Based on CIA assurances, we understand that the CIA interrogation program is not conducted in the United States or ‘territory under [United States] jurisdiction,’ and that it is not authorized for use against United States persons. Accordingly, we conclude that the program does not implicate Article 16. We also conclude that the CIA interrogation program, subject to its careful screening, limits and medical monitoring, would not violate the substantive standards applicable to the United States under Article 16 even if those standards extended to the CIA interrogation program. Given the paucity of relevant precedent and the subjective nature of the inquiry, however, we cannot predict with confidence whether a court would agree with this conclusion, though, for the reasons explained, the question is unlikely to be subject to judicial inquiry.
Please let us know if we may be of further assistance.
Steven G. Bradbury
Principal Deputy Assistant Attorney General
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Transactions. Rooms in Washington DC. Insistent bleeping of phones. Men and women in smart greys and blues. Deadlines. More rooms in Langley, Virginia. Pinging of incoming email. People staring at screens. Urgency of requests. Needed by end of day. More calls. Sign off needed. ‘Nice work people, nice job!’
Seven thousand miles away. US base in Afghanistan. Man, early thirties, suspect. Brought in, bloodied. Follow procedure. Commander informed. Plane readied. Man hooded, cuffed. Arrives in a country not under any legal jurisdiction. CIA base. White noise (not exceeding eighty-two decibels). Medical staff present. Enhanced interrogation can proceed. Everyone to their places. Terror can begin.
*
How rare it is that such memoranda ever see the light of day. Yet we can be sure that armies of lawyers and consultants and officials are generating communications similar to these on most, if not all, days of the year. The final act of violence may, sometimes, be witnessed, even condemned – but the bureaucrat or lawyer who created the supposed legitimacy for the subsequent action (via documents like we’ve seen above) is almost never seen. And we do not, yet, have the civic and judicial structures to hold such officials to account – let alone the moral frameworks in place that would enable individuals to understand the lethality of their responsibility. If you happened to meet either Mr Bybee or Mr Bradbury on the streets of Washington, and challenged them about their daily acts of desk killing, both would probably make some reference to the ‘need to defend our civilised world from terrorists and enemies of freedom’. In exactly the way that our doctors of Wannsee felt they were upholding civilised German purity, and in exactly the way that nineteenth-century colonialists felt that exterminating the ‘savages’ was critical for the survival of their societies.
At least, this would be their public defence of what they do. I wonder whether, sometimes after they get home, there might be just a scintilla of disturbance, somewhere deep down? The faintest echo of something once heard at law school decades ago, that, for some reason, surfaces again tonight. Remember? It was some writer over from England, guy with a white beard, what did he say? Something about war? It had a certain succinct force … oh yes, that was it – ‘Terrorism is the war of the poor, and war is the terrorism of the rich.’1
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‘I would like my headstone to read, He always tried to do the right thing’.
Jay Bybee, quoted in Time, 28 April 2009, ‘Jay Bybee: The Man Behind Waterboarding’
A Note on Fritz Haber, Clara Immerwahr, Hermann Haber and Claire Haber
Fritz Haber (1868–1934) was a Nobel Prize-winning German chemist, who invented the process by which ammonia is synthesised from nitrogen and hydrogen. He was also a pivotal figure in the development of the group of companies which became IG Farben in 1925. But earlier on, during the First World War in 1915, Haber had been working for BASF, and pioneered the production of the first poison gases to be used as a weapon of war – chlorine and phosgene gases. These were first used against French troops at Ypres on 22 April 1915, in an experimental attack in which thousands of soldiers were killed.
Haber at this time was married to Clara Immerwahr, from a Jewish family in Poland, where she had become the first woman to attain a PhD in chemistry at the University of Breslau. She and Haber married in 1901, had a son, Hermann, and settled in Germany. Despite her great intelligence and strong early feminist views, the pressures of German society meant that she only had limited scope to continue her research; she spent much of her time supporting her husband’s burgeoning career, and translating his publications into English. However, all this time her activism in women’s rights and pacifism was growing, and she became more and more aware of the limitations of her life, writing this to a friend:
It has always been my attitude that a life has only been worth living if one has made full use of all one’s abilities and tried to live out every kind of experience human life has to offer.2 It was under that impulse, among other things, that I decided to get married … The lift I got from it was very brief … and the main reasons for that was Fritz’s oppressive way of putting himself first in our home and marriage, so that a less ruthlessly self-assertive personality was simply destroyed.
With the outbreak of the First World War, their lives and beliefs diverged even more strongly. Haber became a staunch supporter of the German military, while Clara’s pacifism became even more pronounced. Haber was one of the principal movers behind the ‘Fulda manifesto’, published in October 1914, which declared to the world: ‘Were it not for German militarism … German civilisation would long ago have been destroyed … The German army and the German people are one.’ The final straw for Clara was Haber’s critical role in developing poison gases to be used on the front line in Flanders. Shortly after his return from overseeing the first use of chlorine gas, at Ypres in April 1915 – a gas which killed by essentially burning through the throat and lungs of the soldiers who inhaled it – matters came to an equally violent conclusion in the family. On the night of 1 May 1915, following another row with Haber, Clara walked into their garden and shot herself in the heart with his service revolver. She was not killed straight away, and was found by her young son, Hermann, who had heard the shots, and then watched his mother die in his arms. Within days Haber left for the Eastern Front to oversee the first use of gas against the Russian army. In the course of the war 92,000 soldiers were killed and over a million injured by the use of Haber’s poison gases.
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Hermann Haber committed suicide in New York in 1946. Three years later, Hermann’s daughter, Claire Haber (born in the same house where Clara had shot herself), was working as a scientist in Chicago, attempting to develop an antidote to the effects of chlorine gas poisoning, pioneered by her grandfather. She was told that this work had to be curtailed, as all scientific efforts were now to be put into the atomic bomb programme. Distraught hearing this news, she killed herself in Chicago in 1949, by swallowing cyanide.
Neither Clara, nor Hermann, nor Claire left suicide notes. Yet it is difficult to look at their lives, and deaths, without seeing the shadow of Fritz Haber – the father of chemical warfare – looming over all of them. Poignantly, the violence that Fritz Haber unleashed ultimately claimed the lives of his wife and children too. Susan Griffin, as we’ve seen, has written powerfully about the way that the violence and trauma of war is often passed down through families, through the generations, and so the damage done is never limited to the initial perpetrator of violence. This is borne out in the case of the Haber family. And in the cases of innumerable other families where extreme levels of violence and trauma have been transmitted, directly or indirectly, from the parents to the children.