The Nation: The Torture Administration By Anthony Lewis

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http://www.truthout.org/docs_2005/120905M.shtml

 

 

 

The Torture Administration

By Anthony Lewis

The Nation

 

26 December 2005 Issue

 

When the Nazis came to power in Germany in 1933 and proceeded to

carry out their savagery, many in the outside world asked how this

could have happened in the land of Goethe and Beethoven. Would the

people of other societies as readily accept tyranny? Sinclair Lewis,

in 1935, imagined Americans turning to dictatorship under the

pressures of economic distress in the Depression. He called his novel,

ironically, It Can't Happen Here.

 

Hannah Arendt and many others have stripped us, since then, of

confidence that people will resist evil in times of fear. When Serbs

and Rwandan Hutus were told that they were threatened, they

slaughtered their neighbors. Lately Philip Roth was plausible enough

when he imagined anti-Semitism surging after an isolationist America

elected Charles Lindbergh as President in 1940.

 

But it still comes as a shock to discover that American leaders

will open the way for the torture of prisoners, that lawyers will

invent justifications for it, that the President of the United States

will strenuously resist legislation prohibiting cruel, inhuman or

degrading treatment of prisoners-and that much of the American public

will be indifferent to what is being done in its name.

 

The pictures from Abu Ghraib, first shown to the public on April

28, 2004, evoked a powerful reaction. Americans were outraged when

they saw grinning US soldiers tormenting Iraqi prisoners. But it was

seeing the mistreatment that produced the outrage, or so we must now

conclude. Since then the Bush Administration and its lawyers have

prevented the release of any more photographs or videotapes. And the

public has not reacted similarly to the disclosure, without pictures,

of worse actions, including murder.

 

The American Civil Liberties Union released documents on

forty-four deaths of prisoners in US custody, twenty-one of them

officially classified as homicides. For example, an Iraqi prisoner

died while being interrogated in 2004. He had been deprived of sleep,

exposed to extreme temperatures, doused with cold water and kept

hooded. The official report said hypothermia may have contributed to

his death.

 

Writing recently in The New Yorker, Jane Mayer described the

killing of an Iraqi prisoner, Manadel al-Jamadi, in Abu Ghraib in

2003. His head was covered with a plastic bag, and he was shackled in

a position that led to his asphyxiation. The death was classified as a

homicide. But so far no charges have been brought by the Justice

Department against the man who had custody of the prisoner, a CIA

officer named Mark Swanner.

 

In addition to murder and torture, humiliation and indignity have

been widely used as aids to interrogation. Time quoted at length

earlier this year from the official log of how one prisoner in

Guantánamo Bay, Cuba, was interrogated. Over a period of weeks he was

questioned for as long as twenty hours at a stretch, forbidden to

urinate until finally he " went " on himself, made to bark like a dog.

His treatment was an exercise in humiliation. Other reports have

described prisoners chained hand and foot to the floor for twenty-four

hours, until they urinated and defecated on themselves.

 

Several provisions of law forbid not only torture but humiliation

of prisoners. The Geneva Conventions prohibit " outrages upon personal

dignity, in particular humiliating or degrading treatment " of war

captives. The UN Convention Against Torture condemns " cruel, inhuman

or degrading treatment " -and Congress enforced the provisions of the

convention in a criminal statute. The Uniform Code of Military Justice

makes cruelty, oppression or " maltreatment " of prisoners by US forces

a crime.

 

Then how can it be that hundreds of Americans, at a modest

estimate, have been involved in the tormenting of prisoners, using the

" waterboard " technique to bring them to the brink of drowning, beating

them or worse? The answer is that the cue for these outrages came from

the top of the American government.

 

Soon after the terrorist attacks of September 11, 2001, the

Justice Department-then under Attorney General John Ashcroft-began

producing memorandums that opened the way to torture and mistreatment

of prisoners. The memos gave an extremely narrow definition of

torture: producing pain equivalent to that from " serious physical

injury, such as organ failure, impairment of bodily function, or even

death. " They argued that the President, in his constitutional role as

Commander in Chief, had the power to order the use of torture no

matter what treaties or US statutes said. And they said the Geneva

Conventions did not apply to the prisoners at Guantánamo.

 

It is important to note that these legal opinions came almost

entirely from political appointees, not longtime Justice Department

lawyers. Similarly, Defense Secretary Rumsfeld and his aides overrode

objections from most military lawyers and other officers. Secretary of

State Colin Powell, former chair of the Joint Chiefs of Staff, was a

notable opponent of the memos.

 

The very purpose of these radical legal opinions was to override

objections to torture from those in the services and the law who

wanted to carry on the American tradition of humane treatment of

prisoners. And there was a further, crucial purpose: to immunize those

who actually carried out torture or inhumane treatment from criminal

prosecution. If charged, they could maintain that their actions were

authorized from above.

 

One more legal interpretation by the Bush lawyers, especially

clever, should be mentioned: It concluded that the Convention Against

Torture (and its enforcement by criminal statute) did not apply to

actions taken against non-Americans outside the United States-for

example, the torture of Jamadi in Abu Ghraib under CIA auspices. A

soldier who tortured would still be subject to the Uniform Code of

Military Justice. But under this legal theory no criminal law would

apply to a CIA torturer. It was to preserve this impunity that Vice

President Cheney fought to exempt the CIA from the ban on cruel,

inhuman or degrading treatment proposed by Senator John McCain and

passed, 90 to 9, by the Senate.

 

When George W. Bush was asked about torture in early November, he

said: " Any activity we conduct is within the law. We do not torture. "

How could he say that after the hundreds of convincing reports of

torture and maltreatment? One possible answer is that he has not

allowed himself to know the truth. Another is that his lawyers have so

gutted the law governing these matters that not much, in their view,

is unlawful.

 

But there is another explanation for Bush's words: confidence that

words can overcome reality. Just as a large part of the American

people could be led to believe in nonexistent links between Saddam

Hussein and the 9/11 bombers, so it could be persuaded-in the teeth of

the evidence-that " we do not torture. " And there is reason for that

confidence.

 

Congress has shown no great zeal for tracking down responsibility

for the abuse of detainees in Iraq, Afghanistan and Guantánamo Bay. It

has reacted with the equivalent of a yawn to the disclosure of

" extraordinary rendition, " the shipment of prisoners to Egypt, Syria

and other places where torture is common practice. The Senate, moved

by the power of John McCain's example, voted for his ban on prisoner

abuse. But then it approved a devastating prohibition on the use of

habeas corpus by Guantánamo prisoners to test the lawfulness of their

imprisonment.

 

The truth is that most members of Congress are scared to do

anything that could be portrayed, in a campaign, as being soft on

terrorists. They worry that if there is another terrorist strike in

this country, any vote to hold true to the law of war or even to

investigate what has happened could be held against them.

 

Playing cat's-paw to the Administration, Congress has turned aside

all demands for an independent investigation of Abu Ghraib and the

other horrors-and of the policies that led to them. When Dana Priest

of the Washington Post uncovered the chain of secret CIA prisons

around the world, the reaction of Republican leaders of the House and

Senate was not to look into the agency's doings but to demand an

investigation of the leak.

 

The press has provided flickering light on the torture scandal,

with some notable stories but not the sustained, relentless attention

of Watergate. In the daily papers the outstanding performer has been

Priest, who uncovered the Justice Department memos that took such a

permissive view of torture. Seymour Hersh told us about Abu Ghraib and

much else in The New Yorker.

 

The public, as I have indicated, seemed to lose its sense of

outrage once the visual evidence from Abu Ghraib faded. As in every

war through American history, it looked primarily to the President to

ease its anxiety. The fear aroused by September 11 did not easily

dissipate.

 

Not one of the major actors in the torture story has been

effectively called to account: not Rumsfeld, who loosened the rules on

interrogation of prisoners; not Alberto Gonzales, now Attorney

General, who as White House Counsel approved the torture memorandums;

and not the Justice Department lawyers who wrote them.

 

Among those officials there is no sign of repentance. One of them

has indeed become a kind of preacher of the legitimacy of using

pressure on suspected terrorists. He is John Yoo, who was a lawyer in

the Justice Department's Office of Legal Counsel from 2001 to 2003 and

is now a professor at the law school of the University of California,

Berkeley, and a visiting scholar at the American Enterprise Institute

in Washington. In frequent television appearances and public forums he

argues a theme of those torture memos: that President Bush as

Commander in Chief is empowered by the Constitution to order what

treatment he wishes for detainees in the " war on terror. " His

constitutional argument, that the Framers of the Constitution intended

to clothe the President with the war powers of a king, conflicts with

the near universal understanding of the constitutional text, with its

careful balancing of executive, legislative and judicial power.

 

A New York lawyer who has contributed greatly to exposure of the

torture phenomenon, Scott Horton, has suggested that Yoo's views echo

those of a German legal thinker of the period between the world wars,

Carl Schmitt. Schmitt argued that when it came to degraded enemies

like the Soviet Union, the idea of complying with international law

was a romantic delusion. The enemy, rather, must be seen as

absolute-stripped of all legal rights.

 

Those who want to relax the laws against torture often make the

" ticking bomb " argument: that if a prisoner may know the location of a

bomb set to go off shortly, torturing him is justified to save lives.

If captors believe that, they may well resort to forceful

interrogation. But to write such an exception into the rules invites

the systematic use of torture. I had a lesson in the danger of the

ticking-bomb argument years ago in Israel. I was interviewing Jacobo

Timerman, the Argentine publisher who was imprisoned and tortured by

the military regime that for a time took over Argentina. (Intervention

by the Carter Administration saved Timerman's life; on release from

prison he immigrated to Israel.) Timerman turned the interview around

and asked me questions about torture, positing the ticking-bomb

situation. I tried to avoid the question, but he pressed me to answer.

Finally, I said that I might authorize torture in such a situation.

" No! " he shouted. " You must never start down that road. "

 

Americans are not immune from evil; no people are. We know now

that American soldiers, improperly led, can beat to death prisoners

they have in their minds dehumanized. What can we do to limit the evil?

 

Investigation is one idea, widely endorsed. An independent body

like the one that carried out the 9/11 investigation could tell us

much that we do not know: not just an authoritative account of the

wrongs done but a timeline of the official opinions and actions that

opened the way for them. But I think a more effective solution would

be the appointment of a special prosecutor. He or she would have the

power not just to find the facts but to prosecute the wrongdoers. For

we must not forget that not only treaties but criminal laws forbid the

torture, mistreatment and humiliation of those we take in conflict.

 

It is unimaginable that President Bush would agree to a special

prosecutor for war crimes if ever the public and Congress grew

exercised enough to demand one. But you never know about history. The

other day, on the sixtieth anniversary of the Nuremberg prosecution of

Nazi officials, Scott Horton recalled that Nuremberg established the

principle of command responsibility for abuse-and punished those who

wrote legal memorandums counseling German officials to ignore the

conventions protecting prisoners.

 

The chief American prosecutor at Nuremberg, Justice Robert H.

Jackson of the Supreme Court, warned that " the record on which we

judge these defendants today is the record on which history will judge

us tomorrow. To pass these defendants a poisoned chalice is to put it

to our lips as well. "

 

Horton said the moment of historical reckoning for American

officials may come. " A number of key Bush officials, " he wrote, " are

more likely to be the Pinochets of the next generation-blocked from

international travel and forever fending off extradition warrants and

prosecutors' questions. "

 

 

 

Go to Original

 

Conspiracy to Torture

The Nation | Editorial

 

Thursday 08 December 2005

 

Torture is about acts: the blow to the head, the scream in the

ear, the scar-free injuries whose diagnosis has become an

international medical subspecialty. But torture is also very much

about words: the whispered or shouted questions of the interrogator;

the muddled confession of the prisoner; the too rarely tested language

of laws protecting prisoners from " cruel, inhuman or degrading " treatment.

 

Consider just two words: " command responsibility. " Those words

stand among the most resolutely enduring principles established after

World War II by the Nuremberg Tribunals. Today they pose a special

threat to President Bush, Vice President Cheney and the other

officials who actively promote what Secretary of State Rice, in

Germany, insisted the Administration " does not authorize or condone. "

To carry out physically and psychically brutal interrogations outside

all international norms has required the Administration to corrupt the

ordinary meaning of language itself. " We do not torture " (Bush). " What

we do does not come close to torture " (Director of Central

Intelligence Porter Goss). Such denials continue despite twelve

reports from the Defense Department documenting the opposite-never

mind Congressional testimony, journalistic investigations and NGO

reports making common knowledge of waterboarding, sleep deprivation,

near-fatal beatings and mock executions.

 

Indeed, there is no point in arguing about whether US policy

condones cruel, degrading or torturous treatment of prisoners.

Practices authorized by Rumsfeld on a small scale in Afghanistan have

now metastasized into a worldwide network of prisons, detention

centers and surrogates ranging from private contractors to

authoritarian foreign governments. What Rice defended to European

critics-and what has Cheney at loggerheads with John McCain-is not

merely a desire to take the gloves off in the occasional back room in

Bagram or Baghdad, as the Administration's apologists insist. Rather,

it is a wide-ranging conspiracy to facilitate torture, in which many

sectors of American society are now implicated. The new torture

complex-centered in the executive branch of the government but with

tentacles throughout the country-is the subject of this special issue,

which spotlights both collusion and resistance in key American

institutions: the military, the law, medicine, media, the academy.

 

The Administration's adherence to systematic torture and

extralegal imprisonment not only accelerates the race to the bottom in

human rights; it is even tying anti-terrorism policy in knots. Take

the case of José Padilla, the US citizen imprisoned as an enemy

combatant for his supposed participation in a " dirty bomb " plot. In

November the Administration finally indicted Padilla on charges

unrelated to any dirty bomb. Why? At least in part because Padilla was

arrested on the basis of information extracted from Khalid Shaikh

Mohammed, whose interrogation included waterboarding. The case is a

colossal failure in terms both moral and pragmatic: Either Padilla was

never part of a bomb plot, in which case Khalid Shaikh Mohammed's

original statement demonstrates the unreliability of confessions

obtained under torture, or effective anti-terrorism prosecution was

undermined by reliance on illegal methods.

 

The question is not whether the United States instigates torture

but how to put this evil genie back in the bottle. The first step is

to confront the culture of denial. Where, for instance, are Khalid

Shaikh Mohammed and Abu Zubaydah? It has now been two years since

those Al Qaeda operatives were " disappeared " into the netherworld of

CIA " black sites. " It is time to puncture the secrecy bubble, to

ascertain the whereabouts of these men and charge them criminally for

September 11. Human Rights Watch has identified twenty-four additional

" ghost detainees. " So long as Congress gives implicit permission to

keep such detainees under wraps, the principles that facilitate

torture are kept alive.

 

The McCain defense appropriations amendment is a crucial step. His

amendment is a powerful reaffirmation of the nation's responsibilities

under domestic war crimes law and international anti-torture

covenants. It's imperative that the House of Representatives, where

the White House enjoys more leverage, not dilute the McCain amendment

in the appropriations conference negotiations. It's just as important

that the conference committee reject Lindsey Graham's amendment, which

would strip Guantánamo prisoners of habeas corpus rights-and thus

their ability to protest effectively their " cruel, inhuman or

degrading " treatment in US custody.

 

The acceptance of torture amounts to a crisis of democratic

culture, requiring patient cultivation of outrage on the part of the

antiwar movement and human rights campaigners. Activist groups beyond

the human rights lobby, like MoveOn.org, are beginning to focus on

torture as a political issue, a welcome development. Whether from

activists or Congress, few steps matter as much as encouraging and

protecting whistleblowers at all levels of the military and

intelligence agencies. Truth-telling by soldiers, officers,

intelligence operatives and Administration officials is the best hope

for dismantling the torture regime. That Colin Powell's former chief

of staff, Lawrence Wilkerson, is now denouncing Cheney for providing

" philosophical guidance " for torture is evidence of how high

whistleblowing can go. To everyone with knowledge of the torture

system, the message is simple: As Daniel Ellsberg wrote last year, " Do

what I wish I had done in 1964: Go to the press, to Congress, and

document your claims. "

 

More than enough evidence has already accumulated to justify a

criminal investigation of the renditions, secret prisons and

interrogations, which together amount to a conspiracy to violate a

host of federal statutes and constitutional procedures. Senator Carl

Levin and many human rights advocates make the case for a 9/11-style

truth commission. But the torture conspiracy is crying out for a

special prosecutor, as Anthony Lewis argues forcefully on page 13. The

Justice Department and Attorney General, so deeply and personally

implicated in the torture conspiracy, cannot be trusted to investigate

themselves. And the military's criminal-investigation system in

torture cases is woefully inadequate, as Tara McKelvey reveals on page

15. It's time for an outside authority to step in-one vested with

power to hold military higher-ups and White House officials criminally

liable.

 

If American institutions don't act, prosecutors and parliaments

abroad will. Already, kidnappings and renditions have spawned criminal

inquiries in Italy, Sweden and Canada, while the EU and Council of

Europe investigate the black sites. In many European nations, victims

of human rights violations enjoy broad standing to bring legal

action-as General Pinochet learned in England. The more information

leaks out, the less frivolous is the fantasy of Rumsfeld, Cheney,

Attorney General Gonzales and other complicit officials unable to

travel to Europe without fear of being served with papers. The

Administration may be scornful of international human rights

covenants. But in recent death-penalty and gay-rights cases, the

Supreme Court majority has taken pains to indicate that international

human rights standards do matter in American law, in the noble

tradition of " a decent respect to the opinions of mankind " articulated

by the Declaration of Independence.

 

If the twentieth century proved anything, it is that no nation, no

constitutional system, is immune from the downward human rights spiral

signified by torture-as Britain, France and Israel, among other

nations, learned at great political cost. The purpose of this special

issue is to confront the sweeping moral seriousness of the American

torture crisis of the twenty-first century. The point is not so much

that we are " better than our enemies, " as Senator McCain and others

have argued, but that our democratic institutions are vulnerable to

erosion. The outline of the torture conspiracy is clear, but the full

facts need to be exposed and the chain of responsibility definitively

established. History will judge the Bush Administration's torture

policy in the same harsh light as Jim Crow, McCarthyism and the

Japanese-American internment. The conspirators must be held accountable.

 

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