“We must not make a scarecrow of the law, setting it up to fear the birds of prey.” – Measure for Measure
In the immediate days following the September 11th attacks, the American government was in an understandable state of panic: the country had just been attacked in two separate cities, roughly 3,000 Americans were dead, and the American people were introduced to a new enemy, Al Qaeda. To make matters worse, six weeks after the initial attacks and just as tranquility was being restored to the nation’s cities, reports of a white powder substance appearing in Senator Tom Daschle’s mailbox surfaced. This followed news from Florida that a civilian died from contact with a curious white powder, which scientific analysis showed to be anthrax, a deadly poison. With the nation reeling from a terrorist attack and with the government itself being sent bacterial poison, tensions were high. Faced with a bio-terror situation and the suspicion that another major attack could happen soon, the President’s office began to take serious measures to make sure the country would be kept safe. Jane Mayer, in her book The Dark Side, writes,
Now Cheney saw the terrorist threat in such catastrophic terms that his end, saving America from possible extinction, justified virtually any means. As Wilkerson, [Colin] Powell’s former Chief of Staff…put it, “He had a single-minded objective in black and white, that American security was paramount to everything else. He thought that perfect security was achieveable. I can’t fault the man for wanting to keep America safe. But he was willing to corrupt the whole country to save it.”1
It was in this period of fear that the executive branch decided that it would use any and all means necessary to protect the country. Mayer continues:
Beginning almost immediately after September 11, 2001, Cheney saw to it that some of the sharpest and best-trained lawyers in the country, working in secret in the White House and the United States Department of Justice, came up with legal justifications for a vast expansion of the government’s power in waging the war on terror. As part of that process, for the first time in its history, the United States sanctioned government officials to physically and psychologically torment U.S. –held captives, making torture the official law of the land in all but name.2
In the years to come, President Bush and his Administration would be accused by those on the right and left of the political spectrum for not only allowing the torture of those captured by the country, but for using it as a military tactic. The accusations themselves remained just accusations, as little action was taken against the President while he occupied the country’s highest office, but with a newly elected Democratic President and many calling for a probe into the Administration's interrogation techniques, President Bush may find himself in the proverbial hot seat, which may or may not resemble the defendant’s chair in a Federal Court.
The government began the dialogue on torture just after 9/11. The New York Times details how torture went from discussion to policy in a 2007 piece:
The debate over how terrorist suspects should be held and questioned began shortly after the Sept. 11, 2001, attacks, when the Bush administration adopted secret detention and coercive interrogation, both practices the United States had previously denounced when used by other countries.3
Though the initial use of torture remained a mystery to most Americans and even well-versed political pundits, the policies the Bush Administration was seeking to implement were by no means subtle. The attempt to adopt such policies set off a flurry of activity within the justice department and began a number of heated internal battles. Even a number of conservative lawyers at the Justice Department spoke out against the Administration, but under the Attorney General Alberto Gonzales, the Justice Department was pulled back into line with the White House.4 Attorney General Gonzales was instrumental in the adoption of enhanced interrogation techniques by the Administration. The United States government had never ventured into such murky legal territory before and the Bush Administration used Gonzales (amongst others) as a helpful guide. In 2002, as a White House Counsel, he authored a memo exploring whether or not Article III of the Geneva Conventions applied to Al Qaeda or Taliban members.5 His reasoning, though by his own admission did not come to any concrete conclusions, left many in the Congress befuddled as to why a White House Counsel would venture to ask such questions. Gonzales came under fire several times during his tenure in the Bush Administration, notably during a Senate Judiciary Committee Hearing when being questioned by Senator Arlen Specter. Gonzales controversially suggested that the right to Habeas Corpus (a writ which guarantees a person relief from unlawful detention) is not guaranteed in the U.S. Constitution:
GONZALES: I will go back and look at it. The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it’s never been the case, and I’m not a Supreme —
SPECTER: Now, wait a minute. Wait a minute. The constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?6
Gonzales was just one cog in a machine that, following the aftermath of 9/11, sought to set a legal atmosphere that the protection of the country, as made possible by the expansion of executive power, superseded the rights of prisoners of war. John Yoo, an official in the Department of Justice’s Office of Legal Counsel, believed in the expanded power of the executive branch, which led to a close relationship with Vice-President Cheney’s office. Yoo himself has defended the Administration’s views on the power of the executive: “We are used to a peacetime system in which Congress enacts the laws, the president enforces them, and the courts interpret them. In wartime, the gravity shifts to the executive branch.”7 Yoo continued this line of thought in a 2006 article in the New York Times: “To his critics, Mr. Bush is a "King George" bent on an "imperial presidency". But the inescapable fact is that war shifts power to the branch most responsible for its waging: the executive.”8 Conservative writer Andrew Sullivan identifies this idea of “expanded power” for the Presidency as the birthplace from which torture as a policy is allowed to grow:
The most striking aspect of this new executive power – free from all legislative, judicial, or international checks – was the Bush Administration’s secret but undeniable endorsement of torture by American soldiers and C.I.A. personnel. The Bush Administration began the war with a specific decision not to abide by the Geneva Conventions if “military necessity” made them, in the view of the President, dangerous to national security. Given this new flexibility, the C.I.A. set up a network of secret prison sites for the interrogation of military detainees, and finessed torture techniques that clearly contravened U.S. law and the Geneva Conventions. The incidents of abuse were recorded everywhere, according to the government’s own reports: from Guantanamo Bay to Afghanistan, Baghdad, Basra, Ramadi, and Tikrit.9
With this expansion of executive power the use of torture became legal, according to the Executive branch, and soon became ubiquitous. Though this was kept secret from the general public and the torture debate was restricted to the talking heads and political pundits that live in and around Foggy Bottom, the debate entered the American living room after the horrors of detainee abuse were exposed for all to see.
In 2004 the public first began to learn of the abuse taking place at the Abu Ghraib prison in Iraq. Captured detainees from the Iraq War were abused by U.S. soldiers from the 372nd Military Police Company of the United States Army. Though there were several reports that detailed the instances of abuse, it was the photographic evidence that set off a fiery public reaction. With many explicit pictures of detainees being humiliated by standing naked, being abused by soldiers, or attacked by dogs, the American public remained silent in horror. President Bush quickly assured the public that the policies in Abu Ghraib were not a fair representation of what normal U.S. Army operations were at the time, but some on the right sought to defend the policies used in the prison, most notably conservative talk show host Rush Limbaugh, who compared the abuse to a “frat house initiation:”
This is no different than what happens at the Skull and Bones initiation, and we're going to ruin people's lives over it, and we're going to hamper our military effort, and then we are going to really hammer them because they had a good time. You know, these people are being fired at every day. I'm talking about people having a good time, these people, you ever heard of emotional release? You [ever] heard of need to blow some steam off?10
It should be noted that at the time, Limbaugh probably could not grasp the brevity at hand nor the harshness of techniques being used, nor did he realize that one of the prisoners, Manadel al-Jamadi, was beaten to death by U.S. soldiers.11 Some of the abuse the prisoners suffered included: urination on the detainees, jumping on a detainee’s leg, pouring phosphoric acid on detainees, sodomization of detainees with a baton, and tying ropes to a detainee’s penis and dragging them across the floor.12 Other abuses included stress positions, hypothermia, being beaten against a wall (later known as “walling), and forced nudity (used as a psychological tactic; Arab men consider nudity in front of others culturally humiliating). The Administration would write off the use of these techniques as the actions of a few “bad apples” in the U.S. Army, but further investigation found that many of the techniques used at Abu Ghraib were authorized by the Bush Administration.
In an 18-month long study, Senators Carl Levin and John McCain of the Senate Armed Services Committee investigated the treatment and reported abuse of detainees in U.S. custody. In one of its opening paragraphs, the report directly calls out the Bush Administration: “The abuse of detainees in U.S. custody cannot simply be attributed to the actions of “a few bad apples” acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.”13 Though the report was released towards the end of Bush’s second term in office, while John McCain was campaigning for the Presidency, it did little to get the ball rolling on having an open forum on the Administration’s torture techniques (perhaps because of the upcoming election). That ball would begin its roll early in Barack Obama’s presidency with the release of the OLC Torture memos, which is the first release of such memos since the end of Bush’s tenure. The memos explain the (albeit dubious) legal justification for the use of torture techniques, many of which were used in Abu Ghraib. The term “waterboarding” is used in the memos, a technique that slowly drowns a detainee in the hopes that said detainee will release information. The technique itself has been described as torture by several human rights organizations14 but some American politicians have refused to dub the technique torture. Though there has been much debate surrounding the topic, waterboarding itself is only one of several methods that were authorized by the Bush Administration. With President Obama’s release of the OLC torture memos, the debate has shifted off of whether or not waterboarding is torture, and onto what will finally be done about the torture enacted by the Bush Administration.
In an article in the New Yorker, Philip Gourevitch reflected on the Bush Administration's authorization of torture in light of the newly released OLC memos and Abu Ghraib:
The natural first reaction on seeing photographs of American soldiers torturing Iraqi prisoners in Saddam Hussein’s old dungeons was to ask: “Why are we doing such things to them?" With time, however, Americans have come increasingly to understand that it is equally appropriate to ask: "Why are we doing such things to ourselves?" Why dismantle the laws that have made our country worth fighting and dying for against states that torture? Vice-President Dick Cheney has said that we must torture because it is effective. That is, at best, a false argument: a crime is not absolved just because it works (after all, terrorism can be effective.) President Obama, in his press conference last week, cut through the noise to the essence of the issue. Torture, he said, “corrodes the character of the country.” America is now embroiled in a debate about how, or whether to hold the true masterminds – the former President, the former Vice-President, the former Defense Secretary, and their top lawyers – to account for their criminal policies. Here, we are on uncharted ground.15
With the release of the OLC memos, the debate over whether or not the United States government sanctioned torture is almost at a close. Many legal scholars and political pundits, on both the right and left, agree that the Bush Administration used torture to extract information. As Gourevitch wrote, Dick Cheney believes that the use of torture (though he does not use the word) was necessary to save American lives. But the findings of the McCain-Levin report contradict his claims:
Al Qaeda and Taliban terrorists are taught to expect Americans to abuse them. They are recruited based on false propaganda that says the United States is out to destroy Islam. Treating detainees harshly only reinforces that distorted view, increases resistance to cooperation, and creates new enemies. In fact, the April 2006 National Intelligence Estimate “Trends in Global Terrorism: Implications for the United States” cited “pervasive anti U.S. sentiment among most Muslims” as an underlying factor fueling the spread of the global jihadist movement. Former Navy General Counsel Alberto Mora testified to the Senate Armed Services Committee in June 2008 that “there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantanamo.”16
Contrary to Cheney’s claims, the United States is made less safe by using torture. So after all of the justifications for torture have been ruled out, and it can finally be looked at for what it is: a violation of international and U.S. law, what else can be done? The only logical conclusion is that those who administered the use of torture should be held to the full extent of the law. In his famous play Measure for Measure, Shakespeare wrote, “We must not make a scarecrow of the law, setting it up to fear the birds of prey.”17 Many would argue that when one breaks the law, he should be held to the consequences of doing so. The President of the United States should not be exempt from such consequences. Under the Bush presidency America went from being a constitutional republic, under the law, to an imperium of one man, who only answered to the people when they chose to re-elect him. The actions taken by his Administration and their view of Presidential power allowed him to break any law or violate any treaty if he believes it is necessary for a war that has no end in site and whose definition is so ambiguous, "end" may be the wrong term to use. If the country wants to make sure that the laws of the land remain intact and do not lose their potency, the United States has no choice but to hold those who broke the law accountable for their actions.
A version of this post will appear in the May 12th, 2009 Edition of the New York Legal Review.
