Torture and Warrantless Surveillance Are the Same Issue

Via Glenn, the Washington Post has a write-up on Jane Mayer’s new book, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on America’s Ideals. Here is what Mayer reveals in that book, which is due out this week:

A CIA analyst warned the Bush administration in 2002 that up to a third of the detainees at Guantanamo Bay may have been imprisoned by mistake, but White House officials ignored the finding and insisted that all were “enemy combatants” subject to indefinite incarceration, according to a new book critical of the administration’s terrorism policies.

The CIA assessment directly challenged the administration’s claim that the detainees were all hardened terrorists — the “worst of the worst,” as then-Defense Secretary Donald H. Rumsfeld said at the time. But a top aide to Vice President Cheney shrugged off the report and squashed proposals for a quick review of the detainees’ cases, author Jane Mayer writes in “The Dark Side,” scheduled for release next week.

“There will be no review,” the book quotes Cheney staff director David Addington as saying. “The president has determined that they are ALL enemy combatants. We are not going to revisit it.”

Let the implications of that statement percolate through your brain for a moment, then read on:

The classified CIA report described by Mayer was prepared in the summer of 2002 by a senior CIA analyst who was invited to the prison camp in Cuba to help Defense Department officials grapple with a major problem: They were gleaning very little useful information from the roughly 600 detainees in custody at the time. After a study involving dozens of detainees, the analyst came up with an answer: A large fraction of them “had no connection with terrorism whatsoever,” Mayer writes, citing officials familiar with the report. Many were essentially bystanders who had been swept up in dragnets or turned over to the U.S. military by bounty hunters. Previous published reports have described the CIA analyst’s visit but have not provided details of its findings.

According to Mayer, the analyst estimated that a full third of the camp’s detainees were there by mistake. When told of those findings, the top military commander at Guantanamo at the time, Major Gen. Michael Dunlavey, not only agreed with the assessment but suggested that an even higher percentage of detentions — up to half — were in error. Later, an academic study by Seton Hall University Law School concluded that 55 percent of detainees had never engaged in hostile acts against the United States, and only 8 percent had any association with al-Qaeda.

The CIA findings prompted a vigorous debate with the administration and prompted calls for a review of detainee cases. But “Addington’s response was adamant and imperious. ‘We are not second-guessing the President’s decision. These are enemy combatants,’ ” Mayer wrote.

Mayer also reports the documented findings of the International Committee of the Red Cross on the treatment of suspected terrorists held in secret prisons in undisclosed locations abroad:

In 2007, the ICRC produced a secret report, based on extensive interviews with the detainees, and shared the document with the CIA and the White House. It was the first independent accounting of CIA detention practices, and the findings were never publicly released, in keeping with long-standing ICRC rules intended to ensure continued access to prison sites worldwide. ICRC declined to comment on the specifics of the report.

Mayer, citing officials familiar with the report, said the ICRC described the CIA’s treatment of the detainees “categorically as torture.” Citing the experience of one al-Qaeda captive, Abu Zubaida, it said CIA interrogators had repeatedly locked the man inside a box so small that he had to fold his limbs into a fetal position to fit. He and other detainees were kept naked for long periods of time and exposed to temperature extremes and long bouts of sleep deprivation. …

The WaPo reporter adds that “Mayer acknowledges that the detainees’ accounts could not be independently confirmed.” Which might be because the secret prisons where these things happened are just that — secret. Nobody knows what goes on in those prisons outside of a small and select group of C.I.A. and other top government officials who are directly responsible for running them.

Glenn takes Mayer’s book, and what it reveals, as a jumping-off point for a post about the interrelatedness of all the many ways in which the Bush administration has violated American legal and moral norms. I am going to quote part of what he writes, but it is essential to read his piece in full:

This is what a country becomes when it decides that it will not live under the rule of law, when it communicates to its political leaders that they are free to do whatever they want — including breaking our laws — and there will be no consequences. There are two choices and only two choices for every country — live under the rule of law or live under the rule of men. We’ve collectively decided that our most powerful political leaders are not bound by our laws — that when they break the law, there will be no consequences. We’ve thus become a country which lives under the proverbial “rule of men” — that is literally true, with no hyperbole needed — and Mayer’s revelations are nothing more than the inevitable by-product of that choice. 

That’s why this ongoing, well-intentioned debate that Andrew Sullivan is having with himself and his readers over whether “torture is worse than illegal, warrantless eavesdropping” is so misplaced, and it’s also why those who are dismissing as “an overblown distraction” the anger generated by last week’s Congressional protection of surveillance lawbreakers are so deeply misguided. Things like “torture” and “illegal eavesdropping” can’t be compared as though they’re separate, competing policies. They are rooted in the same framework of lawlessness. The same rationale that justifies one is what justifies the other. Endorsing one is to endorse all of it.
There are many political disputes — probably most — composed of two or more reasonable sides. Whether the U.S. Government has committed war crimes by torturing detainees — conduct that is illegal under domestic law and international treaties which are binding law in this country — isn’t an example of a reasonable, two-sided political dispute. Nor is the issue of whether the U.S. Government and the telecom industry engaged in illegal acts for years by spying on Americans without warrants. Nor is the question of whether we should allow Government officials to break our laws at will by claiming that doing so is necessary to keep us Safe.

There just aren’t two sides to those matters. That’s what the International Red Cross means when it says that what we did to Guantanamo detainees was “categorically torture.” It’s what the only federal judges to adjudicate the question — all three — have concluded when they found that the President clearly broke our laws with no valid excuses by spying on our communications for years with no warrants. It’s why the Bush administration has sought — and repeatedly received — immunity and amnesty for the people who have implemented these policies. It’s because these actions are clearly illegal — criminal — and we all know that.

And the money point (my emphasis):

Yes, I’m well aware that the U.S, like all countries, was deeply imperfect prior to 9/11, and that many of the systematic excesses of the Bush era have their genesis prior to 2001. The difference (a critical one) is that what had been acts of lawbreaking and violations of our national values have become the norm — consistent with, rather than violative of, our express values and policies. …

Andrew Bacevich reviews Mayer’s book, and his review is a must-read in and of itself:

In the Bush administration, the task of sweeping aside impediments to the exercise of power fell to a small group of lawyers styling themselves the “War Council.” Led by David Addington, chief of staff to Vice President Cheney, and including Alberto Gonzalez, then serving as White House counsel, and John Yoo, at the time deputy assistant attorney general in the Justice Department’s Office of Legal Counsel, the War Council seized upon 9/11 as a pretext for establishing what Addington himself referred to as a “new paradigm” of vastly expanded presidential authority. As the administration embarked upon its war on terror, Mayer says, the American legal system “was instantly regarded as a burden.” To shed that burden, members of the War Council issued (in secret, of course) what she describes as “error-prone legal decisions whose preordained conclusions were dictated by Addington.” In the view of the War Council, Mayer writes, when it came to matters of national security, presidential authority was “not limited by any laws”; indeed, the president “had the power to override existing laws that Congress had specifically designed to curb him.” The net effect was to declare the concept of checks and balances inoperable.

Mayer recognizes but does not dwell on the intimate relationship between the global war on terror and Addington’s new paradigm. The entire rationale of the latter derived from the former: no war, no new paradigm. Hence, the rush to declare that after Sept. 11, 2001, everything had changed. The insistence that the gloves had to come off, that the so-called law enforcement approach to dealing with terrorism had failed definitively, that only conflict on a global scale could keep America safe: These provided the weapons that Addington’s War Council wielded to mount its assault on the Constitution — all of course justified as necessary to keep Americans safe.

All of the links above are via Memeorandum.


One Response to “Torture and Warrantless Surveillance Are the Same Issue”

  1. Chief says:

    Sands’ “Torture Team” speaks to the role of lawyers in giving their clients (POTUS and VPOTUS) the rationale to justify the policy. The term ‘war criminal’ would seem to apply to Addington and a whole host of administration lawyers: Haynes, Gonzales, Bybee, Yoo, Feith and Dell’Orto.

    The Nuremberg Trials offer a precedent.

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