Cheney's tortured facts
Former Vice President Dick Cheney offered a spirited defense of CIA interrogation tactics used in the wake of the Sept. 11 attacks and denounced a recent Senate report, which criticized those techniques, as a “crock.” But in presenting his case, Cheney often gave a one-sided and misleading account of the facts.
In interviews with Chuck Todd on NBC’s “Meet the Press” on Dec. 14 and Jake Tapper on CNN on Dec. 12, Cheney blasted the Senate report, released in early December, as partisan and “flawed.” He defended the Bush administration’s backing of “enhanced interrogation techniques” and other CIA practices that Senate Intelligence Committee Chair Dianne Feinstein called torture “under any common meaning of the term.”
Violations of the Geneva Conventions?
Cheney relies on since-discredited opinions from the White House’s Department of Justice legal team to contend the “enhanced interrogation techniques” used by the CIA on captured members of al Qaeda and the Taliban did not violate international agreements generally and the Geneva Conventions specifically. The Supreme Court has since ruled that the detainees were entitled to minimum protections provided under the Geneva Conventions, including prohibitions against torture and humiliation.
In recent interviews, Cheney has twice claimed the techniques used by the CIA did not run afoul of international agreements.
On “Meet the Press” on Dec. 14, Cheney denied that the CIA techniques could be defined as “torture” and said the administration “did not want to cross that line into where we were violating some international agreement that we’d signed up to.”
Cheney, Dec. 14: We were very careful to stop short of torture. The Senate has seen fit to label their report torture. But we worked hard to stay short of that definition.
Chuck Todd: Well, what is that definition?
Cheney: Definitions, and one that was provided by the Office of Legal Counsel, we went specifically to them because we did not want to cross that line into where we were violating some international agreement that we’d signed up to. They specifically authorized and okayed, for example, exactly what we did. All of the techniques that were authorized by the president were, in effect, blessed by the Justice Department opinion that we could go forward with those without, in fact, committing torture.
Two days earlier, on Fox News, Cheney made a similar comment in response to a question asked by Chief Political Anchor Bret Baier:
Baier, Dec. 12: Is there anything to the Geneva Convention, to the world rule of law on this?
Cheney: Sure there is. But remember, the terrorists were not covered by the Geneva Convention. They were unlawful combatants. And under those circumstances, they were not entitled to the normal kinds of courtesies and treatment you would accord to those.
Cheney is correct that the Justice Department’s Office of Legal Counsel issued memos in 2002 that provided legal arguments that support Cheney’s position that the Geneva Conventions did not apply to detainees captured in the war in Afghanistan. For example, in a Jan. 9, 2002, memo, John Yoo, deputy assistant attorney general, concluded that international treaties did not protect members of al Qaeda or the Taliban militia. White House Counsel Alberto Gonzales also issued a memo about two weeks later to President George W. Bush backing up the Justice Department’s opinion, and recommending Bush declare captured members of al Qaeda and the Taliban outside Geneva Convention protections.
But those opinions did not go unchallenged, either inside or outside the administration.
Secretary of State Colin Powell, for example, wrote a memo to the White House on Jan. 26, 2002, arguing that such a posture would “reverse over a century of U.S. policy and practice in supporting the Geneva conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.” He also warned it would spark a “negative international reaction” and “undermine public support among critical allies.”
Geoffrey Corn, a professor at South Texas College of Law and an expert in military law, told us via email that Cheney’s comments “oversimplified one of the most complex legal issues that arose out of our military response to 9/11.”
Corn says Cheney’s argument that detainees were not entitled to protections under the Geneva Conventions rests on a Department of Justice interpretation that was “considered highly dubious by many government experts, including military legal experts who had devoted years to the study of this law,” and “opened up abusive treatment options that were fundamentally inconsistent with longstanding Department of Defense and national policy.” And ultimately, he said, it is an interpretation that was “repudiated by the Supreme Court in the 2006 decision in Hamdan v. Rumsfeld.”
In Hamdan v. Rumsfeld, the Supreme Court concluded that the Geneva Conventions’ Common Article 3 — which requires humane treatment of all captive combatants — applied to the detainees at Guantanamo.
As our fact-checking colleagues at PolitiFact noted, while it is accurate that the detainees may not have been entitled to the full measure of protection afforded under the Geneva Conventions to combatants in traditional international conflicts, that doesn’t mean they weren’t protected by minimal levels of protections afforded to everyone.
As the International Committee of the Red Cross puts it, Common Article 3 “requires humane treatment for all persons in enemy hands, without any adverse distinction.” Among those minimal protections are prohibitions against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”
Mary Ellen O’Connell, a professor at Notre Dame Law School who has written extensively on international law and the use of force, told us in an email that Cheney is “quite wrong in saying the U.S. violated no law in employing coercive measures of interrogation.”
“The Geneva Conventions absolutely forbids coercive measures in interrogation,” said O’Connell. “A number of human rights treaties forbid torture and cruel, inhumane and degrading treatment. The self-serving memos produced by the Justice Department’s Office of Legal Counsel were simply wrong — which had to be obvious to anyone reading them.”
In an opinion piece she wrote for the American Society of International Law, of which she is a member, O’Connell listed the various international treaties that forbid torture and humiliation of prisoners or detainees (see point 3).
“In non-international armed conflict, common Article 3 to the four Geneva Conventions also prohibits torture as well as other violence to life and person, including cruel treatment and outrages upon personal dignity,” O’Connell wrote. “These are absolute prohibitions; there are no exceptions.”
Cheney accurately describes a position that was based on legal opinions provided by Justice’s Office of Legal Counsel at that time. But legal experts say that opinion was dubious then, and has since been repudiated by the Supreme Court.
Rectal rehydration/Feeding for 'medical reasons'?
One of the most unnerving findings in the Senate report was that “[a]t least five CIA detainees were subjected to ‘rectal rehydration’ or rectal feeding without documented medical necessity” (page 4).
When he was asked about those specific practices on “Meet the Press,” Cheney challenged the findings of the report, stating, “I believe it was for medical reasons.”
Here’s the full exchange with “Meet the Press” host Chuck Todd:
Todd, Dec. 14: Let me go through some of those techniques that were used, Majid Khan, was subjected to involuntary rectal feeding and rectal hydration. It included two bottles of Ensure, later in the same day Majid Khan’s lunch tray consisting of hummus, pasta, sauce, nuts and raisins was pureed and rectally infused. … Does that meet the definition of torture?
Cheney: That does not meet the definition of what was used in the program …
Todd: I understand. But does that meet the definition of torture in your mind?
Cheney: In my mind, I’ve told you what meets the definition of torture. It’s what 19 guys armed with airline tickets and box cutters did to 3,000 Americans on 9/11. What was done here apparently certainly was not one of the techniques that was approved. I believe it was done for medical reasons.
In an interview on CNN on Dec. 11, former CIA Director Michael Hayden was even more explicit in saying the procedures were medically motivated.
“That was a medical procedure,” Hayden said when asked by host Jake Tapper about rectal rehydration/feeding. “That was done because of detainee health — that the people responsible there for the health of these detainees saw that they were becoming dehydrated. They had limited options in which to go do this. It was intravenous with needles, which would be dangerous with a non-cooperative detainee; it was through the nasal passages.”
He went on to say that it was “not part of the interrogation program, not designed to soften him up for any questioning.” Hayden claimed the Senate report’s conclusion was based on “one email with one very bad-taste comment.”
But there’s more. Let’s review the half-dozen references to this activity in the Senate report, outlined for us by Feinstein’s office.
Cheney and Hayden both pointed out that rectal rehydration/feeding was not part of the so-called enhanced interrogation techniques, such as waterboarding, that critics say amounted to torture. In at least three cases, the procedure was initiated in response to a hunger strike. And so the primary goal was not interrogation, but to keep the detainees alive.
However, the comments from CIA medical officers suggest the method used — rectal rehydration or feeding as opposed to intravenous feeding or hydration — was viewed as a way to discourage others from engaging in hunger strikes or dissuading those who were on a hunger strike from continuing it. It may not have been part of the prescribed interrogation program, but the comments highlighted in the report show the CIA’s chief of interrogations at least saw the side benefit of it exhibiting “total control over the detainee,” while a CIA officer from the Office of Medical Services noted that it helped to “clear a person’s head.”
Moreover, the question of whether it amounted to torture or abuse does not depend on it being part of the prescribed interrogation program, or even being used as an interrogation technique at all.
The New York-based Physicians for Human Rights, for example, has condemned the use of rectal rehydration/feeding described in the report as “sexual assault masquerading as medical treatment.”
“Contrary to the CIA’s assertions, there is no clinical indication to use rectal rehydration and feeding over oral or intravenous administration of fluids and nutrients,” Dr. Vincent Iacopino, PHR’s senior medical advisor, stated in a press release. “This is a form of sexual assault masquerading as medical treatment. In the absence of medical necessity, it is clear that the only purpose behind this humiliating and invasive procedure is to inflict physical and mental pain.”
In a Washington Post story, Thomas Burke, a Harvard Medical School professor and emergency physician at Massachusetts General Hospital, contested the argument that IV hydration or feeding would be, as Hayden put it, “dangerous with a non-cooperative detainee.” Every day in the United States, he told the Post, health workers encounter uncooperative, belligerent or mentally disturbed patients who need hydration or sustenance. “And [in] none of them do we put a tube in their bottom,” he said.
Dr. Steven Miles, a professor of medicine at the University of Minnesota Medical School and board member of the Center for Victims of Torture told the International Business Times that the procedure was “a variation on a medieval form of torture in which the intestines were swollen up with fluid in order to cause pain. You can’t feed somebody this way. And so, for the U.S. government to claim that this is some sort of feeding technique, that’s just totally bizarre. Because there is no physiological way for any nutrients to be absorbed in the colon, any medical participation in this rectal feeding procedure is medical participation in torture.”
Japanese prosecutions for waterboarding
Cheney also wrongly claimed that the U.S. did not prosecute Japanese soldiers for waterboarding, as Chuck Todd had said.
Todd: When you say waterboarding is not torture, then why did we prosecute Japanese soldiers in World War II for waterboarding?
Cheney: For a lot of stuff. Not for waterboarding. They did an awful lot of other stuff. To draw some kind of moral equivalent between waterboarding judged by our Justice Department not to be torture and what the Japanese did with the Bataan Death March and the slaughter of thousands of Americans, with the rape of Nanking and all of the other crimes they committed, that’s an outrage.
Perhaps not solely for waterboarding, but Japanese soldiers were prosecuted for torturing American prisoners, including committing acts akin to waterboarding.
In his 2007 essay “Drop by Drop: Forgetting the History of Water Torture in U.S. Courts,” Circuit Judge Evan J. Wallach, writing for the Columbia Journal of Transnational Law, documented cases from 1947 in which Japanese defendants Yukio Asano, Seitara Hata and Takeo Kita were each charged by a U.S. Military Commission with violating the laws and customs of war for committing torture, including “water torture.”
“The so-called ‘water treatment’ was commonly applied” by the Japanese, according to an International Military Tribunal for the Far East report. “The victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach until he lost consciousness.”
And such “water torture,” Wallach wrote, “loomed large in the evidence” presented in the cases against Asano, Hata and Kita.
Hata, a first lieutenant surgeon, was specifically accused of torturing Morris O. Killough, an American prisoner of war, by “beating and kicking him, by fastening him on a stretcher and pouring water up his nostrils.” He was also accused of beating three others as well as “forcing water into their mouths and noses, and by pressing lighted cigarettes against their bodies.”
Asano and Kita were also accused of forcing water into the mouths and noses of prisoners.
All three men were eventually convicted. Hata was sentenced to 25 years confinement at hard labor, and both Asano and Kita received 15-year sentences.
The late Sen. Ted Kennedy actually mentioned the case involving Asano during a speech on the Senate floor on Sept. 28, 2006. That was before Wallach’s essay was published in 2007.
Saddam Hussein's 'relationship' with al Qaeda
In stating the Bush administration’s case for going to war with Iraq, Secretary of State Colin Powell addressed the United Nations Security Council on Feb. 5, 2003, and warned of a “sinister nexus between Iraq and the Al Qaida terrorist network.” Powell specifically cited Abu Musab al-Zarqawi as the link between Iraq and al Qaeda, mentioning Zarqawi no fewer than 20 times in his speech. “Iraq today harbors a deadly terrorist network headed by Abu Musab al-Zarqawi,” Powell said.
History has proven Powell wrong. As we will explain shortly, there was no working relationship between Iraq and al Qaeda.
Nevertheless, Cheney said in his interview on “Meet the Press” that he did not regret attacking Iraq and repeated the claim that Hussein “had a 10-year relationship with al Qaeda.”
During the interview, Todd played a 1994 video clip of Cheney defending President George H.W. Bush’s decision not to remove Saddam Hussein from power during the Gulf War in 1991. In that clip, Cheney said the region is “very volatile” and an attack on Iraq’s central government would have been “a quagmire” for the U.S.
Todd then asked Cheney whether he regretted the decision to attack Iraq in 2003 under the second President Bush.
Cheney, Dec. 14: No, a lot has happened. A lot has happened between that time, 9/11, for example, happened. We got to the point where we were very concerned about the possible linkage between terrorists on the one hand and weapons of mass destruction on the other. Saddam Hussein had previously had twice nuclear programs going. He produced and used weapons of mass destruction. And he had a 10-year relationship with al Qaeda. All of things came into play.
However, the CIA, the inspector general of the CIA, the Senate Intelligence Committee (controlled at the time by Republicans) and the bipartisan 9/11 Commission all came to the conclusion that there was no evidence of a working relationship between Hussein and al Qaeda.
There were sporadic contacts between Iraq and al Qaeda in the late 1990s, as described in a 2004 report by the 9/11 Commission, which was chaired by Thomas H. Kean, a former Republican governor of New Jersey. But that report concluded that there was “no evidence that these or the earlier contacts ever developed into a collaborative operational relationship. Nor have we seen evidence indicating that Iraq cooperated with al Qaeda in developing or carrying out any attacks against the United States.”
Two reports issued by the Republican-controlled Senate Intelligence Committee came to the same conclusion.
A heavily redacted July 2004 committee report concluded (on page 346) that the CIA “reasonably assessed that there were likely several instances of contacts between Iraq and al-Qa’ida throughout the 1990s, but that these contacts did not add up to an established formal relationship.” The committee (on page 4) said its conclusions were based in part on a year-long review of 10 years of intelligence community assessments.
In its second report, which was released in September 2006, the Senate Intelligence Committee cited further evidence that there was no working relationship between the two regimes. In fact, the committee report described the two as wary rivals, citing a June 2002 CIA report titled “Iraq and al-Qa’ida: Interpreting a Murky Relationship” that said “the ties between Saddam and bin Laden appear much like those between rival intelligence services, with each trying to exploit the other for its own benefit” (page 64 of the committee report).
In a section titled “Iraqi Links to Al-Qa’ida,” the committee report cited these high-level sources to refute the Bush administration’s claim of a relationship between Iraq and al Qaeda:
Former detainees 'back on the battlefield'
The former vice president was also wrong when he discussed former Guantanamo detainees who have returned to terrorists activities.
Cheney, Dec. 14: Of the 600 and some people who were released out of Guantanamo, 30 percent roughly ended up back on the battlefield.
The number of former Guantanamo detainees confirmed to have re-engaged in terrorist or insurgent activities is actually 107, according to the most recent semi-annual report by the Director of National Intelligence. That’s 17.3 percent of the 620 detainees who have been released or transferred. The figure is current as of July 15.
Cheney arrives at his 30 percent rate by adding in 77 former detainees who are now “suspected” of re-engaging, even though those suspicions can be based on unverified reports, or reports from a single source.
Cheney has been doing this for years. We first noted his habit of ignoring the distinction between “confirmed” and “suspected” recidivists in May 2009.
He also failed to mention this important fact: Many of the 107 former detainees confirmed to have returned to terrorist activities are either dead or back in custody. The DNI report says 23 of them are dead and 25 are in custody.
Also worth noting is that nearly all those who Cheney says have “ended up back on the battlefield” were released during the Bush administration. Only six “confirmed” and one “suspected” recidivist were released from Guantanamo under President Obama.
Cheney also told only part of the story on “Meet the Press” when he said the Intelligence Committee’s investigators failed to interview key CIA officials, a point raised often by other critics of the report.
Cheney, Dec. 14: The report is seriously flawed. They didn’t talk to anybody who knew anything about the program. They didn’t talk to anybody within the program.
That’s true as far as it goes. What Cheney failed to mention, however, is that the committee investigators were deferring to Justice Department investigators who were pursuing possible criminal charges, and that the Senate staff had access to transcripts of dozens of interviews with CIA officials conducted by the agency’s own inspector general and others.
A Democratic member of the Intelligence Committee, Sen. Ron Wyden of Oregon, explained that in the same “Meet the Press” program just before Cheney’s appearance:
Wyden, Dec. 14: The report and the Justice Department inquiry went on at the same time. So we weren’t able to interview the C.I.A. … Suffice it to say, I’ll speak for myself and my colleagues, we would be happy to have talked to them.
Another member of the committee, Sen. Angus King of Maine, made the same point in a Dec. 9 interview on CNN:
King, Dec. 9: [T]he reason the interviews weren’t done was that the Justice Department was preparing whether or not to charge people in the CIA, and the committee was forbidden to conduct these interviews. They couldn’t do it. However, the committee did have access to 150 interviews done by the CIA’s inspector general, plus the transcripts of the many times that CIA officials came and testified before the committee. So there were, in effect, interviews. We just didn’t ask the question. But the interviews were there, plus 6 million pages of documents. And it’s chilling.
King is an independent, but sits with Democrats in the Senate.