Practically everyone from U.S. President Barack Obama to newspaper columnists has reacted to the bombing of the Boston Marathon by declaring that Americans will not abandon their daily habits, or their deepest values, in the face of another terrorist attack. Be it so. But a report on the torture of detainees in the United States and abroad, released the day after the Boston attack, painfully reminds us of what America's leaders permitted themselves to do -- and the American people permitted them to do -- in the aftermath of the 9/11 attacks. And there is little reason to be confident that it wouldn't happen again.
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The report of the Constitution Project's Task Force on Detainee Treatment concludes that "it is indisputable that the United States engaged in the practice of torture." We knew that, of course. But this 577-page report not only reminds us of every sickening thing the United States did in the name of protecting Americans from the threat of terrorist attack, but it comes under the unimpeachably bipartisan seal of co-chairs James R. Jones, a former Democratic congressman from Oklahoma, and Asa Hutchinson, a former Republican congressman from Arkansas who later served in George W. Bush's Department of Homeland Security. That matters: Leading members of the Bush administration, most notoriously Vice President Dick Cheney, continue to insist that they did not, in fact, engage in torture.
The report offers a kind of road map for how a democracy goes about doing things that are repugnant to its principles. Military dictators can simply order dissidents to be pushed out of planes into the sea or thrown into prison to rot; the political leaders of a democracy need the legitimacy of law to justify otherwise despicable acts, whether it's Jim Crow legislation or the fraudulent treaties that drove Native Americans from their land.
How were prisoners seized in Afghanistan to be treated once they were brought back to the detention facility at Guantánamo Bay? Military men tended to assume that they would be treated according to the well-known laws of war. The judge advocates general of the military services believed that the Geneva Conventions had to apply to detainees. But Defense Secretary Donald Rumsfeld ruled that interrogators could use "enhanced techniques" forbidden by the conventions, adding the dark joke that forcing prisoners to stand for up to four hours was too lenient, since he often stood eight to 10 hours a day. Prolonged standing was, of course, the least of it: Mohammed al-Qahtani, thought to be the "20th hijacker," was subjected to extreme stress positions as well as extreme cold, injected with large quantities of intravenous fluid so that he urinated on himself, led around on a leash and forced to bark like a dog, etc.
The report describes how Alberto Mora, general counsel of the Navy, innocently imagined that the reports he had heard of detainee abuse at Guantánamo must be the result of "a rogue operation." Mora told Rumsfeld's chief counsel that a scandal, and a moral catastrophe, was in the making. Rumsfeld agreed to impanel a review -- but brought in John Yoo, the White House lawyer who had already written the memo granting the CIA the right to use enhanced techniques. Yoo reproduced his reasoning for Rumsfeld. But when Mora heard nothing further, he thought he and the judge advocates general had carried the day. In fact, Rumsfeld's office had produced a secret final report that incorporated Yoo's argument. Torture at Gitmo would thus have the formal imprimatur of the military's own judicial authorities. It would be not just legal, but legitimate.
Again and again, men of principle, often in uniform, insisted that torture was neither legal nor legitimate. They were browbeaten and threatened, sometimes physically. When Jack Goldsmith, who had taken Yoo's job at the Office of Legal Counsel, tried to overturn Yoo's findings, David Addington, Cheney's attack-dog legal counsel, shouted at him: "The president has already decided that terrorists do not receive Geneva Convention protections.… You cannot question his decision." Of course Bush, Cheney, and Rumsfeld never authorized torture; instead, they made it clear that anything done to detainees would be considered legal. And though torture is by definition illegal, even the most savage punishment would not constitute torture.
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