6.6.1 The Public and the Media

There is a general tendency among the American media to echo the government’s official statements, and in times of war and terrorism journalists heavily rely on the information provided by the executive and regularly repeat it.115 Yet, the Bush administration also managed to perform as a fairly “unified front” and gave the media and other political actors “little to discuss beyond the key themes” it presented (Domke et al. 2006: 306; cf. Domke 2004: 166). In fact, the media intensely and closely reproduced Bush’s framings in the post-9/11 era (Billeaudeaux et al. 2003; Coe et al. 2004; Domke 2004; Entman 2004; Hutcheson et al. 2004; Jackson 2005; Croft 2006: ch. 3; Domke et al. 2006; King 2014: 8). They picked up Bush’s binaries of ‘us’ versus ‘them’ and ‘good’ versus ‘evil’; evidently, these dichotomies were very attractive to the press as they manifested conflict and drama, carried much emotion and thus offered ‘big stories’ (Coe et al. 2004; Domke 2004: 36f, 165; Bennett 2012: 46f, cf. Paletz/Entman 1981: 17). These ‘stories’ largely displaced critical inquiry but rather extended the crisis. In so doing, the media “created tremendous fear in the population, which made the public look anxiously to the government for protection, rendering the population malleable to manipulation” (Kellner 2007: 627; cf. Domke 2004: 164; Der Derian 2009: 229). In sum, the media contributed to the construction of ‘self’, ‘other’, and ‘threat’ and helped to mobilize support for Bush’s course.

As the above indicates, criticism was rare. If, however, journalists did set out to challenge Bush’s security narrative and to present an alternative framing, they were likely to be silenced. A prominent example of this was the ABC television program Politically Incorrect. On September 17, 2001, the program’s host, Bill Maher, questioned whether the terrorists of 9/11 could truly be called ‘cowards’ as President Bush had done so. Afterwards, the White House press secretary Ari Fleischer publicly and harshly criticized Maher and prompted all Americans ‘to watch what they say’. Since several companies had stopped advertising with the ABC show and local TV stations had stopped broadcasting it, Maher came under pressure to apologize (Domke et al. 2006: 309, fn. 2). Taking instances like the above into account, the dominance that Bush’s discourse was able to develop might have been a consequence of both its attractiveness and the fact that alternative framings and narratives were suppressed. In this sense, Richard Bernstein’s observation seems to be correct when stating that after 9/11 ‘evil talk’ proved in a distressing way “its rigidity and popular appeal” (Bernstein 2005: 10, cf. viii). Objections to Bush’s interpretation or his announcements on the ‘War on Terror’ were denounced as unpatriotic, hazardous, and as siding with the terrorists. This demonstrates the inherent power of the rhetoric of ‘good’ and ‘evil’. Opposing arguments can easily be dismissed by this logic that declares the ‘we’ as the “forces of goodness”, because this “legitimates any action undertaken in the name of good, no matter how destructive, on the grounds that it is attacking ‘evil’” (Kellner 2007: 628). Consequently, there were no serious challenges to Bush’s framings and no real impediments to his securitizing moves. Obviously, “the American public largely shared the government’s anxieties on 9/11” (Goldsmith 2007: 187), and with regard to the tremendous dimension of danger as purported by Bush’s narrative, many Americans were willing to accept the implementation of any means that countered the menace and kept the nation safe. In this respect, it is also important to note that the phrase ‘War on Terror’ was strongly absorbed and reproduced by the American people. As stated in The New Yorker one year after 9/11, the phrase ‘War on Terror’ “framed the way people think about how the United States is reacting to the September 11th attacks so completely, that the idea that declaring and waging war on terror was not the sole, inevitable, logical consequence of the attacks just isn’t in circulation” (Lemann 2002: 36). This framing had established an interpretation that was now accepted – or at least was not being contested – by the main audiences.

As would be expected, critical defenders of constitutional and human rights did raise their voices. Kenneth Roth, for example, Executive Director of Human Rights Watch, criticized the Bush administration. Although “terrorists believe that anything goes in the name of their cause,” he stated, “the fight against terror must not buy into that logic. Human rights principles must not be compromised in the name of any cause” (Scraton 2002b: 226). Similarly, Irene Khan, the secretary general of Amnesty International, maintained that measures that would have been unacceptable before 9/11 were now “becoming almost the norm”, and that Washington was promoting “a new doctrine of human rights à la carte” (Solomon 2005: 76). Although critique was expressed, alternative discourses generally remained rather faint. As David Cole observed, the “indefinite incommunicado detention of over 650 foreign nationals in Guantánamo Bay has sparked substantial criticism from abroad, but not at home” (Cole 2003: 40). It seems that large sections of the public accepted Bush’s conception including the government’s approach on prisoner treatment. Only a few weeks after the attacks, journalists noted that torture was “already a topic of discussion in bars, on commuter trains, and at dinner tables” and that this was understood in terms of “suspects and detainees who have refused to talk could have information that could save thousands of lives” (Rutenberg 2001). This in fact was a close reproduction of Bush’s securitization – and perhaps that of the media. Reports and statements by journalists, scientists and other reputable personalities in the media did indeed contribute to and echo Bush’s security discourse. As Jim Rutenberg noted in The New York Times at the beginning of November, 2001:

On Thursday night, on the Fox News Channel, the anchor Shepard Smith introduced a segment asking, “Should law enforcement be allowed to do anything, even terrible things, to make suspects spill the beans? Jon DuPre reports. You decide.” One week earlier, on CNN’s “Crossfire,” the conservative commentator Tucker Carlson said: “Torture is bad.” But he added: “Keep in mind, some things are worse. And under certain circumstances, it may be the lesser of two evils.” […]. The legitimacy of torture as an investigative tool is the latest in a progression of disturbing and horrific topics the news media is now presenting to its audience. (Rutenberg 2001)

Apparently, the media substantiated Bush’s framing, including the argument that abandoning the rules might be necessary for security reasons. The CNN example shows that the media produced the moral view of the ‘lesser evil’, which, in the end, justified torture. According to this view, the suffering of (a few of) the barbaric ‘other’ is justified if it produces the safety of (many of) the innocent ‘self’. By listing several contributions to the torture debate, Rutenberg (2001) observed “a growing number of voices in the mainstream news media raising […] the idea of torturing terrorism suspects or detainees who refuse to talk.” Among these contributions was the 2001 Newsweek article “Time to Think About Torture” by Jonathan Alter who claimed that pre-9/11 law enforcement was now outdated, and that survival could well require the application of torture and that the United States would even have “to think about transferring some suspects to our less squeamish allies,” which meant countries known to commit torture during interrogations (Alter 2001: 45). Alter reported later that he had expected a flood of (protest) emails after the publication of his article but instead even obtained agreement from liberals (Rutenberg 2001). In a cover story for The Atlantic entitled “The dark art of interrogation,” Mark Bowden (2003) argued that if America were to pay for the silence of terrorists in blood, this could be one of the strongest arguments for the use of torture. Although he described torturous techniques as repulsive and devilish, he reasoned that they could “save thousands of lives” (Bowden 2003: 53). He thus advised the Bush administration to practice a double standard: “It is wise of the President to reiterate U.S. support for international agreements banning torture, and it is wise for American interrogators to employ whatever coercive methods work” (Bowden 2003: 76).116 Evidently, many people became entangled in this kind of logic. As Harvard Law School professor Alan Dershowitz, one of the most well-known American lawyers and political commentators in the United States, remarked in 2002:

During numerous public appearances since September 11, 2001, I have asked audiences for a show of hands as to how many would support the use of nonlethal torture in a ticking bomb case. Virtually every hand is raised. (Dershowitz 2002b: 150)

Dershowitz probably contributed to this position by suggesting the institutionalization of torture in terms of judicial warrants for its legitimation. His newspaper editorial on this matter in November 2001 was widely discussed (Dershowitz 2001, 2002a, 2002b: 157–161).117 As Mark Danner (2009a: 76) notes in retrospect, the public debate reflected “an unvoiced acceptance […] of the centrality of the mythical ‘ticking-bomb scenario’.” Particularly during Bush’s first term, critique and alternative framings were not extensively reproduced in the media, and the application of abusive interrogation techniques was downplayed (Greenberg 2005: xviii; Forsythe 2011: 221). In March 2003, The Nation commented on the “silence” of the media where “no follow-up investigations and few editorials had appeared – not even in the New York Times” (Press 2003).118

It is interesting to note that after 9/11 torture became a part of popular TV programs. In fact, there was “a dramatic rise in torture scenes in television shows and movies” (Phillips 2010: 104). The popular television program 24, for example, showed them on a weekly basis. The program demonstrated how an intrepid terror fighter was able to save innocent Americans by resorting to torturous measures. The protagonist was presented as a patriotic hero who had succeeded in foiling atrocities, albeit with extreme means, and just in the nick of time. The then-Secretary of Homeland Security, Michael Chertoff, provided the authority of his office to 24 by visiting the actors while they were in Washington filming another episode of the TV show (Pfiffner 2010: 85).

This instance is a good example of how different agents can interact and influence one another in securitizing processes. This also means that an in-depth investigation of the audience would have to examine the mutual influence of the administration and the media, whereas, as mentioned above, the media might have taken up a strong securitizing role themselves rather than just reproducing Bush’s framing. In the present case, this would mean analyzing in how far Bush’s discourse contributed to the display of torture on TV by rendering it acceptable, and in how far these shows and movies in turn impacted on the audience, including the administration. Obviously, these torture scenes did have an influence on the audience as politicians, judges and interrogators referred to the program to either justify torture or use the scenes as models for interrogation techniques (Phillips 2010: 108). Perhaps even more than others, soldiers were impressed by the message carried by 24. As Pfiffner notes:

The show is so compelling that the dean of the U.S. Military Academy at West Point, Brigadier General Patrick Finnegan, went to see its creators in California to ask them to tone things down a bit. Military cadets were so enamored of the show that it was difficult to get them to accept the professional military doctrine on the rule of law and the laws of war. Finnegan said: “I’d like them to stop. They should do a show where torture backfires.” (Pfiffner 2010: 85)

Instead, the show seemed to confirm what the Bush administration purported: that torture was effective. Moreover, officials claimed that coercive measures, if correctly applied, would indeed produce life-saving information.119 Although this assumption could have been challenged by the public or Congress, it hardly ever was. Besides validating the asserted effectiveness of torture, 24 and other TV dramas that presented torturing heroes and ‘ticking time bomb’ scenarios had another influence as they appealed to powerful emotions. As Mark Danner suggests, they fueled both “the felt need in the face of vulnerability to assert power” and “the desire for retribution” (Danner 2009b: 54). In fact, the presumed hunger of the nation for retribution was also emphasized in the news media. A Newsweek article, for example, published shortly after 9/11, stated that “Americans want vengeance now”, that their “numbness [had] turned to rage”, and that President Bush clearly had to “retaliate forcefully” (Hirsh/Barry 2001). It is possible, therefore, that in addition to the feeling of the need to gather actionable intelligence, torture was understood as an equivalent response to the vicious attacks of 9/11 and was thus indeed a matter of revenge (Holmes 2006: 130; Ferrari 2007: 390). In the perception of some Americans, this might have restored power to the affected ‘self’ by demonstrating dominance in terms of ‘we can do these things to you.’

All of these discursive features – with the administration’s role lending a special authority to them – are probably part of the answer why large parts of the American people came to believe that torture was both justified and effective. Opinion polls seemed to reflect this. Despite America’s legal tradition and commitment to human rights law, in a survey in October 2001, 45 percent of those sampled said they were in favor of the U.S. government torturing terrorists if these had information about future attacks against the United States.120 Although one would suspect that this figure reflected the initial shock and fear caused by the attacks of 9/11, diverse opinion polls undertaken in 2005 produced similar outcomes (Gronke et al. 2010). This is remarkable, as in 2004, due to the Abu Ghraib scandal, a wealth of reports and photos had been published documenting the abuse of detainees. However, the public response was “at best apathetic” (Greenberg 2006b: 1) and the outright approval of torture remained fairly high. David Luban commented on this, stating that “American abhorrence to torture now appears to have extraordinarily shallow roots” (Luban 2006: 35).121

The reason for these fairly high approval rates might in part be subliminal. Besides the assumed need to gather information and the belief that torture was an effective means of reaching this aim, it is self-evident that Bush’s framing of a demonic, dehumanized ‘other’ fostered willingness to accept the deployment of abusive measures. As Robert Ivie (1990a: 72) notes, when we begin to treat certain terms “as virtual identities, as if one were the other,” we move “from a perception of speaking metaphorically to a perception of speaking literally.” Bush’s discourse worked this way, and with the enemy constituted as unhuman and totally evil, the idea of cruelty was manifest. The ‘other’ neither had human dignity in need of preservation nor a claim for human rights. Even though this representation was incorrect, subconsciously, in the mindset of the American people, it probably nurtured the view that this form of treatment was appropriate; or at least that the captives did not deserve anything better. In this respect, it is very likely that the long-standing Orientalist discourse had an influence on this view – the discourse with its deeply rooted interpretation of the West as culturally and politically superior to a backward, uncivilized, aggressive and dangerous Arab world. For a large section of the U.S. population, the attacks on 9/11 and the subsequent security discourse certainly corroborated their perceptions, and terrorism “became equated with the Muslim world” (Parry 2013: 9). This equation enabled abuses to occur, since the American public was “prepared to accept any conceivable treatment of Arabs, including the torture of innocents unto death” (Holmes 2006: 129) as long as it was presented as a reaction to the 9/11 attacks.

Although the government tried to enact its ‘enhanced interrogation techniques’ in secret, investigative journalists had disclosed these proceedings to the public within a few months. As the journalists reported, the national security officials they interviewed for their article not only “defended the use of violence against captives as just and necessary” but “expressed confidence that the American public would back their view” (Priest/Gellmann 2002). Since this claim was correct to some extent, this indicates the mutual influence of securitizer and audience. Jacob Weisberg (2009: 37) attests the American people a “collective complicity” with the Bush administration. He argues that despite information about the infliction of torture, neither Congress nor the public raised an objection, and concludes that “prosecuting Bush and his men won’t absolve the rest of us for what we let them do” (Weisberg 2009: 37). Similarly, the journalist Andrew Sullivan remarks:

Were we naïve in believing that characterizing complex conflicts […] as a single simple war against “evil” might not filter down and lead to decisions that could dehumanize the enemy and lead to abuse? Did our conviction of our own rightness in this struggle make it hard for us to acknowledge when that good cause had become endangered? I fear the answer to each of these questions is yes. (Sullivan 2005: 11)

In sum, Bush’s framings were sweeping and they were constantly reiterated by the public and the media. In this sense, it is safe to conclude that Bush’s securitization was successful. For quite some time, his discourse impacted on the public as imperturbable statements of truth rather than deliberation about the best course of action. Therefore, the notion seems to be correct that ‘othering’ in terms of ‘evil talk’ is a powerful political tool that can be used to simplify complex issues, but also “to block genuine thinking, and to stifle public discussion and debate” (Bernstein 2005: viii; cf. Rediehs 2002) in terms of alternative, contesting framings.

6.6.2 Congress

The shock caused by the unprecedented dimension of atrocities on U.S. soil that occurred on 9/11 prompted Congress to rapid action. Only three days after 9/11, it passed the Authorization for Use of Military Force (AUMF), and did so nearly unanimously; this provided Bush with the almost unlimited capacity to authorize the use of force in the ‘War on Terror’ and to take action without seeking prior Congressional approval.122 As Daase (2006: 79) notes, with AUMF “Congress effectively suspended […] its duty to control the executive”, and the executive emphasized this. The attorneys of the Justice Department’s Office of Legal Counsel stressed that the AUMF had to be read as “Congress’s acceptance of the President’s unilateral war powers in an emergency situation” (DOJ 2001/09/25: 20f). This embodied the first powerful instance of a situation in which it was possible to break free of the rules and thus represented a seminal success for Bush’s securitization. After all, defining the 9/11 attacks as ‘acts of war’ had been a deliberate decision by the administration. Now, this interpretation, which claimed the need for actions beyond the law and legal boundaries, began to gain momentum. In the period that followed, the AUMF enabled the Bush administration to launch great parts of its detention and interrogation policy (Forsythe 2011: 89). It also permitted the administration to discuss and make decisions on vital aspects of contested policies in secret. This meant that a broader public debate and possible objections from a critical audience could be circumvented for the time being at least. Hence, with regard to the Copenhagen School’s concept of securitization, one of the first steps in breaking free of the rules can consist of excluding the audience and withholding information about decisions that are inconsistent with established laws and legal understandings. Evidently, this has an impact on the concept of the CS as it further complicates an investigation of the audience’s role. However, in the present case, two aspects disrupted the administration’s secrecy. First, journalists had reported the fact that terrorist suspects were being tortured in U.S. custody. Second, as will be discussed below, leading members of Congress were informed about the harsh manner in which captives were being treated. These circumstances could have led to an investigation into Bush’s detention and interrogation policies; however, this did not occur.

In fact, the lack of Congressional control was not just a matter of inability. As Ornstein and Mann (2006) impressively register, especially with regard to foreign and security policy, Congress displayed lethargy during the first six years of Bush’s presidency, and the extent to which it did so is historically striking. As the authors suggest, this might have been partly due to the executive’s inclination to operate in secrecy and thus to deny Congress access to meaningful information. This point certainly has some explanatory power. As the former Assistant Attorney General and head of the OLC, Jack Goldsmith, confirmed, the Bush administration “eschewed genuine consultation with Congress, both formal and informal, with members of the President’s own party as well as members of the opposition” (Goldsmith 2007: 206). Nevertheless, this point leads to the question as to why this attitude did not provoke Congressional investigation. Even if one accepts that the AUMF was approved at a time during which many people were in a state of shock and it was this that led to the limitations on Congressional powers, this cannot explain the lethargy that characterized the actions of Congress on this issue for many years. Congress could have ordered inspections to be undertaken of the treatment of detainees and ensured that information that had been kept secret was now disclosed. Yet, it declined to do so and refrained from using the measures it wielded to check and provide oversight over the administration’s policies. It is therefore very likely that Congress willingly adopted its position of support and did so for a long time. David Zarefsky suggests that Bush’s security narrative and war metaphor was so widely accepted that it forestalled “debate and criticism as luxuries” that had to “await the return of more tranquil times” (2004b: 140). Even a dramatic front-page story by The Washington Post in December 2002123 about the alleged brutal treatment of thousands of suspects who had been captured since 9/11 seemed to trail off. Consequently, Human Rights Watch Executive Director Ken Roth complained about the “painful silence” in Washington, D.C.: “I haven’t heard anyone in Congress call for hearings or even speak out publicly” (Press 2003).

It seems plausible that Congressional inaction, at least in part, resulted from the dominance of Bush’s security discourse. There was a silent accord between the executive and the legislative that everything possible had to be done in order to keep America safe. Actually, this was more than the Republican majority in Congress lining up with its president, since many Democrats also supported the course being taken by the Bush administration. This leads to the conclusion that Congress believed in and supported Bush’s narrative. This support was probably enhanced by Bush’s endless reiterations as they constantly reproduced the climate of fear. Those who did criticize the Bush administration’s approval of the harsh interrogation of detainees were rebutted by references to the president’s powers as commander-in-chief and his responsibility to keep America safe by preventing further terrorist attacks.124 This led to a failure on the part of Congress to investigate, to ask tough questions and to meet its obligation in terms of executing Congressional oversight. As a consequence, Congress was dismissed by those officials it actually wanted to question (Ornstein/Mann 2006; Jaffer/Singh 2007; Bassiouni 2010: 184–189; Forsythe 2011: 89–92).

By September 2002, at least some members of Congress must have known about waterboarding.125 As Warrick and Eggen (2007) report, a bipartisan group of Congressional leaders, including House Speaker Nancy Pelosi from the Democrats, was informed about the ‘harsh interrogation techniques’ being applied by the CIA to make detainees talk. As two U.S. officials who were present at this meeting later recalled, no objections were expressed to these techniques, instead “at least two lawmakers in the room asked the CIA to push harder” and some questioned whether “the methods were tough enough” (Warrick/Eggen 2007). Before waterboarding became an issue of public debate, senior members of the intelligence committees had already been informed about this method of interrogation. About 30 briefings occurred in which the CIA informed legislative officials about the techniques being applied, and according to participants the reaction of the listeners was “mostly quiet acquiescence, if not outright support,” or, as the then-Chair of the House Intelligence Committee Porter Goss put it, there was “not just approval, but encouragement” (Warrick/Eggen 2007). Similarly, one U.S. official summarized the attitude as, “we don’t care what you do to those guys as long as you get the information you need to protect the American people” (Warrick/Eggen 2007). This provided clear support for Bush’s policies. When public debate later arose about the illegality of torturous interrogation techniques, officials from the Bush administration pointed to the fact that members of Congress had been well informed and had supported these same abusive techniques (Warrick/Eggen 2007). This suggests that influential members of Congress approved the ‘harsh interrogation techniques’ and that they also accepted the reasoning underlying these proceedings. It seems that Bush’s framing showed effect in at least two ways. First, it was assumed that the captives held secret information about future attacks and that torture would be an effective means to extract it; this, however, was rarely the case. As a report on Guantanamo detainees based on documents issued by the U.S. government concluded, only about eight percent of the prisoners could be characterized as al Qaeda fighters and fifty-five percent had committed no hostile acts against the United States or its allies (Denbeaux/Denbeaux 2006).126 Second, by assuming that the detainees carried vital information, U.S. security needs overrode the human rights of the ‘evildoers’ who, in any case, were deemed as undeserving of protection. Again, this exhibits the moral view of ‘the lesser evil’, an attitude which continued for years. As Lelyveld (2005) remarks, even the disturbing Abu Ghraib revelations in 2004 did not lead Congress to start a determined investigation; moreover, the ICRC continued to observe coercive treatment of prisoners in Guantanamo that was “tantamount to torture” at this time.127 Even two years later, in 2006, detainees in Guantanamo were probably still being tortured to death (Horton 2010).128

In sum, the appraisal of Congressional lethargy seems to be correct. During Bush’s second term, circumstances started to change, yet this was a tough process. In 2005 and 2006, Congress approved the Detainee Treatment Act (DTA) and the Military Commissions Act (MCA). The DTA prohibited the military and the CIA from undertaking most of the torturous interrogation techniques – although the restrictions only applied to the CIA when operating within military facilities and not outside of them. However, the DTA also sought to prevent habeas cases as permitted by the Supreme Court (see section 6.6.4) and instead created a “limited form of review […] for prisoners at Guantanamo and people convicted by military commissions” (Parry 2013: 196). In other words, the DTA limited judicial oversight of the Bush administration’s actions. The new Military Commissions Act divested the courts of habeas jurisdiction despite the fact that the Supreme Court had found that the courts did have jurisdiction over Guantanamo, and the act also sanctioned the operation of military commissions as proposed by the Bush administration. Moreover, although the MCA stated that evidence obtained through torture was not permissible in cases taking place before military commissions, “evidence obtained coercively”, could be used, “if the government disputes that the coercive methods were ‘torture’” (Luban 2007: 39). In part, this enabled the ‘harsh interrogation techniques’ to continue (Luban 2007: 39–40; cf. Pfiffner 2010: 126, 141). Although the DTA and the MCA confined the scope of action, it is clear that Congress did not truly rebut Bush’s detention and interrogation policies. Instead, it “removed humiliating treatment as a war crime in US law” (Forsythe 2011: 89) and granted ex post legal immunity to U.S. interrogators. On this point, the DTA stated, “it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful.”129 Therefore, as long as U.S. officials could assure that they had undertaken interrogations in “good faith”, their actions were legal and they could not be prosecuted. It was not until the midterm elections in late 2006, when the Republicans lost their majority in both houses to the Democrats, that Bush’s policies came under harsher scrutiny and Congressional oversight intensified (Lelyveld 2005; Ginbar 2008: ch. 15; Forsythe 2011: 89–92).

6.6.3 The Apparatus: Government, Military, Secret Services

Speaking of the operating apparatus, focuses on the ‘internal’ impact of Bush’s narrative, that is, internal to the body that partly represents the securitizing actor. Here, the focus is on the administration itself, on departments, members of staff and legal advisors as well as on the intelligence services, the security agencies and the military. As a whole, this body also constituted a relevant audience. Although this ‘internal’ discourse is certainly not completely accessible, an in-depth investigation of the audience would have to examine it as far as possible, because the apparatus comprises the persons in charge who approved and/or implemented the emergency measures – assuming this was done. Here, the bottom line seems to be that parts of the apparatus – especially White House officials as well as leading personnel belonging to the Department of Justice and the Department of Defense – strongly confirmed and (re-)produced Bush’s threat scenario. In this sense, it is not only important to examine what was said, but also what was excluded from the discourse. Although the United States had experienced instances of terrorism before and had dealt with them as criminal acts, after 9/11 this approach was hardly discussed. As John Parry remarks, none of the administration’s memoranda issued referring to action against al Qaeda members “suggested that the model of criminal investigation and prosecution should dominate or be a presumptive response” (Parry 2013: 173). Rather, the interpretation as ‘acts of war’ became the driving force for policy-making.130

As demonstrated above, the Department of Justice’s Office of Legal Counsel (OLC) and its head, John Yoo, played an important role in enabling the president to do what he wanted (Forsythe 2011: 77; cf. Goldsmith 2007). In general, it appears that Bush and his legal advisors mutually confirmed the threat scenario. An example of this is provided by White House Counsel Alberto Gonzales’ memorandum to the president from January 25, 2002. As Gonzales pointed out:

the war against terrorism is a new kind of war […]. The nature of the new war places a high premium on […] the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians […]. This new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions. (The White House 2002/01/25; cf. Greenberg/Dratel 2005: 119)

This memo repeated Bush’s identification of the ‘other’ as a carrier of secret information. Against the background of impending danger, the urgency of information gathering permitted the rules to be broken. In this scenario, terrorists who were alleged to possess (high value) information had to be made to talk, as doing so would save numerous American lives. This view was firmly established, as is clear, for example, from a 2003 DOD report on detainee interrogation. It stated:

Due to the unique nature of the war on terrorism in which the enemy covertly attacks innocent civilian populations without warning, and further due to the critical nature of the information believed to be known by certain of the al Qaeda and Taliban detainees regarding future terrorist attacks, it may be appropriate […] to authorize as a military necessity the interrogation of such unlawful combatants in a manner beyond that which may be applied to a prisoner of war who is subject to the protections of the Geneva Conventions. (DOD 2003/04/04: 287)

This text precisely reproduces Bush’s constructions of ‘self’, ‘other’, and ‘threat’: the enemy preyed on innocent victims; it was not a legitimate fighter and thus could not be held as a prisoner of war or receive the legal protection that this status granted; moreover, the enemy carried secrets, and gathering information from it was a matter of survival. By following this reasoning, the application of ‘enhanced interrogation techniques’ constituted necessary pre-emptive action, and torture was, henceforth, justifiable. In the end, the report represented the implementation of Bush’s promise to the nation: to do everything possible and to apply all means at his disposal to safeguard the American people.131

Over the following years, President Bush continued to emphasize the framing laid out in this chapter and reproduced a national climate of fear. The need for security in the face of an existential threat overruled the need for compliance with (humanitarian) law. Bush fought for the implementation of abusive interrogation techniques until the end of his administration. In summer 2005, when the DTA finally prohibited cruel, inhuman and degrading treatment during interrogations, Bush attached a signing statement to the law indicating that it would violate his powers as commander-in-chief and that he therefore might bypass it (Bush 2005/12/30). Bush also vetoed a bill on March 8, 2008 that would have restricted the CIA from using these techniques (Bush 2008/03/08a, 2008/03/08b). With regard to the effectiveness of harsh interrogations, Bush continued to emphasize that these techniques were “invaluable” to the United States; in Bush’s reasoning, they led to the disclosure of “information about terrorist plans we couldn’t get anywhere else, this program has saved innocent lives. In other words, it’s vital” (Bush 2006/09/15, cf. 2008/03/08a). Moreover, the president rewarded and promoted people who administered and authorized detainee abuse, and he refrained from calling for a profound inspection of detainee policy in military facilities, despite the Abu Ghraib scandal (Sullivan 2005: 11; Forsythe 2011: 45–47).

At the same time, however, objections were expressed to Bush’s position within the apparatus. These objections became particularly strong when the military operation in Afghanistan led to large numbers of prisoners. This situation caused “an extensive debate within the administration about what to do with these people” (Parry 2013: 171). However, contestation was not restricted to the government. Prior to changes made by the Bush administration, the army’s manual had been based on the Geneva Conventions. Now, military officials feared a corruption of the uniformed services and believed that traditional values such as military honor and proper conduct during war were in jeopardy. These critics were supported by members of the FBI and, notably, by four-star general and then-Secretary of State Colin Powell and his legal advisor William H. Taft (Lewis 2004: 6; Isikoff 2005; Jaffer/Singh 2007: 10–18; Danner 2009a: 76; Parry 2013: 184). As Powell pointed out in a memorandum on January 26, 2002, Bush’s course would “reverse over a century of U.S. policy and practice” and endanger American troops (DOS 2002/01/26: 123). Clearly, there were advocates and opponents of coercive measures on various levels of the command structure (Thomas 2005; Phillips 2010; Pfiffner 2010: ch. 6). On the one hand, there were frustrated interrogators who had thought about applying ‘harsh interrogation techniques’ in the weeks after 9/11 (CCLE 2001), on the other hand, there were members of the military who disputed Bush’s position – mostly in terms of its legality but also with regard to security and morality. In a memorandum on October 25, 2002, General James Hill of the U.S. Southern Command cast doubt as to whether “all the techniques in the third category are legal under US law” (DOD 2002/10/25: 223). Moreover, several prosecutors resigned from the Guantanamo Military Commission because they believed that the proceedings violated the defendants’ rights to due process. One of these prosecutors, Morris Davis, demanded that any kind of evidence obtained through torture be banned from America’s systems of justice (Davis 2008; Pfiffner 2010: 137–140).

Overall, the discussion among those involved centered on two aspects: first, whether the Geneva Conventions could be suspended; and second, in how far ‘harsh interrogation techniques’ would violate the law and established proceedings. In the end, the critical voices did not manage to avert Bush’s course as his threat scenario proved more effective. As The Schlesinger Report declared in 2004, “most cases for permitting harsh treatment of detainees on moral grounds begin with variants of the ‘ticking time bomb’ scenario” (The Schlesinger Report 2004: 974). In this sense, Bush’s framings paved the way for extraordinary means (Jaffer/Singh 2007; Ginbar 2008: ch. 15; Pfiffner 2010; Kahn 2011).

6.6.4 The Supreme Court

Right after 9/11, the Bush administration began redefining and reinterpreting laws and treaties in favor of its detention and interrogation policies; however, U.S. courts refrained from challenging these practices for a long time. Possibly, 9/11 and Bush’s threat construction altered the sense of what was an acceptable means of guaranteeing security. In addition, during this period, the administration’s lawyers worked to circumvent the courts and claimed that the confinement facilities at Guantanamo Bay were not covered by U.S. jurisdiction. It was not until years after 9/11 that the Supreme Court ruled otherwise, and even after it had done so, the judges’ majority on issues such as these was often quite narrow. However, in a series of civil cases that took place between 2004 and 2008, the Supreme Court began to restore essential rights to Guantanamo detainees and to invoke the responsibility of Congress.

In 2004 (Rasul v. Bush and Hamdi v. Rumsfeld), the Supreme Court ruled that Guantanamo de facto fell under U.S. jurisdiction and that the prisoners held there were covered by habeas corpus, that is, that they had the right to contest their detention.132 However, this could only be done before the Combatant Status Review Tribunals (CSRT) that had to be established in Guantanamo in the wake of the Rasul and Hamdi cases. Moreover, by the time the Supreme Court decided that Guantanamo detainees did have basic rights to due process, the Bush administration had already started diverting detainee flows to other U.S. detention centers like the one in Bagram, Afghanistan (Golden/Schmitt 2006). In 2006, (during the Hamdan v. Rumsfeld case) the Supreme Court ruled that the 1949 Geneva Convention’s Common Article 3 did apply to Guantanamo captives. This ruling confirmed and strengthened habeas corpus for Guantanamo prisoners by holding that Congress could not legally remove these rights – as it had done so a year before with the new Detainee Treatment Act. The Supreme Court also declared that the military commissions, as set up by the executive to prosecute Guantanamo captives, were unlawful, since they were not legally constituted and did not meet the minimum standards of law applicable in armed conflicts. In passing the Military Commissions Act (MCA) in 2006, Congress thus stipulated new structures for military commissions. However, with the new MCA, Congress once again denied Guantanamo detainees habeas rights. Finally, in 2008 (Boumediene v. Bush) the Supreme Court ruled that detainees had a constitutional right to access U.S. federal courts to challenge their incarceration.

Despite these findings, the Supreme Court was criticized for having “pursued a practice of judicial minimalism” (Kahn 2011: 191, fn. 12, cf. 74). In a manner similar to Congress, the court appeared to be reluctant to intervene in Bush’s course, including his detention and interrogation policies (Drumbl 2007; Ginbar 2008: ch. 15; Greenberg/Dratel 2008; Pitzke 2008; Pfiffner 2010: ch. 5; Forsythe 2011: 115, 171–174, 184; Kahn 2011: ch. 3).