Gonzales' Advice to Bush on How to Avoid War Crimes
by Jason Leopold,
t r u t h o u t | Report
On January 25, 2002, then-White House counsel Alberto Gonzales advised George W. Bush in a memo to deny al-Qaeda and
Taliban prisoners protections under the Geneva Conventions because doing so would "substantially reduces the threat of
domestic criminal prosecution under the War Crimes Act" and "provide a solid defense to any future prosecution."
Two weeks later, Bush signed an action memorandum dated February 7, 2002, addressed to Vice President Dick Cheney,
which denied baseline protections to al-Qaeda and Taliban prisoners under the Third Geneva Convention. That memo,
according to a recently released bipartisan report issued by the Senate Armed Services Committee, opened the door to
"considering aggressive techniques," which were then developed with the complicity of then-Defense Secretary Donald
Rumsfeld, Bush's National Security Adviser Condoleezza Rice, and other senior Bush officials.
"The President's order closed off application of Common Article 3 of the Geneva Conventions, which would have afforded
minimum standards for humane treatment, to al-Qaeda or Taliban detainees," says the committee's December 11 report.
"While the President's order stated that, as 'a matter of policy, the United States Armed Forces shall continue to
treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent
with the principles of the Geneva Conventions,' the decision to replace well established military doctrine, i.e., legal
compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees in
US custody."
The Supreme Court held in 2006, in Hamdan v. Rumsfeld, that the prisoners were entitled to protections under the Geneva
Conventions.
Many of the classified policy directives, such as Gonzales's memo to Bush, are now part of the public record thanks to
the American Civil Liberties Union's (ACLU) Freedom of Information Act lawsuit against the Bush administration, which
has so far resulted in the release of more than 100,000 pages of documents that shows how Bush officials twisted the law
in order to build a legal framework for torture.
These documents have been posted on the ACLU's web site. But several hundred of the most explosive records were
republished in the book "Administration of Torture" along with hard-hitting commentary by the ACLU's Jameel Jaffer, who
heads the group's National Security Project, and Amrit Singh, a staff attorney with the organization.
Rumsfeld Wanted a "Product"
On February 14, 2002, just one week after Bush signed the action memo, Maj. Gen. Mike Dunlavey was contacted by
Rumsfeld, who asked him to attend a Defense Department meeting with Rumsfeld, Wolfowitz, and others on February 21 or
22. At the meeting, Rumsfeld told Dunlavey he wanted him to oversee interrogations at the Guantanamo Bay naval facility
in Cuba. Prisoners captured by US military personnel had first arrived at Guantanamo a month earlier. Dunlavey was a
family court judge in Erie County, Pennsylvania, when he got the call from Rumsfeld and was placed in charge of
interrogations at Guantanamo.
Rumsfeld told Dunlavey, according to a witness statement he made on March 17, 2005, to US Air Force Lt. Gen. Randall
Schmidt, who was investigating FBI complaints about abuse at Guantanamo, that the Department of Defense had rounded up
"a number of bad guys" and the secretary of defense "wanted a product and wanted intelligence now."
Rumsfeld "wanted to set up interrogation operations and to identify the senior Taliban and senior operatives and to
obtain information on what they were going to do regarding their operations and structure," Dunlavey said, according to
a copy of his witness statement. "Initially, I was told that I would answer to SECDEF (Secretary of Defense) and [US
Southern Command]. The directions changed and I got my marching orders from the President of the United States. I was
told by the SECDEF that he wanted me back in Washington, DC every week to brief him.... The mission was to get
intelligence to prevent another 9/11."
Dunlavey did not explain what he meant by "I got my marching orders from the president." But his comments suggest that
Bush may have played a much larger role in the interrogation of prisoners than he has let on. Moreover, Dunlavey's
witness statement indicates that harsh interrogations, such as waterboarding, may have taken place earlier than
previously known and may have preceded an August 1, 2002, legal opinion issued by the Justice Department's Office of
Legal Counsel authorizing specific interrogation techniques to use against prisoners.
As early as December 2001, according to the documents obtained by the ACLU, high-ranking military officials began to
implement an Army and Air Force survival-training program called Survival, Evasion, Resistance and Escape (SERE), which
were meant to prepare US soldiers for abuse they might suffer if captured by an outlaw regime.
In June 2004, Gen. James Hill of Southern Command, the Defense Department's command unit responsible for military
operations in Central and South America and the Caribbean, held a press briefing and confirmed that interrogation
techniques specifically authorized by Rumsfeld for use at Guantanamo were derived from the SERE school. In October 2002,
Dunlavey wrote to Hill to seek authorization that interrogators be granted the authority to use methods that strayed
from the Army Field Manual in order to extract information from prisoners.
Dunlavey, in making his case to Hill for authority to use more aggressive techniques, attached a copy of Bush's then
classified February 7, 2002, action memo along with an analysis that said, "since the detainees are not [Enemy Prisoners
of War] the Geneva Conventions limitations that ordinarily would govern captured enemy personnel interrogations are not
binding on US personnel."
Hill sent Dunlavey's request to Gen. Richard Myers, chairman of the Joint Chiefs of Staff. Myers discussed it with
William Haynes II, the Defense Department's general counsel, who briefed Deputy Secretary of Defense Paul Wolfowitz and
Undersecretary of Defense for Policy Doug Feith. The request ultimately ended up on Rumsfeld's desk and he approved it,
according to the documents.
"The documents establish that senior officials in Washington, including White House Counsel Alberto Gonzales,
constructed a legal framework that would permit the abuse and torture of prisoners," the ACLU's Jaffer and Singh wrote
in "Administration of Torture." "They establish that Secretary of Defense Donald Rumsfeld, relying on this legal
framework, expressly authorized the use of interrogation methods - including SERE methods - that went far beyond those
endorsed by the Army Field Manual. They establish that Rumsfeld and Gen. Geoffrey Miller oversaw the implementation of
the newly authorized interrogation methods and closely supervised the interrogation of prisoners thought to be
especially valuable."
FBI Objects
In early December 2002, FBI officials who had participated in some interrogations at Guantanamo complained to Miller
that the methods used against prisoners at Guantanamo were unlawful. But Miller was not receptive. That led FBI
officials to conclude that senior Bush administration officials and Rumsfeld were making decisions about interrogations
in particular.
A December 16, 2002, email written by an FBI official expressed frustration that the Defense Department refused to
budge from its controversial interrogation methods.
"Looks like we are stuck in the mud with the interview approach of the military vs. law enforcement," the email said.
In May 2004, Miller told the Senate Armed Services Committee that he briefed Wolfowitz and Undersecretary of Defense
Stephen Cambone about his plan to "Gitmo-ize" the Abu Ghraib prison.
That month, an email written by a senior FBI agent in Iraq in 2004 specifically stated that President George W. Bush
had signed an executive order approving the use of military dogs, sleep deprivation, and other tactics to intimidate
Iraqi detainees.
The FBI email, dated May 22, 2004, followed disclosures about abuse of Iraqi detainees at Abu Ghraib prison and sought
guidance on whether FBI agents in Iraq were obligated to report the US military's harsh interrogation of inmates when
that treatment violated FBI standards, but fit within the guidelines of a presidential executive order.
According to the email, Bush's executive order authorized interrogators to use military dogs, "stress positions," sleep
"management," loud music and "sensory deprivation through the use of hoods, etc." to extract information from detainees
in Iraq.
The May 2004, FBI email stated that the FBI interrogation team in Iraq understood that despite revisions in the
executive order that occurred after the furor over the Abu Ghraib abuses, the presidential sanctioning of harsh
interrogation tactics had not been rescinded.
"I have been told that all interrogation techniques previously authorized by the Executive Order are still on the table
but that certain techniques can only be used if very high-level authority is granted," the author of the FBI email said.
"We have also instructed our personnel not to participate in interrogations by military personnel which might include
techniques authorized by Executive Order but beyond the bounds of FBI practices."
The White House had emphatically denied that any such presidential executive order existed, calling the unnamed FBI
official who wrote the email "mistaken." Prior to the May 22, 2004, email several others written by FBI agents that
month were sent to Valerie Caproni, the FBI's general counsel, about detainees being tortured before the unnamed agent
sent Caproni the email citing Bush's alleged executive order.
On July 9, 2004, the FBI's Office of Inspections distributed an email asking its agents who were stationed at
Guantanamo whether they had witnessed, "Aggressive treatment, interrogations or interview techniques ... which were not
consistent with FBI interview policy/guidelines."
More than two-dozen agents responded that they observed numerous instances of detainee abuse. One FBI agent wrote that,
despite Rumsfeld's public statements to the contrary, the interrogation methods "were approved at high levels w/in DoD."
In addition to Rumsfeld, the FBI emails said Paul Wolfowitz, one Bush administration official who has largely escaped
scrutiny in the torture debate, approved the methods at Guantanamo.
In 2006, Miller received a Distinguished Service Medal for "exceptionally meritorious service." Dunlavey is an Erie
County judge.
*************
Jason Leopold is editor in chief of The Public Record, www.pubrecord.org.