The Torture Administration
Soon after the terrorist attacks of September 11, 2001, the Justice Department--then under Attorney General John Ashcroft--began producing memorandums that opened the way to torture and mistreatment of prisoners. The memos gave an extremely narrow definition of torture: producing pain equivalent to that from "serious physical injury, such as organ failure, impairment of bodily function, or even death." They argued that the President, in his constitutional role as Commander in Chief, had the power to order the use of torture no matter what treaties or US statutes said. And they said the Geneva Conventions did not apply to the prisoners at Guantánamo.
It is important to note that these legal opinions came almost entirely from political appointees, not longtime Justice Department lawyers. Similarly, Defense Secretary Rumsfeld and his aides overrode objections from most military lawyers and other officers. Secretary of State Colin Powell, former chair of the Joint Chiefs of Staff, was a notable opponent of the memos.
The very purpose of these radical legal opinions was to override objections to torture from those in the services and the law who wanted to carry on the American tradition of humane treatment of prisoners. And there was a further, crucial purpose: to immunize those who actually carried out torture or inhumane treatment from criminal prosecution. If charged, they could maintain that their actions were authorized from above.
One more legal interpretation by the Bush lawyers, especially clever, should be mentioned: It concluded that the Convention Against Torture (and its enforcement by criminal statute) did not apply to actions taken against non-Americans outside the United States--for example, the torture of Jamadi in Abu Ghraib under CIA auspices. A soldier who tortured would still be subject to the Uniform Code of Military Justice. But under this legal theory no criminal law would apply to a CIA torturer. It was to preserve this impunity that Vice President Cheney fought to exempt the CIA from the ban on cruel, inhuman or degrading treatment proposed by Senator John McCain and passed, 90 to 9, by the Senate.
When George W. Bush was asked about torture in early November, he said: "Any activity we conduct is within the law. We do not torture." How could he say that after the hundreds of convincing reports of torture and maltreatment? One possible answer is that he has not allowed himself to know the truth. Another is that his lawyers have so gutted the law governing these matters that not much, in their view, is unlawful.
But there is another explanation for Bush's words: confidence that words can overcome reality. Just as a large part of the American people could be led to believe in nonexistent links between Saddam Hussein and the 9/11 bombers, so it could be persuaded--in the teeth of the evidence--that "we do not torture." And there is reason for that confidence.
Congress has shown no great zeal for tracking down responsibility for the abuse of detainees in Iraq, Afghanistan and Guantánamo Bay. It has reacted with the equivalent of a yawn to the disclosure of "extraordinary rendition," the shipment of prisoners to Egypt, Syria and other places where torture is common practice. The Senate, moved by the power of John McCain's example, voted for his ban on prisoner abuse. But then it approved a devastating prohibition on the use of habeas corpus by Guantánamo prisoners to test the lawfulness of their imprisonment.