President Bush's Decision Points:
Torture & the rule of law

By Alan Shapiro

To the Teacher

During interviews discussing his memoir, Decision Points, President Bush has repeatedly defended his decisions about interrogation techniques used with terrorist suspects during his administration. Meanwhile, the American Civil Liberties Union has sent a letter to Attorney General Eric Holder calling for a federal investigation, because "the former President's acknowledgement that he authorized torture is absolutely without parallel in American history."

The three student readings below examine the president's decisions after 9/11 and whether those decisions complied with the rule of law. The first reading quotes from Bush's recent interviews. The second focuses on the legal advice he received from the Justice Department. The third provides excerpts from the ACLU letter and U.S. anti-torture laws. Discussion questions and a writing and citizenship activity follow.

See also "Torture Memos & the Rule of Law" on interrogation technique memos released early in the Obama administration and "'Fighting Terrorism' vs. the Rule of Law" on the investigation of John Yoo and Jay Bybee, in the high school section of www.teachablemoment.org.

Student Reading 1:
President Bush's comments about interrogation techniques

In a November interview with Matt Lauer on NBC to promote his new memoir, Decision Points, President George W. Bush discussed what he thought and how and why he acted as he did after 9/11:

"We believe America's going to be attacked again. There's all kinds of intelligence comin' in. And-- and-- one of the high value al Qaeda operatives was Khalid Sheikh Mohammed, the chief operating officer of al Qaeda... ordered the attack on 9/11. And they say, 'He's got information.' I said, 'Find out what he knows.' And so I said to our team, 'Are the techniques legal?' He says, 'Yes, they are.' And I said, 'Use 'em.'"

Lauer asked about one of the techniques: "Why is waterboarding legal, in your opinion?"

The ex-president's response: "Because the lawyer said it was legal. He said it did not fall within the Anti-Torture Act. I'm not a lawyer, but you gotta trust the judgment of people around you and I do."

In an interview with the Times of London, Bush was asked if he authorized the waterboarding of Khalid Sheikh Mohammed. He responded, "Damn right! We capture the guy, the chief operating officer of al-Qaeda, who kills 3,000 people. We felt he had the information about another attack. He says: 'I'll talk to you when I get my lawyer.' I say: 'What options are available and legal?'"

"Yeah, we waterboarded Khalid Sheikh Mohammed," Bush told the Economic Club of Grand Rapids, Mich., in a paid appearance. "I'd do it again to save lives." (June, 2010)

"[T]he United States has always considered waterboarding torture except during the Bush administration," writes Dan Froomkin. "We prosecuted Japanese generals for waterboarding people. We prosecuted American soldiers for waterboarding people….The current attorney general Mr. Holder has said that waterboarding is torture." (Dan Froomkin, "Bush Waterboarding Admission Prompts Calls for Criminal Probe," www.huffingtonpost.com, 11/11/10)

In the Lauer interview, Bush recalled his immediate reaction to seeing photos in 2004 that showed American soldiers at the Abu Ghraib prison mistreating and humiliating inmates.

"[I was] sick to my stomach," Bush said. "Not only have they mistreated prisoners, they had disgraced the U.S. military and stained our good name." Bush explained that he felt "blindsided" because he "wasn't aware of the graphic nature of the pictures until later on."

As president, Bush frequently condemned torture:

"The United States is committed to the worldwide elimination of torture and we are leading this fight by example." http://en.wikiquote.org/wiki/George_W._Bush (8/4/02)

"This government does not torture people." (www.npr.org, 10/5/07)

For discussion

1. What questions do students have about this reading? How might they be answered?

2. Who is Khalid Sheikh Mohammed? What information did he have about another attack? How do you know?

3. What is waterboarding? Why do you think Lauer asked about its legality? If you don't know, how might you find out?

4. Bush says that he learned from an unnamed lawyer that waterboarding is a legal technique because "it did not fall within the Anti-Torture Act." Is the lawyer's statement accurate? If you don't know, how might you find out?

5. Why do you think Bush repeats in these interviews that the techniques used on Khalid Sheikh Mohammed were legal? Were they? Who told him they were? Why? How do you know?

6. Do you think Bush was justified under the circumstances of the time in making the decision he did about waterboarding and other such techniques? Why or why not?

7. How has the U.S. responded to waterboarding in the past?

8. How would you explain Bush's frequent statements that the U.S. did not torture?

9. Have you seen photos from Abu Ghraib? If so, was your reaction the same as Bush's? Why or why not? What do you think he meant when he said he felt "blindsided" by the photos?

Student Reading 2:
Legal advice to President Bush

The official legal advice on prisoner treatment that President Bush received after 9/11 came primarily from officials in the Justice Department. Many of the relevant memos and other documents have become public.

President Bush was aware that he might be violating the War Crimes Act. In a memo to Bush dated January 25, 2002, White House counsel Alberto Gonzales suggested that Bush find a way to avoid the rules of the Geneva Conventions as they relate to prisoners of war because that "substantially reduces the likelihood of prosecution under the War Crimes Act."

John Yoo, a lawyer in the Office of Legal Counsel (OLC) in the Justice Department, wrote memos in 2002 stating that the Geneva Conventions did not cover non-state organizations like Al Qaeda and did not apply to Afghanistan because it was a "failed state" whose territory "had been largely overrun and held by violence by a militia or faction rather than a government."

The Bush administration decided to substitute for the traditional "prisoners of war" the words "enemy combatants," a term not used in such international treaties as the Geneva Conventions that include regulations for prisoner treatment.

The U.S. and other nations created the Geneva Conventions in 1949. They state: "Prisoners of war must at all times be humanely treated." (Article 13) "No physical or mental torture, nor any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever." (Article 17) The U.S. War Crimes Act of 1996 defines a "war crime" as "a grave breach" of the Geneva Conventions.

Defining torture

On August 1, 2002, Jay Bybee, another OLC official in the Justice Department, was asked by Gonzales for a memo defining torture. Bybee's response:

"Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Yoo added: "As Commander-in-Chief, the president has the constitutional authority to order interrogations of enemy combatants." Anything interfering with that authority would be unconstitutional, Yoo wrote, including laws passed by Congress. Further, CIA officers who might later be accused of torturing prisoners could claim they were following presidential orders.

Gonzales then wrote to President Bush that the ban on torture "does not apply to the President's detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority." Officials could not be prosecuted for torture "if they were carrying out the president's Commander-in Chief powers."

Determining acceptable interrogation techniques

Bybee also described various acceptable interrogation techniques, including waterboarding: The individual is tied to an inclined bench, a cloth place over forehead and eyes, and water is then applied to the cloth. "Air flow is slightly restricted for 20 to 40 seconds….This causes an increase in carbon dioxide level in the individual's blood [and]…stimulates increased effort to breathe. This effort…produces…the perception of drowning….In the absence of prolonged mental harm, no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture."

During 2002-2003, National Security Advisor Condoleezza Rice led meetings on interrogation techniques that included Vice President Dick Cheney, Secretary of State Colin Powell, Secretary of Defense Donald Rumsfeld, Attorney General John Ashcroft, and CIA Director George Tenet. Waterboarding was among the techniques described in detail and demonstrated. President Bush later said, "I'm aware our national security team met on this issue and I approved."

Khalid Sheikh Mohammed's interrogations

Khalid Sheikh Mohammed was captured about 18 months after 9/11, on March 1, 2003, in Pakistan. During interrogations he declared, "I was responsible for the 9/11 operation from A to Z." He also confessed to being a leading figure in planning the 1993 attack on the World Trade Center and other terrorist attacks within and outside the U.S.

The Justice Department has not explained publicly which or how many of these confessions it concludes are accurate or what other information it received that prevented another attack. But it did reveal publicly in one memo that Khalid Sheikh Mohammed was waterboarded 183 times.

Bybee left the OLC soon afterward and was appointed by Bush to a federal judgeship. Yoo became a law professor at the University of California, Berkeley.

In a December 2004 the Bush Justice Department abandoned the legal advice of Bybee and Yoo regarding interrogations and publicly declared torture "abhorrent." But just months later, in February 2005, Gonzales' Justice Department released another opinion, this one secret, that officials briefed on it described (in the New York Times' words) as "an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency." The officials said this new opinion for the first time explicitly authorized the use of "painful physical and psychological tactics." They included, in addition to waterboarding, exposure to extremes of heat or cold for hours, forced nudity, stress positions, sleep deprivation, electric shocks, sexual humiliation and abuse, stomach beatings with the head under water, and suspension and chaining by arms from a ceiling. (New York Times, 10/4/07)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. After 9/11 Bush received legal advice from the Justice Department on a number of issues: the Geneva Conventions; an appropriate term to describe individuals who were captured; definitions of torture; legal interrogation techniques; and the president's constitutional authority. In each case, what was that advice? What is your assessment of it? If you agree with the advice, why? If you do not, why not?

3. What is your assessment of Khalid Sheikh Mohammed's treatment?

Student Reading 3:
ACLU requests an investigation of Bush's conduct

Responding to President Bush's remarks about waterboarding in his new book, Anthony Romero, executive director of the American Civil Liberties Union, wrote to Attorney General Eric Holder a letter dated November 11, 2010. An excerpt:

Dear Attorney General Holder:

The American Civil Liberties Union respectfully urges you to refer to Assistant U.S. Attorney John Durham the question of whether former president George W. Bush's conduct related to the interrogation of detainees by the United States violated the anti-torture statute. See 18 U.S.C. § 2340A….

In his recently published memoirs, President Bush discusses his authorization of the waterboarding of Khalid Sheik Mohammed….

The Department of Justice has made clear that waterboarding is torture and, as such, a crime under the federal anti-torture statute, 18 U.S.C. § 2340A(c). The United States has historically prosecuted waterboarding as a crime. In light of the admission by the former President, and the legally correct determination by the Department of Justice that waterboarding is a crime, you should ensure that Mr. Durham's current investigation into detainee interrogations encompasses the conduct and decisions of former President Bush.

The ACLU acknowledges the significance of this request, but it bears emphasis that the former President's acknowledgement that he authorized torture is absolutely without parallel in American history. The admission cannot be ignored. In our system, no one is above the law or beyond its reach, not even a former president. That founding principle of our democracy would mean little if it were ignored with respect to those in whom the public most invests its trust. It would also be profoundly unfair for Mr. Durham to focus his inquiry on low-level officials charged with implementing official policy but to ignore the role of those who authorized or ordered the use of torture.

Such other organizations as Amnesty International and the Center for Constitutional Rights have also called for President Bush to be held accountable for his authorization of the use of torture.

Excerpt from the U.S. Anti-Torture Law referred to in the ACLU letter

(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from-
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

Other Anti-Torture Laws

The U.S. War Crimes Act prohibits torture. So do such international treaties as the UN Convention Against Torture, which says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture."

Article VI of the United States Constitution (the Supremacy Clause) says:

"The constitution, and the laws of the United State which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."

To date, neither Attorney General Holder nor President Obama has made any public comments about President Bush's remarks or the ACLU letter.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What does the ACLU letter ask Attorney General Holder to do? Why? What do you think should be his response? Why?

3. Is the ACLU executive director accurate when he writes that "the former President's acknowledgement that he authorized torture is absolutely without parallel in American history"? Why or why not?

4. How do U.S. laws and international treaties define torture? Why do such laws and treaties regard torture as absolutely unacceptable under any circumstances? Why are treaties like the Geneva Conventions and the UN Convention Against Torture part of the U.S. constitution?

For writing, discussion & citizenship

"Did President Bush violate the rule of law in his approval of interrogation techniques for terrorist suspects? If not, why not? If so, why and should he be charged with a crime?

1. Assign this subject for the draft of an essay of 350-500 words.

2. Following completion of the drafts, divide the class into groups of four to six students. Each student is to read a draft to the others, followed by clarifying questions only.

3. The group is then to select what it regards as the best draft for reading to the class. Again, this is followed by clarifying questions, then class discussion.

4. Assign a rewrite of drafts for submission to the teacher for comment.

5. Students who wish to may then prepare a final draft with a cover letter for mailing to Attorney-General Holder, with a copy to President Obama.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org.

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