No Silver Lining

No Silver Lining (1999)

"We do not torture."
--George W. Bush, November 7, 2005

"We have long since made clear that a state of war is not a blank check for the President..."
--Sandra Day O'Connor

Don't miss a terrific article by Jane Mayer in a recent issue of The New Yorker. The piece centers on Alberto J. Mora, General Counsel of the Department of the Navy, and his considerable efforts (until his departure) to bring to light the internal machinations that lead to codifying the Bush Administration's use of torture as a policy. The connections between operatives in the Pentagon and the Office of the Vice-President are spelled out. The article leaves no doubt that upper-level Bush insiders at the Justice Department ignored concerns expressed by Mora and others and actively implemented cruelty against detainees in violation of the Geneva Convention and international treaties approved by Congress.

A few highlights:

Mora was shocked when [Head of the Naval Investigative Service, David] Brant told him that the abuse wasn't “rogue activity” but was “rumored to have been authorized at a high level in Washington.” The mood in the room, Mora wrote, was one of “dismay.” He added, “I was under the opinion that the interrogation activities described would be unlawful and unworthy of the military services.” Mora told me, “I was appalled by the whole thing. It was clearly abusive, and it was clearly contrary to everything we were ever taught about American values.”

Mora thinks that the media has focused too narrowly on allegations of U.S.-sanctioned torture. As he sees it, the authorization of cruelty is equally pernicious. “To my mind, there's no moral or practical distinction,” he told me. “If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America -- even those designated as ‘unlawful enemy combatants.' If you make this exception, the whole Constitution crumbles. It's a transformative issue.”

[...]

In his meeting with [the Pentagon's general counsel and protégé of Cheney's influential chief of staff, David Addington, William] Haynes, Mora told me, he said that, whatever its intent, what Rumsfeld's memo [giving formal approval for the use of “hooding,” “exploitation of phobias,” “stress positions,” “deprivation of light and auditory stimuli,” and other coercive tactics ordinarily forbidden by the Army Field Manual] permitted was “torture.”

According to Mora, Haynes replied, “No, it isn't.”

Mora asked Haynes to think about the techniques more carefully. What did “deprivation of light and auditory stimuli” mean? Could a prisoner be locked in a completely dark cell? If so, could he be kept there for a month? Longer? Until he went blind? What, precisely, did the authority to exploit phobias permit? Could a detainee be held in a coffin? What about using dogs? Rats? How far could an interrogator push this? Until a man went insane?

Mora drew Haynes's attention to a comment that Rumsfeld had added to the bottom of his December 2nd memo, in which he asked why detainees could be forced to stand for only four hours a day, when he himself often stood “for 8-10 hours a day.” Mora said that he understood that the comment was meant to be jocular. But he feared that it could become an argument for the defense in any prosecution of terror suspects. It also could be read as encouragement to disregard the limits established in the memo. (Colonel Lawrence Wilkerson, a retired military officer who was a chief of staff to former Secretary of State Colin Powell, had a similar reaction when he saw Rumsfeld's scrawled aside. “It said, ‘Carte blanche, guys,' ” Wilkerson told me. “That's what started them down the slope. You'll have My Lais then. Once you pull this thread, the whole fabric unravels.”)

[...]

The authorization of harsh interrogation methods which Mora had seen was no aberration. Almost immediately after September 11th, the Administration had decided that protecting the country required extraordinary measures, including the exercise of executive powers exceeding domestic and international norms. In January, 2002, Alberto Gonzales, then the White House counsel (he is now the Attorney General), sent a memo to President Bush arguing for a “new paradigm” of interrogation, declaring that the war on terror “renders obsolete” the “strict limitations on questioning of enemy prisoners” required by the Geneva conventions, which were ratified by the United States in 1955. That August, the Justice Department's Office of Legal Counsel, which acts as an in-house law firm for the executive branch, issued a memo secretly authorizing the C.I.A. to inflict pain and suffering on detainees during interrogations, up to the level caused by “organ failure.” This document, now widely known as the Torture Memo, which Addington helped to draft, also advised that, under the doctrine of “necessity,” the President could supersede national and international laws prohibiting torture.

[...]

Just a few months ago, Mora attended a meeting in Rumsfeld's private conference room at the Pentagon, called by Gordon England, the Deputy Defense Secretary, to discuss a proposed new directive defining the military's detention policy. The civilian Secretaries of the Army, the Air Force, and the Navy were present, along with the highest-ranking officers of each service, and some half-dozen military lawyers. Matthew Waxman, the deputy assistant secretary of defense for detainee affairs, had proposed making it official Pentagon policy to treat detainees in accordance with Common Article Three of the Geneva conventions, which bars cruel, inhumane, and degrading treatment, as well as outrages against human dignity. Going around the huge wooden conference table, where the officials sat in double rows, England asked for a consensus on whether the Pentagon should support Waxman's proposal.

This standard had been in effect for fifty years, and all members of the U.S. armed services were trained to follow it. One by one, the military officers argued for returning the U.S. to what they called the high ground. But two people opposed it. One was Stephen Cambone, the under-secretary of defense for intelligence; the other was Haynes. They argued that the articulated standard would limit America's “flexibility.” It also might expose Administration officials to charges of war crimes: if Common Article Three became the standard for treatment, then it might become a crime to violate it. Their opposition was enough to scuttle the proposal.

In exasperation, according to another participant, Mora said that whether the Pentagon enshrined it as official policy or not, the Geneva conventions were already written into both U.S. and international law. Any grave breach of them, at home or abroad, was classified as a war crime. To emphasize his position, he took out a copy of the text of U.S. Code 18.2441, the War Crimes Act, which forbids the violation of Common Article Three, and read from it. The point, Mora told me, was that “it's a statute. It exists -- we're not free to disregard it. We're bound by it. It's been adopted by the Congress. And we're not the only interpreters of it. Other nations could have U.S. officials arrested.”

[...]

In Mora's view, the Administration's legal response to September 11th was flawed from the start, triggering a series of subsequent errors that were all but impossible to correct. “The determination that Geneva didn't apply was a legal and policy mistake,” he told me. “But very few lawyers could argue to the contrary once the decision had been made.”

Mora went on, “It seemed odd to me that the actors weren't more troubled by what they were doing.” Many Administration lawyers, he said, appeared to be unaware of history. “I wondered if they were even familiar with the Nuremberg trials -- or with the laws of war, or with the Geneva conventions. They cut many of the experts on those areas out. The State Department wasn't just on the back of the bus -- it was left off the bus.” Mora understood that “people were afraid that more 9/11s would happen, so getting the information became the overriding objective. But there was a failure to look more broadly at the ramifications.

“These were enormously hardworking, patriotic individuals,” he said. “When you put together the pieces, it's all so sad. To preserve flexibility, they were willing to throw away our values.”

I apologize for the long passages, but it's easy to see why this article is so crucial. The abuses documented in U.S. detention facilities are not due to the actions of "a few bad apples." Instead, they are explicitly the result of calculated policy undertaken in the highest echelons of the Bush Administration.

This,

Please tell Cheney and Rumsfeld I'm sorry if my organs fail...

[Photograph from Salon]

and much much more, was done in our names. So here's today's quiz. Does the picture above depict:

a._____ A war crime
b._____ Official Bush Administration policy
c._____ Rumsfeldian carte blanche
d._____ All of the above

I'd make a joke about Fox News spinning torture with a silver lining as "a good thing" -- but, as you probably could guess, that imbecilic claim is a regular straight-faced talking point:

Next on Fox: The up side to genocide.

[Screen shot seen on Think Progress]