The Roots Of Torture

The story begins in the months after September 11, when a small band of conservative lawyers within the Bush administration staked out a forward-leaning legal position. The attacks by Al Qaeda on the World Trade Center and the Pentagon, these lawyers said, had plunged the country into a new kind of war. It was a conflict against a vast, outlaw, international enemy in which the rules of war, international treaties and even the Geneva Conventions did not apply. These positions were laid out in secret legal opinions drafted by lawyers from the Justice Department's Office of Legal Counsel, and then endorsed by the Department of Defense and ultimately by White House counsel Alberto Gonzales, according to copies of the opinions and other internal legal memos obtained by NEWSWEEK.

The Bush administration's emerging approach was that America's enemies in this war were "unlawful" combatants without rights. One Justice Department memo, written for the CIA late in the fall of 2001, put an extremely narrow interpretation on the international anti-torture convention, allowing the agency to use a whole range of techniques--including sleep deprivation, the use of phobias and the deployment of "stress factors"--in interrogating Qaeda suspects. The only clear prohibition was "causing severe physical or mental pain"--a subjective judgment that allowed for "a whole range of things in between," said one former administration official familiar with the opinion. On Dec. 28, 2001, the Justice Department Office of Legal Counsel weighed in with another opinion, arguing that U.S. courts had no jurisdiction to review the treatment of foreign prisoners at Guantanamo Bay. The appeal of Gitmo from the start was that, in the view of administration lawyers, the base existed in a legal twilight zone--or "the legal equivalent of outer space," as one former administration lawyer described it. And on Jan. 9, 2002, John Yoo of Justice's Office of Legal Counsel coauthored a sweeping 42-page memo concluding that neither the Geneva Conventions nor any of the laws of war applied to the conflict in Afghanistan.

Cut out of the process, as usual, was Colin Powell's State Department. So were military lawyers for the uniformed services. When State Department lawyers first saw the Yoo memo, "we were horrified," said one. As State saw it, the Justice position would place the United States outside the orbit of international treaties it had championed for years. Two days after the Yoo memo circulated, the State Department's chief legal adviser, William Howard Taft IV, fired a memo to Yoo calling his analysis "seriously flawed." State's most immediate concern was the unilateral conclusion that all captured Taliban were not covered by the Geneva Conventions. "In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions," Taft wrote. "I have no doubt we can do so here, where a relative handful of persons is involved."

The White House was undeterred. By Jan. 25, 2002, according to a memo obtained by NEWSWEEK, it was clear that Bush had already decided that the Geneva Conventions did not apply at all, either to the Taliban or Al Qaeda. In the memo, which was written to Bush by Gonzales, the White House legal counsel told the president that Powell had "requested that you reconsider that decision." Gonzales then laid out startlingly broad arguments that anticipated any objections to the conduct of U.S. soldiers or CIA interrogators in the future. "As you have said, the war against terrorism is a new kind of war," Gonzales wrote to Bush. "The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians." Gonzales concluded in stark terms: "In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."

Gonzales also argued that dropping Geneva would allow the president to "preserve his flexibility" in the war on terror. His reasoning? That U.S. officials might otherwise be subject to war-crimes prosecutions under the Geneva Conventions. Gonzales said he feared "prosecutors and independent counsels who may in the future decide to pursue unwarranted charges" based on a 1996 U.S. law that bars "war crimes," which were defined to include "any grave breach" of the Geneva Conventions. As to arguments that U.S. soldiers might suffer abuses themselves if Washington did not observe the conventions, Gonzales argued wishfully to Bush that "your policy of providing humane treatment to enemy detainees gives us the credibility to insist on like treatment for our soldiers."

When Powell read the Gonzales memo, he "hit the roof," says a State source. Desperately seeking to change Bush's mind, Powell fired off his own blistering response the next day, Jan. 26, and sought an immediate meeting with the president. The proposed anti-Geneva Convention declaration, he warned, "will reverse over a century of U.S. policy and practice" and have "a high cost in terms of negative international reaction." Powell won a partial victory: On Feb. 7, 2002, the White House announced that the United States would indeed apply the Geneva Conventions to the Afghan war--but that Taliban and Qaeda detainees would still not be afforded prisoner-of-war status. The White House's halfway retreat was, in the eyes of State Department lawyers, a "hollow" victory for Powell that did not fundamentally change the administration's position. It also set the stage for the new interrogation procedures ungoverned by international law.