Alberto Gonzales’s nomination to succeed John Ashcroft as Attorney General put the Abu Ghraib torture scandal back on the front pages, since he was directly implicated, as White House counsel, in the formulation of policies authorizing and justifying the mistreatment of prisoners that paved the road to Abu Ghraib. During his confirmation hearing before the Senate Judiciary Committee, Gonzales was grilled about his judgment and views on torture. His responses were emblematic of the Bush Administration’s “never say sorry” record: While he expressed the requisite abhorrence of torture, he refused to give Republican Senator Lindsey Graham and others what they wanted: a clear repudiation of the reasoning in the infamous “torture memos” that were declassified in the wake of the Abu Ghraib scandal.
A good deal of credit for the political pressure to release the torture memos belongs to New Yorker writer Seymour Hersh. His April 30, 2004, report on the Abu Ghraib prison investigation by Maj. Gen. Antonio Taguba provided a deeper context for the shocking photos televised one day earlier on CBS’s 60 Minutes II. Taguba had discovered not only deplorable conditions and chaos but unlawful interrogation tactics and patterns of prisoner treatment linking Iraq to Afghanistan and Guantánamo. Hersh’s exposé jolted Congress into bipartisan–if short-lived–action; the Senate Armed Services Committee called for Bush Administration officials to do more than blame a few “bad apples,” and the dissembling, evasiveness and, in Ashcroft’s case, stonewalling merely increased pressure on the Administration to come clean. In June the first batch of secret memos was released, and multiple official investigations were tasked to report on detention and interrogation policies and practices. This documentary record failed to provide the vaunted cleansing, but it has substantially enriched our understanding of the history of the present.
That Hersh broke the Abu Ghraib story is no surprise, since he is unrivaled among American investigative journalists as a leak magnet for disgruntled insiders and whistleblowing frontliners. His book Chain of Command: The Road From 9/11 to Abu Ghraib, provides a clear-eyed and sweeping survey of the terrain of American policy and the dispositions and activities of its makers. The use of torture, Hersh argues, began in Afghanistan, where Pentagon civilians sought to transform what they viewed as an “overly cautious” military culture, and spread in the late summer of 2003 to Iraq, where a growing insurgency fed desperation for “actionable intelligence.” The larger question that Hersh’s book raises is: How did a small group of neoconservatives come to monopolize and radically reshape US policy, intimidate the press, mislead Congress and dominate the military?
Good question, but while neoconservatism may help explain much about American military and foreign policy after 9/11, it doesn’t account for the legal reasoning that set the conditions for the torture scandal. For that, we need to look to the Federalist Society, an organization established by right-wing lawyers in the early 1980s to redress “liberal bias” in American law schools and the legal profession. The thinking and influence of Federalist Society types who dominate legal positions (and judicial appointments) in the Bush Administration are laid bare in the torture memos, which document the triumph of international law-averse officials in the Justice Department, the Pentagon and the White House over dissenting voices in the State Department and sectors of the professional military. The victors’ most egregious mistake was to conflate international humanitarian law–the laws of war–with other bodies of international law, especially human rights law, which they loathe as constraints on US sovereignty.