Presidential Accountability in Wartime

Front matter

Presidential Accountability in Wartime

PRESIDENT BUSH, THE TREATMENT OF DETAINEES, AND THE LAWS OF WAR

STUART STREICHLER

Conclusion

Appendices A: Presidential Memorandum B: Common Article 3 C: War Crimes Act Abbreviations Notes Bibliography Index About the Author vii

PREFACE

This book explores the complexities in holding US presidents accountable for violating the laws of armed conflict through an in-depth analysis of the treatment of detainees under President George W. Bush during the war against terrorism. Perhaps nothing better illustrates why I felt compelled to take on this project than some remarks made not by President Bush but rather by his successor. In April 2009, three months after his inauguration, President Barack Obama issued a brief statement announcing the release of four previously classified legal opinions prepared by the Bush Justice Department. These opinions had reviewed the Central Intelligence Agency’s so-called enhanced interrogation techniques and approved them for use in the war against terrorism. The lurid details of these memoranda—with precise stepby-step descriptions of the interrogation procedures—left the new president little choice but to concede that Bush era interrogations marked “a dark and painful chapter” in American history.

It might have been thought that there was likewise little choice but to prosecute those involved, but President Obama resisted the idea. Having banned the use of the enhanced interrogation methods shortly after taking office, President Obama pronounced the Bush administration’s interrogation program “a thing of the past.’ He believed that “at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past” It was “a time for reflection,’ he said, “not retribution”

Several years have gone by since then. Americans by now, it might be thought, have heard quite enough of waterboarding and torture; they have reached their conclusions; and history will judge President Bush accordingly.

Yet the more I reflect on this accountability failure, the more I see at stake. It is difficult for me to reconcile the conception of accountability implicit in President Obama’s remarks with what actually happened during the Bush viii Preface presidency. In effect, President Bush laid down a challenge to explain why the laws of war matter, and President Obama laid down a challenge to explain why accountability matters. This book takes up both challenges.

It is a pleasure to thank everyone who assisted me in this endeavor. Among those who offered comments after reading related conference papers or chapter drafts, I would like to single out Lisa Hajjar, Jamie Mayerfeld, and Daniel Tichenor. I am grateful for the time, thought, and care two anonymous referees gave the entire manuscript. I would also like to express my gratitude to Elizabeth Demers of the University of Michigan Press for shepherding this project through the publication process. Several students provided research and administrative assistance, including Ariana Bengtsston, Quinn Russell Brown, Elijah Nicholson, and Sarah Pennington. My idea for this work grew out of an invitation I received from the University of San Francisco Law Review to contribute to a symposium on war crimes accountability and to speak at the 13th Annual Trina Grillo Public Interest and Social Justice Retreat. This provided me with a forum to work out preliminary thoughts on the subject. See “The War Crimes Trial That Never Was: An Inquiry into the War on Terrorism, the Laws of War, and Presidential Accountability,’ University of San Francisco Law Review 45 (2011): 959-1004. I am also thankful for comments I received at colloquia at the School of Law and the Law, Societies, and Justice Department at the University of Washington as well as annual meetings of the Law and Society Association and the Western Political Science Association.

Introduction

For many Americans, it may be difficult to take seriously any suggestion that a US president committed war crimes. This is partly due to the popular understanding of this class of crimes. They bring to mind unspeakable atrocities—the like of killing fields, ethnic cleansing, and genocide.’ War criminals are seen as bad actors without any redeeming virtue. To Americans, crimes of war are most often associated with authoritarian regimes or war-torn countries—that is, someplace else, a place where the rule of law has not taken hold or where military forces lack a professional ethos. Criticizing presidents may be a favorite pastime in the United States, but talk of presidential war crimes is bound to be greeted with skepticism.

The early years of America’s war against terrorism raised unsettling questions on this subject. A substantial body of evidence has accumulated that suggests that President George W. Bush committed war crimes, not under some amorphous standard of what constitutes an atrocity, but rather as those criminal offenses are defined by the laws of war. The most egregious infractions involved the mistreatment of terrorism suspects taken prisoner by the United States. The Geneva Conventions set forth binding standards for the protection of persons detained in the course of an armed conflict, whatever they have done and whether or not they qualify as prisoners of war. At a minimum, the conventions mandate the humane treatment of wartime captives.’ President Bush violated this basic rule.

The mistreatment of detainees in US custody was the inevitable result of the interrogation program the president approved for use in the war against terrorism. Questioning captured enemy soldiers is nothing new. The laws of war permit interrogation. In earlier conflicts like World War II, the American military had scored valuable intelligence coups by conducting interrogations in accordance with the laws of war.’ At the time of the terrorist attacks on September 11, 2001, every branch of the US armed services had in place detailed regulations governing the treatment of detainees. Army Field Manual 34-52 made it clear that interrogations involving “inhumane treatment” and “physical or mental torture” were “criminal acts” in violation of the laws of war and US law.*

Five years after the September 11 attacks, President Bush spoke publicly for the first time about an “alternative set of procedures” he had authorized for the interrogation of terrorism suspects. “These procedures,’ the president noted, “were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations.’ At that time, President Bush declined to provide further details about the interrogation methods used. “I think you understand why, he told an audience gathered in the East Room of the White House. “If I did, it would help the terrorists learn how to resist questioning’

It is now known that these alternative procedures were derived from a US military training program called Survival, Evasion, Resistance, Escape (SERE). That program was not set up to train military interrogators. As its name implies, SERE was designed instead to prepare American servicemembers in case they were captured by enemy forces. One part of the curriculum, designated Level C, provided resistance training by simulating conditions of prisoner abuse. Trainees were hooded, stripped naked, slapped, deprived of sleep, slammed into walls, forced to hold stress positions, exposed to extreme temperatures, and placed in small boxes. Degradation—treating mock prisoners like animals—was a key part of this training. It was thought that anyone treated like this under controlled conditions would be better prepared to withstand mistreatment by an enemy that did not comply with international law.°

The SERE program was not the product of “what if” contingency planning. Its origins can be traced to the actual experience of American POWs in the Korean War. Chinese Communists had got dozens of captured US airmen to make confessions that were so patently false that the American public came to accept some mysterious form of “brainwashing” as a plausible explanation of their behavior. Investigations by the Air Force, along with Central Intelligence Agency (CIA) studies of Soviet police practices, revealed something else at work. It became clear that coercive techniques as seemingly innocuous as sleep deprivation—techniques that might be considered psychological torture—had a devastating effect on prisoners, even more than physical violence did. One Air Force study, “Communist Attempts to Elicit False Confessions from Air Force Prisoners of War,’ identified several methods used to break down the airmen. Besides sleep deprivation, these included isolation, sensory manipulation (darkness, bright light, restricted movement), exposure to cold, and prolonged constraint. The Chinese also used something the Air Force called “degradation” to strip their American captives of any shred of dignity and bring them down to “animal level” concerns. Guards taunted the prisoners, prevented them from cleaning themselves, denied them bathroom privacy, and imposed demeaning punishments.’

Despite SERE’s purpose and origins, the Bush administration “imported” its techniques for use in the war against terrorism.® The overall goal was to create “a state of learned helplessness’—a concept drawn from psychological experiments that administered electric shocks to dogs in cages.’ Before questioning began, prisoners were subjected to baseline conditioning to make clear to them that they had “no control over basic human needs.”!° Forced nudity and sleep deprivation were considered essential to the conditioning process. Interrogators kept some prisoners naked for months at a time. Sleep deprivation was approved for 180 consecutive hours (seven and one-half days). The “primary method” used to stop detainees from sleeping was to shackle them to the ceiling and the floor with their hands outstretched in front."?

Government documents marked “TOP SECRET” describe the interrogation procedures with bureaucratic precision. One, called “walling, involved slamming prisoners into walls to induce a feeling of “dread” There was no stated limit to the number of times this could be done, though thirty in a row was not considered too many.” “Water dousing” was another technique. Interrogators were authorized to douse detainees in cold water as low as 41° for twenty minutes without a break—ten minutes shy of the time hypothermia would be expected for a healthy person immersed in water at that temperature. The process could be repeated once the prisoner was dried and rewarmed."* “Cramped confinement” involved placing the detainee in a small dark box that one government official described as “a dog crate”™ If the prisoner had room to stand, confinement could last for eight consecutive hours.’ Several stress positions were approved to “humiliate” detainees. For example, they could be forced to hold themselves in place while kneeling on the floor and leaning back at a 45° angle (the Army Field Manual in effect then defined “physical torture” to include “forcing an individual to stand, sit, or kneel in abnormal positions for prolonged periods of time”).'° Additional interrogation procedures went by the names of insult slap, abdominal slap, facial hold, and attention grasp.”

Of all the Bush administration's interrogation tactics, waterboarding has received the most publicity. This may have been partly due to its history, with the Gestapo and the Khmer Rouge among its most notorious practitioners. The Bush Justice Department recognized waterboarding as “the most traumatic” of the approved interrogation methods. The aim was to produce the “sensation of drowning?’ The gag reflex induced can be intense—so intense that Justice Department lawyers had at one time concluded that waterboarding constituted “a threat of imminent death, which can be one element in the criminal offense of torture under US law. “Any reasonable person undergoing this procedure,’ one Justice Department memorandum stated, “would feel as if he is drowning at the very moment of the procedure due to the uncontrollable physiological sensation he is experiencing”? Among the medical risks, waterboarding can cause “spasms of the larynx,’ rendering the prisoner incapable of resuming breathing without an emergency tracheotomy.”

It was obvious to everyone involved in planning the interrogation program that these tactics brought up significant legal issues. Internal administration documents reveal the extent of their concern. Attorney General John Ashcroft sent a letter to President Bush warning him that there could be “substantial criminal liability” for “involved U.S. officials” A draft memorandum for the president bearing the name of White House counsel Alberto R. Gonzales recommended that President Bush declare the Geneva Conventions inapplicable in order to mitigate the “threat of domestic criminal prosecution” under a US law called the War Crimes Act.”

On February 7, 2002, President Bush issued a classified memorandum to his top national security officials that was titled “Humane Treatment of al Qaeda and Taliban Detainees” (see appendix A). Citing his authority as commander in chief, President Bush declared that “none of the provisions of Geneva” applied in the conflict with Al Qaeda. He made a blanket determination that Al Qaeda and Taliban fighters could not qualify as prisoners of war; hence, they were not legally entitled to the protections Geneva provided POWs. While the memorandum stated that detainees would be treated humanely as a matter of policy, the president decided that Common Article 3 of the Geneva Conventions—a crucial provision that sets out minimum requisites for the humane treatment of “persons taking no active part in the hostilities” during non-international conflicts—did not apply either. In the words of Jack Goldsmith, President Bush “rejected any binding legal constraints on detainee treatment under the laws of war” If there was any question of the president’s understanding of his power in relation to this body of law, that was laid to rest when he asserted plainly that he had the “authority under the

Constitution to suspend Geneva?”

To the general public, the first sign of something amiss came in the spring of 2004, when graphic reports and photographs surfaced showing the abuse of prisoners in the custody of the US Army at Abu Ghraib Prison in Iraq.” The Bush administration attributed the problems there to “a few bad apples,’ but with a succession of revelations about Justice Department “torture memos,’ the use of “enhanced interrogation techniques,’ and a global network of secret prisons run by the CIA called “black sites,’ it became increasingly difficult to single out a handful of wayward soldiers for censure.”

The extent of President Bush’s involvement remained unclear while he was in office. After news broke about Abu Ghraib, the White House indicated that he had little to do with the specifics of the administration’s interrogations. His press secretary said that the president had set forth general guidelines, all the while insisting that the treatment of detainees must be “consistent with our laws” White House counsel Gonzales told reporters that President Bush had “not directed the use of specific interrogation techniques.” It was not until 2008 that news accounts began to link harsh interrogations to the highest-ranking members of President Bush’s national security team. ABC News found out that Vice President Dick Cheney, the CIA director, the national security advisor, and several cabinet secretaries had met repeatedly to approve detailed interrogation plans for particular detainees. At one point, Attorney General Ashcroft reportedly asked his colleagues, “Why are we talking about this in the White House? History will not judge this kindly’ Still, President Bush appeared in news accounts to have kept his distance. The ABC News report went no further than to say that the president knew that his national security principals met to discuss interrogations and he approved of their doing so.”

Nearly two years after leaving office, President Bush disclosed that he had played a far greater role than was previously known. In his memoir Decision Points, published in November 2010, the former president wrote that he had reviewed proposed interrogation methods, directed lawyers at the Justice Department and the CIA to assess their legality, and then authorized their use. The president noted, evidently with some pride, that he had personally directed the CIA to waterboard particular terrorism suspects.” President Bush related that, when the agency asked for permission to waterboard Khalid Shaikh Mohammed, his reply consisted of two words: “Damn right” To those who considered waterboarding torture, this was a stunning admission, by itself prima facie evidence of the former president’s criminal liability.”

Even before the memoir’s publication, a retired US Army general had concluded that there was “no longer any doubt as to whether the current administration committed war crimes.” The man who made that statement, Major General Antonio M. Taguba (Ret.) ought to know. He had spearheaded the Army’s investigation of the 800th Military Police Brigade, the unit at the center of the Abu Ghraib scandal. The general did not mince words about the president’s overall responsibility: “The Commander-in-Chief and those under him authorized a systematic regime of torture” The “only question that remains to be answered,’ Taguba added, was “whether those who ordered the use of torture will be held to account”?

As the Bush presidency recedes in memory, the answer to that question has become clear. While the military court-martialed several servicemembers, no one in the highest ranks was prosecuted.” Of all those outside the military who might be implicated, the Justice Department brought charges against only one (a CIA contractor named David Passaro), and that was while President Bush was still in office! During President Barack Obama’s administration, federal prosecutors conducted a limited criminal investigation that began when Attorney General Eric Holder opened “a preliminary review” of selected CIA interrogations. Holder confined the investigation to the use of unauthorized methods. That meant that interrogation tactics like waterboarding were not part of the inquiry so long as interrogators followed the procedures approved by the Bush Justice Department. The attorney general emphasized that charges would not “necessarily follow”? It was a prophetic remark. After looking into approximately one hundred cases, prosecutors closed the preliminary review, conducted criminal investigations in two cases, and then concluded the inquiry without indicting anyone.” In announcing the end of the investigation, Attorney General Holder said that it “was not intended to, and does not resolve, broader questions regarding the propriety of the examined conduct?"

The Justice Department never focused on President Bush’s role in the mistreatment of detainees, and it is evident by now, if it was not previously, that he was never going to be tried for war crimes in the United States or anywhere else. In theory, prosecutors in other countries could have filed charges against President Bush, but the odds were always stacked against any other nation exercising jurisdiction over him.” Other prosecutorial options were simply inconceivable. The UN Security Council was never going to establish a special international criminal tribunal as it had for Rwanda and the former Yugoslavia. Nor was President Bush ever going to be hauled before the International Criminal Court in the Netherlands, even with a slowly developing investigation of war crimes committed in Afghanistan.”

While this record of prosecutorial nonfeasance is remarkable enough, the discussion of accountability in the public debate seems no less so. To sum up the zeitgeist on this, it seemed unclear why accountability mattered. As President Bush’s second term came to a close, a critical mass of commentators (including many dismayed by reports of torture) peremptorily dismissed the idea of prosecuting anyone involved, let alone the president. Americans were told that the legal obstacles were insurmountable and the political consequences ruinous. Jack M. Balkin thought that criminal prosecutions might be “the least effective” mechanism to achieve accountability for prisoner abuse. Jack Goldsmith considered any “insistence” on criminal trials “misplaced? Jeffrey Rosen summed up the prevailing view: “even staunch advocates of legal accountability for the Bush administration’s interrogation policy don’t believe that a straight war-crimes approach has a high chance of success”?

Ifthe legal obstacles appeared formidable, political considerations loomed even larger. As the public debate over the Bush administration's interrogation regime unfolded, there emerged something that might be called a discourse of accountability. That discourse provided a vocabulary of what could be done and, more to the point, what could not be done to hold individuals accountable for the mistreatment of detainees. The message was clear from the language used: “criminalizing policy differences,’ “stop scapegoating,’ and “partisan witch hunt”? Prosecuting here, Washington Post columnist David S. Broder warned, would turn “all future policy disagreements” into “criminal vendettas.” Perhaps it was inevitable that no one in authority would be prosecuted, but the sentiments expressed in language like that appear to have gone a long way to rationalize that result. President Obama did not favor prosecutions either, as he told Americans that “nothing will be gained by spending our time and energy laying blame for the past?”

Although the Constitution’s framers contemplated the prosecution of former presidents, putting President Bush on trial was so obviously out of the question that it got hardly any argument. Some thought that the American political system could not withstand the strain of such a trial. There seemed to be an implicit consensus, sometimes explicitly stated, that while his actions were really bad—criminal in fact—it would be impossible to prosecute him. “We're not just talking about ‘enhanced interrogations,” said Thomas L. Friedman, but “sheer brutality” and “homicides.” Yet justice “taken to its logical end” would lead to trying President Bush, and that, Friedman thought, would “rip our country apart” Likewise, Andrew Sullivan believed there was “flagrant evidence of war crimes” committed by the president “on down,’ but prosecuting him would “tear this already polarized society apart” Michael Walzer, who established his reputation for work on ethical conduct in warfare, did not doubt that the president had “authorized” torture, but he suggested that prosecuting him would be “radically imprudent?”

This book takes issue with the notion that a US president can commit war crimes with impunity. It proceeds from the view that the misconduct in question—holding individuals incommunicado, depriving them of any sort of hearing, torturing them—reflects the most visceral concerns over the abuse of executive power and that prosecuting the president was the only alternative comporting with international law. With that in mind, it might be tempting to present a straight-line argument that President Bush committed war crimes and that he should have been prosecuted.

This study takes a different approach. While it has seemed necessary to examine what President Bush did in violation of the laws of war in the course of laying out this book’s argument, this work was not conceived as a call to action for federal prosecutors to indict the former president. This book does more than lay out a case against him, and no attempt is made to canvass every technical question of law that might have been brought up in criminal proceedings. Using the Bush administration’s mistreatment of detainees in the war against terrorism as a crucial case study, this book is designed to reflect more broadly on the American presidency and its relationship to the law—in this case the laws of war—and the complexities surrounding presidential accountability in wartime. By framing the question of President Bush’s conduct around the laws of war, this study merges constitutional analysis with international humanitarian law. In doing so, it adds to a large body of work that takes the US Constitution as the principal source of law for judging the exercise of presidential power.

Given the interpretive approach taken in this work, it will be useful to provide a summary introduction of its guiding assumptions regarding accountability, the presidency, and the laws of war.

“Accountability” is a term so often used that it would seem to require no clarification. In the context of this discussion of war crimes, the first thought that may spring to mind is holding individuals responsible for their behavior through the criminal process to determine whether they are blameworthy and how they should be punished. That can be the most fitting alternative in many situations, but there is more to the concept of accountability than that. At its core, accountability means that persons (or organizations or states) are answerable to others for their actions. Often this is described in terms of a baseline obligation to explain or justify conduct. Transparency is a necessary element of accountability. Following the rules—whether strictly defined laws or unwritten social norms—is another key aspect of accountability. So too is liability for violating the rules. Besides criminal sanctions, liability can take various forms, ranging from disciplinary proceedings to financial audits. As this book defines it, accountability includes prospective or before-the-fact accountability (the idea being to constrain someone to prevent misconduct from occurring in the first place) as well as retrospective or after-the-fact accountability (which necessarily comes into play after misdeeds have already taken place).!

This inquiry into the Bush administration’s mistreatment of detainees provides an opportunity to observe how presidential accountability intersects with the concerns animating human rights accountability. In recent years, considerable thought has been given to accountability in the emerging field of transitional justice.” Prosecution remains an important alternative, befitting the nomenclature of war crimes and crimes against humanity, but the question of how to enable societies moving from authoritarian rule or intercommunal conflict to a peaceful democracy respectful of human rights has led to an expanded set of accountability options. These include truth commissions, civil litigation, immigration measures (deportation, denaturalization), financial sanctions, reparations, memorialization, and measures geared toward a successful transition (reconstituting the judiciary or barring human rights violators from public office, for example). Some of these human rights accountability mechanisms may be relevant to consider for presidential accountability in the United States; others clearly are not germane.”

On paper, the options Americans have for holding their presidents accountable make for an impressive list. The obligation to face voters at the polls should probably count as the most basic accountability mechanism, not only through quadrennial elections but also by virtue of the ongoing force of public opinion. Then there is the familiar system of checks and balances. Congress has a reservoir of powers that can be brought to bear against the president, whether through ordinary legislation, oversight hearings, budgetary controls, the appointments process, or impeachment. The Supreme Court has built up its authority to invalidate actions taken by the president. State governments provide an additional counterweight against the nation’s chief executive, as illustrated by recent high-profile lawsuits filed by state attorneys general contesting presidential policy initiatives. The president may encounter pushback from within the executive branch as well. An assortment of individuals and institutions outside the government can also play a part in checking the president, usually by exposing executive overreach. Some, like the press, have long standing; others are of more recent origin (for example, public advocacy groups). Independent commissions can be set up to investigate White House activities. In theory, criminal prosecution affords yet another avenue to hold presidents accountable, although no one who served in that office had ever been charged with a criminal offense until a Manhattan grand jury indicted President Donald J. Trump.“

It goes without saying that accountability is an intrinsic feature of a functioning democracy.“ A central premise underlying this book’s argument is that presidential accountability is likewise an indispensable feature of the constitutional system of government devised at the nation’s founding. This proposition should not stir controversy. Individuals across the political spectrum have said something to that effect. According to Arthur M. Schlesinger Jr., the Constitution’s framers sought to couple “a strong presidency” with “an equally strong system of accountability’ Or, as Justice Antonin Scalia explained, the founders “established a single Chief Executive accountable to the people” so that “the blame can be assigned to someone who can be punished?“ As unobjectionable as this point may be, a brief history will help to set the stage for this book’s argument.

To the framers of the Constitution, presidential accountability was the key to solving a problem that was, in their eyes, one of the most challenging they faced: the problem of executive power. When the delegates gathered at the Constitutional Convention in Philadelphia in 1787, they had two models before them. One was the example provided by King George. The other was the experience of their own governments under the Articles of Confederation. It had become clear by then that each suffered from serious disadvantages.

Regarding the British Crown, it would not be accurate to say that, under the prevailing theory of the English constitution at the time, the king was an absolute ruler with unlimited power. But to the American revolutionaries, there was nothing to distinguish His Majesty’s conduct from that of a sovereign who was above the law—one who exercised power without limitation. That sentiment was expressed in the Declaration of Independence, which described the king’s “direct object” as “the establishment of an absolute Tyranny.’ This lesson on executive power was not lost on Americans as they formed their own governments during the Revolutionary War. “They seem never for a moment,’ James Madison reflected, “to have turned their eyes from the danger” presented by an “overgrown and all-grasping prerogative of an hereditary magistrate” Generalizing from their particular case, Americans had drawn a broader conclusion from the exercise of Crown authority. It was not just the monarchy that was at issue. They questioned executive power itself, seen by its nature to be all too easily subject to abuse, a ripe vehicle for corruption, and fundamentally at odds with individual liberty. “Executive power, wrote one observer from Delaware, was “ever restless, ambitious, and ever grasping at encrease of power’*

Perhaps there is no better indication of how deeply this concern ran than the efforts made to expunge any trace of executive power from the newly formed governments under the Articles of Confederation. The central government had no independent executive branch. Members of the Continental Congress could not even bring themselves to entertain a proposal for an executive council composed of persons they selected. Congress retained executive power, which it was compelled by necessity to exercise, but it did so haphazardly by delegating administrative tasks first to ad hoc committees and private individuals, then standing committees and executive departments.” As for the new state governments, it is true that almost every one of their constitutions adopted during the Revolutionary War had a governor (with the exception of Pennsylvania's twelve-member Executive Council), but the office was typically little more than an empty title, with sharply limited powers, short terms (many no longer than one year), no veto power, and no discretionary authority to take action without preapproval of a council whose members were appointed by the legislature.” The chaos that ensued laid bare the problems in taking this concern over executive power too far.

With Americans wary of creating a strong executive like the English monarchy and frustrated with their own dysfunctional governments, the framers’ constitutional solution may seem obvious in retrospect. They sought to create a powerful and independent executive adapted, so they thought, to fit republican government. This was something new in the history of politics. During the ratification debates, some questioned whether that was even possible. “There is an idea, which is not without its advocates,’ Alexander Hamilton admitted, that “a vigorous executive is inconsistent with the genius of republican government”!