stand clear and report” any abusive tactics that they might witness.
Mora 'Rocked' - Brant is not disappointed in Mora’s reactions. A military official who works closely with Brant will later recall that the news “rocked” Mora. The official will add that Mora “was visionary about this,” adding, “He quickly grasped the fact that these techniques in the hands of people with this little training spelled disaster.” Brant asks if Mora wants to hear more about the situation; Mora will write in a 2004 memo (see July 7, 2004), “I responded that I felt I had to.”
Second Meeting - Brant meets with Mora the next day, and shows Mora part of the transcript of the [Mohamed al-Khatani] interrogations. Mora is shocked when Brant tells him that the abuse was not “rogue activity,” but apparently sanctioned by the highest levels in the Bush administration. Mora will write in his memo, “I was under the opinion that the interrogation activities described would be unlawful and unworthy of the military services.” Mora will recall in a 2006 interview: “I was appalled by the whole thing. It was clearly abusive, and it was clearly contrary to everything we were ever taught about American values.” Shocked, Mora will learn more from his counterpart in the Army (see December 18, 2002), and determine that the abusive practices need to be terminated.
Meeting with Pentagon Lawyer - He will bring his concerns to the Pentagon’s general counsel, William J. Haynes, and will leave that meeting hopeful that Haynes will put an end to the extreme measures being used at Guantanamo (see December 20, 2002). But when Mora returns from Christmas vacation, he will learn that Haynes has done nothing. Mora will continue to argue against the torture of detainees (see Early January, 2003). [New Yorker, 2/27/2006; Vanity Fair, 5/2008]

Entity Tags: William J. Haynes, David Brant, Alberto Mora, Naval Criminal Investigative Service, US Department of Defense

Timeline Tags: Torture of US Captives, Civil Liberties

Naval General Counsel Alberto Mora, concerned about information he has learned about detainee abuse at Guantanamo (see December 17-18, 2002), calls his friend Steven Morello, the Army’s general counsel, and asks if he knows anything about the subject. Morello replies: “I know a lot about it. Come on down.”
'The Package' - In Morello’s office, Mora views what he calls “the package”—a collection of secret military documents that outline the origins of the coercive interrogation policies at Guantanamo. It begins with a request to use more aggressive interrogation tactics at Guantanamo (see October 11, 2002). Weeks later, the new head of the detention facility, Major General Geoffrey Miller, pushes senior Pentagon officials for more leeway in interrogations. On December 2, Defense Secretary Donald Rumsfeld gave his approval for the use of several more intensive interrogation tactics, including the use of “hooding,” “exploitation of phobias,” “stress positions,” “deprivation of light and auditory stimuli,” and other coercive methods forbidden from use by the Army Field Manual (see December 2, 2002). Rumsfeld does withhold his approval on the use of some methods such as waterboarding.
'Ashen-faced' - Morello tells Mora, “we tried to stop it,” but was told not to ask questions. A participant in the meeting recalls that Mora was “ashen-faced” when he read the package. According to Mora’s memo, Morello, “with a furtive air,” says: “Look at this. Don’t tell anyone where you got it.” Mora later says, “I was astounded that the secretary of defense would get within 100 miles of this issue.” (Morello will later deny showing Mora a copy of the memo.) Mora is similarly unimpressed by another document in the package, a legal analysis by Army lawyer Diane Beaver (see October 11, 2002), which he says will lead to the use of illegal torture by interrogators.
'Force Drift' - Naval Criminal Investigative Service (NCIS) psychologist Michael Gelles (see Early December, 2002) joins the meeting, and tells Mora that the Guantanamo interrogators are under intense pressure to achieve results. He tells Mora about the phenomenon of “force drift,” where interrogators using coercion begin to believe that if some force achieves results, then more force achieves better results. Mora determines to take action to bring the abuse to a close (see December 20, 2002). [New Yorker, 2/27/2006; Vanity Fair, 5/2008]

Entity Tags: Steven Morello, Naval Criminal Investigative Service, Alberto Mora, US Department of the Army, Donald Rumsfeld, Michael Gelles, Geoffrey D. Miller, US Department of Defense

Timeline Tags: Torture of US Captives, Civil Liberties

Alberto Mora, the Navy’s general counsel, has learned that possibly illegal interrogation techniques are being used against Guantanamo Bay detainees (see December 17-18, 2002). After getting the authorization of Gordon England, the secretary of the Navy, Mora meets with the Pentagon’s general counsel, William J. Haynes, in Haynes’s Pentagon office.
Meeting with Pentagon Counsel - In 2006, Mora will recall telling Haynes in the meeting that whatever its intent, Defense Secretary Donald Rumsfeld’s decision to allow extreme interrogation techniques (see December 2, 2002) is “torture.” Haynes replies, “No, it isn’t.” Mora asks Haynes to reconsider his opinions. For example, what does “deprivation of light and auditory stimuli” mean? Detention in a completely dark cell? For how long? Until he goes blind? And what does the phrase “exploitation of phobias” entail? Could it mean holding a detainee in a coffin? Threatening him with dogs, or rats? Can an interrogator drive a detainee insane? Mora notes that at the bottom of Rumsfeld’s memo, he asks why a detainee can be forced to stand for no longer than four hours a day when he himself often stands “for 8-10 hours a day.” While Rumsfeld may have intended to be humorous, Mora notes that Rumsfeld’s comment could be used as a defense argument in future terrorist trials. (In 2006, Lawrence Wilkerson will say of Rumsfeld’s comment: “It said, ‘Carte blanche, guys.’ That’s what started them down the slope. You’ll have My Lais then. Once you pull this thread, the whole fabric unravels.”) Mora leaves the office hoping that Haynes will come around to his point of view and convince Rumsfeld to withdraw the memo. He will be sharply disappointed (see July 7, 2004). [New Yorker, 2/27/2006] He later calls the interrogation practices “unlawful and unworthy of the military services.” [Savage, 2007, pp. 179]
Haynes Close to Cheney's Office - Mora may not be aware that in meeting with Haynes, he is also in effect engaging the office of Vice President Dick Cheney. Haynes is a protege of Cheney’s neoconservative chief of staff, David Addington. Haynes worked as Addington’s special assistant when Addington served under then-Defense Secretary Cheney in 1989, and Addington promoted Haynes to the office of general counsel of the Army. When George W. Bush took office in 2001, Haynes was awarded the position of the Pentagon’s general counsel. Addington has played key roles in almost all of the administration’s legal arguments in favor of extreme interrogation techniques and detainee policies. One former government lawyer will describe Addington as “the Octopus” because his hands seem to reach into every legal issue. Many of Haynes’s colleagues know that information moves rapidly between Haynes’s and Cheney’s offices. While not a hardline neoconservative like Addington and many other Cheney staffers, Haynes is, as one former Pentagon colleague will call him, “pliant” to serving the agenda of the vice president. [New Yorker, 2/27/2006]

Entity Tags: Alberto Mora, Gordon England, David S. Addington, William J. Haynes, Lawrence Wilkerson, Donald Rumsfeld, US Department of Defense, George W. Bush, Richard (“Dick”) Cheney

Timeline Tags: Torture of US Captives, Civil Liberties

Alberto Mora, the Navy’s general counsel, learns to his dismay that the torturing and abuse of prisoners at Guantanamo Bay is continuing (see December 17-18, 2002), even after a meeting with the Pentagon’s chief counsel, William J. Haynes. Mora had hoped that Haynes would put a stop to the extreme techniques being used (see December 20, 2002). Mora has read an article in the Washington Post detailing allegations of CIA mistreatment of prisoners at Bagram Air Force Base in Afghanistan; the story notes that the director of Human Rights Watch, Kenneth Roth, believes that US officials who knew about such treatment could be charged with crimes under the doctrine of command responsibility. [Washington Post, 12/26/2002; New Yorker, 2/27/2006] The specific allegations detailed in the story closely parallel what Mora knows were authorized at Guantanamo Bay. Mora continues to argue against the intense interrogation techniques, and his arguments quickly reach the ears of top Pentagon officials such as Deputy Defense Secretary Paul Wolfowitz; Captain Jane Dalton, the legal adviser to the Joint Chiefs of Staff; Pentagon spokeswoman Victoria Clarke; and Defense Secretary Donald Rumsfeld, who had authorized harsh interrogation techniques at Guantanamo a month before (see December 2, 2002). [New Yorker, 2/27/2006]

Entity Tags: Victoria (“Torie”) Clarke, Kenneth Roth, Alberto Mora, Paul Wolfowitz, Central Intelligence Agency, Jane Dalton, Donald Rumsfeld, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

Alberto Mora, the Navy’s general counsel, meets for a second time with Pentagon general counsel William J. Haynes, who he had tried unsuccessfully to convince to join him in opposing the use of extreme interrogation methods at Guantanamo (see December 20, 2002). Mora will write in a June 2004 memo (see July 7, 2004) that when he tells Haynes how disappointed he is that nothing has been done to stop abuse at Guantanamo, Haynes retorts that “US officials believed the techniques were necessary to obtain information,” and that the interrogations might prevent future attacks against the US and save American lives. Mora acknowledges that he can imagine any number of “ticking bomb” scenarios where it might be the proper, if not the legal, thing to torture suspects. But, he asks, how many lives must be saved to justify torture? Hundreds? Thousands? Where do we draw the line? Shouldn’t there be a public debate on the issue? Mora is doubtful that anyone at Guantanamo would be involved in such a scenario, since almost all of the Guantanamo detainees have been in custody for over a year. He also warns Haynes that the legal opinions the administration is using will probably not stand up in court. If that is the case, then US officials could face criminal charges. Secretary of Defense Donald Rumsfeld could find himself in court; the presidency itself could be damaged. “Protect your client!” he says. When Haynes relates Mora’s concerns to Rumsfeld, according to a former administration official, Rumsfeld responds with jokes about how gentle the interrogation techniques are. “Torture?” he asks rhetorically. “That’s not torture!” He himself stands for up to ten hours a day, he says, and prisoners are not allowed to stand for over four. The official will recall, “His attitude was, ‘What’s the big deal?’” Mora continues to push his arguments, but, as a former Pentagon colleague will recall: “people were beginning to roll their eyes. It was like, ‘Yeah, we’ve already heard this.’” [New Yorker, 2/27/2006]

Entity Tags: William J. Haynes, Alberto Mora, US Department of Defense, Donald Rumsfeld

Timeline Tags: Torture of US Captives, Civil Liberties

A Special Mission Unit (SMU) Task Force lawyer in Afghanistan (see Early 2002) writes in a classified legal review that Defense Secretary Donald Rumsfeld’s authorization of harsh interrogation methods (see December 2, 2002) “provides us the most persuasive argument for use of ‘advanced techniques’ as we capture possible [high value targets]… the fact that SECDEF [Rumsfeld] approved the use of the… techniques at GTMO [Guantanamo], [which is] subject to the same laws, provides an analogy and basis for use of these techniques [in accordance with] international and US law.” [Huffington Post, 4/21/2009]

Entity Tags: Donald Rumsfeld

Timeline Tags: Torture of US Captives

Pentagon General Counsel William J. Haynes reportedly meets with Defense Secretary Donald Rumsfeld to discuss concerns over the use of interrogation techniques at Guantanamo that were approved by Rumsfeld in December (see December 2, 2002). Rumsfeld, according to Dell’Orto, calls Gen. James T. Hill and suspends the use of the category two and the single category three technique. [Washington File, 6/23/2004]

Entity Tags: William J. Haynes, Donald Rumsfeld, James T. Hill, Daniel J. Dell’Orto

Timeline Tags: Torture of US Captives

The Navy’s general counsel, Alberto Mora, is angered at the lack of response to his attempts to persuade the Pentagon to stop abusing prisoners at Guantanamo and is particularly frustrated with the Pentagon’s general counsel, William J. Haynes (see December 20, 2002 and January 9, 2003 and After). Mora decides to take a step that he knows will antagonize Haynes, who always warns subordinates never to put anything controversial in writing or in e-mail messages. Mora delivers an unsigned draft memo of his objections to Haynes, and tells him that he intends to “sign it out” that afternoon—thereby making it an official document—unless the harsh interrogation techniques at Guantanamo stop. Mora’s memo describes the interrogations at Guantanamo as “at a minimum cruel and unusual treatment, and, at worst, torture.”
'Working Group to Be Created - Haynes calls Mora later that day with good news: Defense Secretary Donald Rumsfeld is suspending his authorization of the disputed interrogation techniques (see December 2, 2002) and is appointing a “working group” of lawyers from all branches of the armed forces to develop new interrogation guidelines. Mora will be a part of that working group. An elated Mora begins working with the group of lawyers to discuss the constitutionality and effectiveness of various interrogation techniques. In 2006, he will say that he felt “no one would ever learn about the best thing I’d ever done in my life.”
Mora Outmaneuvered - But Haynes has outmaneuvered Mora. A week later, Mora sees a lengthy classified document that negates every argument he has made. Haynes has already solicited a second, overarching opinion from John Yoo, a lawyer at the Justice Department’s Office of Legal Counsel, that supersedes Mora’s working group (see January 9, 2002). Mora is astonished (see January 23-Late January, 2003). He will later learn that the working group’s report will be forced to comply with Yoo’s legal reasoning. In fact, the group’s final report is never completed—though the draft report, which follows Yoo’s memo, is signed by Rumsfeld without Mora’s knowledge. [New Yorker, 2/27/2006] Mora later says that while Yoo’s memo displays a “seeming sophistication,” it is “profoundly in error,” contradicting both domestic law and international treaties. Mora and the other “dissident” members of the working group are led to believe that the report has been abandoned. [Savage, 2007, pp. 181] He will learn about Rumsfeld’s signature on the draft report while watching C-SPAN in mid-2004. [New Yorker, 2/27/2006; Savage, 2007, pp. 189]

Entity Tags: US Department of Defense, US Department of Justice, Alberto Mora, John C. Yoo, Office of Legal Counsel (DOJ), Donald Rumsfeld, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

The Navy’s general counsel, Alberto Mora, is shocked when he reads a legal opinion drafted by John Yoo, of the Justice Department’s Office of Legal Counsel, about techniques that can be used in prisoner interrogations (see January 9, 2002). Mora has been fighting the use of questionable techniques and was part of a working group that was reviewing them (see January 15-22, 2003). The opinion was sought by Pentagon general counsel William J. Haynes and not only counters every legal and moral argument Mora has brought to bear, but supersedes the working group. Only one copy of the opinion exists, kept in the office of the Air Force’s general counsel, Mary Walker, the head of the working group.
'Catastrophically Poor Legal Reasoning' - Mora reads it in Walker’s office with mounting horror. The opinion says nothing about prohibiting cruel, degrading, and inhuman treatment of detainees; in fact, it defends such tactics. While sophisticated, it displays “catastrophically poor legal reasoning,” he will later recall. Mora believes that it approaches the level of the notorious Supreme Court decision in Korematsu v. United States, the 1944 decision that upheld the government’s detention of innocent Japanese-Americans during World War II. Mora is not aware that Yoo, like Haynes, is a member of an informal but extremely powerful “inner circle” dominated by David Addington, the chief of staff for Vice President Cheney. In fact, Yoo and Haynes are regular racquetball partners. Like Addington and Cheney, Yoo believes in virtually unrestricted executive powers during a time of war. Yoo wrote that almost any interrogation methods used against terror suspects is legally permissible, an argument that shocks Mora.
Mora's Response - In his June 2004 memo on the subject (see July 7, 2004), Mora will write, “The memo espoused an extreme and virtually unlimited theory of the extent of the President’s Commander-in-Chief authority.” Yoo’s reasoning is “profoundly in error,” Mora concludes, and is “clearly at variance with applicable law.” In 2006, Mora will add, “If everything is permissible, and almost nothing is prohibited, it makes a mockery of the law.” He writes to Walker shortly thereafter, saying that not only is Yoo’s opinion “fundamentally in error” but “dangerous,” because it has the weight of law and can only be reversed by the Attorney General or the President. Walker writes back that she disagrees, and she believes Haynes does as well. Two weeks later, Mora will discuss the memo with Yoo (see February 6, 2003). [New Yorker, 2/27/2006]

Entity Tags: William J. Haynes, David S. Addington, Alberto Mora, John C. Yoo, Mary L. Walker, Office of Legal Counsel (DOJ), Richard (“Dick”) Cheney, US Department of Defense, US Department of Justice

Timeline Tags: Torture of US Captives, Civil Liberties

A Special Mission Unit (SMU) Task Force designated to leave Afghanistan and deploy to Iraq receives a copy of the SMU interrogation policy from Afghanistan that includes torture methods for use against detainees (see January 11, 2003). The SMU Task Force changes the letterhead and adopts the policy verbatim. [Huffington Post, 4/21/2009]

Timeline Tags: Torture of US Captives, Civil Liberties

Alberto Mora, the Navy’s general counsel, invites Justice Department lawyer John Yoo to his office to discuss Yoo’s recent memo defending the legality of extreme interrogation techniques used against terror suspects (see January 9, 2002). Mora has been working to put an end to such tactics at the Pentagon, but was horrified when his supervisor, Pentagon general counsel William Haynes, outflanked him with the Yoo memo (see January 23-Late January, 2003). Mora wants to know if Yoo believes cruel, inhuman or degrading treatment can be allowed at Guantanamo, and if that the president’s authority to order torture is virtually unlimited. During the meeting with Yoo, Mora asks him, “Are you saying the President has the authority to order torture?” Yoo replies, “Yes.” “I don’t think so,” Mora retorts. “I’m not talking policy,” Yoo replies, “I’m just talking about the law.” Mora responds, “Well, where are we going to have the policy discussion, then?” Yoo has no idea. Perhaps it will take place within the Pentagon, where the defense-policy experts are. Mora knows that no such discussion will ever take place; the Bush administration will use Yoo’s memo to justify its support of torture. [New Yorker, 2/27/2006; Washington Post, 4/2/2008]

Entity Tags: William J. Haynes, John C. Yoo, Alberto Mora, Bush administration (43)

Timeline Tags: Torture of US Captives, Civil Liberties

The Justice Department sends a legal memorandum to the Pentagon that claims federal laws prohibiting torture, assault, maiming, and other crimes do not apply to military interrogators questioning al-Qaeda captives because the president’s authority as commander in chief overrides the law. The 81-page memo, written by the Office of Legal Counsel’s John Yoo, is not publicly revealed for over five years (see April 1, 2008).
President Can Order Maiming, Disfigurement of Prisoners - Yoo writes that infractions such as slapping, shoving, and poking detainees do not warrant criminal liability. Yoo goes even farther, saying that the use of mind-altering drugs can be used on detainees as long as they do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.” [John C. Yoo, 3/14/2003 pdf file; Washington Post, 4/2/2008] Yoo asks if the president can order a prisoner’s eyes poked out, or if the president could order “scalding water, corrosive acid or caustic substance” thrown on a prisoner. Can the president have a prisoner disfigured by slitting an ear or nose? Can the president order a prisoner’s tongue torn out or a limb permanently disabled? All of these assaults are noted in a US law prohibiting maiming. Yoo decides that no such restrictions exist for the president in a time of war; that law does not apply if the president deems it inapplicable. The memo contains numerous other discussions of various harsh and tortuous techniques, all parsed in dry legal terms. Those tactics are all permissible, Yoo writes, unless they result in “death, organ failure, or serious impairment of bodily functions.” Some of the techniques are proscribed by the Geneva Conventions, but Yoo writes that Geneva does not apply to detainees captured and accused of terrorism. [Washington Post, 4/6/2008]
'National Self-Defense' - Yoo asserts that the president’s powers as commander in chief supersede almost all other laws, even Constitutional provisions. “If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al-Qaeda terrorist network,” Yoo writes. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.… Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute would be unconstitutional as applied in this context.” Interrogators who harmed a prisoner are protected by a “national and international version of the right to self-defense.” He notes that for conduct during interrogations to be illegal, that conduct must “shock the conscience,” an ill-defined rationale that will be used by Bush officials for years to justify the use of waterboarding and other extreme interrogation methods. Yoo writes, “Whether conduct is conscience-shocking turns in part on whether it is without any justification,” explaining that that it would have to be inspired by malice or sadism before it could be prosecuted.
Memo Buttresses Administration's Justifications of Torture - The Justice Department will tell the Defense Department not to use the memo nine months later (see December 2003-June 2004), but Yoo’s reasoning will be used to provide a legal foundation for the Defense Department’s use of aggressive and potentially illegal interrogation tactics. The Yoo memo is a follow-up and expansion to a similar, though more narrow, August 2002 memo also written by Yoo (see August 1, 2002). Defense Secretary Donald Rumsfeld will suspend a list of aggressive interrogation techniques he had approved, in part because of Yoo’s memo, after an internal revolt by Justice Department and military lawyers (see February 6, 2003, Late 2003-2005 and December 2003-June 2004). However, in April 2003, a Pentagon working group will use Yoo’s memo to endorse the continued use of extreme tactics. [John C. Yoo, 3/14/2003 pdf file; Washington Post, 4/2/2008; New York Times, 4/2/2008]
Justice Department Claims Attorney General Knows Nothing of Memo - Yoo sends the memo to the Pentagon without the knowledge of Attorney General John Ashcroft or Ashcroft’s deputy, Larry Thompson, senior department officials will say in 2008. [Washington Post, 4/4/2008]

Entity Tags: US Department of Justice, John C. Yoo, Larry D. Thompson, Al-Qaeda, Office of Legal Counsel (DOJ), Donald Rumsfeld, John Ashcroft, Geneva Conventions, US Department of Defense

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Jamal Naseer, an 18-year old newly recruited Afghan soldier, dies in US custody, apparently as a result of beating and torture. Naseer dies after several days in detention at a US Special Forces “firebase,” a small, outlying military base set up to support advancing troops, at Gardez, Afghanistan. [CBS News, 9/21/2004] Naseer and seven other detainees were taken into custody about a week before by Special Forces troops attempting to secure the area from the depredations of a local warlord, Pacha (or Bacha) Khan. Naseer’s brother Ahmad insists that he, his brother, and the other detainees are allies of the Americans, and never participated in Taliban- or al-Qaeda-led attacks against American forces. [Los Angeles Times, 9/25/2006] It is unclear why the men were detained in the first place, but Los Angeles Times reporters Craig Pyes and Mark Mazzetti report that according to an Afghan intelligence report. “the action was requested by a provincial governor feuding with local military commanders.” [Los Angeles Times, 9/21/2004] Naseer’s death will be officially recorded as resulting from “natural causes,” but fellow detainees will say that Naseer’s death was caused by abuse suffered at the hands of US Army Special Forces soldiers near Gardez. Ahmad Naseer will later describe how he and his brother were beaten and abused while in custody, subjected to electric shocks, immersed in cold water, forced to assume stress positions, thrashed with cables, suffered the forcible tearing off of their toenails, and made to lie for hours in the snow. The last time he spoke with his brother, he says Jamal was “moaning about the pain in his kidneys and back” from being repeatedly beaten. [Los Angeles Times, 9/25/2006] Jamal died shortly thereafter while being helped outside to relieve himself by two Afghan kitchen workers. [Los Angeles Times, 9/21/2004] After Naseer’s death, the unit holds a meeting to discuss the incident. The team is told that Naseer died of a sex-related infection that shut down his kidneys. According to one soldier in the meeting, the point of discussion is “to make sure everybody’s on the same sheet of paper—this is what happened to the man”—in case there’s ever an investigation. Captain Craig Mallak, medical examiner for the US armed forces, says that Naseer’s death is never reported to his office (any death of a detainee is required to be reported unless the detainee is determined to have died of natural causes). Naseer’s body is transferred to a civilian hospital where no autopsy is performed. One hospital worker who prepares the body for burial will later tell the Times that Naseer’s body was “completely black” from bruising and injuries, and was “completely swollen, as were his palms, and the soles of his feet were swollen double in size.” [Los Angeles Times, 9/25/2006] Asked about such injuries, Dr. Michael Baden, a prominent forensic pathologist who works for the New York State Police, says the descriptions are inconsistent with death by organ failure. “You can’t confuse those. It sounds very much like blunt trauma.” A local physician who examined the survivors later confirmed that all of the men were suffering from similar trauma, with extensive bruising and seeping, and unbandaged wounds. [Los Angeles Times, 9/25/2006] Eventually, Ahmad Naseer and his comrades are secretly transferred to a civilian prison in Kabul, still without any formal charges. Afghan military prosecutors immediately launch an investigation into their unexplained detention. That inquiry eventually produces a 117-page report asserting that the detainees had been tortured and that there is a “strong probability” that one of the men had been “murdered.” The report speculates that the prolonged imprisonment was intended to give the detainees’ wounds time to heal. Fifty-eight days later, all of the prisoners are released; no charges are ever filed. [Los Angeles Times, 9/25/2006]

Entity Tags: Taliban, US Special Forces, Michael Baden, Pacha Khan, Al-Qaeda, Jamal Naseer, Ahmad Naseer, Craig Mallak

Timeline Tags: Torture of US Captives, War in Afghanistan

March 19, 2003: US and Partners Invade Iraq

A building in Baghdad is bombed during the US invasion of Iraq.A building in Baghdad is bombed during the US invasion of Iraq. [Source: Reuters]The US begins its official invasion of Iraq (see (7:40 a.m.) March 19, 2003). While most observers expect a traditional air assault, the US planners instead launch what they call a “Shock and Awe” combination of air and ground assaults designed to avoid direct confrontations with Iraqi military forces and instead destroy Iraqi military command structures. [CNN, 3/20/2003; CNN, 3/20/2003; Unger, 2007, pp. 302] The initial invasion force consists of 250,000 US forces augmented by 45,000 British troops and small contingents from Poland, Australia, and Denmark, elements of the so-called “coalition of the willing.” [BBC, 3/18/2003; Unger, 2007, pp. 302]

Entity Tags: United States

Timeline Tags: Complete 911 Timeline, Events Leading to Iraq Invasion, Iraq under US Occupation

The Justice Department advises in a set of legal memorandums that if “government officials… are contemplating procedures that may put them in violation of American statutes that prohibit torture, degrading treatment or the Geneva Conventions, they will not be responsible if it can be argued that the detainees are formally in the custody of another country.” That is because, according to one official, “It would be the responsibility of the other country.” The memos seem to suggest that top government officials may be concerned that they are in violation of international laws. One administration figure involved in discussions about the memos tells the New York Times in May 2004: “The criminal statutes only apply to American officials. The question is how involved are the American officials.” [New York Times, 5/13/2004]

Timeline Tags: Torture of US Captives, Civil Liberties

In a report, the Pentagon working group (see January 15, 2003) recommends the adoption of 35 interrogation techniques. Twenty-six of them are recommended for use in interrogations of all unlawful combatants held outside the US. The remaining nine are considered “exceptional” and recommended for use only on unlawful combatants suspected of holding “critical intelligence.” The advice is clearly not for the public eye. “Should information regarding the use of more aggressive interrogation techniques than have been used traditionally by US forces become public,” the panel warns in its report, “it is likely to be exaggerated or distorted in the US and international media accounts, and may produce an adverse effect on support for the war on terrorism.” [MSNBC, 6/23/2004]

Entity Tags: US Department of Defense

Timeline Tags: Torture of US Captives

Defense Secretary Donald Rumsfeld signs a memo on interrogation methods approving 24 of the 35 techniques recommended by the Pentagon working group (see April 4, 2003) earlier in the month. The new set of guidelines, to be applied to prisoners at Guantanamo and Afghanistan, is a somewhat softer version of the initial interrogation policy that Rumsfeld approved in December 2002 (see December 2, 2002). [Roth and Malinowski, 5/3/2004; Washington Post, 5/11/2004; Age (Melbourne), 5/13/2004; Washington Post, 5/13/2004; Los Angeles Times, 5/22/2004; Newsweek, 5/24/2004; Wall Street Journal, 6/7/2004; MSNBC, 6/23/2004; Truthout (.org), 6/28/2004] Several of the techniques listed are ones that the US military trains Special Forces to prepare for in the event that they are captured by enemy forces (see December 2001 and July 2002). [New York Times, 5/13/2004]
Two Classes of Methods - The list is divided into two classes: tactics that are authorized for use on all prisoners and special “enhanced measures” that require the approval of Lieutenant General Ricardo Sanchez. The latter category of methods includes tactics that “could cause temporary physical or mental pain,” like “sensory deprivation,” “stress positions,” “dietary manipulation,” forced changes in sleep patterns, and isolated confinement. [Washington Post, 5/11/2004; Washington Post, 5/13/2004] Other techniques include “change of scenery down,” “dietary manipulation,” “environmental manipulation,” and “false flag.” The first 18 tactics listed all appear in the 1992 US Army Field Manual (FM) 34-52, with the exception of the so-called “Mutt-and-Jeff” approach, which is taken from an obsolete 1987 military field manual (1987 FM 34-52). [USA Today, 6/22/2004] The approved tactics can be used in conjunction with one another, essentially allowing interrogators to “pile on” one harsh technique after another. Categories such as “Fear Up Harsh” and “Pride and Ego Down” remain undefined, allowing interrogators to interpret them as they see fit. And Rumsfeld writes that any other tactic not already approved can be used if he gives permission. Author and reporter Charlie Savage will later write, “In other words, there were no binding laws and treaties anymore—the only limit was the judgment and goodwill of executive branch officials. ” [Savage, 2007, pp. 181] The use of forced nudity as a tactic is not included in the list. The working group rejected it because its members felt it might be considered inhumane treatment under international law. [Associated Press, 6/23/2004]
Result of Discussions among Pentagon Officials - The memo, marked for declassification in 2013 [Truthout (.org), 6/28/2004] , is the outcome, according to Deputy General Counsel Daniel Dell’Orto, of discussions between Rumsfeld, William J. Haynes, Douglas Feith, Paul Wolfowitz, and General Richard Myers. [Washington File, 6/23/2004] One US official explains: “There are very specific guidelines that are thoroughly vetted. Everyone is on board. It’s legal.” However in May 2004, it will be learned that there was in fact opposition to the new guidelines. Pentagon lawyers from the Army Judge Advocate General’s office had objected (see May 2003 and October 2003) and many officials quietly expressed concerns that they might have to answer for the policy at a later date (see (April 2003)). [Washington Post, 5/11/2004; Washington Post, 5/13/2004]

Entity Tags: Donald Rumsfeld, Douglas Feith, Paul Wolfowitz, Richard B. Myers, William J. Haynes, Ricardo S. Sanchez, Daniel J. Dell’Orto, Charlie Savage

Timeline Tags: Torture of US Captives, Civil Liberties

Eight high-ranking military lawyers from the Army Judge Advocate General’s office—which historically has ensured that interrogators do not violate prisoners’ rights—visit Scott Horton, head of the New York State Bar Association’s committee on international law, and ask him to persuade the Pentagon to reverse its policy on using “stress and duress” interrogation techniques (see Late 2002-April 2003) (see April 16, 2003). “They were quite blunt,” Horton will recall. “They were extremely concerned about how the political appointees were dealing with interrogation issues. They said this was a disaster waiting to happen and that they felt shut out” from the rules-drafting process. [Washington Post, 5/13/2004; Newsday, 5/15/2004; New Yorker, 5/24/2004] The lawyers describe the new interrogation rules as “frightening,” with the potential to “reverse 50 years of a proud tradition of compliance with the Geneva Conventions.” [USA Today, 5/13/2004] The military lawyers will make another visit to Horton’s office in October (see May 2003).

Entity Tags: Scott Horton

Timeline Tags: Torture of US Captives

An FBI memo released to the American Civil Liberties Union in 2006 (ACLU—see February 23, 2006) documents escalating tensions between FBI and Defense Department personnel stationed at Guantanamo. According to the memo, beginning in late 2002, Defense Department interrogators received encouragement from their superiors to “use aggressive interrogation tactics” that FBI agents believed were “of questionable effectiveness and subject to uncertain interpretation based on law and regulation.” The memo names Major General Geoffrey Miller, the commander of Joint Task Force-Guantanamo, as supporting interrogation methods FBI agents believe “could easily result in the elicitation of unreliable and legally inadmissible information.” FBI personnel took their concerns to senior Pentagon officials, but were ignored. [American Civil Liberties Union, 2/23/2006]

Entity Tags: US Department of Defense, Federal Bureau of Investigation, Geoffrey D. Miller

Timeline Tags: Torture of US Captives

Senator Patrick Leahy, a Democrat from Vermont, sends letters to the White House, the CIA, and the Pentagon with complaints about the treatment of detainees in Afghanistan and “other locations outside the United States.” He writes that according to unnamed officials, the prisoners are being subjected to beatings, lengthy sleep- and food-deprivation, and other “stress and duress” techniques (see April 16, 2003). He asks if these techniques are indeed being employed and urges the administration to issue a clear statement that cruel, inhuman, or degrading treatment of detainees will not be tolerated. The Pentagon and CIA respond with denials that the United States is torturing its prisoners. [Human Rights Watch, 5/7/2004; USA Today, 5/13/2004]

Entity Tags: Patrick J. Leahy

Timeline Tags: Torture of US Captives

The CIA, the RAND Corporation, and the American Psychological Association host a two-day workshop entitled, “Science of Deception: Integration of Practice and Theory.” One session, “Law Enforcement Interrogation and Debriefing,” explores the question, “What pharmacological agents are known to affect apparent truth-telling behavior?” [American Psychological Association, 6/18/2003; Congressional Quarterly, 4/4/2008] This question becomes more relevant in light of evidence that mind-altering drugs may be used by US interrogators against terror suspects (see April 4, 2008).

Entity Tags: Central Intelligence Agency, RAND Corporation, American Psychological Association

Timeline Tags: Torture of US Captives

Ali Saleh Kahlah al-Marri.Ali Saleh Kahlah al-Marri. [Source: Slate]A month before he is slated to go on trial for bank and credit card fraud charges (see February 8, 2002), the federal government drops all criminal charges against Ali Saleh Kahlah al-Marri, who has been held without legal representation, and in solitary confinement, since 2001 (see December 12, 2001). [CBS News, 6/23/2003; CBS News, 6/23/2003; CNN, 12/13/2005; Progressive, 3/2007]
'Grave Danger' - President Bush says al-Marri “represents a continuing, present, and grave danger” to the country, and the government designates al-Marri as an “enemy combatant,” alleging that he helped al-Qaeda operatives settle in the US. “Mr. Al-Marri possesses intelligence, including intelligence about personnel and activities of al-Qaeda,” Bush continues, and adds that gaining access to it “would aid US efforts to prevent attacks by al-Qaeda.” [Knight Ridder, 6/24/2003; Progressive, 3/2007] The presidential order says he “engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism.” His detention is necessary, the order claims, to prevent him from participating in terrorist activities against the US. The order in effect precludes a pretrial hearing scheduled for July 2 and the start of a formal trial on July 22. [CNN, 6/24/2003]
Alleged Sleeper Agent - The government declaration for al-Marri says he worked as an “al-Qaeda sleeper agent” who was planning to “hack into the computer systems of US banks,” and possibly facilitate a follow up to the 9/11 attacks. For its part, the Defense Department says al-Marri trained at a terror camp in Afghanistan before 9/11, personally met Osama bin Laden, and volunteered for an unspecified “martyr mission.” [CNN, 12/13/2005] Attorney General John Ashcroft will later claim that al-Marri refused repeated offers to cooperate with the FBI; “consequently,” Ashcroft will write, Bush declares him an enemy combatant. Ashcroft will claim that under the laws of war, an enemy combatant can be killed out of hand. Instead, the government will hold al-Marri “without charge or trial until the end of the war.” [Slate, 11/30/2006]
Transferred to Navy Brig - Instead, the “enemy combatant” designation takes al-Marri, a Qatari citizen and legal US resident, out of the civilian criminal justice system and places him under the control of the Defense Department, which immediately transfers him into detention at a Navy brig in South Carolina. He could face a military tribunal or remain in detention indefinitely, without trial. He is only the third person to be publicly named as an enemy combatant, along with US citizens Jose Padilla and Yaser Esam Hamdi.
Fingered by KSM - According to a Justice Department official, al-Marri was “positively identified” as being part of a planned second wave of al-Qaeda terrorist attacks by an “al-Qaeda detainee in a position to know.” Justice officials imply that the detainee to finger al-Marri is senior 9/11 planner Khalid Shaikh Mohammed. [CBS News, 6/23/2003] Another suspected al-Qaeda operative, Mustafa Ahmed al-Hawsawi (see Early-Late June, 2001), is also said to have mentioned him. [CNN, 12/13/2005] Alice Fisher, the deputy assistant attorney general for the Justice Department’s criminal division, says the department did not drop the criminal charges against al-Marri because the case was weak: “We are confident we would have prevailed on the criminal charges. However, setting the criminal charges aside is in the best interests of our national security.” The criminal charges—lying to banks, lying to the FBI, and credit card fraud—could have given al-Marri up to 60 years in prison and $1.75 million in fines. [CBS News, 6/23/2003]
Pleaded Not Guilty - Al-Marri’s lawyer Mark Berman says that his client pleaded not guilty to the criminal charges (see May 29, 2003), and the case was proceeding to trial. “I definitely got the sense they were reluctant to try the case in court,” Berman says. “They’d rather be in a forum where defendants aren’t represented by counsel.” Al-Marri’s wife and five children have left the US. The Saudi Arabian government granted the family passports in February, in spite of a State Department request not to issue the passports, as department officials wanted al-Marri’s wife, who is Saudi, to be available to the FBI for questioning. [Knight Ridder, 6/23/2003] Al-Marri’s lawyers say they are preparing a legal challenge to Bush’s decision. [Knight Ridder, 6/24/2003]

Entity Tags: US Department of Defense, US Department of State, Osama bin Laden, US Department of Justice, Mustafa Ahmed al-Hawsawi, John Ashcroft, Khalid Shaikh Mohammed, Al-Qaeda, Ali Saleh Kahlah al-Marri, Mark Berman, Alice Fisher, George W. Bush, Jose Padilla, Federal Bureau of Investigation, Yaser Esam Hamdi

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

At Guantanamo, detainee Mohamed al-Khatani is given a tranquilizer, fitted with blackened goggles, and put on a plane. He is told he is being sent to a Middle Eastern country. What happens next is probably equivalent to the technique authorized under the description “false flag” by Defense Secretary Donald Rumsfeld’s April 16, 2003 memo on interrogation methods (see April 16, 2003). The plane returns to Guantanamo several hours later and he is taken to an isolation cell in the base’s brig where he is subjected to harsh interrogation procedures. He is led to believe that his interrogators are Egyptian national security operatives. In order to maintain the deception, the International Committee of the Red Cross (ICRC) is not permitted to visit Khatani during this time. [New York Times, 1/1/2005]

Entity Tags: Mohamed al-Khatani, Donald Rumsfeld, International Committee of the Red Cross

Timeline Tags: Torture of US Captives

Geoffrey Miller.Geoffrey Miller. [Source: US Army]Major General Geoffrey Miller, who oversees the prison at Guantanamo (see November 4, 2002), flies to Iraq for a 10-day consulting trip (see August 18, 2003). He is part of a team “experienced in strategic interrogation… to review current Iraqi theater ability to rapidly exploit internees for actionable intelligence” and to review the arrangements at the US military prisons in Iraq. [Washington Post, 5/9/2004; New Yorker, 5/17/2004; Washington Post, 8/24/2004; Savage, 2007, pp. 190] The team consists of 17 interrogation experts from Guantanamo Bay, and includes officials from the CIA and the Defense Intelligence Agency (DIA). [Washington Post, 6/12/2004]
Attempt to Increase Flow of 'Actionable Intelligence' - The Pentagon’s decision to dispatch the team on this mission was influenced by the military’s growing concern that the failure of coalition forces to quell resistance against the occupation was linked to a dearth in “actionable intelligence” (see August 2003). [New Yorker, 5/24/2004] Miller has therefore come to help Brigadier General Barabara Fast improve the results of her interrogation operations. More to the point, he is supposed to introduce her to the techniques being used at Guantanamo. [New Yorker, 6/21/2004; Signal Newspaper, 7/4/2004] Officials are hoping detainees will provide intelligence on weapons of mass destruction and Saddam Hussein, who is still on the loose. [Washington Post, 5/16/2004]
'Gitmoizing' Abu Ghraib - “[Miller] came up there and told me he was going to ‘Gitmoize’ the detention operation,” Brigadier General Janis L. Karpinski, later recalls. [Washington Post, 5/9/2004] Miller will later deny he used the word “Gitmoize.” [Washington Post, 5/12/2004] During Miller’s visit, a Joint Interrogation and Debriefing Center (JIDC) is established in order to centralize the intelligence operations at the prison. Captain Carolyn A. Wood is made officer in charge (OIC) of the Interrogation Coordination Element (ICE), within the JIDC. [US Department of Defense, 8/23/2004 pdf file] Before returning to Washington, Miller leaves a list of acceptable interrogation techniques—based on what has been used in Guatanamo—posted on a wall in Abu Ghraib, which says that long term isolation, sleep disruption, “environmental manipulation,” and “stress positions” can be used to facilitate interrogations, but only with the approval of Lieutenant General Ricardo Sanchez on a case-by-case basis. [Washington Post, 5/21/2004] The use of dogs is also included, even though the technique was banned at Guantanamo eight months before by Defense Secretary Donald Rumsfeld (see January 15, 2003). [Washington Post, 7/19/2004; US Department of Defense, 8/23/2004 pdf file] Karpinski later recalls, “He said they are like dogs and if you allow them to believe at any point that they are more than a dog then you’ve lost control of them.” [BBC, 6/15/2004] Miller’s visit to Iraq heralds some significant changes, which include, first, the introduction of more coercive interrogation tactics; second, the taking control of parts of the Abu Ghraib facility by military intelligence; and third, the use of MPs in the intelligence collection process. During his visit, Miller discusses interrogation techniques with military intelligence chief Colonel Thomas M. Pappas. [New York Times, 5/13/2004]
'Snowballing' Effect of Chaos, Brutality - “The operation was snowballing,” Samuel Provance, a US military intelligence officer, will later recall, describing the situation at Abu Ghraib after Miller’s visit. “There were more and more interrogations. The chain of command was putting a lot of resources into the facility.” And Karpinski will later say that she was being shut out of the process at about this time. “They continued to move me farther and farther away from it.” [Washington Post, 5/20/2004] Major General Anthony Taguba (see March 9, 2004) will later determine that Miller’s visit helped bring about the complete breakdown of discipline at the prison: “Interrogators actively requested,” at Miller’s behest, “that MP guards set physical and mental conditions for favorable interrogations of witnesses.” In essence, Miller tells guards to “soften up” prisoners so they will not be able to resist their inquisitors. Miller will later deny any responsibility for the Abu Ghraib torture program (see May 4, 2004). [Savage, 2007, pp. 190]

Entity Tags: Barbara G. Fast, Antonio M. Taguba, Carolyn A. Wood, Samuel Provance, Janis L. Karpinski, Thomas M. Pappas, Geoffrey D. Miller

Timeline Tags: Torture of US Captives

In an interview, the US officer in charge of interrogations at Abu Ghraib acknowledges that, as per the directive from Defense Secretary Rumsfeld (see December 2, 2002), detainees are subjected to stress positioning. Stress positions are a violation of the Geneva Conventions. [Huffington Post, 4/21/2009]

Entity Tags: Geneva Conventions, Donald Rumsfeld

Timeline Tags: Torture of US Captives

A team of military lawyers in Iraq issues a memo detailing a new set of interrogation rules entitled, CJTF-7 Interrogation and Counter-Resistance Policy (ICRP). The team—headed by the highest legal expert within the US military apparatus in Iraq, Col. Marc Warren, the staff judge advocate for Combined Joint Task Force (CJTF) 7—includes Capt. Fitch, the command judge advocate with Col. Thomas M. Pappas’ 205th Military Intelligence Brigade, and Maj. Daniel Kazmier and Maj Franklin D. Raab, both from the CJTF-7 Office of the Staff Judge Advocate (OSJA). In crafting the memo, Fitch “copie[s]” Defense Secretary Donald Rumsfeld’s April 16, 2003 memo (see April 16, 2003), intended for Guantanamo, “almost verbatim.” The draft is then sent to the 519th Military Intelligence Battalion for comment. The 519th adds techniques from its own August 27, 2003 memo (see August 27, 2003), including “the use of dogs, stress positions, sleep management, sensory deprivation,… yelling, loud music, and light control.” The techniques listed in the final version of the memo apply to all categories of detainees. [US Department of Defense, 8/23/2004 pdf file] Sleep management and sensory deprivation are also part of the Guantanamo set of interrogation techniques. The other more aggressive methods—the use of dogs, stress positions, and yelling, loud music, and light control—are extras.

Entity Tags: Donald Rumsfeld, Daniel Kazmier, Marc Warren, Brent Fitch, Franklin D. Raab, Thomas M. Pappas

Timeline Tags: Torture of US Captives

The legal experts at the Office of the Staff Judge Advocate (OSJA) issue a memorandum amending the set of interrogation rules included in a September 10 memo (see September 10, 2003) by military legal experts in Iraq. The additional methods included in that memo can only be used with prior approval by Lieutenant General Ricardo Sanchez on a case-by-case basis, the OSJA document says. [US Department of Defense, 8/23/2004 pdf file] Like Major General Geoffrey Miller, the OSJA stresses the importance of collaboration between MPs and intelligence personnel. It also provides “safeguards such as legal reviews of the interrogation plans and scrutiny of how they were carried out,” the Washington Post later reports. [Washington Post, 6/12/2004] Additionally, the memo discusses how the Arab fear of dogs can be exploited. [US Department of Defense, 8/23/2004 pdf file] According to a later report (see August 25, 2004) by General George R. Fay, interrogators at Abu Ghraib immediately adopt the new set of rules. But Staff Judge Advocate Colonel Mark Warren will recall that the memo is not implemented until its approval by the US Central Command (CENTCOM). [US Department of Defense, 8/23/2004 pdf file] Evidence, however, supports the Fay report. “After mid-September 2003,” Fay will write, “all [s]oldiers assigned to Abu Ghraib had to read a memorandum titled IROE [Interrogations Rules of Engagement], acknowledging they understood the ICRP, and sign a confirmation sheet indicating they had read and understood the ICRP.” [US Department of Defense, 8/23/2004 pdf file] According to classified documents uncovered by the Senate Armed Services Committee (see April 21, 2009), CENTCOM lawyers begin objecting to the policies almost immediately. One e-mail, from a CENTCOM lawyer to a Staff Judge Advocate, warns, “Many of the techniques appear to violate [Geneva Conventions] III and IV and should not be used.” [Huffington Post, 4/21/2009]

Entity Tags: George R. Fay, Senate Armed Services Committee, Geoffrey D. Miller, Marc Warren, Ricardo S. Sanchez

Timeline Tags: Torture of US Captives

Several military lawyers make a second visit (see May 2003) to Scott Horton, head of the New York State Bar Association’s committee on international law, and ask him to persuade the Pentagon to reverse its policy on using “stress and duress” interrogation techniques (see April 16, 2003). “They were quite blunt,” Horton will say, recalling the two visits. “They were extremely concerned about how the political appointees were dealing with interrogation issues. They said this was a disaster waiting to happen and that they felt shut out” of the rules-drafting process. [Washington Post, 5/13/2004; Newsday, 5/15/2004; New Yorker, 5/24/2004]

Entity Tags: Scott Horton

Timeline Tags: Torture of US Captives

Jack Goldsmith succeeds Jay Bybee as the head of the Justice Department’s Office of Legal Counsel (OLC). The OLC essentially performs two functions: advising the executive branch on the legal limits of presidential power, and crafts legal justifications for the actions of the president and the executive branch. Goldsmith, who along with fellow Justice Department counsel and law professor John Yoo, is seen as one of the department’s newest and brightest conservative stars. But instead of aiding the Bush administration in expanding the power of the executive branch, Goldsmith will spend nine tumultuous months battling the White House on issues such as the NSA’s warrantless wiretapping program, the administration’s advocacy of torture in the interrogation of terrorism suspects, and the extralegal detention and military tribunals of “enemy combatants.” Goldsmith will find himself at odds with Yoo, the author of two controversial OLC memos that grant the US government wide latitude in torturing terror suspects (see January 9, 2002 and August 1, 2002), with White House counsel and future attorney general Alberto Gonzales, and with the chief aide to Vice President Dick Cheney, David Addington, who along with Cheney is one of the strongest advocates of the so-called “unitary executive” theory of governance, which says the president has virtually unlimited powers, especially in the areas of national security and foreign policy, and is not always subject to Congressional or judicial oversight. Within hours of Goldsmith’s swearing-in, Goldsmith receives a phone call from Gonzales asking if the Fourth Geneva Convention, which protects civilians in war zones such as Iraq, covers terrorists and insurgents as well. Goldsmith, after intensive review with other lawyers in and out of the Justice Department, concludes that the conventions do indeed apply. Ashcroft concurs. The White House does not. Goldsmith’s deputy, Patrick Philbin, says to Goldsmith as they drive to the White House to meet with Gonzales and Addington, “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.” Philbin’s prediction is accurate; Addington is, Goldsmith recalls, “livid.” The physically and intellectually imposing Addington thunders, “The president has already decided that terrorists do not receive Geneva Convention protections. You cannot question his decision.” Addington refuses to accept Goldsmith’s explanations. Months later, an unmollified Addington will tell Goldsmith in an argument about another presidential decision, “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.” These initial encounters set the tone for Goldsmith’s stormy tenure as head of the OLC. Goldsmith will lead a small group of administration lawyers in what New York Times Magazine reporter Jeffrey Rosen calls a “behind-the-scenes revolt against what [Goldsmith] considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror,” Goldsmith will resign in June of 2004 (see June 17, 2004). [New York Times Magazine, 9/9/2007]

Entity Tags: Richard (“Dick”) Cheney, US Department of Justice, Office of Legal Counsel (DOJ), John C. Yoo, Jack Goldsmith, David S. Addington, Alberto R. Gonzales, National Security Agency, Jay S. Bybee, John Ashcroft, Jeffrey Rosen

Timeline Tags: Civil Liberties

Top: Charles Garner punches one of the seven detainees. Bottom: Lynndie England points at the word “Rapeist” written on the leg of another one of the seven detainees. Other detainees are forced to sit naked on each other in the background.Top: Charles Garner punches one of the seven detainees. Bottom: Lynndie England points at the word “Rapeist” written on the leg of another one of the seven detainees. Other detainees are forced to sit naked on each other in the background. [Source: Public domain]At Abu Ghraib, seven Iraqi detainees are brought to Cellblock 1A from one of the tent camps escorted by MPs. The seven Iraqis are suspected of having taken part in a fight. They include Nori al-Yasseri, detainee number 7787; Hussein Mohssein Mata al-Zayiadi, detainee number 19446; and four others known only by their first names: Haidar, Ahmed, Ahzem, Hashiem and Mustafa. [Washington Post, 5/21/2004; US Department of Defense, 8/23/2004 pdf file] At least one of them was detained on suspicion of car theft. [Los Angeles Times, 10/21/2004] When they arrive, they all have their hands tied behind their backs with plastic handcuffs. Empty sandbags (“gunnysacks”) are put over their heads. [Rolling Stone, 7/28/2004] According to an account later provided by MP Spc. Matthew Wisdom, the other MPs suddenly begin striking at the prisoners. Spc. Charles Graner, Staff Sgt. Ivan Frederick and Sgt. Javal Davis “rotate around the detainees and abuse and hit them,” Wisdom later testifies. Graner poses for a photograph with his fist, clenched as if about to strike, close to a detainee’s head. “Right after the picture [is] taken, he actually hit[s] him,” Wisdom says in his testimony. [Los Angeles Times, 8/5/2004] The MPs then throw the tied-up Iraqi men against the walls until they fall on the floor. Wisdom later recounts, “Sfc [Sgt. First Class] Snider grabbed my prisoner and threw him into a pile.” [New Yorker, 5/10/2004] Pfc. Lynndie England, who had her birthday the day before and has come to the cellblock to visit her boyfriend Spc. Graner, says the prisoners fall in what she calls a “dog pile.” [Rolling Stone, 7/28/2004] According to Wisdom, he sees “Staff Sgt. Frederic, Davis and Cpl. Graner walking around the pile hitting the prisoners.” [New Yorker, 5/10/2004] Several guards take turns leaping on top of the pile. Also present is Spc. Jeremy Sivits, who later testifies: “That is when Sgt. Davis ran across the room and lunged in the air and landed in the middle of where the detainees were. I believe Davis ran across the room a total of two times and landed in the middle of the pile of detainees.” [Washington Post, 5/22/2004] “A couple of the detainees kind of made an ‘ah’ sound, as if this hurt them or caused them some type of pain.” In the meanwhile Pfc. England and Sgt. Javal Davis stomped on the lying prisoners’ fingers and feet. Sivits heard them scream because of it. [Rolling Stone, 7/28/2004] The alleged car thief later testified during Frederick’s trial, he felt someone putting his foot on his head when he was thrown into the pile of men. “He put his whole weight on my head and on my knee. I was screaming and crying.” [Los Angeles Times, 10/21/2004] At this point, MP Sgt. Shannon K. Snider of the 372nd MP Company, who is working in an office on the top floor, hearing the cries of pain, leans over the railing and angrily yells at Sgt. Davis to stop abusing the prisoners. When Davis steps away from the pile of men, Snider leaves. “I believe that Sgt. Snider thought it was an isolated incident,” Sivits says, “and that when he ordered Sgt. Davis to stop, it was over.” [Rolling Stone, 7/28/2004] It was not. Testimony by Spc. Wisdom suggests some ringleaders among the MPs pressured the others to join in with the abuse. According to Wisdom, he too asked Davis not to stomp on toes. Davis then allegedly tells Wisdom: “Who are you to tell me to stop?” [Los Angeles Times, 8/5/2004] Wisdom witnesses Frederick hitting a prisoner “in the side of his chest.” [New Yorker, 5/10/2004; Los Angeles Times, 8/5/2004] Frederick then takes notice of Wisdom looking on. Wisdom testifies that Frederick “looked at me and said: ‘Wisdom, you’ve got to get some of this,’ meaning I should hit the detainees as well.” [Los Angeles Times, 8/5/2004] According to Wisdom’s account, he goes outside after this incident, [New Yorker, 5/10/2004] and proceeds to alert his team leader Sgt. Robert Jones. [Los Angeles Times, 8/5/2004] After Snider has left the scene, and possibly Wisdom as well, the MPs put the prisoners back to their feet and remove their handcuffs. Graner orders the detainees in Arabic to take their clothes off. Graner takes the head of one of the naked but hooded prisoners in one arm and smashes his free fist into his temple, causing the prisoner to sag down on the floor. “Damn, that hurt!” Graner says jokingly. Sivits walks over to see if the detainee is still alive. “I could tell that the detainee was unconscious, because his eyes were closed and he was not moving, but I could see his chest rise and fall, so I knew he was still alive.” Maybe this is the same incident witnessed by Wisdom, as perhaps is the following. Staff Sgt. Ivan Frederick writes an X on another detainee’s chest with his finger and says, “Watch this.” Then he punches the prisoner on the indicated spot so massively that the hooded prisoner sways backward, falls to his knees and is gasping for air. [Rolling Stone, 7/28/2004] Frederick has singled out the alleged car thief for extra punishment. “I stood him up and punched him in the chest. I was angry. They told me he was the ringleader. He hit a female soldier in the face with a rock.” [Los Angeles Times, 10/21/2004] Sivits testifies that Frederick says that “he thought he put the detainee in cardiac arrest.” [Rolling Stone, 7/28/2004] When the detainee subsequently collapses, he is checked by a female medic. She says he is “faking.” [Los Angeles Times, 10/21/2004] The seven detainees will continue to be abused into the night and will be forced to form naked human pyramids (see Evening November 7, 2003).

Entity Tags: Jeremy C. Sivits, Matthew Wisdom, Lynndie England, Nori al-Yasseri, Javal Davis, Mustafa, Sabrina Harman, Robert Jones II, Ivan L. Frederick II, Hashiem, Haydar Sabbar Abed, Ahmed, Hussein Mohssein Mata Al-Zayiadi, Charles Graner, Ahzem, Haidar, George R. Fay, New Yorker, Shannon K. Snider

Timeline Tags: Torture of US Captives

Top: the seven detainees are forced to form a human pyramid. Charles Graner and Sabrina Harman stand behind them smiling and giving thumbs up signs. Bottom: Some of the same detainees are forced to simulate oral sex on each other. Top: the seven detainees are forced to form a human pyramid. Charles Graner and Sabrina Harman stand behind them smiling and giving thumbs up signs. Bottom: Some of the same detainees are forced to simulate oral sex on each other. [Source: Public domain]At Abu Ghraib, seven Iraqi detainees are brought to Cellblock 1A from one of the tent camps escorted by MPs. The seven Iraqis are suspected of having taken part in a fight. They include Nori al-Yasseri, Hussein Mohssein Mata al-Zayiadi, and four others known only by their first names: Haidar, Ahmed, Ahzem, Hashiem and Mustafa. [Washington Post, 5/21/2004; US Department of Defense, 8/23/2004 pdf file] They are repeatedly punched and attacked by Staff Sgt. Ivan L. Frederick, Spc. Charles Graner, and other MPs (see Evening November 7, 2003). The MPs then take out their cameras to take pictures of the seven naked men and begin putting them in humiliating poses, often placing themselves in the picture as well, smiling. Graner makes them climb on top of each other to form a human pyramid, as is reported by Spc. Sabrina Harman. [Washington Post, 5/22/2004; Rolling Stone, 7/28/2004] “They put us two on the bottom, two on top of them, and two on top of those and on top,” Al-Zayiadi will say. [Washington Post, 5/21/2004] “The pyramid lasted about 15 to 20 minutes,” according to Harman. [Washington Post, 5/22/2004] The prisoners are also made to crawl on hands and knees with MPs riding on their backs. [Rolling Stone, 7/28/2004] “They were sitting on our backs like riding animals,” Al-Zayiadi says. Meanwhile, others are taking photographs. [Washington Post, 5/21/2004] Frederick then takes hold of the prisoner whom he has singled out for additional punishment and motions him to masturbate. “I grabbed his arm by the elbow, put it on his genitals and moved it back and forth with an arm motion, and he did it.” [Los Angeles Times, 10/21/2004] He makes another detainee do the same. “I lifted his hood and gave him a hand gesture, telling him to keep doing it himself.” [New York Times, 10/21/2004] Spc. Matthew Wisdom, who complained to his team leader Sgt. Robert Jones earlier in the evening about the treatment of the detainees, returns to Tier 1A to find a naked detainee being forced to masturbate in front of another naked detainee on his knees before him. “I saw two naked detainees,” Wisdom will later recall, “one masturbating to another kneeling with its mouth open. I thought I should just get out of there. I didn’t think it was right.” [New Yorker, 5/10/2004] According to Wisdom, Frederick says to him: “Look what these animals do when we leave them alone for two seconds.” [New Yorker, 5/10/2004; Los Angeles Times, 8/5/2004] Meanwhile, Pfc. Lynndie England makes sexually suggestive comments “in a somewhat sarcastic, fun tone of voice,” according to Wisdom. [Los Angeles Times, 8/5/2004] “I heard Pfc. England shout out, ‘He’s getting hard.’” [New Yorker, 5/10/2004] Again Wisdom leaves the building to tell Sgt. Jones, who assures him the “problem [will] be addressed and dealt with,” [Los Angeles Times, 8/5/2004] and Wisdom assumes that the problem will be taken care of. [New Yorker, 5/10/2004] Others, meanwhile, are lined up and forced to masturbate. These facts are corroborated by photographs that show the MPs laughing as they look on. [Rolling Stone, 7/28/2004] Al-Zayiadi later identifies himself in one of these pictures. “They told my friend to masturbate and told me to masturbate also, while they were taking pictures,” he says. [Washington Post, 5/21/2004] In the end, Al-Zayiadi says they are tossed naked but still hooded into a cell. “They opened the water in the cell and told us to lay face down in the water and we stayed like that until the morning, in the water, naked, without clothes.” [Washington Post, 5/21/2004] One of the seven prisoners is likely Haydar Sabbar Abed who says he was originally arrested for not carrying his ID card. After being involved in a fight with an Iraqi prison employee in one of the tent camps, he is taken to the Hard Site. He later recalls: “They cut off our clothes and… told us to masturbate towards this female soldier. But we didn’t agree to do it, so they beat us.” He also says: “They made us act like dogs, putting leashes around our necks. They’d whistle and we’d have to bark like dogs. We thought they were going to kill us.” [BBC, 8/4/2004] The next day, Wisdom asks for and is granted a transfer to a job elsewhere in the prison. Although he and Sgt. Jones say they have been angered by the abuse, they do little more than mildly confront their colleagues with their objections. [Los Angeles Times, 8/5/2004] To the detainees, the experience has been harrowing. Al-Yasseri will later call it a “night which we felt like 1,000 nights.” “I was trying to kill myself,” says Al-Zayiadi, “but I didn’t have any way of doing it.” [Rolling Stone, 7/28/2004] Gen. George Fay will also describe these incidents in his report (see August 25, 2004), which he concludes was an the affair of MPs alone. He states that military intelligence “involvement in this abuse has not been alleged nor is it likely.” However, one of the pictures taken that night, depicting the “human pyramid,” is later used as a screen saver for a computer in the Hard Site. The screen saver is later seen by a female military intelligence interrogator, but she states, according to Gen. Fay, that she did not report the picture because she did not see it again. The same interrogator, Fay will report, had a “close personal relationship” with Staff Sgt. Frederick, [US Department of Defense, 8/23/2004 pdf file] one of the main instigators of the abuse that night.

Entity Tags: Javal Davis, Ivan L. Frederick II, Jeremy C. Sivits, Matthew Wisdom, Shannon K. Snider, Hussein Mohssein Mata Al-Zayiadi, Lynndie England, Nori al-Yasseri, Mustafa, Haydar Sabbar Abed, George R. Fay, Haidar, New Yorker, Hashiem, Ahmed, Charles Graner, Ahzem, Sabrina Harman, Robert Jones II

Timeline Tags: Torture of US Captives

Lynndie England smiling at pointing at the penis of one of the Abu Ghraib detainees.Lynndie England smiling at pointing at the penis of one of the Abu Ghraib detainees. [Source: Public domain]Seven Iraqi detainees in Abu Ghraib prison have been punched, attacked, and humiliated all evening long on November 7, 2003, by their US captors (see Evening November 7, 2003 and Evening November 7, 2003). This abuse continues into the early morning hours of November 8. Pfc. Lynndie England is photographed pointing at the penises of several of the same seven detainees while Charles Graner and other MPs look on. [Salon, 3/14/2006]

Entity Tags: Ahmed, Nori al-Yasseri, Lynndie England, Mustafa, Haydar Sabbar Abed, Ahzem, Charles Graner, Haidar, Hussein Mohssein Mata Al-Zayiadi, Hashiem, Ivan L. Frederick II

Timeline Tags: Torture of US Captives

Jack Goldsmith, the new head of the Justice Department’s Office of Legal Counsel (see October 6, 2003), finds himself embroiled in a huge, if secretive, controversy over Justice Department lawyer John Yoo’s torture memos (see January 9, 2002 and January 25, 2002). Yoo, who wrote the original memos over former OLC chief Jay Bybee’s signature, had placed the OLC in the position of asserting that torture can indeed be used against terror suspects. Goldsmith disagrees, feeling that Yoo’s definitions of torture are far too narrow and give far too much latitude to US interrogators. He also believes that Yoo’s assertions of near-unchecked presidential power to authorize torture—at the direct expense of Congressional and judicial oversight—has no legal basis. And, Goldsmith worries, the opinions could be interpreted as a clumsy, “tendentious” attempt to protect Bush officials from criminal charges. The conflict between Goldsmith and Yoo will cost the two men their friendship. “I was basically taking steps to fix the mistakes of a close friend, who I knew would be mad about it,” Goldsmith will recall in 2007. “We don’t talk anymore, and that’s one of the many sad things about my time in government.” Goldsmith decides to withdraw the follow-up March 2003 torture memo, and tells White House officials they cannot rely on it any longer. Actually doing so proves a tricky business. [New York Times Magazine, 9/9/2007]
'Serious, Serious Problems' - Goldsmith will say in September 2007: “As soon as I absorbed the opinions I realized… that my reaction to them was a big problem. The Office of Legal Counsel rarely overturns its prior opinions, and even more rarely does so within an administration, and even more rarely than that, in the same administration about something this important. I didn’t find any precedent for it. And I did not want to do anything to affect either the programs or the underlying opinions. But they were serious, serious problems, and I knew if and when I was asked to stand by them that I would have a very hard time doing so.” [Newsweek, 9/8/2007]
Pressure from Abu Ghraib Scandal - The legal and bureaucratic niceties of withdrawing the memos become moot when, in April 2004, the Abu Ghraib scandal breaks (see Mid-April 2004), and when in June 2004, the first memo is leaked to the media. “After the leak, there was a lot of pressure on me within the administration to stand by the opinion,” he later says, “and the problem was that I had decided six months earlier that I couldn’t stand by the opinion.” [New York Times Magazine, 9/9/2007] “I had determined that the analysis was flawed,” he will recall. “But I hadn’t determined the underlying techniques were illegal. After Abu Ghraib, there was enormous pressure for me to stand by the decisions… and I couldn’t do so. I had already made up my mind many months earlier and I wasn’t about to change it. But I struggled for several days with what the consequences might be of withdrawing the opinion, because I wasn’t in the position to make an independent ruling on the other techniques. I certainly didn’t think they were unlawful, but I couldn’t get an opinion that they were lawful either. So I struggled to repudiate the flawed opinion while not causing massive disruption and fright throughout the counterterrorism world related to interrogation. And I ultimately decided that I had to withdraw those and under suspicions, stand by it, because it was so thoroughly flawed.” [Newsweek, 9/8/2007]
White House Resists Change - Though Goldsmith has the support of his boss, Attorney General John Ashcroft, Ashcroft’s deputy, James Comey, and his own deputy, Patrick Philbin, he knows the White House will fight the withdrawal. Goldsmith will decide to issue the withdrawal and then resign his position (see June 17, 2004), effectively forcing the administration to either quietly accept the withdrawal, or fight it and make his resignation a media circus. “If the story had come out that the US government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” he later recalls. “The timing was designed to ensure that the decision stuck.” Vice President Dick Cheney’s chief aide, David Addington, among other White House officials, is furious over the withdrawal of the torture opinion (interestingly, White House counsel and future attorney general Alberto Gonzales will modify his own opposition to the withdrawals later, telling Goldsmith in 2007, “I guess those opinions really were as bad as you said”). [New York Times Magazine, 9/9/2007]
Expansion of Presidential Power - Addington asks Goldsmith incredulously, “Why are you trying to give away the president’s power?” Like Cheney, Addington believes, in Goldsmith’s words, “that the very act of asking for Congress’s help would imply, contrary to the White House line, that the president needed legislative approval and could not act on his own. The president’s power would diminish, Addington thought, if Congress declined its support once asked, especially if it tried to restrict presidential power in some way. Congress had balked, during the month after 9/11, at giving the president everything he had asked for in the Congressional authorization to use force and the Patriot Act. Things would only be worse in 2004 and beyond, Addington believed.” Addington’s two questions are always, Goldsmith writes, “‘Do we have the legal power to do it ourselves?’ (meaning on the president’s sole authority), and ‘Might Congress limit our options in ways that jeopardize American lives?’” While Goldsmith and his colleagues agree that the president has the power, and that seeking Congressional approval might tie the White House’s hands more so than the administration is willing to accept, Goldsmith worries that an unfavorable Supreme Court decision would undercut Bush’s authority much more so than any restrictions passed by a compliant, Republican-led Congress. Addington sees things in very simple terms: ”“We’re going to push and push and push until some larger force makes us stop,” Addington says on several occasions. Addington tells Goldsmith, “Now that you’ve withdrawn legal opinions that the president of the United States has been relying on, I need you to go through all of [the OLC terror memos] and let me know which ones you still stand by.” Goldsmith will do just that, further angering Addington. [Savage, 2007, pp. 184; Slate, 9/11/2007]
Absolute Power Required to Defend Nation - Goldsmith later writes: “He and, I presumed, his boss viewed power as the absence of constraint. These men believed that the president would be best equipped to identify and defeat the uncertain, shifting, and lethal new enemy by eliminating all hurdles to the exercise of his power. They had no sense of trading constraint for power. It seemed never to occur to them that it might be possible to increase the president’s strength and effectiveness by accepting small limits on his prerogatives in order to secure more significant support from Congress, the courts, or allies. They believed cooperation and compromise signaled weakness and emboldened the enemies of America and the executive branch. When it came to terrorism, they viewed every encounter outside the innermost core of most trusted advisers as a zero-sum game that if they didn’t win they would necessarily lose.” [Slate, 9/11/2007]

Entity Tags: John Ashcroft, John C. Yoo, Jay S. Bybee, Office of Legal Counsel (DOJ), James B. Comey Jr., David S. Addington, Patrick F. Philbin, Alberto R. Gonzales, Bush administration (43), Daniel Levin, Jack Goldsmith, US Department of Justice

Timeline Tags: Civil Liberties

Jack Goldsmith, the embattled head of the Justice Department’s Office of Legal Counsel (OLC) (see October 6, 2003), finds himself again mired in a conflict with Vice President Dick Cheney’s hardline chief aide, David Addington. Goldsmith has already fought with Addington over Goldsmith’s decision to withdraw the OLC’s support for the administration’s memos justifying torture (see December 2003-June 2004). Now Goldsmith and Addington are at odds over the policies governing the detention and trial of suspected terrorists. The spark for this conflict is the January 2004 Supreme Court decision to review the detention of US citizen and suspected “enemy combatant” Yaser Esam Hamdi (see January 9, 2004). Goldsmith suggests going to Congress to have that body pass legislation declaring such detention legal, reasoning that the Supreme Court would be less likely to rule against the administration if Congress had authorized such detention policies. Addington, who like his boss does not accept the idea that Congress has any business interfering in such policy decisions, refuses to countenance the idea, and Goldsmith’s proposal goes nowhere. In June 2004, the Supreme Court approves the detention policies but put modest legal restrictions on the administration’s ability to detain citizens without trial. Goldsmith, this time with deputy solicitor general Paul Clement, again suggests going to Congress; once again, Addington refuses. The White House, Goldsmith later says, continues to operate as if it could avoid any adverse decisions from the Supreme Court. When the Court issues its decision in the Hamdan case (see November 8, 2004), rejecting the administration’s policy of trying terror suspects in military tribunals without Congressional approval, and upholding the preeminence of the Third Geneva Convention in protecting the rights of accused terror detainees—including al-Qaeda suspects—the decision has a shattering effect on the Bush administration’s legal arguments towards detaining and trying those suspects. Goldsmith believes the Court’s decision is “legally erroneous” but has huge political consequences. Now detainees at Guantanamo Bay have more legal rights than ever before, and for the first time, the specter of war-crimes charges against Bush officials becomes a real possibility. Goldsmith later says that it is in these arguments, more than in the battles over domestic wiretapping or interrogation techniques, that Addington’s attempts to expand presidential power actually backfires. Goldsmith is later vindicated when, in September 2006, one of the last acts of the Republican-led Congress will give the administration every power the administration had asked for, authorizing the military commissions that the Court had rejected. The Bush administration could have avoided a damaging Court decision by working with Congress beforehand. “I’m not a civil libertarian, and what I did wasn’t driven by concerns about civil liberties per se,” he says in a 2007 interview. “It was a disagreement about means, not ends, driven by a desire to make sure that the administration’s counterterrorism policies had a firm legal foundation.” [New York Times Magazine, 9/9/2007]

Entity Tags: US Department of Justice, Yaser Esam Hamdi, US Supreme Court, Paul Clement, Al-Qaeda, Bush administration (43), David S. Addington, Jack Goldsmith, Office of Legal Counsel (DOJ), Richard (“Dick”) Cheney

Timeline Tags: Civil Liberties

The FBI’s on-scene commander in Baghdad sends an e-mail to senior FBI officials at FBI headquarters in Washington, discussing the allegations of abuse at Abu Ghraib prison. The e-mail advises the senior officials not to investigate the allegations. “We need to maintain good will and relations with those operating the prison,” it reads. “Our involvement in the investigation of the alleged abuse might harm our liaison.” [American Civil Liberties Union, 2/23/2006]

Entity Tags: Federal Bureau of Investigation

Timeline Tags: Torture of US Captives

An Army dog handler at Abu Ghraib tells military investigators that, as per the directive from Defense Secretary Rumsfeld (see December 2, 2002), “[S]omeone from [military intelligence] gave me a list of cells, for me to go see, and pretty much have my dog bark at them.… Having the dogs bark at detainees was psychologically breaking them down for interrogation purposes.” Using attack dogs to threaten or harm prisoners is a violation of the Geneva Conventions. [Huffington Post, 4/21/2009]

Entity Tags: US Department of Defense, Donald Rumsfeld

Timeline Tags: Torture of US Captives

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