A lady asked Dr. [Benjamin] Franklin, “Well Doctor, what have we got, a republic or a monarchy?”
“A republic,” replied the Doctor, “if you can keep it.”
—Papers of Dr. James McHenry, describing the scene as they left the Federal Convention of 1787 in Philadelphia
Seven years after al-Qaeda’s attacks on America, as the Bush administration slips into history, it is clear that what began on September 11, 2001, as a battle for America’s security became, and continues to be, a battle for the country’s soul.
In looking back, one of the most remarkable features of this struggle is that almost from the start, and at almost every turn along the way, the Bush administration was warned that whatever the short-term benefits of its extralegal approach to fighting terrorism, it would have tragically destructive long-term consequences both for the rule of law and America’s interests in the world. These warnings came not just from political opponents, but also from experienced allies, including the British Intelligence Service, the experts in the traditionally conservative military and the FBI, and, perhaps most surprisingly, from a series of loyal Republican lawyers inside the administration itself. The number of patriotic critics inside the administration and out who threw themselves into trying to head off what they saw as a terrible departure from America’s ideals, often at an enormous price to their own careers, is both humbling and reassuring.
Instead of heeding this well-intentioned dissent, however, the Bush administration invoked the fear flowing from the attacks on September 11 to institute a policy of deliberate cruelty that would have been unthinkable on September 10. President Bush, Vice President Cheney, and a small handful of trusted advisers sought and obtained dubious legal opinions enabling them to circumvent American laws and traditions. In the name of protecting national security, the executive branch sanctioned coerced confessions, extrajudicial detention, and other violations of individuals’ liberties that had been prohibited since the country’s founding. They turned the Justice Department’s Office of Legal Counsel into a political instrument, which they used to expand their own executive power at the expense of long-standing checks and balances.
When warned that these policies were unlawful and counterproductive, they ignored the experts and made decisions outside of ordinary bureaucratic channels, and often outside of the public’s view. Rather than risking the possibility of congressional opposition, they classified vital interpretations of law as top secret. No one knows to this day how many more secret opinions the Bush Justice Department has produced. Far from tempering these policies over time, they marginalized and penalized those who challenged their idées fixes. Because the subject matter was shrouded in claims of national security, however, much of the internal dissent remained hidden.
Throughout this period, President Bush and Vice President Cheney have continued to insist that they never authorized or condoned “torture,” which they acknowledge is criminal under US law. But their semantic parsing of the term began to seem increasingly disingenuous as details from the secret detention and interrogation program surfaced, piece by piece. By the last year of the Bush presidency, many of the administration’s own top authorities, including Director of National Intelligence Mike McConnell and former Secretary of Homeland Security Tom Ridge, as well as John Kiriakou, the former CIA officer involved in the capture of the high-ranking al-Qaeda member Abu Zubayda, acknowledged that as far as they were concerned, waterboarding was torture.
Such extreme measures were perhaps understandable in the panic-filled days and weeks immediately after September 11, falling into place among other historic infringements of civil liberties during times of dire national security crisis. Yet seven years later, the Bush administration’s counterterrorism policies remained largely unchanged. There had been some alterations and improvements. But the legal framework survives despite nearly universal bipartisan acceptance outside of the Bush administration that Guantánamo should be shut down, that the military commission process was hopelessly flawed, and that the human rights violations at Abu Ghraib and elsewhere were not the work of a few “rotten apples” on the bottom, but rather the result of irresponsible leadership at the top. In fact torture, which was reviled as a depraved vestige of primitive cultures before September 11, seemed in danger of becoming normalized.
Through four congressional election cycles and two presidential campaigns, there has been surprisingly little intelligent debate about the Bush administration’s approach to terrorism. Top administration officials continue to insist that their program is legal and effective; while critics complain, they rarely provide their own proposals for a better system. Since the Democratic Party gained control of Congress in 2006, there have been stirrings toward investigation and reform. But in July 2007, a bill to close Guantánamo was defeated when the Senate voted overwhelmingly (94–3) against transferring the detainees to prisons in the United States. Clearly, the fear of appearing “soft” on terrorism still haunts elected officials.
The presidential election of 2008 may prove a turning point. In a hopeful sign of change, both parties’ presidential nominees have taken strong, principled stands against torture, promising to close loopholes that secretly sanction it, and to bring the country’s detention and interrogation policies back in line with its core constitutional values. Yet neither candidate had put forward a coherent alternative by June 2008. The Bush administration’s “New Paradigm” remains intact, allowing the administration to claim all of the powers that flow from war, while allowing detainees almost none of the rights that either the military or criminal justice system confers.
Senator John McCain’s opposition to torture surely runs as deep as that of any politician in America. He captured the essence of the issue eloquently in a simple declaration in 2005 that “it’s not about them; it’s about us.” Yet in a nod to the conservative base of his party, even McCain has feinted to the right, siding with the Bush White House in early 2008 against proposed legislation that would limit CIA officers to the humane interrogation techniques allowed by the military.
An obvious reason for the political caution is fear. By the measure that matters most, the Bush administration can point to its record in fighting terrorism as a success. There have been no terrorist attacks in America since September 11, 2001. No rival wants to be accused of breaking this streak.
Yet it is hard to know if the Bush administration’s success represents the vanquishing of new credible threats, or rather the absence of any. As former Secretary of Defense Donald Rumsfeld himself acknowledged in 2003, “Today we lack metrics to know if we are winning or losing the global war on terror.” During the Bush years, it’s been almost impossible to tell. In the absence of government transparency and independent analysis, the public has been asked to simply take the President’s word on faith that inhumane treatment has been necessary to stop attacks and save lives.
Increasingly, however, those with access to the inner workings of the Bush administration’s counterterrorism program have begun to question those claims. In March 2008, after President Bush announced his intention to veto legislation requiring the CIA to abide by the same interrogation rules as the military, Senator Jay Rockefeller, chairman of the Senate Intelligence Committee, challenged the administration’s entire rationale. Rockefeller’s criticism over the years was muted, at best, and so his bold rebuke was particularly noteworthy. “As Chairman of the Senate Intelligence Committee,” a statement he released said,
I have heard nothing to suggest that information obtained from enhanced interrogation techniques has prevented an imminent terrorist attack. And I have heard nothing that makes me think the information obtained from these techniques could not have been obtained through traditional interrogation methods used by military and law enforcement interrogators. On the other hand, I do know that coercive interrogations can lead detainees to provide false information in order to make the interrogation stop.
In other words, according to one of the few US officials with full access to the details, the drastic “ticking time bomb” threat used to justify what many Americans would otherwise consider indefensible tactics had never actually occurred, other than on the TV sets of those watching Fox-TV’s terrorism fantasy show 24.
Rockefeller asserted that the Bush administration’s approach was not only unnecessary, it was also undermining the security that it claimed to safeguard. “The CIA’s program damages our national security by weakening our legal and moral authority, and by providing al-Qaeda and other terrorist groups a recruiting and motivational tool,” he said. “By continuing this interrogation program, the President is sacrificing our strategic advantage for questionable tactical gain.”
Doubt has begun to emerge from within the administration itself, too. In 2006, a scientific advisory group to the US intelligence agencies produced an exhaustive report on interrogation called “Educing Information,” which concluded that there was no scientific proof whatsoever that harsh techniques worked. In fact, several of the experts involved in the study described the infliction of physical and psychological cruelty as outmoded, amateurish, and unreliable.
In confidential interviews, several of those with inside information about the NSA’s controversial Terrorist Surveillance Program have expressed similar disenchantment. As one of these former officials says of the ultrasecret program so furiously defended by David Addington, chief of staff and former counsel to Vice President Cheney, “It’s produced nothing.”
While the Bush administration can point proudly to its record of no terrorist attacks on America since 2001, its progress in bringing the perpetrators of the September 11 attacks to justice is less impressive. The administration certainly could claim a number of top al-Qaeda scalps. Yet as of June 2008, both Osama bin Laden and Ayman al-Zawahiri remained at large. The government’s own statistics, meanwhile, showed that both the number of terrorist attacks around the world and the estimation of the threat posed by al-Qaeda were growing. According to the most recent National Intelligence Estimate, issued in April 2006, “A large body of all-source reporting indicates that activists identifying themselves as jihadists, although still a small percentage of Muslims, are increasing in both numbers and geographical dispersion.” The report noted carefully, “If this trend continues, threats to US interests at home and abroad will become more diverse, leading to increasing attacks worldwide.”
The war in Iraq, the Israeli–Palestinian conflict, and the deteriorating security situations in Afghanistan and Pakistan have all reportedly contributed to the radicalization of the Muslim world. But according to one former official who traveled extensively through the Middle East, no subject was described by Muslims he spoke with as more deeply disturbing than America’s abuse of the detainees. Eric Haseltine, the former top adviser on science and technology to the Director of National Intelligence, worries that prisoner abuse has profoundly hurt what he defines as the most important battle in the war on terror—the struggle to win the support of the next generation of Arab youth. “I came away from my many visits to the Middle East convinced there is a widespread belief that if America abuses prisoners then there can be no true freedom for anyone,” he said. “It seemed to me that our greatest sin in the eyes of Muslims was not invading the Middle East, or even our support of Israel: our greatest sin was robbing Muslims of hope.”
By many estimates, by the end of the Bush years, America’s reputation as a lead defender of democracy and human rights was in tatters. According to the Pew Global Attitudes Project, in June 2006 public opinion in two countries in the world supported the US war on terror—India and Russia. Meanwhile, corrupt and repressive states, including Egypt, Sudan, and Zimbabwe, have all justified their own brutality by citing America’s example. Egyptian President-for-Life Hosni Mubarak declared that the US treatment of detainees proved that “we were right from the beginning in using all means, including military tribunals, to combat terrorism.” Even the most dependable of US allies, including Germany, Denmark, and the European Union, by 2008 had all accused the US of violating internationally accepted standards for humane treatment and due process. Canada went so far as to place America on its official list of rogue countries that use torture.
The Bush administration’s controversial antiterrorism program had other unwelcome consequences as well. Seven years after the attacks of September 11, not a single terror suspect held outside of the US criminal court system had been tried. Of the 759 detainees acknowledged to have been held in Guantánamo, approximately 270 remained there, only a handful of whom had been charged. Among these, not a single “enemy combatant” had yet had the opportunity to cross-examine the government or see the evidence on which he was being held.
The military commission process was clearly plagued by problems to the point of dysfunction. One stalwart official after another has stepped forward with astounding accusations of impropriety. In a sworn statement in the spring of 2008, for example, the former top prosecutor in the Office of Military Commissions disclosed that the Pentagon had pressured him to time “sexy” prosecutions for political advantage, and to use evidence against the detainees that he considered tainted by torture. After resigning in protest, the prosecutor, Air Force Colonel Morris Davis, also disclosed that when he suggested to William Haynes, the general counsel at the Pentagon, that a few acquittals might enhance Guantánamo’s reputation for fair treatment, as had been true of the war crimes trials of the Nazis in Nuremburg, Haynes was horrified. “We can’t have acquittals! We’ve got to have convictions!” Davis quoted the top Pentagon lawyer as saying. “If we’ve been holding these guys for so long, how can we explain letting them get off?”
As the FBI and other early critics had warned, the administration’s use of coercion to force confessions has created legal havoc. Impassioned disputes over the admissibility of evidence obtained through torture have crippled the administration’s efforts to prosecute many detainees. In May 2008, the Pentagon announced that it was dismissing charges against Mohammed al-Qahtani, the Saudi suspected of having been the “twentieth hijacker,” apparently because the inhumane treatment to which he had been subjected during his long interrogation in Guantánamo, all of which had been authorized by Rumsfeld, had destroyed the credibility of his confession, hopelessly tainting the case.
In one particularly poignant case in 2004, suspicions of torture caused a Marine Corps prosecutor to reluctantly drop charges against Mohamedou Ould Slahi, an alleged al-Qaeda leader in Guantánamo who was accused of helping the Hamburg cell that planned the September 11 attacks.
The prosecutor, Lieutenant Colonel Stuart Couch, had been enlisted specifically because he had wanted to help bring justice for a friend who had been the co-pilot of United Flight 175, the second plane that al-Qaeda crashed into the World Trade Center. After he pieced together the record of torture techniques to which Slahi had been subjected, however, Couch, who is a devout Christian, could no longer continue the case in good conscience. “Here was somebody I thought was connected to 9/11,” Couch told The Wall Street Journal, “but in our zeal to get information, we had compromised our ability to prosecute him.”
In February 2008, the Bush administration announced its intention to bring capital murder charges against six detainees it said were linked to the September 11 attacks, including Khalid Sheikh Mohammed. But the taint of torture loomed over these prosecutions, too. Notably missing from the list of the accused was Abu Zubaydah, one of the detainees whose waterboarding sessions had been videotaped by the CIA. The CIA’s destruction of the videotapes, which was under criminal investigation by an outside counsel by May 2008, clearly jeopardized any future prosecution of these two figures, whom the administration had previously described as key al-Qaeda leaders.
Despite Bush’s vows to hold the perpetrators accountable after the publication of photos from Abu Ghraib, as of the spring of 2008 no senior Bush administration official had been prosecuted or removed from office in connection with the abuse of prisoners. By April 2006, the nongovernmental organization Human Rights Watch estimated that more than 600 US military and civilian personnel were involved in abusing more than 460 detainees. President Bush sporadically mentioned a wish to close Guantánamo, but since September 2006, six new detainees have been sent there, including two from unspecified CIA black sites. At the same time, the US prison at Bagram air base outside of Kabul was being expanded to hold some thousand prisoners, according to Human Rights Watch. If Bush or Cheney regretted the uncounted deaths, disappearances, and torment of prisoners in their administration’s custody, or the false intelligence and contaminated prosecutions that these tactics produced, they didn’t express it.
After some dozen internal investigations, mostly by the military, a number of low-ranking enlisted soldiers and officers were convicted or disciplined for prisoner abuse. But by design, the investigations were focused downward in the chain of command, not up to those who set the policy. As Major General Antonio Taguba told The New Yorker, his investigation of Abu Ghraib was limited to the military police below, not those above him. “I was legally prevented from further investigation into higher authority,” he said. “I was limited to a box.”
The CIA, meanwhile, quietly investigated seven or more allegedly mistaken renditions of innocent victims, and sent several homicide cases resulting from prisoner abuse to the Justice Department for possible criminal prosecution, but not a single officer was charged. Instead, President Bush gave George Tenet, who presided over the creation of the CIA’s interrogation and detention program, the Medal of Freedom. One of the most flagrant instances of unjust treatment was the case of Khalid el-Masri, a German citizen who was falsely identified as a member of al-Qaeda with a similar name. Flown to Afghanistan, he was, he later said, tortured by the CIA. The female officer who pushed to keep Khaled el-Masri imprisoned in Afghanistan after his mistaken rendition was promoted to a top post handling sensitive matters in the Middle East. El-Masri, meanwhile, was denied the opportunity to bring a civil suit against the US government for his false imprisonment because the Bush administration succeeded in arguing that simply addressing the subject of rendition in a US court would violate national security. Back in Germany, he was reportedly beset by emotional problems.
By the last year of the Bush presidency, growing numbers of former administration insiders had abandoned the government with the conviction that in waging the war against terrorism, America had lost its way. Many had fought valiantly to right what they saw as a dangerously wrong turn. With Bush, Cheney, and Addington still firmly in power, it was hard to declare their efforts a success. Still, with change in the air, there was a sense that history might be on their side. Jack Goldsmith, the assistant attorney general who objected to the Justice Department memo allowing torture, moved to Boston to teach law at Harvard, where he was ironically greeted with protests because of his association with the Bush administration’s policies. Matthew Waxman who, as deputy assistant secretary of defense fought unsuccessfully to uphold the Geneva Conventions, moved to New York, where he, too, began to teach law, in his case at Columbia.
Alberto Mora, as general counsel of the US Navy, had campaigned within the Pentagon to end the coercive methods used at Guantánamo. He left the administration as a pariah in the eyes of some Pentagon colleagues but was given the John F. Kennedy Foundation’s Profiles in Courage Award in 2006 for speaking out. Most of the FBI agents who opposed “enhanced” interrogation techniques retired and joined private security firms, taking vast amounts of wisdom about Islamic terrorism with them.
In Charlottesville, Virginia, Phillip Zelikow, the director of the 9/11 Commission, who returned to teaching history at the University of Virginia, tried to take stock. In time, he predicted, the Bush administration’s descent into torture would be seen as akin to Roosevelt’s internment of Japanese-Americans during World War II. It happened, he believed, in much the same way, for many of the same reasons. As he put it, “Fear and anxiety were exploited by zealots and fools.”
—July 15, 2008