FEARFUL AMERICA TORTURES

There is compelling reason to undertake a rigorous investigation of torture American style. For our recent experience is neither an isolated event nor explicable solely in terms of bad judgment by a coterie of policy makers. It grew out of the national psychology post-9/11. That psychology remains prevalent. That is why we need a deliberate process of purification. It should be undertaken by a non-partisan commission – by no means a bi-partisan commission. Let us recall the serious flaws in the conduct of the 9/11 Commission. It was a b-partisan whitewash in some important respects. Staff director Philip Zelikow was in regular contact by cell phone with Condeleezza Rice – his former co-author and future colleague whom he served as Counselor beginning just months after the Commission expired.

We might usefully begin by recognizing that American actions in the ‘war on terror’ have been driven by fear – at home and abroad. Fear that it may happen again, fear of the unknown, fear of the alien. It explains not only the radical thrust of Washington’s actions in the Greater Middle East but also the dulling of critical faculties. That pertains to torture and illegal surveillance as well as the ready resort to military power. Torture as a demonstrable matter of fact, torture as the official policy of the White House, torture without reasonable cause – has no precedent in America. Its routine occurrence in the ‘war on terror’ testifies to the amorality of those managing the country’s affairs. Its tolerance by the public, by Congress, and the accessory role played by the enabling courts before, during and after the fact add up to a national pathology. For decades, Americans looked back on the internment of fellow citizens of Japanese ancestry as an aberration which never could happen again. Now, no such assumption can be made. Imagine this picture: Iranian armies have conquered the Middle East and have reached Morocco; an Iranian armada has sunk most of the country’s Atlantic fleet at anchor in Norfolk; and a few hundreds of thousands of American citizens of Iranian descent live clustered on the Northeastern seaboard. Is there reason to doubt that their treatment would be such as to make them envy the condition of the Nisei during WW II?

This phenomenon bespeaks feelings of dread. The Bush administration, the media, and – in their own way – the cottage industry of terror specialists have stoked that fear. It has faded somewhat since March 2003. But it is still powerful enough to condone the sins of systematic torture; powerful enough to repress feelings of guilt and shame that must lie beneath the placid surface. Those suppressed emotions, though, contribute to our collective self-doubt and dread. Along with torture, massive wire-tapping, eavesdropping, and trespassing on the privacy of personal communications in violation of explicit legal stipulations have been occurring routinely for years. The Bush administration audaciously claimed presumptive powers of a sort associated with autocratic governments. The country tacitly approved them. That silence, and subsequent acts by a ‘change’ president, proclaims loudly two things: a people and their leader living in morbid fear for which they will sacrifice their freedoms and betray their hallowed principles, and a people and their leader whose timidity is fear by another name.

There are several unpalatable truths that are being sublimated: our attempt at putting the Iraqis and Afghans on the path to peace and prosperity (a la Germany and Japan) has failed – America is thwarted; the Iraqis and Afghans are not grateful and most of the world dislikes/hates us — Americans expect and need to be loved for our natural virtue; the terrorist threat, al-Qaeda and Osama bin-Laden are still there to bedevil us – America is unnaturally unsafe; Americans have been deceived by their President - the bond of trust central to our civic religion has been broken; we torture and we abuse others – America’s moral gyroscope is out of kilter; we have subverted our own liberties – we have panicked in an unmanly manner. Taken together, these failures and transgressions are a heavy load on the collective national psyche. An America that is not able, that is not moral, that is not smart, that lies, that lies to itself – that America is incompatible with the myths that sustain us. It is also incompatible with a commitment, once again, to never again.

— MICHAEL BRENNER

Let us seek out some desolate shade, and there
Weep our sad bosoms empty.
Macbeth, IV.iii

This sums up my reaction to the memos released yesterday. A decision not to prosecute the tormentors should not obscure the need for soul searching and public disclosure.

Just a quick note. Yesterday, the Justice Department released four memos from the Office of Legal Counsel that provide details of interrogation techniques used on certain terrorist suspects in U.S. custody. You can find links to all the memos here. http://www.aclu.org/safefree/general/olc_memos.html (The ACLU had sued for the memos' release.) The documents also provide fresh insights into the Bush administration's legal rationale for why certain "enhanced interrogation techniques" did not violate U.S. law against torture or international treaties against cruel and inhuman treatment of prisoners. None of these memos reflects the current position of the Obama administration, and intelligence officials have been instructed not to rely on them.

I find it hard to understand the arguments of those who oppose an independent, authoritative, 360-degree, nonpartisan ascertainment of the facts. I nevertheless find it easy to understand the fears of those who think that such an ascertainment is difficult. I also find it easy to understand those who are uncomfortable with prosecution of lower-level officials for crimes due to higher level decisions.

That said, the US has a good deal of experience with independent commissions that have been successful in settling for most of us some difficult issues. And there is no reason in principle why the mandate cannot include the Clinton as well as the Bush Administration. It may be difficult to define the field of inquiry and to ascertain the facts, but it should not be impossible.

The question of prosecution is more fraught. A blanket amnesty for lower-level perpetrators would not be well received in the Muslim world, to say the least. Nor would most Americans be comfortable with a blanket amnesty for torture.

I am not a lawyer, but it seems to me that prosecutors often have a good deal of discretion, including to pursue big fish instead of small fry. The trouble is that discretion is discretionary--it provides no guarantee of protection to lower level officials who were ordered to do something and told that it was legal to do it.

A clear statement from the Administration that it will focus prosecution, if any, on decisionmakers might help, but lower-level folks are likely to have to live with considerable uncertainty for some time to come. But there is nothing new in that--they are already living with that uncertainty, significantly alleviated by the President's statements that he is not interested in raking over the past but instead looking to the future. Maybe there is nothing more than that that can be done.

Experts,

It’s been a lively and productive few days of discussion—many thanks. I wanted to pass along some of the highlights from our posts thus far. But before I do that, I’ll draw your attention to two items from our fellow bloggers over at The Atlantic. First, Marc Ambinder has a piece on tomorrow’s expected release of DOJ interrogation memos. I’m sure many of you will have thoughts to share on the memos. I’ll post a link to them here as soon as they are released.

Second, our colleague Andrew Sullivan blogged our discussion and added his views, as well.

Following are some noteworthy experts from your posts, which will give all a flavor for the debate going on right now. While there is no consensus on whether to have a public inquiry or not, all our experts are attuned to the political spectacle that such hearings would cause. For some, that’s a good reason to consider not moving forward. Others say, essentially, that this is the price to pay for a full accounting.

The discussion will continue for the rest of the week. Hopefully, tomorrow will bring a fresh batch of material for all of us to discuss.

Shane Harris

National Journal

Ron Marks: My bottom line: The Senate and House Intelligence Committees need to step forward to do their job of oversight and hold public hearings to limn out the good and bad of what happened. However, they must recognize that engaging in political histrionics, bashing and blaming those who served to protect us against a vicious enemy is harmful and unproductive.

Patrick Lang: We must know the truth so that all Americans might have a clear understanding of what was done (or not done) in their name. What has happened over the last years must be examined in detail so that we can judge if we wish to “go there” again. If there is not such an enquiry, then we Americans will “limp along” in imagined “history” unable to tell the difference between the fantasy of “24” and the rants of the activists who desperately want to believe that the “School of the Americas” was a prep school for a new Inquisition.

Brian Michael Jenkins: A truth commission on torture could be ruinously divisive. It would smack of political vendetta and fuel narrow partisan agendas on both sides. It would lead to spectacle, not edification. It could end up giving rogues the aura of martyrs.

Let history be their judge.

Michael Scheuer: Because I put together the rendition program against al-Qaeda in August, 1995 -- under President Clinton -- and then ran it for 40 months -- during which period all those rendered were taken to Arab prisons under Mr. Clinton's orders -- I can only say that America is far safer today because of the brains and bravery of the CIA officers who successfully executed their orders regarding rendition under both Mr. Clinton and Mr. Bush.

Milt Bearden: In Europe, the effort to bring light to the Bush administration torture and detention policies is unrelenting. …If those investigations go forward, sooner or later sealed indictments against one or more of these former Bush officials will be issued. Then, all it will take is for one of the accused to set foot on European soil and get arrested to put the legal process in motion. …These are the realities. So Congress can fret over “Truth commissions”, but unless it acts, others will, and quite possibly too late for American institutions to regain the initiative.

Joseph Collins: There are already democrat legislators who want criminal indictments. They need to be restrained and not encouraged. What such an investigation would turn up is that significant mistakes in legal reasoning were made and that those mistakes were passed down the chain of command as guidance.

Daniel Byman: I worry about the message that would be sent (and has already been sent) to junior and mid-level intelligence community officials. The operators involved checked the legal box before commencing, and now they must worry about being hung out to dry as the country's mood has shifted.

Loren Thompson: We cannot allow gross abuses to go unpunished because we fear that enforcing reasonable standards of conduct will damage our political fabric or operational effectiveness. Failure to investigate wrongdoing encourages corruption. I vote for an official investigation.

This is a tough question, because it's obvious an such inquiry could degenerate into a witchhunt or political circus. One the other hand, it is clear that human rights were violated and powers were abused in the hysteria that followed 9-11. So I guess the issue comes down to this -- are we capable of conducting an open and rigorous inquiry that takes into account the concerns motivating policymakers and field operatives at the time any transgressions were perpetrated? I think we are. We cannot allow gross abuses to go unpunished because we fear that enforcing reasonable standards of conduct will damage our political fabric or operational effectiveness. Failure to investigate wrongdoing encourages corruption. I vote for an official investigation.

I worry about the message that would be sent (and has already been sent) to junior and mid-level intelligence community officials. The operators involved checked the legal box before commencing, and now they must worry about being hung out to dry as the country's mood has shifted. Already, those working in covert action have to become their own lawyers, and this problem is likely to worsen and decrease the willingness of those in the community to take risks.

Any such truth investigation would be fraught with difficulties. There are already democrat legislators who want criminal indictments. They need to be restrained and not encouraged. What such an investigation would turn up is that significant mistakes in legal reasoning were made and that those mistakes were passed down the chain of command as guidance. People who trusted the lawyers and their superiors did things that were both shameful and ineffective. An entire quasi secret bureaucracy was set up to manage this unfruitful, deplorabable exercise. I can't imagine that there is much beyond what has already been made public in books by Jane Mayer and Bart Gelman. Unless you can keep this a secret --- and that is doubtful --- we need to restrain our urges to commit political suicide. An interesting side note to all of this: the new Administration is falling all over itself to defend what goes on at Bagram and to preserve Presidential power. The more things change, the more they remain the same.

There are at least two independent dynamics impacting the handling of the Bush administration’s detention and interrogation programs. One is the reality of a process already fully in motion and the other is the pure theater of political bobbing and weaving in Congress and, to some extent, the Obama administration. Ultimately, uncontrollable realities will overtake the political theater, forcing a weak form of accountability that will do little to contribute to the restoration of America’s honor.

There is an army of human rights investigators working the issue, and even without the information available to congressional investigators with subpoena power, they will find at least enough of the truth to force events: witness, Mark Danner’s work in the New York Review of Books, or the dogged hunt of John Sifton, the executive director of One World Research. With or without a congressional investigation, these, and other investigators will surface the facts, name the names, keep the story alive, and keep the Congress and the administration in a constant state of reaction.

In Europe the effort to bring light to the Bush administration torture and detention policies is unrelenting; it is led, in part, by UK Queens Counsel and author Philippe Sands (The Torture Team), who has played a role in the reported move by a Spanish court to open criminal investigations targeting Alberto Gonzalez, John Yoo, Douglas Feith, William Haynes II, Jay Bybee and David Addington, all Bush administration personalities associated with the alleged abuses.

If those investigations go forward, sooner or later sealed indictments against one or more of these former Bush officials will be issued. Then, all it will take is for one of the accused to set foot on European soil and get arrested to put the legal process in motion. ( Think Pinochet, or, more recently, Jean-Pierre Bemba, the opposition party leader in Congo, who was arrested in Brussels in 2008, on an ICC warrant for war crimes.)

These are the realities. So Congress can fret over “Truth commissions”, but unless it acts, others will, and quite possibly too late for American institutions to regain the initiative.

The only advice I might have for those considering a move in Congress would be to give up the silly language. We don’t need anything called a “Truth Commission” any more than we needed a law called “The USA Patriot Act”, or a department called “Homeland Security”. Only someone with the mind of a mid-level Agitprop functionary could possible come up with names like that.

The question's core -- to investigate activities under the Bush administration -- and the use of the term "Truth Commission," as if America is some half-baked Third World country, are telling signs of the question’s partisan political purpose. Because I put together the rendition program against al-Qaeda in August, 1995 -- under President Clinton -- and then ran it for 40 months -- during which period all those rendered were taken to Arab prisons under Mr. Clinton's orders -- I can only say that America is far safer today because of the brains and bravery of the CIA officers who successfully executed their orders regarding rendition under both Mr. Clinton and Mr. Bush. All of the whining to date has been nothing more than a Democratic effort to politically hang Mr. Bush -- which is not a bad idea for his starting of the Iraq war -- and to make sure that the far worse things that happened to those rendered under the direction of that merry pair of felons, Clinton and Berger, are hidden from public view. [NB: For those interested, the transcript of my April, 2007, testimony on rendition before the House Foreign Affairs Committee is available on its website.]

The whole idea of an investigation is predicated on the idea that no one but the White House -- and then only Bush's White House -- had any idea of what was going on. Anyone who knows how covert action works, however, knows that at least the leaders of both parties in Congress, and more often all the members of the two intelligence committees, know what covert actions have been approved by the president before they are executed. The representatives and senators therefore have ample opportunity to register their disapproval with the CIA and the White House before operations begin, and, of course, always have the option of stopping the planned operations by cutting funding.

My guess is that there will be no investigation because they are too many skeletons in the Democratic closet that are too hot to let loose. Any investigation of rendition would expose the moral cowardice of Clinton's team vis-à-vis rendition and protecting Americans against al-Qaeda, as well as their post facto lies about demanding that Arab governments pledge to treat rendered terrorists according to U.S. and international standards. Such an investigation would also unavoidably open up the all the material deliberately hidden by the 9/11 Commission about how very little the Clinton and Bush administrations cared about effectively protecting Americans before 9/11. Indeed, someone might even ask the investigators why the greatest, richest, and most militarily powerful republic that has ever existed has been forced to defend itself primarily with rendition and UAV's -- nifty tools that ought to support, but not replace, an all-out effort to slaughter our enemies before they do the same to us. There are many current and former intelligence officers, besides myself, who would be eager to publicly discuss all of these matters with congressional investigators -- as long as the public discussions occurred under oath.

At day's end, the Congress probably has more to lose than gain by an investigation. A publicly televised, under-oath investigation would fully convince the American people of what today they only suspect; that is, al-Qaeda's greatest victory on 9/11 was the fact that it failed to destroy the U.S. Congress.

In a word, no. I have been highly critical of a number of things done in the name of the Global War on Terror. The imperial assertions of unlimited executive authority, the transparent and ultimately unsuccessful attempt to place terrorist detainees beyond the protection of international law or the jurisdiction of U.S. courts, the promotion and use of coercive interrogation methods—and the disgusting parsing of the precise meaning of torture and the public defense of its use—were strategic blunders. They produced nothing that could not have been achieved by adhering to existing rules and international norms. I know that not everyone concurs with this view.

In its understandably zealous but unchecked pursuit of terrorists, the Bush administration squandered the American values that must sustain the nation in a long fight, alienated needed international support, and handed new recruiting posters to our terrorist foes. Worse than immoral, it was counterproductive and shortsighted. It was stupid.

At the same time, we should not exaggerate the magnitude of the offenses. There were shameful excesses, but there were no massive disappearances or vast gulags holding thousands of political prisoners. There were no secret executions. There are no mass graves. And much of the international criticism has come from governments whose own legal systems permit indefinite detention during investigation or whose criminal investigations routinely involve harsh interrogation.

U.S. courts already have asserted their appropriate jurisdiction. The political process has produced policy changes. The overseas prisons are closed. The state is righting itself.

A documentary history of these events should be preserved. It would include the legal opinions (already released) narrowing the definition of torture, the contrary legal views of military lawyers, the statements of interrogators who argue that valuable information was being elicited from detainees by using culturally creative but noncoercive interrogation methods before harsher techniques were imposed, the arguments of those who believed that more-coercive methods were necessary—and that they succeeded in extracting information that otherwise would not have been available. (Let their proponents also show that we were not misled by the false information extracted along with the real.) Finally, the history should include the full Red Cross report and the response it provoked.

Publish the whole thing, but leave interpretation aside. This would not be a prosecutorial inquiry. Let the appropriate internal mechanisms in the armed services and intelligence agencies deal with the issue of individual accountability. Or better still, simply remove any impediments to truth telling with a blanket pardon against possible prosecution for everyone involved, whether or not they think they need one. Preventing recurrence by exposure is more important than establishing individual culpability. President Ford pardoned Nixon—a controversial but wise decision that helped heal the country.

A truth commission on torture could be ruinously divisive. It would smack of political vendetta and fuel narrow partisan agendas on both sides. It would lead to spectacle, not edification. It could end up giving rogues the aura of martyrs.

Let history be their judge.

I have been asked several times recently to give my views on the subject of torture of prisoners and of US government torture of detainees in particular. Universities are the usual place for meetings that want to discuss this, but I have also been asked recently to review and comment on the intelligence record and evidence against a person held for six years by the US Government. This man was a prisoner of the Taliban government for two years before he came to be “detained” by us. The subject of torture and coerced statements has been much on my mind.

It is easy to make a case against torture and coercion as means of interrogating prisoners. Surely “pride of place” among the arguments must be the prima facie case for the sheer immorality of deliberate infliction of pain on another being, human or otherwise. I won’t try to explain why that is so. If you do not understand it, nothing would persuade you.

Nearly everyone will tell you that coercion is likely to produce false information, given merely to obtain relief. As a general statement that assertion works well. Unfortunately, it is not absolutely true that valuable information can not be obtained through torture. The Jack Bauer “ticking bomb” scenario is sometimes offered as an excuse and example for the necessity of torture. It is hard to argue that such a circumstance might not arise, but the argument often seems to be overly relished by those offering it. Surely, a person making the “ticking bomb” argument should also say that a resort to coercion in such straits ought to be illegal even if necessary? No?

The pragmatists among us often argue that torture of prisoners, especially “combatants” is likely to lead to retaliatory torture against our own combatants when captured. This is certainly true although the argument is somewhat weakened by the historical experience of our forces with a number of past and present enemies. Some of those found the infliction of pain and humiliation to be rewarding without regard to the behavior of US forces.

A particularly strong argument against torture is the effect it has on the torturers and abusers. Professional military leaders know that allowing (or commanding) men who have been trained to fight and kill to engage in behavior that breaks down the bonds of discipline and pride in self or unit is a dangerous thing to do. After engaging in such acts, soldiers (or anyone else) lose the capacity to judge right from wrong and degenerate into self-indulgent violence and a brutal nihilism. As this happens they become more and more dangerous to their leaders and unwilling to see their duty in terms larger than themselves. In other words, using soldiers to do such things rots the very fiber of an army and disgraces its members and spirit. Douglas MacArthur (and my father as well) spoke of the “ancient and honorable profession of arms.” That notion is incompatible with soldiers who torture and abuse prisoners or anyone else.

Should there be a US “truth and justice commission” on this subject?

Yes. There should be. We must know the truth so that all Americans might have a clear understanding of what was done (or not done) in their name. What has happened over the last years must be examined in detail so that we can judge if we wish to “go there” again. If there is not such an enquiry, then we Americans will “limp along” in imagined “history” unable to tell the difference between the fantasy of “24” and the rants of the activists who desperately want to believe that the “School of the Americas” was a prep school for a new Inquisition.

Punishment? Let us discover what really happened before this question is decided.

I have quite mixed feelings on this issue. The very name “Truth Commission”, of course, points toward the South African experience of apartheid and the awful “truths” that need to be revealed to heal the 50 years of actions of an oppressive regime. “A Truth Commission” on our actions since 9/11 will exaggerate the nature of what was, for better or worse, a deliberate set of actions taken by the CIA and others under the Bush Administration -- ordered and vetted by that Administration through its Justice Department and its National Security Council – against an enemy that reached out to our homeland and killed innocent civilians.

On the flip side of this matter, we did not always cover ourselves with glory during this period and no doubt may have gone too far in some aspects of our “war on terror.” Some of those actions have reverberated against us overseas and have given comfort and aid to the very people we are trying to combat. An accounting needs to happen.

I would hope that the Senate and House Intelligence Committees would take their oversight responsibilities in hand and, with the cooperation of Congressional leadership, hold open hearings to get some of these actions on the public record. Granted, there will be political grandstanding to a fare thee well. Thus is the nature of politics and the Hill. But not every committee or congressman on the Hill should be holding a hearing on this matter.

Intelligence Committee hearings would do two things – first, lay out the information in a detailed and comprehensive fashion. That is a nice way of saying help scuttle the leaks that will arise from any “classified” reports” meant to selectively shock and bury the real context of what happened. Second, give an opportunity for those involved to explain the logic behind what they did and why – agree or disagree.

The reason this has to be done in a controlled fashion also extends to two other factors. Make no mistake about it, our enemies watch these Congressional events and make their calculations for behavior and potential action accordingly. Right or wrong, the Bush Administration’s actions were taken against an enemy that attacked our homeland and killed 3,000 people in less than three hours.

The second reason, one with strong historical precedent, is that uncontrolled and reckless hearings create needless fear among those loyal public servants who did their jobs against an aggressive enemy who wants us dead.

Sadly, the second reason has historical precedent. Congress instilled a “fear of action” during the 1970’s with both the Church and Pike Commissions – in their own way “truth commissions” of their day. Much was exposed that never should have happened. However, the sometime reckless and sensational nature of these hearings paralyzed a generation of intelligence officers making them too cautious for fear that they would be spending their lives and fortunes defending themselves in court, or losing their careers.

My bottom line: The Senate and House Intelligence Committees need to step forward to do their job of oversight and hold public hearings to limn out the good and bad of what happened. However, they must recognize that engaging in political histrionics, bashing and blaming those who served to protect us against a vicious enemy is harmful and unproductive.