December 2008 Issue [Report]

Justice After Bush

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Prosecuting an outlaw administration

by Scott Horton,

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…

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Scott Horton

, 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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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.

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.”

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?”

This last point is not even slightly controversial. Richard Armitage, a Republican former Navy officer who served as deputy secretary of state from 2001 to 2005, is likely the highest-ranking administration official to personally have experienced this form of torture. In the late Sixties, he was waterboarded as part of a training program— Survival, Evasion, Resistance, and Escape, or SERE—designed to prepare military personnel to resist enemy interrogators. His conclusion was straightforward. “Of course waterboarding is torture,” he told the BBC in 2007. “I can’t believe we’re even debating it.” Military lawyers agree. In a 2007 letter to Senate Judiciary Committee Chairman Patrick Leahy, four retired judge advocates general hammered the point again and again. “Waterboarding is inhumane, it is torture, and it is illegal,” they wrote, adding that “it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation.” Even Republican Senator Lindsey Graham, himself a onetime reserve military judge and sometime supporter of administration detainee policy, admits that waterboarding is illegal. “I don’t think you have to have a lot of knowledge about the law,” he said in 2007, “to understand this technique violates Geneva Convention Common Article Three, the War Crimes statutes, and many other statutes that are in place.”

The alternative, simply doing nothing, not only ratifies torture; it ratifies the failure of the people to control the actions of their government. It is not without justification that Bush was able to claim in 2005, “We had an accountability moment, and that’s called the 2004 elections.” Such taunts recall the (likely apocryphal) moment when William Tweed, the corrupt head of New York’s Tammany Hall, was confronted with indisputable evidence of graft. “Well,” he said, “what are you going to do about it?”

18 U.S.C. § 2340 makes it a crime for any “person acting under the color of law” to “inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” The penalty for this crime—as Bush’s Office of Legal Counsel carefully noted in a 2003 memo on the subject—is up to twenty years in federal prison.

Or even their own administrations: George W. Bush formed the Robb-Silberman Commission in 2004 to look into why his administration’s conclusions about Iraqi WMDs were so completely wrong, but the commission somehow failed to discover the pressure that the administration itself had brought to bear on intelligence analysts to cook their conclusions—in part, perhaps, because Dick Cheney was personally responsible for putting part of the commission together, starting with the appointment of his friend Laurence Silberman as co-chair. The Tower Commission, created by Ronald Reagan to look into the Iran-Contra scandal, was a similarly lukewarm exercise in damage control, in which the authors ultimately concluded that all that was really needed to avoid future such scandals was a modest restructuring of the role of the national security adviser.

This may explain why, when Will Bunch of the Philadelphia Daily News asked Barack Obama in August “whether an Obama administration would seek to prosecute officials of a former Bush Administration,” the senator’s response was guarded. “I can’t prejudge that, because we don’t have access to all the material right now. I think that you are right: if crimes have been committed, they should be investigated. You’re also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.” Obama adviser Cass Sunstein has similarly warned that pursuing prosecutions of Bush Administration officials would generate a “cycle” of partisan recriminations.

The leaders of the 9/11 Commission were, in fact, pointed in their criticism of the false or misleading statements that were provided by some agencies, particularly the Department of Defense and the Federal Aviation Administration. In their book, Without Precedent, the commission’s co-chairs, Thomas Kean and Lee Hamilton, write that they openly considered recommending prosecution of some government officials for criminal obstruction, a threat that ultimately secured some compliance. They remained skeptical, however, about how much cooperation they ultimately received.

Newsweek columnist Stuart Taylor, long a defender of the administration’s detainee policies, wrote in July that a war-crimes trial would “touch off years of partisan warfare. The lesson for occupants of the toughest government jobs—if the next administration could find people willing to fill them—would be that saving innocent lives is less important than covering their posteriors.” Taylor has, however, embraced the idea of a truth commission.

The White House has forbidden several of its former employees—including former chief of staff Joshua Bolton, former counselor Harriet Miers, and former senior adviser Karl Rove—from testifying before congressional oversight panels. When a court ordered them to appear, the administration sought to appeal the ruling in a transparent, and thus far successful, effort to run out the clock. The administration has also withheld documents, citing exotic theories of privilege. In congressional hearings, White House attorney John Yoo simply refused to answer questions, on the grounds that he had been instructed by the Justice Department not to answer, even though many of the questions concerned matters that Yoo had discussed in two books and dozens of other public forums. The difference between Yoo’s public discussion and his testimony was, of course, that the latter was under oath.

The Authorization for Use of Military Force Against Terrorists, passed into law shortly after the attacks of September 11, 2001, is the statute that has provided general authority for the conduct of military operations in what the administration has came to call the “Global War on Terror.” Since the president’s repeated assumptions of extralegal powers was predicated in Justice Department memoranda on his commander-in-chief authority, that military link should help define the time, the space, and the nature of the conduct that requires investigation.

One highly controversial area of inquiry will be the question of efficacy. The major argument for torture now is simple: It works, and therefore any state that wants to protect itself would be foolish to dispense with it. But does torture “work”? Many human-rights activists have strongly discouraged even asking the question. Doing so, they argue, transforms a moral argument—a basic respect for the dignity of all humans forbids torture—into a utilitarian argument. Such a consideration of ends versus means opens the door to all kinds of “what if” scenarios that would eventually lead to wider social acceptance of torture. (One way to more easily assess that concern would be to substitute another taboo act—say, child rape—for torture. Would it be acceptable to rape a child if there were a ticking time bomb under the Empire State Building and you sincerely believed that raping that child was the only way to find it?)

There is much to be said for these concerns. And yet those who are against torture also have the better end of the utilitarian argument. Under centuries of the lex talionis, or law of retribution, if a nation inflicted indignities on its captives, others were free to do the same to its soldiers. One of the clearest consequences of the Bush torture policies has been to put American service personnel at risk. Nor is there any evidence that torture is an effective means to the end of national security. Bush has argued that “the program” he helped establish did in fact secure information that “saved American lives.” But others who have looked into the incidents that Bush cites say that, in fact, what useful intelligence was gathered in these interrogations was gathered before the interrogators resorted to torture. Indeed, the techniques utilized at Guantánamo and Abu Ghraib were developed not for the purpose of gathering intelligence but rather to elicit false confessions to be used for political purposes.

This invites a number of questions: Was the intelligence collected inherently more or less reliable than intelligence gathered using other techniques? Was it necessary to turn to highly coercive tactics to secure this information? What other consequences for national security flow from the use of the new techniques in terms, for instance, of loss of intelligence-gathering channels, damage to reputation, recruitment gains for enemies, and compromised cooperation from allies? These questions, although they may suggest, perniciously, that “reasonable minds differ” on torture, nonetheless are worth asking for one reason above all. The answers, coming from administration officials, would also act as a kind of confession. Their self-justification should be part of the record.

The report’s function would be more than historical, of course. It must be forward-looking. Should laws be changed, regulations rewritten, new procedures adopted?

More important, the commission must look at the conduct of official actors. Were laws and policies faithfully applied or were they broken? If laws were broken, was there criminal conduct that merits study by law- enforcement professionals? This analysis would establish the background for the three most important potential results of a commission: the formal recommendation to pardon, the formal recommendation to pursue prosecution, and the formal recommendation to make reparations.

Justice After Bush

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