Terms of Engagement

For Shame

For Shame

Practically everyone from U.S. President Barack Obama to newspaper columnists has reacted to the bombing of the Boston Marathon by declaring that Americans will not abandon their daily habits, or their deepest values, in the face of another terrorist attack. Be it so. But a report on the torture of detainees in the United States and abroad, released the day after the Boston attack, painfully reminds us of what America’s leaders permitted themselves to do — and the American people permitted them to do — in the aftermath of the 9/11 attacks. And there is little reason to be confident that it wouldn’t happen again.

The report of the Constitution Project’s Task Force on Detainee Treatment concludes that "it is indisputable that the United States engaged in the practice of torture." We knew that, of course. But this 577-page report not only reminds us of every sickening thing the United States did in the name of protecting Americans from the threat of terrorist attack, but it comes under the unimpeachably bipartisan seal of co-chairs James R. Jones, a former Democratic congressman from Oklahoma, and Asa Hutchinson, a former Republican congressman from Arkansas who later served in George W. Bush’s Department of Homeland Security. That matters: Leading members of the Bush administration, most notoriously Vice President Dick Cheney, continue to insist that they did not, in fact, engage in torture.

The report offers a kind of road map for how a democracy goes about doing things that are repugnant to its principles. Military dictators can simply order dissidents to be pushed out of planes into the sea or thrown into prison to rot; the political leaders of a democracy need the legitimacy of law to justify otherwise despicable acts, whether it’s Jim Crow legislation or the fraudulent treaties that drove Native Americans from their land.

How were prisoners seized in Afghanistan to be treated once they were brought back to the detention facility at Guantánamo Bay? Military men tended to assume that they would be treated according to the well-known laws of war. The judge advocates general of the military services believed that the Geneva Conventions had to apply to detainees. But Defense Secretary Donald Rumsfeld ruled that interrogators could use "enhanced techniques" forbidden by the conventions, adding the dark joke that forcing prisoners to stand for up to four hours was too lenient, since he often stood eight to 10 hours a day. Prolonged standing was, of course, the least of it: Mohammed al-Qahtani, thought to be the "20th hijacker," was subjected to extreme stress positions as well as extreme cold, injected with large quantities of intravenous fluid so that he urinated on himself, led around on a leash and forced to bark like a dog, etc.

The report describes how Alberto Mora, general counsel of the Navy, innocently imagined that the reports he had heard of detainee abuse at Guantánamo must be the result of "a rogue operation." Mora told Rumsfeld’s chief counsel that a scandal, and a moral catastrophe, was in the making. Rumsfeld agreed to impanel a review — but brought in John Yoo, the White House lawyer who had already written the memo granting the CIA the right to use enhanced techniques. Yoo reproduced his reasoning for Rumsfeld. But when Mora heard nothing further, he thought he and the judge advocates general had carried the day. In fact, Rumsfeld’s office had produced a secret final report that incorporated Yoo’s argument. Torture at Gitmo would thus have the formal imprimatur of the military’s own judicial authorities. It would be not just legal, but legitimate.

Again and again, men of principle, often in uniform, insisted that torture was neither legal nor legitimate. They were browbeaten and threatened, sometimes physically. When Jack Goldsmith, who had taken Yoo’s job at the Office of Legal Counsel, tried to overturn Yoo’s findings, David Addington, Cheney’s attack-dog legal counsel, shouted at him: "The president has already decided that terrorists do not receive Geneva Convention protections.… You cannot question his decision." Of course Bush, Cheney, and Rumsfeld never authorized torture; instead, they made it clear that anything done to detainees would be considered legal. And though torture is by definition illegal, even the most savage punishment would not constitute torture.

America did a terrible thing. But America is a democracy, and democracies hold people accountable for their misdeeds. So once the truth began to come out, by way of the terrible photographs taken at the Abu Ghraib prison in Iraq, the formal mechanisms of accountability lurched into action. The low-level military police who committed those documented outrages were tried and convicted. But the special operations soldiers who committed repeated atrocities at secret facilities in Iraq received nothing stronger than a letter of reprimand. Their commanding officer, Brig. Gen. Lyle Koenig, was allowed to retire. The Justice Department then investigated 101 cases of CIA abuse, dismissed 99 of them, and ultimately found insufficient evidence to go ahead with the other two. The Justice Department’s Office of Professional Responsibility found that Yoo had committed "intentional professional misconduct" — but Obama’s attorney general refused to adopt the finding. Of course Bush, Cheney, and Rumsfeld have not been punished. What is worse — they have not been dishonored.

Why is that? Why have the torture architects not been covered with the shame they so richly deserve? The report rightly blames Obama for continuing to pull a veil of secrecy over so many crucial documents, including a 6,000-page Senate Intelligence Committee report on detainee abuse, inquiries into prisoner deaths, and even the accounts by Guantánamo inmates of their own mistreatment (on the grounds that the abuse exposed them to classified techniques). Perhaps if we knew more, we wouldn’t judge the morality and efficacy of torture from episodes of 24. The crimes belong to the Bush administration, but the failure of accountability also sticks to Obama.

Yet there is no evidence that the American people want to know the truth. Quite the contrary: A poll last fall, featured on ForeignPolicy.com, found that 41 percent of respondents thought the United States should use torture against terrorists, while 34 percent thought it should not — a figure that had increased significantly from five years earlier, when images from Abu Ghraib were still fresh. A quarter of respondents approved of waterboarding, and 30 percent of chaining prisoners naked in stress positions. The reason the horrors of Guantánamo and Abu Ghraib could happen again is not simply because they have not been forbidden by law, as the report concludes, but because Americans believe that the war on terror has accorded them a right to torture.

Americans have an apparently ineradicable view of themselves as a force for good. Republicans shamelessly play to this angelic self-conception when they accuse Obama of not subscribin
g to the national credo of "American exceptionalism." But what dark deeds has that credo excused! To know for a certainty that your ends are noble is to excuse yourself in advance for whatever means you choose to fight your adversaries, who by definition must be evil. This is what the South American generalissimos who "disappeared" alleged communists in the "dirty wars" of the 1970s and 1980s told themselves. But of course they didn’t profess to believe in fine universal principles, as Americans do. They didn’t have a free press and vigorous political debate, as Americans do. The shame, therefore, in some measure attaches to all Americans, not just to America’s leaders.

The detainee report quotes an official in Poland, a U.S. ally that hosted one of the "black sites" where the CIA felt free to do what they wished to "unlawful combatants." The man could not quite make sense of what he saw. "The problem," he told investigators, "is that Poland always looked to the United States as a beacon of what was right, what was aspirational, what is ethically correct. To us, when we heard about the Russians, torturing and kidnapping and killing … we thought, the United States is our model."