At the AALS last week, I heard a (formerly) respected law professor announce to a room that he had looked carefully and he didn't see any evidence of systematic torture by the US. It was — although he didn't use these words — the 'few bad apples' all over again. At least a few of us in the packed room expressed our shock audibly — which isn't something you usually get at such a polite, even staid, event.
There's clearly a lot of this denial going around, which is why Marty Lederman's latest item demolishing the “best defense of the administration’s record on torture” is well worth reading.
In her article, MacDonald agrees that the 2002 OLC Memo was “hair-raising,” and “understandably caused widespread alarm.” She argues, however, that the OLC Memo “had nothing to do” with the interrogation “debates and experiments unfolding among Pentagon interrogators in Afghanistan and Cuba,” and had no connection to the abuses at Abu Ghraib, or to the extreme methods of military interrogation that have been alleged at Guantanamo and elsewhere. MacDonald further argues that, in contrast to the CIA, Pentagon officials have not come close to violating the law; that the military’s techniques have been “light years from real torture”; that the interrogation policies in Cuba and Afghanistan are “irrelevant” to what happened in Abu Ghraib; and that, in fact, the Armed Forces have been unduly hamstrung by a culture of legalism that is an unfortunate byproduct of “fanatically cautious” Pentagon lawyers steeped in the outmoded ways of the Geneva Conventions.
This version of the story appears to be selective, at best.
There's clearly much here that's not fully in the open, notably the extent to which the Torture Memos were driven by a need to attempt to justify CIA abuses which had already happened.
But given the number of reports we do have of overly coercive questioning to say the least, no one should be allowed to claim that there wasn't some sort of pattern and practice at work, creeping its way from the CIA to other interrogation centers, destroying whatever moral authority the US might hope to claim, inflaming the locals against us, and creating a new cadre of detainees (and families) who will hate us and try to destroy us.
Whether it also will make a mockery of the concepts such as the rule of law that we try to teach our students still remains to be seen.
This is what’s bothering me.
Out of all the documents requested since June of last year, all the memos that have been leaked, and those released through FOIA, only one is written by Gonzales. Why?
One memo that has not yet surfaced is an undated DoJ memo on “Liability of Interrogators with regard to the Convention Against Torture and the Anti-Torture Statute.” I think this one is very important.
I think one of the reasons they are talking about permanent detention centers is that they can’t afford any witnesses. The reports of abuse and torture are coming from two of the more “transparent” prisons. What about the CIA prisons?
If the door closes on this confirmation it’s going to take an act of Congress to open it up again. Leahy was right when he said this might be the last chance to examine the issue.
The Leahy File
Leahy: Government Stonewalling on Release of Documents. December 22, 2004 Including correspondence to Moschella, and the OLC revision of the Bybee memo.
Leitch to Leahy, December 30, 2004
Long standing practice:
“As you know it is generally not the practice of this or prior Administrations to provide all documents requested by a Member of Congress where those documents contain highly deliberative or Presidential communications. By longstanding practice, no claim of executive privilege is necessary to decline to produce such documents in response to such a request. It is on the basis of this practice, and in light of the nature of the documents at issue, that we respectfully declined to provide two of the documents you requested.”
“There are no orders or directives…signed by the President, with respect to the interrogation of detainees, prisoners or combatants.”
Then Leitch says as the Bybee memo has been withdrawn and replaced, he’s not sending it.
Leahy Presses Gonzales on Accountability, Documents: January 4, 2005
Why can’t Leahy demand (subpoena) those papers? How can the committee members make an informed decision without them?
It was lawyers who wrote and sponsored and helped to create this horrorshow. I wish an army of good lawyers would show up now to stop it.
This whole line of reasoning is pretty hard to sustain when you consider the totality of the evidence. A former prof of mine and one of the leading experts in the world on tortute shows pretty convincingly in my opinion that these people were trained to torture ( http://seattletimes.nwsource.com/html/opinion/2001928172_torture14.html ) . You can write as many memos as you want supposedly barring torture, but when you teach field personell how to do it without being detected you are clearly supporting the practice.
The good thing about the photos was that it forced the US media to cover a story that they had been ignoring.
The bad thing about the photos is that defenders of the administration use them to claim “that’s all that happened … just a few bad apples”.
The reality is that Amnesty International and HRW issued reports of mass human rights & Geneva Conventions violations, including torture, dating back to December 2001 in Afghanistan. Similar reports were made regarding Guantanamo Bay and, as early as May 2003, in Iraq. The only reasonable conclusions is that the standard operating procedure of the US military and “covert” operations has changed under the Bush administration to encourage (not just “allow”) systematic torture and abuse.