Monday, November 22, 2010

On Waterboarding, Bush Memoir Less Than Complete

      In his final weeks in office, President George W. Bush was beset with what he describes in his memoir Decision Points as a “flood” of pardon requests submitted by people who “pulled me aside” to special plead for some friend, family member or former colleague. At first “frustrated” and then “disgusted,” Bush resolved “that I would not pardon anyone who went outside the formal [Justice Department] channels.”
      It is a good story, but — as the New York Times reporter Charlie Savage notes — “incomplete.” In fact, as Savage wrote on the Times’ blog The Caucus, Bush granted a batch of 20 pardons on Dec. 23, 2008, including at least four who went outside the Justice Department channels.
      As with the self-enhancing version of his pardons policy, so too with Bush’s description of one of the most momentous of his decision points: his personal authorization for CIA and military interrogators to use “waterboarding” on suspected terrorists. The four-page account (pp. 168-171) so oversimplifies the events before and after Bush’s directive as to be at the very least “incomplete” — and, for any lesson-drawing purposes, simply wrong.
      Bush traces the origins of the CIA’s “enhanced interrogation techniques” to the capture in March 2002 of Abu Zubaydah, purportedly a close associate of al Qaeda leader Osama bin Laden, and his initial questioning by FBI agents. As Bush tells it, the FBI interrogation ran dry and the CIA proposed to take over in a secret location with additional techniques. “At my direction,” Bush writes, “Department of Justice and CIA lawyers conducted a careful legal review.” That review found all the techniques constitutional and lawful. Even so, Bush ruled out two that “went too far,” but approved the others, including waterboarding.
      To Michael Scharf, a law professor at Case Western Reserve University in Cleveland who has studied and written extensively on the issue, the account hardly begins to tell the story. In Scharf’s account in a law review article and his forthcoming book, Shaping Foreign Policy in Times of Crisis, it was not Bush, but Vice President Dick Cheney and his lawyer, David Addington, who drove the legal review — determined to find the interrogation techniques lawful.
      Cheney succeeded by the bureaucratic ploy of cutting out potential opponents. As Scharf explains, the interrogation program was classified “need to know” instead of merely “top secret.” The effect was to keep the plan from the top lawyers of each of the military services and, most significantly, the State Department’s legal adviser, the office most expert in interpreting the U.S.-signed treaties banning torture. The “careful” legal review that Bush describes was, in Scharf’s words, “completely one-sided.”
      Unmentioned by Bush, the memos upholding the techniques — and twisting the previous view of waterboarding as torture — have been rescinded. Whatever its legal basis, Bush credits the waterboarding and other of the torture-like techniques used on Zubaydah with breaking his resistance. CIA interrogators supposedly gained pivotal information that led, eventually, to the capture of 9/11 mastermind Khalid Sheikh Mohammed in March 2003. And KSM provided information “vital to saving American lives” that “almost certainly would not have come to light without the CIA’s enhanced interrogation program.”
      Nowhere does Bush mention the later downgrading of Zubaydah’s importance. In court filings, the government now disclaims any allegation that Zubaydah is a member of al Qaeda or played a role in the September 11 or other attacks on the United States. Nor does Bush acknowledge the sharp dispute about the supposedly invaluable intelligence gained from the enhanced interrogation techniques.
      The most telling refutation comes from former FBI agent Ali Soufan, who helped interrogate KSM for three months (March-June 2002) before the CIA took over. In successive op-ed articles in the New York Times in April and September 2009 and comments elsewhere, Soufan labels the puffed-up accounts of the intelligence gained from the enhanced interrogation techniques as “false claims.” He says that KSM was providing “actionable intelligence” under traditional techniques and notes that KSM has boasted of providing false information to later interrogators. As for Zubaydah, Soufan similarly says no intelligence was gained that was not or could not have been gained from regular interrogations.
      As with waterboarding, Bush is incomplete in describing some of the administration’s other post-9/11 legal policies. He describes his early decision to treat the Guantanamo detainees as outside the protections of the Geneva conventions (pp. 166-167) with no mention of the State Department’s position that in fact they were covered by the U.S.-signed international accords. He describes the creation of the “military commissions” to try Guantanamo detainees (p. 167) with no mention of the departures from the procedures for regular military tribunals. And after acknowledging the Supreme Court’s decision in Hamdan v. Rumsfeld (2006) striking down the military commissions, Bush claims that Congress solved the problem with legislation passed later that year (pp. 177-179). But he does not mention of the court’s later ruling, Boumediene v. Bush (2008), that found unconstitutional the critical provision in the law to limit judicial review of the reconstituted military commissions’ decisions.
      Bush’s acknowledgment of having authorized waterboarding has prompted calls from human rights groups, including Amnesty International and the American Civil Liberties Union, to prosecute him for violating U.S. law against torture. An administration that has already given a pass to the lawyers who wrote the torture memos is hardly likely to take on a former chief executive. But the American people still deserve the complete torture story — and they have gotten nothing close to that from Bush’s first-person account.

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