The Torture Files

By Michael Duffy Brian Bennett; Perry Bacon Jr.; Timothy J. Burger; Matthew Cooper; Elaine Shannon; Mark Thompson/Washington; Mitch Frank/New York

Like a recurring nightmare, Abu Ghraib never quite goes away. The alleged ringleader of the horrors inflicted at the Baghdad prison, whose grin and thumbs-up over the body of a dead Iraqi prisoner became an image of national shame, showed up for his court-martial in Fort Hood, Texas, last week, with a clean shave and a solemn face. A day earlier, President George W. Bush's choice for Attorney General, Alberto Gonzales, who played a large role in orchestrating, if not actually drafting, a change in the Administration's rules on torture, was asked to explain himself before the Senators of the Judiciary Committee who are considering his nomination. Three years after 9/11, the question remains: How did we end up abusing prisoners in Iraq, Afghanistan and the U.S. naval base at Guant??namo Bay, Cuba--almost 20 inmate deaths are being investigated--and what is our policy now?

No one disputes the fact that the Bush team departed abruptly from convention when it loosened rules governing interrogations of prisoners. Some critics say those decisions amounted to an authorization of torture--a charge the Administration has flatly and repeatedly denied, right up through last month, when it abruptly revised its legal basis for interrogation rules for the second time in 28 months. During his confirmation hearing, Gonzales was quick to say he opposed torture in any form. But the question was never whether Gonzales supported torture--it was whether he helped narrow its legal definition so much that he licensed the use of any technique that did not cause grave injury or death.

Gonzales is certain to be confirmed as John Ashcroft's replacement, especially because Democrats are wary of opposing a Hispanic when their hold on that constituency was weakened in the last election. But Gonzales' nomination raises six issues that are still being sorted out by the government or its watchdogs.

WHY DID THE OLD POLICY GET A MAKEOVER?

Many believe it didn't need one. ??Until 9/11, the U.S. military had officially followed the Convention Against Torture and the Geneva Conventions, a series of treaties governing rules of war. But after 9/11, the Bush Administration believed the old rules were naive and unrealistic in the face of a stateless enemy that used airplanes as weapons to kill civilians. Vice President Dick Cheney explained the new approach in an interview just five days after the 9/11 attacks: "We also have to work, though, sort of the dark side. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we're going to be successful. That's the world we operate in, and so it's going to be vital for us to use any means at our disposal, basically, to achieve our objective."

Within a few months, as the invasion of Afghanistan reached its climax, hundreds of captured al-Qaeda fighters and irregulars fighting for the Taliban regime were shipped to the naval base at Guant??namo Bay for interrogation. Gonzales wrote a memo to Bush in January 2002 that described aspects of the Geneva protocols as "quaint" and "obsolete." A few weeks later, Bush signed an order deeming al-Qaeda combatants "unlawful" and thus not deserving of prisoner-of-war status or the protections Geneva provided. "The war on terrorism," wrote Bush, "... ushered in not by us but by terrorists, requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva."

WHAT DID THAT MEAN FOR PRISONERS?

Initially it meant that prisoners at Guant??namo were not going to be spending any time with appointed lawyers or international counselors who might be interested in obtaining their release. They were stuck in Cuba, some indefinitely, literally outside the law. That alone was an incentive for the prisoners to talk. For a time, the military followed Army field manual rules, which allowed for 17 interrogation techniques, such as the use of the good cop--bad cop routine; the we-know-everything gambit; the use and removal of incentives; emotional and psychological pressure; and silence.

But it quickly became clear that the 17 techniques might not crack some among the well-trained gang at Gitmo. As the U.S. began to round up high-value targets like al-Qaeda's chief operating officer, Abu Zubaydah, who were held in undisclosed locations, CIA officials turned to Washington for guidance about how far interrogators could go against the new terrorist enemy. In the summer of 2002, the CIA and Gonzales asked the Justice Department's Office of Legal Counsel for an opinion on the definition of illegal interrogation methods. On Aug. 1, 2002, Assistant Attorney General Jay Bybee sent Gonzales the following guidance: the President is within his legal limits to permit his surrogates to inflict "cruel, inhuman or degrading" treatment on prisoners without violating strictures against torture. For an act of abuse to be torture, the interrogator must be inflicting pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death." The definition of illegal torture had been significantly narrowed, which meant that anything short of that was O.K.

And so, a few months later, when officers at Guant??namo, frustrated by the lack of usable intelligence they were getting from prisoners, asked Washington to approve the use of more aggressive techniques than the 17 methods in the manual, the legal groundwork had already been prepared for a new age of harsher--and now legal--interrogation. In December 2002, Defense Secretary Donald Rumsfeld signed off on 16 additional measures for use at Gitmo, including stress positions, such as standing for long periods; isolation for up to a month; hooding during transportation and questioning; removal of clothing; and "exploiting individual phobias, e.g., dogs." A study led by former Pentagon chief James Schlesinger reported last August that Rumsfeld's more aggressive methods were used on only two detainees, "gaining important and time-urgent information in the process."

DID EVERYONE GO ALONG?

No. ??Lawyersat the State Department and attorneys representing the Joint Chiefs of Staff and the military services opposed abandoning the strict reliance on Geneva, chiefly because it might endanger U.S. troops who could be captured and denied the Conventions' protection. In January 2003, owing to concerns from the Navy's top lawyer, Rumsfeld abruptly rescinded his December order, pending a study, and ordered that the tougher measures could only be applied with his approval. Three months later, the study group recommended the use of some of the new interrogation techniques at Guant??namo. Dropped from the list were hooding, nudity and use of phobias. Left in place or added were isolation, giving detainees rations instead of hot meals, sleep deprivation and the use of rapid-fire questions.

WHAT WENT WRONG AT ABU GHRAIB?

Just about everything. ??Rules that were intended for Guant??namo, where the prisoner-to-guard ratio was 1 to 1, "migrated" during 2003 to Iraq's biggest prison, where the ratio was 75 to 1. Those rules were applied to a prison population that, according to the Schlesinger report, was made up "all too often" of Iraqis who were not valuable targets but bystanders caught in random roundups. Add to that the facts that the Army's intelligence units were poorly trained and badly managed, and the military police units assigned to Abu Ghraib were filled with reservists who showed poor judgment--and some of whom are now the subject of courts-martial. (See above.)

IS GUANTANAMO A PROBLEM?

Yes. ??According to a July 2004 memo signed by a top FBI official, FBI agents reported that they had seen prisoners subjected to physical mistreatment, loud music, extreme temperatures and a lack of food, water and furniture. An FBI agent there observed that one detainee who had been left in a cell where the temperature had climbed above 100?? "was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his own hair out throughout the night."

And last week brought another development that will undoubtedly be probed: the New England Journal of Medicine reported that military medical personnel in Iraq and Guant??namo were providing interrogators with information about detainees' medical conditions and helping craft interrogation strategies.

WHAT ABOUT THE CIA?

Rules governing the agency aren't just murky. In the darkest corners, few even know what they are. While refusing to talk specifics, ex-CIA officials insist they obeyed the letter of the law. "We were not a bunch of cowboys," says James Pavitt, the recently retired Deputy Director of Operations. But the military will sometimes transfer high-value captives to the CIA for handling. And the CIA, in turn, has been known to outsource some of its most difficult cases to countries where laws are no impediment to torturers. Handing someone over to a nation where torture is common--say, Egypt or Syria--is against international law. It remains impossible to know what rules the CIA is following when it conducts interrogations in "undisclosed locations" outside the U.S. In March 2002, when authorities grabbed Abu Zubaydah in Pakistan, the CIA whisked him to a secret facility outside Bangkok and asked the FBI to send some agents to Thailand to assist in "sweating" him, as it's known in the trade. Leery of that idea, FBI boss Robert Mueller declined and issued a verbal order that any G-men who visited the CIA outpost should read the debriefing reports but stay out of the interrogation room. Abu Zubaydah soon began to sing and, among other things, quickly fingered Khalid Shaikh Mohammed as the mastermind of the 9/11 attacks. --Reported by Brian Bennett, Perry Bacon Jr., Timothy J. Burger, Matthew Cooper, Elaine Shannon and Mark Thompson/Washington and Mitch Frank/New York