Paradoxes of Torture and Scandal

The Washington Post

If Everybody Knew, Who’s To Blame?

Here’s a question: When was the last time American officials waterboarded a detainee? Well, that would be 2003 — six years ago. Here’s another: When did Americans first find out about it? That would be 2004 — five years ago. May 13, 2004, to be precise, in an article in the New York Times that informed readers that “C.I.A. interrogators used graduated levels of force, including a technique known as ‘water boarding,’ in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown.”

The first paradox of the torture scandal is that it is not about things we didn’t know but about things we did know and did nothing about. Beginning more than a half-dozen years ago, Bush administration officials broke the law and did repugnant things to detainees under their control. But if you think that the remedy is simple and clear — that all officials who broke the law should be tried and punished — then ask yourself what exactly the political elite of the country has been doing for the last five years. Or what it has not been doing. And why.

However much we would like the scandal to be confined to the story of what was done in those isolated rooms on the other side of the world where interrogators plied their arts, and in the air-conditioned government offices where officials devised “legal” rationales, the story includes a second narrative that tells of a society that knew about these things and chose to do nothing.

Unlike Watergate or Iran-contra, today’s scandal emerges not from a shocking revelation of wrongdoing but from a long process of disclosure during which Americans have stared at blatant lawbreaking with apparent equanimity. This means Democrats as well as Republicans, including those in Congress who were willing to approve, as late as September 2006, a law, the Military Commissions Act, that purported to shield those who had applied these “enhanced interrogation techniques” from prosecution under the War Crimes Act.

Though they could have filibustered the bill, Democrats let it pass into law. The midterm elections loomed, and it was no secret that the president had introduced the bill partly as a trap — a little bait that might allow any Democrat who spoke up against it to be accused of wanting to “coddle terrorists.” Having been burned by the “politics of fear” in 2002 and 2004, Democrats stood aside. Six weeks later, they won control of Congress.

The dirty little secret of the torture scandal and of all the loud expressions of outrage now clogging the country’s airwaves is that until very recently, the politics of torture cut in the opposite direction. This is why, although we have known the general narrative of torture since the summer of 2004, most politicians have been loath to do anything about it. Republicans ordered it and, then as now, supported its use — as long as they could call it something else. Democrats, on the defensive since 9/11 as the party of weakness on national security, saw no interest in taking up a cause perceived to be deeply unpopular. In the wake of 9/11, taking the gloves off was a badge of authenticity. Did Democrats really want to make themselves the party that stood for the rights of Khalid Sheik Mohammed?

The answer to this question, until recently, was no — as long, that is, as Americans could be assured that torture, called by whatever euphemism, was necessary to keep the country safe. Which is why Republicans from Dick Cheney on down have been unflagging in their arguments that these “enhanced interrogation techniques . . . were absolutely crucial” to preventing “a major-casualty attack.” This argument, still strongly supported by a great many Americans, is deeply pernicious, for it holds that it is impossible to protect the country without breaking the law. It says that the professed principles of the United States, if genuinely adhered to, doom the country to defeat. It reduces our ideals and laws to a national decoration, to be discarded at the first sign of danger.

This is why torture is at its heart a political scandal and why its resolution lies in destroying the thing done, not the people who did it. It is this idea of torture that must be destroyed: torture as a badge worn proudly to prove oneself willing to “do anything” to protect the country. That leads to the second paradox of torture: Even after all we know, the political task at hand — the first task, without which none of the others, including prosecutions, can follow — remains one of full and patient and relentless revelation of what was done and what it cost the country, authoritative revelation undertaken by respected people of both parties whose words will be heard and believed.

The outlines, long known, are being filled in. Several weeks ago I published in the New York Review of Books the report of the International Committee of the Red Cross, which gave detailed first-person accounts of those who were tortured at “the black sites.” Shortly thereafter, the Obama administration released four memorandums written by Justice Department lawyers that “made legal” the torture described in the Red Cross report. These are chilling documents, linked hand in hand in a bureaucratic danse macabre: detainees’ accounts of what was clearly torture and lawyers’ twisted rationale of why it was not.

The irony is that those Justice Department memos were written for just this moment: the moment when all would come to light. That they exist is a chronicle of scandal foretold. The memos are the true offspring of the Church Commission, the mid-1970s investigation of CIA wrongdoing that looms over this scandal and that changed forever how covert actions were conducted. Before Church, “black ops” were undertaken with no explicit legal order: If wrongdoing came to light, the president denied knowledge. After Church, the president was required to sign a “finding” making approval explicit. For former Vice President Cheney and others, the findings and other reforms that followed from Church — including FISA and other laws that limited the president’s power to use the CIA — were in essence when “the gloves went on.”

And so, after 9/11, when the gloves came off, there would be no deniability: All was documented with lawyers’ briefs and study group reports and official signatures. That leads to the third paradox of torture: Responsibility is spread so broadly, beginning, as they say, “at the highest level,” that the political problem is not whether, eventually, to prosecute but whom, and how high. Too many are implicated: George Tenet and others at the CIA saw to that. They foresaw precisely this moment, and they were determined, when the music stopped, not to be the only ones left standing with no chair.

And now, as the great clangorous machinery of Washington scandal rumbles into life, everywhere one looks former officials stand, without chairs and without places to hide.

If justice is allowed to follow its course, then some prosecutions will eventually come, but they alone cannot lead us back to political health. For that, President Obama and Congress need to authorize an authoritative bipartisan investigation of what was done and how, for that is the only way to destroy definitively the idea that the United States must torture to defend itself. For the moment, the president, an ambitious leader who wants to “look forward” and not back, sees only the political costs of such an inquiry, which will be considerable. But the country has already incurred those costs and the damage in not paying them now will be far greater.

Like most mystiques built on secrecy, the mystique of torture will only disappear once a cold hard light has been shone on it by trustworthy people who can examine all the evidence and speak to the country with authority. We need an investigation that will ruthlessly analyze the controversial and persistent assertions that torture averted attacks and will place alongside them the evidence that it has done great harm to the United States, not only to the country’s reputation for following and upholding the law but also to its ability to render justice. In torturing Khalid Sheik Mohammed and his fellows we have created a class of permanent martyrs, unjustly imprisoned in the eyes of the world because they cannot be legitimately tried and punished. We have let torture destroy justice.

Those who break the law should be punished. This includes those who torture no less than those who kill. But prosecutions of those who tortured, if they come before a public investigation, will not end the argument. On the contrary, they will appear to much of the country as yet another partisan turn in the bitter politics of national security, launched to persecute those who only did what was necessary to protect the country. They will encourage those who defend torture to espouse even more bitterly a corrosive counter-narrative according to which only those who torture can be trusted to protect Americans.

To expose this dark counter-narrative to the light of day, to flood it with light and then destroy it, is the vital political task, not only for today but for tomorrow, when the pressures to believe it, in the wake of a further act of mass destruction could well prove irresistible. If that happens, America will become something wholly different — and the paradoxes of torture will have entangled us all.

Mark Danner, a professor at the University of California at Berkeley and at Bard College, is the author of “Torture and Truth: America, Abu Ghraib and the War on Terror.”