Below is my column today in USA Today on the torture report. This is the slightly longer version that ran on the Internet.
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As Shakespeare wrote in the Merchant of Venice, “truth will out.” The release of the report of the Senate Intelligence Committee was the long-awaited truth about one of this country’s most shameful chapters. Like water, truth has a way of finding its way out even against the determined obstruction. However, the question is what truth came out this week in the hundreds of pages of highly disturbing, and often disgusting, details of the “enhanced interrogation” program.
There are obvious “truths” about waterboarding being a crime and how torture is a poor vehicle for obtaining intelligence.
Then there are truths that are less obvious but equally clear in the pages of this report. Here are three such inconvenient truths that emerge from the Torture Report:
Truth #1: The CIA proved it is immune from legal restraints
As damaging as this report is to the reputation of the Agency, it reaffirms the underlying assumption that made the torture program possible: CIA officials enjoy effective immunity from the law.
The report details crimes that run gamut of the criminal code. It starts with torture itself that is not just a crime but a war crime. However, the report also details – and names some of those responsible – for destroying evidence, lying to Congress and obstructing investigations into the torture program. Former Director Michael V. Hayden is cited for actively telling employees to lie and for personally giving false information to Congress . CIA Deputy Director John McLaughlin was expressly called on the Senate floor by Sen. Dianne Feinstein for giving false information to Congress. CIA General Counsel Scott Muller in 2003 is quoted as lying to the White House about the existence of videotapes on the interrogations. The report details false statement after false statement given by past directors and high-ranking officials to Congress, to the White House and to the American people. It also details how, after CIA were told about inquiries into the legality of the torture program, officials promptly ordered the destruction of video tapes to get rid of the evidence.
Yet, what did all of that prove? It proved that the CIA could commit all of these crimes, even war crimes, and not face a single federal charge. Not one. The only thing more chilling than the torture carried out in our name was the fact that it was carried out with utter impunity.
Truth #2: The Justice Department First Facilitated Torture And Then Obstructed Its Prosecution
One of the least discussed “truths” in this study is the ignoble role played by the Justice Department. During the Bush Administration, figures like Jay Bybee and John Yoo issued the infamous “torture memos” that gave legal cover for the programs. The only thing more tortured than the subjects was the legal authority used to justify their abuse. However, the report also details how the Bush and Obama administrations obstructed the investigation at every turn. Six months after Congress began to investigate the program and was demanding to interview key players, Attorney General Eric Holder suddenly announced the Justice Department’s own investigation under John Durham. As soon as the Justice Department investigation was announced, virtually every key player refused to speak with congressional investigators in light of the internal investigation. As expected, Durham later found that not a single crime could be found. Not in the destruction of evidence. Not in the false statements. Certainly not in the torture itself.
Holder and the Justice Department proved as much enablers as did their predecessors in the Bush administration. Soon after taking office, President Obama shocked many by going to the CIA and assuring employees that, despite his recognition of the torture, no one would be prosecuted. Holder and the Justice Department played as great a role in fulfilling that pledge as Justice did in facilitating the program itself.
Truth #3: Torture remains a question of effectiveness for many in government
Perhaps the most chilling truth is that the CIA and key American leaders continue to deny the very premise of both international and domestic laws. The key response of the CIA was to insist that the program was “effective” – the very rationale that is expressly rejected in the Convention Against Torture and other laws. It does not matter if torture was useful or productive. It is a war crime. We should know. We wrote that language saying that no nation can justify torture due to “exceptional circumstances” or effectiveness. Yet, the very agency that committed these crimes has continued to argue that those crimes were productive exercises.
The current debate over whether torture works reveals how far we have fallen as a nation in our view of this war crime. Not only does our embrace of torture threaten our own soldiers and citizens abroad, we have lost the moral high ground internationally. The truth is that torture could easily return to the United States so long as it is viewed as a practical question instead of a moral one.
Jonathan Turley, a law professor at George Washington University, is a member of USA TODAY’s Board of Contributors.
davidm2575:
Some federal “color of law” statutes essentially use a legal concept that is akin to “Chinese Water Torture” – each individual incident may not be a crime by itself but if perpetrated over a longer period of time it violates federal law, called a “pattern & practice” of corruption.
Chinese Water Torture may be the best metaphor to use to define torture.
Ex: kidnapping a citizen off the street and locking them up for 1 day may be questionable as to being torture but locking them up for over 4000 days without charge would definitely be torture.
Also comparing waterboarding performed by special forces troops simulating torture (on one another) is not an accurate comparison. Their team-mates are not trying to harm them or kill them. If a foreign power does it, the torture victim never knows the real intent of their torturers.
Ahhhh, Sandi. Far be it from me to subject you to Professor Turley explaining why torture is illegal and why it’s wrong not to prosecute the torturers. I wouldn’t want you to feel uncomfortable.
Inga, I would love to have a chat with JT. I respect him completely, although there have been instances where his love of the law becomes more “in love with the law.” It is impossible to have laws for every little thing, so we find the closest law and use that. Never more so than Roe vs. Wade decision based on right to privacy. It was convenient and produced the desired effect. The law is society’s overall view, to a point. With every law there is the human component questioning the offense (if there truly is one) requiring an intolerable “price” to be paid.
This is where I read the black and white of the law and the gray area of punishment fit the crime. In our 9/11 comparisons, if a woman was told by the man talking in front of her that he was involved in planning the attack, and hearing that she shoots him in the leg so he can’t run away, and calls the police. Does she get charged for the shooting? If so, and she’s found guilty in an area where minimum sentence would be 20 years in prison, would she be sentenced and required to serve? Of course not. Because this was a unique circumstance. Support for her by the American people would be intense.
We are a country of laws, we are also a compassionate country. Other countries have absolutes no matter what. We don’t, and for good reason. There are exceptions. There is our innate sense of fairness. Our humanity requires more thought. We can’t change laws every day to be certain her treatment is fair. We make an exception. Mine would probably be don’t charge in the first place. You and JT might disagree.
You are going to ask “humanity vs. torture” and I’m going to respond with “torture vs. watching your husband jump to his death” and maybe for you there is always a law that must be followed. And I would strongly disagree. I am not a lawyer, though my husband swears I’d be a damned good one!
@Paul C. Schulte
” have you not seen Gone with the Wind. All fine young Southern ladies were prone to having the vapors (usually because their corsets were too tight and they couldn’t breath).”
I have seen ‘Gone with the Wind’ and have an originally published May1936 book on it too. I still don’t know what it is, and I’m not from the south. I’m a Yankee replanted to Texas.
Inga, Professor Turley submitted us all to torture today. I always listen when JT is on TV, but we had to listen to Olberman, too! That is far worse than loud music!
If the US uses torture on enemy combatants, how do you think they will treat our troops when captured? You don’t think its more likely they will be tortured in retaliation? Sheesh, think.
Inga – the enemy does torture our combatants. Do you live in an information cave?
Olly, interesting to see how the Federalist article changed your tune on torture, from your earlier comments upstream on this thread to the ones after you posted the Federalist article.
So, let’s get this straight. Obama is wrong for subordinating the rule of law, while torturers have a ‘national security’ imperative so when they subordinate the rule of law it’s acceptable? Speaking of hypocrisy…see that reasoning can be turned on it’s head.
@davidm2575 ~ Completely agree!!!!
@davidm2575
“I plead ignorance of the law. Sorry, but I never made it to law school. I can read, though, and I find it incredulous to think that the 14th Amendment is interpreted to protect the rights of enemy combatants. Certainly it protects the rights of strangers living in our land, but not all people — not enemies of the nation”.
http://ts3.mm.bing.net/th?id=HN.608010336910378864&pid=1.7
I will have to file this thought in the pure speculation file, but since the Obama administration announced at the beginning of the President’s first term that there would be no war crimes prosecutions, I have suspected that the decision was based on two policy determinations:
a. Prosecuting CIA and lower level military officers would be a mere repeat of the injustice we witnessed when a few enlisted soldiers were sacrificed for the Abu Ghraib atrocities and falsely labeled rogue personnel acting alone.
b. Following the evidence trail wherever it lead would inevitably have implicated Pres. Bush, Vice-President Cheney, John Ashcroft, George Tenet and assorted White House insiders, and it was likely thought that prosecutions at that level would tear the country apart.
As a consequence we have a festering wound that will not heal. Withholding the release of the Senate report would not have prevented the information coming out through other means. And treating this debacle as something that we can simply forget and move on without more is a fantasy.
This is a crisis of our own creation and we need to learn to face the truth. We can begin by recognizing that we can call beating a child half to death “parental discipline,” but that is a lie. We can call torture “enhanced interrogation techniques,” but that is also a lie. We only invent new names for old practices when we perceive a need to mislead. We perceive a need to mislead when we know, or have reason to know, that what we propose to do is wrong.
Of course, we can put our fingers in our ears and join Andrea Tantaros in shouting, “The United States of America is awesome!” until we’re blue in the face. We can even round up the surviving remnants of “Up With People” and send them out on tour. Or we can be adults. That is the real debate.
Mike – you completely misconstrued the Abu Grahib incidents. I think you should go back and take a look at the whole aftermath, not just your jaded view of what happened.
http://www.hrweb.org/legal/cat.html
UN Convention Against Torture.
Inga, regarding the UN Convention Against Torture, did you not notice that the United States never ratified it? Also, nowhere in it does it mention water or waterboarding as being torture.
@Inga ~ “it was never legal. Professor Turley spells that out clearly. Don’t you believe him?”
There are just as many attorney’s who say it was legal. I just think it’s reprehensible that Feinstein would release a one sided report that cost the tax payers $40 million dollars to make. Its a partisan hack job and many points have already been proven to be sketchy.
So, do conservatives here think Yoo was right that “enhanced interrogation”, aka torture and Professor Turley was wrong in saying it is and was illegal? I wonder why.
Inga – I will go on record to say that I think Turley is wrong in his interpretation of the law.
Bradley Manning describes being tortured after being arrested in 2010. Why didn’t the Intell Report about torture from Madame Feinstein include Pvt. Manning torture?:
http://youtu.be/FlqNe_wBS18
http://youtu.be/9-j5gFavjZ8
Professor Turley on Keith Olberman discussing Obama letting John Yoo the ‘torture lawyer’ for Bush/ Cheney off the hook. JT starts at the 1:30 mark.
Olly, thank you so much for your newest comment. If you attack a country you are putting those fighting for you at risk of torture if they are captured. It seems we’re telling anyone who wants to not to worry, we won’t hurt you.
Jill,
I have a difficult time trying to condemn a policy intended to enhance national security. Why can’t we be both the most charitable and compassionate nation on the planet and the most ruthless if attacked? If you willingly violate our national security then you should expect our response to be swift and without limits. That does not mean abandon rules of engagement; just don’t handcuff our force from its duty to protect.
Even if we attempt to remove revenge and sadism from the torture argument, officials in future governments must feel a risk of penalty for using torture or America will torture again. There must be a deterrent for these war criminals.
Why not focus on the government attorneys and top officials (more than order-takers)? One government attorney that authorized torture was promoted to a federal judge instead of being disbarred.
Simply disbarring all of the torture attorneys and revoking medical licenses for torture doctors would have a huge impact and be a great start.
Jettexas, it was never legal. Professor Turley spells that out clearly. Don’t you believe him?
Inga – torture has a very short history of being illegal. I am talking really short. Professor Turley and I disagree on what constitutes torture.
I feel a little bad for the conservatives here who are so happy with Professor Turley’s stance on Presidential overreach, specifically the House Republicans’s lawsuit over the ACA, in light of Professor Turley’s strong stance and history on the wrongness and illegality of torture and thathe isin favor of prosecution.
@Paul C. Schulte ~ Does he mean vapors from an e-cigarette or something stronger? lol Good thing I’m not from Colorado, California or Alaska. 🙂
Msjettexas – have you not seen Gone with the Wind. All fine young Southern ladies were prone to having the vapors (usually because their corsets were too tight and they couldn’t breath).
@Mike Appleton
Msjettexas: “It is usually wise not to make life-and-death decisions, or determine war policy, while enduring a bout with the vapors”.
I accept your apology but I do not do “vapors” or whatever that is referring.
I do have a differing opinion and I will not be shamed by it and nor will any insults make me change my mind. I’m tired of the “Kum Bah Yah” mentality of liberals. This was legal at the time it occurred, it’s war. Go ahead and insult me, put me down, tell me to go kill myself, I’ve heard it all because that’s what most Liberals do or say, I’m used to it.
I do, however, appreciate your apology.
Jill, have you noticed who on this thread and the other thread yesterday are coming out against torture and who is defending it? I recall a discussion not too long ago inwhich some conservatives were also upset that Obama seemed to be holding up the release of this Torture Report. Now it’s released who is upset? We should all be upset that no prosecutons will be going forward. It’s sad we’ve come to this.