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The Torture Papers

Karen J. Greenberg and Joshua L. Dratel
Tuesday, February 15, 2005; 2:00 PM

Karen J. Greenberg and Joshua L. Dratel discussed their book "The Torture Papers: The Road to Abu Ghraib," a collection of government and military memos outlining interrogation rules and abuses.

The transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.


Arlington, Va.: How did you go about gaining access to the papers to compile this book? What made you want to do this in the first place?

Karen J. Greenberg: Access to the documents came in a variety of ways, but primarily through journalists to whom the documents had been leaked and through FOIA requests done by, for example, the ACLU. Some of the documents were provided directly by those involved with a specific document.


Southern Maryland: While the cruelty at Abu Ghraib was very disturbing, I was also saddened by what the incident meant for the US. I had thought that Americans weren't supposed to be torturers. We were supposed to be the "good guys," the heroes who rescue people from oppression. One powerful metaphor from World War II was GIs handing out chocolate to German and Italian children. Am I beeing hopelessly naive? After all, My Lai and the 1921 Tulsa riots are plenty of proof that the US is no different from any other country in our capability for atrocities.

Joshua L. Dratel: The fundamental difference for me is that while My Lai and other incidents demonstrate that individuals from the U.S. are just as capable of atrocities as soldiers, etc., from other nations, this situation represents a government policy as opposed to merely rogue elements acting without authority. Thus, the punishment of Lt. Calley was an important element in reaffirming U.S. commitment to the laws of war, Geneva Convention, etc. In this instance, however, we have a government-instituted and endorsed policy of violating international norms, the Geneva Convention, and our own statutes and Constitution. That, to me, differentiates this from prior isolated instances, and is the most disturbing as a reflection of our national values. Thanks for your question.


Bethesda, Md.: For months now, anyone who cared to connect the dots would see highly similar abusive practices used in geographically -disparate- places: Guantanamo Bay, Abu Ghraib (central Iraq), Mosul (extreme northern Iraq) and Basra (southeastern Iraq), and even Afghanistan. I understand the count of personnel under investigation or courts martial is currently up to 131. A hundred and thirty one "bad apples", all "roguing" at the same time in different places.

Why do you think the media has bought into this unlikely explanation? Is it just fear of losing access to the administration? Is it one of those "group denial" things? Perverted patriotism? Racism perhaps? Would they report it differently if these "humbled dogs" had white skin?

Karen J. Greenberg: There are two important parts of this question. One the implicit statement that this is not rogue behavior, something that as you mention is clear from the repeated usage of the same kinds of techniques from being made to wear underwear on one's head to waterboarding. But there is also the assertion that the media is accepting the rogue explanation. Are they? Or have they just staying away from the story? IN the past week, in the wake of the documents and information coming out about Gitmo, the press has been all over the story. As for the television media, that is another question....As for why? Perhaps it is because it is extremely hard to accept this about ourselves not to mention that the country has had to face a number of shocks in the wake of 9/11. Perhaps it's all too much.


Toronto, Ontario: In WWII the United States Arm Forces followed the rules of the Geneva Convention religiously even when dealing with countries, such as Japan, whom had repudiated such policies; why is the collapse of the moral authority in our military so rapid and so profound that even the defenders of the Geneva Convention sound like the hesitant participants at the Wannasee Conference?

Karen J. Greenberg: To some extent, this question may answer itself, but let me add something. In World War Two, the military understood deeply the prohibition on cruel and unusual treatment. They understood that there was a strong strategic dimension to the fact that the enemy did not expert torture, or cruel treatment. Eisenhower put it well when he said afterwards that the war would have lasted much longer had the US military had a reputation for inhumane treatment because the enemy would not have been willing to turn themselves in as they did. This all raises the issue not just of moralioty as you framed your question but of strategy and the lack of attention to the strategic dimensions of a torture policy or of cruel and in human treatment, if you prefer.


Birmingham, Alabama: Recent reports of female interrogators touching Muslim men or dressing Muslim men in female clothing to torture them raise an interesting issue. I thought that torture is defined by international consensus, but there is no international agreement that being questioned or touched by women or made to wear women's clothing is degrading. How do we consider these acts "torture" without validating the cultural belief that women are inferior? Is "torture" culturally relative?

Karen J. Greenberg: There are many ways to answer this question, but perhaps it's best to begin with the thought that the idea that of humiliating Muslim men and doing so according to Muslim custom has been frequent in American policy during the post 9/11 period. So, it is in some ways, US culture choosing to manipulate what we understand of Muslim culture. Yes, I would say, degrading treatment may be culture specific, but it should not be implied that this means that these acts were used without the intention of being degrading.


Tampa, Fla.: Leaving aside the moral and legal issues, did torture yield any worthwhile intelligence? I understand the FBI says no. If so, this destroys the only possible justification for torture, that it is necessary to save American lives. Torture then amounts only to throwing gasoline on the fire of anti-Americanism.

Joshua L. Dratel: Thanks for your question. Thus far, the U.S. has not pointed to any specificm valuable intelligence gleaned from torture. Also, as you note, the FBI, among others who have spoken on and off the record, has debunked any general claim that the interrogation methods have yielded anything of value. In addition, to me, the "saving lives" reationale does not hold water, because that could be used in all endeavors -- even investigation of ordindary crimes in this country, not to mention any armed conflict. Surely , under that rationale, torturing German and Japanese soldiers (and particularly officers) would have produced information that would have saved the lives of U.S. soldiers. Yet we didn't do that because (a) we agreed to a code of conduct that was appropriate for a civilized country; and (b) we recognized that abiding by such a code protected our own troops from mistreatment. The current policy has, unfortunately, upset that whole concept of reciprocity, and puts our soldiers at risk.


Indianapollis, Ind.: I believe the punishment of those lower enlisted was just scape-goating because I have't seen anything done to the NCO's and officers over them. Or have I missed something?

Joshua L. Dratel: Thanks for your question. I agree with you. There is a huge and important gap in this story that needs to be filled in. We have the soldiers who implemented the policy on actual persons, and the very highly placed government officials who designed the policy. What's missing thus far is the chain of command by which these instructions and this policy were communicated to the rank and file. It is reasonable to conclude that those who commit torture are acting outside authority if the policy clearly prohibits it. But when, as in this context, there is a policy developed at the highest level of government, and that policy is manifested at the "field" level, it is extraordinarily hypocritical for only those in the field to be prosecuted and punished, and for them to be treated as if there is no connection between the design of the policy and its implementation in the field.

Karen J. Greenberg: Perhaps as an aside, we might mention that those who wrote many of these memos have been promoted. Bybee to the 9th Circuit, Gonzales to Attorney General, and now Haynes has been nominated again for the US court of appeals, fourth circuit.


Berlin, Germany: When the Senate ratified the Anti-Torture-Convention in 1994, it found it to be sufficiently implemented inside the US by the constitution. For torture crimes committed outside the US, it enacted U.S.C. 18 Section 2340 and 2340a. Why do these sections only refer to torture and not to "cruel, inhumane, and degrading treatment" or corresponding to the 8th amendment "cruel and unusual punishment"? Was there any intention behind that?

Joshua L. Dratel: I am not sure what the intention was, but generally the U.S. has been very cautious in expanding the coverage afforded by international treaties. Indeed, more often, the protection ultimately ratified by Congress is less than that contained in the Treaty itself. Congress has also been reluctant to extend coverage afforded by U.S. Constitutional rights (such as the 8th Amendment) to non-citizens outside the U.S. Thus, regardless of the statutory definition, a U.S. citizen, or alien within U.S. jurisdiction (i.e., Guantanamo Bay), could assert his or her rights under the 8th Amendment.


Kennesaw, Ga.: Thanks for doing this chat. My impression from the media accounts that I've read is that a shaky and improvised consensus on how to handle detainees taken in Afghanistan might have gotten us into trouble in any event, but helped drag us to disaster once the military detention system got overwhelmed with vast numbers of prisoners taken in Iraq.

Is this impression sound? Wrong? Incomplete?

Joshua L. Dratel: That is one rational interpretation of what has occurred. However, while I agree that the origins of the problem can be traced to a total lack of foresight, and that the entire Guantanamo strategy has been "seat of the pants," I do think that the interrogation and/or torture policy was calculated from the inception of the memos set forth in our book. For example, the threshold issues that the memos address are (a) is Guantanamo a suitable place for housing detainees so that they would be off limits to any court; and (b) providing an interpretation that absolves any of the U.S. government policy-makers of liability for war crimes (as a result of this policy). That, to me, does not indicate a haphazard approach, at least as far as this policy is concerned. Thanks for your question.


New Haven, Ill.: I'm afraid I haven't read your book, but I'm assuming from the description of the contents, that it deals mainly with the "paper trail". What I am very curious about is the effects of such behavior on the perpetrators of torture. Are there studies regarding the after-effects on the torturors? And how do they go about recruiting people to do such terrible things to other human beings? Is there a profile, do they look for people who would already like to be inflicting pain on others, especially gullible people who can be convinced this is necessary? I can't help but think that the aftermath on people who do such things must be every bit as bad as, or very similar to, PTSS. Do you address this at all in your book?

Karen J. Greenberg: The torture papers themselves do not directly address this, but many of the testimonies of the interrogators demonstrate a reaction to the association, if not the direct participation, in the abuses that went on at Abu Ghraib. Taking your question one step further, there is the question of the impact on a society of having this done in its name, particularly as the rest of the world begins to associate us with this treatment of others. One additional point, a number of those that we have seen involved in the abuse had worked in American prisons before, which raises the question of the nature of the treatment at US prisons.


Anonymous: Did anything in the memos surprise you?

Karen J. Greenberg: Many things suprprised me. The Taguba Report which was the first evidence we saw of this shocked me with its graphic details of abuse, cruelty and sexual misconduct.The Gonzales memo suprised me because its reasoning of pros and cons for considering al Qaeda and the Taliban outside of the Geneva Conventions would have led me to the opposite conclusion, based on his arguments. Overall, the lack of attention to any moral considerations is surprising. And above all, the repeated mention of absolutely intolerable treatment at the hands of American interrogators continues to surprise me with each document I read.

Joshua L. Dratel: I was surprised at how categorical some of the memos are -- they take a very distorted and one-sided view of very important factors (for example, is Afghanistan in such chaos that it is not a "state" for purposes of the Geneva Convention, or the question whether Guantanamo is within the jurisdiction of the U.S. courts). The result is that the President was provided poor advice because both sides were not sufficiently presented. Ultimately, the government lost the Guantanamo question in the Supreme Court because of that failure to consider both sides, and has lost the Geneva Convention issue in the lower courts (for the same reason).


Richmond, Va.: It is not credible to me that these things happened without the knowledge and approval of Rumsfeld and the White House. This might make Rumsfeld, Bush and several other senior administration officials war criminals. Have you found any evidence that shows that Rumsfeld or senior administration oficials knew what was happening?

Karen J. Greenberg: Rumsfeld called a halt in January 2003 to interrogation practices that involved techniques beyond those listed in category one of counter-resistance techniques. This order referred to a Dec order allowing an expanded use of techniques. While none of these were as egregious or cruel as those that are now documented, it did mean that there was a sense of urgency at the top to get information rapidly and to use more coercive techniques to do so. If nothing else. this is a sign of the fact that they were discussing the methods of interrogation well before Abu Ghraib.

Joshua L. Dratel: The evidence is circumstantial and is contained in the book. In addition, as the ACLU litigation generates release of more government documents on the subject, including the complaints lodged by the FBI and others, the evidence at the very least demonstrates that those who were informed of these complaints knew of abuse but failed to act to correct it.


Victoria, Canada: Is there any evidence of deliberate vagueness in the torture memos? (The sort of deliberate, left unsaid, direction that nevertheless implies to commanders, "They'll know what to do." and gives senior administration officials plausible deniability.)

Karen J. Greenberg: If there is anything surprising about these memos, it is the lack of vagueness. They are detailed, specific, legalistic analysis of the predicament of wanting and needing information and not succeeding at getting what they wanted. Remember, there are still memos out there which will provide even more detials. But your question brings to mind another question, which is what was the general tone set at these camps/prisons and there seems to be little doubt that the mandate was to soften up the prisoners for interrogation.


Anonymous: The Washington Post quoted Lynndie England, one of the marines at Abu Ghraib charged with torture, as saying "We were just having fun". She didn't mention trying to get answers or information from prisoners, just that the torture was "fun". This is very disturbing.

Joshua L. Dratel: I agree that it is disturbing. I doubt, though, that any system will completely eliminate instances of abuse in the battlefield or in detention (military or civilian). However, the instances of such abuse can be greatly reduced if official policy prohibits it, and it is policed in a manner that produces confidence that the law is being applied equally and fairly. Unfortunately, singling out individuals without also condemning the policy and persons who encouraged such wanton behavior does not accomplish those goals. As I said in my answer to another question in this forum, the principal objection that I have is that the U.S. has adopted torture as a policy -- thus, random acts of "fun" must be viewed in that larger context, in which the policy condones mistreatment of prisoners, even if it's not for some intelligence purpose.


Marblehead, Mass.: Rather than the media buying into the rogue actions of a few bad apples silliness, it seems more a case of the administration repeatedly answering these charges in that fashion to the point where the media gives up hope of ever getting an admission of responsibility. See, e.g., the testimony of Gonzales during his confirmation hearing and the rhetoric of Republicans in the Senate repeatedly trumpeting this shameful game of blaming the troops.

Joshua L. Dratel: It is unfortunate that the Senate failed to seize a golden opportunity to probe further (during the Gonzales hearings) into how this policy evolved, and the connection between specific instances of abuse and the policy directives from above. For example, I do not believe that the Justice Department officials who crafted the initial memos did so spontaneously. Who and what motivated them to prepare these memos, and what were the covnersations that led to their preparation? Those are questions that have not been answered satisfactorily, but which, to me, are quite important. Thanks for your question.

Karen J. Greenberg: One more point- which is that there is always the case to be made that rogue elements are still the responsibility of the higher ups. With or without a paper trail, the abudance of evidence in itself says something about policy.


San Francisco, Calif.;: Ms Greenberg and Mr Dratel,

Of all the documents, which is the most important foundationally?

Have any antecedents been discovered in foreign law?

What are the precursors to these policies?

Thank you.

Karen J. Greenberg: Good question. There is no one document, to my thinking, but I can list a few. The very first memo in the book, written by John Yoo to Timothy Flanigan on September 25, 2005 which maintains that due to the state of emergency that has been called in the wake of 9/11, the president has broad powers to take military action and to retaliate against any person, organization or state involved in terrorism against the US. It is a defining document and set the story in motion. But there are others. Certainly, the January 9th John Yoo memo explaining why the Geneva Conventions do not protect members of Al Qaeda or the Taliban, the January 25 Gonzales memo and the January 26th Powell attempt to argue for following the Geneva Conventions, the Bybee memo of August 1, 2002, which defined torture as near organ failure and the Goldsmith memo on rendition from March 19, 2004. These are the fundamental ones.


Washington, D.C.: Do you believe that the armed forces are doing a good job going after those that committed these atrocities?

Joshua L. Dratel: I don't think the job has been nearly complete. While those who commit atrocities personally are certainly liable for their conduct, the atmosphere in which such conduct occurred should also be examined, and those responsible for it should also be held accountable -- whether legally or politically or professionally depends on the person, their position, and their level of involvement. Another deficiency in the enforcement process is that no one has seen fit to do comprehensive interviews of the detainees themselves to determine who might be liable for acts of abuse. That would be like prosecuting an assault case without interviewing the victim. Any "investigation" performed by the military (or any other entity) that does not undertake inventory of what the detainees have to say has not done its job.


Washington, D.C.: Do you think members of the Bush administration will ever be held accountable for fostering torture; do they deserve to be?

Joshua L. Dratel: I do not believe there will be any prosecutions for war crimes. More importantly from my perspective, though, is how easily many of those involved in formulating this policy have been promoted (to judgeships, the Attorney General, etc.), or have found prestigious positions in academia. I would settle for some professional sanction for those involved -- that they be called to task for their participation, and not rewarded with promotions, etc.

Karen J. Greenberg: technically, this is all true. But you kneve know what true public rebuke about these activities could mean.


Dupont Circle, Washington, D.C.: Well, let's go a little further with the Viet Nam analogy. You said we did not have a policy. But we did, and it was that policy that John Kerry was protesting in 1971 before Congress. He was not accusing individuals of committing war crimes; he was accusing the US of violating the Geneva convention.

Joshua L. Dratel: I do see a difference between a de facto policy implemented by field commanders (or their close superiors) and one whose architects are at the highest levels of the DoD and DoJ, not to mention the White House. During Viet Nam, the U.S. did not formally reject the Geneva Convention, and I have been informed by many of those involved in the conflict that they were instructed to, and did, treat all captives, even VC (as opposed to NVA) according to the Geneva Convention. Thus, while the Geneva Convention may have been "honored in the breach" to a significant extent in Viet Nam, that does not rise to the level of officially sanctioned government policy (as it is in this case).


New York, N.Y.: In a Washington Post article of Jan. 25, it mentioned that some of the impetous to draft the memos came from Vice President Cheney's legal counsel David Addington. Why has that thread never been developed?

Karen J. Greenberg: I think there are journalists working on this part of the story now.


Washington, D.C.: What was the role of outside contractors in this scandal?

Karen J. Greenberg: investigators are still looking into the role of the outside contractors who seemed to have been used at Abu Ghraib. What kinds of charges can be brought against them, in what courts, is being debated among lawyers. This is an added dimension to the torture story that will require a study of its own.


Karen J. Greenberg: thanks for these questions. This was a wonderful chat.


Joshua L. Dratel: Thanks to everyone who participated, and to WashingtonPost.com for hosting. Bye.


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