When the Nazis came to power in Germany in 1933 and proceeded to carry
out their savagery, many in the outside world asked how this could have
happened in the land of Goethe and Beethoven. Would the people of other
societies as readily accept tyranny? Sinclair Lewis, in 1935, imagined
Americans turning to dictatorship under the pressures of economic
distress in the Depression. He called his novel, ironically, It Can't
Hannah Arendt and many others have stripped us, since then, of
confidence that people will resist evil in times of fear. When
Serbs and Rwandan Hutus were told that they were threatened, they
slaughtered their neighbors. Lately Philip Roth was plausible enough
when he imagined anti-Semitism surging after an isolationist America
elected Charles Lindbergh as President in 1940.
But it still comes as a shock to discover that American leaders
will open the way for the torture of prisoners, that lawyers will invent
justifications for it, that the President of the United States will
strenuously resist legislation prohibiting cruel, inhuman or degrading
treatment of prisoners--and that much of the American public will be
indifferent to what is being done in its name.
The pictures from Abu Ghraib, first shown to the public on April 28,
2004, evoked a powerful reaction. Americans were outraged when they saw
grinning US soldiers tormenting Iraqi prisoners. But it was seeing the
mistreatment that produced the outrage, or so we must now conclude.
Since then the Bush Administration and its lawyers have
prevented the release of any more photographs or videotapes. And the
public has not reacted similarly to the disclosure, without pictures, of
worse actions, including murder.
The American Civil Liberties Union released documents on forty-four
deaths of prisoners in US custody, twenty-one of them officially
classified as homicides. For example, an Iraqi prisoner died while being
interrogated in 2004. He had been deprived of sleep, exposed to extreme
temperatures, doused with cold water and kept hooded. The official
report said hypothermia may have contributed to his death.
Writing recently in The New Yorker, Jane Mayer described the killing of
an Iraqi prisoner, Manadel al-Jamadi, in Abu Ghraib in 2003. His head
was covered with a plastic bag, and he was shackled in a position that
led to his asphyxiation. The death was classified as a homicide. But so
far no charges have been brought by the Justice Department against the
man who had custody of the prisoner, a CIA officer named Mark Swanner.
In addition to murder and torture, humiliation and indignity have been
widely used as aids to interrogation. Time quoted at length earlier this
year from the official log of how one prisoner in Guantánamo Bay,
Cuba, was interrogated. Over a period of weeks he was questioned for as
long as twenty hours at a stretch, forbidden to urinate until finally he
"went" on himself, made to bark like a dog. His treatment was an
exercise in humiliation. Other reports have described prisoners chained
hand and foot to the floor for twenty-four hours, until they urinated
and defecated on themselves.
Several provisions of law forbid not only torture but humiliation of
prisoners. The Geneva Conventions prohibit "outrages upon personal
dignity, in particular humiliating or degrading treatment" of war
captives. The UN Convention Against Torture condemns "cruel, inhuman or
degrading treatment"--and Congress enforced the provisions of
the convention in a criminal statute. The Uniform Code of Military
Justice makes cruelty, oppression or "maltreatment" of prisoners by US
forces a crime.
Then how can it be that hundreds of Americans, at a modest estimate,
have been involved in the tormenting of prisoners, using the
"waterboard" technique to bring them to the brink of drowning, beating
them or worse? The answer is that the cue for these outrages came from
the top of the American government.
Soon after the terrorist attacks of September 11, 2001, the Justice
Department--then under Attorney General John Ashcroft--began
producing memorandums that opened the way to torture and mistreatment of
prisoners. The memos gave an extremely narrow definition of torture:
producing pain equivalent to that from "serious physical injury, such as
organ failure, impairment of bodily function, or even death." They
argued that the President, in his constitutional role as Commander in
Chief, had the power to order the use of torture no matter what treaties
or US statutes said. And they said the Geneva Conventions did not apply
to the prisoners at Guantánamo.
It is important to note that these legal opinions came almost entirely
from political appointees, not longtime Justice Department lawyers.
Similarly, Defense Secretary Rumsfeld and his aides overrode objections
from most military lawyers and other officers. Secretary of State Colin
Powell, former chair of the Joint Chiefs of Staff, was a notable
opponent of the memos.
The very purpose of these radical legal opinions was to override
objections to torture from those in the services and the law who wanted
to carry on the American tradition of humane treatment of prisoners. And
there was a further, crucial purpose: to immunize those who actually
carried out torture or inhumane treatment from criminal prosecution. If
charged, they could maintain that their actions were authorized from
One more legal interpretation by the Bush lawyers, especially clever,
should be mentioned: It concluded that the Convention Against Torture
(and its enforcement by criminal statute) did not apply to actions taken
against non-Americans outside the United States--for example, the
torture of Jamadi in Abu Ghraib under CIA auspices. A soldier who
tortured would still be subject to the Uniform Code of Military Justice.
But under this legal theory no criminal law would apply to a CIA
torturer. It was to preserve this impunity that Vice President Cheney
fought to exempt the CIA from the ban on cruel, inhuman or degrading
treatment proposed by Senator John McCain and passed, 90 to 9, by the
When George W. Bush was asked about torture in early November, he said:
"Any activity we conduct is within the law. We do not torture." How
could he say that after the hundreds of convincing reports of torture
and maltreatment? One possible answer is that he has not allowed himself
to know the truth. Another is that his lawyers have so gutted the law
governing these matters that not much, in their view, is unlawful.
But there is another explanation for Bush's words: confidence that words
can overcome reality. Just as a large part of the American people could
be led to believe in nonexistent links between Saddam Hussein and the
9/11 bombers, so it could be persuaded--in the teeth of the
evidence--that "we do not torture." And there is reason for that
Congress has shown no great zeal for tracking down responsibility for
the abuse of detainees in Iraq, Afghanistan and Guantánamo Bay.
It has reacted with the equivalent of a yawn to the disclosure of
"extraordinary rendition," the shipment of prisoners to Egypt, Syria and
other places where torture is common practice. The Senate, moved by the
power of John McCain's example, voted for his ban on prisoner abuse. But
then it approved a devastating prohibition on the use of habeas corpus
by Guantánamo prisoners to test the lawfulness of their
The truth is that most members of Congress are scared to do anything
that could be portrayed, in a campaign, as being soft on terrorists.
They worry that if there is another terrorist strike in this country,
any vote to hold true to the law of war or even to investigate what has
happened could be held against them.
Playing cat's-paw to the Administration, Congress has turned aside all
demands for an independent investigation of Abu Ghraib and the other
horrors--and of the policies that led to them. When Dana Priest of the
Washington Post uncovered the chain of secret CIA prisons around the
world, the reaction of Republican leaders of the House and Senate was
not to look into the agency's doings but to demand an investigation of
The press has provided flickering light on the torture scandal, with
some notable stories but not the sustained, relentless attention of
Watergate. In the daily papers the outstanding performer has been
Priest, who uncovered the Justice Department memos that took such a
permissive view of torture. Seymour Hersh told us about Abu Ghraib and
much else in The New Yorker.
The public, as I have indicated, seemed to lose its sense of outrage
once the visual evidence from Abu Ghraib faded. As in every war through
American history, it looked primarily to the President to ease its
anxiety. The fear aroused by September 11 did not easily dissipate.
Not one of the major actors in the torture story has been effectively
called to account: not Rumsfeld, who loosened the rules on interrogation
of prisoners; not Alberto Gonzales, now Attorney General, who as White
House Counsel approved the torture memorandums; and not the Justice
Department lawyers who wrote them.
Among those officials there is no sign of repentance. One of them has
indeed become a kind of preacher of the legitimacy of using pressure on
suspected terrorists. He is John Yoo, who was a lawyer in the Justice
Department's Office of Legal Counsel from 2001 to 2003 and is now a
professor at the law school of the University of California,
Berkeley, and a visiting scholar at the American Enterprise
Institute in Washington. In frequent television appearances
and public forums he argues a theme of those torture memos: that
President Bush as Commander in Chief is empowered by the Constitution to
order what treatment he wishes for detainees in the "war on terror." His
constitutional argument, that the Framers of the Constitution
intended to clothe the President with the war powers of a
king, conflicts with the near universal understanding of the
constitutional text, with its careful balancing of executive,
legislative and judicial power.
A New York lawyer who has contributed greatly to exposure of the torture
phenomenon, Scott Horton, has suggested that Yoo's views echo those of a
German legal thinker of the period between the world wars, Carl Schmitt.
Schmitt argued that when it came to degraded enemies like the Soviet
Union, the idea of complying with international law was a romantic
delusion. The enemy, rather, must be seen as absolute--stripped of all
Those who want to relax the laws against torture often make the "ticking
bomb" argument: that if a prisoner may know the location of a bomb set
to go off shortly, torturing him is justified to save lives. If captors
believe that, they may well resort to forceful interrogation. But to
write such an exception into the rules invites the systematic use of
torture. I had a lesson in the danger of the ticking-bomb argument years
ago in Israel. I was interviewing Jacobo Timerman, the Argentine
publisher who was imprisoned and tortured by the military regime that
for a time took over Argentina. (Intervention by the Carter
Administration saved Timerman's life; on release from prison he
immigrated to Israel.) Timerman turned the interview around and asked me
questions about torture, positing the ticking-bomb situation. I tried to
avoid the question, but he pressed me to answer. Finally, I said that I
might authorize torture in such a situation. "No!" he shouted. "You must
never start down that road."
Americans are not immune from evil; no people are. We know now that
American soldiers, improperly led, can beat to death prisoners they have
in their minds dehumanized. What can we do to limit the evil?
Investigation is one idea, widely endorsed. An independent body like the
one that carried out the 9/11 investigation could tell us much that we
do not know: not just an authoritative account of the wrongs done but a
timeline of the official opinions and actions that opened the way for
them. But I think a more effective solution would be the appointment of
a special prosecutor. He or she would have the power not just to find
the facts but to prosecute the wrongdoers. For we must not forget that
not only treaties but criminal laws forbid the torture, mistreatment and
humiliation of those we take in conflict.
It is unimaginable that President Bush would agree to a special
prosecutor for war crimes if ever the public and Congress grew exercised
enough to demand one. But you never know about history. The other day,
on the sixtieth anniversary of the Nuremberg prosecution of Nazi
officials, Scott Horton recalled that Nuremberg established the
principle of command responsibility for abuse--and punished those who
wrote legal memorandums counseling German officials to ignore the
conventions protecting prisoners.
The chief American prosecutor at Nuremberg, Justice Robert H.
Jackson of the Supreme Court, warned that "the record on which we judge
these defendants today is the record on which history will judge us
tomorrow. To pass these defendants a poisoned chalice is to put it to
our lips as well."
Horton said the moment of historical reckoning for American officials
may come. "A number of key Bush officials," he wrote, "are more likely
to be the Pinochets of the next generation--blocked from international
travel and forever fending off extradition warrants and prosecutors'