Yes, Bush Administration Used Torture
A bipartisan commission of elder statesmen confirms what we've known for years.
The bipartisan Constitution Project Task Force on Detainee Treatment has released a 600 page report concluding that “U.S. forces, in many instances, used interrogation techniques on detainees that constitute torture. American personnel conducted an even larger number of interrogations that involved ‘cruel, inhuman, or degrading’ treatment. Both categories of actions violate U.S. laws and international treaties.”
For inexplicable reasons, they’ve decided to release the report in the least-user-friendly format possible, a series of readable slides. The folks at Lawfare have kindly provided a plain text version. Among the highlights:
The events examined in this report are unprecedented in U.S. history. In the course of the nation’s many previous conflicts, there is little doubt that some U.S. personnel committed brutal acts against captives, as have armies and governments throughout history.
But there is no evidence there had ever before been the kind of considered and detailed discussions that occurred after September 11, directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.
Despite this extraordinary aspect, the Obama administration declined, as a matter of policy, to undertake or commission an official study of what happened, saying it was unproductive to “look backwards” rather than forward.
[…]
Our report rests, in part, on the belief that all societies behave differently under stress; at those times, they may even take actions that conflict with their essential character and values. American history has its share of such episodes, like the internment of Japanese-Americans during World War II, that may have seemed widely acceptable at the time they occurred,but years later are viewed in a starkly different light. What was once generally taken to be understandable and justifiable behavior can later become a case of historical regret.
[…]
There is no way of knowing how the government would have responded if a Democratic administration were in power at the time of the September 11 attacks and had to bear the same responsibilities. Indeed, one of the controversial methods examined here—capture and rendition of terror suspects to foreign governments known to abuse people in their custody—had its first significant use during the Clinton administration, well before September 11.
Any effort to understand how extraordinary decisions were reached on approving harsh treatment of detainees must begin with a recognition of the extraordinary anxiety that enveloped the nation after September 11. The greatest fears of Americans and their leaders in that period were of further attacks from those who had demonstrated that they were capable of wreaking havoc in New York and Washington. The abstract problems that might come with unchecked executive power were not a priority or an immediate concern for most Americans inside and outside of government.
[…]
Perhaps the most important or notable finding of this panel is that it is indisputable that the United States engaged in the practice of torture.
This finding, offered without reservation, is not based on any impressionistic approach to the issue. No member of the Task Force made this decision because the techniques “seemed like torture to me,” or “I would regard that as torture.”
Instead, this conclusion is grounded in a thorough and detailed examination of what constitutes torture in many contexts, notably historical and legal. The Task Force examined court cases in which torture was deemed to have occurred both inside and outside the country and, tellingly, in instances in which the United States has leveled the charge of torture against other governments. The United States may not declare a nation guilty of engaging in torture and then exempt itself from being so labeled for similar if not identical conduct.
[…]
The second notable conclusion of the Task Force is that the nation’s highest officials bear some responsibility for allowing and contributing to the spread of torture.
The evidence for this finding about responsibility is contained throughout the report, but it is distilled in a detailed memo showing the widespread responsibility for torture among civilian and military leaders. [See Appendix 2] The most important element may have been to declare that the Geneva Conventions, a venerable instrument for ensuring humane treatment in time of war, did not apply to Al Qaeda and Taliban captives in Afghanistan or Guantánamo. The administration never specified what rules would apply instead.
The other major factor was President Bush’s authorization of brutal techniques by the CIA for selected detainees.
The CIA also created its own detention and interrogation facilities — at several locations in Afghanistan, and even more secretive “black sites” in Thailand, Poland, Romania and Lithuania, where the highest value captives were interrogated.
The consequence of these official actions and statements are now clear: many lower-level troops said they believed that “the gloves were off ” regarding treatment of prisoners.
[…]
Much of the torture that occurred in Guantánamo, Afghanistan and Iraq was never explicitly authorized. But the authorization of the CIA’s techniques depended on setting aside the traditional legal rules that protected captives. And as retired Marine generals Charles Krulak and Joseph Hoar have said, “any degree of ‘flexibility’ about torture at the top drops down the chain of command like a stone — the rare exception fast becoming the rule.”
There is a whole lot more to the report, but those are the highlights of what I’ve read thus far. None of this is truly new information. But the passage of time and the composition of the panel should help end the debate on this.
Conor Friedersdorf (“Bipartisan Elites: Yes, the Bush Administration Totally Tortured“):
Its findings, based on a thorough two-year investigation, are endorsed by members in good standing of the U.S. establishment. Americans who’ve studied the facts have long known that Team Bush tortured.
[…]
So say the elder statesmen.
They include Asa Hutchinson, who served in the Bush Administration as a Department of Homeland Security undersecretary from 2003 to 2005, and as the administrator of the Drug Enforcement Administration before that; James R. Jones, a former U.S. ambassador to Mexico and a Democratic member of the House of Representatives for seven terms; Talbot D’Alemberte, a former president of the American Bar Association; legal scholar Richard Epstein; David Gushee, a professor of Christian ethics; David Irvine, a former Republican state legislator and retired brigadier general; Claudia Kennedy, “the first woman to receive the rank of three-star general in the United States army”; naval veteran and career diplomat Thomas Pickering; William Sessions, director of the FBI in three presidential administrations; and others.
They all agree that Team Bush tortured people.
Jacob Heilbrunn (“The Constitution Project’s Vital Terrorism and Torture Report“) adds:
The point would seem to be simple: you can’t purport to stand for human rights abroad even as you systematically violate them. This legacy continues to haunt the CIA, which was suborned into acting illegally and whose new chief, John Brennan, now claims he can’t really remember with any degree of exactitude what he did or did not witness during the Bush years.
[…]
The lawless lawmakers, the proponents of torture—the Addingtons, Yoos, and Cheneys—will doubtless continue to asseverate that they acted, and would always advocate acting, to preserve American freedoms by endorsing the methods they employed to try and extort confessions and information from the bad guys. But apart from the question whether torture even elicits reliable information, it is staggering that they would conclude that it takes the Stalinist conveyor belt system of torture to safeguard the country. Perhaps the Constitution Project’s timely report will help preserve us in the future from the fanatics who jeopardize what they purport to protect.
The problem with all this is what to do about it. Monday, I noted that California Governor Jerry Brown is thumbing his nose at the Supreme Court on prisoner release. While outrageous, I fully understand why he would do so given the enormous political pressures he’s under. Similarly, while I opposed the use of waterboarding, rendition, and all the rest even in the earliest days after 9/11 and even while strongly supporting the Bush administration, I fully understood why the people with the awesome responsibilities of safeguarding the nation in those days might have thought torture was “worth it.”
Thus, I’m left in the untenable position of simultaneously believing that the Bush administration acted illegally in many cases and yet not thinking that Bush, Cheney, Yoo, and company ought go to jail for these acts. Indeed, I share this odd position with the current administration. Heilbrunn is, not unreasonably, outraged by this:
Where does President Obama fit into this tawdry saga? He has essentially held his nose when it comes to the torture issue. He stated at the outset that he wanted to “look forward.” This was an evasion of his responsibilities. How can you know where you are without knowing where you came from? So thanks to Obama’s pusillanimity there has never been a national commission to study what went wrong.
The cynic in me says that this is simply power protecting power: Obama is president now and he doesn’t want anyone second guessing him down the road. But it’s also, I think, something much more: sitting in the big chair gives him an appreciation of how hard it is to fill. Indeed, more than a decade after 9/11, Obama himself is still making compromises with the law, including the Constitution which he swore to uphold, in the name of safeguarding the Republic.
Note: Doug Mataconis was working on a similar post, “Report: U.S. Practiced Torture After 9/11,” at the same time. This is important enough for two posts.
“The cynic in me says that this is simply power protecting power: Obama is president now and he doesn’t want anyone second guessing him down the road. But it’s also, I think, something much more: sitting in the big chair gives him an appreciation of how hard it is to fill. Indeed, more than a decade after 9/11, Obama himself is still making compromises with the law, including the Constitution which he swore to uphold, in the name of safeguarding the Republic.”
I suspect it is neither. I think the best explanation is that Obama knew how divisive prosecuting Bush Administration figures for torture would be, and given the breadth of other issues confronting him in January 2009, chose to take a pass on this.
And of course, he was overwhelmed by goodwill from the Republican Party for doing so, right?
“I fully understood why the people with the awesome responsibilities of safeguarding the nation in those days might have thought torture was “worth it.””
And so they get a pass. Don’t you think that the people with the aweseom responsibilities of safeguarding the Third Reich also thought what they were doing was “worth it”? Or that those who were safeguarding Chile from the Socialists?
And no, I’m not calling Cheney and co. Nazis…
Do we simply give a pass to every official in every government that approves atrocities, as long as they think it’s “worth it”? Have we reached a point where we’ve decided that if you get to a certain level of power the laws no longer apply? If so, what’s the point of having these laws in the first place?
I understand your sympathy for these people. They faced a terrible decision that most of us will never have to. But they chose wrong. They chose an illegal and immoral course of action. And if there are no punishments, then all our claims to moral superiority as a nation are meaningless.
If the president does it, it’s still illegal. Former President Bush should be prosecuted to the full extent of the law. The sticking point may be what the full extent of the law is.
I still want to be the one who gets to go arrest that coward, Cheney.
Of course I want to sit on the Death Panels too.
Neither is ever going to happen.
@Dave Schuler:
Prosecuting a predecessor would essentially set a clear and permanent limit on the scope of presidential power, and no president will do that.
@wr: We give Adams a pass for the Alien and Sedition Acts, Wilson a pass for all manner of 1st Amendment violations, and FDR a pass for the incarceration of Japanese-American children in concentration camps. The last, in particular, makes torture of terrorist suspects seem mild to me.
@Dave Schuler: Given an honest jury, I’d guess he’d get off on nullification. Tried in DC, though, he’d hang.
Funny.
Hundreds of thousands of kids sit rotting in jail for selling nickle bags of pot on the street corner.
But these douche-bags institutionalized a torture program…and they are sitting in their mansions.
If there is a hell…Cheney and his cronies can’t be put there fast enough.
Bush43? I don’t blame him so much. His biggest problem was that he couldn’t say no to Dick.
Consider this thought experiment. Is just following orders an acceptable excuse or not? If it is not, how can one tolerate the situation where you hold people guilty for following orders but let those who gave the orders go scot free?
If you hold both those following orders and those giving the orders as blameless, then the law has no meaning.
You can reasonably either hold to account those who perform the illegal and immoral acts as well as those who ordered them to commit them or only those who gave the orders. Excusing the higher ups can’t be justified in any event.
@James Joyner:
The difference is that there was an open question regarding the constitutionality of internment and, of course, neither FDR nor anyone defending him ever claimed we did not intern Japanese Americans.
Here, however, Bush, Cheney et al do not dispute whether torture is illegal, nor do they argue that we should commit torture. Instead, they argue that they did not do some of the things they clearly did do, and that the things they’ve admitted doing do not constitute torture. Both are factually wrong.
More importantly, with both FDR and Bush, they both committed acts that did not improve our safety and probably even made us less safe. We know, for example, that none of the well-trained people who conduct investigations believe that torture is effective. So why on earth would we as a law-abiding society permit government officials to breach the law to achieve an end that all of the professionals said could not be achieved through law-breaking?
It might be mentioned that the internment of even citizen Japanese-Americans was deemed constitutional and continues to remain so. In other words whatever the morality Roosevelt did nothing illegal.
The younger Bush, like his father, was weak – a wimp. Wimps need to prove to the world that they are not wimps.
Bush 43 does not get a break on this one. He was in charge.
This is a tough one for me. I despise torture and said from the start that this was torture.
But do I want a country where President X has former President Y arrested? That smacks of African or South American regimes. It makes me very uncomfortable. Will we arrest a president for doing something he believed to be legal and later discovered was not? Will we arrest a president for minor charges?
On the other hand, are these guys above the law? No one is supposed to be above the law.
I have to think about this.
This is hardly a news flash.
It will probably never happen. Nixon’s pardon was something of a precedent. Nixon lost his job, but that’s about it. If Obama goes after Bush and his team for their crimes, that sets a precedent as well. Will a future administration then go after Obama and his team, say, for drone attacks?
Powerful people get away with things ordinary people don’t. The ruling class, to a certain extent, have each other’s backs, even if they are political enemies.
@michael reynolds: I am also very conflicted; however, the long term corrosive power of not doing the right thing needs to be considered. The fact that Nixon was pardoned and allowed to live out a life of luxury and influence should give us pause in allowing the short term expediency of forgetfullness.
@Dave Schuler: “The sticking point may be what the full extent of the law is.” The sticking point might be whether the law is Constitutional as written. A law that criminalizes inflicting “severe” emotional pain, but not non-severe emotional pain, likely falls short of the Constitutional prohibition against Congress punishing conduct that a person of ordinary intelligence can not figure out what is innocent activity and what is illegal. A 522-page explanation of what is torture, highlighting international rulings from countries ordinary Americans have never heard of, sort of concedes the point.
President Obama should never have let Bush, Cheney and Rumsfeld off the hook. They are all guilty of war crimes and should have been held accountable. Thousands of people from both sides killed over a trumped up war that many of us already knew was exactly that. The second Iraq war will go down in history as one of our worst endeavors ever. Shame on those who still think it was a just war.
What this thread needs is Bithead to remind me why torture is acceptable, because somehow I keep forgetting.
@Scott:
Bush and Cheney are being treated better than Nixon. Ford’s pardon of Nixon clearly implied that Nixon had committed crimes. Here, there isn’t a governmental conclusion or even implication that what Bush and Cheney did was illegal.
If Obama wants to avoid the political blowback from prosecuting Bush et al, he at least owes it to the country to grant them pardons. This would acknowledge Bush’s illegal conduct, but it would enable him to avoid a penalty. Obama can’t just pretend nothing bad or illegal happened. He needs to deal with the blowback from a pardon just like Ford had to deal with it.
@Spartacus:
I think that’s downright Solomonic.
@Spartacus:
I would like to endorse that suggestion along with Michael’s reaction, above.
I would also urge commenters not to indulge in cynicism. Politicians behave cynically because a cynical or uninterested reaction from the voters enables them to do so. If you don’t like it, say so. Remember the wisdom of Ethel Merman’s character in It’s a Mad, Mad, Mad, Mad World
@Spartacus:
I think that would be a reasonable way to treat Bush and Cheney. I think Yoo, Addington, etc. should not be pardoned, though. As appointees, I see nothing wrong with them standing trial for their actions.
@michael reynolds:
Much to my wife’s dismay, I’m sure the rest of the things I say today will pull me back down to ordinary at best.
@Spartacus:
Well, that’s what wives are for.
Do the proposed pardons pardon war crimes?
@Spartacus: DIdn’t Holder already make a statement that there were no prosecutable crimes to the extent interrogators relied upon the DOJ legal opinion? I think there were a number of people critical of this a few years ago, but I think the Nixon analogy fails.
The primary “victim” here is khalid sheikh mohammed. The last polls I saw indicated people didn’t care whether he was tortured. That’s a little different than Nixon victimizing fellow American citizens from a different political party. Its different than innocent Japanese Americans too. KSM is a monster.
EDIT: Not suggesting KSM is a monster means anything goes, just that I don’t think there would be a pardon consequence.
James, I understand what you are saying. The conflict is real. But conflicts like these are a type of test, one that we actually experience very seldom in our lives. And it is not what we abhor that defines our morality, but what we will not tolerate. I have no doubt that Bush, Cheney, et al woefully failed that test. I fear you are treading dangerously close to the edge.
I am not writing this from any perceived moral high ground. I am absolutely certain I have my own moral blind spots – this is simply not one of them. (If I knew what those blindspots were, well, they wouldn’t be blind spots…)
@PD Shaw: I didn’t follow Holder’s comments on this closely enough to know if that was his view, but at the very least it seems to me that in order to avoid prosecution based on reliance upon a legal opinion, you’d need at the least the following:
1. The legal opinion had to have been written in good faith. John Yoo’s opinion was universally mocked as a sham, which suggests that someone of his credentials did not honestly conclude there was no torture.
2. Those who relied on the opinion had no reason to believe that it was legally wrong. I don’t know if Holder could prove that Bush et al knew it was wrong or not.
Greetings:
The use of torture by Republican administrations is much more common than is generally recognized. Why, back in the very late ’60s, I was kidnapped by the apparatchiks of the Nixon cabal, renditioned to an unknown far off third or fourth world country where I was forced through countless miles (that Euro-lefty mapmakers call kilometers or some such) of near impenetrable, thorn-filled jungle while having to carry burdens of more than half my body-weight, in triple-digit incipient global warming heat, while being provided with no shelter ay all, having to fight my phobic reactions while being made to sleep amid all types of bugs and snakes, not to mention snakes and bugs, and being fed the kind of detritus that led directly to the beginning of the McDonald’s Obesity Epidemic and all that follows from it. And after all that I was dumped, unceremoniously and without any visible means of support, like food stamps or a job, on the streets of the Bronx which seemed to be collapsing around about my ears. This is unprogressive-American and must be stopped. If I had only be eligible to be droned, my life would have be much happier however shorter.
So, can I get a little be of that progressive sympathy ??? Would it help if I cued up Johnny Ray’s “Cry Me a River” ???
@Spartacus: I don’t see the original Holder statement, but there is a reference to it here:
The subsequent review declined to press charges for want of evidence of a crime:
@michael reynolds:
Let’s consider the alternatives.
A. a country where President X may have former President Y arrested if there’s cause.
B. a country where President X has former President Y arrested regardless of cause.
C. a country where President X never has former President Y arrested regardless of cause.
I’d take A hands down. I think you’re worried about B. Worrying too much about B gets you C.
@Dave Schuler:
I basically agree. In theory, in the abstract. In practice though it will look like political retaliation. Then, too, I don’t want administrations of either party hamstrung by fears of prosecution. That should be reserved for the most egregious cases. Does this qualify? I don’t know. I’m uncharacteristically undecided.
Torturers always think it’s worth it, and always excuse themselves by claiming their doing it for the good of their nation. When the KGB tortured political dissidents, do you think they stood around twirling their moustaches and gloating about how evil and dastardly they were? Of course not. They thought they were the good guys, and that the torture, however regrettable, was necessary and justified in order to protect their country from subversion.
I mean, really, if we’re not going to prosecute people for murder, torture and rape because they thought their acts of murder, torture and rape were somehow justified, then we’re really going to have to give a pass to half the gangsters and gangbangers facing charges in this country.
@michael reynolds:
Do you want a country were President Y can commit any number of crimes, secure in the knowledge that President X will never have him arrested? That smacks far more of a banana republic regime to me than your scenario does.
Yes, I want a country where President X has former President Y arrested IF PRESIDENT Y IS A LAWBREAKER.
@Dave Schuler: Prosecutor’s shouldn’t be bringing criminal charges unless they believe they have admissible evidence that would support a verdict based upon lack of reasonable doubt that the crime occurred.
No offense to the great conversation going on in this thread, but these documents contain far more in them than just the torture admission. And while it’s really important to work through the Bush Administration/Torture question, it should be noted that among the other thing the findings contain is that there are most likely innocent people who have been, and continue to be, held for over 11 year in Guantanamo Bay.
For all the discussion of Japanese interment camps, I’d love discussion of what to do with individuals we are currently detaining.
Need a little perspective here. If Bush should be jailed for throwing water in people’s faces, Obama should be executed for his assassination campaign.
If Obama is guilty of murder (by way of assassination), Bush is probably guilty of genocide…
@michael reynolds:
I disagree.
@michael reynolds:
That does not smacks of South American regimes. The problem of politics in South America is the opposite: there is a wide tolerance of bad behavior coming from politicians and political parties are conivent with other parties when that´s convenient. With the exception of Leopoldo Galtieri and Rafael Videla(That went to jail or to house arrest when they were almost dying) all the military leaders from the 60´s and 70´s died in liberty.
And most of the South American presidents of the 60´s and 70´s deserved to rot in the jail. That´s one of the biggest failures of the center-left regimes after democratization.
@PD Shaw:
No, it was not. The big problem is that we are not talking about torture as a punishment, but as interrogation technique. Torture is a horrible torture technique because the victim is going to say anything to stop the “interrogatory”. He will even confess killing Jesus. so, the same people that blatantly failed during 9/11 devised a program of interrogation based on torture, no surprise. From the intelligence standpoint that was a horrible idea.
Besides that, Guantanamo is a big problem. There are lots of innocent people there, people that can´t be send to back to the US or to their home countries because no one will accept them. The US had basically to bribe Palau so that a few Uighurs could be accepted there. That´s ridiculous.
@Let’s Be Free: You can try diminishing what Bush did all you want, but people HAVE been executed for less. BTW, it wasn’t just the waterboarding, if you’ve read or understood anything above.
@matt bernius:
This does make me a little sick to my stomach, if true. My understanding is nobody will accept them, or at least nobody that we will agree to send them to.
Wait a minute. I thought it was common knowledge at this point that we’ve been holding guys we know are innocent (or at least guys we know we have no way of convicting of anything) for years basically because we can’t prosecute them and we’re scared of releasing them? This is news?
I admit to fatigue here. I was outraged about this stuff 5-10 years ago. My outrage did precisely nothing and apparently convinced no one else. I used my votes as well as I figured I could, and here we are. Now I’m just tired of it. If any of you feel like getting fired up and trying to get something done, that would be nice.
I apologize for my cynicism/defeatism. I know it’s not good.
@Franklin: It makes me ill too, but this is the America that you and I collectively voted for, so it’s the one we get.
@Rob in CT:
As much news as “we committed torture.”
It’s more a reminder that the finding confirms that we are still holding some innocent people in Guantanamo.
“I fully understood why the people with the awesome responsibilities of safeguarding the nation in those days might have thought torture was “worth it.””
Considering that:
1) There were no WMD’s in Iraq.
2) The administration didn’t even try to secure the Iraqi Armies ammo depots (i.e., sites which could have had WMD’s, and definitely did have hundreds of thousands of tons of ammunition).
3) There were no ties to Al Qaida.
4) The was was not *anything* which we were promised.
There is not honest way of concluding that the administration’s higher-level officials were ever honest, or were ever motivated by protecting the USA, in any way, shape or form.
@Rob in CT: That makes two of us.
It really makes me wonder just how long this issue will drag out. 2025? 2040? Is any one of our presidents in this generation going to have the fortitude to simply decide that Congressional obstructionism isn’t an excuse for not doing the morally right thing, even if it’s unpopular and even if there’s a possibility of a bad outcome? It’s not like these people have been convicted (or even charged!); they’re simply rotting in prison cells. That problem doesn’t go away unless they die or the right person says, “Oh, yeah, they shouldn’t be here. What? The good senator from Nebraska thinks we need to keep these people in cages to…what, prevent the Sod House Museum from being attacked? Well, they’re all moving to fwcking Nebraska.”
Meanwhile, those of us who’ve spent the last 10 years decrying the policies that are clearly illegal and immoral as they trickle down from the presidency are all quite weary of the whole thing. It’s obvious that not enough people care. It’s obvious that these aren’t priorities. These are brown people taken from half a world away and housed somewhere else; we don’t have a draft (so most Americans have no vested interest), and the financial statements all live in a completely separate building from our other government operations.
As a bonus, people like LBF think it does us good for our government to actually act like the Gestapo, but they reserve that word for times when “government thugs” try to make them wait a few days for a gun or pay into an insurance pool so their neighbor can get diabetes treatments.
Bush and Cheney’s continued freedom makes war criminals of us all. We’re well beyond politics. Obama has now aided and abetted war crimes.
Time to seat grand juries. The swamp must be drained.