THE MEMO.(Alberto J. Mora)

Publication: The New Yorker

Publication Date: 27-FEB-06

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COPYRIGHT 2006 All rights reserved. Reproduced by permission of The Condé Nast Publications Inc.

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

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

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

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

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

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

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

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

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

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

Brant informed Mora that he was disturbed by what his agents...

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