Category: Torture

"The president desires to know in the fullest and most circumstantial manner all the facts, … for the very reason that the president intends to back up the Army in the heartiest fashion in every lawful and legitimate method of doing its work; he also intends to see that the most vigorous care is exercised to detect and prevent any cruelty or brutality and that men who are guilty thereof are punished. Great as the provocation has been in dealing with foes who habitually resort to treachery, murder and torture against our men, nothing can justify or will be held to justify the use of torture or inhuman conduct of any kind on the part of the American Army,” – Teddy Roosevelt, upholding the American tradition that Bush and Cheney have unforgivably and indelibly trashed.

He was specifically referring to "waterboarding." There is no doubt whatsoever about the illegality of the practice.

The NYT argues today that Michael Mukasey cannot condemn waterboarding as torture before he becomes AG because that would risk war crime prosecutions against many military and CIA personnel and those who authorized them, i.e. Bush, Cheney, Rumsfeld, et al. In my dreams. Jack Balkin’s riposte is more likely:

Do not believe it.

The Congress twice bestowed immunity in the Detainee Treatment Act and the Military Commissions Act. And if CIA operatives acted in good faith on OLC opinions, which are binding law in the executive branch, they are immune from prosecution. Even if these immunities do not extend to civil lawsuits, such lawsuits are likely barred by a combination of immunities created for government (and military) personnel. The Administration has been quite careful to ensure that its members– and those obeying its orders– will never be held to account in any American court of law.

To be sure, if Bush Administration officials travel abroad, they may be indicted and tried for war crimes. But if so, that is already true, and Judge Mukasey’s statement would not trigger liability: it would merely be additional evidence– if any were needed– that waterboarding is a war crime.

The real reason why Judge Mukasey cannot say that waterboarding is illegal is that Administration officials have repeatedly insisted that they do not torture, and that they have acted both legally and honorably. If Judge Mukasey said that waterboarding is illegal, it would require the Bush Administration to admit that it repeatedly lied to the American people and brought shame and dishonor on the United States of America. If Judge Mukasey were to say waterboarding is illegal and not just "a dunk in the water" in Vice President Cheney’s terminology, he would have announced that, as incoming Attorney General, he is entering an Administration of liars and torturers.

He is. This is a critical cojones moment for the Democrats, and, especially Schumer. Are they finally going to take on this administration’s precedent of authorizing illegal torture that wrecks our ability to get reliable intelligence and destroys our moral standing in the world? Or do they not have the steel to do what’s right?

Hilary gets it right:

There is an easy way for Mukasey to get around the fact that he has not been briefed on what the CIA did: just define waterboarding, say whether waterboarding so defined is torture, and add that not having been briefed on what the CIA did, he doesn’t know whether or not what they did meets his definition. That Mukasey has not taken this obvious route suggests that he is not motivated by his own uncertainty, but by the desire to keep people he believes have engaged in torture from being punished for their crimes.

Marty Lederman chimes in here. The corollary is that those in the administration who have engaged in or authorized torture, under the plain meaning of English and the plain language of the law, must at some point be prosecuted for war crimes. It’s time to take a stand: filibuster this nomination until we have an attorney general who can uphold the rule of law.

(Photo: Mark Wilson/Getty.)

The ignorance of Rudy Giuliani with respect to the history of torture is almost on a level with his ignorance about Islam and the Middle East. Yesterday, he made this comment:

They talk about sleep deprivation. I mean, on that theory, I’m getting tortured running for president of the United States. That’s plain silly. That’s silly.

Really? Has Giuliani ever inquired about the history of sustained sleep deprivation as a torture technique? Stalin perfected it. And one of its victims was Menachem Begin, a man for whom presumably Giuliani has some respect. Begin was subjected to the same techniques that Bush has used by Joseph Stalin in the Gulag. In Begin’s view, being forced – not choosing – to stay awake for days and even weeks on end (as Rumsfeld approved in Gitmo) is one of the worst forms of torture there is. He described just such a torture victim who is

"wearied to death, his legs are unsteady, and he has one sole desire to sleep, to sleep just a little, not to get up, to lie, to rest, to forget … Anyone who has experienced the desire knows that not even hunger or thirst are comparable it with it."

Do you think that starving someone until they tell you what you want them to say is torture? Do you believe that objecting to such torture techniques is "plain silly"?

A reader writes:

I was finally moved to write you in response to today’s "Imaginationland" post. I think you’ve connected a couple of very important dots here, and it reminded me of something I read more than a year ago in a Washington Post book review of Ron Suskind’s "One Percent Doctrine."

Bush "was fixated on how to get Zubaydah to tell us the truth," Suskind writes, and he asked one briefer, "Do some of these harsh methods really work?" Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety — against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, "thousands of uniformed men and women raced in a panic to each . . . target." And so, Suskind writes, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."

The time frame here is mid-2002 and, according to Suskind, Abu Zubaydah was the first guinea pig for these techniques. In that case, it seems unlikely that an October 2001 bomb scare would be based on information derived from torture (or at least U.S. torture; the info could always have come from less scrupulous sources overseas). But by Suskind’s account, the dynamic you describe has been distorting U.S. policy for at least five years now.

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the exigencies of government. Such a doctrine leads directly to anarchy or despotism …" – The Supreme Court, Ex Parte Milligan, 1866.

"My father is 67. My mother is 61. I have a brother who developed arthritis at 19. He still has it today. When the word ‘torture’ comes at least for my brother, I mean, all they have to do is really just press on one of these knuckles. I couldn’t imagine them doing anything to my sister… [L]et’s just say a lot of people in Egypt would stay away from a family that they know or they believe or even rumored to have anything to do with terrorists and by the same token, some people who actually could be —might try to get to them and somebody might actually make a connection. I wasn’t going to risk that. I wasn’t going to risk that, so I thought to myself what could I say that he would believe. What could I say that’s convincing? And I said okay," – Abdallah Higazy, explaining why he confessed to being a terrorist after the FBI threatened to have his family identified and tortured by the Egyptian authorities. Higazy is innocent.

I posted an email earlier today trying to understand the extraordinary powers that president Bush has accrued to himself since the 9/11 attacks. No president has ever had so much power over the citizenry of the United States in American history – the permanent power to name anyone an enemy, detain them indefinitely and torture them into confession anywhere in the world. My reader suggested that this extraordinary shift in America’s constitutional balance – the creation of an extra-legal dictatorship within a putatively democratic society – was explicable only if you believe that the very existence of the U.S. is in peril.

I believe Cheney believes that. In the hours after 9/11, you can understand why. The question then becomes: what evidence did they have that the danger was that grave? My reader cites the following anecdote in a Graham Allison book:

"On October 11, 2001 … at the Presidential Daily Intelligence Briefing, George Tenet, the director of central intelligence, informed the president that a CIA agent code-named Dragonfire had reported that Al Qaeda terrorists possessed a ten-kiloton nuclear bomb, evidently stolen from the Russian arsenal. According to Dragonfire, this nuclear weapon was now on American soil, in New York City."

Now, obviously, this was untrue. It was untrue on a cataclysmic scale in the way that Abdallah Higazy’s conviction of being an al Qaeda member was untrue on a much smaller scale. The question in my mind is: how did they get that information? They’ll never tell us, of course. We found out that the Higazy conviction was a result of a false confession, after threatening to have his family tortured in Egypt. But the nuclear scare was a huge untruth gained by a CIA agent a month after Bush and Cheney had secretly let loose the dogs of torture. And the one thing we know about torture is that it was never designed in the first place to get at the actual truth of anything; it was designed in the darkest days of human history to produce false confessions in order to annihilate political and religious dissidents. And that is how it always works: it gets confessions regardless of their accuracy.

The longer this war goes on and the more we find out, the following scenario seems to me to be the best provisional explanation for a lot of what our secret, unaccountable, extra-legal war-government has been doing – and the countless mistakes which have been laid bare. On 9/11, Cheney immediately thought of the worst possible scenario: What if this had been done with WMDs? It has haunted him ever since – for good and even noble reasons. This panic led him immediately to think of Saddam. But it also led him to realize that our intelligence was so crappy that we simply didn’t know what might be coming. That’s why the decision to use torture was the first – and most significant – decision this administration made. It is integral to the intelligence behind the war on terror. And Cheney’s bizarre view of executive power made it easy in his mind simply to break the law and withdraw from Geneva because torture, in his mind, was the only weapon we had.

Bush, putty in Cheney’s hands, never wanted torture, but was so cowardly and lazy he never asked the hard questions of what was actually being done. He knows, of course, somewhere in his crippled fundamentalist psyche. But this is a man with clinical – Christianist and dry-drunk – levels of reality-denial, whose interaction with reality can only operate on the crudest levels of Manichean analysis. All he needs to be told is that whatever it is they’re doing, it isn’t torture. He won’t ask any more questions. They’re evil; we’re good; so we can’t torture. Even when they were totally busted at Abu Ghraib, his incuriosity and denial held firm. After all, what if he were to find out something he didn’t want to know? His world might collapse.

But torture gives false information. And the worst scenarios that tortured detainees coughed up – many of them completely innocent, remember – may well have come to fuel US national security policy. And of course they also fueled more torture. Because once you hear of the existential plots confessed by one tortured prisoner, you need to torture more prisoners to get at the real truth. We do not know what actual intelligence they were getting, and Cheney has ensured that we will never know. But it is perfectly conceivable that the torture regime – combined with panic and paranoia – created an imaginationland of untruth and half-truth that has guided US policy for this entire war. It may well have led to the president being informed of any number of plots that never existed, and any number of threats that are pure imagination. And once torture has entered the system, you can never find out the real truth. You are lost in a vortex of lies and fears. In this vortex, the actual threats that we face may well be overlooked or ignored, as we chase false leads and pursue non-existent WMDs.

My original concern with torture was moral and sprang from Abu Ghraib. It never occurred to me that the US would be doing it before. Poring over all the data, it became simply impossible to deny that Abu Ghraib was not an exception to the rule, but a horrible, predictable result of an existing torture policy that spread beyond the limits Cheney and Rumsfeld wanted. My second concern with torture is that  much of our actionable intelligence may have come from it. Think of what that means. Much of it may be as valid as that nuclear bomb in New York City or the notion that Abdallah Higazy was a member of al Qaeda.

We may have entered a world, in other words, where the empirical reality of our national security is less important than the imaginationland that every torture regime will create. We may therefore be sacrificing our liberties for a phantasm created by brutality spawned by terror. We don’t know for sure, of course. But that’s what torture does: it creates a miasma of unknowing, about as dangerous a situation in wartime as one can imagine. This hideous fate was made possible by an inexperienced president with a fundamentalist psyche and a paranoid and power-hungry vice-president who decided to embrace "the dark side" almost as soon as the second tower fell, and who is still trying to avenge Nixon. Until they are both gone from office, we are in grave danger – the kind of danger that only torturers and fantasists and a security strategy based on coerced evidence can conjure up. And since they have utter contempt for the role of the Congress in declaring war, we and the world are helpless to stop them. Every day we get through with them in power, I say a silent prayer of thanks that the worst hasn’t happened. Yet. Because we sure know they’re looking in all the wrong places.

(Photos: A ‘Tribute in Light’ illuminates the night sky over lower Manhattan near Ground Zero at the World Trade Center site, 11 September 2007 in New York, on the sixth anniversary of the 11 September 2001 attacks. By Timothy A Clary/AFP/Getty. Cheney: Alex Wong/Getty. Rumsfeld: Jim Watson/AFP/Getty. Tehran street scene: Behrouz Mehri/AFP/Getty.)

The Bush administration sent an innocent man to be tortured by the Syrians. She can’t recall if they got assurances he wouldn’t be tortured, and refuses to apologize. Everyone forced to defend the Bush administration’s torture and rendition policies ends up lying in the end, don’t they?

From the Senate Judiciary Committee, re: waterboarding. Not a single Republican signed the letter.