Charles Kaiser on Torture Team: Rumsfeld's Memo and the Betrayal of American Values

War Crimes in the White House

Bush administration scandals from Blackwater to Halliburton could produce dozens of prosecutions if the Democrats regain control of the Justice Department next year. But it is the administration's approval and promotion of torture that is most likely to subject top officials of the White House, the Justice Department, and the Pentagon to prosecution if they travel abroad after George Bush leaves office.

That is the searing message of Torture Team: Rumsfeld's Memo and the Betrayal of American Values, the blockbuster book by Philippe Sands just published by Palgrave Macmillan. Sands is an international lawyer and a professor at University College London, a counselor to the queen of England, and director of the Center on International Courts and Tribunals in London. The book is already a sensation in Britain. Fans of Bill Moyers Journal, where Sands was interviewed last week, and careful readers of Vanity Fair, where the book was given a 10,800-word excerpt, are already aware of the book's implications. Readers of the New York Times, the Washington Post, and the Los Angeles Times, not so much.

Here are the key points in Sands' book:

• The decision to ignore the Geneva Conventions "was not a case of following the logic of the law but rather was designed to give effect to a prior decision to take the gloves off and allow coercive interrogation; it deliberately created a legal black hole into which the detainees were meant to fall. The new interrogation techniques did not arise spontaneously from the field but came about as a direct result of intense pressure ... from Rumsfeld's office. The Yoo-Bybee Memo was not simply some theoretical document ... but rather played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantánamo led to abuses at Abu Ghraib."

• "The fingerprints of the most senior lawyers in the administration were all over the design and implementation of the abusive interrogation policies." Dick Cheney's chief of staff, Richard Addington, former Justice Department lawyers Jay Bybee and John Yoo, Alberto Gonzales, and former Defense Department counsel James Haynes "became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse."

• A memo believed to have been written by Addington "presented a 'new paradigm' and described Geneva's 'strict limitations on questioning of enemy prisoners' as 'obsolete.' Addington was particularly distrustful of the military lawyers. 'Don't bring the Tjags into the process—they aren't reliable,' he was once overheard to say."

• "Cruelty, humiliation, and the use of torture on detainees have long been prohibited by international law, including the Geneva Conventions and their Common Article 3. This total ban was reinforced in 1984 with the adoption of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which criminalizes torture and complicity in torture."

• The Bush administration "simply abandoned all legal and customary precedent that regards Common Article 3 as a minimal bill of rights for everyone."

• The British author asked former Under Secretary of Defense Douglas Feith if he was concerned that this decision might have diminished America's moral authority. Feith was not: "The problem with moral authority," he said, was "people who should know better, like yourself, siding with the assholes, to put it crudely."

• "The lawyers in Washington were playing a double game. They wanted maximum pressure applied during interrogations, but didn't want to be seen as the ones applying it—they wanted distance and deniability."

• The common theme was that the techniques were fine so long as the force used could plausibly have been thought necessary in a particular situation to achieve a legitimate government objective, and it was applied in a good faith effort and not maliciously or sadistically for the very purpose of causing harm. That is to say, the techniques are legal if the motivation is pure. National security justifies anything.

• The Josef Altstötter case was prosecuted by the Allies at Nuremberg "to establish the principle that lawyers and judges in the Nazi regime bore a particular responsibility for the regime's crimes. Sixteen lawyers appeared as defendants. The scale of the Nazi atrocities makes any factual comparison with Guantánamo absurd, a point made to me by Douglas Feith, and with which I agree. But I wasn't interested in drawing a facile comparison between historical episodes. I wanted to know more about the underlying principle."

• "It would be wrong to consider the prospect of legal jeopardy unlikely. I remember sitting in the House of Lords during the landmark Pinochet case, back in 1999—in which a prosecutor was seeking the extradition to Spain of the former Chilean head of state for torture and other international crimes—and being told by one of his key advisers that they had never expected the torture convention to lead to the former president of Chile's loss of legal immunity."

• In October 2006, Bush signed the Military Commissions Act, which created a new legal defense against lawsuits for misconduct arising from the "detention and interrogation of aliens" between September 11, 2001, and December 30, 2005. That covered the interrogation of al-Qahtani, and no doubt much else. Bush explained that it provided "legal protections that ensure our military and intelligence personnel will not have to fear lawsuits filed by terrorists simply for doing their jobs."

• It is that law which vastly increases the chances of foreign prosecutions of the American officials responsible for our torture policies. "That [law] is very stupid," a European prosecutor told Sands," explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene."

The moral of that story: Once again, the cover-up may be even worse than the crime.

It is true, as Doug Feith is understandably eager to assert, that "the scale of the Nazi atrocities makes any factual comparison with Guantánamo absurd." However, the moral bankruptcy that led to a wholesale endorsement of torture by this administration does not differ from the mind-set of the Nazis at all.

---

Seen Something? E-mail to alert me to anything you see that warrants high praise or high dudgeon.

---

Charles Kaiser is the author of The Gay Metropolis and 1968 in America. He has been media editor for Newsweek, a member of the metro staff of the New York Times, and a reporter for the Wall Street Journal, where he covered the press and book publishing. To learn more, visit charleskaiser.com.


READ MORE
• Full Court Press: Frank Rich leads this week's list of Winners and Sinners
• Full Court Press: Charles Kaiser on Hillary Clinton's This Week appearance
• Today's Top Stories