The Dissident

June 26, 2008

The Dissident

Summer 2008

The Dissident


Alberto Mora
Alberto Mora
Photo Credit: Alen MacWeeney

Documentary filmmaker Alex Gibney interviews former U.S Navy General Counsel Alberto Mora about his behind-thescenes challenge to the Bush administration’s interrogation policies in the war on terror.

ALEX GIBNEY: When you first began looking into the authorization of detainee abuse at Guantánamo in December 2002, did you feel that you were discovering something that was much bigger than you had thought?.

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ALBERTO MORA: Not at first. I went down to [Army General Counsel] Steve Morello’s office, and he was accompanied by his very able deputy, Tom Taylor. They pushed a stack of documents across the desk to me. They said that this was the authority, that they had tried to stop it. They had been told to stop trying.

The top document was a memorandum from the general counsel [of the] Department of Defense, to Secretary Rumsfeld. It was the memo that requested the authorization for the application of certain interrogation techniques, and the top memo gave Secretary Rumsfeld’s approval for the application of some of those techniques.

GIBNEY: Was that the famous “standing memo”?

MORA: Yes. It’s the memo with Secretary Rumsfeld’s handwritten notations on the bottom, saying that he stands eight to ten hours a day, and [asking why] detainees are only required to stand up to four hours a day.

GIBNEY: So step by step by step, you were trying to find out more about what appears to be a policy. Who did you meet with next?

MORA: I took the memo back to my office and looked at it more carefully. What I was looking for was the boundary of the action: you’re permitting certain interrogation techniques, but certainly there must be some limit set upon the severity of the techniques. What I looked for then—in fact, what I always looked for throughout my involvement in this case—was some sort of expression that indicated that the application of cruel, inhuman and degrading treatment was prohibited. That language was nowhere to be found in the memorandum.

I knew the individuals involved at the senior levels in the Department of Defense [DOD]; I felt that this was a simple matter of too much work and too little time. What I had to do was to talk to the general counsel of the DOD, Jim Haynes, and bring these concerns to his attention.

GIBNEY: Tell me about that first meeting with Haynes.

MORA: I took the copy I had of the memorandum and told him that I was greatly troubled that the secretary of defense had been allowed to sign this kind of document—that the techniques, either individually or in combination, could permit treatment that could rise to the level of torture and certainly constituted cruel, inhuman and degrading treatment.

Light deprivation is one of the examples I cited. . . . Light deprivation could mean placing the detainee in a dark room for 15 minutes—or placing the detainee in a dark room for a month, or two months, or three months until he goes blind.

GIBNEY: When you left Haynes’ office, did you feel that the issue would now be on the way to being resolved?

MORA: I was completely certain it would be resolved. It never occurred to me that those authorizations would not be instantaneously withdrawn.

When I was at my parents’ home in Miami over vacation, I started hearing reports from NCIS [Naval Criminal Investigation Services] and others that the abuse was still going on. And it was clear to me that this was not simple. The fact that [the problem] was not corrected instantaneously suggested that, while it may have been a mistake, it was not inadvertent. I realized that reversing those kinds of policies would require engaging in a pattern of advocacy to build up a constituency among the senior ranks in the Pentagon— individuals who could apply persuasion to Secretary Rumsfeld and others in order to reverse the policy.

GIBNEY: Did you discuss with Haynes the notion that the policies might actually leave American officials vulnerable to being prosecuted for war crimes?

MORA: The discussion at the time was that, while various courts over the years had held that U.S. federal courts did not have jurisdiction over Guantánamo, I felt that the legal analysis could very well change if the facts before the court demonstrated or suggested abuse occurring at Guantánamo as a result of authorization issuing from the Pentagon. In that kind of situation, I thought it entirely foreseeable that federal courts would assume jurisdiction along the entire chain of command.

What’s well known, also, is the principle of command responsibility, established in the Nuremberg trials after World War II. It established the principle of international criminal law: Individuals who order illegal treatment will be held accountable for the treatment, even if they are not the ones immediately applying that treatment.

I urged Jim to protect Don Rumsfeld from the possible consequences of this action.

GIBNEY: What led to the cessation of this authorization? Did you put together a memorandum?

MORA: I wrote a draft memorandum, which essentially analyzed the various interrogation techniques that Guantánamo wished to apply and that had been authorized. I came to the conclusion that, individually or jointly, these techniques could constitute torture and that the authorization of these kinds of techniques would generate incalculable harm for the United States: legal difficulties, political, foreign policy, defense issues.

I sent this memorandum to Jim in the morning and said that unless I heard that the techniques would be rescinded, I would be signing off on the memorandum that afternoon.

Within a short time, he told me that the secretary had rescinded the authorization. And I said I was delighted to hear that and that I would not be signing off on the memorandum.

GIBNEY: What happened next?

MORA: Secretary Rumsfeld directed that a working group of the various military services be set up to examine the interrogation issue. His direction to Jim [Haynes] and to the others was that the need to obtain intelligence in a manner consistent with law and U.S. traditions was of the highest importance to the fight against al-Qaeda and the war on terror. Nominally, the general counsels and/or the judge advocate generals [JAGs] would be the participants; in practice, it would be junior officers who actually did the work for the group.

During the course of these working- group deliberations over the next several weeks, we were all informed that the Office of Legal Counsel [OLC] in the Department of Justice had prepared a draft memorandum on interrogation techniques that would serve as a guide to the working-group deliberations. It was kept in the office of the Air Force general counsel. It was not copied or distributed to anyone. If one wanted to read the memorandum, one had to go to the Air Force general counsel’s office. She would retrieve the memorandum, and you would read it in her presence. When you’d finish, she would take it back and then put it in storage.

GIBNEY: Was that usual procedure?

MORA: No, that was very unusual. All of us had the highest clearances in the Department of Defense. The general counsels, or the JAGs, are two-star military officers with 25-plus years of experience— so it rankled. Also, it was an impediment because you couldn’t take the memorandum and read it carefully.

John Yoo [then deputy assistant attorney general at the OLC] was reported to be the author. John came over to the Department of Defense one day and spoke to the working group, but I was not present that day. So I asked John to come speak to me and my deputy general counsel privately, and we met in my office to discuss the memorandum.

GIBNEY: What issues did you raise, and what were John’s responses?

MORA: I had seen two problems with the memorandum, initially: the fact that it was completely unbounded, meaning nowhere did it state that the application of cruel and inhuman and degrading treatment was prohibited; also, it had a discussion about presidential commander-inchief authority that I felt was cartoonish. Taken literally, the argument was that the president, as commander in chief, could literally do anything and everything, unbounded by legal restraints. It was a dangerous articulation.

We got into a discussion about torture. At one point I asked him, Can the president authorize torture? And his response was yes. I responded to him that I didn’t think so. He said, Now you’re starting to talk about legal policy, and I’m telling you what the law is—maybe the policy that you’re suggesting might be the better policy, but that’s not what the law is.

And my response to that was, Well, John, where does one have this discussion on policy?

And he shrugged and said, I don’t know. Here in the Pentagon? You guys are the experts on the law of war.

Alberto Mora
Photo Credit: Alen MacWeeney

GIBNEY: What was your reaction to that?

MORA: My reaction was, well, that’s plausible. Two years later, when some of these events ununrolled, it became evident that that policy discussion had been had. It wasn’t at the Pentagon, though. In fact, [Yoo’s] memorandum guaranteed that we would not have that policy discussion—not really—in the Department of Defense, because by law and practice federal agencies are required to take Office of Legal Counsel guidance and apply it.

So that memorandum controlled the results of the working-group draft, and it destroyed the possibility to have any meaningful policy discussion on those issues.

GIBNEY: As a layman, I always get confused on this issue. It’s as though it suddenly appears that the Office of Legal Counsel has a tremendous amount of power in terms of setting not only policy but the law for the United States.

MORA: The Office of Legal Counsel has the power to interpret the law. It is one of the most critically important offices in the Department of Justice, precisely as this incident demonstrates.

GIBNEY: Some people have said that the Office of Legal Counsel was analyzing the law in order ot reach a particular conclusion, as if someone said, Here's where we want to get to; find us a way to get there. Do you find that persuasive?

MORA: I find that persuasive. The memorandum now has been repudiated, of course, by the Department of Justice, and it’s been broadly ridiculed in law reviews ever since its existence became known.

GIBNEY: At what point did you leave this debate, thinking that all was well?

MORA: Well the working group was working very rapidly. There were various sub task forces, each analyzing a different piece of the legal and policy issues associated with this thing. The various contributions would then be melded together into the working group [document]. And that draft was changing very, very rapidly.

I think all of the judge advocate generals objected to the draft. My decision was to wait until the final version came out, then submit a lengthy memo analyzing and non-concurring, as we say—disagreeing with the context and conclusions and withholding Department of the Navy concurrence to the report.

That final draft was never produced. Jim [Haynes] invited each general counsel and each JAG to speak to him privately concerning our views of the [working group’s] memorandum. My view was that it was completely unreliable, that he should put that memorandum in a desk drawer and never let it see the light of day again, thank the working group for their efforts but just have it disappear.

Over time, I thought Jim had accepted my advice and that of almost everybody else not to promulgate the memorandum. I subsequently learned, after Abu Ghraib, that the memorandum had been finalized, signed out and [briefed] to several senior commanders within the DOD chain of command.

GIBNEY: The phrase “a few bad apples” has come up over and over again in the context of abuses. Was it a few bad apples, or was it a policy?

MORA: It’s probably a combination. There certainly were a few bad apples; Abu Ghraib might be representative of that phenomenon.

Now was some cruelty applied deliberately? I think the record is clear that, in Guantánamo, some cruelty was applied as a matter of official policy. It may have been very restricted. It may not have reached the level of torture, even though some of the FBI documents and others that we’ve seen lately might suggest otherwise.

GIBNEY: But once a secretary of defense authorizes certain techniques, is it fair to assume that once you give a little bit there is a tendency for people to go farther?

MORA: Secretary Rumsfeld did rescind the techniques. Now, the working- group memorandum drafts—and I’ve not seen a final version, even now—prohibited the application of cruel treatment in interrogation unless permission was granted by higher authorities. I don’t know whether or not people sought to receive that kind of authority down the road or whether the message that there was not an absolute prohibition against [the techniques] may have [supplied] the kind of encouragement that you suggest.

GIBNEY: What about the whole idea of difference? My father was an interrogator in World War II. There was a lot of argument then about the fact that the Japanese were different; they had kamikaze pilots. Today you hear the argument, What about people who are willing to kill themselves by ramming airliners into the World Trade Center and the Pentagon? Will we ever beat them if we mollycoddle them?

MORA: There’s no prisoner in American custody, even if treated humanely, who is being mollycoddled.

One way to approach this issue is in the context of the strategic. Most countries— certainly most European countries, all our traditional allies—hold that the application of cruelty is a criminal act. To the extent that we would permit the application of cruelty, we create a situation whereby other countries, if they wish to participate with us in the war on terror, might be engaging in activities that would be criminal acts under their own jurisprudence.

GIBNEY: What do you think the historical verdict will be, when you look back? Are we looking back now at a period that is similar to the detention of Japanese Americans in World War II, for example?

MORA: If you read the history of the Korematsu [v. United States] decision and the Japanese-American detention decisions, there are eerie parallels between those debates back in 1942 and the debates that were held in the U.S. government concerning the application of cruelty. In each case, the fear of foreign attack distorted our sense of values and our decision-making processes.

My primary interest is not so much looking backwards, but looking forwards. The possibilities of other terrorist attacks are great. Unless we decide now that this is not a path that we will go down again, I think we will be tempted to adopt these measures again. ai

Taxi to the Dark Side

Alex Gibney first interviewed Alberto Mora for the documentary Taxi to the Dark Side, which chronicles the development of the Bush administration’s post-9/11 interrogation policies. The film, which won the Academy Award for best documentary in 2007, will air on HBO in September. Visit www.taxitothedarksidefilm.com for more information and updates on the DVD release.