Torture and the Rule of Law

The New Yorker's Jane Mayer, one of the country's handful of truly excellent investigative journalists over the last seven years, has written a new book -- "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals" -- which reveals several extraordinary (though unsurprising) facts regarding America's torture regime. According to the New York Times and Washington Post, both of which received an advanced copy, Mayer's book reports the following:

• "Red Cross investigators concluded last year in a secret report that the Central Intelligence Agency's interrogation methods for high-level Qaeda prisoners constituted torture and could make the Bush administration officials who approved them guilty of war crimes."
• "A CIA analyst warned the Bush administration in 2002 that up to a third of the detainees at Guantanamo Bay may have been imprisoned by mistake, but White House officials ignored the finding and insisted that all were 'enemy combatants' subject to indefinite incarceration."
• "[A] top aide to Vice President Cheney shrugged off the report and squashed proposals for a quick review of the detainees' cases . . .'There will be no review,' the book quotes Cheney staff director David Addington as saying. 'The president has determined that they are ALL enemy combatants. We are not going to revisit it.'"
• "[T]he [CIA] analyst estimated that a full third of the camp's detainees were there by mistake. When told of those findings, the top military commander at Guantanamo at the time, Major Gen. Michael Dunlavey, not only agreed with the assessment but suggested that an even higher percentage of detentions -- up to half -- were in error. Later, an academic study by Seton Hall University Law School concluded that 55 percent of detainees had never engaged in hostile acts against the United States, and only 8 percent had any association with al-Qaeda."
• [T]he International Committee of the Red Cross declared in the report, given to the C.I.A. last year, that the methods used on Abu Zubaydah, the first major Qaeda figure the United States captured, were 'categorically' torture, which is illegal under both American and international law".
• "[T]he Red Cross document 'warned that the abuse constituted war crimes, placing the highest officials in the U.S. government in jeopardy of being prosecuted.'"

This is what a country becomes when it decides that it will not live under the rule of law, when it communicates to its political leaders that they are free to do whatever they want -- including breaking our laws -- and there will be no consequences. There are two choices and only two choices for every country -- live under the rule of law or live under the rule of men. We've collectively decided that our most powerful political leaders are not bound by our laws -- that when they break the law, there will be no consequences. We've thus become a country which lives under the proverbial "rule of men" -- that is literally true, with no hyperbole needed -- and Mayer's revelations are nothing more than the inevitable by-product of that choice.

That's why this ongoing debate that Andrew Sullivan is having with himself and his readers over whether "torture is worse than illegal, warrantless eavesdropping" is so misplaced, and it's also why those who are dismissing as "an overblown distraction" the anger generated by last week's Congressional protection of surveillance lawbreakers are so deeply misguided. Things like "torture" and "illegal eavesdropping" can't be compared as though they're separate, competing policies. They are rooted in the same framework of lawlessness. The same rationale that justifies one is what justifies the other. Endorsing one is to endorse all of it.

In fact, none of the scandals of radicalism and criminality which we've learned about over the last seven years -- including the creation of this illegal torture regime -- can be viewed in isolation. They're all by-products of the country that we've become in the post-9/11 era, primarily as a result of our collective decision to exempt our Government leaders from the rule of law; to acquiesce to the manipulative claim that we can only be Safe if we allow our Leaders to be free from consequences when they commit crimes; and to demonize advocates of the rule of law as -- to use Larry Lessig's mindless, reactionary clichAf(c)s -- shrill, Leftist "hysterics" who need to "get off [their] high horse(s)".

That is the mentality that has allowed the Bush administration to engage in this profound assault on our national character, to violate our laws at will. Our political and media elite have acquiesced to all of this when they weren't cheering it all on. Those who object to it, who argue that these abuses of political power are dangerous in the extreme and that we cannot tolerate deliberate government lawbreaking, are dismissed as shrill Leftist hysterics.

All the way back in May, 2006 -- just months after the NYT revealed the illegal NSA spying program -- I wrote in my first book, How Would a Patriot Act, the following about the NSA eavesdropping scandal:

This is not about eavesdropping. This is about whether we are a nation of laws . . . . The heart of the matter is that the President broke the law, repeatedly and deliberately, no matter what his rationale for doing so was . . . .

The National Security Agency eavesdropping scandal is not an isolated act of lawbreaking. It is an outgrowth of an ideology of lawlessness that has been adopted by the Bush administration as its governing doctrine. Others include the incarceration in military prisons of U.S. citizens who were not charged with any crime or even allowed access to a lawyer, the use of legally prohibited torture techniques, and the establishment of a military detention center in Guantanamo Bay, a no-man's-land that the administration claims is beyond the reach of U.S. law. In the media and the public mind, these issues have been seen in isolation, as though they are unconnected.

In fact, all of these controversial actions can be traced to a single cause, a shared root. They are grounded in, and are the by-product of, an unprecedented and truly radical theory of presidential power that, at its core, maintains that the president's power is literally unlimited and absolute in matters relating to terrorism or national security. . . .

What we have in our federal government are not individual acts of lawbreaking or isolated scandals of illegality, but instead a culture and an ideology of lawlessness.

But those who argued such things were The Shrill Leftists, The Crazed Civil-Liberties Extremists, the Hysterics. And they still are. By contrast, Serious People understood -- and still understand -- that our leaders made complex and weighty decisions for our own Good and that terms like "lawbreaking" and "war crimes" and "prosecutions" have no place in respectable American political circles. Hence, our political leaders operate in a climate where they know they can do anything -- anything at all, including flagrantly breaking our most serious laws -- and they will be defended, or at least have their behavior mitigated, by a virtually unanimous political and media establishment. The hand-wringing over Mayer's latest revelations will be led by the very people who are responsible for what has taken place -- responsible because they decided that rampant, deliberate lawbreaking by our Government officials was nothing to get worked up over.

There are many political disputes -- probably most -- composed of two or more reasonable sides. Whether the U.S. Government has committed war crimes by torturing detainees -- conduct that is illegal under domestic law and international treaties which are binding law in this country -- isn't an example of a reasonable, two-sided political dispute. Nor is the issue of whether the U.S. Government and the telecom industry engaged in illegal acts for years by spying on Americans without warrants. Nor is the question of whether we should allow Government officials to break our laws at will by claiming that doing so is necessary to keep us Safe.

There just aren't two sides to those matters. That's what the International Red Cross means when it says that what we did to Guantanamo detainees was "categorically torture." It's what the only federal judges to decide on the question -- all three -- have concluded when they found that the President clearly broke our laws with no valid excuses by spying on our communications for years with no warrants. It's why the Bush administration has sought -- and repeatedly received -- immunity and amnesty for the people who have implemented these policies. It's because these actions are clearly illegal -- criminal -- and we all know that.

And that's true no matter how many Bush-loyal DOJ lawyers justify the behavior, no matter how many right-wing lawyers go on TV to defend the Government's conduct, no matter how many Brookings "scholars" go to The New Republic in order flamboyantly to boast how deeply complex these matters are and how only Super-Experts (like themselves) can grapple with the fascinating intellectual puzzles they pose. Displaying cognitive angst and/or above-it-all indifference in the face of unambiguously illegal and morally reprehensible government conduct isn't a sign of intellectual sophistication or political Seriousness. It's exactly the opposite. It's the hallmark of complicity with it.
Law Professor Jonathan Turley, on MSNBC last night discussing Mayer's revelations, put it this way:

[The IRC] is the world's preeminent institution on the conditions and treatment of prisoners and specifically what constitutes torture. And the important thing here is they're saying it's not a close question, that as many of us, and there are many, many of us who have argued for years that this is clearly, unmistakably a torture program; the Red Cross is saying the same.

The problem for the Bush administration is they perfected plausible deniability techniques. They bring out one or two people that are willing to debate on cable shows whether water-boarding is torture. And it leaves the impression that it's a close question. It's not. It's just like the domestic surveillance program that the a federal court just a week ago also said was not a close question. These are illegal acts. These are crimes. And there weren't questions before and there's not questions now as to the illegality. . . .

I never thought I would say this, but I think it might, in fact, be time for the United States to be held internationally to a tribunal. I never thought, in my lifetime, that I would say that, that we have become like Serbia, where an international tribunal has to come to force us to apply the rule of law. I never imagined that a Congress, a Democratic-led Congress would refuse to take actions, even with the preeminent institution of the Red Cross saying, this is clearly torture and torture is a war crime. They are still refusing to take meaningful action.

So, we've come to this ignoble moment where we could be force into a tribunal and forced to face the rule of law that we've refused to apply to ourselves.

That's the inevitable outcome when a country's political establishment decrees itself exempt from the rule of law. If the rule of law doesn't constrain the actions of government officials, then nothing will. Continuous revelations of serious government lawbreaking have led not to investigations or punishment but to retroactive immunity and concealment of the crimes. Judicial findings of illegal government behavior have led to Congressional action to protect the lawbreakers. The Detainee Treatment Act. The Military Commissions Act. The Protect America Act. The FISA Amendments Act. They're all rooted in the same premise: that our highest government leaders have the power to ignore our laws with impunity, and when they're caught, they should be immunized and protected, not punished.

When our political and media elite aren't defending the Bush administration's lawbreaking, they're dismissing its importance. David Broder believes that government crimes are mere "policy disputes" that shouldn't be punished. And here's "liberal" pundit Tim Rutten of The Los Angeles Times, acknowledging that our highest political officials ordered illegal torture, but then invoking the very common -- and indescribably destructive -- mentality of most of our Good Establishment Liberals to insist that they should not be held legally accountable:

It's true that there are a handful of European rights activists and people on the lacy left fringe of American politics who would dearly like to see such trials, but actually pursuing them would be a profound -- even tragic -- mistake. Our political system works as smoothly as it does, in part, because we've never criminalized differences over policy. Since Andrew Jackson's time, our electoral victors celebrate by throwing the losers out of work -- not into jail cells.

The Bush administration has been wretchedly mistaken in its conception of executive power, deceitful in its push for war with Iraq and appalling in its scheming to make torture an instrument of state power. But a healthy democracy punishes policy mistakes, however egregious, and seeks redress for its societal wounds, however deep, at the ballot box and not in the prisoner's dock.

To do otherwise risks the stability of our own electoral politics almost as recklessly as the Bush/Cheney regime has risked our national interests abroad.

That warped mentality -- as much as the most lawless elements of the Bush administration -- is what is responsible for the destruction of our fundamental national character over the last seven years. "Laws" and "crimes" are only for the common people and for other countries. We're too magasterial a country, our political leaders are too Important and Good, to subject them to punishment when they break our laws. That's the mentality that has created the climate of Lawlessness that defines who we are.

Yes, I'm well aware that the U.S, like all countries, was deeply imperfect prior to 9/11, and that many of the systematic excesses of the Bush era have their genesis prior to 2001. The difference (a critical one) is that what had been acts of lawbreaking and violations of our national values have become the norm -- consistent with, rather than violative of, our express values and policies. As Mayer writes in her book:

For the first time in its history, the United States sanctioned government officials to physically and psychologically torment U.S.-held captives, making torture the official law of the land in all but name.

The enactment of the new FISA bill last week was destructive for many reasons, including the fact that it legalized a regime of warrantless eavesdropping that is certain to be abused. But the far more destructive aspect of the new law is that it was just the latest example -- albeit the most flagrant -- of our political class abolishing the rule of law in this country.

It will never stop being jarring that Pulitzer-Prize-winning revelations from the New York Times that the President and the telecom industry were committing felonies for years culminated in the full-scale protection of the lawbreakers and retroactive legalization of the criminality by the "opposition party" which controls the Congress.

One cannot coherently sanction or even acquiesce to serious government lawbreaking and then feign outrage over illegal torture and other war crimes. The sanctioning of government illegality is precisely what leads to abuses like the American torture regime. Those who have spent the last seven years scoffing at Unserious, Hysterical objections to Bush lawlessness are the very people who have created this climate that they will now pretend to find so upsetting. The "rule of law" isn't some left-wing dogma that is the propriety of Leftist radicals and hysterics. It's the cornerstone of every civilized and free society, and Jane Mayer's new book is but the latest piece of evidence to prove that.

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.

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