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Prisoners in Afghanistan, Guantánamo Bay, and Iraq have been hooded, isolated, humiliated, injured, made to feel hopeless and close to death. Mark Danner, UC Berkeley journalism professor, says such treatment is systemic, a flagrant violation of rules of war and morality and the fault of “policy makers in the department of justice, policy makers including Professor (John) Yoo, policy makers in the Department of Defense (and) policy makers in the White House.”  

On the other hand, John Yoo, Boalt Law School professor and former deputy assistant attorney general, argues that in today’s extraordinary war on terror, new rules of combat must apply.  

Yoo, Danner and Tom Farer, dean of the Graduate School of International Studies, University of Denver, spoke on a panel Monday evening at the law school, moderated by Harry Kreisler, executive director of the Institute of International Studies.  

Yoo dismissed the well-publicized abuse in Iraq as isolated incidents, the work of rogue soldiers. “I think the real problem in Abu Ghraib is that we had sent in insufficient resources and we did not train people sufficiently,” he said. “It’s unfortunate, but when there are large institutions, there are going to be people who violate the rules.”  

Yoo further argued that even in the U.S., there are police officers who don’t do their jobs properly. “That doesn’t mean there’s a conspiracy.”  

In his presentation, Yoo didn’t dwell on Iraq, but laid out a carefully crafted theory from which emerges the permission for U.S. interrogators to go beyond normal restrictions of international rules of war to interrogate certain prisoners.  

Yoo’s theory is based on the idea that Sept. 11, 2001 prompted a “war” on terror. One doesn’t react to war as one does to a criminal act, he said. “If a nation-state, say the Soviet Union during the cold war, had carried out the Sept. 11 attacks in the exact same way, for the exact same purpose, would we have not considered that an act of war and considered ourselves in a state of war with the Soviet Union?” Yoo asked.  

And so, based on the assumption that the U.S. is at war with al Qaeda—a thesis with which Farer and Danner disagreed—various tactics must be employed. But they cannot be the same tactics as fighting a nation-state. The United States is battling an organization that has no territory, no defined population, one whose adherents wear no uniforms and have not signed the Geneva Conventions which dictate rules of war.  

“Does that not mean the War on Terror is unique?” Yoo asked the audience, as he would a jury. “Does that not require us to think about how we apply the laws of war?”  

By “laws of war,” Yoo meant the 1949 Geneva Conventions, written “to govern nation-state to nation-state conflict.” He argued that those laws cannot be applied strictly to terrorists, “the kind of enemy that was not anticipated by the people who drafted those rules.”  

Moreover, al Qaeda has violated two core principles of the Geneva Convention: one is that civilians should not be targeted and the second is that the members of the fighting force must distinguish themselves from civilians, generally by wearing uniforms.  

Therefore, because of the unique nature of al Qaeda, protections of the Geneva Conventions should not be applied to terrorist suspects, he argued. That means that unlike POWs, who are generally housed in barracks, terrorist suspects can be detained in individual cells. And while the Geneva Conventions say that there can be no consequence other than yelling—no reward or punishment—when a POW doesn’t answer an interrogator’s question, other rules apply to suspected terrorists.  

Prisoners cannot be tortured, however. The United States is still subject to the Convention against Torture, which prohibits torture under any circumstances.  

Yoo argued then that the situation calls for extraordinary tactics. “Can we use methods that do not rise to torture?” he asked. “Under the Geneva Convention system, as I understand it, all we can do is yell at people. So the question is, can the United States do anything that is more than yelling at people but falls short of torture?”  

The best way to stop future attacks on the United States is to get the terrorists’ plans by questioning al Qaeda members who have information, he said. New methods of questioning may need to be employed, ones which give more discretion to interrogators.  

In traditional warfare, Yoo argued, there is a body of knowledge of what works and what doesn’t. There is therefore no need to give discretion to decision-makers. But those who carry out the war against al-Qaeda have no established methods of war. Before Sept. 11, 2001 only a national state could have inflicted the kind of damage on the United States that al Qaeda did. 

“That new situation demands … that we give more discretion to decision-makers,” Yoo said, arguing that the U.S. is still learning to fight the War on Terror. “We’re still trying to figure that out.”  

Co-panelists disagreed with the premise on which Yoo built his argument—Tom Farer argued that the battle against terrorism is not a war and that it is not unique. A war on al-Qaeda is fighting a battle “that has no likely end,” he said. Historically there have been terrorists not unlike al Qaeda, such as the Basques in Spain and neo-fascists in Italy. Others countries have faced terrorists, but not as a war, he said. “We’re going to have to live with this.”  

Danner challenged Yoo’s contention that prisoner abuse in Iraq is an anomaly, an “animal house on the night shift.” Further, he excoriated Yoo and others for making policy that condones abuse in Guantánamo, then allowing those techniques, backed up by policy, to “migrate” to Iraq where prisoner abuse occurs regularly.  

“Torture, coercive methods of interrogation, cruel and inhuman treatment have become systematic in the war on terror and in particular in Iraq,” Danner said, adding, “I would remind you that Iraq is a nation-state. The Geneva Conventions supposedly do apply in Iraq.”  

To prove his point, Danner read from two reports in which, he said, “The word ‘systemic’ leaps out at you.”  

From the Taguba Report, Investigation of the 800th Military Police Brigade Danner read: “…between October and December 2003, at the Abu Ghraib Confinement Facility, numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees. This systemic and illegal abuse of detainees was intentionally perpetrated by several members of the military police.” 

The report he read from the International Red Cross similarly exposes systemic abuse: “The ill-treatment … during interrogation was not systematic, except with regard to persons arrested in connection with suspected security offenses or deemed to have an ‘intelligence’ value. In these cases, persons deprived of their liberty supervised by the military intelligence were subjected to a variety of ill-treatment, ranging from insults and humiliation to both physical and psychological coercion that in some cases might amount to torture, in order to force them to cooperate with their interrogators. In certain cases, such as in Abu Ghraib military intelligence section, methods of physical and psychological coercion used by the interrogators appeared to be part of the standard operating procedures by military intelligence personnel to obtain confessions and extract information.”  

Danner has included these and other reports of abuse as well as detainee depositions and policy papers and memos in his book, Torture and Truth: America, Abu Ghraib and the War on Terror, (New York Review of Books).  

Danner follows what he calls a “chain of evidence” linking policy documents to abuse on the ground in Iraq.  

What he found there, according to one detainee’s deposition, was hooding for 72 hours—permitted sensory deprivation, Danner says—handcuffing a prisoner so that his hand was high above his head for seven or eight hours, a stress position, also permitted. The same prisoner was kept naked for days, beaten, jumped on, humiliated, sodomized, otherwise sexually abused and more. At one point, an interrogator came into the room and was watching.  

Investigative reports confirmed the detainee’s statement and also confirmed the presence of interrogators (military intelligence officers). “Once you get to military intelligence, you get to policy; once you get to policy, you get to policy makers. Once you get to policy makers, you are dealing with the power of people sitting in their offices,” Danner said.  

On Feb. 7, 2002, there is a memo to the White House, concluding that prisoners in Afghanistan are not subject to the Geneva conventions. Then there is the Bybee memo, also called the “torture memo,” of Aug. 1, 2002, which Danner said redefines torture to “something that causes pain equivalent of major organ failure or death.” Danner argues that one could probably do everything that was done to the detainee described above, without calling it torture. “Along with that document is a letter by Professor Yoo stating that torture of the al-Qaeda or the Taliban cannot be a war crime, because they are illegal combatants,” he added.  

From there Danner cited an April 4, 2003 report wherein the Department of Defense approved 35 interrogation methods to be used on detainees of the War on Terror including use of dogs to induce stress, forced shaving of beards, sleep deprivation, dietary manipulation and more. This document from the DOD “excerpts in very large part the so-called torture memo that Professor Yoo worked on.”  

Finally, as Danner explains in his book, Major General Geoffrey D. Miller, then commander of Guantánamo, visited Abu Ghraib in August 2003. “In General Miller’s visit, two paths meant to be kept separate in effect converge, and interrogation methods officially intended for use only on prisoners not protected by the Geneva Convention, like those in Guantánamo, ‘migrate’ to Iraq… and are employed on prisoners there who are entitled to such protection. At this writing, Major General Miller is commander of Abu Ghraib prison.”  

What, then, is the solution? Danner said he does not accept Yoo’s argument that more forceful interrogation of terror suspects is the answer.  

He argued instead that the best way to gather information is to build trust with Iraqis. Ultimately, “the answer to this war must be a political one,” Danner said. “In the words of Condoleezza Rice you have to convince young Muslims that they no longer have to drive airplanes into buildings in Manhattan and Washington.”  

A video of the panel is available at:  

http://webcast.berkeley.edu/courses/archive.html?prog=115&group=59