The final memos are out, another smoking gun, demonstrating how the Justice Department’s Office of Legal Counsel (OLC), through the “analyses” of its officials, Jay Bybee, Steven Bradbury, and John Yoo, provided legal cover for the Bush administration’s desired regime of torture.

A very telling example, not of the specifics of the authorized torture, available elsewhere in the memos (see Glenn Greenwald’s thorough presentation), is in this self-conscious recognition of hypocrisy, also courtesy of Greenwald:


Another self-conscious give away is in Bradbury’s memo of May 30, 2005, in which he argues

By its terms, Article 16 [of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment] is limited to conduct within “territory under [United States] jurisdiction. We conclude that territory under United States jurisdiction includes, at most, areas over which the United States exercises at least de facto authority as the government. Based on CIA assurances, we understand that the interrogations do not take place in any such areas.

In other words, we violate the convention against torture if we conduct the activities in territory under U.S. jurisdiction. We are not conducting the activity in such territory (rather in “black sites in foreign nations), so we are not violating the convention. Therefore we are not torturing.

Anyone remember Bill Clintion’s original protestation about whether he had ever smoked pot that he had never broken a law of the United States (because, as it turned out, he had smoked pot in England, and it isn’t against the law of the United States to smoke pot in England)?

President Obama repeats, even as he releases information providing evidence of crimes, that we should move on. I believe (time will show whether I’m right) that Obama recognizes the political and social dangers of his own pursuit of this matter. With the information available, the justice might better originate in a demand from the general public enacted by congressional hearings and legal proceedings. One President is better not conceived as the prosecutor of another.

I’m of two minds about the protection the President has offered CIA interrogators. The Nuremburg Principle, no “defense of superior orders,” should apply:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

However, anyone who believes security threats to the nation to be real has to recognize that large scale prosecutions at the CIA would severely damage our intelligence apparatus for years – well beyond the very real effects of the post-Nixon 1970s reforms. And as with Abu Ghraib, the U.S. has been far too adept at bringing frontline foot soldiers to account while covering up for decision makers. This time it needs to be different. (And Marc Ambinder suggests that the CIA protection is carefully limited)

Those at the OLC, Bush, Cheney, Rumsfeld, Cheney’s chief of staff, David Addington, others, all need to be brought to account. If Argentina can bring its juntas to justice, if Chile is able, ultimately, too reckon with Pinochet, if South Africa is capable of producing a “truth and reconciliation” commission, what is the United States if it cannot confess the tortures of its own dark hour?

There are those will not want to listen because it is too painful to acknowledge, and they will not trust, politically, those who pursue this issue. There are those who will always defend, always rationalize, because they believe themselves patriots (and are, in their hearts). But this is the lesson of history. Few are Stalin. Many more are, indeed, Pinochet, who believed he was saving his country and did what he did, he believed, for the benefit and future of his country. So did the Argentine generals. So did Poland’s General Jaruzelski when he imposed martial law in 1981 and imprisoned the leaders of Solidarity. There was the threat of Soviet invasion. He was a patriot trying to save his nation. They are almost always patriots trying to save their nation.

In Arthur Koestler’s classic Darkness at Noon (here and here), the great psychologicaldarkness_at_noon_cover revelation in the Soviet purge inspired interrogation sessions is the capacity of the human mind to convince itself of anything, even, in the end, so that Rubashov will accept a logic that leads him confess to crimes he did not commit – for the good of the party and the country.

They are not cartoon criminals with fine-pointed mustaches. They believe what they are doing is the right, the good thing. So very often what is wrong is what is right losing its way. That is why it is so hard.

The United States is a great nation that – like nations all around the globe, in the sublime and sordid human story – has black marks against its name. This blog is dedicated, in part, to the examination of one of them. If the subverters of so many of the ideals on which this nation prides itself are not held to account, it will be a mark that can never smudge of fade.


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