Book Review: The Dark Side

The Inside Story of How the War on Terror Turned Into a War on American Ideals

By Jane Mayer Published by Scribe Publications1 Reviewed by Stephen Keim S.C.

I commenced reading The Dark Side after completing another non-fiction book whose prose style was loose and which was short on hard analysis. A few sentences into The Dark Side, the difference was palpable and I knew I was now reading the work of an extremely competent writer. Jane Mayer, in two short pages, described how George W. Bush’s Vice President, Dick Cheney, during the 1980s, when he was a Republican Congressman, used to participate in secret simulated Doomsday scenarios of running America in the midst of and after a nuclear holocaust. Although apparently a discursion from a history of decision making after 11 September 2001, the short introduction to aspects of Cheney’s short life proved an enthralling and instructive introduction to the atmospherics that produced the “war on American ideals”, the phenomenon that is rightly featured in the book’s sub-title and forms the major theme of The Dark Side.

The Dark Side has been called a “powerful, brilliantly researched and deeply unsettling book”. It is all of that. Mayer is well-qualified to write the most comprehensive coverage of the mis-deeds of the Bush Presidency committed in the name of national security. She is a Washington based staff writer for the New Yorker. She is a former senior writer and front page editor for the Wall Street Journal. She was the Journal’s first female White House correspondent. She has written two previous non-fiction books, Strange Justice, a description of the process by which extremely conservative Justice of the Supreme Court, Clarence Thomas, was “sold” to the American public, and Landslide, a detailed study of President Reagan’s involvement in the Iran-Contra scandal. Some thirteen articles written for the New Yorker provided the nucleus out of which The Dark Side grew.

The problem of following any long running news saga as an interested outsider is that the detail gets mixed up and the chronology is lost. The Dark Side unpicks the threads of which that detail concerning “the war on American ideals” is composed. The narrative commences with the potent mix of the paranoia of chronic Doomsdayers like Cheney and the dismay of CIA’s Al Qaeda specialists, like head of the Counter Terrorism Centre, Cofer Black, at their own failure to read the signs of the impending attack including the arrest of Zacarias Moussaoui, an aggressive Moroccan national with thousands of dollars in his pocket demanding to be taught how to fly a plane but without much interest in learning how to land it.    

The desire to hit back at Al Qaeda and the paranoia about further attacks led to an abandonment of traditional approaches to dealing with to the interrogation of captured suspects. The Dark Side paints a graphic and convincing picture of the way in which the desire to throw the rules out the window became accepted policy. The political driving force was at all times the Vice President, Cheney. He effectively prevented dissenting views from being expressed to Bush who emerges as a dilettante President, directed most of the time by his Vice President who was able to control both the information received by the President and the people who had access to the President.

Below Cheney, however, the descent into illegality was driven by the opinions of strong minded lawyers who proclaimed, whenever it was necessary, that “enhanced interrogation techniques” and any other policy considered by Cheney to be desirable were legal. The key actors then managed to keep the legal opinions secret and away from critical eyes. Those who sought to question either the legality or the policy wisdom of actions by either the CIA or military interrogators were intimidated by being told in no uncertain terms that they had no right to question courses of action upon which the President had already, favourably, decided. The combination of Cheney and his lawyer minions managed, for most of the time, to short-cut and avoid most traditional policy making forums in the Executive Branch, at least until each decision had the signature of the President and had, thereby, become, literally, a fait accomplit. 

The legal doctrine much favoured in these opinions concerned the Constitutional powers of the President as Commander in Chief. Having declared a new kind of war, the argument claimed that the President’s executive powers arising from his Commander in Chief status made him and those who acted in his name exempt both from international treaties to which the United States had made itself bound and from much domestic law including that which incorporated those treaties. The opinions which expressed these extreme and novel arguments often cited earlier papers by that opinion’s authors as authority for the propositions on which the opinion relied.

The Dark Side ensures reader interest, inter alia, by the way in which the backgrounds and personalities of the key actors emerge from the pages. The reader comes to understand from where each actor is coming. As the description of discussions held and decisions made proceeds, however, the eye-witness accounts which have informed the author allow the reader to see those personalities and motivations in play with her own mind’s eye.

Thus, David Addington, Cheney’s chief of staff and ultra-conservative lawyer and devotee of some form of Presidential equivalent of the Stuarts’ divine right of kings, can be seen, from start to finish, asserting the authority of his boss and the President, ranting and raving in the mode of the perfect bully whenever he considers it necessary or beneficial. 

The main source of the legal opinions which determined so much of the policy of the Bush administration was an American lawyer of Korean heritage, John Yoo. As conservative as Addington but with a deceptively reasonable presentation, Yoo was Deputy Chief of the Office of Legal Counsel (“OLC”) in the Department of Justice. OLC opinions have an imprimatur similar to those of the Solicitor-General in the Queensland and Australian governmental system, being almost equivalent in terms of their authority to decisions of the Supreme Court. For actors engaging in activity of questionable legality on behalf of the government, such opinions, if favourable to the legality of those actions, have been described as “golden shields”. Yoo issued his first opinion relating to the response to the Twin Towers attacks on 25 September 2001 entitled The President’s Authority to Conduct Military Operations against Terrorists and Nations Supporting Them”. He has since become much more famous for being the author of what are now described as “the Torture memos”.

Between them, Addington and Yoo brought together a five man club which they called “The War Council”. It was this group of people who virtually ran, on behalf of Cheney and in the name of the President, national security policy, effectively, to the exclusion of everyone else who would normally expect to be involved in that policy making process. The Club consisted of Addington and Yoo, together with Timothy Flanigan, a lawyer in the White House Counsel’s Office, Alberto Gonzales, then the White House Counsel, and Jim Haynes, General Counsel at the Pentagon. Each member of the War Council was ideologically in tune with and dependant on either Addington or Cheney for their positions and their influence. The five socialised together and worked closely together, often bypassing or going over the heads of their nominal bosses in the administration. Together, they delivered to Cheney his objective of running the Administration in accord with his vision, a vision which they shared.

This vision resulted in a number of different actions. The CIA, with Cofer Black as a key driving influence, came up with a prescription for a number of actions to be carried out by that Agency. Rendition to friendly security agencies for interrogation under torture; secret black prisons scattered around the world; and the CIA’s own enhanced interrogations involving waterboarding and other forms of what everyone but John Yoo would consider torture formed part of that prescription. The lawyers in the Administration, driven by Addington and with Yoo as chief scribe, carefully declared it all legal.

Mayer describes the events taking place in the halls of government. She also describes what has become known about what was happening on the ground. The title, The Dark Side, is a reference to a statement made by Cheney in an interview that went to air on the first Sunday after the 11 September attacks. Inter alia, Cheney said: “We’ll have to work sort of the dark side, if you will”. “We’ve got to spend time in the shadows in the intelligence world.”

Six weeks later, hooded men were observed taken an obviously sedated man into a sleek white Gulfstream V jet at Karachi airport before flying off to an unknown destination. The plane was later identified as associated with the CIA. Shortly later, at 9.00 pm on 18 December 2001, masked men dragged two Egyptian asylum seekers, Muhammad Zery and Ahmed Agiza, into an empty office at Stockholm’s Bromma Airport where they cut off their clothes, sedated them with anal suppositories, dressed them in orange jumpsuits and hoods, placed them in hand cuffs and leg irons and flew them in the same Gulfstream V to Egypt. Rendition for the purposes of torture was off and running and the United States (and its allies) were already well and truly on the dark side.

The debate about the effectiveness of coercion and torture as a method of obtaining reliable information is stripped of many of its falsehoods projected by those who practised it and those in the Administration who authorised it. The reader is left with the strong impression that experienced investigators of the FBI and military investigators, using traditional lawful and non-coercive techniques of interrogation, were more likely to obtain better and more reliable information than the techniques launched by and used under the Bush Administration. A comparison is obtained in the case of Ali Abdul Aziz al-Fakhiri, also known as Ibn al-Shaykh al-Libi, who had run Bin Laden’s training camp in Khaldan, Afghanistan. Fakhiri was picked up by the Pakistan Army on 19 December 2001 and handed over, soon after, to the Americans. For several days, FBI investigators conducted an interrogation who had been instructed to conduct themselves as if the questioning was being carried out in their boss’s New York office. Fakhiri provided information; cooperated; and expressed interest in a deal by which his wife could emigrate to the United States. Further information which would assist prosecutions already on foot in the United States appeared to be forthcoming. It was then, as the important process of building trust was going on, that a CIA officer broke into the room and shouted at al-Fakhiri: “You’re going to Egypt! And while you’re there, I’m going to find your mother and fuck her”.   

Fakhiri was sent to Egypt and his false (and later recanted confessions) linking Saddam Hussein’s regime in Iraq with Al Qaeda was used by the Bush Administration to justify its invasion of Iraq (including Colin Powell’s infamous presentation of “evidence” to the United Nations. Since The Dark Side was published in 2008, reports have emerged that Al-Fakhiri was sent by the United States to Libya where he died allegedly as a result of suicide in 2009.

The evidence from this example suggests that most claims for the effectiveness of the use of torture as a means of obtaining reliable information (apart from its immorality) are themselves not credible.

The Dark Side presents the known detail of many of the other examples of “interrogation” resulting from the decisions to approve enhanced methods by the Administration which have come to light. These include the experiences of the American Islamist, John Walker Lindh, who, inter alia, was kept blindfolded, naked and bound to a stretcher with duct tape prior to his “confession”; Khalid Sheikh Mohammed, whose experiences with being water boarded may provide an important focus of his apparently forthcoming criminal trial; Mohammed al-Qahtani, detainee 063 at Guantanamo (whose treatment was the principal subject of Philippe Sands’ The Torture Team), whose interrogation log indicated the depths to which military interrogators had been permitted to go at that institution; and the death of Manadel al-Jamadi, who died while being interrogated by the CIA in Abu Ghraib prison in Iraq and whose dead body (with a smiling female soldier Sabrina Harmon giving a gloved thumb up) features in the Abu Ghraib photographs, are all chronicled in convincing detail. So is the experience of Khaled el-Masri, the perfectly innocent car salesman from Ulm in Germany, whom the CIA kidnapped to Afghanistan and held for 149 days despite the fact that, from the very beginning, there was a strong suspicion among CIA officials that he was completely innocent.   

The Dark Side is not only about villains among the lawyers and officials in Washington and the interrogators who carried out their instructions. Among the heroes are those, often of unquestionable Conservative political adherence, who questioned and opposed the policies which Cheney had managed to foist on the United States. These included Alberto Mora, General Counsel of the US Counsel, who fought long and hard to have Donald Rumsfield’s approval of interrogation techniques (of the kind used on al-Qahtani) rescinded. They included Jack Goldsmith, subsequently holding office at the Office of Legal Counsel who wrote opinions rescinding the Yoo torture memos but who eventually felt constrained to resign. They include a number of lawyers who took up the challenge to provide representation to those detained in Guantanamo even when the Administration refused to provide names and refused to provide access. These included British born lawyer, Clive Stafford Smith, who had long worked in the United States on death penalty cases and is now the legal director of British charity, Reprieve, which campaigns against the death penalty. Stafford Smith ended up representing some 128 defendants, including Binyam Mohamed who was released from Guantanamo Bay in February 2009. Litigation on behalf of Binyam has been directed to obtaining access to and public release of classified material showing the complicity of the United Kingdom in the rendition and torture of Binyam. Mayer chronicles how Stafford Smith travelled across the Middle East piecing together information from relatives as to prisoners who might be in Guantanamo. Having finally cracked it for a visit on behalf of one prisoner, he then managed to have himself appointed to act for a large number of other prisoners, eventually, managing to shed a ray of legal light into Cheney’s deliberately fashioned legal black hole.

The Dark Side remains hugely important a year or more after its publication. The election of a person with an African American heritage to the Presidency of the United States has not produced consensus or a desire by the Right to acknowledge the errors of the Bush Presidency and to seek absolution for those errors. Rather, the type of ideological litmus test applied to other members of the Administration by Cheney and Addington has become mainstream Republican policy. In the process, one can expect much re-writing of history and much sweeping of ugly details under carpets woven of fading memory. The detail of what America’s elected government did in the name of fighting terror will be swept away and such actions then repeated if those who care about the rule of law and values enshrined in the American Constitution do not remember and condemn the details of what happened. Careful documentation of what (comparatively little) we know about that recent history is an important part of that process.

President Obama has shown a lack of enthusiasm for ensuring that those who carried out torture as part of the interrogation process are brought to an accounting for those actions. The President has placed weight on the “golden shields” provided by the opinions that emanated from the Office of Legal Counsel and John Yoo. A failure to ensure accountability may be short-sighted in the long run in circumstances where those responsible for those opinions and the policy which both produced and relied upon them show no contrition for those policies.

In the meantime, we must rely on The Dark Side and future books which collate for the reader the continuing trickle of emerging information about the terrible crimes which were committed in the name of preventing crimes of terror.

Stephen Keim S.C.

Footnote

1. Dark Side was published in Australia and New Zealand by Melbourne independent publisher, Scribe. This publication is by arrangement with Doubleday, a division of Random House who published the book in the United States.