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THE MEMO

How an internal effort to ban
the abuse and torture of detainees was
thwarted.

by JANE MAYER

Issue of
2006-02-27
Posted
2006-02-20

One night this January, in a
ceremony at the Officers’ Club at Fort Myer, in
Arlington, Virginia, which sits on a hill with a
commanding view across the Potomac River to the
Washington Monument, Alberto J. Mora, the outgoing
general counsel of the United States Navy, stood
next to a podium in the club’s ballroom. A
handsome gray-haired man in his mid-fifties, he
listened with a mixture of embarrassment and pride
as his colleagues toasted his impending departure.
Amid the usual tributes were some more pointed
comments.

“Never has there been a counsel with more
intellectual courage or personal integrity,” David
Brant, the former head of the Naval Criminal
Investigative Service, said. Brant added somewhat
cryptically, “He surprised us into doing the right
thing.” Conspicuous for his silence that night was
Mora’s boss, William J. Haynes II, the general
counsel of the Department of Defense.

Back in Haynes’s office, on the third floor of
the Pentagon, there was a stack of papers
chronicling a private battle that Mora had waged
against Haynes and other top Administration
officials, challenging their tactics in fighting
terrorism. Some of the documents are classified
and, despite repeated requests from members of the
Senate Armed Services Committee and the Senate
Judiciary Committee, have not been released. One
document, which is marked “secret” but is not
classified, is a twenty-two-page memo written by
Mora. It shows that three years ago Mora tried to
halt what he saw as a disastrous and unlawful
policy of authorizing cruelty toward terror
suspects.

The memo is a chronological account, submitted
on July 7, 2004, to Vice Admiral Albert Church,
who led a Pentagon investigation into abuses at
the U.S. detention facility at Guantánamo Bay,
Cuba. It reveals that Mora’s criticisms of
Administration policy were unequivocal,
wide-ranging, and persistent. Well before the
exposure of prisoner abuse in Iraq’s Abu Ghraib
prison, in April, 2004, Mora warned his superiors
at the Pentagon about the consequences of
President Bush’s decision, in February, 2002, to
circumvent the Geneva conventions, which prohibit
both torture and “outrages upon personal dignity,
in particular humiliating and degrading
treatment.” He argued that a refusal to outlaw
cruelty toward U.S.-held terrorist suspects was an
implicit invitation to abuse. Mora also challenged
the legal framework that the Bush Administration
has constructed to justify an expansion of
executive power, in matters ranging from
interrogations to wiretapping. He described as
“unlawful,” “dangerous,” and “erroneous” novel
legal theories granting the President the right to
authorize abuse. Mora warned that these precepts
could leave U.S. personnel open to criminal
prosecution.

In important ways, Mora’s memo is at odds with
the official White House narrative. In 2002,
President Bush declared that detainees should be
treated “humanely, and to the extent appropriate
and consistent with military necessity, in a
manner consistent with the principles” of the
Geneva conventions. The Administration has
articulated this standard many times. Last month,
on January 12th, Secretary of Defense Donald
Rumsfeld, responding to charges of abuse at the
U.S. base in Cuba, told reporters, “What took
place at Guantánamo is a matter of public record
today, and the investigations turned up nothing
that suggested that there was any policy in the
department other than humane treatment.” A week
later, the White House press spokesman, Scott
McClellan, was asked about a Human Rights Watch
report that the Administration had made a
“deliberate policy choice” to abuse detainees. He
answered that the organization had hurt its
credibility by making unfounded accusations. Top
Administration officials have stressed that the
interrogation policy was reviewed and sanctioned
by government lawyers; last November, President
Bush said, “Any activity we conduct is within the
law. We do not torture.” Mora’s memo, however,
shows that almost from the start of the
Administration’s war on terror the White House,
the Justice Department, and the Department of
Defense, intent upon having greater flexibility,
charted a legally questionable course despite
sustained objections from some of its own lawyers.

Mora had some victories. “America has a lot to
thank him for,” Brant, the former head of the
N.C.I.S., told me. But those achievements were
largely undermined by a small group of lawyers
closely aligned with Vice-President Cheney. In the
end, Mora was unable to overcome formidable
resistance from several of the most powerful
figures in the government.

Brant had joked at the farewell party that Mora
“was an incredible publicity hound.” In fact,
Mora—whose status in the Pentagon was equivalent
to that of a four-star general—is known for his
professional discretion, and he has avoided the
press. This winter, however, he agreed to confirm
the authenticity and accuracy of the memo and to
be interviewed. A senior Defense Department
official, whom the Bush Administration made
available as a spokesman, on the condition that
his name not be used, did so as well. Mora and the
official both declined to elaborate on internal
Department of Defense matters beyond those
addressed in the memo. Mora, a courtly and warm
man, is a cautious, cerebral conservative who
admired President Reagan and served in both the
first and the second Bush Administrations as a
political appointee. He strongly supported the
Administration’s war on terror, including the
invasion of Iraq, and he revered the Navy. He
stressed that his only reason for commenting at
all was his concern that the Administration was
continuing to pursue a dangerous course. “It’s my
Administration, too,” he said.

Mora first learned about the
prob lem of detainee abuse on December 17, 2002,
when David Brant approached him with accusations
of wrongdoing at Guantánamo. As head of the Naval
Criminal Investigation Service, Brant often
reported to Mora but hadn’t dealt with him on
anything so sensitive. “I wasn’t sure how he would
react,” Brant, a tall, thin man with a mustache,
told me. Brant had already conveyed the
allegations to Army leaders, since they had
command authority over the military interrogators,
and to the Air Force, but he said that nobody
seemed to care. He therefore wasn’t hopeful when
he went to Mora’s office that afternoon.

When we spoke, Mora recalled the mood at the
Pentagon at the time, just fifteen months after
the September 11th attacks. “The mentality was
that we lost three thousand Americans, and we
could lose a lot more unless something was done,”
he said. “It was believed that some of the
Guantánamo detainees had knowledge of other
9/11-like operations that were under way, or would
be executed in the future. The gloves had to come
off. The U.S. had to get tougher.” Mora had been
inside the Pentagon on September 11th and recalled
the jetliner crashing into the building one facet
over. He said that it “felt jarring, like a large
safe had been dropped overhead.” From the parking
lot, he watched the Pentagon burn. The next day,
he said, he looked around a room full of top
military leaders, and was struck by the thought
that “these guys were going to be the tip of the
spear.”

Brant oversaw a team of N.C.I.S. agents working
with the F.B.I. at Guantánamo Bay, in what was
called the Criminal Investigative Task Force. It
had been assigned to elicit incriminating
information from the nearly six hundred detainees
being held there. Unlike a group run by Army
intelligence, Joint Task Force 170, or J.T.F.-170,
which was looking for intelligence that would help
American authorities determine Al Qaeda’s next
move, Brant’s investigators gathered evidence that
eventually could be used for prosecutions in
military tribunals or civilian courts. He and his
agents had experience and training in law
enforcement: Brant, a civilian, holds an advanced
degree in criminology, and worked as a policeman
in Miami in the nineteen-seventies.

Brant informed Mora that he was disturbed by
what his agents told him about the conduct of
military-intelligence interrogators at Guantánamo.
These officials seemed poorly trained, Brant said,
and were frustrated by their lack of success. He
had been told that the interrogators were engaging
in escalating levels of physical and psychological
abuse. Speaking of the tactics that he had heard
about, Brant told me, “Repugnant would be a good
term to describe them.”

Much of Brant’s information had been supplied
by an N.C.I.S. psychologist, Michael Gelles, who
worked with the C.I.T.F. and had computer access
to the Army’s interrogation logs at Guantánamo.
Brant told me that Gelles “is phenomenal at
unlocking the minds of everyone from child abusers
to terrorists”; he took it seriously when Gelles
described the logs as shocking.

The logs detailed, for example, the brutal
handling of a Saudi detainee, Mohammed al-Qahtani,
whom an F.B.I. agent had identified as the
“missing twentieth hijacker”—the terrorist who was
supposed to have been booked on the plane that
crashed in a Pennsylvania field. Qahtani was
apprehended in Afghanistan a few months after the
terrorist attacks.

Qahtani had been subjected to a hundred and
sixty days of isolation in a pen perpetually
flooded with artificial light. He was interrogated
on forty-eight of fifty-four days, for eighteen to
twenty hours at a stretch. He had been stripped
naked; straddled by taunting female guards, in an
exercise called “invasion of space by a female”;
forced to wear women’s underwear on his head, and
to put on a bra; threatened by dogs; placed on a
leash; and told that his mother was a whore. By
December, Qahtani had been subjected to a phony
kidnapping, deprived of heat, given large
quantities of intravenous liquids without access
to a toilet, and deprived of sleep for three days.
Ten days before Brant and Mora met, Qahtani’s
heart rate had dropped so precipitately, to
thirty-five beats a minute, that he required
cardiac monitoring.

Brant told me that he had gone to Mora because
he didn’t want his team of investigators to “in
any way observe, condone, or participate in any
level of physical or in-depth psychological abuse.
No slapping, deprivation of water, heat, dogs,
psychological abuse. It was pretty basic, black
and white to me.” He went on, “I didn’t know or
care what the rules were that had been set by the
Department of Defense at that point. We were going
to do what was morally, ethically, and legally
permissible.” Recently declassified e-mails and
orders obtained by the American Civil Liberties
Union document Brant’s position, showing that all
C.I.T.F. personnel were ordered to “stand clear
and report” any abusive interrogation tactics.

Brant thinks that the Army’s interrogation of
Qahtani was unlawful. If an N.C.I.S. agent had
engaged in such abuse, he said, “we would have
relieved, removed, and taken internal disciplinary
action against the individual—let alone whether
outside charges would have been brought.” Brant
said he feared that such methods would taint the
cases his agents needed to make against the
detainees, undermining any attempts to prosecute
them in a court of law. He also doubted the
reliability of forced confessions. Moreover, he
told me, “it just ain’t right.”

Another military official, who worked closely
with Brant and who has been denied permission to
speak on the record, told me that the news
“rocked” Mora. The official added that Mora “was
visionary about this. He quickly grasped the fact
that these techniques in the hands of people with
this little training spelled disaster.”

In his memo, Mora noted that Brant asked him if
he wanted to hear more about the situation. He
wrote, “I responded that I felt I had to.”

Mora was a well-liked and
successful figure at the Pentagon. Born in Boston
in 1952, he is the son of a Hungarian mother,
Klara, and a Cuban father, Lidio, both of whom
left behind Communist regimes for America. Klara’s
father, who had been a lawyer in Hungary, joined
her in exile just before the Soviet Union took
control. From the time Alberto was a small boy,
Klara Mora told me, he heard from his grandfather
the message that “the law is sacred.” For the
Moras, injustice and abuse were not merely
theoretical concepts. One of Mora’s great-uncles
had been interned in a Nazi concentration camp,
and another was hanged after having been tortured.
Mora’s first memory, as a young child, is of
playing on the floor in his mother’s bedroom, and
watching her crying as she listened to a report on
the radio declaring that the 1956 anti-Communist
uprising in Hungary had been crushed. “People who
went through things like this tend to have very
strong views about the rule of law,
totalitarianism, and America,” Mora said.

At the time, Mora’s family was living in Cuba.
His father, a Harvard-trained physician, had taken
his wife and infant son back in 1952. When Castro
seized power, seven years later, the family barely
escaped detention after a servant informed the
authorities that they planned to flee to America.
In the ensuing panic, Alberto obtained an
emergency passport from the American Embassy in
Havana. “This was my first brush with the
government,” he said. “When I swore an oath of
allegiance to the American government, part of the
oath involved taking up arms to defend the
country. And I was thinking, This is a serious
thing for me to be an eight-year-old boy, raising
my hand before the American vice-consul and taking
the oath of allegiance.” Cuban customs officials,
seeing Alberto’s American passport, threatened not
to let him board a ship. At the last minute, one
of his father’s colleagues, who had been put in
charge of the port, allowed Alberto’s emigration.

Mora’s family settled in Jackson, Mississippi,
where his father taught at the state medical
school and Mora attended a Catholic school. For
the most part, Jackson was “a wonderful place,”
Mora recalled, although it was also “very
conservative.” Racism was rampant and everyone,
including Mora, backed Barry Goldwater in the 1964
election. Mora had never met anyone who opposed
the Vietnam War until he enrolled at Swarthmore
College, a school that he chose after reading an
S.A.T.-preparation booklet that described it as
small and especially rigorous. He also had never
met a feminist before going to hear Kate Millett
speak at Bryn Mawr, during his freshman year; her
talk infuriated him. After growing up in the South
among friends who played sports, drank beer, and
had a good time, he found the Northeastern liberal
élite curiously “nerdish.” The girls had thrown
away their skirts—if they’d ever had them, he
joked—and there were no parties. Yet he loved the
intellectual environment. “You just had these
intense discussions,” he recalled. “I revelled in
it.” Mora said that he was the only person among
his friends who wasn’t a conscientious objector to
the war.

Mora graduated in 1974 with honors, and joined
the State Department, working in Portugal; in
1979, he entered law school in Miami. Finding
litigation work more “a living than a life,” Mora
said, he was happy to get an appointment as
general counsel of the U.S. Information Agency in
the first Bush Administration. During the Clinton
years, he was appointed to a Republican seat on
the Broadcasting Board of Governors, where he was
an advocate for Radio Martí, the American news
operation aimed at Cuba. He also practiced
international law in several private firms. When
George W. Bush was elected, Mora—with the backing
of former Defense Secretary Frank Carlucci, whom
he had befriended in Portugal—was appointed
general counsel of the Navy. He expected to spend
most of his time there streamlining the budget.

The day after Mora’s first
meeting with Brant, they met again, and Brant
showed him parts of the transcript of Qahtani’s
interrogation. Mora was shocked when Brant told
him that the abuse wasn’t “rogue activity” but was
“rumored to have been authorized at a high level
in Washington.” The mood in the room, Mora wrote,
was one of “dismay.” He added, “I was under the
opinion that the interrogation activities
described would be unlawful and unworthy of the
military services.” Mora told me, “I was appalled
by the whole thing. It was clearly abusive, and it
was clearly contrary to everything we were ever
taught about American values.”

Mora thinks that the media has focussed too
narrowly on allegations of U.S.-sanctioned
torture. As he sees it, the authorization of
cruelty is equally pernicious. “To my mind,
there’s no moral or practical distinction,” he
told me. “If cruelty is no longer declared
unlawful, but instead is applied as a matter of
policy, it alters the fundamental relationship of
man to government. It destroys the whole notion of
individual rights. The Constitution recognizes
that man has an inherent right, not bestowed by
the state or laws, to personal dignity, including
the right to be free of cruelty. It applies to all
human beings, not just in America—even those
designated as ‘unlawful enemy combatants.’ If you
make this exception, the whole Constitution
crumbles. It’s a transformative issue.”

Mora said that he did not fear reprisal for
stating his opposition to the Administration’s
emerging policy. “It never crossed my mind,” he
said. “Besides, my mother would have killed me if
I hadn’t spoken up. No Hungarian after Communism,
or Cuban after Castro, is not aware that human
rights are incompatible with cruelty.” He added,
“The debate here isn’t only how to protect the
country. It’s how to protect our values.”

After the second meeting with Brant, Mora
called his friend Steven Morello, the general
counsel of the Army, and asked him if he knew
anything about the abuse of prisoners at
Guantánamo. Mora said that Morello answered, “I
know a lot about it. Come on down.”

In Morello’s office, Mora saw what he now
refers to as “the package”—a collection of secret
military documents that traced the origins of the
coercive interrogation policy at Guantánamo. It
began on October 11, 2002, with a request by
J.T.F.-170’s commander, Major General Michael
Dunlavey, to make interrogations more aggressive.
A few weeks later, Major General Geoffrey Miller
assumed command of Guantánamo Bay, and, on the
assumption that prisoners like Qahtani had been
trained by Al Qaeda to resist questioning, he
pushed his superiors hard for more flexibility in
interrogations. On December 2nd, Secretary of
Defense Rumsfeld gave formal approval for the use
of “hooding,” “exploitation of phobias,” “stress
positions,” “deprivation of light and auditory
stimuli,” and other coercive tactics ordinarily
forbidden by the Army Field Manual. (However, he
reserved judgment on other methods, including
“waterboarding,” a form of simulated drowning.) In
Mora’s memo, Morello is quoted as saying that “we
tried to stop it.” But he was told not to ask
questions.

According to a participant in the meeting, Mora
was “ashen-faced” when he read the package. The
documents included a legal analysis, also dated
October 11th, by Lieutenant Colonel Diane Beaver,
who was then the top legal adviser to J.T.F.-170.
She noted that some of the more brutal
“counter-resistance” techniques under
consideration at Guantánamo, such as waterboarding
(for which soldiers had been court-martialled in
earlier conflicts), might present legal problems.
She acknowledged that American military personnel
at Guantánamo, as everywhere else in the world,
were bound by the Uniform Code of Military
Justice, which characterizes “cruelty,”
“maltreatment,” “threats,” and “assault” as
felonies. Beaver reasoned, however, that U.S.
soldiers preparing to violate these laws in their
interrogations might be able to obtain
“permission, or immunity” from higher authorities
“in advance.”

The senior Defense Department official
designated to speak for the Administration
acknowledged that Beaver’s legal argument was
inventive. “Normally, you grant immunity after the
fact, to someone who has already committed a
crime, in exchange for an order to get that person
to testify,” he said. “I don’t know whether we’ve
ever faced the question of immunity in advance
before.” Nevertheless, the official praised Beaver
“for trying to think outside the box. I would
credit Diane as raising that as a way to think
about it.” (Beaver was later promoted to the staff
of the Pentagon’s Office of General Counsel, where
she specializes in detainee issues.)

Mora was less impressed. Beaver’s brief, his
memo says, “was a wholly inadequate analysis of
the law.” It held that “cruel, inhuman, or
degrading treatment could be inflicted on the
Guantánamo detainees with near impunity”; in his
view, such acts were unlawful. Rumsfeld’s December
2nd memo approving these “counter-resistance”
techniques, Mora wrote, “was fatally grounded on
these serious failures of legal analysis.” Neither
Beaver nor Rumsfeld drew any “bright line”
prohibiting the combination of these techniques,
or defining any limits for their use. He believed
that such rhetorical laxity “could produce effects
reaching the level of torture,” which was
prohibited, without exception, under both U.S. and
international law. Mora took his concerns to
Gordon England, the Secretary of the Navy, who is
now the Deputy Secretary of Defense. Then, on
December 20th, with England’s authorization, Mora
went to William Haynes, the Pentagon’s general
counsel; they met in Haynes’s office, an elegant
suite behind vault-like metal doors.

In confronting Haynes, Mora was engaging not
just the Pentagon but also the Vice-President’s
office. Haynes is a protégé of Cheney’s
influential chief of staff, David Addington.
Addington’s relationship with Cheney goes back to
the Reagan years, when Cheney, who was then a
representative from Wyoming, was the ranking
Republican on a House select committee
investigating the Iran-Contra scandal. Addington,
a congressional aide, helped to write a report for
the committee’s Republican minority, arguing that
the law banning covert aid to the Contras—the
heart of the scandal—was an unconstitutional
infringement of Presidential prerogatives. Both
men continue to embrace an extraordinarily
expansive view of executive power. In 1989, when
Cheney was named Secretary of Defense by George H.
W. Bush, he hired Addington as a special
assistant, and eventually appointed him to be his
general counsel. Addington, in turn, hired Haynes
as his special assistant and soon promoted him to
general counsel of the Army.

After George W. Bush took office, Addington
came to the White House with Cheney, and Haynes
took his boss’s old job at the Pentagon. Addington
has played a central part in virtually all of the
Administration’s legal strategies, including
interrogation and detainee policies. The office of
the Vice-President has no statutory role in the
military chain of command. But Addington’s
tenacity, willingness to work long hours, and
unalloyed support from Cheney made him, in the
words of another former Bush White House
appointee, “the best infighter in the
Administration.” One former government lawyer
described him as “the Octopus”—his hands seemed to
reach into every legal issue.

Haynes rarely discussed his alliance with
Cheney’s office, but his colleagues, as one of
them told me, noticed that “stuff moved back and
forth fast” between the two power centers. Haynes
was not considered to be a particularly
ideological thinker, but he was seen as “pliant,”
as one former Pentagon colleague put it, when it
came to serving the agenda of Cheney and
Addington. In October, 2002, almost three months
before his meeting with Mora, Haynes gave a speech
at the conservative Federalist Society,
disparaging critics who accused the Pentagon of
mistreating detainees. A year later, President
Bush nominated him to the federal appeals court in
Virginia. His nomination is one of several that
have been put on hold by Senate Democrats.

In his meeting with Haynes, Mora told me, he
said that, whatever its intent, what Rumsfeld’s
memo permitted was “torture.”

According to Mora, Haynes replied, “No, it
isn’t.”

Mora asked Haynes to think about the techniques
more carefully. What did “deprivation of light and
auditory stimuli” mean? Could a prisoner be locked
in a completely dark cell? If so, could he be kept
there for a month? Longer? Until he went blind?
What, precisely, did the authority to exploit
phobias permit? Could a detainee be held in a
coffin? What about using dogs? Rats? How far could
an interrogator push this? Until a man went
insane?

Mora drew Haynes’s attention to a comment that
Rumsfeld had added to the bottom of his December
2nd memo, in which he asked why detainees could be
forced to stand for only four hours a day, when he
himself often stood “for 8-10 hours a day.” Mora
said that he understood that the comment was meant
to be jocular. But he feared that it could become
an argument for the defense in any prosecution of
terror suspects. It also could be read as
encouragement to disregard the limits established
in the memo. (Colonel Lawrence Wilkerson, a
retired military officer who was a chief of staff
to former Secretary of State Colin Powell, had a
similar reaction when he saw Rumsfeld’s scrawled
aside. “It said, ‘Carte blanche, guys,’ ”
Wilkerson told me. “That’s what started them down
the slope. You’ll have My Lais then. Once you pull
this thread, the whole fabric unravels.”)

Haynes said little during the meeting with
Mora, but Mora left the room certain that Haynes
would realize he had been too hasty, and would get
Rumsfeld to revoke the inflammatory December 2nd
memo. Mora told me, “My feeling was it was just a
blunder.” The next day, he left Washington for a
two-week Christmas holiday.

The authorization of harsh
interrogation methods which Mora had seen was no
aberration. Almost immediately after September
11th, the Administration had decided that
protecting the country required extraordinary
measures, including the exercise of executive
powers exceeding domestic and international norms.
In January, 2002, Alberto Gonzales, then the White
House counsel (he is now the Attorney General),
sent a memo to President Bush arguing for a “new
paradigm” of interrogation, declaring that the war
on terror “renders obsolete” the “strict
limitations on questioning of enemy prisoners”
required by the Geneva conventions, which were
ratified by the United States in 1955. That
August, the Justice Department’s Office of Legal
Counsel, which acts as an in-house law firm for
the executive branch, issued a memo secretly
authorizing the C.I.A. to inflict pain and
suffering on detainees during interrogations, up
to the level caused by “organ failure.” This
document, now widely known as the Torture Memo,
which Addington helped to draft, also advised
that, under the doctrine of “necessity,” the
President could supersede national and
international laws prohibiting torture. (The
document was leaked to the press in 2004, after
the Abu Ghraib scandal broke.)

Lawrence Wilkerson, whom Powell assigned to
monitor this unorthodox policymaking process, told
NPR last fall of “an audit trail that ran from the
Vice-President’s office and the Secretary of
Defense down through the commanders in the field.”
When I spoke to him recently, he said, “I saw what
was discussed. I saw it in spades. From Addington
to the other lawyers at the White House. They said
the President of the United States can do what he
damn well pleases. People were arguing for a new
interpretation of the Constitution. It negates
Article One, Section Eight, that lays out all of
the powers of Congress, including the right to
declare war, raise militias, make laws, and
oversee the common defense of the nation.”
Cheney’s view, Wilkerson suggested, was fuelled by
his desire to achieve a state of “perfect
security.” He said, “I can’t fault the man for
wanting to keep America safe, but he’ll corrupt
the whole country to save it.” (Wilkerson left the
State Department with Powell, in January,
2005.)

At the time, the Administration’s embrace of
interrogation measures normally proscribed by the
Army Field Manual remained largely unknown to the
public. But while Mora was on Christmas vacation,
the Washington Post
published a story, by Dana Priest and Barton
Gellman, alleging that C.I.A. personnel were
mistreating prisoners at the Bagram military base,
in Afghanistan. Kenneth Roth, the director of
Human Rights Watch, warned that if this was true
U.S. officials who knew about it could be
criminally liable, under the doctrine of command
responsibility. The specific allegations closely
paralleled what Mora had seen authorized at
Guantánamo.

Upon returning to work on January 6, 2003, Mora
was alarmed to learn from Brant that the abuse at
Guantánamo had not stopped. In fact, as Time reported last year,
Qahtani had been stripped and shaved and told to
bark like a dog. He’d been forced to listen to pop
music at an ear-splitting volume, deprived of
sleep, and kept in a painfully cold room. Between
confessing to and then recanting various terrorist
plots, he had begged to be allowed to commit
suicide.

Mora suspected that such abuse was a deliberate
policy, and widened his internal campaign in the
hope of building a constituency against it. In the
next few days, his arguments reached many of the
Pentagon’s top figures: Deputy Secretary of
Defense Paul Wolfowitz; Captain Jane Dalton, the
legal adviser to the Joint Chiefs of Staff;
Victoria Clarke, who was then the Pentagon
spokeswoman; and Rumsfeld.

Meanwhile, on January 9, 2003, Mora had a
second meeting with Haynes. According to Mora’s
memo, when he told him how disappointed he was
that nothing had been done to end the abuse at
Guantánamo, Haynes explained that “U.S. officials
believed the techniques were necessary to obtain
information,” and that the interrogations might
prevent future attacks against the U.S. and save
American lives. Mora acknowledged that he could
imagine “ticking bomb” scenarios, in which it
might be moral—though still not legal—to torture a
suspect. But, he asked Haynes, how many lives had
to be saved to justify torture? Thousands?
Hundreds? Where do you draw the line? To decide
this question, shouldn’t there be a public debate?

Mora said he doubted that Guantánamo presented
such an urgent ethical scenario in any event,
since most of the detainees had been held there
for more than a year. He also warned Haynes that
the legal opinions the Administration was counting
on to protect itself might not withstand
scrutiny—such as the notion that Guantánamo was
beyond the reach of U.S. courts. (Mora was later
proved right: in June, 2004, the Supreme Court, in
Rasul v. Bush, ruled against the Administration’s
argument that detainees had no right to challenge
their imprisonment in American courts. That month,
in a related case, Justice Sandra Day O’Connor
declared that “a state of war is not a blank check
for the President.”)

Mora told Haynes that, if the Pentagon’s
theories of indemnity didn’t hold up in the
courts, criminal charges conceivably could be
filed against Administration officials. He added
that the interrogation policies could threaten
Rumsfeld’s tenure, and could even damage the
Presidency. “Protect your client!” he said.

Haynes, again, didn’t say much in response, but
soon afterward, at a meeting of top Pentagon
officials, he mentioned Mora’s concerns to
Secretary Rumsfeld. A former Administration
official told me that Rumsfeld was unconcerned; he
once more joked that he himself stood eight hours
a day, and exclaimed, “Torture? That’s not
torture!” (“His attitude was ‘What’s the big
deal?’ ” the former official said.) A subordinate
delicately pointed out to Rumsfeld that while he
often stood for hours it was because he chose to
do so, and he could sit down when he wanted.
Victoria Clarke, the Pentagon spokeswoman, also
argued that prisoner abuse was bad from a
public-relations perspective. (Clarke declined to
discuss her conversations with Administration
officials, other than to say that she regarded
Mora as “a very thoughtful guy, who I believed had
a lot of important things to say.”)

By mid-January, the situation at Guantánamo had
not changed. Qahtani’s “enhanced” interrogation,
as it was called in some documents, was in its
seventh week, and other detainees were also being
subjected to extreme treatment. Mora continued to
push for reform, but his former Pentagon colleague
told me that “people were beginning to roll their
eyes. It was like ‘Yeah, we’ve already heard
this.’ ”

On January 15th, Mora took a step guaranteed to
antagonize Haynes, who frequently warned
subordinates to put nothing controversial in
writing or in e-mail messages. Mora delivered an
unsigned draft memo to Haynes, and said that he
planned to “sign it out” that afternoon—making it
an official document—unless the harsh
interrogation techniques were suspended. Mora’s
draft memo described U.S. interrogations at
Guantánamo as “at a minimum cruel and unusual
treatment, and, at worst, torture.”

By the end of the day, Haynes called Mora with
good news. Rumsfeld was suspending his
authorization of the disputed interrogation
techniques. The Defense Secretary also was
authorizing a special “working group” of a few
dozen lawyers, from all branches of the armed
services, including Mora, to develop new
interrogation guidelines.

Mora, elated, went home to his wife and son,
with whom he had felt bound not to discuss his
battle. He and the other lawyers in the working
group began to meet and debated the
constitutionality and effectiveness of various
interrogation techniques. He felt, he later told
me, that “no one would ever learn about the best
thing I’d ever done in my life.”

A week later, Mora was shown a
lengthy classified document that negated almost
every argument he had made. Haynes had outflanked
him. He had solicited a separate, overarching
opinion from the Office of Legal Counsel, at the
Justice Department, on the legality of harsh
military interrogations—effectively superseding
the working group.

There was only one copy of the opinion, and it
was kept in the office of the Air Force’s general
counsel, Mary Walker, whom Rumsfeld had appointed
to head the working group. While Walker sat at her
desk, Mora looked at the document with mounting
disbelief; at first, he thought he had misread it.
There was no language prohibiting the cruel,
degrading, and inhuman treatment of detainees.
Mora told me that the opinion was sophisticated
but displayed “catastrophically poor legal
reasoning.” In his view, it approached the level
of the notorious Supreme Court decision in
Korematsu v. United States, in 1944, which upheld
the government’s internment of Japanese-Americans
during the Second World War.

The author of the opinion was John Yoo, a young
and unusually influential lawyer in the
Administration, who, like Haynes, was part of
Addington’s circle. (Yoo and Haynes were also
regular racquetball partners.) In the past, Yoo,
working closely with Addington, had helped to
formulate the argument that the treatment of Al
Qaeda and Taliban suspects, unlike that of all
other foreign enemies, was not covered by the
Geneva conventions; Yoo had also helped to write
the Torture Memo. Before joining the
Administration, Yoo, a graduate of Yale Law
School, had clerked for Justice Clarence Thomas
and taught law at Berkeley. Like many conservative
legal scholars, he was skeptical of international
law, and believed that liberal congressional
overreaction to the Vietnam War and Watergate had
weakened the Presidency, the C.I.A., and the
military. However, Yoo took these arguments
further than most. Constitutional scholars
generally agreed that the founders had
purposefully divided the power to wage war between
Congress and the executive branch; Yoo believed
that the President’s role as Commander-in-Chief
gave him virtually unlimited authority to decide
whether America should respond militarily to a
terror attack, and, if so, what kind of force to
use. “Those decisions, under our Constitution, are
for the President alone to make,” he wrote in a
law article.

A top Administration official told me that Yoo,
Addington, and a few other lawyers had essentially
“hijacked policy” after September 11th. “They
thought, Now we can put our views into practice.
We have the ability to write them into binding
law. It was just shocking. These memos were
presented as faits accomplis.”

In Yoo’s opinion, he wrote that at Guantánamo
cruel, inhumane, and degrading treatment of
detainees could be authorized, with few
restrictions.

“The memo espoused an extreme and virtually
unlimited theory of the extent of the President’s
Commander-in-Chief authority,” Mora wrote in his
account. Yoo’s opinion didn’t mention the most
important legal precedent defining the balance of
power between Congress and the President during
wartime, Youngstown Sheet & Tube Company v.
Sawyer. In that 1952 case, the Supreme Court
stopped President Truman from forcing the steel
worker’s union, which had declared a strike, to
continue producing steel needed in the Korean War.
The Court upheld congressional labor laws
protecting the right to strike, and ruled that the
President’s war powers were at their weakest when
they were challenging areas in which Congress had
passed legislation. Torture, Mora reasoned, had
been similarly regulated by Congress through
treaties it had ratified.

In an e-mail response to questions this month,
Yoo, who is now back at Berkeley, defended his
opinion. “The war on terrorism makes Youngstown
more complicated,” he said. “The majority opinion
explicitly said it was not considering the
President’s powers as Commander-in-Chief in the
theater of combat. The difficulty for Youngstown
created by the 9/11 attacks is that the theater of
combat now includes parts of the domestic United
States.” He also argued that Congress had ceded
power to the President in its authorization of
military force against the perpetrators of the
September 11th attacks.

Mora concluded that Yoo’s opinion was
“profoundly in error.” He wrote that it “was
clearly at variance with applicable law.” When we
spoke, he added, “If everything is permissible,
and almost nothing is prohibited, it makes a
mockery of the law.” A few days after reading
Yoo’s opinion, he sent an e-mail to Mary Walker,
saying that the document was not only
“fundamentally in error” but “dangerous,” because
it had the weight of law. When the Office of Legal
Counsel issues an opinion on a policy matter, it
typically requires the intervention of the
Attorney General or the President to reverse it.

Walker wrote back, “I disagree, and I believe
D.O.D. G.C.”—Haynes, the Pentagon’s general
counsel—“disagrees.”

On February 6th, Mora invited Yoo to his
office, in the Pentagon, to discuss the opinion.
Mora asked him, “Are you saying the President has
the authority to order torture?”

“Yes,” Yoo replied.

“I don’t think so,” Mora said.

“I’m not talking policy,” Yoo said. “I’m just
talking about the law.”

“Well, where are we going to have the policy
discussion, then?” Mora asked.

Mora wrote that Yoo replied that he didn’t
know; maybe, he suggested, it would take place
inside the Pentagon, where the defense-policy
experts were. (Yoo said that he recalled
discussing only how the policy issues should be
debated, and where. Torture, he said, was not an
option under consideration.)

But Mora knew that there would be no such
discussion; as the Administration saw it, the
question would be settled by Yoo’s opinion.
Indeed, Mora soon realized that, under the
supervision of Mary Walker, a draft working-group
report was being written to conform with Yoo’s
arguments. Mora wrote in his memo that
contributions from the working group “began to be
rejected if they did not conform to the
OLC”—Office of Legal Counsel—“guidance.”

The draft working-group report noted that the
Uniform Code of Military Justice barred
“maltreatment” but said, “Legal doctrine could
render specific conduct, otherwise criminal, not unlawful.” In an echo of
the Torture Memo, it also declared that
interrogators could be found guilty of torture
only if their “specific intent” was to inflict
“severe physical pain or suffering” as evidenced
by “prolonged mental harm.” Even then, it said,
echoing Yoo, the Commander-in-Chief could order
torture if it was a military necessity: “Congress
may no more regulate the President’s ability to
detain and interrogate enemy combatants than it
may regulate his ability to direct troop movements
on the battlefield.”

A few days after his meeting with Yoo, Mora
confronted Haynes again. He told him that the
draft working-group report was “deeply flawed.” It
should be locked in a drawer, he said, and “never
let out to see the light of day again.” He advised
Haynes not to allow Rumsfeld to approve it.

In the spring of 2003, Mora waited for the
final working-group report to emerge, planning to
file a strong dissent. But the report never
appeared. Mora assumed that the draft based on
Yoo’s ideas had not been finalized and that the
suspension of the harsh techniques authorized by
Rumsfeld was still in effect.

In June, press accounts asserted that the U.S.
was subjecting detainees to “stress and duress”
techniques, including beatings and food
deprivation. Senator Patrick Leahy, Democrat of
Vermont, wrote to Secretary of State Condoleezza
Rice, asking for a clear statement of the
Administration’s detainee policy. Haynes wrote a
letter back to Leahy, which was subsequently
released to the press, saying that the Pentagon’s
policy was never to engage in torture, or cruel,
inhumane, or degrading treatment—just the sort of
statement Mora had argued for. He wrote in his
memo that he saw Haynes’s letter as “the happy
culmination of the long debates in the Pentagon.”
He sent an appreciative note to Haynes, saying
that he was glad to be on his team.

On April 28, 2004, ten months
later, the first pictures from Abu Ghraib became
public. Mora said, “I felt saddened and dismayed.
Everything we had warned against in Guantánamo had
happened—but in a different setting. I was
stunned.”

He was further taken aback when he learned,
while watching Senate hearings on Abu Ghraib on
C-SPAN, that Rumsfeld
had signed the working-group report—the draft
based on Yoo’s opinion—a year earlier, without the
knowledge of Mora or any other internal legal
critics. Rumsfeld’s signature gave it the weight
of a military order. “This was the first I’d heard
of it!” Mora told me. Mora wrote that the Air
Force’s deputy general counsel, Daniel Ramos, told
him that the final working-group report had been
“briefed” to General Miller, the commander of
Guantánamo, and General James Hill, the head of
the Southern Command, months earlier. (The
Pentagon confirmed this, though it said that the
generals had not seen the full report.) “It was
astounding,” Mora said. “Obviously, it meant that
the working-group report hadn’t been abandoned,
and that some version of it had gotten into the
generals’ possession.”

The working-group report included a list of
thirty-five possible interrogation methods. On
April 16, 2003, the Pentagon issued a memorandum
to the U.S. Southern Command, approving
twenty-four of them for use at Guantánamo,
including isolation and what it called “fear up
harsh,” which meant “significantly increasing the
fear level in a detainee.” The Defense Department
official told me, “It should be noted that there
were strong advocates for the approval of the full
range of thirty-five techniques,” but Haynes was
not among them. The techniques not adopted
included nudity; the exploitation of “aversions,”
such as a fear of dogs; and slaps to the face and
stomach. However, combined with the legal
reasoning in the working-group report, the April
memorandum allowed the Secretary to approve
harsher methods.

Without Mora’s knowledge, the Pentagon had
pursued a secret detention policy. There was one
version, enunciated in Haynes’s letter to Leahy,
aimed at critics. And there was another, giving
the operations officers legal indemnity to engage
in cruel interrogations, and, when the
Commander-in-Chief deemed it necessary, in
torture. Legal critics within the Administration
had been allowed to think that they were engaged
in a meaningful process; but their deliberations
appeared to have been largely an academic
exercise, or, worse, a charade. “It seems that
there was a two-track program here,” said Martin
Lederman, a former lawyer with the Office of Legal
Counsel, who is now a visiting professor at
Georgetown. “Otherwise, why would they share the
final working-group report with Hill and Miller
but not with the lawyers who were its ostensible
authors?”

Lederman said that he regarded Mora as heroic
for raising crucial objections to the
Administration’s interrogation policy. But he
added that Mora was unrealistic if he thought
that, by offering legal warnings, he could
persuade the leaders of the Administration to
change its course. “It appears that they weren’t
asking to be warned,” Lederman said.

The senior Defense Department official defended
as an act of necessary caution the decision not to
inform Mora and other legal advisers of official
policy. The interrogation techniques authorized in
the signed report, he explained, were approved
only for Guantánamo, and the Pentagon needed to
prevent the practices from spreading to other
battlefronts. “If someone wants to criticize us
for being too careful, I accept that criticism
willingly, because we were doing what we could to
limit the focus of that report . . . to
Guantánamo,” the official said.

In fact, techniques that had been approved for
use at Guantánamo were quickly transferred
elsewhere. Four months after General Miller was
briefed on the working-group report, the Pentagon
sent him to Iraq, to advise officials there on
interrogating Iraqi detainees. Miller, who arrived
with a group of Guantánamo interrogators, known as
the Tiger Team, later supervised all U.S.-run
prisons in Iraq, including Abu Ghraib. And legal
advisers to General Ricardo Sanchez, the senior
U.S. commander in Iraq at the time, used the
report as a reference in determining the limits of
their interrogation authority, according to a
Pentagon report on Abu Ghraib.

A lawyer involved in the working group said
that the Pentagon’s contention that it couldn’t
risk sharing the report with its authors “doesn’t
make any sense.” He explained, “We’d seen
everything already.” The real reason for their
exclusion, he speculated, was to avoid dissent.
“It would have put them in a bind,” he said. “And
it would have created a paper trail.”

Meanwhile, Mora’s warnings about the legal
underpinnings of the working-group report proved
prophetic. In December, 2003, in an extraordinary
repudiation of the Administration’s own legal
work, the Office of Legal Counsel quietly withdrew
the Yoo opinion. The new head of the O.L.C., Jack
Goldsmith, a conservative legal scholar who now
teaches at Harvard Law School, told the Pentagon
that it could no longer rely on the legal
analysis. Among other problems, Goldsmith had
found Yoo’s interpretation of the President’s
powers overly broad. In March, 2005, the Pentagon
declared the working-group report a
non-operational “historical” document. By that
time, however, much of the most serious abuse at
Guantánamo had already occurred.

At the Pentagon in recent
weeks, officials portrayed Mora’s memo as ancient
history. They argued that they had acted quickly
to rectify the wrongs he helped expose, by
limiting the list of approved interrogation
techniques. But while Mora believes that the use
of cruel treatment in interrogation has
diminished, he feels that the fight to establish
clear, humane standards for the treatment of
detainees is not over. He also worries that the
Administration’s views on interrogation have
undermined American foreign policy, in part by
threatening the international coalition needed to
fight terrorism. Allied countries may not be able
to support U.S. military actions, he said, if
detainees are treated in a manner that most
nations deemed illegal.

Just a few months ago, Mora attended a meeting
in Rumsfeld’s private conference room at the
Pentagon, called by Gordon England, the Deputy
Defense Secretary, to discuss a proposed new
directive defining the military’s detention
policy. The civilian Secretaries of the Army, the
Air Force, and the Navy were present, along with
the highest-ranking officers of each service, and
some half-dozen military lawyers. Matthew Waxman,
the deputy assistant secretary of defense for
detainee affairs, had proposed making it official
Pentagon policy to treat detainees in accordance
with Common Article Three of the Geneva
conventions, which bars cruel, inhumane, and
degrading treatment, as well as outrages against
human dignity.Going around the huge wooden
conference table, where the officials sat in
double rows, England asked for a consensus on
whether the Pentagon should support Waxman’s
proposal.

This standard had been in effect for fifty
years, and all members of the U.S. armed services
were trained to follow it. One by one, the
military officers argued for returning the U.S. to
what they called the high ground. But two people
opposed it. One was Stephen Cambone, the
under-secretary of defense for intelligence; the
other was Haynes. They argued that the articulated
standard would limit America’s “flexibility.” It
also might expose Administration officials to
charges of war crimes: if Common Article Three
became the standard for treatment, then it might
become a crime to violate it. Their opposition was
enough to scuttle the proposal.

In exasperation, according to another
participant, Mora said that whether the Pentagon
enshrined it as official policy or not, the Geneva
conventions were already written into both U.S.
and international law. Any grave breach of them,
at home or abroad, was classified as a war crime.
To emphasize his position, he took out a copy of
the text of U.S. Code 18.2441, the War Crimes Act,
which forbids the violation of Common Article
Three, and read from it. The point, Mora told me,
was that “it’s a statute. It exists—we’re not free
to disregard it. We’re bound by it. It’s been
adopted by the Congress. And we’re not the only
interpreters of it. Other nations could have U.S.
officials arrested.”

Not long afterward, Waxman was summoned to a
meeting at the White House with David Addington.
Waxman declined to comment on the exchange, but,
according to the Times,
Addington berated him for arguing that the Geneva
conventions should set the standard for detainee
treatment. The U.S. needed maximum flexibility,
Addington said. Since then, efforts to clarify
U.S. detention policy have languished. In
December, Waxman left the Pentagon for the State
Department.

To date, no charges have been brought against
U.S. personnel in Guantánamo. The senior Defense
Department official I spoke to affirmed that, in
the Pentagon’s view, Qahtani’s interrogation was
“within the bounds.” Elsewhere in the world, as
Mora predicted, the controversy is growing. Last
week, the United Nations Human Rights Commission
called for the U.S. to shut down the detention
center at Guantánamo, where,it said, some
practices “must be assessed as amounting to
torture.” The U.N. report, which the White House
dismissed, described “the confusion with regard to
authorized and unauthorized interrogation
techniques” as “particularly alarming.”

Mora recently started a new job, as the general
counsel for Wal-Mart’s international operations. A
few days after his going-away party, he reflected
on his tenure at the Pentagon. He felt that he had
witnessed both a moral and a legal tragedy.

In Mora’s view, the Administration’s legal
response to September 11th was flawed from the
start, triggering a series of subsequent errors
that were all but impossible to correct. “The
determination that Geneva didn’t apply was a legal
and policy mistake,” he told me. “But very few
lawyers could argue to the contrary once the
decision had been made.”

Mora went on, “It seemed odd to me that the
actors weren’t more troubled by what they were
doing.” Many Administration lawyers, he said,
appeared to be unaware of history. “I wondered if
they were even familiar with the Nuremberg
trials—or with the laws of war, or with the Geneva
conventions. They cut many of the experts on those
areas out. The State Department wasn’t just on the
back of the bus—it was left off the bus.” Mora
understood that “people were afraid that more
9/11s would happen, so getting the information
became the overriding objective. But there was a
failure to look more broadly at the ramifications.

“These were enormously hardworking, patriotic
individuals,” he said. “When you put together the
pieces, it’s all so sad. To preserve flexibility,
they were willing to throw away our values.”

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