I’m sorry to be blunt with the headline, but facts are facts and, as a quick scan of this morning’s Canadian newspaper front pages shows, denial is easy. One hardly knows where to begin. Here, maybe, with a memo from Steven Bradbury at the Office of the Legal Counsel. He points out that the State Department routinely decries as torture the very practices he and his colleagues are busy justifying, but only when other countries do it. And then he says it’s only torture if other countries do it.
Each year, in the State Department’s Country Reports on Human Rights Practices, the United States condemns coercive interrogation techniques and other practices employed by other countries. Certain of the techniques the United States has condemned appear to bear some resemblance to some of the CIA interrogation techniques. [A photo of the paragraph I’m quoting, with references to practices used in Indonesia, Egypt, Iran, Algeria and Syria, is here.]
We recognize that as a matter of diplomacy, the United States may for various reasons in various circumstances call another nation to account for practices that may in some respects resemble conduct in which the United States might in some circumstances engage, covertly or otherwise. Diplomatic relations with regard to foreign countries are not reliable evidence of United States executive practice and thus may be of only limited relevance here.
There is a lot of that sort of thing in these memos. It is not torture if it is not done by the right countries. It is not torture if done outside the U.S., which explains why the U.S. had to open black sites in Poland, Indonesia and a half-dozen other countries: because the UN Convention on Torture is limited to “territory under [U.S.] jurisdiction.” It is not torture if you take care to misread statutory interdictions against inflicting “pain or suffering” as “pain and suffering,” in an attempt to get yourself off the hook for treatment that “only” causes suffering.
No, it’s torture all right.
Barack Obama faced serious internal dissent over whether to release these memos and has taken care to exculpate CIA investigators who acted under their authority. But that does not begin to end this business. The next question is whether the lawyers who drafted these memos were living up to their profession’s standards or whether they were crackpots serving up a figleaf for settled policy. And the question after that is what to do to the people who settled the policy. People like Dick Cheney.
Barack Obama insists that his is a nation of laws, and as I wrote last month, if that’s so, then there are consequences, and even Obama has imperfect control over the legal and political proceedings that will produce those consequences.