the dark side

"We also have to work, though, sort of the dark side, if you will. We've got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we're going to be successful. That's the world these folks operate in, and so it's going to be vital for us to use any means at our disposal, basically, to achieve our objective."

Vice President
Dick Cheney
Meet The Press
September 16, 2001

We’ve managed to catch quite a few films over the holidays. (With little kids, we can go for long stretches without seeing anything.) My favorites of recent months are Slumdog Millionaire, Burn After Reading and Milk. The last two I saw were Frost/Nixon and (on DVD) last year’s Academy Award winner for best documentary, Taxi to the Dark Side. Frost/Nixon was better than I expected. Langella gives an amazing performance. Taxi to the Dark Side, which lays out the Bush administration’s record on torture, is really a must-see. I know that a documentary on torture isn’t the kind of thing that just leaps to the top of your Netflix list. It took me a year or so to finally getting around to seeing it. But it is essential and very well done. There is nothing in the film that is factually in question – these aren’t conspiracy theories or baseless accusations. Pulling together into a compelling narrative just the information that is already in the public record constitutes a damning indictment of the Bush administration’s torture policies and leaves little doubt that they originated at high levels in the administration.

Seeing Frost/Nixon and Taxi to the Dark Side back-to-back made me realize, Nixon’s crimes really pale in comparison with those of Bush. Nixon abused his power and broke the law, and he paid a heavy price – resigning in disgrace barely ahead of an impeachment vote. But Bush institutionalized torture (in clear violation of international and US law), secret prisons, and the suspension of habeas corpus. He ordered his subordinates to defy subpoenas to obstruct justice. When one of his subordinates, Scooter Libby, was convicted of perjury and obstruction of justice, Bush perpetuated the underlying cover-up by commuting Libby’s sentence. The list goes on.

The question for the American people and our elected leaders now is, what do we do about the crimes of the Bush administration? Given the magnitude of the challenges the country faces, I am sympathetic to the view that pursuing criminal prosecutions would be a divisive distraction at a time when we should be building the broadest possible coalitions in favor of an ambitious progressive agenda. I am also sympathetic to the view that the magnitude of the crimes requires that they be fully investigated and prosecuted where appropriate. But I have no sympathy for the view that they should simply be ignored. At a minimum, some kind of “Truth and Reconciliation Commission” is required to get all the facts on the record. Even if those who are guilty of crimes aren’t prosecuted, their crimes should be fully exposed and put into the historical record and the perpetrators should have to live with that shame.

Harper’s has a long piece on this subject (“Justice after Bush: Prosecuting an Outlaw Administration”). Here is just a little bit of it:

This administration did more than commit crimes. It waged war against the law itself. It transformed the Justice Department into a vehicle for voter suppression, and it also summarily dismissed the U.S. attorneys who attempted to investigate its wrongdoing. It issued wartime contracts to substandard vendors with inside connections, and it also defunded efforts to police their performance. It spied on church groups and political protesters, and it also introduced a sweeping surveillance program that was so clearly illegal that virtually the entire senior echelon of the Justice Department threatened to (but did not in fact) tender their resignations over it. It waged an illegal and disastrous war, and it did so by falsely representing to Congress and to the American public nearly every piece of intelligence it had on Iraq. And through it all, as if to underscore its contempt for any authority but its own, the administration issued more than a hundred carefully crafted “signing statements” that raised pervasive doubt about whether the president would even accede to bills that he himself had signed into law.

No prior administration has been so systematically or so brazenly lawless. Yet it is no simple matter to prosecute a former president or his senior officers. There is no precedent for such a prosecution, and even if there was, the very breadth and audacity of the administration’s activities would make the process so complex as to defy systems of justice far less fragmented than our own. But that only means choices must be made. Indeed, in weighing the enormity of the administration’s transgressions against the realistic prospect of justice, it is possible to determine not only the crime that calls most clearly for prosecution but also the crime that is most likely to be successfully prosecuted. In both cases, that crime is torture.

There can be no doubt that torture is illegal. There is no wartime exception for torture, nor is there an exception for prisoners or “enemy combatants,” nor is there an exception for “enhanced” methods. The authors of the Constitution forbade “cruel and unusual punishment,” the details of that prohibition were made explicit in the Geneva Conventions (“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever”), and that definition has in turn become subject to U.S. enforcement through the Uniform Code of Military Justice, the U.S. Criminal Code, and several acts of Congress.

Nor can there be any doubt that this administration conspired to commit torture:
Waterboarding. Hypothermia. Psychotropic drugs. Sexual humiliation. Secretly
transporting prisoners to other countries that use even more brutal techniques.
The administration has carefully documented these actions and, in many cases,
proudly proclaimed them. The written guidelines for interrogations at Guantánamo
Bay, for instance, describe several techniques for degrading and physically
debilitating prisoners, including the “forceful removal of detainees’ clothing” and the use of “stress positions.” And in a 2006 radio interview, Dick Cheney said simply that the use of waterboarding to obtain intelligence was a “no-brainer.”

Finally, there can be no doubt that the administration was aware of the potential criminality of these acts. In January 2002, White House lawyers began generating a series of memos outlining the administration’s motivation for torturing. They claimed that “the war against terrorism is a new kind of war” requiring an enhanced “ability to quickly obtain information from captured terrorists” and that “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” The legal term for such contemplation is mens rea, or “guilty mind,” and it is an important consideration in criminal trials. Which is perhaps the reason that John Ashcroft—when he, Dick Cheney, Colin Powell, Condoleezza Rice, Donald Rumsfeld, and George Tenet gathered at the White House in 2002 to formally approve the application of specific torture methods—asked the assembled, “Why are we talking about this in the White House? History will not judge this kindly.”

The accuracy of Ashcroft’s prediction remains to be determined. The United States
does, in fact, have a long history of prosecuting torturers, but the punishments have varied considerably. In 1902, U.S. Army Captain Edwin Glenn confessed to and was court- martialed for using “the water cure” on Filipinos as part of the U.S. prosecution of the Spanish-American War. … In 1983, an east Texas sheriff named James Parker was convicted of waterboarding six men in order to coerce confessions. He was sentenced to ten years in federal prison. And when American prosecutors convicted Japanese officials at the end of World War II of war crimes that included waterboarding, the sentence sought, and obtained in some of the cases, was death. Which is not to say that administration officials will or should face similarly dire sanction. But such consequences are a measure of the gravity of the crime.

Waterboarding is far from the worst that detainees have suffered under U.S. supervision. Its use is especially worthy of note, however, because it is universally understood that 1) the administration authorized waterboarding, and 2) waterboarding is a serious crime.

Open criminality is a cancer on democracy. It implicates all who know of the conduct and fail to act. Such compliance presents a practical crisis, in that a government that is allowed to torture will inevitably transgress other legal limits. …

… If the people wish to maintain sovereignty, they must also reclaim responsibility for the actions taken in their name. As of yet, they have not. Pursuing the Bush
Administration for crimes long known to the public may amount to a kind of hypocrisy, but it is a necessary hypocrisy. The alternative, simply doing nothing, not only ratifies torture; it ratifies the failure of the people to control the actions of their government. …

The Nation has a similar article here.

Again, these are not conspiracy theories based on conjecture and innuendo. In a development that received scant media attention, the Senate Armed Forces Committee, on December 11, released a declassified summary of a report (the full report has been submitted to the Department of Defense with a request that the materials be declassified for release) that concluded, among other things:

The abuse of detainees in US custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own.... The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.... Secretary of Defense Donald Rumsfeld's authorization of aggressive interrogation techniques for use at Guantánamo Bay was a direct cause of detainee abuse there.

This was not a partisan report. It received the unanimous approval of all 13 Democrats and 12 Republicans on the committee (including Republican presidential nominee John McCain).

As Scott Horton notes in Harpers:

The report, even in its still-classified form, does not tell the whole story of what happened. It does not address the program administered by the CIA. And even with respect to the Department of Defense, the Committee and its investigators were effectively stonewalled by the United States Special Operations Command and its overlords in the Pentagon who failed to provide information about special rules of engagement introduced with the authority of Undersecretary of Defense Stephen Cambone that authorized the torture and mistreatment of prisoners held for intelligence interrogation in operations dating back to the earliest weeks of the “war on terror.”

The Senate Armed Services Committee report explicitly rejected the notion that torture was necessary for national security. Just the opposite. The report states:

The administration’s policies concerning [torture] and the resulting controversies damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.

This last point was also made in a widely-noted Washington Post op-ed (“I'm Still Tortured by What I Saw in Iraq”) by the leader of an interrogations team assigned to a Special Operations task force in Iraq in 2006 (and author of a book about his team’s successful hunt for Abu Musab al-Zarqawi, “How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq"):

Torture and abuse are against my moral fabric. The cliche still bears repeating: Such outrages are inconsistent with American principles. And then there's the pragmatic side: Torture and abuse cost American lives.

I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans.

After my return from Iraq, I began to write about my experiences because I felt obliged, as a military officer, not only to point out the broken wheel but to try to fix it. When I submitted the manuscript of my book about my Iraq experiences to the Defense Department for a standard review to ensure that it did not contain classified
information, I got a nasty shock. Pentagon officials delayed the review past the first printing date and then redacted an extraordinary amount of unclassified material -- including passages copied verbatim from the Army's unclassified Field Manual on interrogations and material vibrantly displayed on the Army's own Web site. I sued, first to get the review completed and later to appeal the redactions. Apparently, some members of the military command are not only unconvinced by the arguments against torture; they don't even want the public to hear them.

My experiences have landed me in the middle of another war -- one even more important than the Iraq conflict. The war after the war is a fight about who we are as Americans. …

The torture practices of the Bush administration were so bad that FBI agents assigned to military prisons in Iraq, Afghanistan and Guantánamo kept records they call “war crimes” files (until they were ordered to stop) documenting the abuses they considered violations of US law and the Geneva Conventions. The Justice Department’s inspector general released a report back in May that documented some of the FBI accounts. They included:

— Four F.B.I. agents saw an interrogator cuff two detainees and force water down their throats.
— Prisoners at Guantánamo were shackled hand-to-foot for prolonged periods and subjected to extreme heat and cold.
— At least one detainee at Guantánamo was kept in an isolation cell for at least
two months, a practice the military considers to be torture when applied to
American soldiers.

If you watch Taxi to the Dark Side, you will see much worse.

Over the next few weeks I will probably be writing more posts about different aspects of the legacy of the Bush administration. None is more shameful than its torture practices. It is a shame borne by the entire country. We can’t erase it. But we can – and must – account for it.