It is instructive to watch Major Matthew Alexander and Federalist Society kingpin David Rivkin discuss the torture issue on the Riz Khan Show:
We’ve seen this scenario played out several times in the last week, as broadcasters and newspapers around the country see the Levin-McCain Report as an opportunity to debate torture, despite the logical fallacy of this approach. (Perhaps for Christmas proper we’ll be treated to arguments for and against genocide, and on the fourth day of Christmas we’ll read the arguments for and against the practice of infanticide.) We’ve been treated to Christopher Hitchens against Michael Smerconish, Duncan Hunter against Jim Moran, and now the Alexander versus Rivkin encounter.
There are some similarities: Torture works, the defenders of the Bush Administration say. Torture saves lives. The safety of our country depends on torture. But it didn’t depend on torture before George W. Bush. In fact, as the World War II era poster found in post offices around the country taught my parents’ generation, “Torture is the tool of the enemy.” It’s also the tool of Dick Cheney–go figure. And “Vice” himself has been heard this week. Torture is good for you, he told us. Torture is the moral thing to do. Duncan Hunter offered us the most surreal, inane defense of this thesis and David Rivkin the most nuanced.
Hunter started out by insisting that the Levin-McCain Report contradicts the “thousands of pages” of prior reports, that, he argued, vindicate Donald Rumsfeld and his team. There is no evidence, he claimed, linking Rumsfeld or the White House to the abuse at Abu Ghraib, so the Levin-McCain Report is simply wrong.
But Hunter was a poor student of those thousands of pages if he even read them at all; one wonders if he even bothered to read the executive summaries. Hunter has no explanation for the fact that twelve of twelve Republicans on the committee endorsed the report, including John McCain. And the arguments he offers are laughably ignorant. First, the “thousands of pages” of Defense Department reports are indeed filled with evidence of Rumsfeld’s guilt—starting with the December 2002 order that Rumsfeld signed opening the door to precisely the abuses that occurred at Abu Ghraib; they also reflect that Rumsfeld’s own general counsel, Jim Haynes, gave a copy of the torture memo to an officer on the Baghdad staff and passed down the message that torture was just fine; it was a part of the new regime. “Gentlemen, the gloves are coming off,” reads an instructive memorandum to interrogators during this period.
In the testimony of General Janis Karpinsky, another Rumsfeld order authorizing abuse of detainees was described as being publicly posted at Abu Ghraib for all to see. Hunter is right that the Defense Department reports made no accusations against Rumsfeld. But isn’t it worth asking why? Rumsfeld was the boss of the authors of the reports; he commissioned them and carefully set the guidelines within which the generals who wrote the reports could operate. They were not permitted to comment upon the conduct of any officials up the chain of command. However, Major General Antonio Taguba, who authored the principal report, left no question about his conclusions. “Serious war crimes were committed with the approval of senior Bush Administration officials,” he said to an audience at New York University two weeks ago (I spoke at that event as well), “there is no question about that. The only question is whether there will be accountability for the political figures who are responsible.”
Hunter demonstrates another failing. He supposes that in the absence of a “smoking gun” linking Donald Rumsfeld directly to the abuses at Abu Ghraib Rumsfeld is in the clear. Of course, that smoking gun exists in the form of the Rumsfeld memos, but is not necessary. Under the doctrine of command responsibility, Rumsfeld faces per se liability for the abuses at Abu Ghraib assuming he knew or had reason to know of the abuses and failed to take steps to stop them (now well established, as the Levin-McCain Report notes).
Rivkin is too sophisticated to make the same mistakes. He focuses instead on two arguments. Like a good criminal defense lawyer, he plays semantic games: the Bush Administration’s torture techniques can’t be torture, he says, because we use them on pilots being prepared to resist torture by our adversaries as a part of the SERE training program. That argument lies at the core of the dubious Justice Department Office of Legal Counsel opinions which Justice even now refuses to show to President-elect Obama’s transition team—such is their confidence in their analysis. These arguments are pure sophistry, with all the persuasive force of Richard Nixon’s famous answer in his Frost interviews–When the president does it that means that it is not illegal. The doctrine of presidential infallibility, or at least impunity, lies at the heart of current Bush doctrine; it is a sledgehammer used to demolish the Constitution. Rivkin knows how to wield it.
But Rivkin offers another argument: Torture works. He repeats this in the face of Major Alexander, an interrogator trusted with the toughest cases on the battlefield in Iraq, who made the most significant intelligence breakthrough in the Iraq conflict and got the Bronze Star for his efforts. Alexander offers us specific documented evidence that torture doesn’t work and neither do highly coercive techniques. In one case, the Bush techniques were applied for twenty days on a detainee. It got nowhere. Then relationship building was used for just six hours: at the end, the interrogator left the room with the keys to finding al Zarqawi.
What’s Rivkin’s evidence to the contrary? “I have interviewed a dozen interrogators who tell me so,” he claims. I have interviewed dozens of interrogators (Alexander is one) and I have never heard one present evidence or even express faith in the utility of torture, or what Rivkin would call “highly coercive techniques.” Torture does get people to talk, no doubt about that. But does it get what the experts call “actionable intelligence”? No. FBI Director Robert Mueller just confirmed that fact. The Bush Administration’s claims of success in using torture techniques like waterboarding have been thoroughly and repeatedly debunked, most recently by David Rose in Vanity Fair.
What drives the torture enablers like Rivkin and Hunter? The Wall Street Journal’s editorial page considers the torture debate to be a left-right struggle; torture is the cause of the right and the critics are on the left. But anyone who has studied the debate knows this is absurd, for there are as many convinced conservatives in the ranks opposing torture as liberals. Andrew Sullivan offers this week a series of posts that make this point. He looks at Glenn Reynolds and Jonah Goldberg, two powerful voices on the political right, both staunch defenders of Bush policy. How did they react when the first photographs of Abu Ghraib surfaced? Both were quick to condemn the images as grotesque, sickening, and criminal. Both called immediately for prosecutions to restore the nation’s honor. And how do Reynolds and Goldberg react when the Bush Administration is revealed as the author of that abhorrent conduct? Suddenly what was once morally reprehensible, is a necessary tool in a just cause. Indeed, it makes us safer they suggest against overwhelming evidence to the contrary. Is their agenda to support and justify the conduct of their political leader, no matter how depraved or unlawful that conduct is? The threshold from principled analysis to partisan propaganda has been crossed.
And in the case of Rivkin, who is generally more cautious and circumspect, we see the same process. Rivkin tells us that we must close our eyes to what happened. He opposes even an inquiry into the genesis of the torture program, saying we know everything from the voluntary disclosures of the Bush Administration. But of course even the Levin-McCain Report tells us that we know very little. That report fails to unearth what went on in Jerry Boykin’s and Stephen Cambone’s Special Operations Command, where by consensus the most serious abuses involving the military occurred, starting with Cambone’s authorization of torture in rules of engagement issued shortly after 9/11. And the Levin-McCain Report notes that the role of torture remains unknown inside of the CIA, though we have two directors who have offered up a series of public whoppers in their efforts to get the dogs off the scent.
But Rivkin’s history is much like that of Reynolds and Goldberg. Back when the Democrats were in power, in 2000, he offered this: “As an alternative to expansive universal jurisdiction and the International Criminal Court, the United States should promote a renewed commitment to the prosecution of ‘international’ crimes in national judicial systems.” (“The Rocky Shoals of International Law,” National Interest, Winter 2000, co-authored with Lee Casey). I happen to agree with this perspective. That is, the International Criminal Court cannot be a forum for the enforcement of the laws of war against the great powers; if that happens, the support upon which it depends for its credibility will collapse. The great powers, and particularly the world’s paramount power, the United States, must enforce the laws itself. And this is precisely why the weaseling of the torture enablers presents such a threat to America’s security. It robs us of moral stature just as it robs American service personnel of the protections that Americans labored for two centuries to create. It marks the ultimate triumph of petty partisanship over principle. And that is the essence of the torture debate.
