So Torture Is Legal?
By Anne Applebaum, The Washington Post, 17 June, 2004
To understand the magnitude of what may have gone on in America's secret prisons, you
don't need special security clearance or inside information. Anyone who wants to connect
the dots can do it. To see what I mean, review the content of a few items now easily found
on the Internet.
Item 1: The "torture memo." Written in August 2002 by the Justice Department's
Office of Legal Counsel, at the request of the CIA and then the White House, this memo
argues that it "may be justified" to torture al Qaeda suspects. The memo, posted
last weekend on The Post's Web site, also speculates that international law, which
categorically prohibits torture, "may be unconstitutional."
Item 2: The "Rumsfeld memo." This document, unearthed by the Wall Street
Journal, was written in March 2003 by a Pentagon working group. It declared not only that
the American president has the power to evade international law and torture foreign
prisoners but that interrogators who follow the president's commands can, in addition, be
held immune from prosecution.
Item 3: The Abu Ghraib photographs. Remember what they show: not just torture but guards
who appear absolutely certain of their legal and moral right to torture, as well as a
large number of unidentified personnel, standing around and watching.
Item 4: The "dog testimony." Two Army dog handlers assigned to Abu Ghraib have
submitted sworn statements, again obtained by The Post, asserting that military
intelligence officers told them to use dogs to frighten prisoners. The Army had said that
any use of dogs in interrogations would have needed approval from the U.S. military
commander in Iraq.
As I say, connect the dots: They lead from the White House to the Pentagon to Abu Ghraib,
and from Abu Ghraib back to military intelligence and thus to the Pentagon and the White
House. They don't, it is true, make a complete picture. They don't actually reveal whether
direct White House and Pentagon orders set off a chain of events leading to the abuses at
Abu Ghraib, prisoner deaths in Afghanistan or other uses of torture we haven't learned
about yet.
But who will fill in the blanks? Here is the tragedy: Despite the easy availability of
evidence, almost nobody has an interest in pushing the investigation as far as it should
go.
Clearly the administration will not ever, of its own volition, tell us what the White
House knew and when the White House knew it: There's an election coming up. As if to
underline this point, the president ducked and dodged last week when asked at a news
conference about torture, declaring that "the instructions went out to our people to
adhere to the law." But which law? The Geneva Conventions? Or the law as defined by
secret memos?
Unfortunately, Congress has no real motive to find the answer either. After a bit of
obligatory spluttering, the House has gone silent. On Monday some Democrats on the House
Armed Services Committee tried to call on the Defense Department to hand over documents
related to Abu Ghraib. The Republican leadership quashed the move. Meanwhile, Sen. John
Warner's Armed Services Committee, conducting the only active investigation on Capitol
Hill, is moving at a leisurely pace. With only a few working days left before the summer
recess, it's hard to see how there will be much in the way of a comprehensive report ready
before the elections.
The military is conducting its own inquiries, of course. But without political support,
the military alone will be unable to push further, to uncover who, exactly, gave the
military its orders, and which political decisions created the conditions that made abuse
possible. The press is hard at work too, at least that part of it that is not supporting
the idea that the Constitution somehow permits torture, and always has. But articles,
television reports and blogs are useful only insofar as they move the public.
For in the end, it is public opinion that matters, and it is on public opinion that the
fate of any further investigations now depends. Voters have some items of information
available to them, as listed above. Voters -- ultimately the most important source of
pressure on democratic politicians -- can petition their congressmen, their senators and
their president for more. If they don't, the elections will be held, the subject will
change. Without a real national debate, without congressional approval, without much
discussion of what torture actually means and why it has so long been illegal at home and
abroad, a few secret committees will have changed the character of this country.
Indeed, if the voters can't move the politicians, and the politicians aren't courageous
enough to act alone, we may wake up one morning and discover that torture has always been
legal after all. Edmund Burke, a conservative philosopher, wrote, "All that is
necessary for the triumph of evil is that good men do nothing." It looks as if he was
right.
applebaumanne@washpost.com
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