By Dan Froomkin
2:20 PM ET, 05/ 4/2009
As torture chronicler extraordinaire Mark Danner has pointed out, one of the great paradoxes of the torture scandal "is that it is not about things we didn't know but about things we did know and did nothing about."
It was, for instance, in December 2002 that Dana Priest and Barton Gellman first reported on the front page of the Washington Post that American interrogators were subjecting detainees to "stress and duress" techniques. James Risen, David Johnston and Neil A. Lewis first told the world about waterboarding in May 2004.
But that doesn't mean that the rest of us are as guilty as the people who committed the crimes -- or that those who ordered those crimes should avoid accountability.
Jacob Weisberg now joins Michael Kinsley, however, in arguing that the nation's collective guilt for torture is so great that prosecution is a cop-out. Kinsley, as I noted on Friday, wrote: "If you're going to punish people for condoning torture, you'd better include the American citizenry itself...Prosecuting a few former government officials for their role in putting our country into the torture business would not serve justice or historical memory. It would just let the real culprits off the hook."
And here is Weisberg, writing in Newsweek: "By 2003, if you didn't understand that the United States was inflicting torture upon those deemed enemy combatants, you weren't paying much attention. This is part of what makes applying a criminal-justice model to those most directly responsible such a bad idea. The issue we need to come to terms with is not just who in the Bush administration did what, but our collective complicity in their decision....Prosecuting Bush and his men won't absolve the rest of us for what we let them do."
There are two big problems with this argument, however. While it's true that the public's outrage over torture has been a long time coming, one reason for that is the media's sporadic and listless coverage of the issue. Yes, there were some extraordinary examples of investigative reporting we can point to, but other news outlets generally didn't pick up these exclusives. Nobody set up a torture beat, to hammer away daily at what history I think will show was one of the major stories of the decade. Heck, as Weisberg himself points out, some of his colleagues were actually cheerleaders for torture. By failing to return to the story again and again -- with palpable outrage -- I think the media actually normalized torture. We had an obligation to shout this story from the rooftops, day and night. But instead we lulled the public into complacency.
Secondly, while it's certainly worth exploring why any number of people were either actively or passively complicit in our torture regime -- and I'm all for some national self-flagellation here -- that has nothing to do with whether senior administration officials willfully broke the law, and whether they should be held accountable. It doesn't change the law.
Salon blogger Glenn Greenwald has repeatedly marveled at the Washington elite's nearly lockstep opposition to criminal prosecutions. Here he is last month: "The very same pundits and establishment journalists who today are demanding that we forget all about it, not look back, not hold anyone accountable, are the very same people who...played key roles in hiding, enabling and defending these crimes. In light of that, what is less surprising than the fact that, almost unanimously, these very same people oppose any efforts to examine what happened and impose accountability?"
And here he is in January: "Now added to the pantheon of 'liberal' dogma is the shrill, ideological belief that high government officials must abide by our laws and should be treated like any other citizen when they break them....Apparently, one can attain the glorious status of being a moderate, a centrist, a high-minded independent only if one believes that high political officials (and our most powerful industries, such as the telecoms) should be able to break numerous laws (i.e.: commit felonies), openly admit that they've done so, and then be immunized from all consequences. That's how our ideological spectrum is now defined."
Meanwhile, Philip Gourevitch writes for the New Yorker about who, exactly, has been held accountable thus far: "It was exactly five years ago that some of the photographs that Charles Graner and his comrades took at Abu Ghraib were aired on CBS's 'Sixty Minutes' and published in this magazine. At that time, the Administration claimed that [Corporal Charles A. Graner, Jr., the military-police officer in charge of the night shift] was the mastermind of the abuse represented in the photographs, and that they showed nothing more than the depravity of a group of rogue soldiers who had fallen under his sway. Yet it became almost immediately apparent—and has been confirmed repeatedly in the years since, most recently with President Obama's decision to release four Bush Administration memorandums seeking to establish a legal justification for the use of torture—that the Abu Ghraib photographs showed not individuals run amok but American policy in action."
Graner remains in prison, serving ten years. "His superior officers enjoy their freedom, and C.I.A. interrogators, who spent years committing far worse acts against prisoners than Graner did even in the darkest days at Abu Ghraib, have been assured immunity.
"But, if full justice remains impossible, surely some injustices can be corrected. Whenever crimes of state are adjudicated—at Nuremberg or The Hague, Phnom Penh or Kigali—the principle of command responsibility, whereby the leaders who give the orders are held to a higher standard of accountability than the foot soldiers who follow, pertains. There can be no restoration of the national honor if we continue to scapegoat those who took the fall for an Administration—and for us all."
Senate Judiciary Committee Chairman Patrick Leahy writes in a Boston Globe op-ed about the recently released "torture memos": "This was not an 'abstract legal theory,' or 'hypothetical,' as Alberto Gonzales dismissively described in testimony before the Senate Judiciary Committee. These were specific techniques, authorized by high-ranking US government officials and used on real people. We have prosecuted people for these kinds of acts against Americans, and condemned other nations for sanctioning these methods....
"The apparent predetermined outcome of these legal memos raises the question of where the demand for this outcome and for approving these policies arose. Press accounts indicate that these were not the results of requests from CIA officers on the ground and in the field, but arose through pressure from senior administration officials in Washington....
"I still believe my proposal for a Commission of Inquiry remains the best way to move forward with a comprehensive, nonpartisan, independent review of what happened. Torture was and is against the law. Condoning it puts the men and women who bravely serve in our own armed forces at risk. It disregards the values that make this country great. Torture is illegal, immoral, and wrong. That is why Obama ended these practices.
"Let us reaffirm our guiding principles as a nation by joining together to come to a shared understanding of what happened and why. The risk of failing to learn from our mistakes is that they will be repeated."
I wrote on Friday (also see Harper's blogger Scott Horton) about a video in which former secretary of state Condoleezza Rice seemingly restated President Nixon's view that if the president does it, it's not illegal. "[B]y definition, if it was authorized by the president, it did not violate our obligations under the Conventions Against Torture," she said, after being questioned by Stanford University students.
Alec MacGillis writes in The Washington Post about Rice trying to explain her torture decisions yesterday -- to a fourth-grader. And afterward, Rice was pressed to clarify her remarks by an Al Jazeera television crew.
This time, Rice said: "Let me be very clear: The president said he would not authorize anything that was illegal. It was not legal because he authorized it; it was because he said he would do nothing illegal and the justice department and the attorney general said that it was legal."
Mark Mazzetti and Scott Shane, writing in the New York Times, take us back to Bush's issuance in June 2003 of the standard proclamation to mark the United Nations International Day in Support of Victims of Torture.
"The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment," the proclamation said.
Not surprisingly, the CIA freaked.
But that's just the top to a long article -- full of anonymous sources -- chronicling how the "consensus of top administration officials about the C.I.A. interrogation program, which they had approved without debate or dissent in 2002, began to fall apart."
They write: "The real trouble began on May 7, 2004, the day the C.I.A. inspector general, John L. Helgerson, completed a devastating report. In thousands of pages, it challenged the legality of some interrogation methods, found that interrogators were exceeding the rules imposed by the Justice Department and questioned the effectiveness of the entire program."
But even after 2006, "Mr. Cheney and top C.I.A. officials fought to revive the program. Steven G. Bradbury, the head of the Justice Department's Office of Legal Counsel and author of the recently declassified 2005 memorandums authorizing harsh C.I.A interrogations, began drafting another memorandum in late 2006 to restore legal approval for harsh interrogation."
And: "When Mr. Bush finally reauthorized C.I.A. interrogations with an executive order in July 2007...forced nudity was banned, and guidelines for sleep deprivation were tighter....But Mr. Cheney and his allies secured other victories. The executive order preserved the secret jails and authorized a laundry list of coercive methods."
Peter Finn and Carrie Johnson write in The Washington Post that the recently resolved case of Ali Saleh Kahlah al-Marri "suggests that as the government pushes forward with plans to prosecute detainees held at Guantanamo Bay, Cuba, it may again have to accept lesser sentences for those who were subjected to physical and psychological abuse."
Bush had Marri "swept out of federal court and into a U.S. Navy brig so he could be interrogated without the legal protections afforded by the criminal justice system."
But: "By removing Marri from the courts in June 2003, the Bush administration effectively sacrificed the ability of prosecutors to throw the book at Marri when he was returned to the system, military and legal experts say."
They also write: "The fear that some Guantanamo cases are not prosecutable in federal court has sharpened debate within the Obama administration about the need to maintain military commissions, in which the rules of evidence are less stringent, according to sources involved in the discussions."
Michael Isikoff and Mark Hosenball write for Newsweek that "a Justice Department special counsel is quietly ratcheting up his probe into... the CIA's destruction of hundreds of hours of videotape showing the waterboarding of two high-value Qaeda suspects."
And Deepak Chopra writes in a San Francisco Chronicle op-ed: "This is one of those moments when painful truth is the only way to heal.
"People don't want to hear about bad things from the past when the present is loaded down with more than enough bad things. But inconvenience and fatigue aren't good excuses. There is anger from the left — and not just the left — about an inexcusable Bush policy. There are demons in the closet, and shutting the door on them won't make them go away. Better to deal with it now, when a new president's idealism is still fresh. It will take idealism to face the torture issue. Otherwise, any truth commission will either turn into a vengeance squad or go the other way and sweep too much under the rug.
"The more the right wing tries to justify the torture policy, the worse they look. Using national security to justify torture is just a bald-faced attempt to hide the truth. What really went on was simple. The Bush administration felt that Al-Qaida could not be defeated while still preserving what America stands for."