ROGUES GALLERY -     The 13 Bush Officials Who Made Torture Possible
              By Marcy Wheeler, Salon
              Posted on May 22, 2009, Printed on May 22, 2009

              On April 16, the Obama administration released four memos that were used to authorize
              torture in interrogations during the Bush administration. When President Obama released
              the memos, he said, "It is our intention to assure those who carried out their duties relying
              in good faith upon legal advice from the Department of Justice that they will not be subject
              to prosecution."

              Yet 13 key people in the Bush administration cannot claim they relied on the memos from
              the DOJ's Office of Legal Counsel. Some of the 13 manipulated the federal bureaucracy
              and the legal process to "preauthorize" torture in the days after 9/11. Others helped
              implement torture, and still others helped write the memos that provided the Bush
              administration with a legal fig leaf after torture had already begun.

              The Torture 13 exploited the federal bureaucracy to establish a torture regime in two
              ways. First, they based the enhanced interrogation techniques on techniques used in the
              U.S. military's Survival, Evasion, Resistance and Escape (SERE) program. The program
              -- which subjects volunteers from the armed services to simulated hostile capture situations
              -- trains servicemen and -women to withstand coercion well enough to avoid making false
              confessions if captured. Two retired SERE psychologists contracted with the government
              to "reverse-engineer" these techniques to use in detainee interrogations.

              The Torture 13 also abused the legal review process in the Department of Justice in order
              to provide permission for torture. The DOJ's Office of Legal Counsel (OLC) played a
              crucial role. OLC provides interpretations on how laws apply to the executive branch. On
              issues where the law is unclear, like national security, OLC opinions can set the boundary
              for "legal" activity for executive branch employees. As Jack Goldsmith, OLC head from
              2003 to 2004, explains it, "One consequence of [OLC's] power to interpret the law is the
              power to bestow on government officials what is effectively an advance pardon for actions
              taken at the edges of vague criminal statutes." OLC has the power, Goldsmith continues,
              to dispense "get-out-of-jail-free cards." The Torture 13 exploited this power by
              collaborating on a series of OLC opinions that repeatedly gave U.S. officials such a
              "get-out-of-jail-free card" for torturing.

             Between 9/11 and the end of 2002, the Torture 13 decided to torture, then
              reverse-engineered the techniques, and then crafted the legal cover. Here's who they are
              and what they did:

              1. Dick Cheney, vice president (2001-2009)

              On the morning of 9/11, after the evacuation of the White House, Dick Cheney summoned
              his legal counsel, David Addington, to return to work. The two had worked together for
              years. In the 1980s, when Cheney was a congressman from Wyoming and Addington a
              staff attorney to another congressman, Cheney and Addington argued that in Iran-Contra,
              the president could ignore congressional guidance on foreign policy matters. Between
              1989 and 1992, when Dick Cheney was the elder George Bush's secretary of defense,
              Addington served as his counsel. He and Cheney saved the only known copies of abusive
              interrogation technique manuals taught at the School of the Americas. Now, on the
              morning of 9/11, they worked together to plot an expansive grab of executive power that
              they claimed was the correct response to the terrorist threat. Within two weeks, they had
              gotten a memo asserting almost unlimited power for the president as "the sole organ of the
              Nation in its foreign relations," to respond to the terrorist attacks. As part of that expansive
              view of executive power, Cheney and Addington would argue that domestic and
              international laws prohibiting torture and abuse could not prevent the president from
              authorizing harsh treatment of detainees in the war against terror.

              But Cheney and Addington also fought bureaucratically to construct this torture program.
              Cheney led the way by controlling who got access to President Bush -- and making sure
              his own views preempted others'. Each time the torture program got into trouble as it
              spread around the globe, Cheney intervened to ward off legal threats and limits, by
              badgering the CIA's inspector general when he reported many problems with the
              interrogation program, and by lobbying Congress to legally protect those who had

              Most shockingly, Cheney is reported to have ordered torture himself, even after
              interrogators believed detainees were cooperative. Since the 2002 OLC memo known as
              "Bybee Two" that authorizes torture premises its authorization for torture on the assertion
              that "the interrogation team is certain that" the detainee "has additional information he
              refuses to divulge," Cheney appears to have ordered torture that was illegal even under the
              spurious guidelines of the memo.

            2. David Addington, counsel to the vice president (2001-2005), chief of staff to the vice
              president (2005-2009)
              David Addington championed the fight to argue that the president -- in his role as
              commander in chief -- could not be bound by any law, including those prohibiting torture.
              He did so in two ways. He advised the lawyers drawing up the legal opinions that justified
              torture. In particular, he ran a "War Council" with Jim Haynes, John Yoo, John Rizzo and
              Alberto Gonzales (see all four below) and other trusted lawyers, which crafted and
              executed many of the legal approaches to the war on terror together.

             In addition, Addington and Cheney wielded bureaucratic carrots and sticks -- notably by
              giving or withholding promotions for lawyers who supported these illegal policies. When
              Jack Goldsmith withdrew a number of OLC memos because of the legal problems in
              them, Addington was the sole administration lawyer who defended them. Addington's
              close bureaucratic control over the legal analysis process shows he was unwilling to let the
              lawyers give the administration a "good faith" assessment of the laws prohibiting torture.

              3. Alberto Gonzales, White House counsel (2001-2005), and attorney general

              As White House counsel, Alberto Gonzales was nominally in charge of representing the
              president's views on legal issues, including national security issues. In that role, Gonzales
              wrote and reviewed a number of the legal opinions that attempted to immunize torture.
              Most important, in a Jan. 25, 2002, opinion reportedly written with David Addington,
              Gonzales paved the way for exempting al-Qaida detainees from the Geneva Conventions.
              His memo claimed the "new kind of war" represented by the war against al-Qaida "renders
              obsolete Geneva's strict limitations on questioning of enemy prisoners." In a signal that
              Gonzales and Addington adopted that position to immunize torture, Gonzales argued that
              one advantage of not applying the Geneva Convention to al-Qaida would "substantially
              reduce the threat of domestic criminal prosecution under the War Crimes Act." The memo
              even specifically foresaw the possibility of independent counsels' prosecuting acts against
              detainees.  Remember he was the main man in the ILLEGAL JUDGE FIRING SCANDAL!

              4. James Mitchell, consultant

              Even while Addington, Gonzales and the lawyers were beginning to build the legal
              framework for torture, a couple of military psychologists were laying out the techniques the
              military would use. James Mitchell, a retired military psychologist, had been a leading
              expert in the military's SERE program. In December 2001, with his partner, Bruce Jessen,
              Mitchell reverse-engineered SERE techniques to be used to interrogate detainees. Then, in
              the spring of 2002, before OLC gave official legal approval to torture, Mitchell oversaw
              Abu Zubaydah's interrogation. An FBI agent on the scene describes Mitchell overseeing
              the use of "borderline torture." And after OLC approved waterboarding, Mitchell oversaw
              its use in ways that exceeded the guidelines in the OLC memo. Under Mitchell's guidance,
              interrogators used the waterboard with "far greater frequency than initially indicated" -- a
              total of 183 times in a month for Khalid Sheikh Mohammed and 83 times in a month for
              Abu Zubaydah.

             5. George Tenet, director of Central Intelligence (1997-2004)

              As director of the CIA during the early years of the war against al-Qaida, Tenet had
              ultimate management responsibility for the CIA's program of capturing, detaining and
              interrogating suspected al-Qaida members and briefed top Cabinet members on those
              techniques. Published reports say Tenet approved every detail of the interrogation plans:
              "Any change in the plan -- even if an extra day of a certain treatment was added -- was
              signed off on by the Director." It was under Tenet's leadership that Mitchell and Jessen's
              SERE techniques were applied to the administration's first allegedly high-value al-Qaida
              prisoner, Abu Zubaydah. After approval of the harsh techniques, CIA headquarters
              ordered Abu Zubaydah to be waterboarded even though onsite interrogators believed
              Zubaydah was "compliant." Since the Bybee Two memo authorizing torture required that
              interrogators believe the detainee had further information that could only be gained by
              using torture, this additional use of the waterboard was clearly illegal according to the

              6. Condoleezza Rice, national security advisor (2001-2005), secretary of state
              As national security advisor to President Bush, Rice coordinated much of the
              administration's internal debate over interrogation policies. She approved (she now says
              she "conveyed the authorization") for the first known officially sanctioned use of torture --
              the CIA's interrogation of Abu Zubaydah -- on July 17, 2002. This approval was given
              after the torture of Zubaydah had begun, and before receiving a legal OK from the OLC.
              The approval from the OLC was given orally in late July and in written form on Aug. 1,
              2002. Rice's approval or "convey[ance] of authorization" led directly to the intensified
              torture of Zubaydah.

              7. John Yoo, deputy assistant attorney general, Office of Legal Counsel (2001-2003)

              As deputy assistant attorney general of OLC focusing on national security for the first year
              and a half after 9/11, Yoo drafted many of the memos that would establish the torture
              regime, starting with the opinion claiming virtually unlimited power for the president in times
              of war. In the early months of 2002, he started working with Addington and others to draft
              two key memos authorizing torture: Bybee One (providing legal cover for torture) and
              Bybee Two (describing the techniques that could be used), both dated Aug. 1, 2002. He
              also helped draft a similar memo approving harsh techniques for the military completed on
              March 14, 2003, and even a memo eviscerating Fourth Amendment protections in the
              United States. The Bybee One and DOD memos argue that "necessity" or "self-defense"
              might be used as defenses against prosecution, even though the United Nations
              Convention Against Torture explicitly states that "no exceptional circumstances
              whatsoever, whether a state of war or a threat or war … may be invoked as a
              justification of torture." Bybee Two, listing the techniques the CIA could use in
              interrogation, was premised on hotly debated assumptions. For example, the memo
              presumed that Abu Zubaydah was uncooperative, and had actionable intelligence that
              could only be gotten through harsh techniques. Yet Zubaydah had already cooperated with
              the FBI. The memo claimed Zubaydah was mentally and physically fit to be waterboarded,
              even though Zubaydah had had head and recent gunshot injuries. As Jack Goldsmith
              described Yoo's opinions, they "could be interpreted as if they were designed to confer
              immunity for bad acts." In all of his torture memos, Yoo ignored key precedents relating
              both specifically to waterboarding and to separation of powers.

              8. Jay Bybee, assistant attorney general, Office of Legal Counsel (2001-2003)

              As head of the OLC when the first torture memos were approved, Bybee signed the
              memos named after him that John Yoo drafted. At the time, the White House knew that
              Bybee wanted an appointment as a Circuit Court judge; after signing his name to memos
              supporting torture, he received such an appointment. Of particular concern is the timing of
              Bybee's approval of the torture techniques. He first approved some techniques on July 24,
              2002. The next day, Jim Haynes, the Defense Department's general counsel, ordered the
              SERE unit of DOD to collect information including details on waterboarding. While the
              record is contradictory on whether Haynes or CIA General Counsel John Rizzo gave that
              information to OLC, on the day they did so, OLC approved waterboarding. One of the
              documents in that packet identified these actions as torture, and stated that torture often
              produced unreliable results.

              9. William "Jim" Haynes, Defense Department general counsel (2001-2008)

              As general counsel of the Defense Department, Jim Haynes oversaw the legal analysis of
              interrogation techniques to be used with military detainees. Very early on, he worked as a
              broker between SERE professionals and the CIA. His office first asked for information on
              "exploiting" detainees in December 2001, which is when James Mitchell is first known to
              have worked on interrogation plans. And later, in July 2002, when CIA was already using
              torture with Abu Zubaydah but needed scientific cover before OLC would approve
              waterboarding, Haynes ordered the SERE team to produce such information immediately.

               Later Haynes played a key role in making sure some of the techniques were adopted, with
              little review, by the military. He was thus crucial to the migration of torture to Guantánamo
              and then Iraq. In September 2002, Haynes participated in a key visit to Guantánamo
              (along with Addington and other lawyers) that coincided with requests from DOD
              interrogators there for some of the same techniques used by the CIA.

              Haynes ignored repeated warnings from within the armed services about the techniques,
              including statements that the techniques "may violate torture statute" and "cross the line of
              'humane' treatment." In October 2002, when the legal counsel for the military's Joint Chiefs
              of Staff attempted to conduct a thorough legal review of the techniques, Haynes ordered
              her to stop, because "people were going to see" the objections that some in the military
              had raised. On Nov. 27, 2002, Haynes recommended that Secretary of Defense Donald
              Rumsfeld authorize many of the requested techniques, including stress positions, hooding,
              the removal of clothing, and the use of dogs -- the same techniques that showed up later in
              the abuse at Abu Ghraib.

              10. Donald Rumsfeld, secretary of defense (2001-2006)

              As secretary of defense, Rumsfeld signed off on interrogation methods used in the military,
              notably for Abu Ghraib, Bagram Air Force Base and Guantánamo Bay. With this
              approval, the use of torture would move from the CIA to the military. A recent bipartisan
              Senate report concluded that "Secretary of Defense Donald Rumsfeld's authorization of
              interrogation techniques at Guantánamo Bay was a direct cause of detainee abuse there."
              Rumsfeld personally approved techniques including the use of phobias (dogs), forced
              nudity and stress positions on Dec. 2, 2002, signing a one-page memo prepared for him
              by Haynes. These techniques were among those deemed torture in the Charles Graner
              case and the case of "20th hijacker" Mohammed al-Qahtani. Rumsfeld also personally
              authorized an interrogation plan for Moahmedou Ould Slahi on Aug. 13, 2003; the plan
              used many of the same techniques as had been used with al-Qahtani, including sensory
              deprivation and "sleep adjustment." And through it all, Rumsfeld maintained a disdainful
              view on these techniques, at one point quipping on a memo approving harsh techniques, "I
              stand for eight to 10 hours a day. Why is standing limited to four hours?"

              11. John Rizzo, CIA deputy general counsel (2002-2004), acting general counsel of the
              Central Intelligence Agency (2001-2002, 2004-present)
              As deputy general counsel and then acting general counsel for the CIA, John Rizzo's name
              appears on all of the known OLC opinions on torture for the CIA. For the Bybee Two
              memo, Rizzo provided a number of factually contested pieces of information to OLC --
              notably, that Abu Zubaydah was uncooperative and physically and mentally fit enough to
              withstand waterboarding and other enhanced techniques. In addition, Rizzo provided a
              description of waterboarding using one standard, while the OLC opinion described a more
              moderate standard. Significantly, the description of waterboarding submitted to OLC
              came from the Defense Department, even though NSC had excluded DOD from
              discussions on the memo. Along with the description of waterboarding and other
              techniques, Rizzo also provided a document that called enhanced methods "torture" and
              deemed them unreliable -- yet even with this warning, Rizzo still advocated for the CIA to
              get permission to use those techniques.

              12. Steven Bradbury, principal deputy assistant attorney general, OLC (2004), acting
              assistant attorney general, OLC (2005-2009)

              In 2004, the CIA's inspector general wrote a report concluding that the CIA's
              interrogation program might violate the Convention Against Torture. It fell to Acting
              Assistant Attorney General Steven Bradbury to write three memos in May 2005 that
              would dismiss the concerns the IG Report raised -- in effect, to affirm the OLC's 2002
              memos legitimizing torture. Bradbury's memos noted the ways in which prior torture had
              exceeded the Bybee Two memo: the 183 uses of the waterboard for Khalid Sheikh
              Mohammed in one month, the gallon and a half used in waterboarding, the 20 to 30 times
              a detainee is thrown agains the wall, the 11 days a detainee had been made to stay awake,
              the extra sessions of waterboarding ordered from CIA headquarters even after local
              interrogators deemed Abu Zubaydah to be fully compliant. Yet Bradbury does not
              consider it torture. He notes the CIA's doctors' cautions about the combination of using
              the waterboard with a physically fatigued detainee, yet in a separate memo approves the
              use of sleep deprivation and waterboading in tandem. He repeatedly concedes that the
              CIA's interrogation techniques as actually implemented exceeded the SERE techniques,
              yet repeatedly points to the connection to SERE to argue the methods must be legal. And
              as with the Bybee One memo, Bradbury resorts to precisely the kind of appeal to
              exceptional circumstances -- "used only as necessary to protect against grave threats" -- to
              distinguish U.S. interrogation techniques from the torture it so closely resembles around the
              13. George W. Bush, president (2001-2009)

              While President Bush maintained some distance from the torture for years -- Cheney
              describes him "basically" authorizing it -- he served as the chief propagandist about its
              efficacy and necessity. Most notably, on Sept. 6, 2006, when Bush first confessed to the
              program, Bush repeated the claims made to support the Bybee Two memo: that Abu
              Zubaydah wouldn't talk except by using torture. And in 2006, after the CIA's own
              inspector general had raised problems with the program, after Steven Bradbury had
              admitted all the ways that the torture program exceeded guidelines, Bush still claimed it
              was legal.

                              "[They] were designed to be safe, to comply with our laws, our Constitution and our
              treaty obligations. The Department of Justice reviewed the authorized methods extensively,
              and determined them to be lawful."

              With this statement, the deceptions and bureaucratic games all came full circle. After all, it
              was Bush who, on Feb. 7, 2002, had declared the Geneva Conventions wouldn't apply (a
              view the Supreme Court ultimately rejected).
              Bush's inaction in torture is as important as his actions. Bush failed to fulfill legal obligations
              to notify Congress of the torture program. A Senate Intelligence timeline on the torture
              program makes clear that Congress was not briefed on the techniques used in the torture
              program until after Abu Zubaydah had already been waterboarded. And in a 2003 letter,
              then House Intelligence ranking member Jane Harman shows that she had not yet seen
              evidence that Bush had signed off on this policy. This suggests President Bush did not
              provide the legally required notice to Congress, violating National Security Decisions
              Directive-286. What Bush did not say is as legally important as what he did say.

              Yet, ultimately, Bush and whatever approval he gave the program is at the center of the
              administration's embrace of torture. Condoleezza Rice recently said, "By definition, if it
              was authorized by the president, it did not violate our obligations in the Convention Against
              Torture." While Rice has tried to reframe her statement, it uses the same logic used by
              John Yoo and David Addington to justify the program, the shocking claim that international
              and domestic laws cannot bind the president in times of war. Bush's close allies still insist if
              he authorized it, it couldn't be torture.