• Email
  • Single Page
  • Print

What to Do About the Torturers?

Others are also portrayed in a surprising light. General Richard Myers, chairman of the Joint Chiefs of Staff when the Rumsfeld memo was adopted, had, by his own account, astoundingly little understanding of what was at stake. At one point, he told Sands that all the coercive measures approved by Rumsfeld were already authorized by the Army Field Manual; in fact, none of the tactics were permitted under the manual. Sands concludes that Myers was “hoodwinked” by Rumsfeld and Haynes. General James Hill, who headed the Southern Command and passed Diane Beaver’s memo up the chain to Washington, admits to Sands that he would never have approved some of the tactics Rumsfeld okayed. And military intelligence experts closely involved with the Guantánamo interrogations tell Sands that no valuable information was obtained from al-Qahtani.

Sands’s book prompted the House Judiciary Committee to launch hearings last summer into the role of lawyers in the development of the interrogation policies, and those hearings in turn led the Senate Armed Services Committee to hold still further hearings. Addington, Yoo, Feith, and Haynes all testified very defensively, often refusing to answer political questions or not recalling key details. But documents disclosed in the course of the hearings now show that when the coercive measures were under consideration, top lawyers for every branch of the military—the Army, Navy, Air Force, and Marine Corps—objected that the tactics might be illegal. The comments encouraged Jane Dalton, legal counsel to General Myers, to undertake a more detailed review of the legal questions posed—until General Myers, at Haynes’s request, ordered that the legal inquiry be quashed. It appears that General Myers may not have been hoodwinked after all.

Because so many of the facts surrounding the torture policy are now well known, Sands’s book is illuminating not so much for breaking new factual ground as for the human insight he brings to the events. Through his interviews, he tells a story about how ordinary human beings, all working within an institution designed to fight by the rules, felt tremendous pressure to bend the rules—and in most cases did so without apparent concern or self-doubt. A narrowly pragmatic ethos guided virtually all actors. The real arguments were for the most part not about whether coercive tactics were legally or morally acceptable, but about whether they worked. Some, especially those in the FBI, felt strongly that they were counterproductive, and that building rapport through noncoercive questioning was the only way to gain credible intelligence from captives.4 Others thought the idea of building rapport with al-Qaeda suspects was foolish; it could not be done. But with the courageous exception of Navy General Counsel Alberto Mora, few argued that coercive tactics were wrong because they were immoral and illegal, whether or not they worked. In America after September 11, idealists were few and far between, and an amoral, blinkered pragmatism ruled the day.

Sands is an unabashed idealist. He considers it the government lawyer’s obligation to be the guardian of legality, even (and especially) where one’s clients, the politically elected and appointed decision-makers, have decided that the law and the rules are inconvenient. Sands argues that torture is ineffective, and that building rapport with suspects is the better course. Indeed, he demonstrates in his own interviews the power of rapport to get subjects talking candidly. But in the end, his argument is not a pragmatic one—it is an argument of principle. The prohibition against torture is absolute, and expresses a fundamental norm about human decency, not a practical judgment about what produces results in interrogation.


The critical question, now that the administration is changing hands, is how to address the fact that the United States after September 11 adopted an official practice of cruel, inhuman, and degrading interrogation tactics, some of which, including at a minimum the interrogation of al-Qahtani and the waterboarding of CIA suspects, rose to the level of torture. Some, including current Attorney General Michael Mukasey and former Bush administration lawyer Jack Goldsmith, have argued that no further investigations, much less prosecutions, are needed, and we should simply move on.5

Mukasey insists that everyone acted in good faith—but his judgment is compromised by his refusal even to acknowledge that waterboarding is torture. He never squares his finding of “good faith” with the fact that Haynes and Myers cut off an inquiry into the legality of the Army’s tactics after the military’s top lawyers objected that the tactics were illegal, or that Yoo and Bybee failed even to cite important contrary legal authority in their torture memo. And while good faith is certainly a factor to be considered in making the discretionary decision whether to prosecute, it is not in itself a legal defense to the crimes of torture or cruel, inhumane, or degrading treatment.

In Jack Goldsmith’s view, the facts are already known, the normative judgments have been made, and the real risk is that an extensive investigation will induce federal officials to be overly risk-averse in their approach to controversial national security issues. Goldsmith, however, is not a disinterested party; he was Haynes’s top lawyer on international law when Haynes drafted the Rumsfeld memo on interrogation tactics. Later, as head of the Office of Legal Counsel, he oversaw a review of the Yoo-Bybee “torture memo” that, while it ultimately resulted in the memo’s replacement, did not reverse the office’s authorization of any of the CIA’s coercive tactics, including waterboarding.6

Others, such as Michael Ratner and the Center for Constitutional Rights, call for criminal prosecution. Their book, The Trial of Donald Rumsfeld, convincingly makes the case that Rumsfeld committed war crimes, and is a useful companion to Torture Team because it includes excerpts from all the critical evidence and a lucid explanation of the legal issues. The center has formally petitioned the German and French governments to bring criminal charges, but both have thus far declined.7

Sands’s prescription is similar. His book begins with a discussion of the film Judgment at Nuremberg, which featured the trial of judges and lawyers complicit in Nazi atrocities, and closes with a discussion of the principle of “universal jurisdiction,” which holds that any country has the right to prosecute certain war crimes and crimes against humanity, no matter where or by whom they were committed, so long as it observes the fundamental requirements of a fair trial. Sands himself played a part in the landmark UK extradition case against General Augusto Pinochet of Chile, in which the UK’s Law Lords ruled that even a former head of state was not immune to prosecution by a foreign country (Spain) for torture and other crimes against humanity.

Criminal prosecution within or outside the United States is highly unlikely. At home, the Justice Department’s “torture memo” would be a legal defense for any but the lawyers who wrote it, and Congress, in the Military Commissions Act, granted retrospective immunity to officials involved in the interrogation of al-Qaeda suspects in the wake of September 11. The latter immunity, Sands points out, actually makes US officials more susceptible to prosecution overseas, because it removes a major impediment to international prosecution—namely, the principle that universal jurisdiction should not be exercised as long as domestic remedies are available. Still, as a matter of realpolitik, it is difficult to imagine any nation greeting the Obama administration with an international prosecution of former high-level US officials.

But even if criminal prosecution seems unlikely, the acts of the past administration demand accountability. Here’s what Eric Holder, whom Obama will nominate as attorney general, said several months ago:

Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the procedures that violate both international law and the United States Constitution…. We owe the American people a reckoning.

That “reckoning,” owed not just to the American people but to the world, will be made especially difficult by the fact that complicity in the torture policy reaches the very top of the Bush administration. The tactics used by the CIA in its interrogations of Khalid Sheikh Mohammed and other “high-level” detainees, including waterboarding, were specifically approved in the White House situation room by Vice President Dick Cheney, Director of Central Intelligence George Tenet, Attorney General John Ashcroft, National Security Adviser Condoleezza Rice, and Secretary of State Colin Powell. Ashcroft is reported to have remarked that “history will not judge us kindly,” but none of the participants is reported to have objected to the tactics.8 On December 15, Vice President Cheney acknowledged for the first time that he had authorized and continues to support techniques including waterboarding. “I was aware of the program, certainly, and involved in helping get the process cleared,” Cheney told ABC News. Apparently CIA officials insisted on such high-level approval as a form of insurance against future prosecution.

This poses a real political dilemma: How is President Obama, committed to bipartisan leadership, to hold such officials accountable? A prosecution of any of these men would be as divisive a criminal case as the United States has ever seen—even if it could surmount the legal hurdles identified above. Just launching an investigation will be bruisingly controversial.

Must we then settle for the judgment of history that Ashcroft worried about? In some sense, that judgment has already begun to take shape, thanks to the efforts of Sands, Ratner, enterprising journalists like Mark Danner and Jane Mayer, and especially the ACLU, which forced the disclosure of over 100,000 documents on the interrogation policy by filing a lawsuit under the Freedom of Information Act. Administration of Torture, a guide to those documents with excerpts from the most interesting, will prove an immensely useful resource for future historians.

Without prosecutions or an independent investigation, significant progress toward repudiating the administration’s approval of cruelty and torture has already been made. In 2006 the Supreme Court rejected President Bush’s position that the Geneva Conventions do not apply to the conflict with al-Qaeda. The military rescinded its authorization of coercion, and has limited itself, in the Army Field Manual, to noncoercive interrogation tactics. The CIA has reportedly abandoned waterboarding, and there have been no reports of renditions to torture in foreign countries for several years. The Justice Department rescinded the August 2002 “torture memo”—although, as noted above, the replacement memo did not alter the department’s approval of illegal CIA tactics. Congress, under the leadership of Senator John McCain, resoundingly rejected a White House interpretation that the Torture Convention’s prohibition on cruel, inhuman, and degrading treatment exempted foreign nationals held outside the United States; the McCain Amendment provides that the prohibition applies to all persons held by US officials, no matter where they are located.

Critically, however, while the administration has been forced to retreat, there has been no official acknowledgment of high-level criminal wrongdoing. The treatment of prisoners authorized by the administration clearly violated the prohibitions on cruel, inhumane, and degrading treatment contained in Common Article 3 and the Torture Convention; and waterboarding unquestionably qualifies as torture. All these violations were war crimes. Yet no high-level official has been held accountable for the torture policy. The only officer convicted of any crime with respect to the Abu Ghraib scandal, for example, Lieutenant Colonel Steven Jordan, had his conviction reversed on appeal in January 2008. (And even that conviction was not for any role in the abuse itself, but for disobeying an order not to talk about the investigation.) No one has even been charged for any abuse inflicted at Guantánamo.

On December 11, the leaders of the Senate Armed Services Committee, Carl Levin and John McCain, released an important report on abusive interrogations that concluded that Donald Rumsfeld and other top Bush administration officials had

solicited information on how to use agressive (interrogation) techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.

Most of the report was classified, however. And apart from this, Congress has largely acted symbolically, avoiding any real measures to enforce accountability. The McCain Amendment, for example, provides no sanctions for its violation. The Military Commissions Act not only retrospectively gave immunity to interrogators, but prospectively watered down the War Crimes Act so that inhumane and degrading treatment of detainees is no longer a war crime.

While the CIA claims to have abandoned waterboarding, the administration has refused to say what tactics CIA interrogators are still permitted to use. Its secret prisons, into which suspects are disappeared for incommunicado interrogation, remain open. The administration has never repudiated the practice of rendering suspects to third countries for interrogation by torture, and has never held anyone accountable for that practice. And several still-secret and still-governing Justice Department memoranda from 2005 reportedly authorize the CIA to continue using coercive tactics even after the McCain Amendment was passed. In March 2008, President Bush vetoed a bill that would have required the CIA to limit itself to interrogation techniques approved in the Army Field Manual.

In short, the United States has never taken full responsibility for the crimes its high-level officials committed and authorized. That is unacceptable. In the long run, the best insurance against cruelty and torture becoming US policy again is a formal recognition that what we did after September 11 was wrong—as a normative, moral, and legal matter, not just as a tactical issue. Such an acknowledgment need not take the form of a criminal prosecution; but it must take some official form. We have been willing to admit wrongdoing in the past. In 1988, President Reagan signed the Civil Liberties Act, officially apologizing for the Japanese internment and paying reparations to the internees and their survivors. That legislation, a formal repudiation of our past acts, provides an important cultural bulwark against something similar happening again. There has been nothing of its kind with respect to torture.

We cannot move forward in reforming the law effectively unless we are willing to account for what we did wrong in the past. The next administration or the next Congress should at a minimum appoint an independent, bipartisan, blue-ribbon commission to investigate and assess responsibility for the United States’ adoption of coercive interrogation policies. If it is to be effective, it must have subpoena power, sufficient funding, security clearances, access to all the relevant evidence, and, most importantly, a charge to assess responsibility, not just to look forward.9 We may know many of the facts already, but absent a reckoning for those responsible for torture and cruel, inhumane, and degrading treatment—our own federal government—the healing cannot begin.

—December 17, 2008


Where Reagan Stopped March 26, 2009

  1. 4

    For an argument by a seasoned military interrogator that rapport-building is far more effective than torture and cruelty, see Matthew Alexander with John R . Bruning, How to Break a Terrorist: The US Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq (Free Press, 2008). Alexander, a pseudonym, led an interrogation team in Iraq that located Abu Musab al-Zarqawi, the leader of al-Qaeda in Iraq. For a more detached historical account drawing the same conclusion, and finding that there is no evidence that torture “works,” see Darius Rejali, Torture and Democracy (Princeton University Press, 2007).

  2. 5

    See “Remarks Prepared for Delivery by Attorney General Michael Mukasey at the 2008 Annual Meeting of the Federalist Society,” November 20, 2008, at www.usdoj.gov/ag/speeches/2008/ag-speech-081120.html; Jack Goldsmith, “No New Torture Probes,” The Washington Post, November 26, 2008.

  3. 6

    See my review of Goldsmith’s book The Terror Presidency: Law and Judgment Inside the Bush Administration in these pages, December 6, 2007.

  4. 7

    I am a member of the Board of the Center for Constitutional Rights, although I did not take part in the efforts to have criminal proceedings initiated against Rumsfeld.

  5. 8

    Mayer, The Dark Side, p. 143.

  6. 9

    The International Center for Transitional Justice, which focuses on the question of how new governments can pursue accountability for the crimes of former regimes—a problem more common in the developing world, but one that the United States itself must now confront—has written a very useful brief on the benefits of such a commission, and on how it should be constituted: Policy Brief: US Inquiry into Human Rights Abuses in the “War on Terror” (November 2008).

  • Email
  • Single Page
  • Print