The Stomach-Turning Truth About Bush's Torture Programs

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

The new disclosures have transformed the parameters of the debate. The Bush administration’s claims that “we do not torture” and that the problems associated with photographs from Abu Ghraib were all related to a “few bad apples” have collapsed. The fall back position urged with increasing vigor by Dick Cheney and Karl Rove is simple and includes both offensive and defensive elements. The critical top note is that torture works and keeps America safe. Cheney repeats this claim at every public appearance. He argues that the key to the Bush Administration’s avoidance of any further attacks on the United States after 9/11 was the reach to torture techniques. He claims that these techniques yielded information that allowed the U.S. to thwart attacks. But Cheney has been extremely slippery about the details of these claims.

Cheney has also filed papers with the National Archives seeking the declassification and disclosure of two CIA reports, which he notes are in a file from his office marked “Detainees.” Curiously, neither report dates from the period of heavy use of torture techniques like waterboarding—they are from a subsequent period in which information gained is probably being crunched or evaluated in an effort to prove that the application of torture yielded something useful. Critics object to Cheney’s request, but they don’t object to disclosure of information about the fruits of the program. They argue that Cheney cannot be allowed to cherry-pick the evidence as he did with intelligence relating to the Iraq War. Instead, they argue, there should be a comprehensive study of the question that reaches some results—perhaps best in the form of a commission of inquiry like the one that the congressional judiciary committee chairs, John Conyers and Patrick Leahy, have proposed.

Rove’s counterattack takes a different form. He argues, using formulations that instantly reverberated though the airwaves as dozens of Republican commentators took them up, that any effort at accountability would be a primitive act of retribution. Appearing on Sean Hannity’s show on Fox News, Rove invoked the image of “Latin American colonels in mirrored sunglasses,” claiming that any effort to investigate breaches of law would be a “criminalization of an honest policy dispute” that would undermine the fabric of American democracy.

The imagery used by Rove is particularly jarring because in fact there is a broad sense that the age of dictators in mirrored sunglasses in Latin America is passed, and key to the triumph of democracy in the hemisphere was a firm move towards the accountability of heads of state. Since 1990, 68 heads of state have faced criminal prosecution in roughly forty countries, as noted in Prosecuting Heads of State, a new book just published by Cambridge University Press. These prosecutions have demonstrated the maturity and stability of democratic systems and have helped guard the hemisphere’s democracies against extralegal overreaching by heads of state. Indeed, the most striking single case cited is the just concluded prosecution of former Peruvian President Alberto Fujimori. Confronting the terrorism of a Maoist group called Sendero Luminoso, Fujimori authorized widespread torture, extralegal detentions, the use of military tribunals to try civilians, and the “disappearings” of hundreds of Peruvians. After an extended trial, Fujimori was sentenced to 25 years in prison for his crimes. The case is viewed inside Peru as a landmark triumph of the rule of law.

President Obama and his advisors have reacted to these disclosures through a series of unconvincing gyrations. It is clear that Obama’s principal concern throughout this process has been that the controversy surrounding torture will prove a distraction that might encumber his efforts to push through an ambitious agenda including financial industry reform, bailouts, health care reform and an array of foreign policy initiatives. While Obama came though on an election campaign promise to honor Freedom of Information Act requests by publishing previously classified government materials dealing with torture, he has also sought to dampen public reaction. But his steps have been ham-handed. On the question of possible prosecutions, Obama went to the CIA to deliver public assurances that no intelligence officers who relied on government legal opinions would be investigated or prosecuted for what they did. Shortly thereafter, his chief of staff, Rahm Emanuel and press secretary, Robert Gibbs, announced that there would be no prosecution of legal memo writers or policy makers either—steps violating clear-cut rules about the involvement of White House political figures in criminal justice matters. The White House was forced to pull back the next day, insisting that the Justice Department would handle these questions.

Obama mishandled calls for a commission of inquiry into the torture question in the same way. First he signaled that he would sign legislation creating a commission if it reached his desk. Then, forty-eight hours later, in a meeting with Senate Majority Leader Harry Reid, he signaled he would oppose such an effort. In the days that followed, White House spokesmen attempted to reconcile and explain the conflicting statements.

Obama insists America must “look forward.” He views the torture question as resolved by a series of orders he issued coming into office. But Cheney and Rove suggest another idea. It’s clear that in their view America is just one more 9/11 attack away from a transformation in which their use of the “dark arts” will again carry popular endorsement and provide a powerful wedge issue to use against Obama. Obama’s optimism about closure on the torture issue may therefore be seriously misplaced.

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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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