The Bush/Cheney Legacy: Acceptance of Torture and Dismantling of the Rule of Law

The release of the CIA Inspector General's report containing some of the details of what the Bush administration called "enhanced interrogation techniques" and the rest of the civilized world calls "torture" has brought former Vice-President Cheney out of his cave to revive the question of whether or not torture works. The fact that the question of 'do the ends justify the means' is even part of the conversation tells us the depths to which we have descended as a country thanks to the Bush administration.

Andrew Sullivan says it well:

"...the question of torture - and the United States' embrace of inhumanity as a core American value under the presidency of George W. Bush - remains, in my view, the pre-eminent moral question in American politics.

This is what Bush and Cheney truly achieved in their tragic response to 9/11: two terribly failed, brutally expensive wars, the revival of sectarian warfare and genocide in the Middle East, the end of America's global moral authority, the empowerment of Iran's and North Korea's dictatorships, and the nightmares of Gitmo and Bagram still haunting the new administration.

But what they did to the culture - how they systematically dismantled core American values like the prohibition on torture and respect for the rule of law - is the worst and most enduring of the legacies."

A perfect illustration of Mr. Sullivan's point is the lunacy from Rep. Peter King after the announcement that Attorney General Holder was launching a preliminary investigation (more on that later) into detainee abuses. King said:

"It's bullshit. It's disgraceful. You wonder which side they're on," he said of the attorney general's move, which he described as a "declaration of war against the CIA, and against common sense."

When Holder was talking about being 'shocked' [before the report's release], I thought they were going to have cutting guys' fingers off or something -- or that they actually used the power drill," he said.

Pressed on whether interrogators had actually broken the law, King said he didn't think the Geneva Convention "applies to terrorists," and that the line between permitted and outlawed interrogation policies in the Bush years was "a distinction without a difference."

So in the demented mind of Congressman King we actually have to cut fingers off or drill holes in people's heads before the line is crossed? Sickening.

King apparently hasn't read the Hamdan decision, in which the Supreme Court said that the Geneva Conventions apply to all detainees, or the War Crimes Act which includes in the definition of torture:


(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering.

That would include things like revving a drill next to the head of a hooded man, staging a mock execution, threatening to kill the detainee's children and sexually abuse his mother and female relatives in front of him-all of which were in the IG report.

King also hasn't read the Convention Against Torture, signed by Ronald Reagan, which explicitly states "no exceptional circumstances whatsoever...as a justification for torture." Not even a terrorist attack and an attempt to legitimize an illegitimate war by torturing detainees into giving the president and vice-president a link between Al Qaeda and Saddam Hussein, Mr. King. Not even then.  

Never mind the fact that many of those tortured were never proven guilty of anything. Again according to the IG report they were "thought to be withholding information" and their treatment was based on "assessments that were unsupported by credible intelligence."

The real answer to the question of whether torture works, and the answer that should be said loudly and clearly to Mr. Cheney, Rep. King, and anyone else who shares their twisted view is, IT DOESN'T MATTER, IT'S ILLEGAL.

Which brings me back to Attorney General Holder's investigation. While I applaud Mr. Holder for his efforts, I'm discouraged by the apparent limits placed on the Special Prosecutor. According to AG Holder's statement:

"That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals."

The presidential statement was similar:

"The President has said repeatedly that he wants to look forward, not back, and the President agrees with the Attorney General that those who acted in good faith and within the scope of legal guidance should not be prosecuted."

If this is followed what it does is draw a distinction between "good" torture and "bad" torture, establish as law the OLC memos which justified the use of torture, as well as send the message to future presidents that if they can get some DOJ flunky like John Yoo to write a legal justification for their actions they can do whatever they want without fear of reprisal based on the defense that it was "within the scope of legal guidance" at the time.


In my opinion, the proper course of action comes from the Center for Constitutional Rights:

"The attorney general must appoint an independent special prosecutor with a full mandate to investigate those responsible for torture and war crimes, especially the high ranking officials who designed, justified and orchestrated the torture program.

We call on the Obama administration not to tie a prosecutor's hands but to let the investigation go as far up the chain of command as the facts lead. We must send a clear message to the rest of the world, to future officials, and to the victims of torture that justice will be served and that the rule of law has been restored."

I'll close with two quotations from one of our Founders, Thomas Paine. First from Common Sense:

"...in America the law is king" and "in free countries the law ought to be king; and there ought to be no other."  

And from Dissertations:

"The executive is not invested with the power of deliberating whether it shall act or not; it has no discretionary authority in the case; for it can act no other thing than what the laws decree, and it is obliged to act conformably thereto. . . ."