LYNNDIE ENGLAND, READ THIS
Alexander Cockburn persists in lying about me. In his October 17 “Beat the Devil” column, “From Lynndie England to Shaquille O’Neal,” Cockburn falsely claims that I have “clamored for torture.” Cockburn knows full well that I “clamored” for just the opposite. As I wrote in my essay “Tortured Reasoning,” which appeared in Sanford Levinson’s book on torture, “I am against torture as a normative matter, and I would like to see its use minimized. I pose the issue as follows. If torture is, in fact, being used and/or would, in fact, be used in an actual ticking bomb terrorist case, would it be normatively better or worse to have such torture regulated by some kind of warrant, with accountability, recordkeeping, standards and limitations?”
What I called for would have prevented precisely the sorts of claims that England made in her defense. Referring directly to Abu Ghraib, I conclude that “if a warrant requirement of some kind had been in place, the low-ranking officers on the ground could not plausibly claim that they had been subtly (or secretly) authorized to do what they did, since the only acceptable form of authorization would be in writing. Nor could the high-ranking officials hide behind plausible deniability, since they would have been required to give the explicit authorization.”
This is surely different from clamoring for torture. Cockburn’s false personal potshots cheapen The Nation‘s discourse and diminish its credibility.
As regards Dershowitz’s clamors for torture, lying is not necessary. The record suffices. Amid the post-9/11 debate about which bits of the Bill of Rights and the Geneva Conventions to heave overboard, there issued from the Felix Frankfurter Professor at Harvard Law School the widely publicized message that it’s OK to use torture, so long as the torturers shoving a “sterilized needle” (the prof’s preferred instrument) under their victims’ fingernails have some sort of warrant in their pockets. So, at that fraught moment Dershowitz called for regulated torture, which, contrary to his claims here, sought to make the outrageous normative, subject to rules, procedures, record-keeping and so forth.
Thus poisoning the well with this decorous prattle, Dershowitz was worse, in my view, than those who bellowed coarsely, “They’re barbarians, we have to be too!” That latter idea bothers ordinary people, especially when they imagine their own sons and daughters thus launched into executive barbarism.
In fact, there was a “warrant requirement” of sorts at Abu Ghraib. It’s just that no one could remember what it was. The soldiers who’d been in Guantánamo and Afghanistan could not remember that though they did not have to abide by Geneva Conventions, according to Bush’s February 7, 2002, directive and Gonzales’s legal opinion re prisoners taken in the “global war on terror,” they did have to apply Geneva to Iraqi prisoners. The existence of widespread “confusion” is stated plainly in the Fay Report. Beyond that, Donald Rumsfeld drew up a list of approved interrogation procedures for Gitmo on December 2, 2002. Six weeks later he rescinded those orders, still allowing some of the procedures, which would be considered cruel and degrading treatment–torture–if you were on the receiving end. According to the Army’s own investigations, soldiers aware of the first list (or warrant) were not always aware that it was later rescinded.