Adopting Bush's Positions
An argument can be made that implementation of the CIA's "torture paradigm" never violated the 1984 Torture Convention, at least as Washington interpreted it. McCoy points out that the highly sophisticated CIA paradigm developed at enormous cost in the 1950s and 1960s, based on the "KGB's most devastating torture technique," kept primarily to mental torture, not crude physical torture, which was considered less effective in turning people into pliant vegetables.
McCoy writes that the Reagan administration then carefully revised the International Torture Convention "with four detailed diplomatic 'reservations' focused on just one word in the convention's 26-printed pages," the word "mental." He continues: "These intricately-constructed diplomatic reservations re-defined torture, as interpreted by the United States, to exclude sensory deprivation and self-inflicted pain—the very techniques the CIA had refined at such great cost."
When Clinton sent the UN Convention to Congress for ratification in 1994, he included the Reagan reservations. The president and Congress therefore exempted the core of the CIA torture paradigm from the U.S. interpretation of the Torture Convention; and those reservations, McCoy observes, were "reproduced verbatim in domestic legislation enacted to give legal force to the UN Convention." That is the "political land mine" that "detonated with such phenomenal force" in the Abu Ghraib scandal and in the shameful Military Commissions Act that was passed with bipartisan support in 2006.
Bush, of course, went beyond his predecessors in authorizing prima facie violations of international law, and several of his extremist innovations were struck down by the Courts. While Obama, like Bush, eloquently affirms our unwavering commitment to international law, he seems intent on substantially reinstating the extremist Bush measures. In the important case of Boumediene v. Bush in June 2008, the Supreme Court rejected as unconstitutional the Bush administration claim that prisoners in Guantanamo are not entitled to the right of habeas corpus.
Salon.com columnist Glenn Greenwald reviews the aftermath. Seeking to "preserve the power to abduct people from around the world" and imprison them without due process, the Bush administration decided to ship them to the U.S. prison at Bagram Air Base in Afghanistan, treating "the Boumediene ruling, grounded in our most basic constitutional guarantees, as though it was some sort of a silly game—fly your abducted prisoners to Guantanamo and they have constitutional rights, but fly them instead to Bagram and you can disappear them forever with no judicial process."
Obama adopted the Bush position, "filing a brief in federal court that, in two sentences, declared that it embraced the most extremist Bush theory on this issue," arguing that prisoners flown to Bagram from anywhere in the world (in the case in question, Yemenis and Tunisians captured in Thailand and the United Arab Emirates) "can be imprisoned indefinitely with no rights of any kind—as long as they are kept in Bagram rather than Guantanamo."
In March, however, a Bush-appointed federal judge "rejected the Bush/Obama position and held that the rationale of Boumediene applies every bit as much to Bagram as it does to Guantanamo." The Obama administration announced that it would appeal the ruling, thus placing Obama's Department of Justice, Greenwald concludes, "squarely to the Right of an extremely conservative, pro-executive-power, Bush 43-appointed judge on issues of executive power and due-process-less detentions," in radical violation of Obama's campaign promises and earlier stands.
The case of Rasul v. Rumsfeld appears to be following a similar trajectory. The plaintiffs charged that Rumsfeld and other high officials were responsible for their torture in Guantanamo, where they were sent after being captured by Uzbeki warlord Rashid Dostum. The plaintiffs claimed that they had traveled to Afghanistan to offer humanitarian relief. Dostum, a notorious thug, was then a leader of the Northern Alliance, the Afghan faction supported by Russia, Iran, India, Turkey, and the Central Asian states, and the U.S. as it attacked Afghanistan in October 2001.
Dostum turned them over to U.S. custody, allegedly for bounty money. The Bush administration sought to have the case dismissed. Recently, Obama's Department of Justice filed a brief supporting the Bush position that government officials are not liable for torture and other violations of due process, on the grounds that the Courts had not yet clearly established the rights that prisoners enjoy.
It is also reported that the Obama administration intends to revive military commissions, one of the more severe violations of the rule of law during the Bush years. There is a reason, according to William Glaberson of the New York Times: "Officials who work on the Guantanamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies." A serious flaw in the criminal justice system, it appears.
There is still much debate about whether torture has been effective in eliciting information—the assumption being, apparently, that if it is effective, then it may be justified. By the same argument, when Nicaragua captured U.S. pilot Eugene Hasenfuss in 1986, after shooting down his plane delivering aid to U.S.-supported Contra forces, they should not have tried him, found him guilty, and then sent him back to the U.S., as they did. Instead, they should have applied the CIA torture paradigm to try to extract information about other terrorist atrocities being planned and implemented in Washington, no small matter for a tiny, impoverished country under terrorist attack by the global superpower.
By the same standards, if the Nicaraguans had been able to capture the chief terrorism coordinator, John Negroponte, then U.S. ambassador in Honduras (later appointed as the first Director of National Intelligence, essentially counterterrorism czar, without eliciting a murmur), they should have done the same. Cuba would have been justified in acting similarly, had the Castro government been able to lay hands on the Kennedy brothers. There is no need to bring up what their victims should have done to Henry Kissinger, Ronald Reagan, and other leading terrorist commanders, whose exploits leave al-Qaeda in the dust, and who doubtless had ample information that could have prevented further "ticking bomb" attacks.
Such considerations never seem to arise in public discussion.
There is, to be sure, a response: our terrorism, even if surely terrorism, is benign, deriving as it does from the city on the hill.
Perhaps culpability would be greater, by prevailing moral standards, if it were discovered that Bush administration torture had cost American lives. That is, in fact, the conclusion drawn by Major Matthew Alexander [a pseudonym], one of the most seasoned U.S. interrogators in Iraq, who elicited "the information that led to the US military being able to locate Abu Musab al-Zarqawi, the head of al-Qa'ida in Iraq," correspondent Patrick Cockburn reports.
Alexander expresses only contempt for the Bush administration's harsh interrogation methods: "The use of torture by the U.S.," he believes, not only elicits no useful information but "has proved so counter-productive that it may have led to the death of as many U.S. soldiers as civilians killed in 9/11." From hundreds of interrogations, Alexander discovered that foreign fighters came to Iraq in reaction to the abuses at Guantanamo and Abu Ghraib, and that they and their domestic allies turned to suicide bombing and other terrorist acts for the same reasons.
There is also mounting evidence that the torture methods Dick Cheney and Donald Rumsfeld encouraged created terrorists. One carefully studied case is that of Abdallah al-Ajmi, who was locked up in Guantanamo on the charge of "engaging in two or three fire fights with the Northern Alliance." He ended up in Afghanistan after having failed to reach Chechnya to fight against the Russians.
After four years of brutal treatment in Guantanamo, he was returned to Kuwait. He later found his way to Iraq and, in March 2008, drove a bomb-laden truck into an Iraqi military compound, killing himself and 13 soldiers—"the single most heinous act of violence committed by a former Guantanamo detainee," according to the Washington Post, and according to his lawyer, the direct result of his abusive imprisonment.
All much as a reasonable person would expect.
Another standard pretext for torture is the context: the "war on terror" that Bush declared after 9/11. A crime that rendered traditional international law "quaint" and "obsolete"—so George W. Bush was advised by his legal counsel Alberto Gonzales, later appointed Attorney General. The doctrine has been widely reiterated in one form or another in commentary and analysis.
The 9/11 attack was doubtless unique in many respects. One is where the guns were pointing: typically it is in the opposite direction. In fact, it was the first attack of any consequence on the national territory of the United States since the British burned down Washington in 1814.
Another unique feature was the scale of terror perpetrated by a non-state actor.
Horrifying as it was, however, it could have been worse. Suppose that the perpetrators had bombed the White House, killed the president, and established a vicious military dictatorship that killed 50,000 to 100,000 people and tortured 700,000, set up a huge international terror center that carried out assassinations and helped impose comparable military dictatorships elsewhere, and implemented economic doctrines that so radically dismantled the economy that the state had to virtually take it over a few years later.
That would indeed have been far worse than September 11, 2001. And it happened in Salvador Allende's Chile in what Latin Americans often call "the first 9/11" in 1973. (The numbers above were changed to per-capita U.S. equivalents, a realistic way of measuring crimes.) Responsibility for the military coup against Allende can be traced straight back to Washington. Accordingly, the otherwise quite appropriate analogy is out of consciousness here in the U.S., while the facts are consigned to the "abuse of reality" that the naïve call "history."
It should also be recalled that Bush did not declare the "war on terror," he re-declared it. Twenty years earlier, President Reagan's administration came into office declaring that a centerpiece of its foreign policy would be a war on terror, "the plague of the modern age" and "a return to barbarism in our time"—to sample the fevered rhetoric of the day.
That first U.S. war on terror has also been deleted from historical consciousness, because the outcome cannot readily be incorporated into the canon: hundreds of thousands slaughtered in the ruined countries of Central America and many more elsewhere, among them an estimated 1.5 million dead in the terrorist wars sponsored in neighboring countries by Reagan's favored ally, apartheid South Africa, which had to defend itself from Nelson Mandela's African National Congress (ANC), one of the world's "more notorious terrorist groups," as Washington determined in 1988. In fairness, it should be added that, 20 years later, Congress voted to remove the ANC from the list of terrorist organizations, so that Mandela is now, at last, able to enter the U.S. without obtaining a waiver from the government.
The reigning doctrine of the country is sometimes called "American exceptionalism." It is nothing of the sort. It is probably close to a universal habit among imperial powers. France was hailing its "civilizing mission" in its colonies, while the French Minister of War called for "exterminating the indigenous population" of Algeria. Britain's nobility was a "novelty in the world," John Stuart Mill declared, while urging that this angelic power delay no longer in completing its liberation of India.
Similarly, there is no reason to doubt the sincerity of Japanese militarists in the 1930s, who were bringing an "earthly paradise" to China under benign Japanese tutelage, as they carried out the rape of Nanking and their "burn all, loot all, kill all" campaigns in rural North China. History is replete with similar glorious episodes.
As long as such "exceptionalist" theses remain firmly implanted, however, the occasional revelations of the "abuse of history" often backfire, serving only to efface terrible crimes. The My Lai massacre was a mere footnote to the vastly greater atrocities of the post-Tet pacification programs, ignored while indignation in this country was largely focused on this single crime.
Watergate was doubtless criminal, but the furor over it displaced incomparably worse crimes at home and abroad, including the FBI-organized assassination of black organizer Fred Hampton as part of the infamous COINTELPRO repression, or the bombing of Cambodia, to mention just two egregious examples. Torture is hideous enough; the invasion of Iraq was a far worse crime. Quite commonly, selective atrocities have this function.
Historical amnesia is a dangerous phenomenon, not only because it undermines moral and intellectual integrity, but also because it lays the groundwork for crimes that still lie ahead.
Noam Chomsky is Institute Professor (retired) at MIT. He is the author of many books and articles on international affairs and social-political issues, and a long-time participant in activist movements.
[Note: A slightly longer version of this piece, fully footnoted, will be posted at Chomsky.info within 48 hours.]