Laws, like the spiders’ webs, catch the small flies and let the large ones go free. — Balzac La Maison Nucingen
At the end of the day, you can’t become your enemy in the name of defeating your enemy.— Republican senator Lindsey Graham, a former Air Force lawyer, in “The Torture Question,” Frontline
In the time of Edward R. Murrow and Fred Friendly at CBS TV, the other television networks also had penetrating documentary units; but now only public television’s Frontline equals Murrow and Friendly at their factually unsparing best. A formidable case in point was the October 18 airing of “The Torture Question,” produced, directed, and written by Michael Kirk. It should be shown to the members and staff of the Senate Armed Services Committee, with Donald Rumsfeld as an invited guest—but it won’t be. (He refused to be interviewed by Frontline.)
Like Rumsfeld, George W. Bush echoes the former chairman of the Joint Chiefs of Staff, Richard Myers, in assuring us that the riveting photographs in the cell blocks at Abu Ghraib did not reflect “a widespread problem”—just them bad apples. But “The Torture Question”
“A close examination of the evidence behind 12 official investigations . . . FBI internal e-mails . . . and dozens of interviews by Frontline tells a fuller story of what happened at Abu Ghraib and of policies, practices, and patterns that bring the torture question to the highest levels of the American government.”
Donald Rumsfeld and the White House, determined to get “actionable intelligence” from the prisoners at Abu Ghraib and our other detention legal holes, “wanted ‘Geneva’ [the Geneva Conventions] out of the way.”
Early in the program, Frontline illuminates the repellent complicity of the “small circle of lawyers who surrounded the president” and “together would create a legal theory that would permit the United States to act unilaterally in defining the “rules of war”—and justifying the unprecedented powers to be given to George W. Bush—including the authorization of torture.
These lawyers have themselves not been brought to justice or to any formal inquiry into their culpability. As I’ve noted in previous columns, John Yoo, then in the Office of Legal Counsel at the Justice Department, is now a law professor at the University of California at Berkeley, often on television and lecturing at other campuses.
Another participant in the famous “torture memos,” Jay S. Bybee, then an assistant attorney general at the Justice Department, has been elevated to a federal judgeship at the Ninth Circuit Court of Appeals. And Jack Goldsmith, formerly of the Office of Legal Counsel, has become a law professor at Harvard.
Above them in the circle around the president were lawyers
highlighted by Frontlin e: Alberto Gonzales, then the president’s
chief legal counsel; David Addington, the vice president’s top lawyer and now chief of staff; and Wil
liam Haynes, Rumsfeld’s civilian counsel at the Pentagon and later nominated by the president to the Fourth Circuit Court of Appeals.
“The Torture Question” points to one of many results of these lawyers’ providing the president with the power to bypass both international and our own laws. The testimony is from an FBI agent at Guantánamo:
“I entered interview rooms to find a detainee chained hand and foot in a fetal position on the floor with no chair, food, or water. Most times they had urinated or defecated on themselves, and had been left there for 18 to 24 hours or more.” This, of course, was on Donald Rumsfeld’s watch.
The American Civil Liberties Union has released copies of e-mails to FBI director Robert Mueller from appalled FBI agents protesting the unlawful, inhumane interrogations they had
witnessed. Director Mueller himself has never joined their protests nor acknowledged any acts of torture at Abu Ghraib, Guantánamo, or any of our other “detention” facilities.
In The Torture Debate in America (Cambridge University Press), edited by Karen J. Greenberg, director of NYU law school’s Center of Law and Security, NYU law professor Burt Neuborne asks:
“Is there something that we are not doing in American law schools that is allowing the best and the brightest of our profession to drift into a situation where they think that all they have to do is find an argument that will justify their client’s goal?”
There are all kinds of symposia and conferences at American law schools, and I wonder if there have been any focused on this circle of highly skilled lawyers around the president who provided such encouragement to Donald Rumsfeld and his generals (and lesser officers in the field) to get “actionable intelligence” from prisoners by any means necessary.
Has the American Bar Association, which vigorously criticized some of Rumsfeld’s and the president’s twisting of the rule of law, looked into the legal ethics of this so far charmed circle of alumni attorneys of the Justice and Defense departments?
The Association of the Bar of the City of New York, the nation’s
premier bar association—and Scott Horton, the chair of its Committee of International Law—certainly have. Maybe they can offer their services to the ABA.
Frontline has given the nation much to think about. For further instance, from a soldier on the ground: “Most of the abuses
around Iraq are not photographed . . . so they’ll never get any outrage out of it. And this makes it even harsher, because around Iraq, in the back of a Humvee or in a shipping container . . . there’s no one looking over your shoulder, so you can do anything you want.”
And, from former Army interrogator Anthony Lagouranis:
“Now it’s all over Iraq . . . the infantry units are torturing people in their homes. They were using things like burns. They would smash people’s feet with the back of an ax head. They would break bones, ribs, you know . . . that was serious stuff.”
As John McCain said, speaking of the terrorist enemy, “This isn’t about who they are. This is about who we are.” Hail to the chief!