December 20, 2014
from Salon Website
The evidence for the prosecution is clear.
Human decency requires
putting the Bush administration
We've seen it in Ferguson, Missouri, with Darren Wilson getting off scot-free for killing Michael Brown. And we've seen it again in Staten Island, with Daniel Pantaleo getting off scot-free for killing Eric Garner.
So why shouldn't scores of CIA agents, contractors, higher-ups and other government officials - including former President Bush and Vice President Dick Cheney - get off scot-free for torturing hundreds of detainees, including some complete innocents?
That, apparently, is the reigning logic following the release of the Senate torture report.
But just as genuine legal experts have been appalled by the perversion of normal and normative legal process in the grand jury proceedings in St. Louis County and Staten Island, there's been a sharp line drawn by human rights lawyers and advocates in response to the Senate torture report, calling for prosecutions to match the crimes.
A 2011 report from Human Rights Watch, "Getting Away With Torture - The Bush Administration and Mistreatment of Detainees," argued, among other things, for the criminal prosecution of former President Bush, Vice President Cheney, Defense Secretary Rumsfeld and CIA Director George Tenet.
Nothing has changed since then, HRW executive director Kenneth Roth told Salon.
Although the Senate report's focus is narrower than that earlier report - ignoring the issue of renditions and everything done by military as well - where it does focus, it has only reinforced what HRW has been arguing.
As for the legal obligations involved,
Ben Emmerson, the U.N. special rapporteur on counter-terrorism and human rights, agreed.
Woven through such calls for the pursuit of justice, there's a similar subtext: that the welter of information presented needs to be carefully and critically sifted through in the light of our highest values, as well as the principles of international law, which America has done so much to help create based on those same values.
The need for such action is only made more urgent by the fact a new Pew poll shows 56 percent of Americans believe the lie that torture provided intelligence that helped prevent terrorist attacks, and related that 51 percent think that,
As the Intercept's Dan Froomkin tweeted,
But it's not just the media.
America's entire elite infrastructure is indicted in this state of affairs, which is why America so desperately needs to have broad-based, high-profile torture trials on the model of the Nuremberg Trials following World War II - trials that will both hold those responsible accountable for what they've done, and force the whole nation to engage in a profound moral reorientation, on the order of what Martin Luther King Jr. once called for.
This is not an easy path, to be sure, but it's far easier than decade after decade of endless war in which America's moral purpose becomes increasingly lost in the shadows of our own unconfronted fears.
Al-Qaida's whole aim with the 9/11 attacks was to draw the U.S. into a self-destructive conflict in the Middle East, and to expose and exploit our contradictions. And thanks primarily to the Bush/Cheney delusional response (and Obama's limited willingness to alter direction), that's exactly what has happened.
We did not narrowly focus on bringing those who attacked us to justice.
We swiftly attacked Afghanistan, short-circuiting any chance of negotiating to swiftly put bin Laden and his associates on trial, we then let bin Laden escape, while becoming enmeshed in Afghan internal conflicts, after which Bush said he was "truly… not that concerned" about bin Laden.
We then invaded Iraq - which had nothing to do with 9/11, and was profoundly hostile to al-Qaida - and set off a series of internal conflicts which eventuated in the creation of ISIL, which is far more dangerous and has far more international support than al-Qaida ever dreamed of.
In short, everything the U.S. has done since 9/11 has been seriously misguided at best, and Obama's policy changes have merely trimmed around the edges of what Bush and Cheney started, because he has been obsessed with trying to quickly unify the country, papering over profound differences, rather than facing up to the genuine deep difficulties of overcoming them.
We saw this, for example, when he released a set of torture memos in response to a lawsuit in April 2009, and said:
Just how we were supposed to "move forward with confidence" without reexamining how we had gone wrong, Obama never bothered to explain.
It would be hard enough were mere mistakes involved, but we're talking about grave crimes that undermine the very idea of America - just as al-Qaida intended when it attacked us on 9/11.
Those mistakes cried out for correction, but instead Obama invoked the shameful, discredited Nazi Nuremberg Defense ("I was only following orders"), when he said:
Not only is this an insult to the real heroes, who spoke out against the barbarism they were tasked with, the Nuremberg Principles, which came out of the Nuremberg Trials, explicitly rejected this defense:
They also rejected the notion that those who give the orders are exempt:
These two principles aren't that hard to grasp, for anyone familiar with TV crime dramas.
Both the hit man and the man who orders the hit are guilty of murder. Street crimes, suite crimes, international war crimes - the same logic applies equally to all of them.
As already noted, earlier reports have already made it clear that crimes were committed.
The Senate report's greatest value lies in the light it sheds on competing "theories of the crime" - explanatory accounts of what happened and why, which are also familiar from TV crime dramas, particularly ones like "Law and Order," which got so much mileage out of shifting and competing theories of the crime, from the initial crime scene and eyewitness accounts to the final verdict and last comments made on it.
A theory of the crime creates a context for understanding how all the different pieces fit together.
It has to make sense in a how-things-work kind of way, what I've referred to before as the explanatory mode of "logos," but it also serves to make sense by giving them meaning, the explanatory mode of "mythos."
When 56 percent of Americans say they believe that torture provided intelligence that helped prevent terrorist attacks, they're making a claim that torture worked - which says something both about the real-world, logos-type effects that were produced, as well as about the mythos-type nature of what those engaged in torture were doing.
The need to believe in the mythos involved routinely trumps the logos side of the equation.
And yet, on five key points where arguments have been prominently pushed , evidence in the torture report and elsewhere clearly contradicts theories of the crime that would let torturers off the hook - along with those who gave the orders.
Evidence also suggests several neglected theories of the crime that provide a profoundly different view of what our recent history has been - and what our future could be, by way of contrast.
It Wasn't About Getting Information
For example, the day before the Senate torture report was released, national security blogger/journalist/author Marcy Wheeler pointed out it's a mistake to assume that getting information was the primary aim of torture, by which it should be judged.
This wasn't just her opinion - it was actually a matter of record:
The term "exploitation" includes intelligence-gathering, but it also includes spy recruitment and propaganda - politically useful, often false information, such as,
When you consider all these cases, she writes:
Difficult, indeed. But either way, it reminded me of what George Lakoff told me about the concept of "reflexivity":
The lack of discipline, oversight, reliability and candor that permeated the torture program, as revealed in the Senate torture report, has been seen by some as proof that Bush, in particular, was not in charge, ergo not responsible.
But all that flowed directly from Bush and Cheney's unhinged response to 9/11 - they were in control by being out of control, because they couldn't be otherwise. And - like the killer cops referred to above - they actively resisted normal processes that would have curbed their dangerous, deadly excesses.
In a similar abnormal fashion, Bush even tried to get Congress to authorize going to war against Iraq without bothering to have the CIA do a national intelligence estimate, the traditional formal document used to integrate all the available intelligence data into a single comprehensive analysis.
In that same forgotten blockbuster of a story, USA Today reported that the decision to invade Iraq had been made within weeks of 9/11, but without any formal decision process:
This same mind-set of panic-driven deliberate carelessness characterized the Bush administration approach to every major aspect of the war on terror, making it exceeding difficult to pin down responsibility for anything - which is precisely the point.
And yet, their responsibility is clear:
Yet, even today they and their defenders continue to pretend that they were the tough guys, the realists, the ones who protected us.
They need to stand trial in part simply so that this lie can be publicly put to rest. But the same goes for five points mentioned above, the five false theories of the crime, which need to be publicly replaced with their opposites.
The purpose of the sorts of trials we need is twofold:
With that in mind, let's consider each of the different theories of the crime in turn.
First Theory of the Crime: There was a crime. We tortured people
The first theory of the crime in any case concerns whether one even occurred.
Many torture apologists say there was no crime, but there's already an abundance of evidence to the contrary, even before the Senate torture report.
The most significant evidence it provides on this score includes:
There are others examples of the second sort, including one cited by Business Insider here.
But these two passages are sufficient, from a logos-based point of view, to establish probable cause that a crime was indeed committed - and not just a single crime, but a widespread deliberate pattern of them.
Of course there will still be strong mythos-based resistance, but that's to be expected - and it's precisely what a Nuremberg-style trial is for.
Second Theory of the Crime: Torture Was Not Effective
Despite widespread beliefs to the contrary revealed in Pew's poll, this is the most thoroughly proven point of the Senate report.
In her press release, Sen. Dianne Feinstein wrote that,
What's more, the second finding was that we have been lied to about the effectiveness:
If the program really were effective, there would be no need to lie about it, so all the evidence of misleading the public and policymakers is further evidence of ineffectiveness as well.
Most significantly, Feinstein points out,
This is particularly true of one of the most widely known claims, that torture was vital in developing key intelligence about Abu Ahmed al-Kuwaiti, Osama bin Laden's courier, the key figure in eventually locating Osama bin Laden.
This is debunked in a section, "Information on the Facilitator that Led to the UBL Operation," from page 378 to 400 in the report (Committee Study of the CIA's Detention and Interrogation Program).
Feinstein makes several other key points demolishing the effectiveness claim:
Remember, the pre-trial standard is probable cause, and with these points the report establishes probable cause for prosecuting crimes, and specifically refutes the theory of the crime that the effectiveness of the methods used justified them, regardless of how horrific they were.
Those accused may still want to argue otherwise - but they should do so at trial, not to avoid it.
Third Theory of the Crime: Torture Was Not Necessary
From a logos-based point of view, torture couldn't be necessary if it were ineffective - unless, of course, the purpose of torture was something else entirely - as, indeed, we now know it was.
But the naive, stand-alone claim that torture was necessary, regardless of whether it was effective in gaining accurate intelligence, cannot be sustained logically. So there's really no logical need to discuss evidence related to this claim.
But because it's a prominent part of the public debate, more is required. We need to consider the claim as a matter of pure mythos - in terms of what it may mean to people.
First, we should note that the claim can have significant psychological appeal, particularly to those who,
Torture may "work" psychologically for them, and the broader claim that it worked to stop terrorist attacks is simply an affirmation that, thanks to torture, they now feel back in control.
Confronting and replacing this element of mythos in our national psyche is one of the key purposes that Nuremberg-style trials would serve.
Second, we should note that even if it were the case that "torture worked" in some cases (which hasn't been shown) alternatives clearly were available, which means that it still was not necessary.
As he has testified to Congress, then-FBI Agent Ali Soufan was getting valuable information using traditional interrogation techniques when Abu Zubaydah - the first high-value al-Qaida target - was first captured, before ineffective torture techniques were begun by the CIA.
Thus, in this very first case, even if torture had been effective, it still would not have been proven necessary.
As already noted, there has never been a ticking-time-bomb threat that was thwarted by the use of torture - except of course, on Fox's "24," where it happens all the time. This is clearly an extremely satisfying fantasy for some, and it's not hard to understand why.
But it is a fantasy - an example of mythos with no grounding in logos, and one of the main reasons for holding Nuremberg-style trials is precisely to force us to relinquish such enticing, but dangerously mistaken fantasies.
Fourth Theory of the Crime: Torture Was Carefully Calibrated
The claim of careful calibration is also, ultimately, logically dependent on the claim of effectiveness.
Carefully calibrated futility is still futile, and the fact that it's futile renders the careful calibration utterly meaningless, if not Monte Python-style absurd. Still, one could at least argue for starting out with prudential guidelines of some sort, regardless of whether they could ultimately be grounded in any measure of effectiveness.
Perhaps one could be right for the wrong reason… right?
The moral significance of this argument is that a calibrated approach to torture would be evidence of a morally serious purpose, as opposed to anything from boredom and incompetence to sadism. Add to that a sincere - though misguided - belief in torture's effectiveness, and you just might wriggle out of a criminal charge, claiming a lack of criminal intent.
All that is why it matters that the CIA's torture program was not carefully calibrated - and that the CIA lied about it as well.
Indeed, the third of Feinstein's four main groupings of findings was that "The CIA's management of the program was inadequate and deeply flawed" and one of the points under this heading specifically dealt with severe personnel inadequacies:
What's more, under Feinstein's fourth main finding, that "The CIA program was far more brutal than the CIA represented to policymakers and the American public," the report directly refutes the calibration frame:
Of course, the accused should be free to dispute these findings. That's what a trial is for.
But the Senate's findings clearly contradict the "carefully calibrated" theory of the crime, and constitute probable cause that criminal conduct was involved.
Fifth Theory of the Crime: Torture Was Carried Out in Good Faith
The good faith argument is not usually made by torture apologists, but it has been made by President Obama, as noted above. Beyond running afoul of the Nuremberg Principles, there's plenty of evidence in the Senate torture report (Committee Study of the CIA's Detention and Interrogation Program) that people were not acting in good faith.
As pointed out above, the CIA itself was aware from the beginning that there were standards for it to uphold - standards it would then go on to violate.
There was also evidence of careless mistreatment of prisoners, gross mismanagement, lying to Congress, misleading the White House - the list goes on and on - all of which is simply incompatible with the notion of people "acting in good faith."
Again, there may be individuals who were acting in good faith - although this still doesn't change the Nuremberg Principles. But the proper place to sort that out is at trial.
This is yet another case in which the power of mythos is much stronger than logos. In particular, mythos often expresses a hunger for heroes, which is clearly at play here.
In the message cited above, Obama said:
This may be so. Or it may be the case that our intelligence community is largely responsible for making it a much more dangerous world than it otherwise would be.
They certainly made Iran and its environs more dangerous by helping to depose the lawfully elected Mosaddegh government back in 1953, and replacing him with the shah, for example.
Still, there are surely many individuals who deserve the praise Obama offers, whatever our quibbles with the wording. The problem is, by protecting those who've betrayed our values, Obama is praising precisely the wrong "heroes."
At the Nation, historian Jon Weiner wrote a piece highlighting some of the real heroes of this era, who are mentioned in the Senate report. One I've already mentioned - Ali Soufan.
Here's a bit of what Weiner said about some of the others:
While there's no doubt that Nuremberg-style trials would be difficult for us as a nation, those trials would not be all doom and gloom.
Heroes such as these would also play a part in the proceedings.
Their voices would be heard, their stories would be told, their shining examples of fidelity to America's highest values under the most difficult of conditions would provide us with exactly the sort of heroes that we need to write the next chapter of America's ongoing quest for perfection.
They are the ones who will help us craft a mythos that's in harmony with the logos of the underlying facts, not twisted and distorted in direct contradiction of them.
They are one more powerful reason that we as a nation need to hold Nuremberg-style trials - not just to exorcise the demons we have allowed to grow in our midst, but also to affirm and empower those who fight against them - and to ensure that their numbers will grow in the days that lie ahead.