The Restless Wave

by John McCain

  The most senior officials at the CIA, including Director of Central Intelligence (DCI) George Tenet, maintained that the mistreatment of Zubaydah yielded important intelligence that he wouldn’t have given up otherwise. President Bush and other senior members of his administration, relying on information the Agency provided them, made the same claim. Ali Soufan begs to differ:

  There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. (Ali Soufan, “My Tortured Decision,” New York Times, April 22, 2009.)

  Zubaydah was transferred in 2006 to the Guantánamo Bay detention camp. The videotapes of his interrogations, along with recordings of the torture of other detainees, were ordered destroyed by the head of the CIA’s clandestine service, Jose Rodriguez, despite standing orders from the White House Counsel’s Office to preserve them. According to his attorney, Zubaydah, who remains in Guantánamo today, has “permanent brain damage,” has suffered hundreds of seizures, and “cannot picture his mother’s face or recall his father’s name.”

  Some might read this and say to themselves, “Who gives a damn what happened to a terrorist after what they did on September 11?” But it’s not about them. It never was. What makes us exceptional? Our wealth? Our natural resources? Our military power? Our big, bountiful country? No, our founding ideals and our fidelity to them at home and in our conduct in the world make us exceptional. They are the source of our wealth and power. Living under the rule of law. Facing threats with confidence that our values make us stronger than our enemies. Acting as an example to other nations of how free people defend their liberty without sacrificing the moral conviction upon which it is based, respect for the dignity possessed by all God’s children, even our enemies. This is what made us the great nation we are.

  My fellow POWs and I could work up very intense hatred for the people who tortured us. We cussed them, made up degrading names for them, swore we would get back at them someday. That kind of resistance, angry and pugnacious, can only carry you so far when your enemy holds most of the cards and hasn’t any scruples about beating the resistance out of you however long it takes. Eventually, you won’t cuss them. You won’t refuse to bow. You won’t swear revenge. Still, they can’t make you surrender what they really want from you, your assent to their supremacy. No, you don’t have to give them that, not in your heart. And your last resistance, the one that sticks, the one that makes the victim superior to the torturer, is the belief that were the positions reversed you wouldn’t treat them as they have treated you. The ultimate victim of torture is the torturer, the one who inflicts pain and suffering at the cost of their humanity.

  By November 2002, Abd al-Rahim al-Nashiri, the man responsible for the bombing of the USS Cole that killed seventeen U.S. sailors, was in CIA custody at the same facility where Zubaydah was being held. He, too, was waterboarded. He was also threatened with a gun and a power drill held to his hooded head. He was the last detainee whose treatment was videotaped by his torturers. That same month, Gul Rahman, a suspected Afghan militant, who no one thought was a “high-value” target, was held by the CIA at a notorious detention site in Afghanistan known as the Salt Pit, where the prisoners were described as looking like kenneled dogs. Rahman was dragged through the prison’s corridors, slammed against walls, struck repeatedly, short shackled to the wall of his cell, where the temperature was kept in the mid-30s Fahrenheit, and left naked from the waist down to lie on the cold cement floor overnight. He died from hypothermia in the early morning hours of November 20, 2002. His death reportedly influenced the CIA’s decision to discontinue videotaping abusive interrogations of detainees.

  A classified review of CIA interrogations by CIA inspector general John Helgerson was completed in May 2004 but not released in redacted form until 2009. It found CIA interrogators were complicit in the deaths of three detainees, and referred eight instances of alleged homicides and severe mistreatment to the Justice Department. The report cast doubt on the reliability of the intelligence extracted from the mistreated detainees, and warned that some of the techniques used might have violated the United Nations Convention Against Torture. It also raised serious concerns about the professionalism and psychological stability of some interrogators, and found that in some instances the mistreatment of detainees had included methods that weren’t on the approved list of techniques or that exceeded the guidance for their use.

  Khalid Sheikh Mohammed (KSM), September 11 mastermind and probable murderer of Wall Street Journal reporter Daniel Pearl, was captured in Pakistan in March 2003 and placed in CIA custody at a secret prison in the Middle East. An utterly unsympathetic sociopath, KSM would become the poster boy for defenders of torture. They credit his harsh interrogation, including the 183 times he was waterboarded, with various intelligence breakthroughs, none of which, frankly, hold up to careful scrutiny. But even if they didn’t get anything useful out of him, whose scruples are troubled by the treatment of a vicious, unforgivable killer? Mine are. His treatment was so extreme that it was among the cases the inspector general’s report cited as probably criminal.

  So was that of Manadel al-Jamadi, an Iraqi insurgent believed responsible for a number of high-profile bombings. He was captured by the U.S. military in November 2003 and turned over to the CIA, who held him at a soon to be notorious prison about twenty miles outside Baghdad. He was dead forty-five minutes after he had arrived at Abu Ghraib. Taken to a shower room for interrogation, a plastic bag placed over his head, and his arms shackled to the wall in a crucifixion pose, he suffocated. Though his homicide was one of the criminal referrals Helgerson made, the interrogator responsible for his death was never charged.

  The inspector general’s report motivated DCI George Tenet to ask the White House Counsel for explicit secret authorization for the enhanced interrogation programs, especially the use of waterboarding. The report also drew the disapproving attention of Vice President Cheney, who summoned Helgerson to his office for some not-so-friendly persuasion. One of Tenet’s successors, General Michael Hayden, a vocal proponent of the interrogation program, ordered an investigation of the inspector general’s office in response to criticism that Helgerson was on a “crusade” against the program.

  The excesses identified in the report, as well as the questions it raised about the professionalism of some interrogators, remained classified for years. But worse abuses came to light suddenly around the same time and caused an international scandal that badly damaged U.S. interests and our reputation as a nation that acts consistent with our values even in a war. In the spring of 2004, the CBS news program 60 Minutes and an investigative report in The New Yorker broke the Abu Ghraib story, a revolting account of the widespread torture, humiliation, and sexual abuse of Iraqi prisoners by American military police guards, complete with dozens of graphic photographs. The disclosures caused senior Bush administration officials, including President Bush, to express their disgust, apologize, and give assurances that the guilty parties would be prosecuted.

  I was stunned, and I shouldn’t have been. I confess that at the time, I wasn’t as knowledgeable as I should have been about how we were treating enemy prisoners. I was a senior member of the Senate Armed Services Committee. I had supported the invasion of Iraq. I was a retired military officer, with personal experience of war, captivity, interrogations, and torture. And I was pretty well-versed in the provisions of the Geneva Conventions, having had cause to accuse my jailers of violating them. I should have made sure we were living up to those commitments. I was appalled to learn that we were not.

  A few months earlier, Army Specialist Joseph Darby had discovered the photographs and reported them to his superiors. The U.S. commander in Iraq, Lieutenant General Ricardo Sanchez, ordered Major General Antonio Taguba to investigate misconduct by prison guards in the 800th Military Police Brigade. Taguba reported back to Sanchez in April 2004, finding that “between October and December 2003, at the Abu
Ghraib Confinement Facility, numerous incidents of sadistic, blatant, and wanton abuses were inflicted on several detainees. This systematic and illegal abuse of detainees was intentionally perpetrated by several members of the military police guard force.” I was shaken by what I learned. The guards’ behavior exhibited a degree of perversion and glee in the sexual degradation of prisoners that I didn’t want to believe American soldiers were capable of. The North Vietnamese could be cruel, and would inflict pain to get what they wanted from us. But they never did anything like this, and the thought of that, that my captors had, on the whole, treated prisoners more humanely than the American soldiers at Abu Ghraib treated prisoners, made me sick to my stomach.

  The Senate Armed Services Committee convened a hearing on the scandal on May 7, 2004. Secretary Rumsfeld was called as a witness, as was the chairman of the Joint Chiefs, the chief of staff of the Army, the acting secretary of the Army, the deputy commander of the Central Command (CENTCOM), and the undersecretary of defense for intelligence. I had prepared what I thought was a straightforward question for Rumsfeld. I wanted him to explain the chain of command from the prison guards to the top military and civilian authorities. I wanted to know who supervised interrogations at Abu Ghraib and what instructions they had given the guards there. Rumsfeld answered that he had ordered a chart prepared outlining the chain of command, but that his aides had neglected to bring it. General Lance Smith, the deputy CENTCOM commander, volunteered to walk me through the chain of command. I interrupted him, and told him to submit it for the record, and asked,

  “What agency or private contractor was in charge of the interrogations? Did they have authority over the guards? And what were the instructions that they gave to the guards?”

  Some hemming and hawing ensued, some continued lamenting of the missing chain of command chart, then committee chairman John Warner referred my question to General Smith. “No,” I interjected,

  “Secretary Rumsfeld, with all due respect, you’ve got to answer this question. And it could be satisfied with a phone call. This is a pretty simple, straightforward question. . . . What agencies or private contractors were in charge of the interrogations? And what were their instructions to the guards? This goes to the heart of the matter.”

  What I wanted to know, as was apparent to the witnesses, was whether the sadistic behavior of the guards had been influenced by instructions from or the example set by the people interrogating detainees at Abu Ghraib. Again, General Smith intervened and after a little back-and-forth, informed the committee that the commander of the military intelligence brigade had authority over the interrogators and “tactical control over the guards.” I asked Secretary Rumsfeld why he couldn’t answer these “fundamental questions.” When I pressed him on the instructions the guards had received, he punted, referring the matter to an ongoing investigation. When I reminded him again that it was a simple question he ought to be prepared to answer, he allowed that the guards had been instructed to adhere to the Geneva Conventions.

  In the weeks after my questioning of Rumsfeld, which had been televised, my staff received a number of cold calls from people with knowledge of detainee interrogations, warning us that bad things were happening. Frequent revelations in the press that year exposed abuses at prisons other than Abu Ghraib, at the Salt Pit and at the Bagram Air Base prison in Afghanistan, where men were heard crying all night long. We heard stories about prisoners killed by interrogators because the interrogators were inexperienced and insufficiently trained and supervised. One Iraqi had suffocated to death when his interrogators had put him in a sleeping bag, zipped it over his head, and rolled him back and forth repeatedly. One of the interrogators had a brother who had done the same to him, and he thought it would be a good way to get the prisoner to talk. My foreign policy assistant at the time, Richard Fontaine, had previously worked at the National Security Council. He told me about the black site rendition program. In November 2005, the Washington Post would report the existence of these black sites in a story that would win a Pulitzer. Someone leaked a memo from Rumsfeld concerning interrogations at the Guantánamo detention facility, complaining that prisoners were only made to stand up for eight hours. Rumsfeld, who worked at a standing desk, observed that he stood up longer than that. Interrogation logs from Guantánamo also leaked, and revealed that one prisoner hadn’t slept more than three hours in a single night for several months. The interrogators had made him do dog tricks.

  Some of the dubious legal assertions proposed in the torture memos were leaked to the press in the wake of the Abu Ghraib scandal. Jack Goldsmith, a distinguished law school professor, who had previously worked in the Defense Department, succeeded Jay Bybee as head of Justice’s Office of Legal Counsel. To much consternation in some White House offices, he rescinded the torture memos and began working on a revised legal opinion, believing the former were flawed legal analyses that appeared to give “official sanction to torture, and brought such dishonor on the United States.” He resigned his office after just ten months, before he had finished writing a revised legal opinion, in part because of the distrust he was held in by senior administration officials.

  With all these stories breaking about black site renditions and prisoner abuse, torture memos, and, although still a little murky, increasing reports of so-called enhanced interrogation techniques used by the CIA, it was clear that a problem the administration had blamed on a bunch of undisciplined knuckleheads at Abu Ghraib was more systemic than that and might be the product of a deliberate policy. I was already considering how Congress could ensure that core American values and our responsibilities under the Geneva Conventions were upheld in our treatment of all detainees. The undertaking acquired greater urgency after I received a letter from an Army officer, Captain Ian Fishback, confirming our suspicions.

  Ian Fishback, a West Point graduate, and a veteran of combat tours in Iraq and Afghanistan with the 82nd Airborne Division, had conveyed reports about prisoner abuse by soldiers in the 82nd to his chain of command, and been mostly ignored. After nearly a year and a half waiting for a sign that the Army was taking his concerns seriously, and having seen my exchange with Rumsfeld at the Abu Ghraib hearing, he wrote a letter to me. He contacted Tom Malinowski at Human Rights Watch, as did two sergeants in his former battalion. Tom put him in touch with Richard Fontaine, to whom he sent a letter addressed to me. It was a sincere, convincing, and distressing appeal from a professional soldier who believed the honor of his service and his country was being stained. It’s worth reprinting here in full.

  Dear Senator McCain:

  I am a graduate of West Point currently serving as a Captain in the U.S. Army Infantry. I have served two combat tours with the 82nd Airborne Division, one each in Afghanistan and Iraq. While I served in the Global War on Terror, the actions and statements of my leadership led me to believe that United States policy did not require application of the Geneva Conventions in Afghanistan or Iraq. On 7 May 2004, Secretary of Defense Rumsfeld’s testimony that the United States followed the Geneva Conventions in Iraq and the “spirit” of the Geneva Conventions in Afghanistan prompted me to begin an approach for clarification. For 17 months, I tried to determine what specific standards governed the treatment of detainees by consulting my chain of command through battalion commander, multiple JAG lawyers, multiple Democrat and Republican Congressmen and their aides, the Ft. Bragg Inspector General’s office, multiple government reports, the Secretary of the Army and multiple general officers, a professional interrogator at Guantanamo Bay, the deputy head of the department at West Point responsible for teaching Just War Theory and Law of Land Warfare, and numerous peers who I regard as honorable and intelligent men.

  Instead of resolving my concerns, the approach for clarification process leaves me deeply troubled. Despite my efforts, I have been unable to get clear, consistent answers from my leadership about what constitutes lawful and humane treatment of detainees. I am certain that this confusion contributed to a wide range of abuses i
ncluding death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment. I and troops under my command witnessed some of these abuses in both Afghanistan and Iraq.

  This is a tragedy. I can remember, as a cadet at West Point, resolving to ensure that my men would never commit a dishonorable act; that I would protect them from that type of burden. It absolutely breaks my heart that I have failed some of them in this regard.

  That is in the past and there is nothing we can do about it now. But, we can learn from our mistakes and ensure that this does not happen again. Take a major step in that direction; eliminate the confusion. My approach for clarification provides clear evidence that confusion over standards was a major contributor to the prisoner abuse. We owe our soldiers better than this. Give them a clear standard that is in accordance with the bedrock principles of our nation.

  Some do not see the need for this work. Some argue that since our actions are not as horrifying as Al Qaeda’s, we should not be concerned. When did Al Qaeda become any type of standard by which we measure the morality of the United States? We are America, and our actions should be held to a higher standard, the ideals expressed in documents such as the Declaration of Independence and the Constitution.

  Others argue that clear standards will limit the President’s ability to wage the War on Terror. Since clear standards only limit interrogation techniques, it is reasonable for me to assume that supporters of this argument desire to use coercion to acquire information from detainees. This is morally inconsistent with the Constitution and justice in war. It is unacceptable.