Argument

Rewarding Impunity

Why is President Obama's attorney general handing out prizes for sweeping torture under the rug?

On Oct. 17, Eric Holder handed out the Justice Department's annual awards for distinguished service to a slew of department employees. Featured at the top of the awards announcement were the men and women who successfully prosecuted 10 New Orleans police officers for killing innocent civilians in the wake of Hurricane Katrina, and a U.S. marshal who risked his life to protect a victim from a violent fugitive during the fugitive's capture. But buried at the bottom of the list -- the 13th of 14 "distinguished service awards" -- was a more unusual awardee: Assistant U.S. Attorney John Durham. Durham and his team received the award not for bringing anyone to justice, but for declining to hold accountable anyone in the CIA for its brutal interrogations of detainees at secret prisons, or "black sites," in connection with President George W. Bush's "war on terror."

"In order to conduct the investigations," the citation reads, "the team had to review significant amounts of information, much of which was classified, and conduct many interviews in the United States and at overseas locations."

There's no question that Durham worked hard for a long time, and that the investigation was complex and substantial. After all, more than 100 men were "disappeared" into the CIA's black sites for extended incommunicado detention and interrogation. Because the CIA prisons were a secret, everything that happened there is classified, complicating investigation still further. And because the investigation itself is secret, we can't know precisely what evidence Durham considered, what roadblocks he faced, what judgment calls he made.

But here's what we do know. Many of those "disappeared" into the CIA's black sites were tortured and/or illegally subjected to cruel, inhuman, and degrading treatment. Abu Zubaydah and Khalid Sheikh Mohammed, for example, were waterboarded 83 and 183 times, respectively. They and other detainees were stripped naked, doused with water, beaten about the face and stomach, slammed into walls, deprived of sleep for days on end, forced into painful stress positions, and confined in small dark boxes for hours at a time. And these were just the "authorized" torture tactics, given a green light by a secret memo written in August 2002 by John Yoo and Jay Bybee from the Justice Department's Office of Legal Counsel, and specifically okayed by President Bush, Vice-President Dick Cheney, National Security Adviser Condoleezza Rice, Attorney General John Ashcroft, and White House Counsel Alberto Gonzales, among others.

We also know, thanks to the CIA's own Inspector General, that CIA interrogators in the black sites went beyond even the illegal brutality authorized by high-level officials. One detainee was threatened with a handgun and a power drill. A mock execution was staged next to a detainee's cell. Interrogators threatened to kill the children of another detainee if he didn't tell them what they wanted to know.

We also know that in 2005, CIA higher-up Jose Rodriguez ordered the destruction of videotapes of two of those interrogations, shortly after the Washington Post revealed the existence of the CIA secret prisons where the interrogations took place, and while the tapes were under request from several courts and a Senate committee looking into charges of abuse.

Durham cleared everyone in the CIA of accusations of wrongdoing. Does he deserves a medal for that? Maybe so, but then there are a few other recipients the attorney general left out. Surely John Yoo and Jay Bybee deserve medals for making the interrogations possible in the first place, by issuing a memo that Jack Goldsmith, director of the Office of Legal Counsel after Bybee, has called a "get out of jail free card." Goldsmith himself, along with his successors as OLC heads under Bush -- Daniel Levin and Steven Bradbury -- also deserve medals for secretly allowing the torture tactics to continue even after the administration rescinded the initial memo when the Post published it. Tellingly, the Bush administration could not publicly defend, even for a moment, what everyone had signed off on in secret; but Goldsmith, Levin, and Bradbury ensured, in subsequent secret memos and authorizations, that the CIA's illegal program could go on.

And what about Rodriguez himself, who valiantly ordered the destruction of the best evidence of the torture tactics? Surely erasing that evidence made it easier to clear all of responsibility, and warrants still another medal for distinguished service.

But why stop there? What about the planners of the Guantánamo Bay military commission courtroom, who installed a thick Plexiglass wall between the well of the courtroom, where the defendants will sit, and the public, for the express purpose of shutting off the sound anytime a defendants dares utter a word about his torture at the hands of the CIA's interrogators? Or the unnamed government official who made the brilliant and Orwellian decision to classify the detainee's own accounts of what they suffered in the CIA black sites, ensuring that neither they nor their lawyers can talk publicly about what happened?

And while he's at it, why not give an award to David Margolis, the Justice Department official who vetoed the department's own Office of Professional Responsibility, which had recommended referring Yoo and Bybee to their respective state bars for disciplinary charges in connection with the legal memos they wrote authorizing torture? And for that matter, President Barack Obama certainly deserves a medal for insisting that we must look forward, not back, and opposing even a bipartisan commission to examine the war crimes committed in our name.

All of these individuals played a critical role, surely as essential as John Durham's, in ensuring that no one would be accountable for the cruel and inhuman abuses that CIA interrogators inflicted on their captives. Why should Durham be the only one honored for ensuring that in America, no one even has to say sorry for torture?

AFP PHOTO/HO/US ARMY

National Security

Bar Nunn

The U.S. and Russia never really cured their nuclear mistrust. And now it's come back.

Nunn-Lugar, the post-Cold War program best known for securing "loose nukes," is probably coming to end -- at least in Russia. Deputy Russian Foreign Minister Deputy Foreign Minister Sergei Ryabkov told Interfax, "The agreement doesn't satisfy us, especially considering new realities." Realities are such a bummer.

There is some hope that the United States and Russia might yet save the Nunn-Lugar program, but the "new realities" mentioned by Ryabkov have been slowly strangling the bilateral arms control process. For two decades, our bilateral arms control efforts with Russia have been largely about reducing our bloated nuclear arsenals. Although those reductions were welcome, they were never the most important part of the process. The promise of arms control with the Russians was always more about building a more stable relationship -- initially with nuclear weapons and then perhaps, dare to dream, the security of a world without them. But neither side managed to create a truly cooperative effort to manage nuclear dangers. We've failed. And now, the two countries are running out of reductions to make, leaving only an awkward inability to deal with the real issues that truly threaten us.

Nunn-Lugar, which is formally known as Cooperative Threat Reduction, was a creation of a very specific moment, when the Soviet Union and what remained of its economy collapsed. The time was deeply traumatic, with the mortality rate jumping by 60 percent. Millions of former Soviet citizens couldn't care for themselves, let alone a massive nuclear stockpile. Nunn-Lugar provided funds and expertise to help Russia meet its arms control commitments at a time when Moscow was unable to do so itself. This was no mere altruistic foreign aid program. This was a hard-nosed calculation about where our interests lay in a moment of genuine danger. We purchased something for all that money: the dismantlement of actual nuclear weapons and, importantly, access to Russia's dismantlement complex.

That sort of transparency is very useful. You will find a healthy body of opinion that argues that the verification measures are the real contribution of arms control agreements, with the reductions simply making for a nice press release. That's probably too strong; still, Nunn-Lugar was part of an unprecedented set of verification measures, one that placed American contractors inside the Russian dismantlement process. If you are free to peruse the State Department cables compromised by Wikileaks, you will notice a perfect example of the value of Nunn-Lugar. During the negotiations over New START, the United States and Russia disagreed about the procedure for verifying the dismantlement of ballistic missile submarines. A classified U.S. cable noted the verification challenge might be managed through Nunn-Lugar. "If Cooperative Threat Reduction (CTR) funds are used to scrap the submarines, which has been the case for the past 10 years, the U.S. side will have the opportunity to correlate trusted agent reports from the CTR contractors to see whether the submarine had been fully scrapped."

Russian officials were willing to view the access as confidence-building, not spying. Perhaps owing to Russian sensitivities, U.S. officials seldom emphasized this obvious benefit of the CTR program. There was no need to rub their noses in it.

The Russians are no longer willing to be so tolerant, making Nunn-Lugar the latest casualty in the chill between Moscow and Washington. As a cause célèbre, it is considerably less sexy that Pussy Riot. But it is as important in so much as the thousands of nuclear weapons that each side retains pose an existential threat to us all.

Perhaps because our common interest in managing our shared nuclear danger is so obvious, we all expected cooler heads to prevail. Nunn-Lugar was too important to just let lapse, right? Administration officials were optimistic as recently as this spring. The rest of us were probably guilty of wishful thinking or perhaps just an inability to imagine a world without CTR.

There were troubling signs during the 2008 negotiations to replace the expiring START treaty, had we looked. Most outside experts, myself included, believed the difficult issues between the United States and Russia would relate to the numerical ceilings -- how many warheads and delivery vehicles? -- because the United States had a substantial advantage in "upload" (the ability to put warheads back on delivery vehicles if Joe Stalin were to come back to life). In fact, those issues proved relatively easy to finesse. But the negotiations stalled as the Russians made a concerted effort to eliminate two hard-won verification measures from the START treaty. In particular, the Russians wanted to end monitoring at the Votkinsk missile plant and to end the exchange of telemetry data from missile tests.

As negotiations dragged on, START expired and the administration dispatched Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, to persuade the Russian chief of the General Staff to come around. Ultimately, it took presidential intervention to resolve the issue. Dmitry Medvedev, then the Russian president, joked that he had discussed verification issues with President Obama so many times that "telemetry" was now his favorite English word. In the end, although the verification regime contained some promising elements, Russia succeeded in ending monitoring at Votkinsk and leaving only a symbolic telemetry exchange in place.

Officially, Russia's complaints were about reciprocity -- Russia is building new missiles while the United States is not. Russia has deployed the RS-24 mobile ICBM, which some U.S. experts believe not unreasonably is a new type of missile deployed in violation of the START treaty. The Russians are also issuing contracts for a new liquid-fueled ICBM, which is madness. Moreover, these new Russian ICBMS are being developed with an eye toward defeating U.S. missile defenses. As a result, Russia has interesting things for American inspectors to look at. The United States, conversely, has little to offer Russian inspectors.

Now, the Russians say they want to end CTR. Again, the Russians arguments concern equity -- too much of the CTR funds are spent on U.S. contractors, the liability agreement that absolves them from any damage they may do is an insult to national dignity, Russia is no longer poor and, unlike the United States, the national budget is not consistently in the red. But the real reason for Russia taking all three steps -- ending monitoring at Votkinsk, telemetry exchanges, and now Nunn-Lugar -- is the same: to get us the hell out of their pants.

Nunn-Lugar is a victim of a failure by both governments to transform the arms reduction process into a genuine effort to enhance strategic stability. The George H.W. Bush and Clinton administrations attempted to broaden US-Russian cooperation beyond reductions by negotiating a ban on multiple warheads for land-based missiles, a plan to share early warning data with Russia, and demarcation agreements to preserve the ABM Treaty. Much of the blame for the failure of these efforts rests with the Russians, though Moscow's objections to how the United States consolidated its post-Cold War security gains, including the expansion of NATO, were not without merit. Historians will not judge Washington a generous victor after the Cold War, which helps explain the broader failure of democratic institutions in Russia and the chill in relations. The Treaty of Versailles is too damning a comparison, but neither was there a Marshall Plan. Well, except for Nunn-Lugar. Perhaps this is why Cooperative Threat Reduction always seemed so inspired and resilient.

Still, good people in Moscow and Washington attempted to preserve the process of reductions long after the political winds ceased to be favorable. What these people were able to preserve, at considerable political cost, was an arms control process that was little more than a holding action, a series of incremental reductions made with little or no strategic rationale beyond preserving past gains. That's not saying the reductions in the 2002 Moscow Treaty and 2010 New START treaty were unnecessary or incorrect -- or that we should forego further cuts. Both sides have many more nuclear weapons than can plausibly play a role in our security. But eliminating excess, while welcome, is not enough to address the real factors that add to the risk of nuclear war. Indeed, I have sneaking suspicion that we don't even fully recognize what those factors are.

We may be wrong about what frightens the Russians. In recent years, American officials have been driven bonkers by Russia's refusal to accept their assurances that missile defense interceptors in deployed in Europe won't threaten Russia's deterrent. The United States shows PowerPoint slide after PowerPoint slide to demonstrate the physical impossibility that these interceptors could hit a Russian ICBM. The Russians remain unmollified. Frustrated U.S. officials claim the Russians either don't understand or don't want to.

There is another possibility, of course, which is that the Russians are not being frank about their concerns with the United States. It is not too hard to imagine, for example, that the Russian General Staff would have little interest in providing an itemized list of vulnerabilities to the United States. Yet if the Russians don't wish to tell us what ails them, perhaps we can divine it. There is the notion of revealed preference -- the notion that observable acts may reveal preferences of which an actor is not even consciously aware.

Here are two candidates: In September 2009, Secretary of Defense Robert Gates noted that the Russians had expressed concern that U.S. missile defense interceptors in Europe "could be fitted with nuclear weapons and become an offensive weapon like a Pershing and a weapon for which they would have virtually no warning time." (The United States and Soviet Union prohibited such missiles under the 1987 INF Treaty.) He said it was hard to believe, but that the Russians apparently meant it. A senior official later told me he didn't expect to hear that in an unclassified setting. I've never heard it again. Second, in the context of the New START negotiations, the Russians insisted on a ban on converting ICBM silos to house missile defense interceptors and vice-versa. This nearly killed the treaty, by the way.

It is a funny sort of paranoid fantasy, the notion that the United States might place nuclear weapons on missile defense interceptors and use them to decapitate the Russian leadership in Moscow. But I suspect this is the rub. The simplest explanation for Russia's overwhelming concern with missile defense is that the General Staff fears that Russia is much, much more vulnerable to an attack against the country's command-and-control infrastructure -- what used to be called decapitation -- than we realize.  Part of this is a fear missile defense interceptors could be armed as offensive missiles, part of it is that missile defenses could mop up a disorganized Russian retaliation.  Most of it, however, is probably sheer terror at the persistent technological advantage held by the United States in light of Russian vulnerabilities.

This is what makes our failure to extend arms control beyond mere reductions so dangerous. The Russians are, I suspect, convinced that they cannot count on being able to command their forces following an attack  They believe they are dangerously, provocatively vulnerable. And, as a result, they make strange, dangerous, and seemingly irrational decisions. Which brings us to Perimeter.

Perhaps you've heard of Perimeter? It's better known as the Dead Hand -- a large automated system the Soviets began constructing sometime in the late 1970s or early 1980s that could launch strategic forces in the event that the leadership was destroyed. Although it is commonly portrayed as a Doomsday Machine, journalist Nick Thompson -- Paul Nitze's grandson by the way -- has explained that Soviet leaders thought Perimeter might be stabilizing. "Perimeter also bought the Soviets time," Thompson wrote. "If Soviet radar picked up an ominous but ambiguous signal, the leaders could turn on Perimeter and wait." It has a certain sort of logic, if you are a paranoid septuagenarian Soviet apparatchik. It is also a nuclear nightmare waiting to happen.

The current Russian leadership is populated by the direct descendants of the people who propsed, built, and operated the Dead Hand and nearly took the world to nuclear war in 1983 over a NATO command post exercise. (The current chief of staff of the Russian Armed Forces started his career as a platoon leader with the Group of Soviet Forces, Germany in the 1970s.) Perhaps they don't come to nice luncheons at Washington think tanks. If they do, they certainly don't detail Russia's command vulnerabilities over Chicken Kiev. But they exist and arms control is about managing their fears.

Of course, finding a way to address the Russian fear that their command system would not survive an attack is extraordinarily difficult. It is far more sensitive than anything we've managed to negotiate in an arms control treaty. In an era when U.S. and Russian negotiators cannot so much as raise the issue of missile defenses without triggering a hostile reaction from a healthy section of the U.S. Congress, what chance to do we have to discuss command vulnerability? Congressional opponents of New START screamed about preambular language in the treaty noting the relationship between offensive and defensive forces. They depicted the ban on placing missile defense interceptors in ICBM silos as a furious assault on U.S. missile defense programs, nay, our American way of life. And now we are going to discuss nuclear weapons, missile defenses, and conventional strike in terms of the holiest of holies: command and control? You'd have a better chance of getting a strip club recommendation from the Pope. (I have at least one suggestion, but it's pretty modest.) Yet, this is the spot we're in -- with perhaps one more round of reductions remaining before we and the Russians are left alone, with our failure to fundamentally change the most dangerous dynamic of the Cold War. That's what we'll miss most about Nunn-Lugar.

Some people will say that most of the reductions were already done and that Russia can certainly afford the rest. They will be right. They will also point out that the ongoing U.S. and Russian modernization of their nuclear forces won't result in anything like the Cold War arms race. But all this will miss an important point about not just what Nunn-Lugar did, but what it symbolized: a moment in the U.S.-Russian relationship when everything in the past no longer seemed determined and a different future seemed possible. Even if Nunn-Lugar persist in Russia under some different arrangement, it is now impossible to overlook the "new" realities that look a lot like the old ones from the Cold War.  Maybe the Nunn-Lugar program was just part of a long Indian summer between periods of nuclear cold between Moscow and Washington. I will miss that moment.

 

Updated: Several sentences in this article have been edited to improve clarity.

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