No Comment — September 8, 2009, 10:33 am

General Myers and the Torture Team

The United States military had a proud record of upholding the Geneva Conventions in the roughly fifty years that followed their restatement in 1949. Suddenly, beginning in 2002, it went off the tracks. The American public first began to focus on that fact in April 2004, when photographs from an American prison in Iraq appeared on Sixty Minutes and in the New Yorker. The photos showed the torture and abuse of prisoners in a specially controlled cellblock containing high-value detainees. Secretary of Defense Rumsfeld, with Chairman of the Joint Chiefs of Staff Richard B. Myers at his side, pushed back, attributing the incident to “a few bad apples.” That was shortly exposed as a lie, as evidence mounted that the techniques shown in the photographs at Abu Ghraib had in fact been approved by Rumsfeld and were applied, sometimes with fatal consequences, in U.S. prisons around the world–from Bagram in Afghanistan to Guantánamo.

General Myers has been careful to avoid the controversy surrounding prisoner abuse, keeping a low profile. When Philippe Sands attempted to trace the documents that authorized torture on their trajectory from the Pentagon to Guantánamo and back, he found Myers a sympathetic or perhaps a pathetic figure. Here’s what Sands told me in an interview conducted for The New Republic:

He struck me as a man of decency and integrity, but one who was out of his depth on these issues and seemed not to have turned his mind to crucial points of detail. It was painfully clear that he had failed to understand the implications of President Bush’s February 7, 2002, decision on the Geneva Conventions (a decision that removed from all detainees at Guantánamo the right to invoke any rights under those conventions and which removed constraints on interrogation). It was equally clear that he thought the new techniques of interrogation had come from the U.S. Army Field Manual. In fact, the Field Manual plainly prohibited all the techniques recommended by Haynes on November 27, 2002 and approved by Rumsfeld on December 2, 2002, reflecting President Lincoln’s determination, dating back to 1863, that the U.S. military would never engage in cruelty. These were two of the more surprising–shocking, actually–moments during hundreds of hours of interviews that I conducted. I was astonished that the most senior military man in the U.S., perhaps in the world, could have had so little grasp of the import of what had been decided.

Now General Myers has published his memoirs, and the New York Review of Books tasked Sands to look them over. How does Myers account for being the nation’s senior military officer at the time America departed from compliance with the Geneva Conventions? With near complete silence. Like much of the discussion on the knee-jerk right, Myers views the controversy as whether the “Geneva Conventions gave POW rights to Al Qaeda.” In fact, of course, the major controversy both within the Bush Administration and in the legal process was not about whether terrorists had prisoner-of-war rights—there is a broad consensus that they do not—but whether Common Article 3 of the Geneva Conventions, the so-called humanitarian baseline, provided a set of minimum standards to apply. On this point the Supreme Court held that it did, and even within the Bush Administration a number of powerful voices were raised to that effect, starting with the administration’s most prominent military figure, and Myers’s predecessor, Colin Powell. But, as Sands notes, “the words ‘Common Article 3’ do not appear anywhere in Myers’s book.”

Was Myers really so dense that he didn’t understand this issue, which was essential to implementation of Bush-era torture policies? Since publication of Sands’s book more detail has come to light as the result of two congressional probes. This information provides more context for the role that Myers played in pushing through torture policies without review or comments from the military’s uniformed lawyers—the JAG Corps—and other senior commanders, who considered these policies illegal. Sands walks us through the process with the care and insight that mark a good prosecutor:

Myers does not mention that documents proposing the new interrogation techniques arrived on his desk in late October 2002, from General James T. Hill, the commander of US Southern Command, based in Miami… Haynes had personally intervened to stop the review process that was initiated by then Captain, now Rear Admiral Jane Dalton, Myers’s counsel at the Joint Chiefs, after Myers had passed the documents on to her. During testimony before the Senate Armed Services Committee in the summer of 2008, Dalton… reveal[ed] that she had initiated a “broadbased legal review,” sending out General Hill’s memo to the various branches of the military.

The responses came quickly. “All of the [four armed] services expressed concerns about the techniques that were listed in the memo,” she said. “So, the next step, then, was to proceed with a larger general and policy review, which is what I intended to do.” That never happened: she was told to stop the review. “Exactly how you were told,” asked Senator Mark Warner of Virginia, “was it in writing, or was it verbal?” It was not in writing. “The best of my recollection as to how this occurred is that the Chairman [General Myers] called me aside and indicated to me that Mr. Haynes did not want this broadbased review to take place,” Dalton said, referring to a brief meeting with Myers. “He called me aside and said, ‘Mr. Haynes does not want this process to proceed.’”

By then serious concerns about interrogation techniques had been expressed by representatives of the four armed services, which were communicated promptly and without ambiguity. The Air Force thought some of the techniques “may constitute criminal conduct,” including “torture.” The Office of the Army Judge Advocate General thought that many of the techniques violated the provisions against torture and inhumane treatment of the International Criminal Court, warning that the Category II and Category III techniques “will not read well in either The New York Times or The Cairo Times.” The Marine Corps said the proposed plan was legally insufficient and “would expose our service members to possible prosecution.” The chief legal adviser to the DoD’s Criminal Investigation Task Force believed some techniques “may subject service members to punitive articles of the Uniform Code of Military Justice.” The Navy wanted more detailed interagency legal and policy review.
In the face of such clear opposition to the proposed techniques from each of the armed services, one would have expected General Myers to adopt a firm position. There is no evidence that he did so. It might also be expected that General Myers would explain why he seems to have caved in without a fight. Nowhere does he do this or express regret that it was during his chairmanship that the US military embraced cruelty as an official policy, apparently for the first time since 1863.

We now know how the military lawyers were shut out of the process. This was Myers’s decision, acting on an apparent nudge from Rumsfeld’s lawyer, Haynes. Sands’s account and the mysterious gaps in Myers’s memoirs make clear that those involved in facilitating torture wanted to keep the process enshrouded in as much secrecy as possible. This helps make the case for a public probe, which will fully expose these secrets to the sanitizing light of day and form the basis for the accountability that must inevitably follow.

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