Tom Engelhardt: President "Above-the-Law" BushRoundup: Historians' Take
Tom Engelhardt, on his blog (June 16, 2004):
Quotes of the week:
"As early as Sept. 16, 2001, Vice President Dick Cheney, in his first interview after the 9/11 attacks, said, ‘It's going to be vital for us to use any means at our disposal, basically, to achieve our objective'… In February 2002, Defense Secretary Donald Rumsfeld said,"The reality is, the set of facts that exist today with al-Qaeda and the Taliban were not necessarily the set of facts that were considered when the Geneva Convention was fashioned." (Amanda Ripley, Redefining Torture, Time Magazine)
"National Security Adviser Condoleezza Rice yesterday said President Bush 'has given broad authority to a variety of people to do what they have to do to protect this country… It's a new kind of war," she told Fox News."We're fighting on a lot of different fronts.' Rice's comments came after Amnesty International questioned Bush on the Nov.3 attack using a Hellfire missile, which killed senior al Qaeda thug Qaed Senyan al-Harthi, a key plotter in the deadly October 2000 bombing of the USS Cole. Al-Harthi and five others were killed by a missile fired by an unmanned Predator drone operated by the CIA. Amnesty International asked the United States to issue a statement that it does not support 'extra-judicial executions.'" (Aly Sujo,"We're Ready to Unleash More Hellfire," the New York Post, November 11, 2002)
"France, Russia, Germany, and Canada, which did not support the war but have since labored to repair their relations with the United States, were particularly vocal in their criticism of the restrictions [on Iraqi reconstruction contracts], outlined Tuesday in a Pentagon memo signed by Deputy Defense Secretary Paul Wolfowitz. In Berlin, Chancellor Gerhard Schroeder of Germany, standing alongside UN Secretary General Kofi Annan, suggested the memo could be contrary to the spirit of international law, a remark that Bush later scoffed at while speaking with reporters. ‘International law?' Bush said. ‘I'd better call my lawyers.'" (Stephen J. Glain, Bush Defends Plan on Iraq Contracts, the Boston Globe, December 12, 2003)
"The Bush administration pledged yesterday for the first time that the United States will not torture terrorism suspects or treat them cruelly in an attempt to extract information, a move that comes as the deaths of two Afghan prisoners in U.S. custody are being investigated as homicides… Bush, in honoring U.N. Torture Victims Recognition Day yesterday, said, ‘The United States is committed to the worldwide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment.'" (Peter Slevin, U.S. Pledges to Avoid Torture, the Washington Post, June 27, 2003)
"Leading this fight by example"
On Sunday, in part one of this dispatch on our global torture system, George Orwell… meet Franz Kafka, I wrote:"There will be so much more to learn. Already, when it comes to Abu Ghraib, Iraq, and Afghanistan, the Pentagon keeps heaping investigations on top of one another, each subsequent one led by a figure with a higher rank and so more capable of investigating responsibility at higher levels, and I think it can be said with certainty that this will only get worse -- worse probably than anything we now imagine." As it happens, this administration is hemorrhaging documents. It took exactly twenty-four hours for my modest prediction to come true.
In the space of a day, we learned much more; it got significantly worse; and the Pentagon announced yet another investigation, this time of prisoner conditions at Guantanamo, where, it is rumored, much treatment and mistreatment was systematically and bureaucratically videoed, filed, and stored. Though this may seem but the next case of the criminal investigating the crime, there are numerous military men and intelligence officials angry enough, often disgusted enough, at what this administration has let loose to make even insider investigations dangerous for the administration these days.
Were the subject at hand anything but the creation of an American torture regime (and implicitly"high crimes and misdemeanors"), some of what's happened would be hilarious. For instance, Attorney General Ashcroft has stiff-armed Congress, refusing to declassify the memoranda that the administration's many legal minds produced justifying torture and the most literal sort of imperial presidency (to be presided over by a torturer-in-chief); and yet, in the last day or so, these memos have sprouted like so many wretched weeds at news sites all over the Internet. (To read several of these lengthy, tedious, pretzeled documents posted in their grim near-entireties, go to the Washington Post, Newsweek, or Global Beat and click away.)
What they make clear is that the Bush administration had torture on the brain. Its officials were fixated on the subject, which went so naturally with the President's new-style, no-holds-barred, we're-the-only-law-in-town, dead-or-alive, assassination-and-kidnapping"war on terrorism." It's no longer a matter of whether knowledge of the acts committed at Abu Ghraib prison reach the President and his advisors, but of what can only be termed a complete obsession with the subject of torture among those figures. The highest officials at the Pentagon, in the military, in the CIA, and at the Justice Department clearly couldn't stop thinking about torture -- as over the course of more than a year they requested legal memorandum after memorandum, all chewing over how to define torture so that various inhumane acts involving the infliction of mental and physical pain would not be considered such; over how far to go when too far was never quite far enough. In this sense, whether they were aware of the individual acts of horror at Abu Ghraib and elsewhere (and a number of them evidently were), they were certainly intensely aware that acts of this nature and worse were a"necessity" of their war (even if photos of them were not).
Just to sum up the last day or so of news on the subject:
We now know from an Andrea Elliott report in the New York Times (Unit Says It Gave Earlier Warning of Abuse in Iraq) that at least some of those wild and wacky guys in military intelligence at Abu Ghraib were actually reporting the abuses at that prison and other"detention facilities" in the country to their superiors. This was well before the January date at which top military officials claim to have first learned about the abuses from the now notorious photos turned in by a soldier/whistleblower.
Oh, and among the abuses the intelligence men reported were:"electric shocks at other holding facilities before arriving in Abu Ghraib,""burns on the body" (recorded in photos in a prisoner's file), and the beating to bloody pulps of five generals of Saddam's defeated military, who do, of course, fall uncontrovertibly into the category of prisoners of war and so under the Geneva Conventions.
(By the way, a phenomenon to note: Wherever this administration or its minions conceived of or committed horrors, there was usually someone disturbed enough to record the fact and in some way protest it. To take but one example, as Dana Priest and Bradley Graham reported recently in the Washington Post,"[O]n Dec. 2, 2002, Defense Secretary Donald H. Rumsfeld approved a set of more aggressive interrogation methods to be used on Mohamed al Qahtani, a Saudi detainee [at Guantanamo] who some officials believed may have been the planned 20th hijacker in the Sept. 11, 2001, attacks. A naval psychologist at the base protested the use of some techniques meant to humiliate prisoners and sought help from the Navy's top civilian lawyer, Alberto J. Mora, to stop them, according to three defense officials knowledgeable about the debate."
We now know as well, thanks to a piece (The Torturers) by Justin Raimondo, the fierce libertarian columnist for Antiwar.com, that New Yorker magazine journalist Seymour Hersh, who first pushed the Abu Ghraib story into the light of day, is saying more than he's yet written. Here is a summary Raimondo got of part of a recent Hersh talk at the University of Chicago:
"He said that after he broke Abu Ghraib people are coming out of the woodwork to tell him this stuff. He said he had seen all the Abu Ghraib pictures. He said, 'You haven't begun to see evil...' then trailed off. He said, 'horrible things done to children of women prisoners, as the cameras run.' He looked frightened…."
So we still have on-camera acts of horror against children to look forward to. (Is there no irony in the fact that the Bush administration has managed, through its war on terrorism, to feed every perverse sexual fantasy it would otherwise decry? But irony is inconceivable when you're dealing with planners incapable of recognizing the category of"unintended consequences.")
Oh, and thanks to Time magazine, we now know that other horrors are still to be described elsewhere in the imperium:"A Republican Senator says charges of manslaughter and rape may soon be brought against U.S. personnel involved in handling detainees in Iraq and Afghanistan."
Thanks to Newsweek's Michael Hirsh, John Barry, and Daniel Klaidman (A Tortured Debate), we now know something of what went on in the White House itself after"President Bush had declared war on Al Qaeda, and in a series of covert directives, he had authorized the CIA to set up secret interrogation facilities and to use new, harsher methods… The handling of [captured al-Qaeda figure] al-Libi touched off a long-running battle over interrogation tactics inside the administration. It is a struggle that continued right up until the Abu Ghraib scandal broke in April -- and it extended into the White House… [Justice Department lawyer John] Yoo's August 2002 memo [now posted] was prompted by CIA questions about what to do with a top Qaeda captive, Abu Zubaydah, who had turned uncooperative. And it was drafted after White House meetings convened by George W. Bush's chief counsel, Alberto Gonzales, along with Defense Department general counsel William Haynes and David Addington, Vice President Dick Cheney's counsel, who discussed specific interrogation techniques, says a source familiar with the discussions. Among the methods they found acceptable: ‘water-boarding,' or dripping water into a wet cloth over a suspect's face, which can feel like drowning; and threatening to bring in more-brutal interrogators from other nations."
Imagine. Water-boarding in the White House.
On Sunday, when I wrote the first part of this dispatch, we had a vague report from the Washington Post that, according to one military intelligence officer at Abu Ghraib, the White House had been requesting information from the prison. (This was when the administration was in a sweat about who exactly the Iraqi insurgents, so unexpectedly resisting, really were.) Today, thanks again to Justin Raimondo, we have this fascinating passage from an on-line diary, a blog -- the Internet is a kind of bizarre wonder, isn't it? -- by Joe Ryan, evidently an employee at Abu Ghraib of a private" contractor," CACI International. On March 30, Ryan wrote:
"The other big news at work was a message sent to us from Ms. Rice, the National Security Advisor, thanking us for the intelligence that has come out of our shop and noting that our work is being briefed to President Bush on a regular basis. Now if we could declassify some of it in order to shut up these people who say we have no business over here, that would be the best day!"
Robert Fisk, reporter for the British Independent, mentioned Ryan in late May in the following curious way:"One of Staphanovic's co-workers, Joe Ryan – [a CACI employee] who was not named in the Taguba report -- now says he underwent an ‘Israeli interrogation course' before going to Iraq."
And from Julian Coman of the British Telegraph we have word that worse is yet to come, possibly sometime this week:
"New evidence that the physical abuse of detainees in Iraq and at Guantanamo Bay was authorised at the top of the Bush administration will emerge in Washington this week, adding further to pressure on the White House. The Telegraph understands that four confidential Red Cross documents implicating senior Pentagon civilians in the Abu Ghraib scandal have been passed to an American television network, which is preparing to make them public shortly."
By the way, when the notoriously close-mouthed Red Cross begins to let its private documents dribble out, you know that we're in dire and desperate straits. Coman quotes Scott Horton, former chairman of the New York Bar Association,"who has been advising Pentagon lawyers unhappy at the administration's approach," as saying that"the biggest bombs in this case have yet to be dropped."
Every time there is a further revelation, Rumsfeld piles on another insider investigation. But note -- though no one has noted it – that while the White House, the Pentagon, and the CIA asked for all sorts of in-house legal opinions on various possible acts of torture (in the CIA case, clearly to cover future butts and implicate larger groups, should something slip out someday), no one in our government ever thought to consult, say, Human Rights Watch, Amnesty International, or any other group that might be considered both concerned with such matters and not completely self-interested. While this may seem obvious indeed -- they were, after all, planning to commit acts they knew would horrify the international human rights community, who were seen as a bunch of namby-pamby global sissies -- nonetheless, it's worth stating that it should never be up to potential torturers (or lawyers in their pay) to decide what is and is not torture.
Reagan and Bush: An unnoticed similarity
In his typical manly fashion, at a news conference last week the President bravely confronted the issue of torture head on. Here are the two relevant passages:
Q Mr. President, the Justice Department issued an advisory opinion last year declaring that as Commander-in-Chief you have the authority to order any kind of interrogation techniques that are necessary to pursue the war on terror. Were you aware of this advisory opinion? Do you agree with it? And did you issue any such authorization at any time?
THE PRESIDENT: No, the authorization I issued, David, was that anything we did would conform to U.S. law and would be consistent with international treaty obligations. That's the message I gave our people.
Q Have you seen the memos?
THE PRESIDENT: I can't remember if I've seen the memo or not, but I gave those instructions…
Q Mr. President, I wanted to return to the question of torture. What we've learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law. So when you say that you want the U.S. to adhere to international and U.S. laws, that's not very comforting. This is a moral question: Is torture ever justified?
THE PRESIDENT: Look, I'm going to say it one more time. If I -- maybe -- maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you. We're a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort for you. And those were the instructions out of -- from me to the government.
I hope you're comforted."We adhere to laws. We have laws on the books. You might look at those laws…" Actually, as we now know, Mr. Bush's lawyers did exactly that, and assumedly when the President says we're adhering to those laws, he means to the interpretations of those laws offered by his own people -- about which Harold Hongju Koh, dean of Yale University's law school and a former assistant secretary of state, was recently quoted in the British Financial Times as saying,"They are blatantly wrong, It's just erroneous legal analysis. The notion that the president has the constitutional power to permit torture is like saying he has the constitutional power to commit genocide." Well, exactly, and that should comfort you.
You would think, given his performance on U.N. Torture Victims Recognition Day (quoted above), that the President might have taken to the podium and denounced torture done in the name of his administration and anyone connected in any way with it or who advocated anything like it. He might have insisted that they would be prosecuted zealously and to the full extent of the law, but he preferred, for obvious reasons, to follow the path he had already hacked through the underbrush of the Valerie Plame case.
Oh, and on that unnoticed similarity to Ronald Reagan, don't overlook the President's wonderful,"I can't remember if I've seen the memo or not." How about not just that memo but any of the memos? How about not just seen, but heard about, or heard summaries of advice from? Hmm. Can't remember if I even asked those questions. In any case, what I think we can already see developing is the famed Reagan Iran-Contra defense: I-can't-remember, I-don't-recall. It worked for his hero, why not for him?
In the meanwhile, for those who think no domestic"unintended consequences" will flow from the pseudo-legalisms developed by the White House's legal wizards and applied in Iraq and elsewhere with such mayhem -- think again. After all, as Los Angeles Times columnist Robert Scheer points out in the case of former Assistant Atty. Gen. Jay S. Bybee (Tout Torture, Get Promoted), the President has been intent on appointing the same legal brains to judgeships. Let this go into a second term and the creators of an American legal theory of torture will be judging us all.
It's worth recalling how much, in the course of Torturegate, we have chosen to forget. For instance, we treat the Abu Ghraib photos as if they were the first shocking photos from our offshore Bermuda Triangle of injustice, but check out a different set of photos, slipped to progressive websites way back in November 2002. These were remarkable photos of exactly how we transported Taliban and al-Qaeda captives whom we had just declared non-POWs (for reasons that now put every one of the tens of thousands of" contract workers" in Iraq at desperate risk) to Guantanamo. At the time, they caused no ripples in the American mainstream media, and yet they were declared genuine by the Pentagon. To the best of my knowledge, the identity of the photographer is still unknown, but he or she represented one of the earliest insider-whistleblowers in this ongoing disaster. Today, looking back, these photos seem like a signal from hell, from the very bowels of a future Abu Ghraib.
Similar photos of the prisoners on reaching Guantanamo caused shock and anger around the world, but again barely a ripple here. Amnesty International and Human Rights Watch both protested, but were generally ignored. Here are a couple of passages from a January 23, 2002 Houston Chronicle piece ("Rumsfeld explicitly denies critics' torture accusations") by Michael Hedges:
"Amnesty International, the human rights organization, went further Tuesday, calling the shackling of prisoners and the use of goggles and ear muffs torture. 'The imposition of sensory deprivation bears the hallmarks of known methods to break prisoners prior to interrogation,' said Director of Policy Claudio Cordone. 'While there are legitimate security considerations . . . we feel the measures adopted in their regard . . . go well beyond what is necessary from a security point of view.'"
This was also the moment when Donald Rumsfeld first insisted:
"The United States is treating them -- all detainees -- consistently with the principles of the Geneva Convention. They are being treated humanely… Guantanamo Bay's climate is different than Afghanistan. To be in an 8-by-8 cell in beautiful, sunny Guantanamo Bay, Cuba, is not inhumane treatment."
Here's a moderate British view of these proceedings, offering a sense of what could indeed be seen back then, were you not locked in the American media bubble. On January 17, 2002, Hugo Young of the Guardian wrote in part (We will not tolerate the abuse of war prisoners: Guantanamo could be where America and Europe part company):
"For Washington, Camp X-Ray is plainly an extension of the war. The captives are not allowed to be called prisoners of war, but are held under rules of war defined by the side that's continuing to fight and maybe win it. They're kept off US territory, and outside the reach of the Geneva Conventions, so they can be treated the way American generals and politicians rather than American lawyers want to treat them: which is to say, without fundamental rights or international protection… When the US defence secretary, Donald Rumsfeld, said he had"not the slightest interest" in the camp's conditions, he signalled simultaneously contempt for the prisoners and bilious disdain for any critics who might dare to speak…
"Mr Roth [of Human Rights Watch] likened the military tribunals President Bush has announced to those of a tin- pot tyrant wanting to get rid of his political enemies - which in another life Washington would be the first to condemn. But HRW is not the mainstream. The mainstream all flows in one acquiescent direction. Searching the New York Times and Washington Post websites, I can find neither an editorial nor a column that criticised the regime Rumsfeld approves for [Guantanamo's] Camp X-Ray. The rights and wrongs are barely discussed. Here's a considerable issue of principle, staked out by a president in seeming defiance of international conventions, which the big US papers would normally be full of. Instead, it succumbs to the fog of loyalty that has choked the oxygen out of controversy in the citadels of the US media ever since September 11."
Much more could obviously be written on the subject, but consider this a modest reminder of all the obvious clues and cues that were simply avoided, denied, ignored in this country -- largely missing-in-action (if you weren't on the Internet or reading a few, relatively isolated American columnists like James Carroll of the Boston Globe or Robert Scheer of the Los Angeles Times) until the Abu Ghraib moment which broke like a sudden storm. Just remember that those who claim the photos did it -- which they did -- are also missing part of the picture.
Nazi doctors… Neocon lawyers?
In the midst of the recent round of revelations that began with Abu Ghraib, I've noted a curious phenomenon, one that (as with so much else in the past year) brought the Vietnam era to mind: The"Nazi analogy" is making its slow way into the critical mainstream. Of course, since at least 9/11 this analogy has been alive and well at the wilder fringes of the Internet. (There, people have long been asking: Are we already in the Nazi era, or are we at the desperate end of the Weimar Republic? Were the attacks of 9/11 another Reichstag burning?)
Now, variations on this Nazi analogy are suddenly thriving -- and not in obscure political websites either. (I've always avoided the analogy myself because it's such a minefield and tends to send everyone flying in strange and unfruitful directions.) To take just a couple of recent examples, columnist William Pfaff wrote in the International Herald Tribune (When laws get in the way of torture):
"The Bush administration's civilians had been complaining about how law, international treaties and conventions, and military norms and inhibitions, were interfering with their determination to seize and hold anyone they pleased in secret prisons, declare them without legal rights even when they were American citizens, torture them whenever they wanted and keep them forever, if they liked (a totalitarian ambition, obviously). They wanted these obstructions removed. Their complaints sounded like the complaints of Adolf Eichmann, when he described during his trial in Israel the irksome bureaucratic and legal obstacles he ran into in wartime Germany in carrying out his genocidal responsibilities."
In the Chicago Sun Times, columnist Andrew Greeley embedded the analogy in his title: Is US like Germany of the '30s?; while Eric Margolis, the conservative columnist for the Toronto Sun, in a column praising the Reagan Presidency (U.S. Honor Ambushed) cited both of the great totalitarian systems of the previous century:
"The justice department, which is supposed to uphold the law, actually sent a memo worthy of the Nazi legal system explaining why the Geneva Conventions and U.S. laws did not apply to 'terrorism suspects.' Any American may apparently be arrested as a 'terrorism suspect,' and tortured, according to justice lawyers. Replace 'terrorism suspect' with 'enemy of the people' and you have Stalin's Soviet tyranny… When legal and moral constraints are removed, or undermined, states run rampant over their people's rights. Both Nazi Germany and Stalin's Soviet Union embarked on their monstrous crimes after co-operative lawyers set the legal stage for their actions."
And they weren't alone. The lawyers for this administration seem, by the evidence of their memos, to have spent time considering the"superior orders" or Nuremberg defense and its uses, concluding in their March 6 memorandum, as Jess Bravin of the Wall Street Journal put it (Pentagon Report Set Framework For Use of Torture):
"For members of the military, the report suggested that officials could escape torture convictions by arguing that they were following superior orders, since such orders 'may be inferred to be lawful' and are 'disobeyed at the peril of the subordinate.' Examining the 'superior orders' defense at the Nuremberg trials of Nazi war criminals, the Vietnam War prosecution of U.S. Army Lt. William Calley for the My Lai massacre and the current U.N. war-crimes tribunals for Rwanda and the former Yugoslavia, the report concluded it could be asserted by 'U.S. armed forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.'"
When, in the inner counsels of our government, lawyers find themselves pouring through the defenses of war criminals to provide cover for"exceptional interrogations," you might think a signal flag or two would go up in the heart of the administration (and not just among sidelined JAG military lawyers). It tells us much that they could include any version of the Nuremberg defense in their advisories without blinking, and it tells us a good deal more, not so much about historical analogies, as about the extremity of our moment that people like Greeley, Pfaff, and Margolis, not to speak of the government's best lawyers now find Nazism and totalitarianism creeping into their brains.
A similar extreme analogization (to coin a terrible word) happened in the Vietnam era. In those years, each side of an inter-American struggle over the course of that war proclaimed the other"brownshirts" once tempers started to rise. Endless confusions ensued, wonderfully caught by the journalist Elinor Langer at the 1968 Democratic Convention in Chicago. When the antiwar demonstrators outside the convention hall looked at the Chicago police, who were mercilessly beating them, many, in the atmosphere of the moment, saw Nazis and chanted not only"the whole world's watching," but"Sieg Heil! Sieg Heil!" Others, however, saw only future comrades, oppressed working-class whites, and shouted out,"Join us, join us!" As Langer wrote afterwards,"In the middle of Chicago, at the nominating convention of one of America's two major parties, half of us thought we were in Germany and half of us thought we were in Russia." (The police charged the demonstrators, screaming,"Kill the Commies!")
In the post-9/11 moment, it was"liberal" war hawks and administration supporters who were probably the first to leap for the Nazi analogy, applying it and various other aspects of totalitarianism to al-Qaeda and fanatic Islamist movements around the world. Now, it seems, like so much else, the analogy is heading home, another of unintended consequence to be pinned on itself like that tail on the donkey.
And, I have to admit, just considering the Bush lawyers and their chilling documents, it's hard not to think of those doctors who, as Robert Jay Lifton wrote so powerfully in The Nazi Doctors: Medical Killing and the Psychology of Genocide, turned the pledge to heal into a commitment to murder in service to Hitler's regime. The lawyerly equivalent would be, I suppose, the turning of a commitment to uphold justice into the protection from prosecution of those who administer pain for our regime. While this doesn't reach the depths of those Nazi doctors (and lawyers), it certainly is shameful; or, as Washington Post columnist David Ignatius put it today (Small Comfort) while describing the August 2002 memorandum,"in its dry, lawyerly way, [it] is as shocking as the Abu Ghraib photographs."