Heather Mac Donald's "Few Bad Apples" Theory of Abuse

Marty Lederman

A couple of weeks ago, I posted a short critique of a recent article by Heather Mac Donald in the Manhattan Institute’s City Journal. Ms. Mac Donald has replied to my post on the City Journal website, and has asked that I link to her reply here, a request that I am happy to oblige.

Ms. Mac Donald’s principal argument in her reply is that the confirmed and alleged abuses at Abu Ghraib (and presumably also those in Afghanistan and Guantanamo) were not the result of Administration decisions in Washington about how to construe the law to permit severely coercive forms of interrogation of detainees, but instead were caused by the failure of “grunts on the ground” to adhere to the official policies that the Pentagon had promulgated. More specifically, Ms. Mac Donald argues that if interrogators had only limited themselves to the 24 specific techniques approved in Secretary Rumsfeld’s April 16, 2003 Memorandum, the torture scandal as we know it would never have occurred.

In sum, Ms. Mac Donald’s story is that the Pentagon developed a measured and reasonable protocol for interrogation; but that a bunch of bad apples ruined everything by going far beyond what the Pentagon had authorized. “The abuse in Iraq resulted from a violation of the rules, not from compliance with them.”

Before addressing Ms. Mac Donald’s very selective and misleading account, I think it’s important to emphasize that she and I appear to agree on at least two things:

First, my principal focus in posts here over the past couple of weeks has been the law as it applies to CIA interrogations, and the fact that the Administration has authorized the CIA to engage in cruel, inhuman and degrading treatment—just short of statutory “torture”—of non-Geneva-protected detainees outside the United States. In her original article, Mac Donald basically agrees: She reports that, according to “a former Justice Department official,” the CIA has been authorized to use techniques as extreme as waterboarding, i.e., submerging a detainee in water to induce the sensation of drowning. Beyond that, Mac Donald concedes that “[t]he CIA’s behavior remains a black box.” Mac Donald also agrees that the 2002 OLC Memorandum on the torture statute was intended to guide CIA conduct, that the memo was “hair-raising,” and that it “understandably caused widespread alarm.” She goes on to argue that the OLC Memo “had nothing to do” with the interrogation “debates and experiments unfolding among Pentagon interrogators in Afghanistan and Cuba,” and had no connection to the abuses at Abu Ghraib, or to the extreme methods of military interrogation that have been alleged at Guantanamo and elsewhere. I think that’s mistaken, for reasons I’ll explain below; but, in any event, Mac Donald and I do not disagree on the story about the CIA that’s at the heart of my series of posts—an account that has now been confirmed in Judge Gonzales’s answers to the Senate Judiciary Committee and in an L.A. Times story today that largely reiterates what I’ve been writing here (with the addition of a few quotations from John Yoo that confirm the basic gist of the CIA story).

Second, I do not disagree that if Rumsfeld’s April 16th Memorandum were the be-all and end-all that Mac Donald makes it out to be, we wouldn’t be having this torture debate today. The Rumsfeld Memo refers to all sorts of purported bureaucratic safeguards, and requires at a minimum that all detainees be treated humanely. I am skeptical about whether Rumsfeld sincerely believed that all of the approved techniques could consistently be applied “humanely.” But be that as it may, and assuming for the sake of argument that humaneness truly were an absolute requirement, then I agree that had the Administration not in practice gone beyond the letter of that April 16th memo, it’s unlikely we’d presently be faced with the legal questions and moral dilemmas that I and others have been discussing.

But, of course, the Administration has gone far beyond the April 16th Rumsfeld memo. Is the Pentagon itself responsible for this? Or should officials in Washington be shocked and outraged that operatives in the field have so cavalierly ignored Rumsfeld’s parameters? Truth be told, I am not very interested in assigning blame for what has happened thus far. That is a role better served by others who have much more access to the relevant information and who can put the historical pieces together much more accurately and comprehensively than I can hope to do. My objectives, instead, have been to try to ascertain just what the current policies and practices are, to untangle the Administration’s view of what current law permits, and to encourage a public debate about what the law ought to be, going forward.

Nevertheless, Ms. Mac Donald's specific argument warrants a few responses:

1. By their terms, the Rumsfeld rules were supposed to be limited to Guantanamo, where (according to the President) Geneva protections did not apply. Thus, Ms. Mac Donald claims that the Rumsfeld-approved techniques were used on only one detainee (Kahtani), that “the decision on the Geneva conventions was irrelevant to interrogation practices in Iraq,” and that “[e]veryone in the military chain of command emphasized repeatedly that the Iraq conflict would be governed by the conventions in their entirety.” We now know that to be wrong. Judge Gonzales has acknowledged the Administration’s determination that suspected insurgents in Iraq, like al Qaeda operatives, are not entitled to Geneva protection—which, among other things, presumably means that the CIA is free to use cruel, inhuman and degrading techniques on Iraqi insurgents, too (although this is not yet clear—in particular, we do not yet know how, if at all, the Administration is implementing Geneva Common Article 3 in Iraq). And Ms. Mac Donald herself begins her reply by citing chapter and verse of the Interrogation Rules of Engagement that were provided to all interrogators and soldiers in Iraq—rules that not only incorporate the techniques approved in the Rumsfeld April 16th memo, but also additional techniques (e.g., three days of sensory deprivation; 45 minutes of "stress position; isolation for more than 30 days) that go beyond Rumsfeld's rules -- and, therefore, well beyond what Geneva would allow and what has been permitted in the Army Field Manual for decades.

2. As applied by the military—even at GTMO—the Rumsfeld-approved techniques were not nearly so benign as they appeared on paper. For example:

-- Rumsfeld approved adjusting sleep cycles but not sleep deprivation. And yet the military reportedly employed prolonged sleep deprivation at GTMO. And in Iraq, the combination of the "sleep management" and "stress positions" techniques approved in the Rules of Engagement provided to all interrogators and soldiers in Iraq led to instances in which hooded detainees were required to stand still on a box for hours, which can lead to excruciating pain and disorientation. Thus, as Phillip Carter has suggested, the most iconic image from Abu Ghraib--that of a man standing hooded on a box with wires attached--was most likely an amateurish attempt by untrained MPs to implement two of DoD's approved techniques (sleep deprivation and stress position)--techniques that Ms. Mac Donald somewhat shockingly invokes on the very first page of her reply in support of her thesis that officially sanctioned techniques were moderate and reasonable.

-- Rumsfeld approved altering the environment to “create moderate discomfort.” At GTMO, that was translated as tormenting prisoners by chaining them to a low chair for hours with bright flashing lights in their eyes and audio tapes of Lil' Kim, Rage Against the Machine and Eminem played loudly next to their ears (or in some cases a tape mix of babies crying and the television commercial for Meow Mix in which the jingle consists of repetition of the word "meow");

-- Rumsfeld approved “false flag,” i.e., “convincing the detainee that individuals from a country other than the United States are interrogating him.” At GTMO, that apparently meant convincing detainees that they were being interrogated by individuals likely to torture them (i.e., effectively a threat of torture); and in at least one case, the “convincing” consisted of tranquilizing a detainee, placing him in sensory deprivation garb with blackened goggles, hustling him aboard a plane that was supposedly taking him to the Middle East, and bringing him (unknowingly) back to GITMO, where he was put in an isolation cell and there subjected to harsh interrogation procedures that he was encouraged to believe were being conducted by Egyptian national security operatives.

Did the Pentagon condemn and punish these applications of the Rumsfeld techniques—which almost certainly violate the UCMJ, not to mention the President’s “humaneness” directive? Encourage them? Turn a blind eye? We don’t yet know for certain.

3. What explains the considerable gap between the Rumsfeld rules as written and the rules as applied? Well, to begin with, the Rumsfeld April 16th Memo was hardly the only guidance that was provided within the military. As I’ve previously recounted, the Fay, Jones and Schlesinger Reports explain in detail that the “existence of confusing and inconsistent interrogation technique policies,” including a “proliferation of guidance and information from other theatres of operation,” and the fact that personnel involved in interrogation in GTMO and Afghanistan “were called upon to establish and conduct interrogation operations in Abu Ghraib,” all contributed “to the belief that additional interrogation techniques were condoned in order to gain intelligence” (Jones 15-16; Fay 8, 10, 22). “The lines of authority and the prior legal opinions blurred” (Fay 10), and “DoD’s development of multiple policies on interrogation operations for use in different theatres or operations confused Army and civilian Interrogators at Abu Ghraib” (Fay Finding No. 7).

4. One prime example of this was Rumsfeld’s own approval on December 2, 2002 of much more severe techniques—including hooding, forced nudity, grabbing, poking and pushing, and the use of dogs “to induce stress.” To be sure, Rumsfeld rescinded that approval on January 15, 2003. But, more importantly, he did not, as far as we know, ever rescind his conclusion that these techniques were lawful. To the contrary, in that same January 15th memo, Rumsfeld specifically noted that the techniques could be used in a particular case if adequately justified and approved by Rumsfeld himself. Rumsfeld nowhere explained how such techniques could possibly pass muster under the UCMJ or the President’s February 2002 directive.

5. Even more telling is the November 27, 2002 memorandum of DoD General Counsel William Haynes, in which Haynes relates to Rumsfeld his conclusion—which was approved by a Deputy Secretary, by Doug Feith, and by General Myers—that not only the techniques Rumsfeld approved on December 2d, but also the following techniques, were “legally available”:

-- “The use of scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family”:

-- “Exposure to cold weather or water (with appropriate medical monitoring)”; and

-- “Use of a wet towel and dripping water to induce the misperception of suffocation.”

Let’s be very clear about this: The DoD General Counsel (who’s recently been renominated for a seat on the U.S. Court of Appeals for the Fourth Circuit) concluded that threats of killing a detainee’s family members, and waterboarding, and forced nudity, and the use of dogs to induce stress, etc., not only did not violate the UCMJ, but are “humane”! There is no indication in the public record that Secretary Rumsfeld or any other high-level DoD official ever contradicted or overruled these legal conclusions—and every indication that Rumsfeld agreed with them.

6. Rumsfeld then directed Haynes to establish the DoD Working Group to address the legal issues. The Working Group included representatives of the General Counsels and JAGs of all the Armed Forces, of the Office of the Undersecretary of Defense for Policy and the DIA. The Working Group exhaustively canvassed all of the possible legal constraints—including the UCMJ—and then concluded on April 4, 2003 that the following are among the techniques that are lawful for military interrogations: placing a hood over detainees during questioning; 20-hour interrogations; four days of sleep deprivation; forced nudity to create a “feeling of helplessness and dependence”; increasing “anxiety” through the use of dogs; quick, glancing slaps to the face or stomach; and the threat of transfer to another nation that might subject the detainee to torture or death.

7. How could all of these DoD lawyers and top-ranking officials (including Rumsfeld and Feith) possibly conclude that these techniques were “humane”? That such techniques would not obviously violate the UCMJ (including its prohibitions on cruelty, oppression, maltreatment, assaults and threats)? That such techniques would not be “cruel, inhuman and degrading,” and thus violate Article 16 of the Convention Against Torture? One possibility—the only possibility that comes to mind—is that DoD was influenced by OLC's conclusion that the President could, pursuant to his Commander-in-Chief power, override these legal constraints, and could in effect immunize such conduct, thereby rendering inoperative the UCMJ, Article 16, and the President’s own “humane treatment” directive—a conclusion that was adopted almost verbatim as a detailed component of the DoD Working Group Report.

8. Ms. Mac Donald argues that neither the more aggressive DoD “proposals,” nor the DOJ analysis of the Commander-in-Chief power, could possibly have influenced what she refers to as the “grunts on the ground in Iraq,” because none of those analyses and techniques made their way into Rumsfeld’s set of approved techniques on April 16th. I suppose that’s theoretically possible—that in the 12 days between the Working Group Report and Rumsfeld’s April 16th Memo, DoD finally did an about-face and realized that all of these other, more extreme techniques were unlawful. But there’s no reason for us to think so. And the Fay Report directly contradicts this theory: “The lines of authority and the prior legal opinions blurred” (Fay 10), and “DoD’s development of multiple policies on interrogation operations for use in different theatres or operations confused Army and civilian Interrogators at Abu Ghraib” (Fay Finding No. 7).

Are we really supposed to assume that the legal analysis permeating one Pentagon document after another never found its way out of Northern Virginia? Isn’t it more realistic to assume, for example, that Major General Miller—who was sent to Iraq to “GTMOize” the interrogation procedures there—was fully aware of the DoD conclusions that threats of death, use of dogs, forced nudity, waterboarding, etc., are not only lawful but “humane”? And isn’t it also fair to assume that General Miller’s understanding of what is lawful and humane—even if not expressly authorized by Rumsfeld on April 16th—might have contributed to the interrogation regime over which he had authority in Iraq?

Moreover, when the soldiers "on the ground" in Iraq repeatedly sought specific advice about proper interrogation parameters, the Pentagon was, at best, suspiciously unforthcoming about the governing rules. This is the way General Paul Kern, the appointing authority for the Jones/Fay investigations, delicately put the point: "The people who were conducting the interrogations clearly were feeling a lot of pressure to produce intelligence, as they should have been. That's what the purpose of the interrogation is. And in looking for . . . guidance, they were submitting requests back and forth, which were never in our view completely clarified. So they were using drafts of other processes that they had known and they were asking for clarity, which in the end resulted in a couple of memos which were published by the Combined Joint Task Force for them to use. But in the end, it did not absolutely make it clear what the boundaries were." Gosh, it's really a shame, isn't it, that no one thought to simply promulgate the Army Field Manual in response to such requests for guidance in Iraq? Indeed, even if the Pentagon had concluded that the Rumsfeld rules for GTMO should have applied to Iraq, how hard would it have been to circulate those rules--along with their limitations and bureaucratic safeguards--to all Iraqi interrogators? Was the failure to provide any such consistent, clear guidance a simple oversight?

9. But that’s not all. Even putting aside the possible influence of the legal conclusions in numerous Pentagon documents, we must also consider what the military interrogators at GTMO and in Iraq were observing. For one thing, the Fay Report relates that the extreme techniques used by the CIA, based upon OLC legal advice, “led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib” (pp. 52-53). Indeed, the CIA practices and techniques led to a “perception” that such techniques and practices “were suitable and authorized for DoD operations” (pp. 118-119).

10. Furthermore, such extreme techniques apparently are not reserved for use by the CIA, or for use upon “high value” al Qaeda detainees. Seymour Hersh reported last May that Rumsfeld and Under-Secretary Cambone have established secret special access programs (SAPs) within DoD that are authorized to use rough treatment, and sexual humiliation, in interrogating not only suspected al Qaeda operatives, but also the numerous persons rounded up as possible “insurgents” in Iraq. As Bart Gellman reports in today’s Washington Post, Rumsfeld has further concluded that such operations need not be disclosed to Congress. If these reports are correct, there is a wholly secret interrogation regime within the Department of Defense that is playing by rules quite different from those found in Rumsfeld’s April 16th memo.

* * * *

In sum, it’s fair to conclude that Rumsfeld’s April 16th Memorandum was barely the tip of the iceberg, and that much more coercive, and more legally dubious, techniques have been approved for use—by the CIA and DoD—not only at GTMO and at secret CIA facilities, but in Iraq, as well. At the very least, the highest echelons of the Pentagon have determined—in at least several documents—that extremely harsh and coercive measures such as waterboarding, threatening to kill detainees and their families, and forced nudity, are not only legal but “humane,” notwithstanding several legal norms that would appear to prohibit such techniques. Did high-level Pentagon officials approve the particular, virulent forms of abuse that we’ve seen at Abu Ghraib? Of course not. (As Phillip Carter has written, it's not surprising that there is no "smoking gun" in the form of a chain of orders leading directly from Donald Rumsfeld to Lynndie England.) But that’s not the relevant question. The techniques that they have approved, or encouraged, or simply tolerated, would be more than disturbing enough even if the problem had gone no further. And once one understands what the Pentagon and the CIA did in fact approve, and what they repeatedly characterized as lawful and “humane”—such as waterboarding, forced nudity and sexual humiliation—it’s not hard to imagine how atrocities such as those at Abu Ghraib could also have occurred. Indeed, it is difficult to resist Phillip Carter's conclusion that "[t]he devastating scandal of Abu Ghraib wasn't a failure of implementation, as Rice and other administration defenders have admitted. It was a direct—and predictable—consequence of a policy, hatched at the highest levels of the administration, by senior White House officials and lawyers, in the weeks and months after 9/11." For further extensive eloquent treatment of this theme, see Andrew Sullivan’s landmark essay in today’s New York Times Book Review.

Finally, I can’t help noting the irony in the fact that Ms. Mac Donald now places such heavy reliance on Rumsfeld’s April 16th memo as the exemplar of a “reasonable and lawful response to the very real problem of detainee resistance to questioning.” I had thought that the whole point of Mac Donald’s original article was that interrogation techniques cannot be effective against al Qaeda unless and until they are made (i) far more coercive; and (ii) much less transparent. If U.S.-approved techniques are publicly known, she reasoned, “interrogators have lost the ability to create the uncertainty vital to getting terrorist information.” Al Qaeda suspects must be led to believe that U.S. law does not limit what our interrogators can do, something that Mac Donald suggests is only possible if ours is a secret law, with few, if any, acknowledged limits, and/or with rules that are easily broken or evaded. If the seven new techniques that Rumsfeld authorized on April 16, 2003 truly did, as Mac Donald now suggests, embody the outside limits of the techniques that U.S. interrogators are authorized to use, they would (on Mac Donald’s account) be hardly more useful than the 17 historical, and widely known, Army Field Manual techniques that Rumsfeld purported to supplement. However, as the world (including al Qaeda) now knows all too well, the April 16th memo does not begin to describe the outer limits of the extreme measures that the military and, especially, the CIA, have been authorized to use. The true, full account of what the Administration has authorized in the service of interrogation remains largely a mystery.

Posted 11:31 PM by Marty Lederman [link]