The National Interest

Matthew Alexander and John Bruning, How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq (New York: Free Press, 2008), 304 pp., $26.00.

David Cole, Justice at War: The Men and Ideas that Shaped America’s War on Terror (New York: New York Review of Books, 2008), 176 pp., $14.95.

Karen Greenberg, The Least Worst Place: Guantanamo’s First 100 Days (New York: Oxford University Press, 2009), 288 pp., $27.95.

Eric Lichtblau, Bush’s Law: The Remaking of American Justice (New York: Pantheon, 2008), 384 pp., $26.95.

Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008), 400 pp., $27.50.

WITH AN order to close Guantánamo, the Obama administration has acted quickly to move away from the Bush administration’s policies in what it called the “war on terror.” But much more needs to be done to undo the damage to America’s reputation abroad—not just in the Muslim world—and to lessen the chances of starting another chapter in the erosion of America’s civil liberties. And not all measures will be difficult. For starters, President Barack Obama should follow the lead of Britain’s Gordon Brown, who, upon becoming prime minister, stopped using the phrase “war on terror.”

The concept of a “war on terror,” was “misleading and mistaken,” the British foreign secretary, David Miliband, wrote in the Guardian recently. Calling for a “war on terror,” he went on, “implied that the correct response was primarily military. . . . We must respond to terrorism by championing the rule of law, not subordinating it. . . .”

The Bush administration’s simplistic jargon did suborn the rule of law and allowed for abuses—extraordinary rendition, torture, indefinite detention, wholesale FBI interviews of Arabs and Muslims in America, “preventive detention.” What will be difficult is to truly rehabilitate America. It will be a long, slow, arduous healing process.

TO UNDERSTAND the atrocities and what it might take to redeem ourselves, one must first understand how they came about, who the players were, and what schemes and legal circumlocution laid the groundwork for the misdeeds to follow. The “war on terror” begat a “war council,” self-described and self-selected. It was headed by Vice President Dick Cheney’s legal counsel, David Addington, a former CIA lawyer, who, along with his boss, believed that the presidency had been severely weakened by the reforms following Watergate and Vietnam. The others were Alberto Gonzales, White House counsel, and then attorney general; Timothy Flanigan, a lawyer on the White House counsel’s staff who had been part of the team that probed Bill Clinton’s sexual escapades; William Haynes, Pentagon general counsel; and John Yoo, the erudite graduate of Harvard University and Yale Law School who served in the Justice Department as a legal adviser to the administration. After the deluge of books that have recounted in detail the abuses by the Bush administration in its “war on terror,” The Dark Side by Jane Mayer is the best account of how this elite cabal pulled it off.¹ They were “like a high-school clique,” Mayer writes—an archconservative elite, playing squash and racquetball together and going on clandestine trips. They operated in extreme secrecy, hiding their work and thoughts from any other officials they thought might disagree with them, on the law or policy.

Fourteen days after 9/11, Yoo and Addington concluded that since the country was at “war,” President Bush, as commander in chief, could do virtually whatever he deemed necessary. And so it all began. As Mayer recounts, Yoo was at one point asked whether any law existed that could stop the president from “crushing the testicles of [a] person’s child” to get the parent to talk. “No treaty” could do so, Yoo responded, with careful legalese. He became increasingly obtuse when pressed to make a definitive judgment on whether any law could stop the president.

Relying heavily on Yoo’s legal analysis, and Cheney/Addington’s political views and clout, the Bush administration would abandon treaties to which America had long adhered, and which provided legitimacy and weight to its moral voice in the world. Under President Ronald Reagan, for instance, the United States had led in the drafting and ratification of the treaty against torture, formally called the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Under George W. Bush, the United States ignored it, redefining torture and using the euphemism “enhanced interrogation techniques.” More disturbingly, the Bush administration jettisoned the Geneva Conventions, an international undertaking to mitigate the barbarity of war. The treaty has numerous provisions regulating the treatment and interrogation of prisoners. The administration wanted no-holds-barred interrogations. Yoo argued that the United States could ignore the treaty.

“It will take fifty years . . . to undo the damage that he did to the place,” a senior Justice Department lawyer told New York Times reporter Eric Lichtblau about Yoo.

In response to Yoo’s memoranda on the Geneva Conventions, the State Department’s legal counsel, William Howard Taft IV, a moderate Republican, argued that Yoo’s reasoning was “seriously flawed.” Taft added in a memo to Yoo, “In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the Conventions.” Fearing that it would be “toxic to our foreign policy” if countries knew that the United States exempted itself from the treaty, Taft wanted Yoo’s memo classified, Karen Greenberg, the executive director of NYU’s Center on Law and Security, writes in her book on Guantánamo. Of course, Bush and Rumsfeld stated publicly that the United States was not bound by the Geneva Conventions, so the damage was already done. Thus, there seems little, if any, justification for not declassifying the memos now.

And this should be a next step in Obama’s tenure: ordering the declassification of all the memoranda that Yoo and others wrote pertaining to rendition, torture, Guantánamo, Abu Ghraib and so on. A smart lawyer or researcher on Obama’s staff would be able to come up with a fairly comprehensive list of the documents that should be declassified just by reading several of the books under review here: The Dark Side; Bush’s Law by Lichtblau; and Justice at War: The Men and Ideas that Shaped America’s War on Terror by David Cole, a law professor at Georgetown University.

BUT THE damage goes further than finding work-arounds for the Geneva Conventions. When Yoo, et al, were not justifying “enhanced interrogation techniques” they were legally blessing domestic spying. By law, the CIA and the National Security Agency (NSA) are forbidden from spying on Americans. The NSA can collect data from overseas transmissions, but not those in the United States. Twenty-three days after 9/11, President Bush radically reversed that policy. He signed off on an eavesdropping operation, which, Lichtblau writes, was “so sensitive that even many of the country’s senior national security officials, men and women with the highest security clearances in his administration, knew nothing about it.” Not even the NSA’s own lawyers were permitted to see the legal opinions justifying the operation at their own agency. (Tick another box for documents to be declassified.)

Two years later, when concerns about the program were bubbling even among conservatives in the administration, Jack Goldsmith, who had replaced Yoo at the Office of Legal Counsel, drafted another memorandum reviewing the legality of the program. It remains classified.

Efforts by individuals who believe they were tapped under the program to find out if they were eavesdropped upon were successfully resisted by the Bush administration. It would not even reveal how many individuals were wiretapped—but it was “up to five hundred Americans at a time,” Lichtblau believes.

The Justice Department’s Office of Professional Responsibility began an inquiry into whether the eavesdropping program violated legal or ethical guidelines. It was stopped. “Who shut down the investigation, and how high did it go?” Lichtblau asks. It is a question for the Obama administration to answer if they hope to move on from yet another Bush-administration black mark.

Lichtblau and his colleague at the New York Times, James Risen, broke the story of the secret NSA wiretapping, and Lichtblau’s account here of how they got the story, why the New York Times held it for a year (evoking harsh criticism) and the efforts of the Bush administration to keep it from ever seeing print is a fascinating read. (Lichtblau is a colleague at the Times, but I have not worked in the Washington bureau since he arrived at the paper, and recall only having met him once.)

WHAT WE find is that along with those who were outwardly complicit in the administration’s program, any number of unwitting accomplices were swept up in the post-9/11 moment of national pride and fears for the nation’s security. The Times’s publication of the NSA story stands in stark contrast to reporting in the weeks and months following 9/11. During that period, many, if not most, American journalists were far too willing to accept whatever the administration said. “We in the media were no doubt swept up in that same national mood of fear and outrage,” Lichtblau writes.

Lichtblau criticizes even his own early reporting. When Attorney General John Ashcroft told a congressional committee, in early 2003, that al-Qaeda was getting money from a mosque in Brooklyn, Lichtblau sprinted from the hearing room to alert his editors. He had a front-page story, the goal of every reporter. The story was wrong, Lichtblau acknowledges in his book.

I, too, wrote terrorism-related stories after 9/11 that, in hindsight, I regret. Most notably were stories from London in October 2001 about a pilot, Lotfi Raissi. In seeking his extradition to the United States, the FBI argued that he had trained some of the 9/11 pilots in Arizona. Among the evidence the FBI introduced was Raissi’s flight log, in which pages were missing for the days he was alleged to have trained the pilots. The evidence seemed compelling, and my stories did not express enough skepticism. Raissi was eventually “completely exonerated” by the British courts, and it turned out that the pages were “missing” due to the negligence of Scotland Yard.

Lichtblau explores the theme of journalists letting their patriotism color their journalism only briefly, but what he says needs to be considered deeply, by journalists and the public, and his mea culpa should be a guide for others. For years after 9/11, the concern of editors and reporters was not the erosion of civil liberties or human-rights abuses but the whos, wheres and hows of the next terrorist attack. To the proposal in 2005 that the Times should carry out an investigation into the secret sites that we were beginning to hear about, an editor replied, “Why? We wouldn’t report it even if we knew.” There was not just overzealous reporting but self-censorship as well, all in the name of national security. (After Dana Priest broke the stories about the secret prisons in the Washington Post and Jane Mayer began writing about rendition in the New Yorker, however, the Times aggressively pursued the stories.)

Of course the Bush administration was not the first to sacrifice civil liberties on the pyre of national security. There were the Alien and Sedition Acts in 1798, designed to suppress dissent during the young nation’s war with France; President Lincoln famously suspended habeas corpus during the Civil War; President Roosevelt interned one hundred and twenty thousand Japanese during World War II. But, Bush’s counterterrorism program was “a quantum leap beyond earlier blots on the country’s history and traditions,” Mayer writes.

President Bush did not have to add his administration to this list in order to keep America safe. He did not have to subject the United States to international opprobrium. He only needed to have listened. Not to the ACLU; not to bleeding-heart civil libertarians. But, to his own military commanders.

They did not want to abrogate the Geneva Conventions, because they protect American soldiers in times of war. They did not want “enhanced interrogation techniques,” because these could then be used on American troops. They did not want special military commissions. The military’s court-martial system was adequate.

In the “war on terror,” the military comes off looking best. Not, however, for battles won, but for battles lost in an effort to have America live up to the principles of being a country run according to the highest ethical, moral and judicial principles. Soldiers in the field lost to civilians in Washington, to Rumsfeld, Cheney, Addington, Yoo, Feith, Wolfowitz, et al.

THE HEROES of Karen Greenberg’s Least Worst Place (as Guantánamo was so christened by Rumsfeld) are the military personnel who were responsible for setting up the detention camp. Selected by Rumsfeld to house the suspected terrorists almost by default, the naval base was transformed into a military prison.

The base at Guantánamo did not have the facilities to house hundreds of prisoners, and “the nation’s military did not have the requisite expertise in prisoner of war detention, as the United States had not had to deal with prisoners of war on its own since World War II,” Greenberg notes.

The daunting assignment to house terrorist suspects was first given to the marines, and the first commander was Brigadier General Michael Lehnert. He was every inch a squared-away marine, “disarmingly unpolished and deeply patriotic,” as Greenberg describes him. While humanitarian operations are scorned by many in the military, Lehnert “believed that principled humanitarianism was not only compatible with, but essential to, the Marines’ sacred code.” (In the interest of full disclosure, I was a Marine Corps lawyer, in Vietnam; Greenberg well captures the Corps ethos.)

Lehnert had a reputation for decency and he wanted Guantánamo to be a model prison—treatment should be “fair, just, legal, and, if possible, even rehabilitative.” He wanted to abide by the Geneva Conventions. He wanted the International Committee of the Red Cross to have access to prisoners. The ICRC, as it is widely known, is one of the most professional, effective and politically neutral nongovernmental humanitarian agencies today. One of its missions is to ensure the humane treatment of prisoners of war, as well as political prisoners. It has visited dungeons operated by some of the worst dictators. One reason for its effectiveness is its strict policy of not discussing any findings publicly. It reports only to governments.

At Guantánamo, the ICRC was a tremendous help to Lehnert and his team. For instance, the Red Cross delegates were the first to learn the countries of origin of many of the detainees, information which had eluded the military officers. They were invaluable to the military doctors who were genuinely attentive to the medical needs of the prisoners. Overall, Lehnert found that “they tried as much as possible to be honest brokers, and to be neutral.”

But Rumsfeld, and the hard-liners in Washington, didn’t want the ICRC mucking about, giving comfort to the prisoners, observing how they were being abused during interrogations, and so they restricted the Red Cross’s access to the detainees. This meant that for all of the decent soldiers, the stage was set for abuses and torture.

The Bush administration, and its backers, argued that the “enhanced interrogation techniques” were necessary to capture terrorists and prevent another attack on the United States or on American soldiers in Iraq.

“Fear and control” were the traditional guiding principles for military interrogators. The interrogator instilled fear in the detainee and exercised control over him. This, of course, led to the use of snarling dogs, humiliation, long periods of standing, shackling in uncomfortable positions and so on.

After the stains on America and the military from the exposures of the sadism at Abu Ghraib, the army began teaching a new approach, one that called for “respect, rapport, hope, cunning, and deception,” as an air-force officer (and believer in this new approach to interrogation) writes in How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq.

This “deadliest man” was Abu Musab al-Zarqawi, leader of the Sunni insurgents in Iraq, who planted roadside bombs to kill American soldiers, and deployed suicide bombers to kill Shia, not worrying if Sunni were killed along with them. The Americans put a $10 million bounty on his head. They couldn’t catch him. Many-a-detainee was tortured seeking information that would lead to his capture or death. Again, failure.

The story of how an air-force interrogator and his team extracted the information that led to the location and death-by-bombing of al-Zarqawi is told with great verve and fascination in How to Break a Terrorist. Detainees weren’t tortured, weren’t shouted at, weren’t teased by women. They weren’t even shackled during the interrogations. Instead, the interrogators sought to instill trust in, and become friends with, their captives. These are, of course, the time-honored approaches of the FBI, but macho military and CIA interrogators dismissed them.

Using these techniques, the new-school interrogators learned something about al-Qaeda recruits that ought to give policy makers and Americans pause.

Few of the men that joined al-Zarqawi did so out of ideology. “For most of our detainees, Al Qaida is an expedient, nothing more. The organization reached out to Sunnis at a moment of great crisis, and many Sunnis felt they had no choice but to accept their aid,” the author writes. Accept it, or be killed by Shia militia.

How to Break a Terrorist is an extremely valuable addition to a discussion of how to defeat al-Qaeda.

At the same time, unfortunately, a reader should approach the book with some caution. It reads too much like a script for an old-fashioned Hollywood Western, with the cavalry riding to the rescue at the last minute. Adding to the unease I felt, the author, who was the chief interrogator in Iraq, chooses to write under a pseudonym, Matthew Alexander. Yet, he puts his picture in the book.

PRESIDENT OBAMA has issued an order to close Guantánamo. But he has said it will not be easy, and it could take a year. One reason it is so difficult is precisely because of Bush policies. Had his administration followed the British example (as well as listening to the advice of its own military lawyers), Guantánamo would have been almost empty by now. Most of the men would have been sent home—General Lehnert concluded that most were innocent, a conclusion that others have supported—and others would be behind bars, after fair trials.

“The Brits Do It Better,” David Cole wrote in a seminal essay in the New York Review of Books last summer, which unfortunately didn’t make it into the collection of insightful pieces that comprise his book Justice at War. Cole recounts that the “UK’s top prosecutor” said “the fight against terrorism on the streets of Britain is not a war. It is the prevention of crime.” And the British learned from their experiences with the IRA that “overly repressive responses are counterproductive,” Cole writes.²

While the Bush administration declared that it interrupted several plots, it provided little evidence. Yet we know the Brits have disrupted potential attacks because the perpetrators have been arrested, including men who planned to detonate a “dirty bomb,” and those who allegedly plotted to blow up airliners over the Atlantic. As Cole notes, “In each instance, the plots were disrupted not by using rendition, torture, disappearances, or indefinite detention without trial, but through the kind of old-fashioned police work that is commonly dismissed in the U.S. these days as ‘backward-looking.’”

The planners of the disrupted airliner plot have been tried and convicted. By contrast, the Bush administration has little to show for its preventive campaign at home. In another essay, “Are We Safer?” (this one is included in the collection), Cole writes that more than eighty-two thousand Arab and Muslim foreign nationals were required to register after September 11, some eight thousand were interviewed by the FBI and more than five thousand were locked up in preventive detention. But, not a single one has been convicted of a terrorist crime. From Cole’s book: “In what has surely been the most aggressive national campaign of ethnic profiling since World War II, the government’s record is 0 for 95,000.”

Even the Indonesians have done better. The perpetrators of the major terrorist attacks there—the Bali nightclubs in October 2002; Bali restaurants three years later; the Marriott Hotel in Jakarta in 2003; the Australian embassy in 2004—have been tried, convicted and in some cases even executed. While the Indonesian justice system is hardly a paradigm, the trials have generally been considered fair.

And at least there were trials.

It will be very difficult now, if not impossible, for prosecutors to obtain convictions of even the most culpable al-Qaeda terrorists, such as Khalid Shaikh Mohammed (the confessed mastermind of the 9/11 attacks and thirty other plots worldwide), for the simple reason that much of the evidence against them was obtained by torture, and will therefore be inadmissible.

The Times reported in January that a man released from Guantánamo has become a top al-Qaeda operative in Yemen. That should not be surprising. We can also expect that sometime in the future the perpetrator of a terrorist attack, whether in Afghanistan, Pakistan, Europe, the United States or elsewhere, will be a graduate of Guantánamo. And it is safe to venture that we will see Willie Horton ads against the Obama administration for releasing the former prisoners.

Though some of the Guantánamo detainees arrived with terrorist intentions, it is hard to argue with those who say that the Bush administration’s policies of extraordinary rendition, torture and indefinite detention have created more terrorists. Would you not be a ripe recruit for an attack against America if you had had your genitals cut and acid poured on the wounds (as Binyam Mohamed alleges happened to him after being rendered to Morocco),³ or had been nearly drowned in a dark interrogation room and hanged from a wall with your feet on a rolling barrel (as Mamdouh Habib, an Australian, alleges happened to him in Egypt)?⁴ If you were tortured in Egypt so badly that you now need surgery, held at Guantánamo for five years even though you were perfectly innocent and had never even been to Afghanistan, wouldn’t you be bitter, as Muhammad Iqbal, a Pakistani, has become?⁵ (Binyam Mohamed was released from Guantánamo in February. There is no indication that Habib or Iqbal have joined any extremist groups. Indeed, Habib ran, albeit unsuccessfully, for state parliament in Australia last year.)

CHENEY, ADDINGTON, Yoo and company succeeded in giving the president extraordinary powers. Now, conservatives might rue what they have wrought. What if President Obama decides to exercise those powers?

In 2004, the CIA’s inspector general conducted an internal investigation, and drafted a ten-thousand-page report. As Mayer summarizes, some of the CIA interrogators had engaged in conduct that “constituted cruel, inhuman, and degrading treatment, in violation of the international Convention Against Torture.” The CIA’s general counsel countered that Yoo’s memoranda had essentially legalized all the interrogations.

The CIA also sent several homicide cases resulting from prisoner abuse to the Justice Department for criminal prosecution. Nothing happened.

Now, let’s assume a cabal of leftist lawyers in the Obama administration prepares a legal analysis saying that Yoo’s reasoning was so flawed that his memoranda must be withdrawn, and draws up indictments. Having learned the lessons from Yoo, the Obama administration lawyers work in extreme secrecy, keeping their views from others in the administration, from the pragmatists who would argue that this is not a fight worth picking, not given the other problems facing Obama.

It can’t happen? But it did. Sloppy legal reasoning, driven by ideology, gave the president extraordinary powers. If Obama now uses those powers in furtherance of his politics and policies—deciding, for example, to prosecute men and women who carried out torture in the secret prisons, and maybe even their superiors (which Addington and Yoo’s left-wing counterparts would undoubtedly like to see)—conservatives will have only themselves to blame.

IN THE beginning of Bush’s Law, Lichtblau brings up a fundamental question: “How far are we willing to stretch and bend the Constitution in hopes of deterring another attack? And at what cost to the fabric of the country?”

The best answer I have found is this editorial:

Locking up suspected terrorists—and why not potential murderers, rapists and paedophiles, too?—before they commit crimes would probably make society safer. Dozens of plots may have been foiled and thousands of lives saved as a result of some of the unsavoury practices now being employed in the name of fighting terrorism. Dropping such practices in order to preserve freedom may cost many lives.

Then the kicker:

So be it.

From the Nation magazine? Human Rights Watch? The ACLU? No. The Economist.

Raymond Bonner, who as a foreign correspondent and investigative reporter for the New York Times has reported from nearly one hundred countries and written extensively about terrorism, now lives in Britain.

¹ Mayer is one of the best investigative reporters in Washington today, and my only complaint about her book goes to journalistic style. She repeatedly cites “well-informed” sources. This attribution is always troubling: do journalists quote “uninformed” sources? Besides, Mayer also attributes information as coming from just a “source.” Was this source not “informed?”

² David Cole, “The Brits Do It Better,” The New York Review of Books 55, no. 10 (June 12, 2008).

³ The fullest account of Binyam’s ordeal is in Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantánamo Bay by Clive Stafford Smith, who is his defense lawyer (New York: Nation Books, 2008).

⁴ Mamdouh Habib, with Julia Collingwood, My Story: The Tale of a Terrorist Who Wasn’t (Australia: Scribe Publications, 2008).

⁵ See Raymond Bonner, “Terrorist Suspect’s Ordeal in U.S. Custody,” New York Times, December 18, 2005; Jane Perlez, Raymond Bonner and Salman Masood, “An Ex-Detainee of the U.S. Describes a 6-Year Ordeal,” New York Times, January 5, 2009.