We should take the criminality of the Bush administration's torture policy seriously, and that means making sure they are not above the law.
There is an article in Thursday's New York Times about the way Michael Mukasey has been hedging on waterboarding. The difficulty, according to many experts is, as "Jack L. Goldsmith, who served in the Justice Department in 2003 and 2004, wrote in his recent memoir, The Terror Presidency, that the possibility of future prosecution for aggressive actions against terrorism was a constant worry inside the Bush administration." Another expert points out that future prosecutors "... would ask not just who carried it out, but who specifically approved it. Theoretically, it could go all the way up to the president of the United States; that's why he'll never say it's torture."
I have to say that I am both glad and amazed that the Bush administration is with it enough to worry. That is a good sign. And they should worry, because they should be indicted, at least. I hope that they are, and that, indeed, it does "go all the way up to the president." One of the Attorney General's jobs should be making sure not only that the laws are enforced, but also that the laws are actual laws -- not opinions by John Yoo or David Addington or some other administration apologist. There is an exact definition of what a law is in this country, and it is not the same as a partisan legal opinion.
One of the enraging things about the Bush administration is the way that they have consistently written their own rules, as if governing the nation is like playing a game of stealing the flag, where the stronger team, when it finds itself losing, simply changes the score or the rules until they either technically "win" or wear out the other side (and in fact, George W. Bush, according to Gail Sheehy, was well known among his friends for changing the rules of a game until he could engineer a win -- and isn't that how they won in 2000?). To do such things is not "courage" or "resolve," it is tyranny.
Mukasey and other Bush administration officials clearly believe that they are going to put over the idea that they "might have gone too far", but that their "intentions were good" and they "just wanted to protect the country." In such a way, they plan to avoid paying the price for their choices and decisions. The law deals with this sort of defense. Someone whose car hits another person in a crosswalk might have been too frightened to stick around or might not have even realized he had hit someone, but the law still prosecutes these crimes, because a responsible citizen is expected to conform to the laws no matter what his emotional state. Same with Cheney and Bush.
You or I may suspect that they were indifferent to the idea of torture in their names, or possibly relished it, but we will never know that. We do, however, know that they explicitly and knowingly allowed torture. The law has no meaning if they don't have to pay for these crimes.
The number of times the Bush administration has skirted or broken or changed the laws to suit themselves is enormous and outrageous. We cannot hope to correct what they have done to our country without addressing their lawlessness. If this means retroactive prosecution, I say bring it on. The fact that they are worried means they know that they should have known better -- in fact, they did know better. All of them.
The following is a photoseries simulating what waterboarding looks like narrated by David Corn, excerpted from an article davidcorn.com.
Below are photographs taken by Jonah Blank [last year] at Tuol Sleng Prison in Phnom Penh, Cambodia. The prison is now a museum that documents Khymer Rouge atrocities. Blank, an anthropologist and former Senior Editor of US News & World Report, is author of the books Arrow of the Blue-Skinned God and Mullahs on the Mainframe.
He is a professorial lecturer at Johns Hopkins School of Advanced International Studies and has taught at Harvard and Georgetown. He currently is a foreign policy adviser to the Democratic staff in the Senate, but the views expressed here are his own observations.
His photos show one of the actual waterboards used by the Khymer Rouge.
Here's the first:
How were it used? Here's a painting by a former prisoner that shows the waterboard in action:
In an email to me, Blank explained the significance of the photos. He wrote:
The crux of the issue before Congress can be boiled down to a simple question: Is waterboarding torture? Anybody who considers this practice to be "torture lite" or merely a "tough technique" might want to take a trip to Phnom Penh. The Khymer Rouge were adept at torture, and there was nothing "lite" about their methods. Incidentally, the waterboard in these photo wasn't merely one among many torture devices highlighted at the prison museum. It was one of only two devices singled out for highlighting (the other was another form of water-torture -- a tank that could be filled with water or other liquids; I have photos of that too.) There was an outdoor device as well, one the Khymer Rouge didn't have to construct: chin-up bars. (The prison where the museum is located had been a school before the Khymer Rouge took over).
These bars were used for "stress positions"-- another practice employed under current US guidelines. At the Khymer Rouge prison, there is a tank of water next to the bars. It was used to revive prisoners for more torture when they passed out after being placed in stress positions.
The similarity between practices used by the Khymer Rouge and those currently being debated by Congress isn't a coincidence. As has been amply documented ("The New Yorker" had an excellent piece, and there have been others), many of the "enhanced techniques" came to the CIA and military interrogators via the SERE [Survival, Evasion, Resistance and Escape] schools, where US military personnel are trained to resist torture if they are captured by the enemy. The specific types of abuse they're taught to withstand are those that were used by our Cold War adversaries. Why is this relevant to the current debate? Because the torture techniques of North Korea, North Vietnam, the Soviet Union and its proxies--the states where US military personnel might have faced torture -- were NOT designed to elicit truthful information. These techniques were designed to elicit CONFESSIONS. That's what the Khymer Rouge et al were after with their waterboarding, not truthful information.
Bottom line: Not only do waterboarding and the other types of torture currently being debated put us in company with the most vile regimes of the past half-century; they're also designed specifically to generate a (usually false) confession, not to obtain genuinely actionable intel. This isn't a matter of sacrificing moral values to keep us safe; it's sacrificing moral values for no purpose whatsoever.
These photos are important because most of us have never seen an actual, real-life waterboard. The press typically describes it in the most anodyne ways: a device meant to "simulate drowning" or to "make the prisoner believe he might drown." But the Khymer Rouge were no jokesters, and they didn't tailor their abuse to the dictates of the Geneva Convention. They -- like so many brutal regimes -- made waterboarding one of their primary tools for a simple reason: it is one of the most viciously effective forms of torture ever devised.
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