The Torture Test

The next several days will show whether our Congress has slipped its moral moorings. Seldom have moral lines been so clearly drawn. The issue is whether American armed forces and intelligence personnel should be permitted or forbidden to torture detainees. Lawmakers on Capitol Hill are expected to decide whether to ban torture against all prisoners held by the United States, to merely ban torture for some of those prisoners, or to reject outright any attempt to legislate a new ban on torture. The White House and the CIAare lobbying to exempt detainees held by the CIA from an amendment-- sponsored by John McCain and endorsed by nearly all senators--that would ban "cruel, inhuman and degrading" treatment for all detainees held by the United States.

The context for the White House position is key. After the publication of the Abu Ghraib photos in 2004, the administration released a raft of documents claiming these documents showed that there was no policy allowing the abuse of prisoners. It was surreal; the documents showed just the opposite. It was as though the White House thought we couldn't read.

Most striking was a memorandum of February 7, 2002, signed by President George W. Bush, on the treatment of Al Qaeda and Taliban detainees. That memorandum records the president's unilateral determination that the Geneva Convention on prisoners of war "does not apply to either al Qaeda or Taliban detainees." This decision is of dubious validity because there is no provision in the Geneva conventions that would countenance a unilateral decision to exempt prisoners from Geneva protections.

I will spare you most of the torturous language offered by the president's lawyers. Suffice it to say that paragraph 3 of his February 7 memorandum contains a gaping loophole that, in effect, authorizes torture:

As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva. (emphasis added)

How Did We Stoop So Low?

President Bush and Vice President Cheney set the tone. According to counterterrorism chief Richard Clarke, it began on the evening of 9/11.Immediately after the president's 8:30p.m. TV address to the nation, he met with Defense Secretary Donald Rumsfeld and Clarke in a bunker under the East Wing of the White House. In his book, Against All Enemies, Clarke describes the president as "confident, determined, and forceful":

I want you all to understand that we are at war...any barriers in your way, they're gone. Any money you need, you have it...I don't care what the international lawyers say, we are going to kick some ass.

At a joint hearing of the House and Senate intelligence committees on September 26, 2002, Cofer Black, then-head of the Counterterrorism Center at CIA, emphasized the need for "operational flexibility," adding that intelligence operatives cannot be held to the "old" standards. Addressing torture, Black said, "This is a highly classified area, but I have to say that all you need to know: There was a before-9/11 and an after-9/11. After 9/11 the gloves came off."

On Wednesday, the Washington Post delivered fresh evidence that, within days of 9/11, Bush and Cheney told then-CIA director George Tenet to set CIA interrogators free from the customary restrictions. In her article on the mini-gulag system of secret CIA-operated prisons overseas, Post reporter Dana Priest reported that on September 17, 2001, Bush signed a secret "finding" giving the CIA broad authorization to disrupt terrorist activity, including permission to kill, capture and detain Al Qaeda members anywhere in the world.

Authorization for "rendering" detainees to other countries for interrogation, as well as the establishment of secret prisons abroad, were probably subsumed under such a broad presidential "finding." Still, one can assume that Tenet and, indeed, the president himself would seek reassurance that they would be legally protected from prosecution in the future. And this would account for the flurry of lawyerly activity in early 2002.