Article — From the December 2008 issue

Justice After Bush

Prosecuting an outlaw administration

i. the crimes

Americans may wish to avoid what is necessary. We may believe that concerns about presidential lawbreaking are naive. That all presidents commit crimes. We may pretend that George W. Bush and his senior officers could not have committed crimes significantly worse than those of their predecessors. We may fear what it would mean to acknowledge such crimes, much less to punish them. But avoiding this task, simply “moving on,” is not possible.

This administration did more than commit crimes. It waged war against the law itself. It transformed the Justice Department into a vehicle for voter suppression, and it also summarily dismissed the U.S. attorneys who attempted to investigate its wrongdoing. It issued wartime contracts to substandard vendors with inside connections, and it also defunded efforts to police their performance. It spied on church groups and political protesters, and it also introduced a sweeping surveillance program that was so clearly illegal that virtually the entire senior echelon of the Justice Department threatened to (but did not in fact) tender their resignations over it. It waged an illegal and disastrous war, and it did so by falsely representing to Congress and to the American public nearly every piece of intelligence it had on Iraq. And through it all, as if to underscore its contempt for any authority but its own, the administration issued more than a hundred carefully crafted “signing statements” that raised pervasive doubt about whether the president would even accede to bills that he himself had signed into law.

No prior administration has been so systematically or so brazenly lawless. Yet it is no simple matter to prosecute a former president or his senior officers. There is no precedent for such a prosecution, and even if there was, the very breadth and audacity of the administration’s activities would make the process so complex as to defy systems of justice far less fragmented than our own. But that only means choices must be made. Indeed, in weighing the enormity of the administration’s transgressions against the realistic prospect of justice, it is possible to determine not only the crime that calls most clearly for prosecution but also the crime that is most likely to be successfully prosecuted. In both cases, that crime is torture.

There can be no doubt that torture is illegal. There is no wartime exception for torture, nor is there an exception for prisoners or “enemy combatants,” nor is there an exception for “enhanced” methods. The authors of the Constitution forbade “cruel and unusual punishment,” the details of that prohibition were made explicit in the Geneva Conventions (“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever”), and that definition has in turn become subject to U.S. enforcement through the Uniform Code of Military Justice, the U.S. Criminal Code, and several acts of Congress.[1]

[1] In addition to being illegal, torture is profoundly un-American. The central premise of the American experiment is the belief, informed by Enlightenment principles, that the dignity and worth of the individual is at least as important as that of the state. This belief weighed heavily on the minds of the Founders. The new American military was to be a force of yeoman soldiers, citizens in peacetime who were to be regarded as no less than citizens in wartime. Enemy soldiers likewise were to be treated with respect. George Washington, in the winter of 1776, sent a written order to officers overseeing prisoners: “Treat them with humanity.” And in 1863, at another time of crisis, Abraham Lincoln included the prohibition of torture in the first American codification of the laws of war, which he also issued as a direct order to his field commanders. By way of such American leadership, the prohibition on torture was gradually absorbed into international law.

Nor can there be any doubt that this administration conspired to commit torture: Waterboarding. Hypothermia. Psychotropic drugs. Sexual humiliation. Secretly transporting prisoners to other countries that use even more brutal techniques. The administration has carefully documented these actions and, in many cases, proudly proclaimed them. The written guidelines for interrogations at Guantánamo Bay, for instance, describe several techniques for degrading and physically debilitating prisoners, including the “forceful removal of detainees’ clothing” and the use of “stress positions.” And in a 2006 radio interview, Dick Cheney said simply that the use of waterboarding to obtain intelligence was a “no-brainer.”[2]

[2] Cheney at the time declined to refer to this practice as torture, preferring instead to describe it as “robust interrogation,” and that reluctance has been echoed in the press. I myself was twice warned by PBS producers, in advance of appearances on The Newshour with Jim Lehrer, that I could use the word “torture” in the abstract but that I was to refrain from applying it to the administration’s policies. And after an interview with CNN in which I spoke of the administration’s torture policy, I was told by the producer, “That’s okay for CNN International, but we can’t use it on the domestic feed.” More recently, however, the consensus appears to be that “torture” is a perfectly adequate description of administration policy. In the vice-presidential debates, Joe Biden said that Cheney has “done more harm than any other single elected official in memory in terms of shredding the Constitution. You know—condoning torture.” In the first presidential debate, John McCain said we must ensure “that we have people who are trained interrogators so that we don’t ever torture a prisoner ever again.” And Barack Obama, though vague, seemed to accept this formulation. “I give Senator McCain great credit on the torture issue,” he said, “for having identified that as something that undermines our long-term security.”

Finally, there can be no doubt that the administration was aware of the potential criminality of these acts. In January 2002, White House lawyers began generating a series of memos outlining the administration’s motivation for torturing. They claimed that “the war against terrorism is a new kind of war” requiring an enhanced “ability to quickly obtain information from captured terrorists” and that “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” The legal term for such contemplation is mens rea, or “guilty mind,” and it is an important consideration in criminal trials. Which is perhaps the reason that John Ashcroft—when he, Dick Cheney, Colin Powell, Condoleezza Rice, Donald Rumsfeld, and George Tenet gathered at the White House in 2002 to formally approve the application of specific torture methods—asked the assembled, “Why are we talking about this in the White House? History will not judge this kindly.”[3]

[3] In an interview with Jane Mayer of The New Yorker, a former senior CIA official with knowledge of the administration’s torture program summarized its attitude more bluntly: “Laws? Like who the fuck cares?”

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, an attorney in New York City, writes the daily weblog No Comment for Harpers.org. His last article for Harper’s Magazine, “Vote Machine,” appeared in the March 2008 issue.

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