torture

War Without End

Digby — Wed, 03 Jun 2009 07:01:00 -0400

Marcy Wheeler hosted a panel on torture at the AFN conference featuring Rep. Jerry Nadler and Christopher Anders of the ACLU, in which Nadler set forth a couple of ideas that are illuminating about the thinking among political players on the subject.

Marcy writes about one of them here:

Yesterday, Jerrold Nadler announced he will hold a hearing on state secrets on Thursday.

Congressman Jerrold Nadler (NY-08), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, will chair a legislative hearing on H. R. 984, the State Secret Protection Act of 2009, his bill to reform the state secret privilege. This hearing will examine the standard of review for what qualifies as a state secret and how best this privilege should be reformed. The hearing will take place on Thursday, June 4th at 2:00pm in Rayburn House Office Building, Room 2141, Washington, D.C.

The state secret privilege allows the government to withhold evidence in litigation if its disclosure would harm national security. The purpose of the privilege is to protect legitimate state secrets; but if not properly policed, it can be abused to conceal embarrassing or unlawful conduct whose disclosure poses no genuine threat to national security. Nadler's bipartisan bill, the State Secret Protection Act of 2009, co-sponsored by Rep. Thomas Petri (WI-6), would ensure meaningful judicial review of the privilege and prevent premature dismissal of claims. The bill aims to curb abuse of the privilege while protecting valid state secrets.

As it happens, at the same time they announced this, Nadler was speaking on a panel with me about accountability for torture (I'm looking for video--but it may take a while to find it). And he focused closely on state secrets.

Interestingly, he was speaking of state secrets as a means of accountability for not just torture but (obviously) illegal wiretapping.

Mind you, Nadler is also pushing for an independent prosecutor on torture, so he's not proposing lawsuits as the sole means for accountability. But he's thinking of it as a means for accountability.

It seems there are a few problems with that. First, timing. Yes, if state secrets were changed, Binyam Mohamad's suits could move forward. But for others, a lawsuit would just begin to wend its ways through the courts, but take years and years to resolve.

Furthermore, it's not just state secrets that protects the wrong-doers. It's also protections of federal employees from suit. While a lawsuit might expose the wrong-doing of the Bush Administration, it's not going to land Dick Cheney in jail.

Nadler is a stalwart fighter of the good fight on these issues, so this isn't critical of him. It seemed to me to be a reluctant acceptance that the only place where we can probably expect any kind of accountability --- and clearly not any kind of criminal liability --- is in the civil courts. It's a damning admission of the uselessness of the congress in these matters but I think it's sadly realistic.

I was also struck by Nadler's commentary about the prospect of preventive detention. As a civil libertarian he is obviously not in favor of such a thing, but his solution was somehat odd. He claimed that the Guantanamo prisoners should be considered POWs, even though they weren't captured wearing a uiform, which at first blush sounds reasonable. After all, if they are captured on a battlefield shooting at soldiers in what both sides consider a war, they should be prisoners of war and according to the Geneva Conventions could be held for the duration.

The problem is that there's no mechanism for "winning" this war --- or surrendering. If bin Laden emerged from a "spidey hole" tomorrow, it would be meaningless for this purpose. There's no land to occupy and no one with whom to negotiate a settlement. We could just theoretically declare the "war" to be over, but I would guess that's about as likely as declaring that Swedish is the new official language of the US. All of this just adds up to POW status being indefinite detention by other means.

It's a thorny problem no matter how you look at it, unless the government just simply decides to take their chances that these people can be convicted before an American jury, which if the recent trial of the clearly tortured Jose Padilla is any example, shouldn't be that difficult. My suspicion is that most officials are more afraid of what will come out in a trial rather than the outcome. In Nadler's case, that clearly isn't the aim, but legalizing the prisoner's status to conform to the Geneva Conventions can't solve the problem if the "war" has no mechanism for conclusion. Indeed, the one thing such a thing will do is legalize the notion that the country is permanently at war. And when you think about it, hasn't that been true pretty much since WWII?

And that may be the biggest elephant in the room of all and the one thing nobody wants to talk about --- can America not be at war?

The Truth About Consequences: Conservatives, Progressives, and Accountability Moments

Sara Robinson — Tue, 21 Apr 2009 21:59:51 -0400

Whew. Run your bank into the ground? Hey, it was our fault for not keeping a better eye on you. Here's some cash. Since you're rich guys, we trust you to do the right thing going forward, so we're not going to bother you with a bunch of rules and oversight—but you promise to be good now, 'K?

Also, you Bush guys and CIA operatives who thought torture was a fine idea? Yeah, we know we've signed a bunch of treaties that unequivocally require us to bring you up on charges; but we're looking forward now, not back, so, y'no, whatever. It was pretty ballsy of a few of you to actually admit to committing war crimes in public. We know from "audacity" (it's our middle name, in fact), and that was audacity with the gain turned up to 11. I mean, really: We're impressed. Shocked and awed, even. But we're not gonna hassle you about ancient history, because it's so much more important that we keep our eyes firmly on the future. Just promise you won't do it ever ever again, all right?

It's interesting to watch the Democrats trying to work some life back into their long-neglected oversight muscle. Thirty years of conservative misrule have muddled Americans' understanding of words like responsibility, accountability, discipline, and punishment to the point where nobody knows that they mean any more—and don't seem to want to know, either. The social conservatives go on and on about the evils of postmodern morality and situational ethics; and on this score, I can't quite summon myself to disagree. It's been as though nobody on Planet Washington ever had a parent who was able to explain right from wrong, or demonstrate the role cause-and-effect plays in the ethical universe. It's like a moral-gravity-free zone.

Stuff happens. Whatever.

I am neither an ethicist nor a philosopher. But I am a mother, and know a thing or two about disciplining children. (I've got a freshly grounded teenager pouting upstairs right now who would be delighted to tell you all about it. At length. With loud choruses of what a Mean Mommy I am. What he doesn't know is: I take that tune as a clear sign I've done my job right.) And, as an observer of the differences between conservatives and liberals, I know that our attitudes toward discipline—whether it's children or adults who are being called to account—is one of our core areas of disagreement.

Understanding that difference may explain something about how we got here.

For conservatives, the goal of discipline is to assert the power of external authority. In their worldview, most people aren't capable of self-discipline. They can't be trusted to behave unless there's someone stronger in control who's willing to scare them back into line when they misbehave. Don't question the rules. Don't defy authority. Just do what you're told, and you'll be fine. But cross that line, dammit, and there will be hell to pay.

In this view, the whole point of punishment is for greater beings (richer, whiter, older, male) to impress the extent of their authority upon lesser beings (poorer, darker, younger, female). I'm in control, I make the rules, and I'm the only one of us entitled to use force to get my way. Since emotional and/or physical domination is the goal, the punishments themselves often use some kind of emotional or physical violence to drive home that point. Spanking, humiliation, arrest, jail and torture all fill the bill quite nicely. I'm not interested in what you think. Do as I say, or I will be within my rights to do whatever it takes to make you behave.

Note, too, the hierarchical nature of this system. Those at the top of the heap enjoy the freedom that comes with never being held accountable by anyone. This exemption is implicit in conservative notions of "liberty," and is considered an inalienable (if not divine) right of fathers, bosses, religious leaders, politicians, and anyone else on the right who holds power over others. The privilege of controlling others' liberty, without enduring reciprocal constraints on your own, is at the heart of the true meaning of "freedom."

Liberal parenting books, on the other hand, talk a lot about "logical and natural consequences." Since liberals believe that most people are perfectly capable of making good moral choices without constant oversight from some outside authority, the goal of discipline is to strengthen the child's internal decision-making skills in order to prepare him for adult self-governance.

Wherever possible, parents are encouraged to do this by letting misbehaving kids live with the natural consequences of their own bad choices. I'm not mad at you. I still love you. But you spent all your allowance on Tuesday, and now you get to be broke until Saturday—and I'd be lying to you if I let you think that the world works any other way. Since you two can't figure out a peaceable way to share that toy, I'm going to take it away. Now that you've annoyed the bus driver to the point where the principal had to call me and put you off the bus for a week, you're not going anywhere else for a while, either—including that big event this weekend you've been looking forward to for the past two months.

Ah...I've said too much. But you get the point: Conservative discipline is all about reinforcing power hierarchies and achieving control through "respect" (that is: fear), and liberal discipline is about teaching accountability and reinforcing the consequences of one's own choices. And I think the muddle we're hearing out of Washington these days is based on the seriously crossed wires between these two ideas of accountability. We're all using the same words, but we're also all hearing very different things.

Let's be clear: Our system of laws was built entirely on the liberal model. The objective of a hearing, investigation, or trial is to dispassionately discover the facts of the matter, and make sure that the consequences are as natural and logical (read: fair) as possible. We're not judging your inherent worth, just your actions. We are forbidden from using force, or punishing you just to prove to you that we can. We have a sacred obligation to ensure that the consequences are more or less proportional to the crime. A good chunk of our Bill of Rights is devoted to making sure the conservative notion of punishment—the arbitrary exercise of power for power's sake—doesn't ever become part of our system of justice.

Given that, we need to be very concerned that the Democrats, as the liberal party, have apparently completely forgotten how any of this is supposed to work. These days, when you broach the subject of holding someone accountable, they physically seize up. You can actually see the wave of terror gripping their bodies. Over the past 20 years, they've completely internalized the conservative frame that "accountability" can never be anything but an ugly partisan witch hunt designed mainly to take out enemies and bludgeon the other side with the full fury of state power. The idea that such moments might be (and, in fact, very often have been) something noble, fine, cleansing, and healthy for the country is almost beyond their comprehension. Pecora? Truman? Ervin? Church? That was a long time ago. We couldn't possible do that sort of thing any more.

When you think about it, it's not hard to see how this dangerously uniform bipartisan consensus against creating actual "accountability moments" came about. The bracing revelations of Watergate were followed by the Church investigations and Iran-Contra—all of which were liberal-style open inquiries that sought nothing more than to establish the truth and restore justice, but shook conservatives to the core. What the Democrats saw as doling out logical and natural consequences (break the law, go to jail—what's so hard about this?) the conservatives experienced as being on the receiving end of an authoritarian-style punitive smackdown. They were powerful people, above punishment. This wasn't ever supposed to happen to them. (How dare they challenge our authority?) Being who they were, they couldn't help seeing it as anything other than pure payback, a raw demonstration of power. And the only appropriate response was to show the Democrats how very, very out of line they were—by disciplining them in the conservatives' preferred way, with a show of unrepentant and overweening force.

Which, of course, led to the full frontal assault on Bill Clinton. They had to teach that boy who was boss, and get him back in line. The Democrats, in turn, were so stunned by the ferocity of the whole thing (there was nothing logical or natural about any of it) that they decided, en masse, to make sure it never happened again.

Unfortunately, they did this by giving up and swallowing the conservative frame whole. Yep, we get it now: "accountability" is only ever a synonym for "ugly brutal partisan persecution," and we don't want any part of it. Even more unfortunately, this abdication happened just in time for the arrival of George W. Bush—who, as his own parents might be the first to tell you, is the one president in history most likely to grab hold of that lack of oversight and run with it all the way to the end zone, thus clinching the all-time record for Most Fascist President.

I don't have research on this, but I'm pretty sure that after eight years of the most lawless presidency in history, most of us had "restoring real accountability" fairly high up on the Hope and Change list when we cast our votes for Barack Obama. We were craving that even-handed, reasonable, cleansing moment—a season of transparency that would show us where we went wrong, let some air and light into the wounds, and allow us to begin to heal. He sounded for all the world like the kind of morally serious person who understands the difference between right and wrong—and between that kind of old-fashioned even-handed inquiry that simply finds what it finds and deals with miscreants without fear or favor, according to the demands of the law; and a partisan witch hunt that's conducted for no higher purpose than terrorizing your opponents into submission with naked displays of unchecked power. He seemed like just the guy to do it.

So the last thing we expected was to hear him warbling that same terrified-Democrat line, starting within days of his inauguration. Fortunately, as outrage over the torture memos spreads, both the President and Congressional Democrats seem to finding their moral feet again. And not a moment too soon, either—because if they blow this one, it's nothing short of the end of America as we know it.

When the administration says that "we're not looking backward" and "we're not out to assign blame or punish anyone," what it's really saying is that there no longer any real relationship between cause and effect in our government. The very idea of consequences has absolutely no meaning. If you have access to enough money and/or power, there is nothing you can say or do, no amount of money you can steal, no lie perfidious enough, no fraud brazen enough, no treason heinous enough, to get you so much as called up before a hearing to explain yourself.

And that's a truly frightening development. A government that cannot fairly, honestly, transparently hold people to account—where, in fact, nobody can apparently even imagine that such a thing might be possible—is by definition, no longer a government of laws, because the law depends on a strong relationship between cause and effect. When our leaders have so thoroughly internalized the idea that the only possible use of justice is to use government force to seize political advantage or economic power over other people, we've pretty much irrevocably passed the point where we are now a government of men. When even liberals resign themselves to those medieval conservative ideas about justice as our new national norm, they have failed the country—and we have ceased to be America.

The truth about consequences is this: There can be no restoration and reconciliation until people are reassured that the outcome will actually matter, that the real story will be told, and that people will be held accountable for their choices. They are also the very definition of justice, and the necessary precondition of freedom. The most important change we need right now is leaders with a quickening sense of liberal discipline—including the self-discipline and moral courage to stop looking the other way.

President Bush was confused by what “Waterboarding” meant.

James Clarke — Wed, 15 Oct 2008 13:18:23 -0400

According to The Washington Post George W. Bush explicitly endorsed the CIA's use of ~~torture~~ interrogation techniques such as waterboarding against al-Qaeda suspects, despite his repeated assertions that "The United States Doesn't Torture".

Even though it's common knowledge, "George W. Bush is a liar" is really becoming a boring explanation for why the credibility of his statements doesn't hold up.

So here's a new explanation: George Bush was telling the truth, in a manner of speaking. The reason that President Bush's explicit endorsement of waterboarding doesn't contradict his assertion that the "United States Doesn't Torture" is that he misunderstood what "waterboarding" meant when he approved of it.

This is what George W. Bush imagined when he approved of "Waterboarding":

Ashamed to be American

Michael Kwiatkowski — Wed, 07 May 2008 10:34:47 -0400

I was reading Five Years of My Life: An Innocent Man in Guantanamo

Weekend Watchdog Wrap-Up

Bill Scher — Mon, 14 Apr 2008 10:05:35 -0400

A particularly shameful day for the Sunday shows, which once again went 0-for-3 for the Watchdog.

It is simply pathetic that ABC's This Week failed to ask National Security Adviser Stephen Hadley about the latest bombshell report, from ABC no less, that senior Bush administration officials including V.P Dick Cheney and Hadley's then-boss Condi Rice directly approved torture as an interrogation technique.

If Sunday show hosts don't bother to explore the results of strong investigative reporting, that investigative reporting fades in the wind. For ABC, it's a waste of their money to pay for investigative reporting, then not have their Sunday show even mention it. It's not just bad for our democracy, it's bad for their business.

Meanwhile, neither ABC and CBS' Face The Nation (PDF file) asked Hadley or Defense Secretary Robert Gates about Bush's plan to keep tour of duty in Iraq at 15 months throughout the rest of his presidency.

CBS asked Gates generally if he is "worried about the strain on the military troops," and then let him claim the administration is going "back to 12-month deployments," without noting that policy won't go into effect until August 2009, long after Bush is gone.

And while Iran was touched upon by the shows, neither raised the question, "if the Iraqi government can have a diplomatic meeting with Iranian officials, why can't the United States government?"

Why Americans don't torture

William Henry mee — Sat, 23 Feb 2008 13:48:56 -0500

2-17-2008
In the founding of this country, our commanding general in the revolution, George Washington,
was approached by his officers who asked for permission to torture British prisoners. The British used torture-to-the-death for both soldiers and civilians---even women. They were particularly gruesome in their treatment of prisoners and often piled on thousands into prison ships in New York harbor---almost no one survived being a prisoner. Washington decided that a country founded on freedom was better than its enemies and we would not torture. In fact, we would befriend the prisoners and give them the same food and drink that our own soldiers had. This made it easy for the Hessians to surrender at Trenton in 1776. Had they fought the British, who tortured, they would have had to fight to the death instead.

In all of our wars, this practice saved much bloodshed. Wars ended earlier.

In World War II, we were challenged again by the Japanese whose cultural practices could not understand or accept surrender. Yet, we did not torture and held those accountable who did torture through the International Courts. The Japanese used waterboarding against Americans. Many times Americans guess what their captors wanted to hear and they made up information to give them. So how effective is torture?

Nations around the world adopted our practices. To torture now, although convenient---would jeopardize our moral standing in the world. We broke the vicious Japanese and Germans with kindness at their trials. They realized a compassionate democracy was more powerful than any dictatorship or religion.

John McCain is a soldier at heart and incapable of viewing war as a citizen. He is really trying to re-fight the War in Vietnam and win it. A war that was un-winnable as it became a jungle guerrilla war. An un-winnable occupation as the Iraq War has become. McCain cannot let go of his past to accept the future. He cannot accept the fact that we have lost the war in Vietnam just as the Soviets lost the ten year war in Afghanistan (1979-1989). We have won the Iraq War and lost the occupation of Iraq. We lost it when the President and his Administration knowingly lied us into the war---the Iraq people know these facts whether or not the American People choose to believe it or not. We lost this occupation when the troop strength was reduced and when arms were not secured. We lost it when our contracts went only to Bush campaign contributors and huge cost overruns and $9 Billion dollars in missing cash on pallets went unaccounted for. McCain oversaw this and said nothing. This is what also happened in Vietnam so maybe he was use to it. The military industrial complex that President Eisenhower warned us against profited immensely while the nation borne the costs of lives and billions that the Vietnam War cost us.

WHM
Also found this: Post #65. Here we go again. I realize this is "just" a blog, but claiming McCain "voted to allow waterboarding by the CIA" is a bald-faced lie. He voted against the CIA authorization act, which, among other things, restricts the CIA to interrogation methods contained in Army Field Manual 2-22.3. (available at http://www.army.mil/institution/armypublicaffairs/pdf/fm2-22-3.pdf)

The 19 authorized techniques are:

1. Direct Approach
2. Incentive Approach
3 - 9. Emotional Approaches (Love, Hate, Fear-Up, Fear-Down, Pride- and Ego-Up, Pride- and Ego-Down, Futility)
10. We Know All Approach
11. File and Dossier Approach
12. Establish Your Identity
13. Repetition
14. Rapid-Fire
15. Silent
16. Change of Scenery
17. "Mutt and Jeff"
18. False Flag

... and, the harshest interrogation technique allowed by Army FM 2-22.3, so potentially heinous it requires COCOM authorization before it's used (drum roll, please) . . .

19. Separation

Kinda' gives you a warm fuzzy, don't it? It's nice to know that, even as terrorists are smuggling a nuke across our southern border, those entrusted with our security will be trying to talk them out of it by appealing to their better nature.

The fact is, waterboarding is already banned by the Detainee Treatment Act of 2005 (which McCain sponsored). So, why would Democrats include such restrictive language in the 2008 CIA authorization, language which they have to realize would cripple US intelligence operations against Al Qaeda and other terrorist groups? Simply, because they know it will never become law and "useful idiots" in the media will play up the waterboarding angle to give them political leverage in an election year.

Disillusioned Voter at 3:41PM on Feb 16th 2008 to Cenk

Waterboarding for God

OurFuture.org Staff — Mon, 11 Feb 2008 10:00:57 -0500

After one spends 45 years in Washington, high farce does not normally throw one off balance. I found the past few days, however, an acid test of my equilibrium.

I missed the National Prayer Breakfast—for the 45th time in a row. But, as I drove to work I listened with rapt attention as President George W. Bush gave his insights on prayer:

“When we lift our hearts to God, we’re all equal in his sight. We’re all equally precious...In prayer we grow in mercy and compassion.... When we answer God’s call to love a neighbor as ourselves, we enter into a deeper friendship with our fellow man — and a deeper relationship with our eternal Father.”

Vice President Dick Cheney skipped Thursday’s prayer breakfast in order to put the final touches on the speech he gave later that morning to the Conservative Political Action Conference. Perhaps he felt he needed some extra time to devise careful words to extol “the interrogation program run by the CIA...a tougher program for tougher customers, including Khalid Sheikh Mohammed, the mastermind of 9/11,” without conceding that the program has involved torture.

But there was a touch of defensiveness in Cheney’s remarks, as he saw fit repeatedly to reassure his audience yesterday that America is a “decent” country.

After all, CIA Director Michael Hayden had confirmed publicly on Tuesday that Khalid Sheikh Mohammed and two other “high-value” detainees had been waterboarded in 2002-2003, though Hayden added that the technique has since been discontinued.

An extreme form of interrogation going back at least as far as the Spanish Inquisition, waterboarding has been condemned as torture by just about everyone—except the hired legal hands of the Bush administration.

On Wednesday President Bush’s spokesman Tony Fratto revealed that the White House reserves the right to approve waterboarding again, “depending on the circumstances.” Fratto matter-of-factly described the process still followed by the Bush administration to approve torture—er; I mean, “enhanced interrogation techniques” like waterboarding:

“The process includes the director of the Central Intelligence Agency bringing the proposal to the attorney general, where the review would be conducted to determine if the plan would be legal and effective. At that point, the proposal would go to the president. The president would listen to the determination of his advisers and make a decision.”

Dissing Congress

Cheney’s task of reassuring us about our “decency” was made no easier Thursday, when Attorney General Michael Mukasey stonewalled questions from the hapless John Conyers, titular chair of the House Judiciary Committee. Conyers tried, and failed, to get straight answers from Mukasey on torture.

Conyers referred to Hayden’s admission about waterboarding and branded the practice “odious.” But Mukasey seemed to take perverse delight in “dissing” Conyers, as the expression goes in inner city Washington. Sadly, the tired chairman took the disrespect stoically.

He did summon the courage to ask Attorney General Mukasey directly, “Are you ready to start a criminal investigation into whether this confirmed use of waterboarding by U.S. agents was illegal?”

“No, I am not,” Mukasey answered.

Mukasey claimed “waterboarding was found to be permissible under the law as it existed” in the years immediately after 9/11; thus, the Justice Department could not investigate someone for doing something the department had declared legal. Got that?

Mukasey explained:

“That would mean the same department that authorized the program would now consider prosecuting somebody who followed that advice.”

Oddly, Mukasey himself is on record saying waterboarding would be torture if applied to him. And Michael McConnell, Director of National Intelligence, was even more explicit in taking the same line in an interview with Lawrence Wright of New Yorker magazine. McConnell told Wright that, for him:

“Waterboarding would be excruciating. If I had water draining into my nose, oh God, I just can’t imagine how painful! Whether it’s torture by anybody else’s definition, for me it would be torture.”

Okay, it would be torture if done to you, Mike; how about if done to others? Sadly, McConnell, too, missed the prayer breakfast and the president’s moving reminder that we are called “to love a neighbor as ourselves.” Is there an exception, perhaps, for detainees?

Cat Out of Bag

When torture first came up during his interview with the New Yorker, McConnell was more circumspect, repeating the obligatory bromide “We don’t torture,” as former CIA Director George Tenet did in five consecutive sentences while hawking his memoir on 60 Minutes on April 29, 2007. As McConnell grew more relaxed, however, he let slip the rationale for Mukasey’s effrontery and the administration’s refusal to admit that waterboarding is torture. For anyone paying attention, that rationale has long been a no-brainer. But here is McConnell inadvertently articulating it:

“If it is ever determined to be torture, there will be a huge penalty to be paid for anyone engaging in it.”

Like death. Even Alberto Gonzales could grasp this at the outset. That explains the overly clever, lawyerly wording in the Jan. 25, 2002 memorandum for the president drafted by the vice president’s lawyer, David Addington, but signed by Gonzales. Addington/Gonzales argued that the president’s determination that the Geneva agreements on prisoners of war do not apply to al-Qaeda and the Taliban:

“Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441)...enacted in 1996...

“Punishments for violations of Section 2441include the death penalty...

“[I]t is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.”

— MEMORANDUM FOR THE PRESIDENT, January 25, 2002, p. 2

Mike McConnell needs to get his own lawyers to bring him up to date on all this. For that memorandum was quickly followed by an action memorandum signed by George W. Bush on Feb. 7, 2002. The president’s memo incorporated the exact wording of Addington/Gonzales’ bottom line; to wit, the U.S. would “treat the detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of [Geneva]. (emphasis added)

That provided the loophole through which then-defense secretary Donald Rumsfeld and then-CIA director George Tenet and their subordinates drove the Mack truck of torture. Even the Bush-administration-friendly editorial page of the Washington Post saw fit on Friday to declare torture “illegal in all instances,” adding that “waterboarding is, and always has been, torture.”

Waterboarding has been condemned as torture for a very long time. After WW-II Japanese soldiers were hanged for the “war crime” of waterboarding American soldiers.

Patriots and Prophets

Patriots and prophets have made it clear from our earliest days that such abuse has no place in America.

Virginia’s Patrick Henry insisted passionately that “the rack and the screw,” as he put it, were barbaric practices that had to be left behind in the Old World, or we are "lost and undone." Attorney General Mukasey, for his part, recently refused to say whether he considers the rack and the screw forms of torture, dismissing the question as hypothetical.

As for prophets, George Hunzinger of Princeton Theological Seminary has awakened enough religious folks to form the National Religious Campaign Against Torture, a coalition of 130 religious organizations from left to right on the political spectrum. Hunzinger puts it succinctly: “To acknowledge that waterboarding is torture is like conceding that the sun rises in the east,” adding:

"All the dissembling in high places that makes these shocking abuses possible must be brought to an end. But they will undoubtedly continue unless those responsible for them are held accountable.... A special counsel is an essential first step.”

Sadly, Hunzinger and his associates have been unable to overcome the pious complacency of the vast majority of institutional churches, synagogues, and mosques in this country and their reluctance to exercise moral leadership.

How It Looks From Outside

Sometimes it takes a truth-telling outsider to throw light on our moral failures.

South African Methodist Bishop Peter Storey, erstwhile chaplain to Nelson Madela in prison and longtime outspoken opponent of apartheid, has this to say to those clergy who might be moved to preach more than platitudes:

“We had obvious evils to engage; you have to unwrap your culture from years of red, white, and blue myth. You have to expose and confront the great disconnect between the kindness, compassion, and caring of most American people and the ruthless way American power is experienced, directly or indirectly, by the poor of the earth. You have to help good people see how they have let their institutions do their sinning for them.

“All around the world there are those who long to see your human goodness translated into a different, more compassionate way of relating with the rest of this bleeding planet.”

Mukasey’s thumbing his nose at Conyers’ committee yesterday was simply the most recent display of contempt for Congress on the part of the Bush administration. The Founders expected our representatives in Congress to be taken seriously by the executive branch, and expected that Members of Congress would hold senior executives accountable—to the point of impeaching them, when necessary, for high crimes and misdemeanors.

That used to worry those officials and put a brake on more outlandish behavior. Not any more.

No Worries, George

One reads George Tenet’s memoirs with some nostalgia for the days of a modicum of congressional oversight, and with a strong sense of irony—as he confesses concern that Congress might one day hold him and others accountable for taking liberties with national and international law.

It seems likely that then-White House counsel Alberto Gonzales and David Addington counseled Tenet that his concerns were quaint and obsolete and, alas, they may have been right, the way things have been going. But Tenet apparently entertained lingering misgivings—perhaps even qualms of conscience.

In the immediate post-9/11 period, Tenet says he told the president “our only real ally” on the Afghan border was Uzbekistan, “where we had established important intelligence-collection capabilities.” We now know from UK Ambassador to Uzbekistan Craig Murray that those “collection capabilities” included the most primitive methods of torture, including boiling alleged “terrorists” alive.

Tenet adds that he stressed the importance of being able to detain unilaterally al-Qaeda operatives around the world. His worries shine through the rather telling sentences that follow:

“We were asking for and we would be given as many authorities as CIA ever had. Things could blow up. People, me among them, could end up spending some of the worst days of our lives justifying before congressional overseers our new freedom to act.”
—At the Center of the Storm, p. 177-178

Tenet need not have worried. He would be shielded from accountability by a timid Congress as well as an arrogant White House able to arrogate unprecedented power to itself and to shield those it wished to protect.

Setting the Tone

It was President George W. Bush who set the tone from the outset. After his address to the nation on the evening of 9/11, he assembled his top national security aides in the White House bunker—the easier, perhaps, to foster a bunker mentality. Among them was counterterrorism chief Richard Clarke, who quoted the president in his memoir:

“I want you to understand that we are at war and we will stay at war until this is done. Nothing else matters. Everything is available for the pursuit of this war. Any barriers in your way, they’re gone. Any money you need, you have it. This is our only agenda...

“I don’t care what the international lawyers say, we are going to kick some ass.”
—Against All Enemies, Free Press, 2004

Clarke, of course, took his book’s title from the oath of office we all swore as military officers and/or senior government officials: “To defend the Constitution against all enemies, foreign and domestic.”

John Ashcroft, head of the Department of Justice at the time, fell in lockstep with the thrust of the president’s comment dismissing any concern with international law—or, as would quickly be seen, domestic law, as well. With the enthusiastic assistance of David Addington, the affable Ashcroft assembled a cabal of Mafia-like lawyers whose imaginative legal opinions on torture, warrantless eavesdropping, and other abuses mark them forever as “domestic enemies” of the Constitution.

Add Mukasey to this distinguished roster.

Torture: the Hallmark

What is not widely known is that Justice Department-approved torture was first applied on an American citizen, John Walker Lindh, who was captured in Afghanistan in late November 2001. The White House and corporate press immediately sensationalized Lindh as “the American Taliban.”

Jesselyn Radack, a conscientious legal advisor in the Justice Department’s Professional Responsibility Advisory Office, which gives ethics advice to Department attorneys, insisted that Lindh be advised of his rights before any interrogation. Instead, he was tortured mercilessly during the first few days of his internment and denied medical care.

Lindh had had the foolishness and bad luck to be in the wrong place at the wrong time; i. e., in a large group of prisoners rounded up by CIA and Army paramilitary forces—too large a group, it turned out.

A spontaneous uprising took place, and CIA paramilitary officer Johnny “Mike” Spann, who had questioned Lindh just minutes before, was shot dead. Outraged, Spann’s colleagues applied “frontier justice,” totally ignoring the Constitutional cautions of Ms. Radack.

The Department of Justice moved quickly to fire Radack for her principled stand. But she had the presence of mind to save emails providing chapter and verse of the difficult exchanges in which she had insisted on respect for Lindh’s rights as an American citizen. Newsweek carried the story briefly, but neither Congress nor anyone else in the media showed much interest.

Radack’s book recounting this experience, The Canary in the Coalmine: Blowing the Whistle in the Case of “American Taliban” John Walker Lindh, is available on line at: http://www.patriotictruthteller.net/.

Against this backdrop, together with Guantanamo, Abu Ghraib, and prisons in Afghanistan, Iraq, and elsewhere, Patrick Henry’s warning remains a challenge for our time: Are we “lost and undone?” I think not; but we had better get it together soon, for, as Dr. Martin Luther King Jr., cautioned, “There is such a thing as too late.”