Conspiracy to Torture

Torture is about acts: the blow to the head, the scream in the ear, the scar-free injuries whose diagnosis has become an international medical subspecialty. But torture is also very much about words: the whispered or shouted questions of the interrogator; the muddled confession of the prisoner; the too rarely tested language of laws protecting prisoners from "cruel, inhuman or degrading" treatment.

Consider just two words: "command responsibility." Those words stand among the most resolutely enduring principles established after World War II by the Nuremberg Tribunals. Today they pose a special threat to President Bush, Vice President Cheney and the other officials who actively promote what Secretary of State Rice, in Germany, insisted the Administration "does not authorize or condone." To carry out physically and psychically brutal interrogations outside all international norms has required the Administration to corrupt the ordinary meaning of language itself. "We do not torture" (Bush). "What we do does not come close to torture" (Director of Central Intelligence Porter Goss). Such denials continue despite twelve reports from the Defense Department documenting the opposite--never mind Congressional testimony, journalistic investigations and NGO reports making common knowledge of waterboarding, sleep deprivation, near-fatal beatings and mock executions.

Indeed, there is no point in arguing about whether US policy condones cruel, degrading or torturous treatment of prisoners. Practices authorized by Rumsfeld on a small scale in Afghanistan have now metastasized into a worldwide network of prisons, detention centers and surrogates ranging from private contractors to authoritarian foreign governments. What Rice defended to European critics--and what has Cheney at loggerheads with John McCain--is not merely a desire to take the gloves off in the occasional back room in Bagram or Baghdad, as the Administration's apologists insist. Rather, it is a wide-ranging conspiracy to facilitate torture, in which many sectors of American society are now implicated. The new torture complex--centered in the executive branch of the government but with tentacles throughout the country--is the subject of this special issue, which spotlights both collusion and resistance in key American institutions: the military, the law, medicine, media, the academy.

The Administration's adherence to systematic torture and extralegal imprisonment not only accelerates the race to the bottom in human rights; it is even tying anti-terrorism policy in knots. Take the case of José Padilla, the US citizen imprisoned as an enemy combatant for his supposed participation in a "dirty bomb" plot. In November the Administration finally indicted Padilla on charges unrelated to any dirty bomb. Why? At least in part because Padilla was arrested on the basis of information extracted from Khalid Shaikh Mohammed, whose interrogation included waterboarding. The case is a colossal failure in terms both moral and pragmatic: Either Padilla was never part of a bomb plot, in which case Khalid Shaikh Mohammed's original statement demonstrates the unreliability of confessions obtained under torture, or effective anti-terrorism prosecution was undermined by reliance on illegal methods.

The question is not whether the United States instigates torture but how to put this evil genie back in the bottle. The first step is to confront the culture of denial. Where, for instance, are Khalid Shaikh Mohammed and Abu Zubaydah? It has now been two years since those Al Qaeda operatives were "disappeared" into the netherworld of CIA "black sites." It is time to puncture the secrecy bubble, to ascertain the whereabouts of these men and charge them criminally for September 11. Human Rights Watch has identified twenty-four additional "ghost detainees." So long as Congress gives implicit permission to keep such detainees under wraps, the principles that facilitate torture are kept alive.

The McCain defense appropriations amendment is a crucial step. His amendment is a powerful reaffirmation of the nation's responsibilities under domestic war crimes law and international anti-torture covenants. It's imperative that the House of Representatives, where the White House enjoys more leverage, not dilute the McCain amendment in the appropriations conference negotiations. It's just as important that the conference committee reject Lindsey Graham's amendment, which would strip Guantánamo prisoners of habeas corpus rights--and thus their ability to protest effectively their "cruel, inhuman or degrading" treatment in US custody.

The acceptance of torture amounts to a crisis of democratic culture, requiring patient cultivation of outrage on the part of the antiwar movement and human rights campaigners. Activist groups beyond the human rights lobby, like MoveOn.org, are beginning to focus on torture as a political issue, a welcome development. Whether from activists or Congress, few steps matter as much as encouraging and protecting whistleblowers at all levels of the military and intelligence agencies. Truth-telling by soldiers, officers, intelligence operatives and Administration officials is the best hope for dismantling the torture regime. That Colin Powell's former chief of staff, Lawrence Wilkerson, is now denouncing Cheney for providing "philosophical guidance" for torture is evidence of how high whistleblowing can go. To everyone with knowledge of the torture system, the message is simple: As Daniel Ellsberg wrote last year, "Do what I wish I had done in 1964: Go to the press, to Congress, and document your claims."

More than enough evidence has already accumulated to justify a criminal investigation of the renditions, secret prisons and interrogations, which together amount to a conspiracy to violate a host of federal statutes and constitutional procedures. Senator Carl Levin and many human rights advocates make the case for a 9/11-style truth commission. But the torture conspiracy is crying out for a special prosecutor, as Anthony Lewis argues forcefully on page 13. The Justice Department and Attorney General, so deeply and personally implicated in the torture conspiracy, cannot be trusted to investigate themselves. And the military's criminal-investigation system in torture cases is woefully inadequate, as Tara McKelvey reveals on page 15. It's time for an outside authority to step in--one vested with power to hold military higher-ups and White House officials criminally liable.

If American institutions don't act, prosecutors and parliaments abroad will. Already, kidnappings and renditions have spawned criminal inquiries in Italy, Sweden and Canada, while the EU and Council of Europe investigate the black sites. In many European nations, victims of human rights violations enjoy broad standing to bring legal action--as General Pinochet learned in England. The more information leaks out, the less frivolous is the fantasy of Rumsfeld, Cheney, Attorney General Gonzales and other complicit officials unable to travel to Europe without fear of being served with papers. The Administration may be scornful of international human rights covenants. But in recent death-penalty and gay-rights cases, the Supreme Court majority has taken pains to indicate that international human rights standards do matter in American law, in the noble tradition of "a decent respect to the opinions of mankind" articulated by the Declaration of Independence.

If the twentieth century proved anything, it is that no nation, no constitutional system, is immune from the downward human rights spiral signified by torture--as Britain, France and Israel, among other nations, learned at great political cost. The purpose of this special issue is to confront the sweeping moral seriousness of the American torture crisis of the twenty-first century. The point is not so much that we are "better than our enemies," as Senator McCain and others have argued, but that our democratic institutions are vulnerable to erosion. The outline of the torture conspiracy is clear, but the full facts need to be exposed and the chain of responsibility definitively established. History will judge the Bush Administration's torture policy in the same harsh light as Jim Crow, McCarthyism and the Japanese-American internment. The conspirators must be held accountable.