We will never know how Americans would have reacted had they been told,
in real time, what monumental policy change President Bush was making on their behalf on February
7, 2002. As near as I can tell, the document
only in June 2004, after much of the memo's impact had become known to the world.
In hindsight, it's comforting to fantasize that the American people, or at least enough federal lawmakers and judges among them, would have stood up and said no to this perversion of law -- and of the rule of law.
Coming less than five months after the terror attacks, however, it's more likely that the "new thinking" contained in the February 7 memo would have been wildly cheered by an America that is, even 10 years later, churned up with anger over 9/11. We shouldn't fool ourselves on this grim anniversary, or throughout this coming year of dubious anniversaries of the War on Terror, into thinking that a new era is here. In many ways, from the Guantanamo detainees on upward, we are still too blind to see, or honestly acknowledge, the damage we've done.
The February 7, 2002, memo begat the mistreatment of Iraqi prisoners at Baghdad's Abu Ghraib -- a disaster for America's image in the world (and particularly the Muslim world). The memo begat the torture of terror suspects whose subsequent testimony, far from being more reliable, instead bogged down potential prosecutions of dozens of the detainees, in either civilian or military court. The detainee facility at Gitmo is still open today, you could argue, as a direct and proximate cause of the memo 10 years ago.
The directive brought about a few lawsuits against its drafters -- a possibility, we now know, that was definitely on their minds back then. The torture memos were odious instruments of policy, sure, but they were also CYA memos, perhaps the most significant CYA memos in American history. And ten years later, we still don't fully know what we don't know, to use a phrase from back in the day, because many vital documents are still classified. Let's all come back here in 10 years, or in 20, or 30, and see how the view has changed.
None of this breaks new ground. Many scholars, much smarter than I am, have chronicled the torture memos and their impact upon American law, politics, diplomacy, and morality. Nor do I suggest that that February 7, 2002, is a date every person interested in this topic ought to regard as the granddaddy of the torture memos. The August 2002 memos, which expressly justified the "enhanced interrogation" methods, are also a pivotal point. But this isn't a race or a contest. And there are plenty of disconcerting anniversaries to go around this year.
As a nation, we should commemorate this anniversary not only because we should always strive to hold ourselves responsible for our mistakes. We should also mark the day because it may help us muster the courage today to ask the right questions of the Obama White House about its extraordinary drone program. The executive branch says, without a full public explanation, that it may lawfully and unilaterally judge an American citizen abroad guilty of terrorism and then shower that citizen with a missile from the sky without indictment or trial.