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    How an internal effort to ban the abuse and torture of detainees was thwarted THE MEMO by JANE MAYER
    Message 1 of 1 , Apr 7, 2006
      How an internal effort to ban the abuse and torture of detainees was

      THE MEMO
      by JANE MAYER

      One night this January, in a ceremony at the Officers' Club at Fort
      Myer, in Arlington, Virginia, which sits on a hill with a commanding
      view across the Potomac River to the Washington Monument, Alberto J.
      Mora, the outgoing general counsel of the United States Navy, stood
      next to a podium in the club's ballroom. A handsome gray-haired man in
      his mid-fifties, he listened with a mixture of embarrassment and pride
      as his colleagues toasted his impending departure. Amid the usual
      tributes were some more pointed comments.

      "Never has there been a counsel with more intellectual courage or
      personal integrity," David Brant, the former head of the Naval
      Criminal Investigative Service, said. Brant added somewhat
      cryptically, "He surprised us into doing the right thing." Conspicuous
      for his silence that night was Mora's boss, William J. Haynes II, the
      general counsel of the Department of Defense.

      Back in Haynes's office, on the third floor of the Pentagon, there was
      a stack of papers chronicling a private battle that Mora had waged
      against Haynes and other top Administration officials, challenging
      their tactics in fighting terrorism. Some of the documents are
      classified and, despite repeated requests from members of the Senate
      Armed Services Committee and the Senate Judiciary Committee, have not
      been released. One document, which is marked "secret" but is not
      classified, is a twenty-two-page memo written by Mora. It shows that
      three years ago Mora tried to halt what he saw as a disastrous and
      unlawful policy of authorizing cruelty toward terror suspects.

      The memo is a chronological account, submitted on July 7, 2004, to
      Vice Admiral Albert Church, who led a Pentagon investigation into
      abuses at the U.S. detention facility at Guantánamo Bay, Cuba. It
      reveals that Mora's criticisms of Administration policy were
      unequivocal, wide-ranging, and persistent. Well before the exposure of
      prisoner abuse in Iraq's Abu Ghraib prison, in April, 2004, Mora
      warned his superiors at the Pentagon about the consequences of
      President Bush's decision, in February, 2002, to circumvent the Geneva
      conventions, which prohibit both torture and "outrages upon personal
      dignity, in particular humiliating and degrading treatment." He argued
      that a refusal to outlaw cruelty toward U.S.-held terrorist suspects
      was an implicit invitation to abuse. Mora also challenged the legal
      framework that the Bush Administration has constructed to justify an
      expansion of executive power, in matters ranging from interrogations
      to wiretapping. He described as "unlawful," "dangerous," and
      "erroneous" novel legal theories granting the President the right to
      authorize abuse. Mora warned that these precepts could leave U.S.
      personnel open to criminal prosecution.

      In important ways, Mora's memo is at odds with the official White
      House narrative. In 2002, President Bush declared that detainees
      should be treated "humanely, and to the extent appropriate and
      consistent with military necessity, in a manner consistent with the
      principles" of the Geneva conventions. The Administration has
      articulated this standard many times. Last month, on January 12th,
      Secretary of Defense Donald Rumsfeld, responding to charges of abuse
      at the U.S. base in Cuba, told reporters, "What took place at
      Guantánamo is a matter of public record today, and the investigations
      turned up nothing that suggested that there was any policy in the
      department other than humane treatment." A week later, the White House
      press spokesman, Scott McClellan, was asked about a Human Rights Watch
      report that the Administration had made a "deliberate policy choice"
      to abuse detainees. He answered that the organization had hurt its
      credibility by making unfounded accusations. Top Administration
      officials have stressed that the interrogation policy was reviewed and
      sanctioned by government lawyers; last November, President Bush said,
      "Any activity we conduct is within the law. We do not torture." Mora's
      memo, however, shows that almost from the start of the
      Administration's war on terror the White House, the Justice
      Department, and the Department of Defense, intent upon having greater
      flexibility, charted a legally questionable course despite sustained
      objections from some of its own lawyers.

      Mora had some victories. "America has a lot to thank him for," Brant,
      the former head of the N.C.I.S., told me. But those achievements were
      largely undermined by a small group of lawyers closely aligned with
      Vice-President Cheney. In the end, Mora was unable to overcome
      formidable resistance from several of the most powerful figures in the

      Brant had joked at the farewell party that Mora "was an incredible
      publicity hound." In fact, Mora—whose status in the Pentagon was
      equivalent to that of a four-star general—is known for his
      professional discretion, and he has avoided the press. This winter,
      however, he agreed to confirm the authenticity and accuracy of the
      memo and to be interviewed. A senior Defense Department official, whom
      the Bush Administration made available as a spokesman, on the
      condition that his name not be used, did so as well. Mora and the
      official both declined to elaborate on internal Department of Defense
      matters beyond those addressed in the memo. Mora, a courtly and warm
      man, is a cautious, cerebral conservative who admired President Reagan
      and served in both the first and the second Bush Administrations as a
      political appointee. He strongly supported the Administration's war on
      terror, including the invasion of Iraq, and he revered the Navy. He
      stressed that his only reason for commenting at all was his concern
      that the Administration was continuing to pursue a dangerous course.
      "It's my Administration, too," he said.

      Mora first learned about the problem of detainee abuse on December 17,
      2002, when David Brant approached him with accusations of wrongdoing
      at Guantánamo. As head of the Naval Criminal [Investigative] Service,
      Brant often reported to Mora but hadn't dealt with him on anything so
      sensitive. "I wasn't sure how he would react," Brant, a tall, thin man
      with a mustache, told me. Brant had already conveyed the allegations
      to Army leaders, since they had command authority over the military
      interrogators, and to the Air Force, but he said that nobody seemed to
      care. He therefore wasn't hopeful when he went to Mora's office that

      When we spoke, Mora recalled the mood at the Pentagon at the time,
      just fifteen months after the September 11th attacks. "The mentality
      was that we lost three thousand Americans, and we could lose a lot
      more unless something was done," he said. "It was believed that some
      of the Guantánamo detainees had knowledge of other 9/11-like
      operations that were under way, or would be executed in the future.
      The gloves had to come off. The U.S. had to get tougher." Mora had
      been inside the Pentagon on September 11th and recalled the jetliner
      crashing into the building one facet over. He said that it "felt
      jarring, like a large safe had been dropped overhead." From the
      parking lot, he watched the Pentagon burn. The next day, he said, he
      looked around a room full of top military leaders, and was struck by
      the thought that "these guys were going to be the tip of the spear."

      Brant oversaw a team of N.C.I.S. agents working with the F.B.I. at
      Guantánamo Bay, in what was called the Criminal Investigative Task
      Force. It had been assigned to elicit incriminating information from
      the nearly six hundred detainees being held there. Unlike a group run
      by Army intelligence, Joint Task Force 170, or J.T.F.-170, which was
      looking for intelligence that would help American authorities
      determine Al Qaeda's next move, Brant's investigators gathered
      evidence that eventually could be used for prosecutions in military
      tribunals or civilian courts. He and his agents had experience and
      training in law enforcement: Brant, a civilian, holds an advanced
      degree in criminology, and worked as a policeman in Miami in the

      Brant informed Mora that he was disturbed by what his agents told him
      about the conduct of military-intelligence interrogators at
      Guantánamo. These officials seemed poorly trained, Brant said, and
      were frustrated by their lack of success. He had been told that the
      interrogators were engaging in escalating levels of physical and
      psychological abuse. Speaking of the tactics that he had heard about,
      Brant told me, "Repugnant would be a good term to describe them."

      Much of Brant's information had been supplied by an N.C.I.S.
      psychologist, Michael Gelles, who worked with the C.I.T.F. and had
      computer access to the Army's interrogation logs at Guantánamo. Brant
      told me that Gelles "is phenomenal at unlocking the minds of everyone
      from child abusers to terrorists"; he took it seriously when Gelles
      described the logs as shocking.

      The logs detailed, for example, the brutal handling of a Saudi
      detainee, Mohammed al-Qahtani, whom an F.B.I. agent had identified as
      the "missing twentieth hijacker"—the terrorist who was supposed to
      have been booked on the plane that crashed in a Pennsylvania field.
      Qahtani was apprehended in Afghanistan a few months after the
      terrorist attacks.

      Qahtani had been subjected to a hundred and sixty days of isolation in
      a pen perpetually flooded with artificial light. He was interrogated
      on forty-eight of fifty-four days, for eighteen to twenty hours at a
      stretch. He had been stripped naked; straddled by taunting female
      guards, in an exercise called "invasion of space by a female"; forced
      to wear women's underwear on his head, and to put on a bra; threatened
      by dogs; placed on a leash; and told that his mother was a whore. By
      December, Qahtani had been subjected to a phony kidnapping, deprived
      of heat, given large quantities of intravenous liquids without access
      to a toilet, and deprived of sleep for three days. Ten days before
      Brant and Mora met, Qahtani's heart rate had dropped so precipitately,
      to thirty-five beats a minute, that he required cardiac monitoring.

      Brant told me that he had gone to Mora because he didn't want his team
      of 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." He went on, "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." Recently declassified e-mails and orders obtained by the
      American Civil Liberties Union document Brant's position, showing that
      all C.I.T.F. personnel were ordered to "stand clear and report" any
      abusive interrogation tactics.

      Brant thinks that the Army's interrogation of Qahtani was unlawful. If
      an N.C.I.S. agent had engaged in such abuse, he said, "we would have
      relieved, removed, and taken internal disciplinary action against the
      individual—let alone whether outside charges would have been brought."
      Brant said he feared that such methods would taint the cases his
      agents needed to make against the detainees, undermining any attempts
      to prosecute them in a court of law. He also doubted the reliability
      of forced confessions. Moreover, he told me, "it just ain't right."

      Another military official, who worked closely with Brant and who has
      been denied permission to speak on the record, told me that the news
      "rocked" Mora. The official added that Mora "was visionary about this.
      He quickly grasped the fact that these techniques in the hands of
      people with this little training spelled disaster."

      In his memo, Mora noted that Brant asked him if he wanted to hear more
      about the situation. He wrote, "I responded that I felt I had to."

      Mora was a well-liked and successful figure at the Pentagon. Born in
      Boston in 1952, he is the son of a Hungarian mother, Klara, and a
      Cuban father, Lidio, both of whom left behind Communist regimes for
      America. Klara's father, who had been a lawyer in Hungary, joined her
      in exile just before the Soviet Union took control. From the time
      Alberto was a small boy, Klara Mora told me, he heard from his
      grandfather the message that "the law is sacred." For the Moras,
      injustice and abuse were not merely theoretical concepts. One of
      Mora's great-uncles had been interned in a Nazi concentration camp,
      and another was hanged after having been tortured. Mora's first
      memory, as a young child, is of playing on the floor in his mother's
      bedroom, and watching her crying as she listened to a report on the
      radio declaring that the 1956 anti-Communist uprising in Hungary had
      been crushed. "People who went through things like this tend to have
      very strong views about the rule of law, totalitarianism, and
      America," Mora said.

      At the time, Mora's family was living in Cuba. His father, a
      Harvard-trained physician, had taken his wife and infant son back in
      1952. When Castro seized power, seven years later, the family barely
      escaped detention after a servant informed the authorities that they
      planned to flee to America. In the ensuing panic, Alberto obtained an
      emergency passport from the American Embassy in Havana. "This was my
      first brush with the government," he said. "When I swore an oath of
      allegiance to the American government, part of the oath involved
      taking up arms to defend the country. And I was thinking, This is a
      serious thing for me to be an eight-year-old boy, raising my hand
      before the American vice-consul and taking the oath of allegiance."
      Cuban customs officials, seeing Alberto's American passport,
      threatened not to let him board a ship. At the last minute, one of his
      father's colleagues, who had been put in charge of the port, allowed
      Alberto's emigration.

      Mora's family settled in Jackson, Mississippi, where his father taught
      at the state medical school and Mora attended a Catholic school. For
      the most part, Jackson was "a wonderful place," Mora recalled,
      although it was also "very conservative." Racism was rampant and
      everyone, including Mora, backed Barry Goldwater in the 1964 election.
      Mora had never met anyone who opposed the Vietnam War until he
      enrolled at Swarthmore College, a school that he chose after reading
      an S.A.T.-preparation booklet that described it as small and
      especially rigorous. He also had never met a feminist before going to
      hear Kate Millett speak at Bryn Mawr, during his freshman year; her
      talk infuriated him. After growing up in the South among friends who
      played sports, drank beer, and had a good time, he found the
      Northeastern liberal élite curiously "nerdish." The girls had thrown
      away their skirts—if they'd ever had them, he joked—and there were no
      parties. Yet he loved the intellectual environment. "You just had
      these intense discussions," he recalled. "I revelled in it." Mora said
      that he was the only person among his friends who wasn't a
      conscientious objector to the war.

      Mora graduated in 1974 with honors, and joined the State Department,
      working in Portugal; in 1979, he entered law school in Miami. Finding
      litigation work more "a living than a life," Mora said, he was happy
      to get an appointment as general counsel of the U.S. Information
      Agency in the first Bush Administration. During the Clinton years, he
      was appointed to a Republican seat on the Broadcasting Board of
      Governors, where he was an advocate for Radio Martí, the American news
      operation aimed at Cuba. He also practiced international law in
      several private firms. When George W. Bush was elected, Mora—with the
      backing of former Defense Secretary Frank Carlucci, whom he had
      befriended in Portugal—was appointed general counsel of the Navy. He
      expected to spend most of his time there streamlining the budget.

      The day after Mora's first meeting with Brant, they met again, and
      Brant showed him parts of the transcript of Qahtani's interrogation.
      Mora was shocked when Brant told him that the abuse wasn't "rogue
      activity" but was "rumored to have been authorized at a high level in
      Washington." The mood in the room, Mora wrote, was one of "dismay." He
      added, "I was under the opinion that the interrogation activities
      described would be unlawful and unworthy of the military services."
      Mora told me, "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."

      Mora thinks that the media has focussed too narrowly on allegations of
      U.S.-sanctioned torture. As he sees it, the authorization of cruelty
      is equally pernicious. "To my mind, there's no moral or practical
      distinction," he told me. "If cruelty is no longer declared unlawful,
      but instead is applied as a matter of policy, it alters the
      fundamental relationship of man to government. It destroys the whole
      notion of individual rights. The Constitution recognizes that man has
      an inherent right, not bestowed by the state or laws, to personal
      dignity, including the right to be free of cruelty. It applies to all
      human beings, not just in America—even those designated as `unlawful
      enemy combatants.' If you make this exception, the whole Constitution
      crumbles. It's a transformative issue."

      Mora said that he did not fear reprisal for stating his opposition to
      the Administration's emerging policy. "It never crossed my mind," he
      said. "Besides, my mother would have killed me if I hadn't spoken up.
      No Hungarian after Communism, or Cuban after Castro, is not aware that
      human rights are incompatible with cruelty." He added, "The debate
      here isn't only how to protect the country. It's how to protect our

      After the second meeting with Brant, Mora called his friend Steven
      Morello, the general counsel of the Army, and asked him if he knew
      anything about the abuse of prisoners at Guantánamo. Mora said that
      Morello answered, "I know a lot about it. Come on down."

      In Morello's office, Mora saw what he now refers to as "the package"—a
      collection of secret military documents that traced the origins of the
      coercive interrogation policy at Guantánamo. It began on October 11,
      2002, with a request by J.T.F.-170's commander, Major General Michael
      Dunlavey, to make interrogations more aggressive. A few weeks later,
      Major General Geoffrey Miller assumed command of Guantánamo Bay, and,
      on the assumption that prisoners like Qahtani had been trained by Al
      Qaeda to resist questioning, he pushed his superiors hard for more
      flexibility in interrogations. On December 2nd, Secretary of Defense
      Rumsfeld gave formal approval for the use of "hooding," "exploitation
      of phobias," "stress positions," "deprivation of light and auditory
      stimuli," and other coercive tactics ordinarily forbidden by the Army
      Field Manual. (However, he reserved judgment on other methods,
      including "waterboarding," a form of simulated drowning.) In Mora's
      memo, Morello is quoted as saying that "we tried to stop it." But he
      was told not to ask questions.

      According to a participant in the meeting, Mora was "ashen-faced" when
      he read the package. The documents included a legal analysis, also
      dated October 11th, by Lieutenant Colonel Diane Beaver, who was then
      the top legal adviser to J.T.F.-170. She noted that some of the more
      brutal "counter-resistance" techniques under consideration at
      Guantánamo, such as waterboarding (for which soldiers had been
      court-martialled in earlier conflicts), might present legal problems.
      She acknowledged that American military personnel at Guantánamo, as
      everywhere else in the world, were bound by the Uniform Code of
      Military Justice, which characterizes "cruelty," "maltreatment,"
      "threats," and "assault" as felonies. Beaver reasoned, however, that
      U.S. soldiers preparing to violate these laws in their interrogations
      might be able to obtain "permission, or immunity" from higher
      authorities "in advance."

      The senior Defense Department official designated to speak for the
      Administration acknowledged that Beaver's legal argument was
      inventive. "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," he said. "I don't know whether we've ever
      faced the question of immunity in advance before." Nevertheless, the
      official praised Beaver "for trying to think outside the box. I would
      credit Diane as raising that as a way to think about it." (Beaver was
      later promoted to the staff of the Pentagon's Office of General
      Counsel, where she specializes in detainee issues.)

      Mora was less impressed. Beaver's brief, his memo says, "was a wholly
      inadequate analysis of the law." It held that "cruel, inhuman, or
      degrading treatment could be inflicted on the Guantánamo detainees
      with near impunity"; in his view, such acts were unlawful. Rumsfeld's
      December 2nd memo approving these "counter-resistance" techniques,
      Mora wrote, "was fatally grounded on these serious failures of legal
      analysis." Neither Beaver nor Rumsfeld drew any "bright line"
      prohibiting the combination of these techniques, or defining any
      limits for their use. He believed that such rhetorical laxity "could
      produce effects reaching the level of torture," which was prohibited,
      without exception, under both U.S. and international law. Mora took
      his concerns to Gordon England, the Secretary of the Navy, who is now
      the Deputy Secretary of Defense. Then, on December 20th, with
      England's authorization, Mora went to William Haynes, the Pentagon's
      general counsel; they met in Haynes's office, an elegant suite behind
      vault-like metal doors.

      In confronting Haynes, Mora was engaging not just the Pentagon but
      also the Vice-President's office. Haynes is a protégé of Cheney's
      influential chief of staff, David Addington. Addington's relationship
      with Cheney goes back to the Reagan years, when Cheney, who was then a
      representative from Wyoming, was the ranking Republican on a House
      select committee investigating the Iran-Contra scandal. Addington, a
      congressional aide, helped to write a report for the committee's
      Republican minority, arguing that the law banning covert aid to the
      Contras—the heart of the scandal—was an unconstitutional infringement
      of Presidential prerogatives. Both men continue to embrace an
      extraordinarily expansive view of executive power. In 1989, when
      Cheney was named Secretary of Defense by George H. W. Bush, he hired
      Addington as a special assistant, and eventually appointed him to be
      his general counsel. Addington, in turn, hired Haynes as his special
      assistant and soon promoted him to general counsel of the Army.

      After George W. Bush took office, Addington came to the White House
      with Cheney, and Haynes took his boss's old job at the Pentagon.
      Addington has played a central part in virtually all of the
      Administration's legal strategies, including interrogation and
      detainee policies. The office of the Vice-President has no statutory
      role in the military chain of command. But Addington's tenacity,
      willingness to work long hours, and unalloyed support from Cheney made
      him, in the words of another former Bush White House appointee, "the
      best infighter in the Administration." One former government lawyer
      described him as "the Octopus"—his hands seemed to reach into every
      legal issue.

      Haynes rarely discussed his alliance with Cheney's office, but his
      colleagues, as one of them told me, noticed that "stuff moved back and
      forth fast" between the two power centers. Haynes was not considered
      to be a particularly ideological thinker, but he was seen as "pliant,"
      as one former Pentagon colleague put it, when it came to serving the
      agenda of Cheney and Addington. In October, 2002, almost three months
      before his meeting with Mora, Haynes gave a speech at the conservative
      Federalist Society, disparaging critics who accused the Pentagon of
      mistreating detainees. A year later, President Bush nominated him to
      the federal appeals court in Virginia. His nomination is one of
      several that have been put on hold by Senate Democrats.

      In his meeting with Haynes, Mora told me, he said that, whatever its
      intent, what Rumsfeld's memo permitted was "torture."

      According to Mora, Haynes replied, "No, it isn't."

      Mora asked Haynes to think about the techniques more carefully. What
      did "deprivation of light and auditory stimuli" mean? Could a prisoner
      be locked in a completely dark cell? If so, could he be kept there for
      a month? Longer? Until he went blind? What, precisely, did the
      authority to exploit phobias permit? Could a detainee be held in a
      coffin? What about using dogs? Rats? How far could an interrogator
      push this? Until a man went insane?

      Mora drew Haynes's attention to a comment that Rumsfeld had added to
      the bottom of his December 2nd memo, in which he asked why detainees
      could be forced to stand for only four hours a day, when he himself
      often stood "for 8-10 hours a day." Mora said that he understood that
      the comment was meant to be jocular. But he feared that it could
      become an argument for the defense in any prosecution of terror
      suspects. It also could be read as encouragement to disregard the
      limits established in the memo. (Colonel Lawrence Wilkerson, a retired
      military officer who was a chief of staff to former Secretary of State
      Colin Powell, had a similar reaction when he saw Rumsfeld's scrawled
      aside. "It said, `Carte blanche, guys,' " Wilkerson told me. "That's
      what started them down the slope. You'll have My Lais then. Once you
      pull this thread, the whole fabric unravels.")

      Haynes said little during the meeting with Mora, but Mora left the
      room certain that Haynes would realize he had been too hasty, and
      would get Rumsfeld to revoke the inflammatory December 2nd memo. Mora
      told me, "My feeling was it was just a blunder." The next day, he left
      Washington for a two-week Christmas holiday.

      The authorization of harsh interrogation methods which Mora had seen
      was no aberration. Almost immediately after September 11th, the
      Administration had decided that protecting the country required
      extraordinary measures, including the exercise of executive powers
      exceeding domestic and international norms. In January, 2002, Alberto
      Gonzales, then the White House counsel (he is now the Attorney
      General), sent a memo to President Bush arguing for a "new paradigm"
      of interrogation, declaring that the war on terror "renders obsolete"
      the "strict limitations on questioning of enemy prisoners" required by
      the Geneva conventions, which were ratified by the United States in
      1955. That August, the Justice Department's Office of Legal Counsel,
      which acts as an in-house law firm for the executive branch, issued a
      memo secretly authorizing the C.I.A. to inflict pain and suffering on
      detainees during interrogations, up to the level caused by "organ
      failure." This document, now widely known as the Torture Memo, which
      Addington helped to draft, also advised that, under the doctrine of
      "necessity," the President could supersede national and international
      laws prohibiting torture. (The document was leaked to the press in
      2004, after the Abu Ghraib scandal broke.)

      Lawrence Wilkerson, whom Powell assigned to monitor this unorthodox
      policymaking process, told NPR last fall of "an audit trail that ran
      from the Vice-President's office and the Secretary of Defense down
      through the commanders in the field." When I spoke to him recently, he
      said, "I saw what was discussed. I saw it in spades. From Addington to
      the other lawyers at the White House. They said the President of the
      United States can do what he damn well pleases. People were arguing
      for a new interpretation of the Constitution. It negates Article One,
      Section Eight, that lays out all of the powers of Congress, including
      the right to declare war, raise militias, make laws, and oversee the
      common defense of the nation." Cheney's view, Wilkerson suggested, was
      fuelled by his desire to achieve a state of "perfect security." He
      said, "I can't fault the man for wanting to keep America safe, but
      he'll corrupt the whole country to save it." (Wilkerson left the State
      Department with Powell, in January, 2005.)

      At the time, the Administration's embrace of interrogation measures
      normally proscribed by the Army Field Manual remained largely unknown
      to the public. But while Mora was on Christmas vacation, the
      Washington Post published a story, by Dana Priest and Barton Gellman,
      alleging that C.I.A. personnel were mistreating prisoners at the
      Bagram military base, in Afghanistan. Kenneth Roth, the director of
      Human Rights Watch, warned that if this was true U.S. officials who
      knew about it could be criminally liable, under the doctrine of
      command responsibility. The specific allegations closely paralleled
      what Mora had seen authorized at Guantánamo.

      Upon returning to work on January 6, 2003, Mora was alarmed to learn
      from Brant that the abuse at Guantánamo had not stopped. In fact, as
      Time reported last year, Qahtani had been stripped and shaved and told
      to bark like a dog. He'd been forced to listen to pop music at an
      ear-splitting volume, deprived of sleep, and kept in a painfully cold
      room. Between confessing to and then recanting various terrorist
      plots, he had begged to be allowed to commit suicide.

      Mora suspected that such abuse was a deliberate policy, and widened
      his internal campaign in the hope of building a constituency against
      it. In the next few days, his arguments reached many of the Pentagon's
      top figures: Deputy Secretary of Defense Paul Wolfowitz; Captain Jane
      Dalton, the legal adviser to the Joint Chiefs of Staff; Victoria
      Clarke, who was then the Pentagon spokeswoman; and Rumsfeld.

      Meanwhile, on January 9, 2003, Mora had a second meeting with Haynes.
      According to Mora's memo, when he told him how disappointed he was
      that nothing had been done to end the abuse at Guantánamo, Haynes
      explained that "U.S. officials believed the techniques were necessary
      to obtain information," and that the interrogations might prevent
      future attacks against the U.S. and save American lives. Mora
      acknowledged that he could imagine "ticking bomb" scenarios, in which
      it might be moral—though still not legal—to torture a suspect. But, he
      asked Haynes, how many lives had to be saved to justify torture?
      Thousands? Hundreds? Where do you draw the line? To decide this
      question, shouldn't there be a public debate?

      Mora said he doubted that Guantánamo presented such an urgent ethical
      scenario in any event, since most of the detainees had been held there
      for more than a year. He also warned Haynes that the legal opinions
      the Administration was counting on to protect itself might not
      withstand scrutiny—such as the notion that Guantánamo was beyond the
      reach of U.S. courts. (Mora was later proved right: in June, 2004, the
      Supreme Court, in Rasul v. Bush, ruled against the Administration's
      argument that detainees had no right to challenge their imprisonment
      in American courts. That month, in a related case, Justice Sandra Day
      O'Connor declared that "a state of war is not a blank check for the

      Mora told Haynes that, if the Pentagon's theories of indemnity didn't
      hold up in the courts, criminal charges conceivably could be filed
      against Administration officials. He added that the interrogation
      policies could threaten Rumsfeld's tenure, and could even damage the
      Presidency. "Protect your client!" he said.

      Haynes, again, didn't say much in response, but soon afterward, at a
      meeting of top Pentagon officials, he mentioned Mora's concerns to
      Secretary Rumsfeld. A former Administration official told me that
      Rumsfeld was unconcerned; he once more joked that he himself stood
      eight hours a day, and exclaimed, "Torture? That's not torture!" ("His
      attitude was `What's the big deal?' " the former official said.) A
      subordinate delicately pointed out to Rumsfeld that while he often
      stood for hours it was because he chose to do so, and he could sit
      down when he wanted. Victoria Clarke, the Pentagon spokeswoman, also
      argued that prisoner abuse was bad from a public-relations
      perspective. (Clarke declined to discuss her conversations with
      Administration officials, other than to say that she regarded Mora as
      "a very thoughtful guy, who I believed had a lot of important things
      to say.")

      By mid-January, the situation at Guantánamo had not changed. Qahtani's
      "enhanced" interrogation, as it was called in some documents, was in
      its seventh week, and other detainees were also being subjected to
      extreme treatment. Mora continued to push for reform, but his former
      Pentagon colleague told me that "people were beginning to roll their
      eyes. It was like `Yeah, we've already heard this.' "

      On January 15th, Mora took a step guaranteed to antagonize Haynes, who
      frequently warned subordinates to put nothing controversial in writing
      or in e-mail messages. Mora delivered an unsigned draft memo to
      Haynes, and said that he planned to "sign it out" that
      afternoon—making it an official document—unless the harsh
      interrogation techniques were suspended. Mora's draft memo described
      U.S. interrogations at Guantánamo as "at a minimum cruel and unusual
      treatment, and, at worst, torture."

      By the end of the day, Haynes called Mora with good news. Rumsfeld was
      suspending his authorization of the disputed interrogation techniques.
      The Defense Secretary also was authorizing a special "working group"
      of a few dozen lawyers, from all branches of the armed services,
      including Mora, to develop new interrogation guidelines.

      Mora, elated, went home to his wife and son, with whom he had felt
      bound not to discuss his battle. He and the other lawyers in the
      working group began to meet and debated the constitutionality and
      effectiveness of various interrogation techniques. He felt, he later
      told me, that "no one would ever learn about the best thing I'd ever
      done in my life."

      A week later, Mora was shown a lengthy classified document that
      negated almost every argument he had made. Haynes had outflanked him.
      He had solicited a separate, overarching opinion from the Office of
      Legal Counsel, at the Justice Department, on the legality of harsh
      military interrogations—effectively superseding the working group.

      There was only one copy of the opinion, and it was kept in the office
      of the Air Force's general counsel, Mary Walker, whom Rumsfeld had
      appointed to head the working group. While Walker sat at her desk,
      Mora looked at the document with mounting disbelief; at first, he
      thought he had misread it. There was no language prohibiting the
      cruel, degrading, and inhuman treatment of detainees. Mora told me
      that the opinion was sophisticated but displayed "catastrophically
      poor legal reasoning." In his view, it approached the level of the
      notorious Supreme Court decision in Korematsu v. United States, in
      1944, which upheld the government's internment of Japanese-Americans
      during the Second World War.

      The author of the opinion was John Yoo, a young and unusually
      influential lawyer in the Administration, who, like Haynes, was part
      of Addington's circle. (Yoo and Haynes were also regular racquetball
      partners.) In the past, Yoo, working closely with Addington, had
      helped to formulate the argument that the treatment of Al Qaeda and
      Taliban suspects, unlike that of all other foreign enemies, was not
      covered by the Geneva conventions; Yoo had also helped to write the
      Torture Memo. Before joining the Administration, Yoo, a graduate of
      Yale Law School, had clerked for Justice Clarence Thomas and taught
      law at Berkeley. Like many conservative legal scholars, he was
      skeptical of international law, and believed that liberal
      congressional overreaction to the Vietnam War and Watergate had
      weakened the Presidency, the C.I.A., and the military. However, Yoo
      took these arguments further than most. Constitutional scholars
      generally agreed that the founders had purposefully divided the power
      to wage war between Congress and the executive branch; Yoo believed
      that the President's role as Commander-in-Chief gave him virtually
      unlimited authority to decide whether America should respond
      militarily to a terror attack, and, if so, what kind of force to use.
      "Those decisions, under our Constitution, are for the President alone
      to make," he wrote in a law article.

      A top Administration official told me that Yoo, Addington, and a few
      other lawyers had essentially "hijacked policy" after September 11th.
      "They thought, Now we can put our views into practice. We have the
      ability to write them into binding law. It was just shocking. These
      memos were presented as faits accomplis."

      In Yoo's opinion, he wrote that at Guantánamo cruel, inhumane, and
      degrading treatment of detainees could be authorized, with few

      "The memo espoused an extreme and virtually unlimited theory of the
      extent of the President's Commander-in-Chief authority," Mora wrote in
      his account. Yoo's opinion didn't mention the most important legal
      precedent defining the balance of power between Congress and the
      President during wartime, Youngstown Sheet & Tube Company v. Sawyer.
      In that 1952 case, the Supreme Court stopped President Truman from
      forcing the steel worker's union, which had declared a strike, to
      continue producing steel needed in the Korean War. The Court upheld
      congressional labor laws protecting the right to strike, and ruled
      that the President's war powers were at their weakest when they were
      challenging areas in which Congress had passed legislation. Torture,
      Mora reasoned, had been similarly regulated by Congress through
      treaties it had ratified.

      In an e-mail response to questions this month, Yoo, who is now back at
      Berkeley, defended his opinion. "The war on terrorism makes Youngstown
      more complicated," he said. "The majority opinion explicitly said it
      was not considering the President's powers as Commander-in-Chief in
      the theater of combat. The difficulty for Youngstown created by the
      9/11 attacks is that the theater of combat now includes parts of the
      domestic United States." He also argued that Congress had ceded power
      to the President in its authorization of military force against the
      perpetrators of the September 11th attacks.

      Mora concluded that Yoo's opinion was "profoundly in error." He wrote
      that it "was clearly at variance with applicable law." When we spoke,
      he added, "If everything is permissible, and almost nothing is
      prohibited, it makes a mockery of the law." A few days after reading
      Yoo's opinion, he sent an e-mail to Mary Walker, saying that the
      document was not only "fundamentally in error" but "dangerous,"
      because it had the weight of law. When the Office of Legal Counsel
      issues an opinion on a policy matter, it typically requires the
      intervention of the Attorney General or the President to reverse it.

      Walker wrote back, "I disagree, and I believe D.O.D. G.C."—Haynes, the
      Pentagon's general counsel—"disagrees."

      On February 6th, Mora invited Yoo to his office, in the Pentagon, to
      discuss the opinion. Mora asked him, "Are you saying the President has
      the authority to order torture?"

      "Yes," Yoo replied.

      "I don't think so," Mora said.

      "I'm not talking policy," Yoo said. "I'm just talking about the law."

      "Well, where are we going to have the policy discussion, then?" Mora

      Mora wrote that Yoo replied that he didn't know; maybe, he suggested,
      it would take place inside the Pentagon, where the defense-policy
      experts were. (Yoo said that he recalled discussing only how the
      policy issues should be debated, and where. Torture, he said, was not
      an option under consideration.)

      But Mora knew that there would be no such discussion; as the
      Administration saw it, the question would be settled by Yoo's opinion.
      Indeed, Mora soon realized that, under the supervision of Mary Walker,
      a draft working-group report was being written to conform with Yoo's
      arguments. Mora wrote in his memo that contributions from the working
      group "began to be rejected if they did not conform to the OLC"—Office
      of Legal Counsel—"guidance."

      The draft working-group report noted that the Uniform Code of Military
      Justice barred "maltreatment" but said, "Legal doctrine could render
      specific conduct, otherwise criminal, not unlawful." In an echo of the
      Torture Memo, it also declared that interrogators could be found
      guilty of torture only if their "specific intent" was to inflict
      "severe physical pain or suffering" as evidenced by "prolonged mental
      harm." Even then, it said, echoing Yoo, the Commander-in-Chief could
      order torture if it was a military necessity: "Congress may no more
      regulate the President's ability to detain and interrogate enemy
      combatants than it may regulate his ability to direct troop movements
      on the battlefield."

      A few days after his meeting with Yoo, Mora confronted Haynes again.
      He told him that the draft working-group report was "deeply flawed."
      It should be locked in a drawer, he said, and "never let out to see
      the light of day again." He advised Haynes not to allow Rumsfeld to
      approve it.

      In the spring of 2003, Mora waited for the final working-group report
      to emerge, planning to file a strong dissent. But the report never
      appeared. Mora assumed that the draft based on Yoo's ideas had not
      been finalized and that the suspension of the harsh techniques
      authorized by Rumsfeld was still in effect.

      In June, press accounts asserted that the U.S. was subjecting
      detainees to "stress and duress" techniques, including beatings and
      food deprivation. Senator Patrick Leahy, Democrat of Vermont, wrote to
      Secretary of State Condoleezza Rice, asking for a clear statement of
      the Administration's detainee policy. Haynes wrote a letter back to
      Leahy, which was subsequently released to the press, saying that the
      Pentagon's policy was never to engage in torture, or cruel, inhumane,
      or degrading treatment—just the sort of statement Mora had argued for.
      He wrote in his memo that he saw Haynes's letter as "the happy
      culmination of the long debates in the Pentagon." He sent an
      appreciative note to Haynes, saying that he was glad to be on his team.

      On April 28, 2004, ten months later, the first pictures from Abu
      Ghraib became public. Mora said, "I felt saddened and dismayed.
      Everything we had warned against in Guantánamo had happened—but in a
      different setting. I was stunned."

      He was further taken aback when he learned, while watching Senate
      hearings on Abu Ghraib on C-SPAN, that Rumsfeld had signed the
      working-group report—the draft based on Yoo's opinion—a year earlier,
      without the knowledge of Mora or any other internal legal critics.
      Rumsfeld's signature gave it the weight of a military order. "This was
      the first I'd heard of it!" Mora told me. Mora wrote that the Air
      Force's deputy general counsel, Daniel Ramos, told him that the final
      working-group report had been "briefed" to General Miller, the
      commander of Guantánamo, and General James Hill, the head of the
      Southern Command, months earlier. (The Pentagon confirmed this, though
      it said that the generals had not seen the full report.) "It was
      astounding," Mora said. "Obviously, it meant that the working-group
      report hadn't been abandoned, and that some version of it had gotten
      into the generals' possession."

      The working-group report included a list of thirty-five possible
      interrogation methods. On April 16, 2003, the Pentagon issued a
      memorandum to the U.S. Southern Command, approving twenty-four of them
      for use at Guantánamo, including isolation and what it called "fear up
      harsh," which meant "significantly increasing the fear level in a
      detainee." The Defense Department official told me, "It should be
      noted that there were strong advocates for the approval of the full
      range of thirty-five techniques," but Haynes was not among them. The
      techniques not adopted included nudity; the exploitation of
      "aversions," such as a fear of dogs; and slaps to the face and
      stomach. However, combined with the legal reasoning in the
      working-group report, the April memorandum allowed the Secretary to
      approve harsher methods.

      Without Mora's knowledge, the Pentagon had pursued a secret detention
      policy. There was one version, enunciated in Haynes's letter to Leahy,
      aimed at critics. And there was another, giving the operations
      officers legal indemnity to engage in cruel interrogations, and, when
      the Commander-in-Chief deemed it necessary, in torture. Legal critics
      within the Administration had been allowed to think that they were
      engaged in a meaningful process; but their deliberations appeared to
      have been largely an academic exercise, or, worse, a charade. "It
      seems that there was a two-track program here," said Martin Lederman,
      a former lawyer with the Office of Legal Counsel, who is now a
      visiting professor at Georgetown. "Otherwise, why would they share the
      final working-group report with Hill and Miller but not with the
      lawyers who were its ostensible authors?"

      Lederman said that he regarded Mora as heroic for raising crucial
      objections to the Administration's interrogation policy. But he added
      that Mora was unrealistic if he thought that, by offering legal
      warnings, he could persuade the leaders of the Administration to
      change its course. "It appears that they weren't asking to be warned,"
      Lederman said.

      The senior Defense Department official defended as an act of necessary
      caution the decision not to inform Mora and other legal advisers of
      official policy. The interrogation techniques authorized in the signed
      report, he explained, were approved only for Guantánamo, and the
      Pentagon needed to prevent the practices from spreading to other
      battlefronts. "If someone wants to criticize us for being too careful,
      I accept that criticism willingly, because we were doing what we could
      to limit the focus of that report . . . to Guantánamo," the official

      In fact, techniques that had been approved for use at Guantánamo were
      quickly transferred elsewhere. Four months after General Miller was
      briefed on the working-group report, the Pentagon sent him to Iraq, to
      advise officials there on interrogating Iraqi detainees. Miller, who
      arrived with a group of Guantánamo interrogators, known as the Tiger
      Team, later supervised all U.S.-run prisons in Iraq, including Abu
      Ghraib. And legal advisers to General Ricardo Sanchez, the senior U.S.
      commander in Iraq at the time, used the report as a reference in
      determining the limits of their interrogation authority, according to
      a Pentagon report on Abu Ghraib.

      A lawyer involved in the working group said that the Pentagon's
      contention that it couldn't risk sharing the report with its authors
      "doesn't make any sense." He explained, "We'd seen everything
      already." The real reason for their exclusion, he speculated, was to
      avoid dissent. "It would have put them in a bind," he said. "And it
      would have created a paper trail."

      Meanwhile, Mora's warnings about the legal underpinnings of the
      working-group report proved prophetic. In December, 2003, in an
      extraordinary repudiation of the Administration's own legal work, the
      Office of Legal Counsel quietly withdrew the Yoo opinion. The new head
      of the O.L.C., Jack Goldsmith, a conservative legal scholar who now
      teaches at Harvard Law School, told the Pentagon that it could no
      longer rely on the legal analysis. Among other problems, Goldsmith had
      found Yoo's interpretation of the President's powers overly broad. In
      March, 2005, the Pentagon declared the working-group report a
      non-operational "historical" document. By that time, however, much of
      the most serious abuse at Guantánamo had already occurred.

      At the Pentagon in recent weeks, officials portrayed Mora's memo as
      ancient history. They argued that they had acted quickly to rectify
      the wrongs he helped expose, by limiting the list of approved
      interrogation techniques. But while Mora believes that the use of
      cruel treatment in interrogation has diminished, he feels that the
      fight to establish clear, humane standards for the treatment of
      detainees is not over. He also worries that the Administration's views
      on interrogation have undermined American foreign policy, in part by
      threatening the international coalition needed to fight terrorism.
      Allied countries may not be able to support U.S. military actions, he
      said, if detainees are treated in a manner that most nations deemed

      Just a few months ago, Mora attended a meeting in Rumsfeld's private
      conference room at the Pentagon, called by Gordon England, the Deputy
      Defense Secretary, to discuss a proposed new directive defining the
      military's detention policy. The civilian Secretaries of the Army, the
      Air Force, and the Navy were present, along with the highest-ranking
      officers of each service, and some half-dozen military lawyers.
      Matthew Waxman, the deputy assistant secretary of defense for detainee
      affairs, had proposed making it official Pentagon policy to treat
      detainees in accordance with Common Article Three of the Geneva
      conventions, which bars cruel, inhumane, and degrading treatment, as
      well as outrages against human dignity.Going around the huge wooden
      conference table, where the officials sat in double rows, England
      asked for a consensus on whether the Pentagon should support Waxman's

      This standard had been in effect for fifty years, and all members of
      the U.S. armed services were trained to follow it. One by one, the
      military officers argued for returning the U.S. to what they called
      the high ground. But two people opposed it. One was Stephen Cambone,
      the under-secretary of defense for intelligence; the other was Haynes.
      They argued that the articulated standard would limit America's
      "flexibility." It also might expose Administration officials to
      charges of war crimes: if Common Article Three became the standard for
      treatment, then it might become a crime to violate it. Their
      opposition was enough to scuttle the proposal.

      In exasperation, according to another participant, Mora said that
      whether the Pentagon enshrined it as official policy or not, the
      Geneva conventions were already written into both U.S. and
      international law. Any grave breach of them, at home or abroad, was
      classified as a war crime. To emphasize his position, he took out a
      copy of the text of U.S. Code 18.2441, the War Crimes Act, which
      forbids the violation of Common Article Three, and read from it. The
      point, Mora told me, was that "it's a statute. It exists—we're not
      free to disregard it. We're bound by it. It's been adopted by the
      Congress. And we're not the only interpreters of it. Other nations
      could have U.S. officials arrested."

      Not long afterward, Waxman was summoned to a meeting at the White
      House with David Addington. Waxman declined to comment on the
      exchange, but, according to the Times, Addington berated him for
      arguing that the Geneva conventions should set the standard for
      detainee treatment. The U.S. needed maximum flexibility, Addington
      said. Since then, efforts to clarify U.S. detention policy have
      languished. In December, Waxman left the Pentagon for the State

      To date, no charges have been brought against U.S. personnel in
      Guantánamo. The senior Defense Department official I spoke to affirmed
      that, in the Pentagon's view, Qahtani's interrogation was "within the
      bounds." Elsewhere in the world, as Mora predicted, the controversy is
      growing. Last week, the United Nations Human Rights Commission called
      for the U.S. to shut down the detention center at Guantánamo, where,it
      said, some practices "must be assessed as amounting to torture." The
      U.N. report, which the White House dismissed, described "the confusion
      with regard to authorized and unauthorized interrogation techniques"
      as "particularly alarming."

      Mora recently started a new job, as the general counsel for Wal-Mart's
      international operations. A few days after his going-away party, he
      reflected on his tenure at the Pentagon. He felt that he had witnessed
      both a moral and a legal tragedy.

      In Mora's view, the Administration's legal response to September 11th
      was flawed from the start, triggering a series of subsequent errors
      that were all but impossible to correct. "The determination that
      Geneva didn't apply was a legal and policy mistake," he told me. "But
      very few lawyers could argue to the contrary once the decision had
      been made."

      Mora went on, "It seemed odd to me that the actors weren't more
      troubled by what they were doing." Many Administration lawyers, he
      said, appeared to be unaware of history. "I wondered if they were even
      familiar with the Nuremberg trials—or with the laws of war, or with
      the Geneva conventions. They cut many of the experts on those areas
      out. The State Department wasn't just on the back of the bus—it was
      left off the bus." Mora understood that "people were afraid that more
      9/11s would happen, so getting the information became the overriding
      objective. But there was a failure to look more broadly at the

      "These were enormously hardworking, patriotic individuals," he said.
      "When you put together the pieces, it's all so sad. To preserve
      flexibility, they were willing to throw away our values."



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