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A Torture Paper Trail

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By Eugene Robinson
Tuesday, July 29, 2008

I still find it hard to believe that George W. Bush, to his eternal shame and our nation's great discredit, made torture a matter of hair-splitting, legalistic debate at the highest levels of the U.S. government. But that's precisely what he did.

Three previously classified administration memos obtained last week by the American Civil Liberties Union add to our understanding of this disgraceful episode. The documents are attempts to justify the unjustifiable -- the use of brutal interrogation methods that international agreements define as torture -- and to keep those who ordered and carried out this dirty business from being prosecuted and jailed.

The memos don't call it torture, of course. Heavily redacted before being surrendered to the ACLU under a Freedom of Information Act lawsuit, the documents refer euphemistically to "enhanced techniques" of interrogation. Changing the name doesn't change the act, however. One memo, written in 2004, specifically makes clear the administration's view that "the waterboard" is an acceptable way to extract information.

Waterboarding, a technique of simulated drowning, is considered torture virtually everywhere on Earth except in the Bush administration's archive of self-exculpatory memos, directives and opinions.

The most stunning of the memos -- written in August 2002 by Jay Bybee, who was head of the Justice Department's Office of Legal Counsel -- makes the incredible claim that unless a torturer has the "specific intent" to inflict severe pain or suffering, no violation of U.S. laws against torture has occurred. Bybee, since appointed to the federal bench, wrote that the torturer needed only the "honest belief" that he was not actually committing torture to avoid legal jeopardy. Oh, and Bybee added that it wasn't even necessary for that belief to be "reasonable."

The memo notes that U.S. torture statutes outlaw the infliction of severe mental pain as well as physical pain. It acknowledges that "the threat of imminent death" is one of the specific acts that can constitute torture. Somehow, though, the administration pretends not to understand that strapping a prisoner down and pouring water into his nose until he can't breathe constitutes a death threat -- regardless of whether the interrogator intended to stop before the prisoner actually drowned.

Perhaps that question was dealt with in the nine-tenths of the memo that was redacted before the administration handed it over to the ACLU. The memo never would have been released at all if the government hadn't been ordered to do so by a federal judge.

The whole thing would be laughable if it were not such a rank abomination. No government obeying the law needs a paper trail to absolve its interrogators of committing torture. Conversely, a government that produces such a paper trail has something monstrous to hide.

It is not difficult to avoid violating federal laws and international agreements that prohibit torture. Just don't torture people, period. The idea that there exists some acceptable middle ground -- a kind of "torture lite" -- is a hideous affront to this nation's honor and values. This, perhaps above all, is how George Bush should be remembered: as the president who embraced torture.

I wouldn't be surprised if, as he left office, Bush issued some sort of pardon clearing those who authorized or carried out "enhanced techniques" of interrogations from any jeopardy under U.S. law. International law is something else entirely, however, and I imagine that some of those involved in this sordid interlude might want to be careful in choosing their vacation spots. I'd avoid The Hague, for example.

Barack Obama has stood consistently against torture. John McCain, who was tortured himself as a prisoner of war in North Vietnam, has denounced torture as well -- and, although he voted against restraining the CIA with the same no-exceptions policy that now applies to military interrogators, he has been forthright in saying that waterboarding is torture, and thus illegal. On Inauguration Day, whoever wins the presidency, this awful interlude will end.

A clear and urgent duty of the next president will be to investigate the Bush administration's torture policy and give Americans a full accounting of what was done in our name. It's astounding that we need some kind of truth commission in the United States of America, but we do. Only when we learn the full story of what happened will we be able to confidently promise, to ourselves and to a world that looks to this country for moral leadership: Never again.

The writer will answer questions at 1 p.m. today athttp://www.washingtonpost.com. His e-mail address iseugenerobinson@washpost.com.


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