After reading the full investigative piece in the NYT today on how this administration decided on breaking America's historic ban on torture and then pursued a long, corrupting policy of ensuring that the interpretation of the law was politicized to keep torture alive, it is hard to disagree with Marty Lederman:
Between this and Jane Mayer's explosive article in August about the CIA black sites, I am increasingly confident that when the history of the Bush Administration is written, this systematic violation of statutory and treaty-based law concerning fundamental war crimes and other horrific offenses will be seen as the blackest mark in our nation's recent history -- not only because of what was done, but because the programs were routinely sanctioned, on an ongoing basis, by numerous esteemed professionals -- lawyers, doctors, psychologists and government officers -- without whose approval such a systematized torture regime could not be sustained.
The way in which conservative lawyers, and conservative intellectuals, and conservative journalists aided and abetted these war crimes; the way in which the president of the United States revealed so much contempt for the law that he put a candidate to run the Office of Legal Counsel on probation before he appointed him in order to keep the torture regime in place, the way in which Republicans and Democrats in the Congress pathetically refused to stand up to these violations of American honor and decency in any serious way (and, I'm sorry, Senator McCain, but in the end, you caved, as you always do lately): these will go down in history as some of the most shameful decisions these people ever made. Perhaps a sudden, panicked decision by the president to use torture after 9/11 is understandable if unforgivable. But the relentless, sustained attempt to make torture permanent part of the war-powers of the president, even to the point of abusing the law beyond recognition, removes any benefit of the doubt from these people. And they did it all in secret - and lied about it when Abu Ghraib emerged. They upended two centuries of American humane detention and interrogation practices without even letting us know. And the decision to allow one man - the decider - to pre-empt and knowingly distort the rule of law in order to detain and torture anyone he wants - is a function not of conservatism, but of fascism.
James Comey - one of the principled conservatives, like Jack Goldsmith, who actually supported the rule of law and American decency - put it succinctly enough:
"We are likely to hear the words: 'If we don’t do this, people will die,'" Mr. Comey said. But he argued that government lawyers must uphold the principles of their great institutions.
"It takes far more than a sharp legal mind to say no’ when it matters most," he said. "It takes moral character. It takes an understanding that in the long run, intelligence under law is the only sustainable intelligence in this country."
A couple of things need to be stressed, because I've learned the hard way that intelligent people simply refuse to absorb what is staring them in the face, when what is staring them in the face is so staggering:
Never in history had the United States authorized such tactics.
There is no doubt - no doubt at all - that these tactics are torture and subject to prosecution as war crimes. We know this because the law is very clear when you don't have war criminals like AEI's John Yoo rewriting it to give one man unchecked power. We know this because the very same techniques - hypothermia, long-time standing, beating - and even the very same term "enhanced interrogation techniques" - "verschaerfte Vernehmung" in the original German - were once prosecuted by American forces as war crimes. The perpetrators were the Gestapo. The penalty was death. You can verify the history here.
We have war criminals in the White House. What are we going to do about it?
(Photo: Paul J. Richards/AFP/Getty.)