It will take some time to absorb the full implications of the ICRC report and the OLC memos. Right now, many are understandably focused on the legal details, the grotesque specifics of the techniques ("insects", "walling"?), the inconsistencies of the memos, the weakness of the legal arguments, the human context in which some of these decisions were made. I certainly think we have to remember the climate of terror and fear of the unknown that followed the 9/11 attacks, a climate that dragged all of us, including this blogger, to places we now wish we hadn't gone. And it's equally important to remember the sense of responsibility Bush and Cheney must have felt for already presiding over the worst attack on the mainland US in history. This helps explain, even if it does not excuse, the extremism of a Yoo or Cheney, whose eagerness to prove the absolute power of an untrammeled executive branch led us into the legal and moral and strategic darkness.
No: what is far more important and far graver is the decision after the 2004 re-election, after the original period of panic, to set up a torture program, replete with every professional and bureaucratic nicety. This is why the Bradbury memo of 2005 is so much more chilling in its way. This was long after Abu Ghraib, long after the initial panic, and a pre-meditated attempt to turn the US into a secret torture state. These legal memos construct a form of torture, through various classic torture techniques, used separately and in combination, that were to be used systematically, by a professional torture team along the lines proposed by Charles Krauthammer, and buttressed by a small army of lawyers, psychologists and doctors - especially doctors - to turn the US into a torture state. The legal limits were designed to maximize the torture while minimizing excessive physical damage, to take prisoners to the edge while making sure, by the use of medical professionals, that they did not die and would not have permanent injuries.
The core point of this, one infers from the memos, is to create a sense among the prisoners that their assumptions about the West, the US, and countries constructed on the rule of law are without any basis whatever.
The torture techniques were all the more brutal in order to push back against the reputation of the US even in the minds of Qaeda or alleged Qaeda members. What Mukasey and Hayden are arguing for today is a scheme whereby, in secret, the US government credibly allows captives to believe they are in an endless, bottomless pit of extra-legal terror. This is the state of mind they are trying to construct by torture. That's the point of the sensory deprivation, the disappearances, the sequestering from the Red Cross, the endless solitary confinement, the IRFing, the hoods, the nudity, and all the other sadism. It is precisely to persuade the barbarians that we are as bad as they are and have no limits and no qualms in doing to them whatever we want.
Looked at from a distance, the Bush administration wanted to do two things at once: to declare to the world that freedom is on the march, and human rights are coming to the world with American help, while simultaneously declaring to captives that the US has no interest in the law, human rights, accountability, transparency or humanity. They wanted to give hope to all the oppressed of the planet, while surgically banishing all hope from the prisoners they captured and tortured. And the only way they could pull this off is by the total secrecy they constructed and defended. So we had a public government respectful of the rule of law, and a secret government whose main goal was persuading terror suspects that there was no rule of law at all. It is hard to convey just how dangerous this was and is.
Moreover, this was done by the professional classes in this society. It was not done by Lynndie England or some night-shift sadists at Abu Ghraib. According to these documents, almost nothing that was done at Abu Ghraib was outside the limits agreed to by Bush - and much of what was done at Abu Ghraib was mild in comparison. So when the president acted "shocked" at what we all saw, and said it was not America, he was also authorizing far worse in secret - and systematizing it long after Abu Ghraib was over. He was either therefore a fantastic liar on one of the gravest matters imaginable or so psychologically compartmentalized and prone to rigid denial of reality and so unversed in history, law and morality that he had no reason being president.
If you want to know how democracies die, read these memos. Read how gifted professionals in the CIA were able to convince experienced doctors that what they were doing was ethical and legal. Read how American psychologists were able to find justifications for the imposition of psychological torture, and were able to analyze its effects without ever stopping and asking: what on earth are we doing?
Read how no one is even close to debating "ticking time bomb" scenarios as they strap people to boards and drown them until they break. Then read how they adjusted the waterboarding, for fear it was too much, for fear that they were actually in danger of suffocating their captives, and then read how they found self-described loopholes in the law to tell themselves that what the US had once prosecuted as torture could not possibly be torture because we're doing it, and we're different from the Viet Cong. We're doing torture right and for the right reasons and with the right motive. Many of the people who did this are mild, kind, courteous, family men and women, who somehow were able to defend slamming human beings against walls in the daytime while watching the Charlie Rose show over a glass of wine at night. We've seen this syndrome before, in other places and at other times. Yes: it can happen here. And imagine how this already functioning torture machine would have operated in the wake of another attack under a president Romney or Giuliani.
It is this professionalism and bureaucratic mastery that chills in the end. Not the brutality of "the program," but the modernity and banality of the apparatus around it. As Orwell predicted, the English language had to disappear first. The president referred to waterboarding prisoners as "asking them questions." Bringing prisoners' temperatures down to hypothermia levels was simply an "alternative set of procedures." The entire process is "enhanced interrogation." Even the press has to find a way to call it merely "harsh", a term now changed to "brutal" in the NYT, even though nothing we found out yesterday was more brutal than anything we knew about before.
Mukasey and Hayden complain that the president has tied the hands of future presidents in this. Yes, he has. What Obama understands is that what is truly vital is that this dark and shameful period not become a workable precedent. It must be repudiated at the very heart of the American political system, and removed like the cancer it is.
The question of prosecution remains. It's a painful decision. My view is that those who pay the legal price should be, first and foremost, those who authorized this at the highest levels. My view is also that it is a travesty that the Abu Ghraib reservists were prosecuted, and yet far, far more culpable people are claiming it would be too divisive to prosecute them. My view is that no one is above the law, and that when a society based on law prosecutes the powerless and excuses the powerful, it is corroding its own soul.
But my view is also that the president has acted wisely in this. As president in wartime, he knows how wounding it would be to engage in this kind of activity right now. But he has also ensured that a process of transparency continue. A full accounting of all of this - by people from both parties with real power to investigate and report (a 9/11 style commission, in other words) would be a natural next step. There is still much we don't know. It should take its time to get everything right. Justice can be slow as long as it is guaranteed. From the president, some well-chosen words he clearly wrote himself:
At a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future. The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.
Let me repeat the critical two words in that paragraph: Never. Again.