War Crimes?

In February, CIA Director Michael Hayden admitted that waterboarding, long considered torture, had been used on three terrorist suspects. When questioned about this, a spokesperson for the Bush administration claimed that waterboarding is legal, and that the president could authorize its use.

Sadly, the U.S. public’s reaction to this and other revelations about the administration’s scandalous justifications for the use of “enhanced interrogation techniques” remains muted. Hearings in both the Senate and the House in June attempted to establish the origins of this policy and to debunk the administration’s efforts to blame a few “rotten apples” far down the chain of command for the abuse of prisoners at Abu Ghraib and elsewhere. In a piece of Orwellian doublespeak, President George W. Bush and countless administration spokespersons insist that the United States “doesn’t torture.” Yet the evidence that the cruel and inhumane treatment of prisoners, illegal under U.S. and international law, is “standard operating procedure” is incontrovertible. Writing in the preface to a new report from Physicians for Human Rights (Broken Laws, Broken Lives), retired Army Major General Antonio Taguba, the officer who investigated abuse at Abu Ghraib, argues that the Bush administration has committed war crimes.

The interrogation policy, which has resulted in the deaths of more than a hundred detainees, was instituted at the highest levels of the administration. Abusive interrogation, strongly resisted by military lawyers at every level, was in fact the brainchild of a small group of administration-appointed lawyers. Among those responsible were John Yoo of the Justice Department, one of the authors of the now notorious “torture memo,” former White House Counsel Alberto Gonzales, former Defense Department General Counsel William J. Haynes II, and David Addington, Vice President Dick Cheney’s chief of staff. Addington is widely suspected to have pushed the policy through the government bureaucracy on behalf of the president, vice president, and Secretary of Defense Donald Rumsfeld.

Yoo, Haynes, and Addington finally appeared before Congress last month. Their testimony was evasive at best. Both Haynes and Yoo insisted that as lawyers their role was merely advisory and that “policy” decisions were made by others. Yet it was their dubious argument for the expansive, if not unchecked, authority of the president during “wartime” that became administration policy. At the very least, however, government lawyers have an obligation not merely to advocate for the interests of their “client,” the president, but to uphold the Constitution and the larger public good. The disastrous moral and political consequences of the supposedly value-neutral “legal” advice of the president’s lawyers were not hard to foresee.

Defenders of “enhanced interrogation” argue that the president and his lawyers had the moral clarity and the courage to face up to the unprecedented threat posed by Al Qaeda in the aftermath of 9/11, and to do what “had to be done” to protect the American people. Yet given an opportunity to demonstrate the courage of their convictions before Congress, all these men resorted to pettifogging obfuscation.