By Peter Jan Honigsberg, Professor of Law, University of San Francisco School of Law, and Founder and Director of the Witness to Guantanamo project. He is also the author of Our Nation Unhinged: The Human Consequences of the War on Terror (University of California Press).
People who have been following the cycle of violence after 9/11 -- in particular the human rights and rule of law violations that occurred in the detention center in Guantanamo Bay, Cuba -- are aware of the solitary confinement and isolation abuses that were endemic to Guantanamo. Isolation and its pernicious effects, however, did not only exist in Guantanamo. In the system of injustice that speaks to the decade following 9/11, high-ranking officials in the Bush administration who did not step firmly in line with the Bush/Cheney policy of torture and disregard of the rule of law were also isolated.
Certainly the isolation endured by the high-ranking government and military officials was not of the mental ruination, mind-numbing and sensory deprivation kind that the detainees suffered at the naval base detention center. Nevertheless, high-ranking officials in the Bush administration who preserved their integrity and adherence to the rule of law – and thereby stood in conflict with Bush administration policy – were isolated and marginalized from policy-making decisions.
For example, William Howard Taft IV, who was chief legal advisor to Secretary of State Colin Powell, had written in early 2002 the definitive administration memo in support of applying the Geneva Conventions’ (GC) to the detainees transported to Guantanamo. He considered the detainees prisoners of war (POWs) entitled to the full protections provided by the GC. There was some disagreement among members of the State Department as to whether al Qaeda captives were covered by the conventions, or whether only the Taliban armed forces were covered. However, Taft believed that Al Qaeda members should also be included in order to assure that all captives be treated humanely. Taft did not want the U.S. to be accused of breaching its adherence to human rights.
This past month, Taft explained to the Witness to Guantanamo project that his memo was dismissed by the Bush administration. Instead, President Bush adopted the policy that the GC did not apply to the detainees, whether al Qaeda or Taliban. President Bush and his team, however, did not merely disregard Taft’s memo. From then on, the administration no longer sought Taft’s advice on certain international law issues that would, customarily, have been requested from the State Department.
According to Taft, top government officials did not request input from, or even inform, Taft on policy-making decisions regarding international law matters that they knew he would oppose. He was never provided with drafts of the Torture Memos written by John Yoo and others in the Justice Department’s Office of Legal Counsel before the memos went public. Nor was Taft advised of Abu Ghraib issues until those matters went public. Of course, both the Torture Memos and Abu Ghraib concerned matters of international law, clearly within Taft’s State Department expertise.
The Witness to Guantanamo project films interviews with former detainees and other people who have lived or worked at the Guantanamo detention center, or were involved on Guantanamo issues. We have completed 101 interviews, and Mr. Taft was number 101. The project has interviewed 45 former detainees and 56 other people including prison guards, chaplains, interpreters, interrogators, medical personnel, psychologists, NCIS officials, FBI officials, habeas attorneys, JAG attorneys, prosecutors, high-ranking government and military officials and the parents and wives of detainees.
In December 2010, the project interviewed Alberto Mora, General Counsel of the Navy. Mr. Mora was another high-ranking official who had been marginalized after speaking out against the Bush administration policies. He told the project that he had been informed by the director of the Naval Criminal Investigative Service (NCIS) that there were cases of torture and abuse at the detention center in Guantanamo. He was disturbed by this news and went directly to inform his superior, chief Pentagon attorney William Haynes.
Haynes expressed shock on hearing this from Mora, and gratefully thanked Mora for the information. Haynes also assured Mora that the abuse would be dealt with immediately. Mora went home that evening feeling relieved. He believed that he had saved our nation from a potential disastrous situation. Haynes’ assurances meant a lot to him.
Several weeks later, the director of the NCIS reported to Mora that the torture and harsh treatment of the detainees was continuing in Guantanamo. Mora then understood that he had been misled and that the administration had no intention of reversing its policy and containing the torture and coercive interrogations of the detainees.
From then on, Mora’s career as general counsel for the Navy was effectively over. For the remainder of his tenure, Mora was excluded from meetings of high-level personnel concerning Guantanamo issues. When memoranda were written regarding Guantanamo, Mora was left off the chain of officials who reviewed the memos.
During their interviews, both Taft and Mora expressed disillusionment and even bitterness at the way that they had been treated by the Bush administration. Although (or perhaps because) they were fiercely loyal to their nation and believed in the rule of law, they both had become marginalized and isolated from the seats of power. These two courageous high-ranking officials who opposed a system of injustice were silenced.