The Stomach-Turning Truth About Bush's Torture Programs

By Scott Horton, The Daily Beast. Posted April 28, 2009.

In the space of a week, the torture debate in America has been suddenly transformed. The Bush administration left office resting its case on the claim it did not torture. The gruesome photographs from Abu Ghraib, it had said, were the product of “a few bad apples” and not of government policy. But the release of a series of grim documents has laid waste to this defense. The Senate Armed Services Committee’s report—adopted with the support of leading Republicans senators John McCain, John Warner, and Lindsey Graham—has demonstrated step by step how abuses on the ground in Iraq and Afghanistan had their genesis in policy choices made at the pinnacle of the Bush administration. A set of four Justice Department Office of Legal Counsel memoranda from the Bush era has provided a stomach-turning legal justification of the application of specific torture techniques, including waterboarding.

As public and Congressional calls for appointment of a prosecutor and the creation of a truth commission have proliferated, President Obama stepped in quickly to try to turn down the heat. A commission would not be helpful, he argues, and he has made plain his aversion to any form of criminal law accountability. Republicans, meanwhile, bristle with anger as they attempt to defend against the flood of new information. But, in the end, Obama’s assumption that the torture debate has run its course and that the country can now “move on,” as conservative pundit Peggy Noonan urged, may rest in some serious naïveté: Karl Rove and Dick Cheney have different ideas. They’re convinced that Bush-era torture policy is a promising political product for a party down on its luck. Its success on the political stage is just one more 9/11-style attack away.

The latest disclosures can best be grouped in terms of the destruction of a series of long-enduring myths and the emergence of some new truths.

The Broken Myths

1. Torture was connected to some “rotten apples,” mostly enlisted personnel from rural Appalachia who were improperly supervised.
   
   The Senate Armed Services Committee meticulously documents the abuses that were chronicled at Abu Ghraib, Bagram Air Base, and other sites and links them directly to techniques that were approved by Secretary of Defense Donald Rumsfeld and other senior officials in the Bush administration. Even in the case of Abu Ghraib, it shows step-by-step how directions given by Rumsfeld that the harsh techniques he adopted for Guantánamo be imported to Iraq, specifically for use on high-value detainees at the Abu Ghraib facility. Among the 232-page report’s conclusions: “The abuse of detainees in U.S. 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.
   
   
2. The torture techniques were derived as a last resort, only after other techniques had failed and that interrogators in the field pushed for their use.
   
   The report shows, however, that the effort to identify and seek authority to use harsh new techniques started shortly after 9/11—that is, in 2001, well before there were any prisoners on whom they could be used. It also shows that the effort had its origin in the White House, specifically in the office of Vice President Cheney and involved a series of persons who had Cheney’s confidence.
   
   Conversely, the report and other documents emerging since its release shows that interrogators in the field raised sharp objections to the use of the techniques and steadily questioned their efficacy. The team dealing with one prisoner, for instance, voiced the view that he had already furnished all the evidence he was likely to produce and that further waterboarding would be pointless. Nameless “higher-ups” overrode their judgment. That group might well include Cheney, who is known to have maintained a sharp interest in this particular detainee and kept on his desk a file marked “detainees” in which he collected data related to the use of torture. The Senate report documents a series of military officers who raised objections against the use of torture and insisted that their opposition be recorded. And today a further report has emerged from July 2002 (just as the OLC memos were being commissioned), in which the military’s Joint Personnel Recovery Agency (JPRA) expressly referred to the techniques which were being reverse engineered from the SERE program (that JPRA oversaw) as “torture” and insisted that if used they would not produce reliable intelligence.
    
3. Bush lawyers may have made “honest mistakes” in their legal analysis owing to the extreme pressure that existed in the immediate wake of 9/11, in which they were pressed quickly to give opinions before matters could be fully evaluated.
   
   One of Bush’s OLC chiefs, Jack Goldsmith, makes the argument, now accepted as a mantra-like defense for the Bush-era torture lawyers, that tremendous pressure and short deadlines were to blame for their failure to properly assess the law. The torture memoranda gave seriously faulty analysis of the law, Goldsmith claims, because of this pressure-cooker environment. We should all be prepared to excuse their lapses for this reason. Goldsmith is not the most objective analyst of the question, and his adamant insistence that he was divorced from the process of giving a green light to torture appears less persuasive as time passes. But the writings of the torture memo writers, particularly of John Yoo, look suspiciously like their academic writing, in which they sought to expand presidential power and authority at the expense of the rights of the other branches. It seems more plausible to conclude just the opposite of Goldsmith’s claims, namely, that they seized upon the crisis that arose in the wake of 9/11 as an opportunity in which they could realize their ideas about limitless presidential powers in wartime.

The Emerging Reality

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Scott Horton is a law professor and writer on legal and national security affairs for Harper's Magazine and The American Lawyer, among other publications.

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