At the Sharp End: The Highest Officials Authorize Torture of a Clerk

Los Angeles Times, Abu Zubaydah's suffering:

He was arrested in Pakistan in March 2002. Because the Bush administration believed him to be a senior Al Qaeda operative his detention and interrogation produced a fistful of firsts. As far as we can tell he is the only prisoner in U.S. history whose interrogation was the subject of debate and direct authorization within the White House and the first to disappear into a secret CIA “black site.”

He was the first prisoner in the “war on terror” to experience the full gamut of ancient techniques adapted by the communists in Korea and 50 years later approved by the Justice Department in Washington. He was the first prisoner to have his interrogations captured on videotape — a practice the CIA ended in late 2002. Two years later the agency destroyed 90 videotapes of Abu Zubaydah s interrogations which resulted in a criminal investigation of government officials connected with the program.

Many questions about his interrogation remain unanswered but two legs of the three-legged stool are firmly in place.

First they beat him. As authorized by the Justice Department and confirmed by the Red Cross they wrapped a collar around his neck and smashed him over and over against a wall. They forced his body into a tiny pitch-dark box and left him for hours. They stripped him naked and suspended him from hooks in the ceiling. They kept him awake for days.

And they strapped him to an inverted board and poured water over his covered nose and mouth to “produce the sensation of suffocation and incipient panic.” Eighty-three times. I leave it to others to debate whether we should call this torture. I am content with the self-evident truth that it was wrong.

Second his treatment was motivated by the bane of our post-9/11 world: rotten intel. The beat him because they believed he was evil. Not long after his arrest President Bush described him as “one of the top three leaders” in Al Qaeda and “Al Qaeda s chief of operations.” In fact the CIA brass at Langley Va. ordered his interrogators to keep at it long after the latter warned that he had been wrung dry.

In fact, he was “a personnel clerk.”

And there's more. It's all horrible.

We must investigate and prosecute those responsible for this atrocity.

The point is not that justice demands that those responsible at the highest levels be held accountable, although justice demands it — and more. The point is not that the victims of torture — some evil, some banal, some perhaps innocent — deserve recompense — although they might. The point is that we in whose name these barbarities were practiced, we who did not take up pitchforks and at least stand by the gates in protest, we owe it to ourselves to confront the truth then dishonor and punish those most responsible. We must make clear that we do not tacitly condone torture, or else we own it.

History teaches that even a firm housecleaning after the fact is at best a temporary vaccination against relapses of the hysteria, idiocy, and moral indifference that inspired this illegality. But it also teaches that lack of accountability ensures a rapid recidivism.

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21 Responses to At the Sharp End: The Highest Officials Authorize Torture of a Clerk

  1. if_you_want_to_win says:

    You are losing this battle because it is perceived as a partisan attack at Bush/Cheney.

    So start with the left. There is ample evidence that key congressional dems, especially Pelosi, knew what was going on. If you take down one or more of them first, there will be a lot more acceptance to go after your real targets on the right.

  2. Alan says:

    Adrieen Packer’s Las Vegas Review-Journal article, headlined “Lawyer defends Bybee’s actions in context of 9/11” (Apr 29, 2009), features Judge Bybee’s top fan:

    Attorney Mary Perry specializes in resolving family disputes in a civil manner, but when the topic turns to the nation’s security, she clearly believes situations exist when harsh treatment, even torture, are warranted.

    The 48-year-old might be 9th U.S. Circuit Court of Appeals Judge Jay S. Bybee’s most outspoken fan.


    Perry said she truly believes Bybee’s statement that he stands by the memo, adding, “He’s not a flip-flopping, wishy-washy type of person.

    “I’m proud of him and I sympathize with him,” she said. “This is a witch-hunt. Obama should be tried for treason for letting these security secrets out.”

    These people are not concerned with morality. They’re indifferent to the quiet experience of intelligence professionals. And there are too many of them to ignore.

    These people love the powerful feel of torture.

    This is what your law schools are turning out, Michael. You own the problem. The fifth amendment will not stand up against these lawyers and judges. Torture will be policy at home.

  3. michael says:

    (re: the first comment) Point me to the statute that Pelosi supported which required torture, and I’ll take this argument seriously.

    In the absence of that, maybe we should focus on the people who actually appear to be responsible? That is to say, the executive branch officials who actually gave the orders? The folks who appear from all the evidence to be, excuse the partisan term, actually guilty of crimes?

    If your case is that legislators who were or may have been informed have some moral responsibility for not going on the floor and denouncing the perpetrators, I get that. (Although, there would perhaps have been consequences in loss of security clearances, cf. Senators and Representatives Could Have Spoken Out On Waterboarding: the Constitution Protects Their Right to Speak Out Without Fear of Legal Consequences.)

    Under the circumstances as we know them — and even assuming a high level of information of key legislators (of which I’m a little dubious) — it is very hard to see what legal culpability they have as they are not in the chain of command. Perhaps someone not reading from talking points can explain?

    As a cold political matter, it was, before the recent election, quite clear that there were not the votes to pass legislation stopping the Bush-Cheney crew from running the sites where they were torturing. And there certainly were not the votes to pass it over the inevitable veto.

    As a legal matter, the political matter isn’t all that relevant: they key actions were at all relevant times illegal under US law and under jus cogens.

    It may be that some partisans will spin the prosecution of key persons from the former administration as political. That’s almost inevitable when top government officials are indicted. But it’s a sad day when anyone not paid to lie for his party starts suggesting that we should close our eyes to crimes for fear that someone might perceive enforcing the law as “partisan”.

    I don’t actually expect to persuade people like you of this: Bush and Cheney not only broke the law, they used the Justice department to persecute their political opponents. It’s not surprising that people who approved of this would expect the same of the other side. But some of us cling to the ideal of the Rule of Law, even as we know it’s tough to achieve in real life.

    [Would you argue that if convictions for a particular crime appear to fall disproportionately upon men, or people of a given ethnicity, we should make a special effort to prosecute some women or people of another ethnicity, even if they’re not as guilty, just to avoid being called sexist or racist? I rather doubt it. But it’s much the same.]

  4. Tired Lefty says:

    None of this was done is secret, in any real sense. We’ve known about this since the beginning of the war. The only thing not everyone knew was the details. But we KNEW there was torture going on – whatever we might all be pretending now!

    I would have more respect for those who object so vehemently now, if I saw them protesting on the floor of the Senate every day, if I saw groups of people carrying signs in front of the WH and Congress, if I saw any real action at all – other than non-job-threatening hand-wringing and writing indignant BS on blogs.

    The facts is, we’ve all put our personal morality on the back burner, while we expect OTHER people to do the heavy-lifting to stop it. Why will no elected official EVER actually put his job on the line to do the right thing? Why, because it’s just all bloviating. It just makes the idiots think that our elected officials actually care – as if it was ever really a secret, and as if they couldn’t stop it tomorrow if they really wanted to.

    Gimme a break. This is just politics.

    We’ve been torturing people, both voluntarily and otherwise, within the U.S. military for decades, but nobody cares one bit for that. Nobody calls THAT torture. Either because of ignorance, or because some torture is OK if it doesn’t hurt non-Americans. Take a look at what happens in SERE schools one day – not to mention some other less-well-known activities.

    This is politics, not morality. That’s why nobody really cares.

  5. if_you_want_to_win says:

    michael-your rant is misplaced. I suggested a strategy you could use to succeed, my original post did not suggest ceasing efforts to hold all guilty parties responsible. Apparently, you are not immune from the advice you give to law school exam takers to “read the question.”

    As to Pelosi, it is crucial to ask the question “what role did the House Intelligence Committee play in 2002?” It is indisputable that Pelosi was on that committee and that she knew that water boarding was being used. If, as you imply, the HIC was a mere witness to the acts, then perhaps there is no criminal liability, although criminal conspiracy is not out of the question, particularly in light of the language of the anti-torture statute. However, if the HIC played more than an observation role, but indeed exercised some form of oversight and control, then liability may attach.

    In any case, you and the left are holding her and other dem members of the HIC harmless. Your failure to take all morally responsible parties to task undermines your attempts to seek action against the legally responsible parties. There are of course a great many people who do not consider the torture techniques employed by the US immoral, even if (as is debatable) they are illegal. So if you want to persuade those people to listen, you must first offer a token gesture by hanging Pelosi and gang out to dry.

    Indeed, your failure to attack Pelosi smacks of partisanship and bias at a deeper level. Your blog and others calling for sanctions against Bush/Cheney have been utterly silent on the issue of torture by other nations. Absolutely no critique of Obama’s bowing and coddling of torturous regimes around the world. The defense you and others raise is that we ought to clean our own house if we mean to be an example to the world. Well, if that is the case, then indeed clean your own house and hold the democrats responsible. If not with criminal charges, then at least with a vigorous moral rebuke. But you don’t even do that.

    You can choose to take my advice or not. But keep in mind that some lawyers are professors and sit in ivory towers and ponder how many justices can dance on the head of a pin. Other lawyers actually persuade to achieve social justice. You are failing at the latter, in my opinion.

  6. Patrick (G) says:

    If you want to win,
    your “you can’t defeat us, so let’s you and her fight” advice should be less obviously stupid.

  7. if_you_want_to_win says:

    Patrick (G)-What a life you must lead, calling random strangers “stupid” for no apparent reason. You may disagree with me, and I don’t consider you “stupid” if that is the case. I apologize, as I am not up on all of today’s cool hip-hop Obama-isms; in my generation “stupid” is a word used to describe something with an obvious lack of intelligence, and when leveled at someone it is usually meant as an insult. In my day the Special Olympics was an event meant to bring happiness to physically and mentally challenged persons, and raise awareness of their important role in society. Obama of course transformed the term into a derogatory, as in, “my bowling skills are Special Olympics” with regards to poor physical control and athletic ability. So perhaps Obama re-defined “stupid” as well, and you meant it as a compliment; I’m sure none of the readers of this fine blog would have such Special Olympics social skills.

  8. michael says:

    Some of us have been speaking out against torture for a considerable period of time. My earliest post in that category is in 2004, and I suspect that it’s not the first. Indeed, arguably, the first substantive post on this blog (Sept. 03) was about torture.

    It would certainly be appropriate to further expose the supine role of Congress in this period. I think they have a lot to answer for. I just haven’t yet heard any credible argument yet for criminal as opposed to moral culpability. And I note that you, other than some vague talk about ‘conspiracy’ (Congressional oversight is not conspiracy under US law, and it would be a real stretch under international law) have not offered any either. It is impossible for congresspersons to exercise legal control over the acts of the executive branch except via legislation. The Supreme Court made that clear in the INS v. Chadha case, and has re-affirmed it many times since. So that sort of liability is a total non-starter.

    As for misdeeds by other nations, that tired attempt to distract from the issue lost its force years ago. I write and speak primarily about the US because that is where I live, and that it the citizenship I hold: it’s my problem in a direct way that the evils of others are not. I agree that if one believes in fundamental human rights or a cosmopolitan theory of international society, it is often appropriate to worry about what happens abroad, and there’s plenty to worry about. With the exception of the most horrible acts, the sort that might warrant humanitarian intervention, I choose to make my focus here, the place where I think I might conceivably have a small chance of contributing to the influencing of outcomes. That certainly doesn’t mean I don’t think there’s plenty to criticize about elsewhere, nor do I want to suggest in any way that some foreign governments are anything other than really horrible (North Korea comes to mind). But there are only so many hours in the day.

  9. if_you_want_to_win says:

    Well now rather than take my advice, you have devolved to *defending* the congressional representatives involved. Your analysis of their liability is not invalid, but superficial. Chadha does not stand for immunity from conspiracy, nor is it remotely on point to a torture scenario.

    Formalistic legal relationships are not relevant to the elements of conspiracy charges. If Pelosi knew or should have known the practices were illegal, and she committed an act or active omission intended to further the criminal activity, then there is a colorable charge. You need to set aside any formalistic interpretation of what the Committee’s role on paper was, because what matters under criminal law is its de facto power. If the Committee had the de facto power to stop the practice (and it very likely could have, even without violating secrecy laws) then there is a case. There are of course immunity issues, but the same is true for any of the state actors involved.

    You are sadly trying to portray her role as merely a recording clerk, who by law had to rubber stamp what the CIA was telling her. That may be the case. The point is, neither you nor I know exactly what roll the Committee played, and what Pelosi did or didn’t do. But it stinks. And if we are to have a “Truth Commission”, then I see absolutely no reason why Pelosi and the rest of the Committee are not included.

    But all of this is besides the point. You’re going after Bush, you’re defending Pelosi. Keep doing that and this whole thing will blow over in about two weeks as the American Idol finals get pared down to the final 2 or 3. You lefties have a very small window to work with the attention span of the American people and you’re blowing it big time.

  10. michael says:

    Conspiracy liability requires an overt act in furtherance of a conspiracy. If you are engaged in a conspiracy and tell me about and all I do is say, “attaboy, go get ’em” then I am not a conspirator (I may have committed misprison of a felony, but that’s not a crime any more in most places).

    Chadha is entirely apposite: if Congress has no place in the chain of command, if indeed the Constitution BARS congress from having such a role, members of Congress can hardly be held legally responsible for actions they neither commanded nor controlled even if it winked at them very very hard.

    I think it’s clear that Congress failed to do what it could and should have done to stop torture. The record is clear that this is is primarily, however, a matter of obstruction by leading members of the GOP without whom there were not votes to overcome a veto. That obstruction came in two flavors: outright obstruction, and sneaky obstruction by people such as John McCain, who watered down bans on torture to include only the military, not the CIA. (See McCain Votes Against Banning Waterboarding — a triumph of ambition over earlier principle ).

    How any fair reader could take anything I’ve said here as defending Pelosi, I don’t see. Unless of course it’s a defense to say that she shouldn’t be prosecuted for allegedly committing a crime that it was legally impossible for her to commit. I said that.

    Beware Bush-Rove Syndrome: an inability to separate criminal law from politics.

    So here’s a bet: this won’t blow over in two weeks. Let’s wait and see, shall we?

    (I think this may well be my last comment on this thread. But please don’t let me stop you.)

  11. Patrick (G) says:

    If you want to win,
    you shouldn’t try so hard to misread what what people say, it comes across as deliberately stupid.

  12. if_you_want_to_win says:

    I understand your analysis. I think at most the intended legal role of the Committee is persuasive when one looks at the facts and decides whether or not the Committee had actual control. I understand you are saying legally they were not supposed to have control. That does not mean they did not have control. Parenthetically, the President and Congress both sometimes do things that are a breach of the separation of powers. For a criminal conspiracy charge, simply because the Committee was not supposed to be a legal “ringleader” doesn’t mean it wasn’t in fact.

    I understand your point that you feel they were only a “cheerleader.” And I find that the fact that their legal role was supposed to be cheerleader-only persuasive. But I disagree that it immunizes them from conspiracy charges if in-fact they were “ringleaders.” Suppose they were asked, “look, we’re not sure about this. If you say OK we’ll keep at it, if you say stop we’ll stop.” Now what? What baffles me is why you don’t want to know what happened in that Committee. And further, even if there are no criminal charges, why not push for impeachment of Pelosi?

    I guess to state my position another way, I don’t understand your focus on purely criminal sanctions. Even if there are no criminal sanctions to be brought against Pelosi, why not impeachment? Something, anything? My point, for the last time, is that sanctions appropriate to each level of misconduct should be leveled and pursued fairly.

    And between the flu and American Idol, this goes nowhere.

  13. Patrick (G) says:

    if you want to win,
    arguing that congressional Democratic leaders had ‘control’ over Bush Administration torture policies is just plain stupid.

  14. Tired Lefty says:

    You guys just don’t get it! It’s NOT about whether Congress could actually DO anything at all in the legal sense, i.e. whether they could have control over the Executive.

    It’s about the fact that WE ALL knew this was going on, some segment of Congress was SURE it was going on, yet they chose to remain silent to protect their jobs. If a CEO starts firing people left and right for piddley reasons to the detriment of the company as a whole, and you’re the company legal dept., do you remain silent? What if you’d likely get fired next if you spoke up? Do you have a responsibility to anyone other than yourself? It sounds to me in that situation, you’d be going over the whistleblower statutes for your answer, rather than just doing what is right and professionally required of you.

    And that’s what Congress did. If the Dems all spoke up FOR REAL would some of them lose their seats?…maybe. Would they be able to get any law passed?…maybe not. But they should have done it because it’s the right thing to do. Legal ability to accomplish anything be damned. If these Dems are not capable of standing up to a SINGLE principle that doesn’t also safeguard their jobs, then we deserve what we get for electing and reelecting them.

    Even with no ability to legally stop what they felt was wrong, every one of them should have been speaking out endlessly and getting the American people behind them to stop it – and it probably would have done the trick pretty quickly. Instead they remained silent for legalistic reasons, largely to cover their asses, and the American Sheeple just sat on their hands, confident that their elected “leadership” had more energy than them.

    Pointing out that you BLOGGED about this once or twice is nothing less than Pilot washing his hands. Feels good to have clean hands though…

  15. Rhodo Zeb says:

    Look, this is a low-quality discussion for sure, not to say anything (honestly) about the participants. Amazing that some people actually want to push it forward still.

    Let’s re-focus:

    1. Torture, a crime under US and international law, was authorized by the Bush Administration.

    2. Warrentless wiretapping, a crime under US law, was authorized by the Bush Administration.

    3. Seizing US citizens and holding them incommunicado for years is a crime under US law and was authorized by the Bush Administration.

    4. Firing US attorneys for “improper” reasons is a crime under US law and was authorized by the Bush Administration.

    Anything else is off-topic.

    We have something called checks and balances, people. The position of the Dems we are talking about is complicated, we do not know what information was actually delivered within what context.

    And yes, arguing the Dems had any level of control in this situation is laughable.

    Nonetheless, yes obviously the Dems for years were weak spineless rat b*stards, and maybe still are.

    Yet and still, see above.

  16. Patrick (G) says:

    Tired Lefty,
    your argument that we “WE ALL knew this was going on” at the time that the torture policies were drafted and first put to use is logically impossible. Everything that the Public has learned has been at a lag of months or years after the actual events occurred.

    Second, If you’re going to fault Congressional Leaders, you can’t start by attacking the then-minority party; you have to fault the members of the Presidents own party that rather than acting as a moral check/balance on a co-equal branch of government, were only too willing to act as the Bush/Cheney administration’s goon squad.

    Third, you might want to check the archives before you accuse Michael of having only blogged about it once or twice. Once or twice a MONTH for the past SIX YEARS is probably an under-count.

    Fourth, comparing Michael to Pontius Pilate is quite laughably wrong.

  17. Patrick (G) says:

    Rhobo Zeb,
    I like how you try to “re-focus” a conversation about torture and congressional oversight by bringing up three more, unrelated Bush administration malfeasances AND declare everything else off-topic. Nice bit of misdirection.

    Back to the topic at hand:
    What bothers me about this conversation is that only one name has been named: Pelosi’s. Very convenient how that matches the current Republican Meme. But whatever she’s accused of failing to do…she’ was hardly the sole member of Congress during that time.

    Can somebody explain to me why we should be going after Pelosi and not Peter Hoekstra, Roy Blunt, Elton Gallegly,and Mac Thornberry?

    All four are members of the house’ Permanent Select Committee on Intelligence, both presently and in the 108th congress when the worst was occurring.

  18. Tired lefty says:

    Patrick (G),

    Maybe YOU didn’t know about torture going on, but I can remember talking about it for years now. Long before Abu Graib, there were discussions about what the Bush Administration was doing. Maybe you honestly don’t remember it, but I sure do.

    And I accuse BOTH parties of standing by an doing nothing. If anything at all should be clear to anyone paying even a little attention, people in Congress want, more than anything, to get re-elected. Everything else is just a sideline. Why do you think Specter just changed parties?

    And so what if the Dems were in the minority. LOTS of people who protest about things that are wrong are in the minority. But unlike the civil rights protesters, those who’ve protested regimes in totalitarian countries, etc. OUR Congressional protestors are not willing to get their feet wet. Even if only the Dems were against torture going on, which is rediculous anyway, but even if, they should have all resigned if it was necessary to make that point. They should have clogged up the Senate floor to the point of forcing arrest. They should have made every American aware and outraged at what was going on. But no, that might have cost them something more expensive than their principles, so they did NOTHING. And now, once again, we’re supposed to pretend that evil things are done by a few who are unstoppable by the Good. This is why Evil gains power, because the Good worry too damn much about how their hair looks on TV.

  19. Patrick (G) says:

    Tired Lefty,
    I can’t take you seriously for denouncing ‘Both Parties’ when you contort your replies to avoid mentioning any actual Republicans*, or the Republican Party.

    *Turncoat Arlen Specter is of course a special case.

  20. Rhodo Zeb says:


    Perhaps we are arguing past each other; I have no truck with you. Nor was I trying to ‘mis-direct’ anything. You are right, three of my points are off-topic. Please dismiss them mentally. The comment still stands, this is a highly derivative issue by any measure.

    I believe the issue of culpability is very important, and this nonsense of guilt on the part of derivative players such as Pelosi is a red herring, both legally and practically.

    We don’t know what she and other congressional leaders were told. We simple don’t know.

    All the arguments in this thread assume far too much as to what congressional leaders were told in the early days of torture. We don’t know what they were told. I mentioned a couple of weeks ago in a comment that Rockefeller delivered a hand-written note to Cheney with his concerns about one of the many illegal programs because the sitting Senator was so worried about personally being charged with criminal disclosure of classified information. That is how the Dem Senators were treated.

    Now that does not mean the Pelosi was not informed, and if she signed off she will fall into the limelight. She may be charged if she knowingly approved such conduct. As Michael points out, her liability is somewhat tenuous, but charges against her would not be totally beyond the pale, once the inevitable investigations begin.

    However, the Gang of Four were not needed or asked to authorize anything. Authorizing is now the watchword, per Condie, jest so you know. By the way, her supporter from the yahoo groups, Peter whoever, is cutting and pasting the same, tired argument into a bunch of different sites. That’s a psychological profile right there.

    We will find out when we prosecute Cheney, Bush, Ashcroft and Rice. Then we will be able to determine whether Pelosi should face punishment.

    Only then. With context intact.

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