A Path Paved with Bad Intentions

This is an excerpt from 'The Torture Papers: The Road to Abu Ghraib (Cambridge University Press),' edited by Karen J. Greenberg and Joshua L. Dratel.

While the proverbial road to hell is paved with good intentions, the internal government memos collected in this publication demonstrate that the path to the purgatory that is Guantanamo Bay, or Abu Ghraib, has been paved with decidedly bad intentions. The policies that resulted in rampant abuse of detainees first in Afghanistan, then at Guantanamo Bay, and later in Iraq, were a product of three pernicious purposes designed to facilitate the unilateral and unfettered detention, interrogation, abuse, judgment, and punishment of prisoners: (1) the desire to place the detainees beyond the reach of any court or law; (2) the desire to abrogate the Geneva Convention with respect to the treatment of persons seized in the context of armed hostilities; and (3) the desire to absolve those implementing the policies of any liability for war crimes under U.S. and international law.

Indeed, any claim of good faith – that those who formulated the policies were merely misguided in their pursuit of security in the face of what is certainly a genuine terrorist threat – is belied by the policy makers' more than tacit acknowledgment of their unlawful purpose. Otherwise, why the need to find a location – Guantanamo Bay – purportedly outside the jurisdiction of the U.S. (or any other) courts? Why the need to ensure those participating that they could proceed free of concern that they could face prosecution for war crimes as a result of their adherence to the policy? Rarely, if ever, has such a guilty governmental conscience been so starkly illuminated in advance.

That, of course, begs the question: what was it that these officials, lawyers and lay persons, feared from the federal courts? An independent judiciary? A legitimate, legislated, established system of justice designed to promote fairness and accuracy? The Uniform Code of Military Justice, which governs courts-martial and authorizes military commissions? The message that these memoranda convey in response is unmistakable: these policy makers do not like our system of justice, with its checks and balances, and rights and limits, that they have been sworn to uphold. That antipathy for and distrust of our civilian and military justice systems is positively un-American.

However, that distaste for our justice system was not symmetrical, as the memos reveal how the legal analysis was contrived to give the policy architects and those who implemented it the benefit of doubt on issues of intent and criminal responsibility while at the same time eagerly denying such accommodations to those at whom the policies were directed. Such piecemeal application of rights and law is directly contrary to our principles: equal application of the law, equal justice for all, and a refusal to discriminate based on status, including nationality or religion. A government cannot pick and choose what rights to afford itself, and what lesser privileges it confers on its captives, and still make any valid claim to fairness and due process.

The memoranda that comprise this volume follow a logical sequence: (1) find a location secure not only from attack and infiltration, but also, and perhaps more importantly in light of the December 28, 2001, memo that commences this trail, from intervention by the courts; (2) rescind the US' agreement to abide by the proscriptions of the Geneva Convention with respect to the treatment of persons captured during armed conflict; and (3) provide an interpretation of the law that protects policy makers and their instruments in the field from potential war crimes prosecution for their acts. The result, as clear from the arrogant rectitude emanating from the memos, was unchecked power, and the abuse that inevitably followed.