A Climate That Nurtures Torture
Published on Sunday, May 9, 2004 by the Los Angeles Times
A Climate That Nurtures Torture
by Rosa Ehrenreich Brooks

CHARLOTTESVILLE, Va. — Donald H. Rumsfeld announced Friday the appointment of a special commission to investigate the abuse of Iraqi prisoners by U.S. military personnel. But if the Defense secretary is casting about for someone to blame, he needn't look far. What happened was the predictable result of the Bush administration's "anything goes" approach to national security.

Since Sept. 11, high-level administration spokespeople — including the president — have repeatedly asserted that the executive branch of the U.S. government is free to ignore both the laws of war and the U.S. Constitution, and that executive branch actions are essentially unreviewable by the courts.

It began shortly after Sept. 11, with President Bush's breezy announcement that he wanted Osama bin Laden "dead or alive — either way. It doesn't matter to me." The administration also offered a multimillion-dollar reward for Bin Laden, although such statements and bounties have traditionally been viewed as contrary to the laws of war and U.S. military regulations. Soon after, Bush signed a secret intelligence order permitting the CIA to expand covert actions, which, as one senior U.S. intelligence official put it, gave the agency "the green light to do whatever is necessary. Lethal operations that were unthinkable pre-Sept. 11 are now underway."

In his 2003 State of the Union address, Bush continued to imply that legal niceties were of little importance in the war on terror, commenting that while some Al Qaeda members had been arrested, others had "met a different fate." What kind of fate? "Let's put it this way," he said: "They are no longer a problem to the United States."

Vice President Dick Cheney, Atty. Gen. John Ashcroft and Rumsfeld wasted no time establishing their own tough-guy credentials after 9/11. Rumsfeld insisted that military detainees in Afghanistan "do not have any rights" under the Geneva Convention. At home, Ashcroft asserted that foreign terrorist suspects "do not deserve the protections of the American Constitution." Cheney stuck to the same script, insisting that terrorism suspects "don't deserve" judicial "guarantees and safeguards." Never mind the fact that due-process protections are designed not to give the guilty what they "deserve" but to ensure that the innocent, who may be wrongly accused, get the rights that they deserve.

The Bush administration has been similarly cavalier about the use of torture-like practices against detainees. In 2002, a series of media stories reported that U.S. detainees in Afghanistan were hooded, deprived of food, water, sleep and pain medications, forced to remain in agonizing positions for hours, kept naked, and beaten. The truth of these allegations was tacitly acknowledged by numerous senior national security officials (none willing to be named). As one official said, "If you don't violate someone's human rights some of the time, you probably aren't doing your job. I don't think we want to be promoting a view of zero tolerance on this."

No high-level administration official either denied the reports or publicly promised to investigate. Indeed, their response consisted of little more than winks and nods: As J. Cofer Black, then head of the CIA's Counterterrorist Center, told the House and Senate intelligence committees, "all you need to know [is this]: There was a before 9/11, and there was an after 9/11. After 9/11, the gloves come off."

Over the last year, prisoners released from Guantanamo Bay have alleged they too were subjected to brutal and humiliating detention conditions and interrogations. Maj. Gen. Geoffrey Miller, the former Guantanamo commander recently sent to oversee Iraqi detention facilities, wrote in a report last fall (based apparently on his Guantanamo experiences) that military guards in Iraq should be "enablers for interrogations," actively "engaged in setting the conditions for successful exploitation of the internees." When pressed on how conditions at Abu Ghraib prison would be reformed to prevent further abuses, Miller told reporters, "Trust us. We are doing this right."

"Trust us" has been the sole assurance the Bush administration has offered in the face of concerns about possible abuses. In its response to court cases brought on behalf of detainees at Guantanamo, the administration has insisted that executive branch actions at Guantanamo cannot be reviewed by any U.S. court. When judges on the U.S. 9th Circuit Court of Appeals asked Justice Department lawyers whether the administration position would be the same "even if the claims were that it was engaging in acts of torture or that it was summarily executing the [Guantanamo] detainees," the administration's lawyers said yes.

Similarly, in recent U.S. Supreme Court arguments involving two U.S. citizens being held by the U.S. military as alleged "enemy combatants," the administration insisted that it had the right to designate any citizen an enemy combatant on the basis of secret and unchallengeable evidence and to hold such a person as long as it wanted, without charge or any right to counsel, and with no mechanism for the detainee to challenge detention conditions. (The administration claimed that allowing access to counsel would undermine the "trust and dependency that is essential to effective interrogation.") When asked directly by Justice Ruth Bader Ginsburg whether the administration would acknowledge any judicial check to prevent the use of torture against detainees, Deputy Solicitor Gen. Paul Clement ducked the question. He disparaged "judicial micromanagement" and informed the court that "you have to trust the executive."

But as the recent revelations made clear, "trust" in executive benevolence and good judgment is no safeguard against abuses.

Only when graphic photos of prisoner abuse sparked a worldwide scandal did the Bush administration explicitly condemn brutality and humiliation as tactics to be used against prisoners. Now, as the public outcry against the Abu Ghraib abuses mounts, the administration is trying to spread the blame around. The low-level enlisted soldiers directly involved seem destined to face criminal charges. The administration has also been quick to point fingers at the more senior military personnel supervising Abu Ghraib and to designate civilian contractors and the CIA as potential villains as well.

But high-level administration officials — Rumsfeld, Cheney, Ashcroft and the president — need to take a long, hard look in the mirror. The president should accept direct responsibility for having created a climate of impunity in which the Abu Ghraib abuses were likely to occur, if not inevitable. Bush needs to acknowledge that even in time of war, human rights and the rule of law must be respected.

This means respecting both the letter and the spirit of the Geneva Convention and the U.S. Constitution and allowing the courts to play their proper constitutional role in reviewing executive actions.

If we fail to hold our leaders accountable for what happened — if we sacrifice our most cherished American values in the name of national security and simply replace Saddam Hussein's Iraqi torture chambers with our own — we will find one day that the statement best characterizing our current situation comes not from Bush but from Pogo: "We have met the enemy, and he is us."

Rosa Ehrenreich Brooks is an associate professor of law at the University of Virginia and a former senior advisor at the State Department's Human Rights Bureau.

Copyright 2004 Los Angeles Times