Orders to Torture

The Abu Ghraib prison scandal now implicates the highest levels of the Bush Administration in violating federal law and in war crimes. In barely two weeks, the story has shifted from horrific photographs of prisoners to intimations of homicide; from prison mismanagement blamed on the fog of war to the cool clarity of deliberate White House designs to protect torturers from prosecution; from "the six morons who lost the war" to the Defense Secretary, the White House Counsel and the President himself.

The sheer range of brutality and illegal acts defies brief summary. And more details emerge daily: On the Nation website, Jason Vest reveals possible perjury by Under Secretary of Defense for Intelligence Stephen Cambone, while according to Seymour Hersh in The New Yorker, Defense Secretary Rumsfeld personally approved a secret "special-access program" for incarceration, humiliation and violent interrogation, expanding the program from a narrow group of presumed Al Qaeda prisoners in Afghanistan to the insurgency in Iraq.

One revelation in particular should be sounding a constitutional emergency siren: The President has known for more than two years that his Administration has been pursuing policies that could qualify as war crimes under federal and international law. In a January 25, 2002, memo, White House Counsel Alberto Gonzales advised the President of "the threat of domestic criminal prosecution under the War Crimes Act," a federal statute. He advised Bush to invent a legal technicality--declaring detainees in the "war on terror" to be outside the Geneva Conventions--which, he said, "substantially reduces" the chance of prosecution. Gonzales went further, telling the President that the war on terrorism "renders obsolete Geneva's strict limitations on questioning of enemy prisoners"; he pooh-poohed concerns that abandoning the Geneva standards might endanger US troops.

Let's be clear about what this means: Gonzales was urging--and the President adopted as policy--an end run around federal laws. The War Crimes Act, passed by Congress in 1996, allows criminal prosecution of Americans for actions that violate the rights granted prisoners and civilians by the Geneva Conventions and for "outrages upon personal dignity." It is backed by the full range of federal penalties, up to and including the death penalty. And all treaties, including the Geneva Conventions and the Torture Convention, are likewise the binding law of the land.

From the Gonzales memo, it is clear that the Administration always envisioned taking coercive interrogation beyond Afghanistan. Gonzales repeatedly refers to the broader "war on terrorism"--the phrase Bush uses to cover the war on Iraq. Gonzales specifically advises the President to hold open "options for future conflicts." Thus the scandal is not what George W. Bush referred to as the "failures of character" of a few soldiers at Abu Ghraib. The scandal is that the White House wanted to torture prisoners and get away with it.

The damage wrought by this sweeping two-year conspiracy to perpetrate and cover up illegal brutality is impossible to calculate. Certainly, it undoes decades of military leaders' efforts to prevent future My Lais. The intelligence gathering itself was compromised: Prisoners treated like those in Abu Ghraib will confess to anything. The occupation of Iraq has turned out to be a morally corrosive imperial adventure.

The evidence emerging from Abu Ghraib reveals high crimes and misdemeanors in the precise sense of the Constitution's impeachment clause. In an election year and with the GOP controlling Congress, that course is foreclosed, for now. But two years of willful subversion of law and human rights, which began in the Oval Office and led to Abu Ghraib, demands far more vigorous investigation than the queasy Congressional inquiries thus far conducted, as well as criminal prosecutions independent of this Attorney General. Such subversion demands, too, that Americans, bewildered and demoralized by the scenes from Abu Ghraib and the failed Iraq war, recover their sense of outrage--and exercise that outrage in the street and in the voting booth.

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