In recent days, George W. Bush has put American torture back in the news again as he flaks his new memoir, Decision Points. On November 8, NBC interviewer Matt Lauer questioned Bush about authorizing waterboarding, to which he responded, “Damn right.” Richard Falk characterized this admission of criminality as an “uncoerced confession.” Waterboarding is torture, and torture is a crime. In fact, torture is not just a run-of-the-mill crime; it is a gross crime under international law, in the same company with war crimes, crimes against humanity and genocide. What does it say about the state of American democracy when a former president can proudly and publicly admit to conspiring in the commission of a gross crime and face no risk of punitive consequences?
Dahlia Lithwick assesses the implications of Bush’s uncoerced confession to the public: “We keep waiting breathlessly for someone, somewhere, to have a day of reckoning over the prisoners we tortured in the wake of 9/11, without recognizing that there is no bag man to be found and that therefore we are all the bag man.” There are three “we’s” in Lithwick’s quote: the first is “we” who advocate the rule of law and legal accountability for the crime of torture—whom I like to refer to as the “rule of law restoration” crowd. Perhaps “crowd” is an overstatement; it’s a small but dedicated crowd of elite intellectuals and persons of conscience. The second “we” refers to our representative government, and the third—the bag men for torture—is we Americans.
In that NBC interview, Bush offers a variety of statements justifying the use of torture. He said: “My job is to protect you…My job is to protect this country, man.” “The American people need to know, we are using techniques within the law to protect them.” And “I am confident the American people understand why we’ve done that.” Bush is articulating a “liberal” rationale for torture by saying, in essence: In fulfilling our responsibility to protect you, we did what we did for you. PS, what we did wasn’t “torture” because our lawyers said so. Torture is bad, we are good, and there haven’t been any attacks on the US since 9/11 thanks to the policies we instituted. You’re welcome.
The liberal ideology of torture is a nonsensical concept because torture is inherently illiberal. Yet just because it is nonsensical doesn’t mean it’s not real, as Bush so freshly demonstrates. Let’s begin with the concept of liberal ideology, which has three components: One is the representative state, of which political democracy is the idealized form—that is, state power derives from “the people.” Two, the law regulates and limits the power of the liberal state; the alternative is tyranny and authoritarianism. Three, the liberal state is expected to act lawfully in devising policies to govern and protect its people. When it comes to foreign threats to national security, the applicable laws are international. Although the US is an outlier among liberal democracies in terms of the signing international laws, it is a signatory—and thus bound by—the Geneva Conventions of 1949 and the UN Convention on Torture.
Many states engage in torture. But only liberal states invoke liberal ideology to rationalize their torture as “necessary” for the “greater good.” The liberal ideological rationalization posits torture as a “lesser evil” to combat the dangers facing an innocent and vulnerable society; it is conceived and practiced as a means to an end, the end being the security of the nation. In this regard, torture in the context of war compares to other aspects of warfare, since both are forms of state violence directed at “enemy others.” However, torture is a distinct kind of harm: it pertains explicitly and exclusively to the purposeful harming of a person who is in custody but has not been found guilty of a crime. (Painful lawful punishments are, legally, not “torture.”)
The right not to be tortured is the most important right of all, not because torture is the worst thing that can happen to a person but because the prohibition of torture imposes a legal limit on the rights and discretion of the state in its treatment of human beings. The right not to be tortured is foundational to the rise of modern liberal democracies. Three factors make the right not to be tortured unique. First, the prohibition is absolutely non-derogable because the law recognizes no exceptions, including in times of war or national emergency. There is no right to torture. Second, the prohibition of torture is a jus cogens norm under customary international law meaning that it is applicable everywhere in the world. Third, the right not to be tortured extends to all people regardless of their social status, political identity or affiliations. Thus it is an unparalleled “ideal” right, comparable only to the universal right not to be enslaved. In contrast, the right to life is not comparably universal or absolute; there are many ways that people lawfully can be killed.
In the context of any kind of war, the universal baseline standard for “humane treatment” of prisoners is Common Article 3 (CA3) of the Geneva Conventions, which covers detained persons who do not have the status of prisoners-of-war or militarily occupied civilians. CA3 states that prisoners “shall in all circumstances be treated humanely,” and that “[t]o this end,” certain specified acts “are and shall remain prohibited at any time and in any place whatsoever” including “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” To go below the baseline, as the Bush administration did—and justified doing—undermines the very concept of universal “humanity.”
The Bush administration declared a “global war on terror” in response to the terrorist attacks of September 11, 2001. As is common in asymmetrical wars when states fight non-state groups, the lack of—and the need for—information about al-Qaeda elevated the importance of gathering “actionable intelligence” through interrogation of captured enemies. However, the authorization and use of law-violating methods was a choice, not a necessity. Why did top officials make this choice? Because they believed that violent and dehumanizing interrogation methods would be effective means of eliciting actionable intelligence—in other words, ignoring an abundance of contrary data and expert opinion, they chose to believe that torture can produce truth, and this truth would keep Americans safe.
Contrary to Bush’s recent claims that “coercive interrogation” methods “worked” and that they were adopted as a last resort, in fact the torture policy was set in motion long before anyone had been taken into custody; it was the torture-works myth that drove policy making. On September 17, 2001, Bush signed a memorandum of understanding granting the CIA authority to establish a secret detention and interrogation operation overseas. The Clinton-era rendition program was revamped as “extraordinary rendition” to permit the CIA to kidnap people from anywhere in the world and disappear them into secret prisons, euphemized as “black sites,” where they could be held as “ghost detainees,” or transferred extra-legally to other states for interrogation. Contrary to Bush’s claims that people disappeared by the CIA were “picked up on battlefields,” in fact some were kidnapped from as far afield as The Gambia, Italy, Bosnia and Macedonia.
Unlike the CIA, the US military is subject to the Geneva Conventions which are enshrined in the Uniform Code of Military Justice. Nevertheless, by December 2001, Pentagon officials were exploring how to “reverse engineer” SERE (survival, evasion, resistance, extraction) techniques that had been developed during the Cold War to train US soldiers to withstand torture in case they were captured by regimes that don’t adhere to the Geneva Conventions.
What distinguishes torture by liberal regimes from illiberal regimes is the energy devoted to frame government policies as “legal.” Vice President Dick Cheney and his legal counsel David Addington took charge of interrogation and detention policies, which were varnished with opinions by lawyers in the Justice Department’s Office of Legal Counsel (OLC), most prominently Berkeley law professor John Yoo who served in the OLC from 2001-03. They devised a “new paradigm” for waging the “war on terror” based on a radical interpretation of Article 2 of the Constitution according to which the president, as commander-in-chief, has unfettered powers to wage war and therefore efforts to constrain executive discretion in accordance with federal, military or international law would be unconstitutional.
On November 13, 2001, President Bush issued a military order declaring that captured terror suspects were “unlawful combatants,” a heretofore non-existent category conceived to place such prisoners outside of the law by claiming that they are neither combatants nor civilians and thus not privy to the standards of treatment of either. Anyone taken into US custody could be designated an unlawful combatant by presidential fiat rather than on the basis of any status review by a tribunal, and could be held incommunicado indefinitely. In the same order, Bush declared that such detainees could be prosecuted in a new kind of military commission whose rules would admit coerced confessions, hearsay and secret evidence.
On January 11, 2002, the first “unlawful combatants” were transported to the detention facility at the US naval base in Guantánamo Bay (GTMO). They were denounced to the public as “the worst of the worst,” and trophy photos of them bound and immobilized in physically straining positions and sensory deprivation gear were released for media publication. GTMO had been selected because it was far from the hot war zone of Afghanistan and, more importantly, according to the new paradigmers, it was beyond the reach of US courts and pesky lawyers.
The coup de grace for the rule of law occurred secretly on February 7, 2002, when Bush issued a memorandum to his national security team endorsing the new paradigmers’ claim that the Geneva Conventions are too “quaint” to apply to this novel form of global war against stateless enemies, and asserted that captured terror suspects have no legal rights but would be treated humanely as “a matter of policy,” with the caveat that interrogation and detention policy would prioritize “military necessity.” The State Department had sharply criticized the legal flaws and political dangers of this position, but their criticism was ignored and Secretary of State Colin Powell was cut out of the inner circle on prisoner policy making.
The claim that everyone at GTMO was a terrorist is a lie that is still being peddled to the public. Intelligence officers who were instructed to fill out a one-page form on every detainee certifying the president`s “reason to believe” that he was involved in terrorism began reporting almost immediately that interrogations were not producing the information needed to fill out the forms. Pentagon and White House officials assumed the problem was that these hardened terrorists had been trained to resist and dissemble. But in August 2002, a senior Arabic-speaking CIA analyst was dispatched to GTMO to do an assessment and concluded that at least half and probably more had no ties or meaningful information about al-Qaeda or the Taliban. He recommended a formal review process, and noted that continued imprisonment and interrogation of innocent people could constitute war crimes. The National Security Agency’s top lawyer scheduled a meeting to discuss the analyst’s recommendations, but Addington canceled it, declaring: “No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it.”
In the division of interrogational labor, the CIA was vested with primary responsibility for “high value detainees” (HVDs)—people assumed to be terrorist leaders or planners of 9/11, or to have knowledge about terrorist operations and plots. On March 28, 2002, the first HVD, Abu Zubaydah, was captured in Pakistan (i.e., not a battlefield) and transported to a black site in Thailand. His interrogation led to a showdown between professional Arabic-speaking FBI interrogators who used conventional methods with success and unskilled CIA contractors; the CIA won, and the FBI stopped cooperating in black site interrogations. The escalating harshness of Abu Zubaydah’s treatment was due to the amateur interrogators’ frustration that he was not providing the actionable intelligence he was assumed to possess. But contrary to the initial claim that he was a “top al-Qaeda strategist,” in fact he was more like a receptionist who had been responsible for moving people in and out of training camps in Afghanistan. The brutal and dehumanizing methods authorized for Abu Zubaydah, which included waterboarding him 83 times and placing him in a coffin-like “confinement box” with insects, set the stage for the CIA’s secret interrogation program. By mid-summer 2002, some agents were growing anxious about their vulnerability to future prosecution under federal anti-torture laws. In response to the Agency’s questions about legal liability, the OLC produced two memos dated August 1, 2002. One interpreted the applicable definition of physical torture to exclude anything less than “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” and opined that cruel, inhuman or degrading treatment would not constitute mental torture unless it caused effects that lasted “months or even years.” The second memo provided legal cover for tactics already in use. Although these OLC memos were written for the CIA, the White House forwarded them to the Pentagon, which was seeking a solution to military interrogators’ frustrated efforts to get actionable intelligence out of GTMO detainees.
This confluence of radical legal reasoning and the ideologically driven presumptions that all detainees are terrorists and that torture is effective in obtaining actionable intelligence meant that US military interrogators, CIA agents and government-hired contractors were, in effect, licensed by the Bush administration to utilize methods that were no longer regulated by the laws of this nation or the world. But the Bush administration never officially authorized “torture.” Rather, “torture” became the euphemism for anything that was not authorized by the US government. What was authorized included stripping prisoners naked, short-shackling them to the floor for protracted periods of time, forcing them to defecate and urinate on themselves; subjecting prisoners to days or weeks of sleep deprivation by bombarding them with constant light and/or excruciatingly loud music or grating sounds and/or extremes in temperature; weeks, months or even years of isolation; stress positions such as “long time standing,” sometimes with arms extended outward, and “wall hanging” prisoners from hooks on the wall or ceiling; “walling,” which referred to bashing prisoners into walls; and waterboarding to induce the feeling and fear of death by drowning.
The Bush administration’s decision to take the “war on terror” to Iraq had to be sold to the American public and skeptical allies. In early 2003, CIA and military interrogators were under intense pressure to produce evidence that the regime of Saddam Hussein had an active weapons of mass destruction (WMD) program, and that there was a link between Iraq and 9/11. The “actionable intelligence” that the administration presented to make the case for war included a statement by a Libyan prisoner, Ibn al-Shaykh al-Libi, that Iraq had provided training in chemical weapons to members of al-Qaeda. However, Al-Libi subsequently recanted the false claim which he had made to stop the torture. By the late summer of 2003, the failure to find the (nonexistent) WMD, and the escalation of anti-occupation insurgency had made a mockery of Bush`s claim in May that the Iraq mission had been “accomplished.” In August the Pentagon sent the GTMO commander to Iraq to provide advice on how to “set the conditions” to get actionable intelligence from the thousands of people—including women and children—who were being taken into custody. The commander of the Iraq theater of operations signed off on a policy to "GTMO-ize" Iraqi prisons, a euphemization for the use of dogs, sexual humiliation, stress positions, protracted sleep deprivation and isolation, and other forms of torture and cruel treatment, despite the fact that up to 90 percent of detainees were picked up in military sweeps or as a result of intra-Iraqi score-settling and had no connection to the insurgency, let alone to al-Qaeda.
On April 28, 2004, shocking photos of naked, abused, humiliated, bloodied and dead prisoners from the Abu Ghraib prison in Iraq were published on CBS’s 60 Minutes II. The context was provided by Seymour Hersch’s New Yorker exposé on the leaked (“not meant for public release”) report by Maj. Gen. Antonio Taguba which concluded that prisoner abuse was “systematic” and “wanton,” and that unlawful interrogation tactics linked Iraq to Afghanistan and Guantánamo. The Bush administration’s initial reaction to the Abu Ghraib scandal was to blame “bad apples” ostensibly acting autonomously. In other words, officials knowingly lied to the public.
The Abu Ghraib scandal created political pressure for information. In June 2004, the first batch of legal memos and policy documents was declassified or leaked. These “torture memos” were, in their own way, at least as shocking as the photos because they exposed a pervasive disregard for the law. But there was no official denunciation of “the program.” On the contrary, top officials asserted the prerogative to continue the use of “coercive” tactics as necessary and effective means of combating terror. Although Republicans lost control of the Senate in 2006, the combination of continuing executive secrecy and political partisanship enabled the torture policy to endure to the end of Bush’s second term.
The torture policy was a failure in its ostensible mission of eliciting valuable intelligence. By subjecting thousands of prisoners to violent and dehumanizing treatment, the quest for information and cooperation in critically important communities was as damned as America’s reputation abroad. Under torture some people revealed some information about al-Qaeda’s structure and operations, but there is abundant evidence that many tortured statements were false. Indeed, the American experience has verified the ageless truism that many people will say anything to make the torture stop; a worst case example is al-Libi’s false claims about a Saddam – al-Qaeda connection, a tortured lie that has cost tens of thousands of lives and a trillion of dollars. David Rose, an investigative journalist who interviewed numerous counterterrorism officials from the US and elsewhere, reported that their conclusions were unanimous: “[N]ot only have coercive methods failed to generate significant and actionable intelligence, they have also caused the squandering of resources on a massive scale…, chimerical plots, and unnecessary safety alerts.” The 2008 report by the bipartisan Senate Armed Services Committee rendered its own harsh judgment that the use of aggressive techniques “damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.”
What toll did the American people exact for revelations about the vast and ineffective use of torture? During the 2008 campaign season, the issue barely registered. But to their credit, both presidential candidates—Republican John McCain and Democrat Barack Obama—vaunted their anti-torture credentials on occasion. While Obama promised to end torture, increase governmental transparency and restore the rule of law, to demonstrate his aspirational post-partisanship he skirted questions about accountability for the authors of the torture policy with the rhetoric of wanting to “look forward, not backward.”
Obama’s victory provided a hopeful moment for the rule of law restoration crowd. On his second day in office, he signed executive orders requiring the CIA to adhere to the 2006-revised Army Field Manual for Human Intelligence Collector Operations and shuttering their black sites, canceling the discredited military commissions, and promising to close GTMO within one year. But the administration quickly buckled because every initiative became fodder for partisan attacks that Obama was pandering to “the far left.” Influential advisors (notably White House Chief of Staff Rahm Emmanuel) regarded the devotion of political capital to press the president’s rule of law restoration promises as a loser for Democrats.
Cheney, renowned for his secretive silence, became uncharacteristically voluble after he was out of office. In numerous interviews in 2009, he admonished the Obama administration for sacrificing security by relinquishing methods that “work.” Cheney’s fact-free pro-torture offensive found a receptive audience among America’s chattering class, who seized the opportunity to engage in woolly speculations about the efficacy of torture and treated partisan historical revisionism as legitimate critique. Obama defensively asserted a post-partisan posture by contending that officials who had made the policy decisions and those who had followed orders had acted in “good faith,” and conceded to right-wing arguments that any type of meaningful accountability—even a non-prosecutorial truth commission—would constitute a “criminalization of policy differences.”
By the end of his first year in office, Obama had resurrected the military commissions, abandoned the promise to close GTMO, authorized indefinite detention without trial for dozens of GTMO prisoners, and asserted that people who were captured abroad and transported to the Bagram facility in Afghanistan have no habeas corpus rights and could be held incommunicado indefinitely (earning the facility the nickname “Obama’s GTMO”). The administration stepped into the defendant role in domestic lawsuits brought by victims of US torture, and replicated the stance of its predecessor by invoking “state secrets” to shut them down. The ongoing national debate about torture, terror and the law intensified following the 2009 Christmas Day attempt by Umar Farouk Abdulmutallab to detonate a bomb in his underwear while traveling on a transatlantic flight bound for Detroit. Right-wing critics excoriated Attorney General Eric Holder for allowing Abdulmutallab to be read his Miranda rights and for not subjecting him to “enhanced” interrogation or shipping him off to GTMO, despite that the Bush administration had followed an identical course of action with Richard Reid, the “shoe bomber,” and despite the fact that Abdulmutallab readily provided information to FBI interrogators who used conventional methods. In May 2010, following a failed attempt to detonate a bomb in Times Square, again Holder was condemned for providing constitutional protections to (non-white) terrorists arrested within the US. That these events could be treated by so many officials and commentators as evidence of the “need” to subject suspects to torture should be unsurprising for a country that has failed to face the truth about the actual record of torture’s inefficacy.
The Obama administration’s “looking forward” posture functions as a form of denial, and has led, inevitably, to a need to rely on heavy-handed classification to block public access to information deleterious or embarrassing to the US government. When the CIA’s Office of the Inspector General report was finally released in August 2009, excessive redactions made it impossible to glean how the torture program had grown and spread. The report by the Justice Department’s Office of Professional Responsibility (OPR) into the role that OLC lawyers played in formulating the torture policy—which was withheld (without explanation) until February 2010—contained substantial evidence that lawyers had colluded with the White House to “legalize” unlawful tactics. But the official that Holder had authorized to make the final determination concluded that the lawyers had merely exercised “poor judgment.”
And what of Obama’s promises to end torture and close black sites? In April 2010, the BBC reported testimonies of prisoners who said they had been subjected to beatings, sexual humiliation, sleep deprivation, isolation and other stress and duress tactics at a secret facility in Kabul. The facility is run not by the CIA but by the Defense Intelligence Agency, which has secret authorization to use “special” interrogation methods detailed in the classified Appendix M to the Army Field Manual. When this news broke, Defense Department officials initially denied the existence of a secret facility. Later, they acknowledged that the black jail is an “interrogation facility,” not a “detention site,” and therefore neither does the ICRC have a right to access those held there nor do the regular interrogation rules apply.
Who cares about torture? Human rights and legal organizations have been at the forefront of investigating and condemning the systematic abuse of prisoners, including the ACLU which expanded its mandate after 9/11 to address international law violations by the US government abroad. Protest activism by civil society groups like Witness against Torture and the ecumenical National Religious Campaign against Torture has been determined but demographically marginal. However, nothing resembling an anti-torture social movement emerged. The American public has exacted no political price for torture nor demonstrated any serious investment in the issue. Because those subjected to “enhanced interrogation” and incommunicado detention are foreigner Muslims abroad—with a few non-white exceptions at home, no domestic constituency has been directly affected or immediately imperiled, which helps explain the non-emergence of an anti-torture social movement. But equally important is the fact that the general public is too ignorant to formulate intelligent opinions, and their ignorance has been nourished by coverage in the mainstream media of specious “torture works” and “worst of the worst” arguments propounded by Bush, Cheney and other torture enthusiasts.
When it comes to American torture, the American people have failed to exercise their vaunted and fearsome democratic rights responsibly by demanding that their state rule “right.” Worse than that, the vast majority have bought into the liberal ideology of torture’s necessity defense, and subscribe to or accept the notion that critics are “far leftists,” “un-American” or “apologists for terror.” Passivity, apathy or ignorance about the rights violating practices of a state is common in many societies and has many causes, some unavoidable (state secrecy being a prime example), but it is not normatively acceptable as long as democracy invests people with a right and a responsibility to determine how states rule. The more representative a state claims to be, and the more people believe themselves to be represented by the state that rules them, the greater their responsibility for the state’s rights-violating practices. Torture by a military regime is deplorable, but torture by a democracy is inexcusable.