The Bush Legacy of Legalized Torture
By Alfred W. McCoy, 2/8/06, published on TomDispatch.com
Just before Christmas, two of the world’s most venerable legislative
bodies engaged in erudite, impassioned debate over what the right
balance should be between the imperatives of national security and
international prohibitions on torture. They arrived at starkly
divergent conclusions that reveal the depth of damage the war on terror
is doing to this country’s civil liberties.
On December 7, the House of Lords,
reviewing cases in which a dozen Muslim militants were to be deported,
spoke with moral clarity on the issue of torture, branding it “an
unqualified evil” which should have no place in the proud,
thousand-year tradition of British justice. Just a week later, the U.S. Senate amended
the Defense Appropriations Bill to prohibit the “abuse” of detainees in
American custody, including the many Muslims at our Guantanamo prison,
but did so on the purely pragmatic, almost amoral grounds that it
“leads to bad intelligence.” Under pressure from the White House, the
senators also loaded this legislation with loopholes that may soon
allow coerced testimony — extracted through torture — into American
courts for the first time in two centuries.
This disconcerting contrast is but one sign that, under the Bush
administration, the United States is moving to publicly legitimate the
use of torture, even to the point of twisting this congressional ban on
inhumane interrogation in ways that could ultimately legalize such
acts. And following their President’s lead, the American people seem to
be developing a tolerance, even a taste, for torture.
This country may, in fact, be undergoing an historic shift with
profound implications for America’s international standing. It seems to
be moving from the wide-ranging but highly secretive tortures wielded
by the Central Intelligence Agency during the Cold War decades to an
open, even proud use of coercive interrogation as a formal weapon in
the arsenal of American power, acceptable both to U.S. courts and the
American people.
In the early years of its war on terror, the administration
maintained the long-standing yet informal executive policy of ordering
clandestine CIA torture in times of crisis. Minutes after his public
address to a shaken nation on September 11, 2001, President Bush barked to his aides, “I don’t care what the international lawyers say, we are going to kick some ass.”
As administration lawyers translated these words into formal
directives, they carefully cloaked this otherwise unlawful demand in
three controversial constitutional arguments — that the president’s
commander-in-chief powers allow him to override all laws and treaties;
that U.S. anti-torture laws can be stretched to provide a winning legal
defense for any CIA interrogator accused of torture; and most tenuously
of all, that the detainee prison at Guantanamo Bay in Cuba was not on
American territory and so was beyond the writ of U.S. courts.
Two years later, when the infamous photos from Iraq’s Abu Ghraib
prison exposed the administration’s illegal interrogation tactics in
lurid color, the White House was faced with an historic choice that, in
practice, proved no choice at all: either definitively ban torture or
defy the international community by promoting the practice.
Bartering Away Legal Birthrights
That the upper deliberative bodies of the United States and Great
Britain found themselves facing the question of torture at exactly the
same moment had a certain ironic appropriateness. After all, the two
countries share a secret history of torture reaching back to the dark
early days of the Cold War. In 1951, these two nations collaborated in
a covert CIA-run mind-control research project into which the American
government ultimately poured several billion dollars. Late in that
decade, CIA scientists elaborated that research into a revolutionary new form of torture, more psychological than physical, that would prove both legally elusive and highly destructive to the human psyche.
Even though this “no-touch” psychological form of torture generally did
greater lasting damage than its physical variant, it was surrounded by
an appealing scientific aura and was, at least in theory, devoid of the
obvious signs of brutality that might trouble the public and provide
telling evidence for prosecutors.
For the next 20 years, Washington deployed these torture techniques
against communists and other revolutionaries in Asia and Latin America.
Simultaneously, London used them to fight nationalists in its far-flung
territories during the long, bloody eclipse of the British empire — in
places like Aden, Brunei, British Guiana, and Northern Ireland.
In 1978, charged before the European Court of Human Rights with
torturing IRA suspects, Britain swore “a solemn undertaking” that it
would never again deploy these psychological torture techniques. Last
month, in reversing the deportations of Muslims convicted on “evidence
procured by torture inflicted by foreign officials,” London’s law lords
cited this case in ruling that “bedrock moral principle” from centuries
of common law and recent international conventions made torture
anathema in the country’s courts.
By contrast, confronted with strong evidence of detainee abuse at
Abu Ghraib and Guantanamo, the Bush White House has fought back by
defending torture as a presidential prerogative and so precipitating an
epic political struggle in this country. As a powerfully symbolic state
practice, synonymous with brutal autocrats, torture, even of the few,
raises profound moral and legal questions about the limits of
presidential power, the quality of our justice, and ultimately the
character of this American civilization.
While the Bush White House has protected and promoted senior
officials implicated in the torture scandal, an ad hoc civil-society
coalition of courts, media, and human rights groups has mobilized to
stop the abuse. In June 2004, the Supreme Court ruled in a landmark
case, Rasul v. Bush,
that the Guantanamo detainees were indeed on U.S. territory, no matter
what the administration’s lawyers claimed, and so deserved access to
American courts. This decision prompted some of the country’s top law
firms, working pro bono, to file 160 habeas corpus cases on behalf of
some 300 Guantanamo detainees.
Last summer, Senator John McCain proposed an amendment
to the must-pass Defense Appropriation Bill that would ban all “cruel,
inhumane and degrading” treatment of detainees and set the U.S. Army
Field Manual as the standard for any interrogation, whether by the
military or the CIA. President Bush reacted by vowing to veto the bill,
should it somehow pass the Republican-controlled Congress.
When Bush’s bluff failed, the White House began lobbying for the
insertion of loopholes into the proposed prohibition. First, Vice
President Cheney pressed McCain to exempt the CIA from his ban. The
senator refused. Next, National Security Adviser Stephen Hadley weighed in,
urging broad legal exemptions for CIA torturers. Again, the senator
stood his ground. Suddenly, Secretary of Defense Donald Rumsfeld’s
Pentagon rewrote the Army Field Manual to teach interrogators, as the New York Times
reported, “how to walk right up to the line between legal and illegal
interrogation” — changes one Defense official termed “a stick in
McCain’s eye.”
To placate the White House, McCain
eventually softened his prohibition by adding a legal defense for
accused CIA and military interrogators that mimes the extreme
exculpatory logic of the Justice Department’s notorious August 2002 Bybee memo.
Drafted to protect CIA interrogators after 9/11, this now-disavowed
document argued that torture, as defined under U.S. law, required that
the suffering inflicted “be equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment
of bodily function, or even death.” In a section of McCain’s amendment
called “Protection of United States Government Personnel,” the final
legislation opened a little noticed but similarly cavernous legal
loophole for future torturers. It allowed U.S. officials “engaging in
specific operational practices that involve interrogation of aliens” to
claim, if charged, that they “did not know that the practices [they
used] were unlawful.”
After the Senate passed McCain’s torture ban by a resounding 90-9
vote, ending any hope of a presidential veto, the administration tried
to further neutralize its impact by backing an amendment
authored by Republican Senator Lindsey Graham of South Carolina. As
originally drafted, this amendment would have allowed the courts to
consider all evidence collected under any but the most outrageous uses
of “undue coercion.” No less startlingly, it denied detainees in places
like Guantanamo — those “unlawful combatants” – any right to challenge
their detention by filing writs of habeas corpus in U.S. courts. Complaining that
“Non-Citizen Terrorists” at Guantanamo were filing cases over “the
quality of their food,” Graham urged passage of his amendment to spare
“our troops fighting in the War on Terror” from being “sued in every
court in the land by our enemies.” For a mess of partisan pottage, the
senator was bartering away this nation’s constitutional birthright of
habeas corpus, a foundational legal protection born of Parliament’s
long struggle to ban royal torture writs by the infamous Court of Star
Chamber.
After the Senate approved Graham’s amendment by a 49-42 vote on
November 10, reformers led by Democratic Senator Carl Levin fought an
uphill battle to moderate these extreme proposals — replacing the
bill’s blanket acceptance of “coerced” evidence with ground rules for
its evaluation by the courts and trying to limit the ban on habeas
corpus appeals from Guantanamo to future cases, allowing those already
filed to proceed.
But in the final legislation,
titled “The Detainee Treatment Act of 2005,” McCain’s now-compromised
ban on cruel treatment of detainees was effectively eviscerated by
Graham’s denial of legal redress. To nullify the landmark Supreme Court
ruling that Guantanamo is, in fact, American territory and so falls
under the purview of U.S. courts, Graham also stipulated in the final
legislation that “the term ‘United States,’ when used in a geographic
sense, does not include the United States Naval Station, Guantanamo
Bay.” In this way, he tried once again to deny detainees any legal
basis for access to the courts. In effect, McCain’s motion more or less
bans torture, but Graham’s removes any real mechanism for enforcing
such a ban.
The Media Mirage of a Torture Ban
Last December 15, all these tensions seemed to dissolve in a dramatic Oval Office handshake between Senator McCain and President Bush who announced that the landmark legislation made it “clear to the world that this government does not torture.”
That White House photo-op was, however, a complete media mirage.
Within hours, the administration began moving deftly to pull any teeth
left in this legislation. Speaking to CNN, Attorney General Antonio Gonzales
quickly dismissed McCain’s reform as insignificant, insisting that
existing legislation only banned the infliction of “severe” physical or
psychological pain in interrogations — the same linguistic legerdemain
that had allowed the administration to start torturing back in 2002.
The attorney general seemed to be echoing the opinions of his
subordinates who, according to the Washington Post,
were already arguing that the McCain amendment would, “under certain
circumstances,” still allow “waterboarding” — the same method that the
French Inquisition had once called the “question de l’eau” (water
question) or “torturae Gallicae ordinariae” (standard Gallic torture)
— and other harsh techniques.
On December 30, right after signing a defense bill that included the McCain amendment at his Crawford ranch, President Bush
issued a “signing statement” — carefully released at the extremely
unnewsworthy hour of 8:00 pm that Friday night — insisting that his
powers as commander-in-chief and head of the “unitary executive branch”
still allowed him to do whatever was necessary to defend America. So
much for McCain’s efforts as the year ended.
Just four days into 2006, Senator McCain,
though claiming confidence that the “President understands Congress’s
intent” in passing the torture ban, promised “strict oversight to
monitor the Administration’s implementation of the new law.” Faced with
nullification by the presidential signing statement, Senator Edward Kennedy
warned, during Judge Alito’s confirmation hearings, that President Bush
was insisting “whatever the law of the land might be, whatever Congress
might have written, the executive branch has the right to authorize
torture without fear of judicial review.”
As if to confirm this pessimistic view, the administration quickly
deployed the new Detainee Treatment Act to quash any judicial oversight
of its actions — particularly the dubious designation of detainees as
“unlawful enemy combatants” unworthy of any protection by the Geneva
Conventions or the U.S. Constitution.
On January 3, the Justice Department, citing this new law, notified
federal judges that it would soon seek the immediate dismissal of all
160 habeas corpus cases already filed for 300 Guantanamo detainees. On
January 12, the Solicitor General, again citing the new law, told the
Supreme Court it no longer had jurisdiction over Guantanamo and asked
the justices to dismiss another potential landmark “unlawful combatant”
case, Hamdan v. Rumsfeld. Then, putting the cherry atop the
administration’s many-layered legal confection, on January 24 the Army
changed its standing orders to allow military executions at Guantanamo,
thus keeping the U.S. courts from intervening in any drum-head death
sentences for detainees.
All these maneuvers were part of a White House campaign essentially
aimed at formalizing those three dubious legal doctrines that had long
underpinned its torture policy. Recoiling from the prospect of an
“Imperial Presidency” implicit in these moves, the New York Times
of January 15 called on Congress “to curtail Mr. Bush’s expansion of
power” and his “unilateral rewriting of more than 200 years of
tradition and law.”
Looking through a glass darkly into the future, the possible
implications of these trends for the quality of American justice are
troubling indeed. The military tribunals at Guantanamo are not required
to reveal the sources of their evidence against the 500 detainees on
trial, even though significant parts of it undoubtedly come from
torture and abuse of either the accused or other detainees. Moreover,
under the Detainee Treatment Act, federal courts will be able to
consider the use of this same coerced information in hearing any
appeals from Guantanamo. In a sharp, sad contrast with Britain’s law
lords, our congressional legislation allows the courts to weigh the
probative value of tortured testimony, potentially introducing coerced
evidence into the federal courts for the first time in our nation’s
history.
One question seldom asked is: Why has the public response to issues
that cut to the very core of America’s national identity been so muted?
The short answer: The administration’s increasingly unapologetic
advocacy of torture has echoed subtly but effectively with the trauma
of 9/11.
With the horrific reality of the Twin Towers attack still resonating
and endless nuclear-bomb-in-Times-Square/ticking-bomb interrogation
scenarios ricocheting around the media and pop culture, torture seems
to have gained an eerie emotional traction. Polls taken over the last
three years have confirmed this. With a complex reality reduced to a
few terrifyingly simple, fantasy-ridden scenarios, torture in defense
of the “homeland” has gained surprisingly wide acceptance, while the
torture debate has been reframed — to the administration’s great
advantage — as a choice between public safety and the lives of
millions or private morality and bleeding-heart qualms over a few slaps
up the side of the head. In this way, old-fashioned morality has been
made to seem little short of immoral.
Through the invisible tendrils that tie a state to its society, the
media has often reflected aspects of administration policy on such
subjects. Television, in particular, has had a powerful effect in its
repeated portrayals of harsh, even abusive interrogations as effective
and morally justified acts –when, in fact, they are neither. After
years of watching television shows such as “NYPD Blue” and “24” with
plots that mimic the ticking-bomb scenario, millions of ordinary
Americans seem to believe that we have entered an era when abuse, or
even torture, is necessary to save lives.
Each week, for instance, up to 20 million Americans have watched the
fictional detectives of “NYPD Blue” use harsh methods to “tune up”
suspects in the “pokey,'” or interrogation room, risking their careers
to extract information that regularly saved lives and made the city
safer. Accepting the need to torture just one criminal in this week’s
episode, or just one terrorist with a ticking bomb in Fox Television’s
popular CIA drama “24,” opens ordinary Americans to consider whether
the torture of real terrorists is not only justifiable but imperative.
It seems likely that these televised scenarios have lent a hand in
creating a public climate tolerant of governmental torture.
Does Bush administration policy really reflect a fundamental shift
in moral choices by the American public? Have we really developed a
taste for torture?
As a people, we are now faced with a decision that will influence
the character of our nation and its reputation in the eyes of the
world. We can agree with the Bush administration’s decision to make
torture a permanent weapon in the American arsenal — or we can reject
this policy and join the international community by honoring our
commitments under the UN convention, as well as under U.S. law, and
banning torture unconditionally.
Alfred W. McCoy is the author of A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror (Metropolitan Books, The American Empire Project, 2006) and a professor of history at the University of Wisconsin-Madison.
Copyright 2006 Alfred W. McCoy