Above the Fold: The Whole Truth About Torture

Is it "unfair" to single out Bush's torture advisors for prosecution?

The story by Charlie Savage and Scott Shane on the front page of yesterday’s New York Times, about the “fallout of the war on terrorism” lingering over former Bush Administration lawyers, was not terrible.

The article quoted experts on both sides of the question of whether the Bush lawyers responsible for authorizing torture should be prosecuted, or otherwise held accountable by their actions, possibly by local bar associations. The piece also contained the splendid news that, so far, neither former attorney general Alberto Gonzales nor David Addington, the White House aide known as “Cheney’s Cheney,” has been able to find private sector employment since their government careers came to an end.

But the statement that cried out for balance was the one made by John Eastman, a friend of John Yoo’s and the dean of Chapman University Law School, who argued “that it was deeply unfair to single out the Bush lawyers for the advice they gave under intense pressure after the 2001 terrorist attacks. ‘It’s unfortunate, and quite frankly it’s dangerous,’ because it could make officials risk averse, Mr. Eastman said, blaming partisan politics.”

That assertion went unquestioned in the Times. To fill that gap, FCP telephoned Tom Malinowski, a brilliant human rights advocate who has been Washington director of Human Rights Watch since 2001.* Malinowski, a former special assistant to President Clinton, also worked for Clinton’s National Security Council and State Department.

“We may not want officials to be risk averse,” Malinowski explained. “But we do want them to be crime averse. We do want officials to ask tough questions when they’re asked to do things that any reasonable person would suspect would violate the constitution or the criminal laws. My impression of John Yoo at that time was not of someone who was under tremendous pressure from the CIA, or the military, but of someone who was engaged in an abstract intellectual exercise, and saw an opportunity post 9/11 to advance a particular intellectual theory about presidential powers.

“I’ve never gotten a sense that the professionals in the national security agencies were desperately pleading for the right to waterboard people,” Malinowski continued, “or suggesting that the failure to draft these memos would lead to massive calamaties. I think in fact that the lawyers were driving this policy than that they were driven by it.”

Malinowski, along with nearly all human rights advocates, believes that a truth commission that would uncover what really happened inside the federal government is now essential. “It could do several things,” he said. “It could establish what happened and who was responsible. It could also take apart, in an authoritative and non-partisan way, Dick Cheney’s narrative, that torture prevented terrorist acts, which is something most professionals in intelligence would dispute, including the current director of the FBI.”

“That’s really important because some day in the future, ten years from now or fifty years from now, a future American president will be facing a crisis in which someone is whispering in his ear, ‘you gotta do what you gotta do.’ If there’s one positive thing that could come out of our eight-year experiment with torture it would be an authoritative conclusion that torture is counter productive—so that every future president knows to tell that person to go to hell.”

William J. Astore, a retired lieutenant colonel (USAF) and a professor of history at the Pennsylvania College of Technology, elaborates on the case for a truth commission in an excellent piece which appeared at History News Network. Astore wrote:

A full accounting of the torture decisions made by the Bush Administration would serve powerfully to reassure Americans that their government is, in fact, transparent and accountable to the law. Such a result would be more than advantageous: It would indirectly strengthen our national defense as well as people’s patriotism. Far easier it is to trust a government that owns up to its mistakes than one that cloaks them in bombast and bromides.

Self-serving bromides that excuse torture as the price of keeping America safe from evil-doers must be dismissed with extreme prejudice. Even self-preservation is no excuse for torture or similar war crimes. It’s easier to see the truth of this when you look at the abuses committed by countries other than one’s own.

This is why Glenn Greenwald is absolutely correct to highlight the depressing difference between the reluctance of America’s ruling class to investigate its own sins and British opposition leaders’ nearly universal call for a full scale investigation into charges that British agents were complicit in the torture of Binyam Mohamed, a British resident who was released from Guantanamo and returned to Britain two weeks ago, after seven years of often brutal detention.

Greenwald is even angrier at American journalists who are complicit in the effort to cover up the crimes of the Bush administration, and FCP shares all of his disgust:

It’s difficult to select what one thinks is the single most illustrative symbol of how our country now functions, but if I were forced to do so, I would choose the fact that it is America’s journalists — who claim to be devoted to serving as a check on Government and exposing its secrets — who are, instead, leading the way in demanding that the Government’s actions of the last eight years be concealed; in trying to quash efforts to investigate and expose those actions; and in demanding immunity for government lawbreakers. What kind of country does one expect to have where (with some noble exceptions) it is journalists, of all people, who take the lead in concealing, protecting and justifying government wrongdoing, and whose overriding purpose is to serve, rather than check, political power? “Upside down world,” indeed.

Correction: In the original version of this article, Tom Malinowski was described as being a lawyer. Malinowski is a human rights advocate, not a lawyer. CJR regrets the error. Return to the corrected sentence.

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Charles Kaiser is a former media critic for Newsweek and the author of three books, most recently The Cost of Courage, about one family in the French Resistance.