The New Yorker: Fact

THE MEMO

How an internal = effort to ban=20 the abuse and torture of detainees was=20 thwarted.

by JANE MAYER

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

One night this = January, in a=20 ceremony at the Officers=E2=80=99 Club at = Fort Myer, in=20 Arlington, Virginia, which sits on a hill = with a=20 commanding view across the Potomac River = to the=20 Washington Monument, Alberto J. Mora, the = outgoing=20 general counsel of the United States Navy, = stood=20 next to a podium in the club=E2=80=99s = ballroom. A=20 handsome gray-haired man in his = mid-fifties, he=20 listened with a mixture of embarrassment = and pride=20 as his colleagues toasted his impending = departure.=20 Amid the usual tributes were some more = pointed=20 comments.

=E2=80=9CNever has there been a counsel = with more=20 intellectual courage or personal = integrity,=E2=80=9D David=20 Brant, the former head of the Naval = Criminal=20 Investigative Service, said. Brant added = somewhat=20 cryptically, =E2=80=9CHe surprised us into = doing the right=20 thing.=E2=80=9D Conspicuous for his = silence that night was=20 Mora=E2=80=99s boss, William J. Haynes II, = the general=20 counsel of the Department of Defense.

Back in Haynes=E2=80=99s office, on the = third floor of=20 the Pentagon, there was a stack of papers=20 chronicling a private battle that Mora had = waged=20 against Haynes and other top = Administration=20 officials, challenging their tactics in = fighting=20 terrorism. Some of the documents are = classified=20 and, despite repeated requests from = members of the=20 Senate Armed Services Committee and the = Senate=20 Judiciary Committee, have not been = released. One=20 document, which is marked = =E2=80=9Csecret=E2=80=9D but is not=20 classified, is a twenty-two-page memo = written by=20 Mora. It shows that three years ago Mora = tried to=20 halt what he saw as a disastrous and = unlawful=20 policy of authorizing cruelty toward = terror=20 suspects.

The memo is a chronological account, = submitted=20 on July 7, 2004, to Vice Admiral Albert = Church,=20 who led a Pentagon investigation into = abuses at=20 the U.S. detention facility at = Guant=C3=A1namo Bay,=20 Cuba. It reveals that Mora=E2=80=99s = criticisms of=20 Administration policy were unequivocal,=20 wide-ranging, and persistent. Well before = the=20 exposure of prisoner abuse in = Iraq=E2=80=99s Abu Ghraib=20 prison, in April, 2004, Mora warned his = superiors=20 at the Pentagon about the consequences of=20 President Bush=E2=80=99s decision, in = February, 2002, to=20 circumvent the Geneva conventions, which = prohibit=20 both torture and =E2=80=9Coutrages upon = personal dignity,=20 in particular humiliating and degrading=20 treatment.=E2=80=9D He argued that a = refusal to outlaw=20 cruelty toward U.S.-held terrorist = suspects was an=20 implicit invitation to abuse. Mora also = challenged=20 the legal framework that the Bush = Administration=20 has constructed to justify an expansion of = executive power, in matters ranging from=20 interrogations to wiretapping. He = described as=20 =E2=80=9Cunlawful,=E2=80=9D = =E2=80=9Cdangerous,=E2=80=9D and =E2=80=9Cerroneous=E2=80=9D novel=20 legal theories granting the President the = right to=20 authorize abuse. Mora warned that these = precepts=20 could leave U.S. personnel open to = criminal=20 prosecution.

In important ways, Mora=E2=80=99s memo = is at odds with=20 the official White House narrative. In = 2002,=20 President Bush declared that detainees = should be=20 treated =E2=80=9Chumanely, and to the = extent appropriate=20 and consistent with military necessity, in = a=20 manner consistent with the = principles=E2=80=9D of the=20 Geneva conventions. The Administration has = articulated this standard many times. Last = month,=20 on January 12th, Secretary of Defense = Donald=20 Rumsfeld, responding to charges of abuse = at the=20 U.S. base in Cuba, told reporters, = =E2=80=9CWhat took=20 place at Guant=C3=A1namo is a matter of = public record=20 today, and the investigations turned up = nothing=20 that suggested that there was any policy = in the=20 department other than humane = treatment.=E2=80=9D A week=20 later, the White House press spokesman, = Scott=20 McClellan, was asked about a Human Rights = Watch=20 report that the Administration had made a=20 =E2=80=9Cdeliberate policy choice=E2=80=9D = to abuse detainees. He=20 answered that the organization had hurt = its=20 credibility by making unfounded = accusations. Top=20 Administration officials have stressed = that the=20 interrogation policy was reviewed and = sanctioned=20 by government lawyers; last November, = President=20 Bush said, =E2=80=9CAny activity we = conduct is within the=20 law. We do not torture.=E2=80=9D = Mora=E2=80=99s memo, however,=20 shows that almost from the start of the=20 Administration=E2=80=99s war on terror the = White House,=20 the Justice Department, and the Department = of=20 Defense, intent upon having greater = flexibility,=20 charted a legally questionable course = despite=20 sustained objections from some of its own = lawyers.=20

Mora had some victories. = =E2=80=9CAmerica has a lot to=20 thank him for,=E2=80=9D Brant, the former = head of the=20 N.C.I.S., told me. But those achievements = were=20 largely undermined by a small group of = lawyers=20 closely aligned with Vice-President = Cheney. In the=20 end, Mora was unable to overcome = formidable=20 resistance from several of the most = powerful=20 figures in the government.

Brant had joked at the farewell party = that Mora=20 =E2=80=9Cwas an incredible publicity = hound.=E2=80=9D In fact,=20 Mora=E2=80=94whose status in the Pentagon = was equivalent=20 to that of a four-star general=E2=80=94is = known for his=20 professional discretion, and he has = avoided the=20 press. This winter, however, he agreed to = confirm=20 the authenticity and accuracy of the memo = and to=20 be interviewed. A senior Defense = Department=20 official, whom the Bush Administration = made=20 available as a spokesman, on the condition = that=20 his name not be used, did so as well. Mora = and the=20 official both declined to elaborate on = internal=20 Department of Defense matters beyond those = addressed in the memo. Mora, a courtly and = warm=20 man, is a cautious, cerebral conservative = who=20 admired President Reagan and served in = both the=20 first and the second Bush Administrations = as a=20 political appointee. He strongly supported = the=20 Administration=E2=80=99s war on terror, = including the=20 invasion of Iraq, and he revered the Navy. = He=20 stressed that his only reason for = commenting at=20 all was his concern that the = Administration was=20 continuing to pursue a dangerous course. = =E2=80=9CIt=E2=80=99s my=20 Administration, too,=E2=80=9D he said. =

Mora first learned = about the=20 prob lem of detainee abuse on December 17, = 2002,=20 when David Brant approached him with = accusations=20 of wrongdoing at Guant=C3=A1namo. As head = of the Naval=20 Criminal Investigation Service, Brant = often=20 reported to Mora but hadn=E2=80=99t dealt = with him on=20 anything so sensitive. =E2=80=9CI = wasn=E2=80=99t sure how he would=20 react,=E2=80=9D Brant, a tall, thin man = with a mustache,=20 told me. Brant had already conveyed the=20 allegations to Army leaders, since they = had=20 command authority over the military = interrogators,=20 and to the Air Force, but he said that = nobody=20 seemed to care. He therefore = wasn=E2=80=99t hopeful when=20 he went to Mora=E2=80=99s office that = afternoon.

When we spoke, Mora recalled the mood = at the=20 Pentagon at the time, just fifteen months = after=20 the September 11th attacks. =E2=80=9CThe = mentality was=20 that we lost three thousand Americans, and = we=20 could lose a lot more unless something was = done,=E2=80=9D=20 he said. =E2=80=9CIt was believed that = some of the=20 Guant=C3=A1namo detainees had knowledge of = other=20 9/11-like operations that were under way, = or would=20 be executed in the future. The gloves had = to come=20 off. The U.S. had to get tougher.=E2=80=9D = Mora had been=20 inside the Pentagon on September 11th and = recalled=20 the jetliner crashing into the building = one facet=20 over. He said that it =E2=80=9Cfelt = jarring, like a large=20 safe had been dropped overhead.=E2=80=9D = From the parking=20 lot, he watched the Pentagon burn. The = next day,=20 he said, he looked around a room full of = top=20 military leaders, and was struck by the = thought=20 that =E2=80=9Cthese guys were going to be = the tip of the=20 spear.=E2=80=9D

Brant oversaw a team of N.C.I.S. agents = working=20 with the F.B.I. at Guant=C3=A1namo Bay, in = what was=20 called the Criminal Investigative Task = Force. It=20 had been assigned to elicit incriminating=20 information from the nearly six hundred = detainees=20 being held there. Unlike a group run by = Army=20 intelligence, Joint Task Force 170, or = J.T.F.-170,=20 which was looking for intelligence that = would help=20 American authorities determine Al = Qaeda=E2=80=99s next=20 move, Brant=E2=80=99s investigators = gathered evidence that=20 eventually could be used for prosecutions = in=20 military tribunals or civilian courts. He = and his=20 agents had experience and training in law=20 enforcement: Brant, a civilian, holds an = advanced=20 degree in criminology, and worked as a = policeman=20 in Miami in the nineteen-seventies.

Brant informed Mora that he was = disturbed by=20 what his agents told him about the conduct = of=20 military-intelligence interrogators at = Guant=C3=A1namo.=20 These officials seemed poorly trained, = Brant said,=20 and were frustrated by their lack of = success. He=20 had been told that the interrogators were = engaging=20 in escalating levels of physical and = psychological=20 abuse. Speaking of the tactics that he had = heard=20 about, Brant told me, =E2=80=9CRepugnant = would be a good=20 term to describe them.=E2=80=9D

Much of Brant=E2=80=99s information had = been supplied=20 by an N.C.I.S. psychologist, Michael = Gelles, who=20 worked with the C.I.T.F. and had computer = access=20 to the Army=E2=80=99s interrogation logs = at Guant=C3=A1namo.=20 Brant told me that Gelles =E2=80=9Cis = phenomenal at=20 unlocking the minds of everyone from child = abusers=20 to terrorists=E2=80=9D; he took it = seriously when Gelles=20 described the logs as shocking.

The logs detailed, for example, the = brutal=20 handling of a Saudi detainee, Mohammed = al-Qahtani,=20 whom an F.B.I. agent had identified as the = =E2=80=9Cmissing twentieth = hijacker=E2=80=9D=E2=80=94the terrorist who was=20 supposed to have been booked on the plane = that=20 crashed in a Pennsylvania field. Qahtani = was=20 apprehended in Afghanistan a few months = after the=20 terrorist attacks.

Qahtani had been subjected to a hundred = and=20 sixty days of isolation in a pen = perpetually=20 flooded with artificial light. He was = interrogated=20 on forty-eight of fifty-four days, for = eighteen to=20 twenty hours at a stretch. He had been = stripped=20 naked; straddled by taunting female = guards, in an=20 exercise called =E2=80=9Cinvasion of space = by a female=E2=80=9D;=20 forced to wear women=E2=80=99s underwear = on his head, and=20 to put on a bra; threatened by dogs; = placed on a=20 leash; and told that his mother was a = whore. By=20 December, Qahtani had been subjected to a = phony=20 kidnapping, deprived of heat, given large=20 quantities of intravenous liquids without = access=20 to a toilet, and deprived of sleep for = three days.=20 Ten days before Brant and Mora met, = Qahtani=E2=80=99s=20 heart rate had dropped so precipitately, = to=20 thirty-five beats a minute, that he = required=20 cardiac monitoring.

Brant told me that he had gone to Mora = because=20 he didn=E2=80=99t want his team of = investigators to =E2=80=9Cin=20 any way observe, condone, or participate = in any=20 level of physical or in-depth = psychological abuse.=20 No slapping, deprivation of water, heat, = dogs,=20 psychological abuse. It was pretty basic, = black=20 and white to me.=E2=80=9D He went on, = =E2=80=9CI didn=E2=80=99t know or=20 care what the rules were that had been set = by the=20 Department of Defense at that point. We = were going=20 to do what was morally, ethically, and = legally=20 permissible.=E2=80=9D Recently = declassified e-mails and=20 orders obtained by the American Civil = Liberties=20 Union document Brant=E2=80=99s position, = showing that all=20 C.I.T.F. personnel were ordered to = =E2=80=9Cstand clear=20 and report=E2=80=9D any abusive = interrogation tactics.

Brant thinks that the Army=E2=80=99s = interrogation of=20 Qahtani was unlawful. If an N.C.I.S. agent = had=20 engaged in such abuse, he said, = =E2=80=9Cwe would have=20 relieved, removed, and taken internal = disciplinary=20 action against the individual=E2=80=94let = alone whether=20 outside charges would have been = brought.=E2=80=9D Brant=20 said he feared that such methods would = taint the=20 cases his agents needed to make against = the=20 detainees, undermining any attempts to = prosecute=20 them in a court of law. He also doubted = the=20 reliability of forced confessions. = Moreover, he=20 told me, =E2=80=9Cit just ain=E2=80=99t = right.=E2=80=9D

Another military official, who worked = closely=20 with Brant and who has been denied = permission to=20 speak on the record, told me that the news = =E2=80=9Crocked=E2=80=9D Mora. The = official added that Mora =E2=80=9Cwas=20 visionary about this. He quickly grasped = the fact=20 that these techniques in the hands of = people with=20 this little training spelled = disaster.=E2=80=9D

In his memo, Mora noted that Brant = asked him if=20 he wanted to hear more about the = situation. He=20 wrote, =E2=80=9CI responded that I felt I = had to.=E2=80=9D=20

Mora was a well-liked = and=20 successful figure at the Pentagon. Born in = Boston=20 in 1952, he is the son of a Hungarian = mother,=20 Klara, and a Cuban father, Lidio, both of = whom=20 left behind Communist regimes for America. = Klara=E2=80=99s=20 father, who had been a lawyer in Hungary, = joined=20 her in exile just before the Soviet Union = took=20 control. From the time Alberto was a small = boy,=20 Klara Mora told me, he heard from his = grandfather=20 the message that =E2=80=9Cthe law is = sacred.=E2=80=9D For the=20 Moras, injustice and abuse were not merely = theoretical concepts. One of = Mora=E2=80=99s great-uncles=20 had been interned in a Nazi concentration = camp,=20 and another was hanged after having been = tortured.=20 Mora=E2=80=99s first memory, as a young = child, is of=20 playing on the floor in his = mother=E2=80=99s bedroom, and=20 watching her crying as she listened to a = report on=20 the radio declaring that the 1956 = anti-Communist=20 uprising in Hungary had been crushed. = =E2=80=9CPeople who=20 went through things like this tend to have = very=20 strong views about the rule of law,=20 totalitarianism, and America,=E2=80=9D = Mora said.

At the time, Mora=E2=80=99s family was = living in Cuba.=20 His father, a Harvard-trained physician, = had taken=20 his wife and infant son back in 1952. When = Castro=20 seized power, seven years later, the = family barely=20 escaped detention after a servant informed = the=20 authorities that they planned to flee to = America.=20 In the ensuing panic, Alberto obtained an=20 emergency passport from the American = Embassy in=20 Havana. =E2=80=9CThis was my first brush = with the=20 government,=E2=80=9D he said. = =E2=80=9CWhen I swore an oath of=20 allegiance to the American government, = part of the=20 oath involved taking up arms to defend the = country. And I was thinking, This is a = serious=20 thing for me to be an eight-year-old boy, = raising=20 my hand before the American vice-consul = and taking=20 the oath of allegiance.=E2=80=9D Cuban = customs officials,=20 seeing Alberto=E2=80=99s American = passport, threatened not=20 to let him board a ship. At the last = minute, one=20 of his father=E2=80=99s colleagues, who = had been put in=20 charge of the port, allowed = Alberto=E2=80=99s emigration.=20

Mora=E2=80=99s family settled in = Jackson, Mississippi,=20 where his father taught at the state = medical=20 school and Mora attended a Catholic = school. For=20 the most part, Jackson was =E2=80=9Ca = wonderful place,=E2=80=9D=20 Mora recalled, although it was also = =E2=80=9Cvery=20 conservative.=E2=80=9D Racism was rampant = and everyone,=20 including Mora, backed Barry Goldwater in = the 1964=20 election. Mora had never met anyone who = opposed=20 the Vietnam War until he enrolled at = Swarthmore=20 College, a school that he chose after = reading an=20 S.A.T.-preparation booklet that described = it as=20 small and especially rigorous. He also had = never=20 met a feminist before going to hear Kate = Millett=20 speak at Bryn Mawr, during his freshman = year; her=20 talk infuriated him. After growing up in = the South=20 among friends who played sports, drank = beer, and=20 had a good time, he found the Northeastern = liberal=20 =C3=A9lite curiously = =E2=80=9Cnerdish.=E2=80=9D The girls had thrown=20 away their skirts=E2=80=94if = they=E2=80=99d ever had them, he=20 joked=E2=80=94and there were no parties. = Yet he loved the=20 intellectual environment. =E2=80=9CYou = just had these=20 intense discussions,=E2=80=9D he recalled. = =E2=80=9CI revelled in=20 it.=E2=80=9D Mora said that he was the = only person among=20 his friends who wasn=E2=80=99t a = conscientious objector to=20 the war.

Mora graduated in 1974 with honors, and = joined=20 the State Department, working in Portugal; = in=20 1979, he entered law school in Miami. = Finding=20 litigation work more =E2=80=9Ca living = than a life,=E2=80=9D Mora=20 said, he was happy to get an appointment = as=20 general counsel of the U.S. Information = Agency in=20 the first Bush Administration. During the = Clinton=20 years, he was appointed to a Republican = seat on=20 the Broadcasting Board of Governors, where = he was=20 an advocate for Radio Mart=C3=AD, the = American news=20 operation aimed at Cuba. He also practiced = international law in several private = firms. When=20 George W. Bush was elected, = Mora=E2=80=94with the backing=20 of former Defense Secretary Frank = Carlucci, whom=20 he had befriended in Portugal=E2=80=94was = appointed=20 general counsel of the Navy. He expected = to spend=20 most of his time there streamlining the = budget.=20

The day after = Mora=E2=80=99s first=20 meeting with Brant, they met again, and = Brant=20 showed him parts of the transcript of = Qahtani=E2=80=99s=20 interrogation. Mora was shocked when Brant = told=20 him that the abuse wasn=E2=80=99t = =E2=80=9Crogue activity=E2=80=9D but was=20 =E2=80=9Crumored to have been authorized = at a high level=20 in Washington.=E2=80=9D The mood in the = room, Mora wrote,=20 was one of =E2=80=9Cdismay.=E2=80=9D He = added, =E2=80=9CI was under the=20 opinion that the interrogation activities=20 described would be unlawful and unworthy = of the=20 military services.=E2=80=9D Mora told me, = =E2=80=9CI was appalled=20 by the whole thing. It was clearly = abusive, and it=20 was clearly contrary to everything we were = ever=20 taught about American values.=E2=80=9D =

Mora thinks that the media has focussed = too=20 narrowly on allegations of U.S.-sanctioned = torture. As he sees it, the authorization = of=20 cruelty is equally pernicious. =E2=80=9CTo = my mind,=20 there=E2=80=99s no moral or practical = distinction,=E2=80=9D he=20 told me. =E2=80=9CIf cruelty is no longer = declared=20 unlawful, but instead is applied as a = matter of=20 policy, it alters the fundamental = relationship of=20 man to government. It destroys the whole = notion of=20 individual rights. The Constitution = recognizes=20 that man has an inherent right, not = bestowed by=20 the state or laws, to personal dignity, = including=20 the right to be free of cruelty. It = applies to all=20 human beings, not just in = America=E2=80=94even those=20 designated as =E2=80=98unlawful enemy = combatants.=E2=80=99 If you=20 make this exception, the whole = Constitution=20 crumbles. It=E2=80=99s a transformative = issue.=E2=80=9D

Mora said that he did not fear reprisal = for=20 stating his opposition to the = Administration=E2=80=99s=20 emerging policy. =E2=80=9CIt never crossed = my mind,=E2=80=9D he=20 said. =E2=80=9CBesides, my mother would = have killed me if=20 I hadn=E2=80=99t spoken up. No Hungarian = after Communism,=20 or Cuban after Castro, is not aware that = human=20 rights are incompatible with = cruelty.=E2=80=9D He added,=20 =E2=80=9CThe debate here isn=E2=80=99t = only how to protect the=20 country. It=E2=80=99s how to protect our = values.=E2=80=9D

After the second meeting with Brant, = Mora=20 called his friend Steven Morello, the = general=20 counsel of the Army, and asked him if he = knew=20 anything about the abuse of prisoners at=20 Guant=C3=A1namo. Mora said that Morello = answered, =E2=80=9CI=20 know a lot about it. Come on = down.=E2=80=9D

In Morello=E2=80=99s office, Mora saw = what he now=20 refers to as =E2=80=9Cthe = package=E2=80=9D=E2=80=94a collection of secret=20 military documents that traced the origins = of the=20 coercive interrogation policy at = Guant=C3=A1namo. It=20 began on October 11, 2002, with a request = by=20 J.T.F.-170=E2=80=99s commander, Major = General Michael=20 Dunlavey, to make interrogations more = aggressive.=20 A few weeks later, Major General Geoffrey = Miller=20 assumed command of Guant=C3=A1namo Bay, = and, on the=20 assumption that prisoners like Qahtani had = been=20 trained by Al Qaeda to resist questioning, = he=20 pushed his superiors hard for more = flexibility in=20 interrogations. On December 2nd, Secretary = of=20 Defense Rumsfeld gave formal approval for = the use=20 of =E2=80=9Chooding,=E2=80=9D = =E2=80=9Cexploitation of phobias,=E2=80=9D =E2=80=9Cstress=20 positions,=E2=80=9D =E2=80=9Cdeprivation = of light and auditory=20 stimuli,=E2=80=9D and other coercive = tactics ordinarily=20 forbidden by the Army Field Manual. = (However, he=20 reserved judgment on other methods, = including=20 =E2=80=9Cwaterboarding,=E2=80=9D a form of = simulated drowning.) In=20 Mora=E2=80=99s memo, Morello is quoted as = saying that =E2=80=9Cwe=20 tried to stop it.=E2=80=9D But he was told = not to ask=20 questions.

According to a participant in the = meeting, Mora=20 was =E2=80=9Cashen-faced=E2=80=9D when he = read the package. The=20 documents included a legal analysis, also = dated=20 October 11th, by Lieutenant Colonel Diane = Beaver,=20 who was then the top legal adviser to = J.T.F.-170.=20 She noted that some of the more brutal=20 =E2=80=9Ccounter-resistance=E2=80=9D = techniques under=20 consideration at Guant=C3=A1namo, such as = waterboarding=20 (for which soldiers had been = court-martialled in=20 earlier conflicts), might present legal = problems.=20 She acknowledged that American military = personnel=20 at Guant=C3=A1namo, as everywhere else in = the world,=20 were bound by the Uniform Code of Military = Justice, which characterizes = =E2=80=9Ccruelty,=E2=80=9D=20 =E2=80=9Cmaltreatment,=E2=80=9D = =E2=80=9Cthreats,=E2=80=9D and =E2=80=9Cassault=E2=80=9D as=20 felonies. Beaver reasoned, however, that = U.S.=20 soldiers preparing to violate these laws = in their=20 interrogations might be able to obtain=20 =E2=80=9Cpermission, or immunity=E2=80=9D = from higher authorities=20 =E2=80=9Cin advance.=E2=80=9D

The senior Defense Department official=20 designated to speak for the Administration = acknowledged that Beaver=E2=80=99s legal = argument was=20 inventive. =E2=80=9CNormally, you grant = immunity after the=20 fact, to someone who has already committed = a=20 crime, in exchange for an order to get = that person=20 to testify,=E2=80=9D he said. =E2=80=9CI = don=E2=80=99t know whether we=E2=80=99ve=20 ever faced the question of immunity in = advance=20 before.=E2=80=9D Nevertheless, the = official praised Beaver=20 =E2=80=9Cfor trying to think outside the = box. I would=20 credit Diane as raising that as a way to = think=20 about it.=E2=80=9D (Beaver was later = promoted to the staff=20 of the Pentagon=E2=80=99s Office of = General Counsel, where=20 she specializes in detainee issues.)

Mora was less impressed. = Beaver=E2=80=99s brief, his=20 memo says, =E2=80=9Cwas a wholly = inadequate analysis of=20 the law.=E2=80=9D It held that = =E2=80=9Ccruel, inhuman, or=20 degrading treatment could be inflicted on = the=20 Guant=C3=A1namo detainees with near = impunity=E2=80=9D; in his=20 view, such acts were unlawful. = Rumsfeld=E2=80=99s December=20 2nd memo approving these = =E2=80=9Ccounter-resistance=E2=80=9D=20 techniques, Mora wrote, =E2=80=9Cwas = fatally grounded on=20 these serious failures of legal = analysis.=E2=80=9D Neither=20 Beaver nor Rumsfeld drew any = =E2=80=9Cbright line=E2=80=9D=20 prohibiting the combination of these = techniques,=20 or defining any limits for their use. He = believed=20 that such rhetorical laxity =E2=80=9Ccould = produce effects=20 reaching the level of torture,=E2=80=9D = which was=20 prohibited, without exception, under both = U.S. and=20 international law. Mora took his concerns = to=20 Gordon England, the Secretary of the Navy, = who is=20 now the Deputy Secretary of Defense. Then, = on=20 December 20th, with England=E2=80=99s = authorization, Mora=20 went to William Haynes, the = Pentagon=E2=80=99s general=20 counsel; they met in Haynes=E2=80=99s = office, an elegant=20 suite behind vault-like metal doors.

In confronting Haynes, Mora was = engaging not=20 just the Pentagon but also the = Vice-President=E2=80=99s=20 office. Haynes is a prot=C3=A9g=C3=A9 of = Cheney=E2=80=99s=20 influential chief of staff, David = Addington.=20 Addington=E2=80=99s relationship with = Cheney goes back to=20 the Reagan years, when Cheney, who was = then a=20 representative from Wyoming, was the = ranking=20 Republican on a House select committee=20 investigating the Iran-Contra scandal. = Addington,=20 a congressional aide, helped to write a = report for=20 the committee=E2=80=99s Republican = minority, arguing that=20 the law banning covert aid to the = Contras=E2=80=94the=20 heart of the scandal=E2=80=94was an = unconstitutional=20 infringement of Presidential prerogatives. = Both=20 men continue to embrace an extraordinarily = expansive view of executive power. In = 1989, when=20 Cheney was named Secretary of Defense by = George H.=20 W. Bush, he hired Addington as a special=20 assistant, and eventually appointed him to = be his=20 general counsel. Addington, in turn, hired = Haynes=20 as his special assistant and soon promoted = him to=20 general counsel of the Army.

After George W. Bush took office, = Addington=20 came to the White House with Cheney, and = Haynes=20 took his boss=E2=80=99s old job at the = Pentagon. Addington=20 has played a central part in virtually all = of the=20 Administration=E2=80=99s legal strategies, = including=20 interrogation and detainee policies. The = office of=20 the Vice-President has no statutory role = in the=20 military chain of command. But = Addington=E2=80=99s=20 tenacity, willingness to work long hours, = and=20 unalloyed support from Cheney made him, in = the=20 words of another former Bush White House=20 appointee, =E2=80=9Cthe best infighter in = the=20 Administration.=E2=80=9D One former = government lawyer=20 described him as =E2=80=9Cthe = Octopus=E2=80=9D=E2=80=94his hands seemed to=20 reach into every legal issue.

Haynes rarely discussed his alliance = with=20 Cheney=E2=80=99s office, but his = colleagues, as one of=20 them told me, noticed that =E2=80=9Cstuff = moved back and=20 forth fast=E2=80=9D between the two power = centers. Haynes=20 was not considered to be a particularly=20 ideological thinker, but he was seen as = =E2=80=9Cpliant,=E2=80=9D=20 as one former Pentagon colleague put it, = when it=20 came to serving the agenda of Cheney and=20 Addington. In October, 2002, almost three = months=20 before his meeting with Mora, Haynes gave = a speech=20 at the conservative Federalist Society,=20 disparaging critics who accused the = Pentagon of=20 mistreating detainees. A year later, = President=20 Bush nominated him to the federal appeals = court in=20 Virginia. His nomination is one of several = that=20 have been put on hold by Senate Democrats. =

In his meeting with Haynes, Mora told = me, he=20 said that, whatever its intent, what = Rumsfeld=E2=80=99s=20 memo permitted was = =E2=80=9Ctorture.=E2=80=9D

According to Mora, Haynes replied, = =E2=80=9CNo, it=20 isn=E2=80=99t.=E2=80=9D

Mora asked Haynes to think about the = techniques=20 more carefully. What did = =E2=80=9Cdeprivation of light and=20 auditory stimuli=E2=80=9D mean? Could a = prisoner be locked=20 in a completely dark cell? If so, could he = be kept=20 there for a month? Longer? Until he went = blind?=20 What, precisely, did the authority to = exploit=20 phobias permit? Could a detainee be held = in a=20 coffin? What about using dogs? Rats? How = far could=20 an interrogator push this? Until a man = went=20 insane?

Mora drew Haynes=E2=80=99s attention to = a comment that=20 Rumsfeld had added to the bottom of his = December=20 2nd memo, in which he asked why detainees = could be=20 forced to stand for only four hours a day, = when he=20 himself often stood =E2=80=9Cfor 8-10 = hours a day.=E2=80=9D Mora=20 said that he understood that the comment = was meant=20 to be jocular. But he feared that it could = become=20 an argument for the defense in any = prosecution of=20 terror suspects. It also could be read as=20 encouragement to disregard the limits = established=20 in the memo. (Colonel Lawrence Wilkerson, = a=20 retired military officer who was a chief = of staff=20 to former Secretary of State Colin Powell, = had a=20 similar reaction when he saw = Rumsfeld=E2=80=99s scrawled=20 aside. =E2=80=9CIt said, =E2=80=98Carte = blanche, guys,=E2=80=99 =E2=80=9D=20 Wilkerson told me. =E2=80=9CThat=E2=80=99s = what started them down=20 the slope. You=E2=80=99ll have My Lais = then. Once you pull=20 this thread, the whole fabric = unravels.=E2=80=9D)

Haynes said little during the meeting = with=20 Mora, but Mora left the room certain that = Haynes=20 would realize he had been too hasty, and = would get=20 Rumsfeld to revoke the inflammatory = December 2nd=20 memo. Mora told me, =E2=80=9CMy feeling = was it was just a=20 blunder.=E2=80=9D The next day, he left = Washington for a=20 two-week Christmas holiday.

The authorization of = harsh=20 interrogation methods which Mora had seen = was no=20 aberration. Almost immediately after = September=20 11th, the Administration had decided that=20 protecting the country required = extraordinary=20 measures, including the exercise of = executive=20 powers exceeding domestic and = international norms.=20 In January, 2002, Alberto Gonzales, then = the White=20 House counsel (he is now the Attorney = General),=20 sent a memo to President Bush arguing for = a =E2=80=9Cnew=20 paradigm=E2=80=9D of interrogation, = declaring that the war=20 on terror =E2=80=9Crenders = obsolete=E2=80=9D the =E2=80=9Cstrict=20 limitations on questioning of enemy = prisoners=E2=80=9D=20 required by the Geneva conventions, which = were=20 ratified by the United States in 1955. = That=20 August, the Justice Department=E2=80=99s = Office of Legal=20 Counsel, which acts as an in-house law = firm for=20 the executive branch, issued a memo = secretly=20 authorizing the C.I.A. to inflict pain and = suffering on detainees during = interrogations, up=20 to the level caused by =E2=80=9Corgan = failure.=E2=80=9D This=20 document, now widely known as the Torture = Memo,=20 which Addington helped to draft, also = advised=20 that, under the doctrine of = =E2=80=9Cnecessity,=E2=80=9D the=20 President could supersede national and=20 international laws prohibiting torture. = (The=20 document was leaked to the press in 2004, = after=20 the Abu Ghraib scandal broke.)

Lawrence Wilkerson, whom Powell = assigned to=20 monitor this unorthodox policymaking = process, told=20 NPR last fall of =E2=80=9Can audit trail = that ran from the=20 Vice-President=E2=80=99s office and the = Secretary of=20 Defense down through the commanders in the = field.=E2=80=9D=20 When I spoke to him recently, he said, = =E2=80=9CI saw what=20 was discussed. I saw it in spades. From = Addington=20 to the other lawyers at the White House. = They said=20 the President of the United States can do = what he=20 damn well pleases. People were arguing for = a new=20 interpretation of the Constitution. It = negates=20 Article One, Section Eight, that lays out = all of=20 the powers of Congress, including the = right to=20 declare war, raise militias, make laws, = and=20 oversee the common defense of the = nation.=E2=80=9D=20 Cheney=E2=80=99s view, Wilkerson = suggested, was fuelled by=20 his desire to achieve a state of = =E2=80=9Cperfect=20 security.=E2=80=9D He said, =E2=80=9CI = can=E2=80=99t fault the man for=20 wanting to keep America safe, but = he=E2=80=99ll corrupt=20 the whole country to save it.=E2=80=9D = (Wilkerson left the=20 State Department with Powell, in January,=20 2005.)

At the time, the = Administration=E2=80=99s embrace of=20 interrogation measures normally proscribed = by the=20 Army Field Manual remained largely unknown = to the=20 public. But while Mora was on Christmas = vacation,=20 the Washington Post=20 published a story, by Dana Priest and = Barton=20 Gellman, alleging that C.I.A. personnel = were=20 mistreating prisoners at the Bagram = military base,=20 in Afghanistan. Kenneth Roth, the director = of=20 Human Rights Watch, warned that if this = was true=20 U.S. officials who knew about it could be=20 criminally liable, under the doctrine of = command=20 responsibility. The specific allegations = closely=20 paralleled what Mora had seen authorized = at=20 Guant=C3=A1namo.

Upon returning to work on January 6, = 2003, Mora=20 was alarmed to learn from Brant that the = abuse at=20 Guant=C3=A1namo had not stopped. In fact, = as Time reported last = year,=20 Qahtani had been stripped and shaved and = told to=20 bark like a dog. He=E2=80=99d been forced = to listen to pop=20 music at an ear-splitting volume, deprived = of=20 sleep, and kept in a painfully cold room. = Between=20 confessing to and then recanting various = terrorist=20 plots, he had begged to be allowed to = commit=20 suicide.

Mora suspected that such abuse was a = deliberate=20 policy, and widened his internal campaign = in the=20 hope of building a constituency against = it. In the=20 next few days, his arguments reached many = of the=20 Pentagon=E2=80=99s top figures: Deputy = Secretary of=20 Defense Paul Wolfowitz; Captain Jane = Dalton, the=20 legal adviser to the Joint Chiefs of = Staff;=20 Victoria Clarke, who was then the Pentagon = spokeswoman; and Rumsfeld.

Meanwhile, on January 9, 2003, Mora had = a=20 second meeting with Haynes. According to = Mora=E2=80=99s=20 memo, when he told him how disappointed he = was=20 that nothing had been done to end the = abuse at=20 Guant=C3=A1namo, Haynes explained that = =E2=80=9CU.S. officials=20 believed the techniques were necessary to = obtain=20 information,=E2=80=9D and that the = interrogations might=20 prevent future attacks against the U.S. = and save=20 American lives. Mora acknowledged that he = could=20 imagine =E2=80=9Cticking bomb=E2=80=9D = scenarios, in which it=20 might be moral=E2=80=94though still not = legal=E2=80=94to torture a=20 suspect. But, he asked Haynes, how many = lives had=20 to be saved to justify torture? Thousands? = Hundreds? Where do you draw the line? To = decide=20 this question, shouldn=E2=80=99t there be = a public debate?=20

Mora said he doubted that = Guant=C3=A1namo presented=20 such an urgent ethical scenario in any = event,=20 since most of the detainees had been held = there=20 for more than a year. He also warned = Haynes that=20 the legal opinions the Administration was = counting=20 on to protect itself might not withstand=20 scrutiny=E2=80=94such as the notion that = Guant=C3=A1namo was=20 beyond the reach of U.S. courts. (Mora was = later=20 proved right: in June, 2004, the Supreme = Court, in=20 Rasul v. Bush, ruled against the = Administration=E2=80=99s=20 argument that detainees had no right to = challenge=20 their imprisonment in American courts. = That month,=20 in a related case, Justice Sandra Day = O=E2=80=99Connor=20 declared that =E2=80=9Ca state of war is = not a blank check=20 for the President.=E2=80=9D)

Mora told Haynes that, if the = Pentagon=E2=80=99s=20 theories of indemnity didn=E2=80=99t hold = up in the=20 courts, criminal charges conceivably could = be=20 filed against Administration officials. He = added=20 that the interrogation policies could = threaten=20 Rumsfeld=E2=80=99s tenure, and could even = damage the=20 Presidency. =E2=80=9CProtect your = client!=E2=80=9D he said.

Haynes, again, didn=E2=80=99t say much = in response, but=20 soon afterward, at a meeting of top = Pentagon=20 officials, he mentioned Mora=E2=80=99s = concerns to=20 Secretary Rumsfeld. A former = Administration=20 official told me that Rumsfeld was = unconcerned; he=20 once more joked that he himself stood = eight hours=20 a day, and exclaimed, =E2=80=9CTorture? = That=E2=80=99s not=20 torture!=E2=80=9D (=E2=80=9CHis attitude = was =E2=80=98What=E2=80=99s the big=20 deal?=E2=80=99 =E2=80=9D the former = official said.) A subordinate=20 delicately pointed out to Rumsfeld that = while he=20 often stood for hours it was because he = chose to=20 do so, and he could sit down when he = wanted.=20 Victoria Clarke, the Pentagon spokeswoman, = also=20 argued that prisoner abuse was bad from a=20 public-relations perspective. (Clarke = declined to=20 discuss her conversations with = Administration=20 officials, other than to say that she = regarded=20 Mora as =E2=80=9Ca very thoughtful guy, = who I believed had=20 a lot of important things to = say.=E2=80=9D)

By mid-January, the situation at = Guant=C3=A1namo had=20 not changed. Qahtani=E2=80=99s = =E2=80=9Cenhanced=E2=80=9D interrogation,=20 as it was called in some documents, was in = its=20 seventh week, and other detainees were = also being=20 subjected to extreme treatment. Mora = continued to=20 push for reform, but his former Pentagon = colleague=20 told me that =E2=80=9Cpeople were = beginning to roll their=20 eyes. It was like =E2=80=98Yeah, = we=E2=80=99ve already heard=20 this.=E2=80=99 =E2=80=9D

On January 15th, Mora took a step = guaranteed to=20 antagonize Haynes, who frequently warned=20 subordinates to put nothing controversial = in=20 writing or in e-mail messages. Mora = delivered an=20 unsigned draft memo to Haynes, and said = that he=20 planned to =E2=80=9Csign it out=E2=80=9D = that afternoon=E2=80=94making it=20 an official document=E2=80=94unless the = harsh=20 interrogation techniques were suspended. = Mora=E2=80=99s=20 draft memo described U.S. interrogations = at=20 Guant=C3=A1namo as =E2=80=9Cat a minimum = cruel and unusual=20 treatment, and, at worst, = torture.=E2=80=9D

By the end of the day, Haynes called = Mora with=20 good news. Rumsfeld was suspending his=20 authorization of the disputed = interrogation=20 techniques. The Defense Secretary also was = authorizing a special =E2=80=9Cworking = group=E2=80=9D of a few=20 dozen lawyers, from all branches of the = armed=20 services, including Mora, to develop new=20 interrogation guidelines.

Mora, elated, went home to his wife and = son,=20 with whom he had felt bound not to discuss = his=20 battle. He and the other lawyers in the = working=20 group began to meet and debated the=20 constitutionality and effectiveness of = various=20 interrogation techniques. He felt, he = later told=20 me, that =E2=80=9Cno one would ever learn = about the best=20 thing I=E2=80=99d ever done in my = life.=E2=80=9D

A week later, Mora = was shown a=20 lengthy classified document that negated = almost=20 every argument he had made. Haynes had = outflanked=20 him. He had solicited a separate, = overarching=20 opinion from the Office of Legal Counsel, = at the=20 Justice Department, on the legality of = harsh=20 military = interrogations=E2=80=94effectively superseding=20 the working group.

There was only one copy of the opinion, = and it=20 was kept in the office of the Air = Force=E2=80=99s general=20 counsel, Mary Walker, whom Rumsfeld had = appointed=20 to head the working group. While Walker = sat at her=20 desk, Mora looked at the document with = mounting=20 disbelief; at first, he thought he had = misread it.=20 There was no language prohibiting the = cruel,=20 degrading, and inhuman treatment of = detainees.=20 Mora told me that the opinion was = sophisticated=20 but displayed =E2=80=9Ccatastrophically = poor legal=20 reasoning.=E2=80=9D In his view, it = approached the level=20 of the notorious Supreme Court decision in = Korematsu v. United States, in 1944, which = upheld=20 the government=E2=80=99s internment of = Japanese-Americans=20 during the Second World War.

The author of the opinion was John Yoo, = a young=20 and unusually influential lawyer in the=20 Administration, who, like Haynes, was part = of=20 Addington=E2=80=99s circle. (Yoo and = Haynes were also=20 regular racquetball partners.) In the = past, Yoo,=20 working closely with Addington, had helped = to=20 formulate the argument that the treatment = of Al=20 Qaeda and Taliban suspects, unlike that of = all=20 other foreign enemies, was not covered by = the=20 Geneva conventions; Yoo had also helped to = write=20 the Torture Memo. Before joining the=20 Administration, Yoo, a graduate of Yale = Law=20 School, had clerked for Justice Clarence = Thomas=20 and taught law at Berkeley. Like many = conservative=20 legal scholars, he was skeptical of = international=20 law, and believed that liberal = congressional=20 overreaction to the Vietnam War and = Watergate had=20 weakened the Presidency, the C.I.A., and = the=20 military. However, Yoo took these = arguments=20 further than most. Constitutional scholars = generally agreed that the founders had=20 purposefully divided the power to wage war = between=20 Congress and the executive branch; Yoo = believed=20 that the President=E2=80=99s role as = Commander-in-Chief=20 gave him virtually unlimited authority to = decide=20 whether America should respond militarily = to a=20 terror attack, and, if so, what kind of = force to=20 use. =E2=80=9CThose decisions, under our = Constitution, are=20 for the President alone to make,=E2=80=9D = he wrote in a=20 law article.

A top Administration official told me = that Yoo,=20 Addington, and a few other lawyers had = essentially=20 =E2=80=9Chijacked policy=E2=80=9D after = September 11th. =E2=80=9CThey=20 thought, Now we can put our views into = practice.=20 We have the ability to write them into = binding=20 law. It was just shocking. These memos = were=20 presented as faits accomplis.=E2=80=9D =

In Yoo=E2=80=99s opinion, he wrote that = at Guant=C3=A1namo=20 cruel, inhumane, and degrading treatment = of=20 detainees could be authorized, with few=20 restrictions.

=E2=80=9CThe memo espoused an extreme = and virtually=20 unlimited theory of the extent of the = President=E2=80=99s=20 Commander-in-Chief authority,=E2=80=9D = Mora wrote in his=20 account. Yoo=E2=80=99s opinion = didn=E2=80=99t mention the most=20 important legal precedent defining the = balance of=20 power between Congress and the President = during=20 wartime, Youngstown Sheet & Tube = Company v.=20 Sawyer. In that 1952 case, the Supreme = Court=20 stopped President Truman from forcing the = steel=20 worker=E2=80=99s union, which had declared = a strike, to=20 continue producing steel needed in the = Korean War.=20 The Court upheld congressional labor laws=20 protecting the right to strike, and ruled = that the=20 President=E2=80=99s war powers were at = their weakest when=20 they were challenging areas in which = Congress had=20 passed legislation. Torture, Mora = reasoned, had=20 been similarly regulated by Congress = through=20 treaties it had ratified.

In an e-mail response to questions this = month,=20 Yoo, who is now back at Berkeley, defended = his=20 opinion. =E2=80=9CThe war on terrorism = makes Youngstown=20 more complicated,=E2=80=9D he said. = =E2=80=9CThe majority opinion=20 explicitly said it was not considering the = President=E2=80=99s powers as = Commander-in-Chief in the=20 theater of combat. The difficulty for = Youngstown=20 created by the 9/11 attacks is that the = theater of=20 combat now includes parts of the domestic = United=20 States.=E2=80=9D He also argued that = Congress had ceded=20 power to the President in its = authorization of=20 military force against the perpetrators of = the=20 September 11th attacks.

Mora concluded that Yoo=E2=80=99s = opinion was=20 =E2=80=9Cprofoundly in error.=E2=80=9D He = wrote that it =E2=80=9Cwas=20 clearly at variance with applicable = law.=E2=80=9D When we=20 spoke, he added, =E2=80=9CIf everything is = permissible,=20 and almost nothing is prohibited, it makes = a=20 mockery of the law.=E2=80=9D A few days = after reading=20 Yoo=E2=80=99s opinion, he sent an e-mail = to Mary Walker,=20 saying that the document was not only=20 =E2=80=9Cfundamentally in error=E2=80=9D = but =E2=80=9Cdangerous,=E2=80=9D because=20 it had the weight of law. When the Office = of Legal=20 Counsel issues an opinion on a policy = matter, it=20 typically requires the intervention of the = Attorney General or the President to = reverse it.=20

Walker wrote back, =E2=80=9CI disagree, = and I believe=20 D.O.D. G.C.=E2=80=9D=E2=80=94Haynes, the = Pentagon=E2=80=99s general=20 = counsel=E2=80=94=E2=80=9Cdisagrees.=E2=80=9D

On February 6th, Mora invited Yoo to = his=20 office, in the Pentagon, to discuss the = opinion.=20 Mora asked him, =E2=80=9CAre you saying = the President has=20 the authority to order torture?=E2=80=9D =

=E2=80=9CYes,=E2=80=9D Yoo replied. =

=E2=80=9CI don=E2=80=99t think = so,=E2=80=9D Mora said.

=E2=80=9CI=E2=80=99m not talking = policy,=E2=80=9D Yoo said. =E2=80=9CI=E2=80=99m just=20 talking about the law.=E2=80=9D

=E2=80=9CWell, where are we going to = have the policy=20 discussion, then?=E2=80=9D Mora asked. =

Mora wrote that Yoo replied that he = didn=E2=80=99t=20 know; maybe, he suggested, it would take = place=20 inside the Pentagon, where the = defense-policy=20 experts were. (Yoo said that he recalled=20 discussing only how the policy issues = should be=20 debated, and where. Torture, he said, was = not an=20 option under consideration.)

But Mora knew that there would be no = such=20 discussion; as the Administration saw it, = the=20 question would be settled by Yoo=E2=80=99s = opinion.=20 Indeed, Mora soon realized that, under the = supervision of Mary Walker, a draft = working-group=20 report was being written to conform with = Yoo=E2=80=99s=20 arguments. Mora wrote in his memo that=20 contributions from the working group = =E2=80=9Cbegan to be=20 rejected if they did not conform to the=20 OLC=E2=80=9D=E2=80=94Office of Legal = Counsel=E2=80=94=E2=80=9Cguidance.=E2=80=9D

The draft working-group report noted = that the=20 Uniform Code of Military Justice barred=20 =E2=80=9Cmaltreatment=E2=80=9D but said, = =E2=80=9CLegal doctrine could=20 render specific conduct, otherwise = criminal, not = unlawful.=E2=80=9D In an echo of=20 the Torture Memo, it also declared that=20 interrogators could be found guilty of = torture=20 only if their =E2=80=9Cspecific = intent=E2=80=9D was to inflict=20 =E2=80=9Csevere physical pain or = suffering=E2=80=9D as evidenced=20 by =E2=80=9Cprolonged mental = harm.=E2=80=9D Even then, it said,=20 echoing Yoo, the Commander-in-Chief could = order=20 torture if it was a military necessity: = =E2=80=9CCongress=20 may no more regulate the = President=E2=80=99s ability to=20 detain and interrogate enemy combatants = than it=20 may regulate his ability to direct troop = movements=20 on the battlefield.=E2=80=9D

A few days after his meeting with Yoo, = Mora=20 confronted Haynes again. He told him that = the=20 draft working-group report was = =E2=80=9Cdeeply flawed.=E2=80=9D It=20 should be locked in a drawer, he said, and = =E2=80=9Cnever=20 let out to see the light of day = again.=E2=80=9D He advised=20 Haynes not to allow Rumsfeld to approve = it.

In the spring of 2003, Mora waited for = the=20 final working-group report to emerge, = planning to=20 file a strong dissent. But the report = never=20 appeared. Mora assumed that the draft = based on=20 Yoo=E2=80=99s ideas had not been finalized = and that the=20 suspension of the harsh techniques = authorized by=20 Rumsfeld was still in effect.

In June, press accounts asserted that = the U.S.=20 was subjecting detainees to = =E2=80=9Cstress and duress=E2=80=9D=20 techniques, including beatings and food=20 deprivation. Senator Patrick Leahy, = Democrat of=20 Vermont, wrote to Secretary of State = Condoleezza=20 Rice, asking for a clear statement of the=20 Administration=E2=80=99s detainee policy. = Haynes wrote a=20 letter back to Leahy, which was = subsequently=20 released to the press, saying that the = Pentagon=E2=80=99s=20 policy was never to engage in torture, or = cruel,=20 inhumane, or degrading = treatment=E2=80=94just the sort of=20 statement Mora had argued for. He wrote in = his=20 memo that he saw Haynes=E2=80=99s letter = as =E2=80=9Cthe happy=20 culmination of the long debates in the = Pentagon.=E2=80=9D=20 He sent an appreciative note to Haynes, = saying=20 that he was glad to be on his team. =

On April 28, 2004, = ten months=20 later, the first pictures from Abu Ghraib = became=20 public. Mora said, =E2=80=9CI felt = saddened and dismayed.=20 Everything we had warned against in = Guant=C3=A1namo had=20 happened=E2=80=94but in a different = setting. I was=20 stunned.=E2=80=9D

He was further taken aback when he = learned,=20 while watching Senate hearings on Abu = Ghraib on=20 C-SPAN, = that Rumsfeld=20 had signed the working-group = report=E2=80=94the draft=20 based on Yoo=E2=80=99s opinion=E2=80=94a = year earlier, without the=20 knowledge of Mora or any other internal = legal=20 critics. Rumsfeld=E2=80=99s signature gave = it the weight=20 of a military order. =E2=80=9CThis was the = first I=E2=80=99d heard=20 of it!=E2=80=9D Mora told me. Mora wrote = that the Air=20 Force=E2=80=99s deputy general counsel, = Daniel Ramos, told=20 him that the final working-group report = had been=20 =E2=80=9Cbriefed=E2=80=9D to General = Miller, the commander of=20 Guant=C3=A1namo, and General James Hill, = the head of=20 the Southern Command, months earlier. (The = Pentagon confirmed this, though it said = that the=20 generals had not seen the full report.) = =E2=80=9CIt was=20 astounding,=E2=80=9D Mora said. = =E2=80=9CObviously, it meant that=20 the working-group report hadn=E2=80=99t = been abandoned,=20 and that some version of it had gotten = into the=20 generals=E2=80=99 possession.=E2=80=9D

The working-group report included a = list of=20 thirty-five possible interrogation = methods. On=20 April 16, 2003, the Pentagon issued a = memorandum=20 to the U.S. Southern Command, approving=20 twenty-four of them for use at = Guant=C3=A1namo,=20 including isolation and what it called = =E2=80=9Cfear up=20 harsh,=E2=80=9D which meant = =E2=80=9Csignificantly increasing the=20 fear level in a detainee.=E2=80=9D The = Defense Department=20 official told me, =E2=80=9CIt should be = noted that there=20 were strong advocates for the approval of = the full=20 range of thirty-five techniques,=E2=80=9D = but Haynes was=20 not among them. The techniques not adopted = included nudity; the exploitation of = =E2=80=9Caversions,=E2=80=9D=20 such as a fear of dogs; and slaps to the = face and=20 stomach. However, combined with the legal=20 reasoning in the working-group report, the = April=20 memorandum allowed the Secretary to = approve=20 harsher methods.

Without Mora=E2=80=99s knowledge, the = Pentagon had=20 pursued a secret detention policy. There = was one=20 version, enunciated in Haynes=E2=80=99s = letter to Leahy,=20 aimed at critics. And there was another, = giving=20 the operations officers legal indemnity to = engage=20 in cruel interrogations, and, when the=20 Commander-in-Chief deemed it necessary, in = torture. Legal critics within the = Administration=20 had been allowed to think that they were = engaged=20 in a meaningful process; but their = deliberations=20 appeared to have been largely an academic=20 exercise, or, worse, a charade. = =E2=80=9CIt seems that=20 there was a two-track program = here,=E2=80=9D said Martin=20 Lederman, a former lawyer with the Office = of Legal=20 Counsel, who is now a visiting professor = at=20 Georgetown. =E2=80=9COtherwise, why would = they share the=20 final working-group report with Hill and = Miller=20 but not with the lawyers who were its = ostensible=20 authors?=E2=80=9D

Lederman said that he regarded Mora as = heroic=20 for raising crucial objections to the=20 Administration=E2=80=99s interrogation = policy. But he=20 added that Mora was unrealistic if he = thought=20 that, by offering legal warnings, he could = persuade the leaders of the Administration = to=20 change its course. =E2=80=9CIt appears = that they weren=E2=80=99t=20 asking to be warned,=E2=80=9D Lederman = said.

The senior Defense Department official = defended=20 as an act of necessary caution the = decision not to=20 inform Mora and other legal advisers of = official=20 policy. The interrogation techniques = authorized in=20 the signed report, he explained, were = approved=20 only for Guant=C3=A1namo, and the Pentagon = needed to=20 prevent the practices from spreading to = other=20 battlefronts. =E2=80=9CIf someone wants to = criticize us=20 for being too careful, I accept that = criticism=20 willingly, because we were doing what we = could to=20 limit the focus of that report . . . to=20 Guant=C3=A1namo,=E2=80=9D the official = said.

In fact, techniques that had been = approved for=20 use at Guant=C3=A1namo were quickly = transferred=20 elsewhere. Four months after General = Miller was=20 briefed on the working-group report, the = Pentagon=20 sent him to Iraq, to advise officials = there on=20 interrogating Iraqi detainees. Miller, who = arrived=20 with a group of Guant=C3=A1namo = interrogators, known as=20 the Tiger Team, later supervised all = U.S.-run=20 prisons in Iraq, including Abu Ghraib. And = legal=20 advisers to General Ricardo Sanchez, the = senior=20 U.S. commander in Iraq at the time, used = the=20 report as a reference in determining the = limits of=20 their interrogation authority, according = to a=20 Pentagon report on Abu Ghraib.

A lawyer involved in the working group = said=20 that the Pentagon=E2=80=99s contention = that it couldn=E2=80=99t=20 risk sharing the report with its authors = =E2=80=9Cdoesn=E2=80=99t=20 make any sense.=E2=80=9D He explained, = =E2=80=9CWe=E2=80=99d seen=20 everything already.=E2=80=9D The real = reason for their=20 exclusion, he speculated, was to avoid = dissent.=20 =E2=80=9CIt would have put them in a = bind,=E2=80=9D he said. =E2=80=9CAnd=20 it would have created a paper = trail.=E2=80=9D

Meanwhile, Mora=E2=80=99s warnings = about the legal=20 underpinnings of the working-group report = proved=20 prophetic. In December, 2003, in an = extraordinary=20 repudiation of the = Administration=E2=80=99s own legal=20 work, the Office of Legal Counsel quietly = withdrew=20 the Yoo opinion. The new head of the = O.L.C., Jack=20 Goldsmith, a conservative legal scholar = who now=20 teaches at Harvard Law School, told the = Pentagon=20 that it could no longer rely on the legal=20 analysis. Among other problems, Goldsmith = had=20 found Yoo=E2=80=99s interpretation of the = President=E2=80=99s=20 powers overly broad. In March, 2005, the = Pentagon=20 declared the working-group report a=20 non-operational = =E2=80=9Chistorical=E2=80=9D document. By that=20 time, however, much of the most serious = abuse at=20 Guant=C3=A1namo had already = occurred.

At the Pentagon in = recent=20 weeks, officials portrayed Mora=E2=80=99s = memo as ancient=20 history. They argued that they had acted = quickly=20 to rectify the wrongs he helped expose, by = limiting the list of approved = interrogation=20 techniques. But while Mora believes that = the use=20 of cruel treatment in interrogation has=20 diminished, he feels that the fight to = establish=20 clear, humane standards for the treatment = of=20 detainees is not over. He also worries = that the=20 Administration=E2=80=99s views on = interrogation have=20 undermined American foreign policy, in = part by=20 threatening the international coalition = needed to=20 fight terrorism. Allied countries may not = be able=20 to support U.S. military actions, he said, = if=20 detainees are treated in a manner that = most=20 nations deemed illegal.

Just a few months ago, Mora attended a = meeting=20 in Rumsfeld=E2=80=99s private conference = room at the=20 Pentagon, called by Gordon England, the = Deputy=20 Defense Secretary, to discuss a proposed = new=20 directive defining the military=E2=80=99s = detention=20 policy. The civilian Secretaries of the = Army, the=20 Air Force, and the Navy were present, = along with=20 the highest-ranking officers of each = service, and=20 some half-dozen military lawyers. Matthew = Waxman,=20 the deputy assistant secretary of defense = for=20 detainee affairs, had proposed making it = official=20 Pentagon policy to treat detainees in = accordance=20 with Common Article Three of the Geneva=20 conventions, which bars cruel, inhumane, = and=20 degrading treatment, as well as outrages = against=20 human dignity.Going around the huge wooden = conference table, where the officials sat = in=20 double rows, England asked for a consensus = on=20 whether the Pentagon should support = Waxman=E2=80=99s=20 proposal.

This standard had been in effect for = fifty=20 years, and all members of the U.S. armed = services=20 were trained to follow it. One by one, the = military officers argued for returning the = U.S. to=20 what they called the high ground. But two = people=20 opposed it. One was Stephen Cambone, the=20 under-secretary of defense for = intelligence; the=20 other was Haynes. They argued that the = articulated=20 standard would limit America=E2=80=99s = =E2=80=9Cflexibility.=E2=80=9D It=20 also might expose Administration officials = to=20 charges of war crimes: if Common Article = Three=20 became the standard for treatment, then it = might=20 become a crime to violate it. Their = opposition was=20 enough to scuttle the proposal.

In exasperation, according to another=20 participant, Mora said that whether the = Pentagon=20 enshrined it as official policy or not, = the Geneva=20 conventions were already written into both = U.S.=20 and international law. Any grave breach of = them,=20 at home or abroad, was classified as a war = crime.=20 To emphasize his position, he took out a = copy of=20 the text of U.S. Code 18.2441, the War = Crimes Act,=20 which forbids the violation of Common = Article=20 Three, and read from it. The point, Mora = told me,=20 was that =E2=80=9Cit=E2=80=99s a statute. = It exists=E2=80=94we=E2=80=99re not free=20 to disregard it. We=E2=80=99re bound by = it. It=E2=80=99s been=20 adopted by the Congress. And we=E2=80=99re = not the only=20 interpreters of it. Other nations could = have U.S.=20 officials arrested.=E2=80=9D

Not long afterward, Waxman was summoned = to a=20 meeting at the White House with David = Addington.=20 Waxman declined to comment on the = exchange, but,=20 according to the = Times,=20 Addington berated him for arguing that the = Geneva=20 conventions should set the standard for = detainee=20 treatment. The U.S. needed maximum = flexibility,=20 Addington said. Since then, efforts to = clarify=20 U.S. detention policy have languished. In=20 December, Waxman left the Pentagon for the = State=20 Department.

To date, no charges have been brought = against=20 U.S. personnel in Guant=C3=A1namo. The = senior Defense=20 Department official I spoke to affirmed = that, in=20 the Pentagon=E2=80=99s view, = Qahtani=E2=80=99s interrogation was=20 =E2=80=9Cwithin the bounds.=E2=80=9D = Elsewhere in the world, as=20 Mora predicted, the controversy is = growing. Last=20 week, the United Nations Human Rights = Commission=20 called for the U.S. to shut down the = detention=20 center at Guant=C3=A1namo, where,it said, = some=20 practices =E2=80=9Cmust be assessed as = amounting to=20 torture.=E2=80=9D The U.N. report, which = the White House=20 dismissed, described =E2=80=9Cthe = confusion with regard to=20 authorized and unauthorized interrogation=20 techniques=E2=80=9D as = =E2=80=9Cparticularly alarming.=E2=80=9D

Mora recently started a new job, as the = general=20 counsel for Wal-Mart=E2=80=99s = international operations. A=20 few days after his going-away party, he = reflected=20 on his tenure at the Pentagon. He felt = that he had=20 witnessed both a moral and a legal = tragedy.

In Mora=E2=80=99s view, the = Administration=E2=80=99s legal=20 response to September 11th was flawed from = the=20 start, triggering a series of subsequent = errors=20 that were all but impossible to correct. = =E2=80=9CThe=20 determination that Geneva didn=E2=80=99t = apply was a legal=20 and policy mistake,=E2=80=9D he told me. = =E2=80=9CBut very few=20 lawyers could argue to the contrary once = the=20 decision had been made.=E2=80=9D

Mora went on, =E2=80=9CIt seemed odd to = me that the=20 actors weren=E2=80=99t more troubled by = what they were=20 doing.=E2=80=9D Many Administration = lawyers, he said,=20 appeared to be unaware of history. = =E2=80=9CI wondered if=20 they were even familiar with the Nuremberg = trials=E2=80=94or with the laws of war, or = with the Geneva=20 conventions. They cut many of the experts = on those=20 areas out. The State Department = wasn=E2=80=99t just on the=20 back of the bus=E2=80=94it was left off = the bus.=E2=80=9D Mora=20 understood that =E2=80=9Cpeople were = afraid that more=20 9/11s would happen, so getting the = information=20 became the overriding objective. But there = was a=20 failure to look more broadly at the = ramifications.=20

=E2=80=9CThese were enormously = hardworking, patriotic=20 individuals,=E2=80=9D he said. = =E2=80=9CWhen you put together the=20 pieces, it=E2=80=99s all so sad. To = preserve flexibility,=20 they were willing to throw away our = values.=E2=80=9D