REPUDIATED BRADBURY MEMOS IGNORED THE GENEVA CONVENTIONS

by B. B. Wilkerson 

War crimes were inevitable because the Geneva Conventions were ignored by the Bush administration. After flaws in the memoranda of 2002 by Jay S. Bybee and John Yoo were well recognized by Bush’s Department of Justice, and the Supreme Court tried to rein in excesses in Hamdi v Rumsfeld (2004), more memos were written to justify violating Geneva Convention provisions by Steven G. Bradbury, while Principal Deputy Assistant Attorney General.

CIA Senior Deputy General Counsel John A. Rizzo asked Bradbury to comment on the legality of various “enhanced interrogation techniques” in May 2005. Bradbury’s opinions, which have just been released and repudiated by the Obama administration, provide further evidence of war crimes by the Bush administration.

Bradbury wrote three memos. One, dated May 10, was to reconcile individual interrogation techniques with the War Crimes Act. The second, issued on the same date, justified the use of several techniques in combination. The third memo, dated May 30, sought to assure the CIA that the various techniques, singly or in combination, did not violate the Convention Against Torture and Other Cruel, Degrading Treatment or Punishment or the Torture Victim Protection Act.

Twelve specific techniques were reviewed:  (1) dietary manipulation, (2) nudity, (3) grabbing, (4) pushing prisoners into a wall, (5) facial hold, (6) slapping the face and abdomen, (7) cramped confinement, (8) stress positions, (9) wall standing, (10) water dousing, (11) sleep deprivation, and (12) waterboarding. There were three stress positions: (a) sitting on the floor with legs extended straight out in front and arms raised above the head,  (b) kneeling on the floor while leaning back at a 45 degree angle, and (c) leaning against a wall generally about three feet away from the feet, with only the head touching the wall, while wrists are cuffed in front or behind the back. In wall standing, a prisoner is not permitted to move while standing about 4-5 feet from a wall, with his feet spread approximately to shoulder width and arms stretched out in front with .his fingers resting on the wall and supporting the body weight. The twelve techniques went beyond those in the Bybee memo of 2002 which Bradbury superseded.

Citing several court cases, Bradbury concluded that there were no violations of the law because the CIA followed various precautions associated with all twelve techniques. The safeguards were designed by medical and psychological personnel, some of whom were present during the administration of the techniques. Thereby, Bradbury was advising the CIA that no laws would be broken by harsh treatment being meted out to prisoners under its control. His nuanced memos had a scholarly appearance, referring to various court cases, but nonetheless ignored the Geneva Conventions as well as the following precedents:

·        Watts v Indiana, in which the court disallowed 6 days of repeated questioning in solitary confinement and confinement without advice of counsel or friends (Watts v Indiana)
·        Spano v New York, disallowing 8 hours of continuous questioning
·        Youngblood v Romero, disallowing bodily restraints
·        United States v Lee, disallowing waterboarding.

The mere fact that the CIA was holding prisoners secretly without appropriate legal due process should have alerted Bradbury to the following ongoing war crimes:

·        secret imprisonment (WC #118)
·        failure to advise prisoners of their rights under the Geneva Conventions, including the right to an attorney (WC#119,136,139)
·        denial of an attorney or the right of an attorney to visit them (WC#120,131,138,144)
·        failure to process prisoners by a competent, public tribunal to determine whether they should be incarcerated, notified of the charges against them, and then have the right to appeal (WC#123,142,143,145)
·        failure to post the Geneva Conventions for prisoners to read in their mother tongues (WC#127,128)
·        failure to disseminate Geneva Convention provisions to prison officials (WC#126)
·        failure to disclose publicly how prisoners are to be treated (WC#129).

The main war crime was Bradbury’s attempt to legally justify torture (WC#155).* Instead of writing the memo, he should have stopped the use of the various techniques in combination, which the International Red Cross had already characterized as “tantamount to torture” (WC#55). As a law enforcement official, he should have referred those engaging in torture for criminal prosecution. Failing to do so, meant that the following war crimes were violated:

·        failure to arrest and prosecute torturers (WC#156)
·        failure to investigate allegations of torture (WC#157
·        failure to cooperate in investigations and prosecutions of torturers (WC#158).

Bradbury should also have authorized compensation for those who were tortured. Failure to do so is yet another war crime (WC#159).

The effect of Bradbury’s memos was to authorize violations of the following war crimes, even though he knew that three prisoners had been waterboarded:

·        medical experiments on prisoners (WC#84)
·        violations of medical ethics (WC#98)
·        placing a wounded prisoner in a torture chamber rather than a medical facility (WC#76,90)
·        coercive techniques designed to force self-incrimination (WC#52,59,133)
·        close confinement (WC#65)
·        cruel treatment (WC#48)
·        unpleasant or disadvantageous treatment (WC#53)
·        reckless endangerment of health (WC#83).

Bradbury notes that Abu Zubaydah was waterboarded 83 times during August 2002 and Khalid Sheik Mohammed 138 times during March 2003. Rather than raising a red flag for such excesses, Bradbury made them paradigm cases to guide future secret interrogation, which stopped after Hamdan v Rumsfeld (2006).

That an official of the United States government could attempt a cold, calculating evaluation of the fine line between legality and illegal torture means that he accepted the concept of legal torture. The detailed description of each technique, which would clearly satisfy Hannah Arendt’s notion of the banality of evil, appeared to be instructions to sexual sadomasochists more than writing from the pen of someone sworn to uphold the Constitution of the United States.

Thus far, Steven G. Bradbury had escaped the attention from those who had been calling for accountability for the war crimes of the Bush administration. Now he has achieved notorious notoriety.

*War Crime (WC) numbers are based on the delineation in Michael Haas, George W.  Bush, War Criminal: The Bush Administration’s Liability for 269 War Crimes (2009).