harpers.org/archive/2007/12/hbc-90001917
December 15, 2007 This has been an important week in the torture debate in America. It has been the week of the President's coming-out party. Up until this point, torture has been something that "a few rotten apples" do. When evidence of it erupted in the media, a few grunts were quickly rounded up and scapegoated. Never officers, mind you--after all, they generally knew where the orders came from, and if you prosecuted them, they might just tell. But this week, a CIA agent, John Kiriakou, appeared, first on ABC News and then in an interview with NBC's Matt Lauer, and explained just how the system works. When we want to torture someone (and it is torture he said, no one involved with these techniques would ever think anything different), we have to write it up. The team leader of the torture team proposes what torture techniques will be used and when. He sends it to the Deputy Chief of Operations at the CIA. And there it is reviewed by the hierarchy of the Company. Then the proposal is passed to the Justice Department to be reviewed, blessed, and it is passed to the National Security Council in the White House, to be reviewed and approved. The NSC is chaired, of course, by George W Bush, whose personal authority is invoked for each and every instance of torture authorized. And, according to Kiriakou as well as others, Bush's answer is never "no." He has never found a case where he didn't find torture was appropriate. Here's a key piece of the Kiriakou statement: LAUER: Was the White House involved in that decision? KIRIAKOU: Absolutely, this isn't something done willy nilly. It's not something that an agency officer just wakes up in the morning and decides he's going to carry out an enhanced technique on a prisoner. This was a policy made at the White House, with concurrence from the National Security Council and Justice Department.
So now the process can be fully diagrammed, and the cast of characters is stunning. The torture system involves the operations division of the CIA on the implementation side. They rely heavily on contractors, it seems, in torturing people. And a special role is apparently played by a couple of psychologists. But, just like the Bible and the Constitution, that's so pre-9/11. The answer is most likely the Office of Legal Counsel--which has now emerged as what George Orwell called the "Ministry of Love" (remember: in Nineteen Eighty-Four that's the ministry that picked and approved torture practices). The National Security Division is also in the thick of things, apparently. Alberto Gonzales, before he became attorney general, played station master for the initial series of torture memos. Once he landed at Justice, he kept a close watch on all torture issues and lied to Congress about it. With the attorney general's office staking out a close interest in torture, it's unlikely that others in the Department would have substituted their judgment for his. Thus the ball would seem to be squarely in Michael Mukasey's court. David Addington, Dick Cheney, Condoleezza Rice and Stephen Hadley--these are all name we can now link directly to the torture system. And John B Bellinger III, the man who keeps making a laughing-stock of himself with speeches on international law (as, for instance, when he tells us he can't raise a legal objection to the idea of the Iranians waterboarding some captured American airman), who was legal counsel at NSC and continues now to hold that role with Condi Rice at State. He constantly issued assurances "off the record" to human rights groups and bar groups that we certainly don't torture. And now it's reasonably clear that he was right in the thick of the torture approval process all along. This resurrects the process of official cruelty under the Stuart monarchs in seventeenth century England. Persons accused of state crimes very frequently were interrogated with the use of specific techniques, including the rack, the thumbscrew, and waterboarding.
He would, on the advice of his officers, "approve no new torture," but he would certainly avail himself of the existing practices. In ascending order of severity they were: thumbscrews, the rack and waterboarding. Waterboarding was considered the most severe of the official forms of torture.
King James I of England, portrait by Daniel Mytens (1621). In the depraved humor of Dick Cheney, of course, it's just bobbing for apples at a Halloween Fair. But they are not much more than tools in the hands of those who drive the torture machine. Real moral and legal culpability lies with those in leadership positions who sanction and approve this system. The use of torture--waterboarding, hypothermia, long-time standing, and other extreme practices--is a criminal act. If the Justice Department has blessed it--and we now know this for a fact--then figures in the Justice Department, including the Attorney General, have made themselves accessories to a serious crime. Since the end of World War II at least, the use of these torture practices has been universally recognized as a criminal act subject to the most severe sanction. This is the background against which the current acts of the new Attorney General, Michael B Mukasey must be judged. As I noted previously, there is a strong basis to fear that Mukasey came up through a litmus test under which he was required to do two things: to give his commitment to continue to provide cover for the torture system, and to block any effort to have a meaningful criminal investigation that would disclose the torture system or any of its details. As things now stand, it looks like Mukasey is delivering on these test points. He's been on the job for a month, and he continues to publicly refrain from expressing an opinion on waterboarding. This signals that there has been no change in the status quo ante, namely, torture techniques including waterboarding remain on the agenda, available for use. So that takes us to the key question of getting to the bottom of it. The Justice Department has announced an "initial probe" into the destruction of the CIA torture tapes. There is no credible basis upon which this can be viewed as anything other than a conscious crime. The tapes were destroyed, even according to sources within the CIA, because of imminent fear that they would constitute evidence in a criminal prosecution of persons involved in the acts of torture. And even beyond this more general concern, they were destroyed so they would not be turned over to a federal judge who was demanding them. They were destroyed to protect a series of false official statements about the way individual prisoners, whose statements would be used in evidence, were in fact being treated. Remember, in these trials, a defendant can seek to exclude evidence if it was secured through torture. But the defendant has an obligation to prove this contention. Destroying them would therefore help make the evidence admissible. Note also, no one has ever even raised the possibility that the destruction was inadvertent or accidental. All that being said, we should ask: why do we need an "initial assessment"? It is as if Julius Caesar was stabbed to death on the floor of the senate with a hundred onlookers, and now the Justice Department wants to weigh carefully whether there is evidence sufficient to justify a homicide investigation. Also, the matter is passed to Kenneth Wainstein, the head of the National Security Division, for study. It could have been given to the Justice Department's Inspector General. He and his team have garnered the universal respect of Washington watchers for their relentless fairness and objectivity. But instead it goes to a division within the Justice Department which is itself a focus of strong suspicion. If anyone other than OLC is involved with the official torture program, and certainly has knowledge of it, then that person is Mr Wainstein. In other words, he has the strongest possible motivation to deep-six this investigation as quickly as possible. So is there any reason to have confidence in the steps taken by the Attorney General? They look like a decision has been made to close the door on the matter, and start another ...
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