The Torture Memos: The Case Against the Lawyers - The New York Review of Books

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By David Cole

1.

On Monday, August 24, as President Obama began his vacation on Martha's Vineyard, his administration released a previously classified 2004 report by the CIA's inspector general that strongly criticized the techniques employed to interrogate "high-value" al-Qaeda suspects at the CIA's secret prisons.^[1] The report revealed that CIA agents and contractors, in addition to using such "authorized" and previously reported tactics as waterboarding, wall-slamming, forced nudity, stress positions, and extended sleep deprivation, also employed a variety of "unauthorized, improvised, inhumane and undocumented" methods. These included threatening suspects with a revolver and a power drill; repeatedly applying pressure to a detainee's carotid artery until he began to pass out; staging a mock execution; threatening to sexually abuse a suspect's mother; and warning a detainee that if another attack occurred in the United States, "We're going to kill your children."

The inspector general also reported, contrary to former Vice President Dick Cheney's claims, that "it is not possible to say" that any of these abusive tactics— authorized or unauthorized—elicited valuable information that could not have been obtained through lawful, nonviolent means. While some of the CIA's detainees provided useful information, the inspector general concluded that the effectiveness of the coercive methods in particular—as opposed to more traditional and lawful tactics that were also used—"cannot be so easily measured." CIA officials, he wrote, often lacked any objective basis for concluding that detainees were withholding information and therefore should be subjected to the "enhanced" techniques. The inspector general further found no evidence that any imminent terrorist attacks had been averted by virtue of information obtained from the CIA's detainees. In other words, there were no "ticking time bombs."

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The same day, Attorney General Eric Holder announced that he was asking John Durham, a federal prosecutor already investigating the CIA's suspicious destruction of its interrogation videotapes, to expand his inquiry to include a preliminary investigation into some of the CIA's most extreme interrogation tactics. Holder simultaneously announced that he would not prosecute "anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees."

The latter limitation suggests that Holder has directed the investigation to focus only on those interrogators who engaged in unauthorized conduct, but not on the lawyers and Cabinet officials who authorized the CIA to use specific techniques of brutal physical coercion in the first place. If the inquiry stops there, it will repeat the pattern we saw after the revelation of the abuses at Abu Ghraib, in which a few low-level individuals were prosecuted but no higher-ups were held accountable.

Lost in all the attention given to the CIA inspector general report and Holder's announcement was still another packet of documents released later the same day, from the Justice Department's Office of Legal Counsel (OLC). When these memos, letters, and faxes are considered together with an earlier set disclosed in April 2009, it becomes clear that there is an inherent conflict of interest in the investigation Holder has initiated. Justice Department lawyers were inextricably involved in justifying every aspect of the CIA program. They wrote memo after memo over a five-year period, from 2002 to 2007, all maintaining that any interrogation methods the CIA was planning to use were legal. And now the Justice Department is investigating not itself, but only the CIA, for atrocities in which both were deeply implicated.

While the memos from the Office of Legal Counsel have received less attention than the details of brutal treatment recorded by the CIA inspector general, these memos are the real "smoking gun" in the torture controversy. They reveal that instead of requiring the CIA to conform its conduct to the law, the OLC lawyers contorted the law to authorize precisely what it was designed to forbid. They concluded that keeping suspects awake for eleven days straight, stripping them naked, exposing them to cold temperatures, dousing them with water, slamming them into walls, forcing them into cramped boxes and stress positions for hours at a time, and waterboarding them hundreds of times were not torture, not cruel, not inhuman, not even degrading, and therefore perfectly legal. The memos make clear that true accountability cannot stop at the CIA interrogators, but must extend up the chain of authority, to the lawyers and Cabinet officers who approved the "enhanced interrogation techniques" in the first place.

The OLC's defenders argue that it was difficult to define concretely exactly what constitutes torture or cruel, inhuman, or degrading treatment and that there was little direct precedent to go on. There is some truth to these arguments. Not all physically coercive interrogation is torture. Determining whether tactics qualify as torture under federal law requires difficult distinctions between "severe" and less-than-severe pain and suffering, and between "prolonged" and temporary mental harm. Former Attorney General Michael Mukasey has argued that the lawyers acted in good faith to render their best judgment on these issues in perilous times.

Precisely because many of the questions were so difficult, however, one would expect a good-faith analysis to reach a nuanced conclusion, perhaps approving some measures while definitely prohibiting others. Yet it is striking that on every question, no matter how much the law had to be stretched, the Bush administration lawyers reached the same result—the CIA could do whatever it had proposed to do. And long after federal officials acknowledged that the threat of terror had substantially subsided, the OLC continued to distort the law so as to facilitate brutality.

Most disturbingly, the OLC lawyers secretly maintained their position even as the relevant facts changed, and even after the law developed to underscore that the CIA's tactics were illegal. There was one law for public consumption, but another quite different law operating in secret. For example, when the Justice Department's initial August 2002 memo interpreting the torture statute was leaked to the press in June 2004 and widely condemned, the department publicly issued a replacement memo, dated December 30, 2004, which rejected several interpretations advanced in its earlier memo. But the recently disclosed documents reveal that the department continued in secret to approve all the same interrogation tactics.

In 2005 Congress threatened to restrict CIA tactics further by confirming that every person in US custody was protected against not only torture, but all cruel, inhuman, and degrading treatment. The Bush lawyers drafted yet another secret opinion, concluding that none of the CIA's tactics could even be considered cruel, inhuman, or degrading. And when the Supreme Court ruled in 2006 that the Geneva Conventions, which broadly prohibit all mistreatment of wartime detainees, applied to al-Qaeda, the OLC lawyers wrote still another secret opinion recommending that President Bush issue an executive order that would "authoritatively" establish that the CIA's tactics did not violate the laws of war—simply because the president said so. When considered as a whole, the memos reveal a sustained effort by the OLC lawyers to rationalize a predetermined and illegal result.

2.

History has shown that even officials acting with the best intentions may come to feel, especially in times of crisis, that the end justifies the means, and that the greater good of national security makes it permissible to inflict pain on a resisting suspect to make him talk. History has also shown that inflicting such pain—no matter how "well-intentioned"—dehumanizes both the suspect and his interrogator, corrodes the system of justice, renders a fair trial virtually impossible, and often exacerbates the very threat to the nation's security that was said to warrant the interrogation tactics in the first place.

Knowing that history, the world's nations adopted the Geneva Conventions and the Convention Against Torture (in 1949 and 1984), both of which prohibit torture in absolute terms. The Convention Against Torture provides that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

If laws such as the Geneva Conventions and the Convention against Torture are to work, however, lawyers must stand up for them. That means being willing to say no when asked whether it is permissible to subject a human being to the brutality that the CIA proposed. Yet the OLC lawyers always said yes. Where precedents were deemed helpful, they cited them even if they were inapposite; where precedents were unhelpful, they did not cite them, no matter how applicable. They treated the law against torture not as a universal moral prohibition, but as an inconvenient obstacle to be evaded by any means necessary.

Such an approach to the law is especially alarming in view of the particular role of the Office of Legal Counsel. That office is designed to serve as the "constitutional conscience" of the Justice Department. As Jack Goldsmith, one of the heads of the OLC under President Bush, has said, "OLC is, and views itself as, the frontline institution responsible for ensuring that the executive branch charged with executing the law is itself bound by law." It attracts some of the nation's best lawyers, and its alumni include former Chief Justice William Rehnquist, Justice Antonin Scalia, former Solicitors General Theodore Olson and Walter Dellinger, former Yale Law School Dean and current State Department Legal Adviser Harold Koh, Harvard Law Professor Cass Sunstein, and former Yale University President Benno Schmidt Jr.

Private lawyers are sometimes considered "hired guns," whose obligation is to interpret the law as far as possible to do their client's bidding. We rely on the adversarial system and public airing of arguments and evidence to reach a just result. Lawyers in the Office of Legal Counsel, by contrast, work in a setting that affords no adversarial presentation or public scrutiny. In that position, the lawyer's obligation is to provide objective advice as an "honest broker," not to act as an advocate or a hired gun.

When it comes to covert activities such as the CIA interrogation program, judgments of legality are often uniquely in executive hands, since the judiciary, Congress, and the public may not even know of the activities' existence. In addition, on the question of torture the OLC lawyers were the last—and only—line of defense, since the detainees were denied all recourse to the outside world.

If OLC lawyers had exercised independent judgment and said no to the CIA's practices, as they should have, that might well have been the end of the Bush administration's experiment with torture. Vice President Dick Cheney and his chief counsel, David Addington, would undoubtedly have put tremendous pressure on the OLC to change its views; but had the OLC stood firm, it is difficult to imagine even the Bush-Cheney White House going forward with a program that the OLC said was illegal.

The OLC lawyers had the opportunity, and the responsibility, to prevent illegal conduct before it occurred. The lawyers involved in drafting the "torture memos"—Jay Bybee, John Yoo, Daniel Levin, and Steven Bradbury—failed to live up to these obligations. In their hands, law became not a constraint on power but the instrument of unconscionable abuse.

3.

The "original sin" in this narrative dates to August 1, 2002, when the OLC issued two memos that approved every tactic the CIA had proposed. From that point forward, there was no turning back. Other OLC memos had already ruled that the Geneva Conventions did not protect al-Qaeda detainees. And as we would learn later, the OLC had secretly concluded that the Convention Against Torture's prohibition on cruel, inhuman, and degrading treatment did not apply to foreigners held in CIA custody abroad. The August 2002 memos, therefore, addressed what the OLC considered the sole remaining barrier to harsh interrogation tactics—a federal statute making torture a crime.

The initial August 2002 memo, written by John Yoo and signed by Jay Bybee, was leaked in 2004, and has already been widely discussed.^[2] It defined "severe pain or suffering" by reference to an obscure and inapposite health benefits statute, concluding that in order to be "severe," pain must be "equivalent in intensity to the pain accompanying organ failure, impairment of bodily function, or even death." It interpreted "prolonged mental harm" to require proof of harm lasting "months or years." It said that the president had unchecked power to authorize torture despite a federal statute making it a crime. And it argued that an interrogator who tortured could escape liability by asserting unprecedented versions of the "self-defense" and "necessity" doctrines, advancing much broader interpretations of these concepts than most criminal defense lawyers would be willing to offer.

The same day, August 1, 2002, the OLC issued a second memo, publicly released for the first time in April 2009. It concluded that all of the CIA's proposed tactics were permissible: specifically,

(1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard.

None of these techniques, the OLC insisted, inflicted pain of a severity associated with organ failure or death. While being slammed into a wall repeatedly "may hurt...any pain experienced is not of the intensity associated with serious physical injury." What was the basis for these OLC conclusions? The CIA itself. With respect to waterboarding, for example, the OLC memo stated: "[the CIA has] informed us that this procedure does not inflict actual physical harm," and on that basis the memo concluded that waterboarding "inflicts no pain or actual harm whatsoever." And waterboarding cannot cause any long-term suffering, the OLC determined, because, according to the CIA, it "is simply a controlled acute episode."

The arguments of the initial August 2002 memo were so strained that the Justice Department abandoned them as soon as the memo was made public in 2004. On December 30, 2004, the department issued a replacement memo, signed by the new OLC head, Dan Levin, that pointedly departed from the August 2002 memo on several specific points. But these disagreements were purely cosmetic; behind closed doors, issuance of the ostensibly contrite replacement memo did not change anything with respect to the CIA's program. The memo was more an exercise in public relations than in law, since it did nothing to restrict the specific techniques that had been approved previously.

This becomes clear in three secret memos issued in May 2005, and signed by Steven Bradbury, who succeeded Levin as head of the OLC. These memos sound at first reading more reasonable than the August 2002 memos. They acknowledge more contrary arguments, and even occasionally express doubt. They were written with acute awareness of the widespread public criticism of the leaked August 2002 memo, and of the damning findings of the 2004 CIA inspector general's report. By this time, almost four years after September 11, and with substantial evidence of abuse, the OLC should have known better. Yet the May 2005 memos are in a fundamental sense the worst of the lot, and ultimately reach even more unreasonable positions than the August 2002 memos.

The May memos conclude that none of the CIA techniques, used singly or in combination, constitute either torture or cruel, inhuman, or degrading treatment. Their analysis is heavily predicated on two facts: (1) American soldiers subjected to some of these techniques in the military's counter-torture training (called Survival, Evasion, Resistance, Escape, or SERE) reportedly have not suffered severe physical pain or prolonged mental harm; and (2) doctors would be present to monitor the interrogations. Neither fact remotely supports the legality of the program.

The SERE experience is wholly inapposite. A soldier who chooses to subject himself to SERE training does so voluntarily; he knows that everything that happens to him is part of a program that he knows has clear limits. He is given a code word that he can use at any time to halt the process. By contrast, an al-Qaeda suspect finds himself an involuntary captive of his enemy in a secret prison, cut off from the outside world, unaware of any limits, and utterly powerless to make his interrogators stop.

Nor does the presence of a doctor make coercive interrogation legal. The memos stressed that medical experts with SERE experience would stop the interrogations "if deemed medically necessary to prevent severe mental or physical harm." But how is a medical expert supposed to assess whether a given technique is imposing severe rather than less-than-severe pain, or might give rise to prolonged rather than temporary psychological harm? No doctor could assess these things on the spot. Indeed, at one point the December 2004 memo seems to admit this, quoting a medical journal to the effect that "pain is a subjective experience and there is no way to objectively quantify it." And if anything, experience with SERE simulations is likely to have desensitized doctors to the potential harms presented by real coercive interrogations.

A separate memo, dated May 30, 2005, the most disingenuous of all, concluded that the CIA's techniques did not even constitute cruel, inhuman, or degrading treatment, a much lower threshold than torture. The Bush OLC had previously sidestepped the prohibition against "cruel, inhuman, or degrading treatment" altogether by maintaining, again in secret, that it did not apply to foreign nationals held outside US borders. But when that interpretation was publicly disclosed, Congress vowed to overrule it. The Bush administration vigorously resisted, but in the Detainee Treatment Act, enacted in December 2005, Congress expressly prohibited cruel, inhuman, or degrading treatment of any person in US custody.

Recognizing that this change was coming, the May 30 memo stated, once again in secret, that none of the CIA's techniques were cruel, inhuman, or degrading anyway, because they would not "shock the conscience," a test imposed by the Senate when it ratified the 1984 treaty banning torture and cruel treatment. The OLC concluded that the CIA tactics did not shock the conscience because they inflicted pain not arbitrarily but for a good end, and because the government sought to "minimize the risk of injury or any suffering that does not further the Government's interest in obtaining actionable intelligence."

The case law is clear, however, that any intentional infliction of pain for interrogation purposes "shocks the conscience." And the Supreme Court has recognized no exception that would permit the infliction of pain if the government's reason is good enough. The Court has repeatedly held that any use or threat of force to coerce a confession shocks the conscience—even where employed to solve a murder.^[3]

The OLC argued in its May 30 memo that this standard ought not to apply where interrogation is used only to gather intelligence, not to convict. But in Chavez v. Martinez, the Supreme Court in 2003 reaffirmed that any intentional infliction of pain for interrogation would shock the conscience, even where the statements were not used in a prosecution. In the Chavez case, officers interrogated a man while he was suffering from gunshot wounds in a hospital, but they did not inflict any pain themselves for the purpose of questioning. While the justices disagreed about the specific conclusions to be drawn from the facts alleged, and ultimately returned the case to the lower court for resolution, all of the justices who addressed the issue agreed that the deliberate infliction of pain on an individual to compel him to talk would shock the conscience.

Justice Kennedy, writing for three justices, reasoned that police "may not prolong or increase a suspect's suffering against the suspect's will," or even give him "the impression that severe pain will be alleviated only if [he] cooperates." Justice Thomas, writing for another three justices, concluded that the interrogation was permissible, but only because he found "no evidence that Chavez acted with a purpose to harm Martinez," or that "Chavez's conduct exacerbated Martinez's injuries." Under either approach, then, a purpose to harm is illegal. The court of appeals on remand in the Chavez case unanimously held that the alleged conduct indeed shocked the conscience, a fact not even acknowledged by the OLC memo.

The OLC memo maintained that "the CIA program is considerably less invasive or extreme than much of the conduct at issue in [Chavez]." In fact, the opposite is true. The officers in Chavez inflicted no pain for purposes of interrogation. The CIA's entire program, by contrast, was based on the deliberate infliction of pain and humiliation to compel recalcitrant suspects to talk against their will.

Tellingly, at the very end of this memo, the OLC lawyers admitted that "we cannot predict with confidence that a court would agree with our conclusion." But they then went on to reassure the CIA that the question "is unlikely to be subject to judicial inquiry." Even if the treaty prohibiting torture and cruel treatment were violated, the memo continued, "the courts have nothing to do and can give no redress." In other words, the CIA for all practical purposes was operating in a "law-free zone," or at least a zone where the law was whatever the executive said it was—in secret. And no court would ever have the opportunity to disagree.

The latest OLC memo on the CIA interrogation program to be disclosed is dated July 2007, and was publicly released on August 24, 2009.^[4] By the time this memo was written, the Supreme Court had rejected the Bush administration's contention that al-Qaeda detainees were not covered by Common Article 3 of the Geneva Conventions. Common Article 3 comprehensively prohibits torture, cruelty, violence to person, and any humiliating, degrading, or inhumane treatment of wartime detainees. By 2007, the CIA had limited their interrogation tactics but were still using extended sleep deprivation, dietary manipulation, attention grasps, and slapping detainees repeatedly in the face and stomach—all of which would ordinarily violate Common Article 3.

The OLC argued that Common Article 3 permitted abuse of al-Qaeda detainees that it would not permit of any other wartime detainees, even though Common Article 3 draws no distinctions among detainees. Other courts had ruled that any deliberate infliction of pain to coerce statements from suspects is inherently degrading. The OLC rejected that view, insisting that degrading treatment was permissible as long as it was not an "outrage upon personal dignity"—but never explained why using physical pain to override a suspect's will is not inherently an outrage upon personal dignity.

Most astoundingly, the memo argued —in a footnote—that the president could avoid all of Common Article 3's requirements simply by declaring that they do not apply—even though the Supreme Court had ruled exactly the opposite one year earlier. In the OLC's view, the Military Commissions Act of 2006 gave the president the power to overrule the Supreme Court on this matter. Congress never said anything of the kind. The memo concluded with the advice that the president act somewhat less dramatically, and simply issue a regulation that "defined" Common Article 3 in a way that would allow the CIA to do what it wanted. President Bush subsequently did just that.

4.

At its best, law is about seeking justice, regulating state power, respecting human dignity, and protecting the vulnerable. Law at its worst treats legal doctrine as infinitely manipulable, capable of being twisted cynically in whatever direction serves the client's desires. Had the OLC lawyers adhered to the former standard, they could have stopped the CIA abuses in their tracks. Instead, they used law not as a check on power but to facilitate brutality, deployed against captive human beings who had absolutely no other legal recourse.

In light of these actions, it is not enough to order a cessation of such tactics, and a limited investigation of CIA agents who may have gone beyond the OLC guidelines. Official recognition that the OLC guidelines were themselves illegal is essential if we are to uphold a decent standard of law. Official repudiation is also critical if we are to regain respect around the world for the United States as a law-abiding nation, and if we hope to build meaningful safeguards against this kind of descent into cruelty happening again.

Moreover, this is not just a matter of what's right from the standpoint of morality, history, or foreign relations. The United States is legally bound by the Convention Against Torture to submit any case alleging torture by a person within its jurisdiction "to its competent authorities for the purpose of prosecution." President Obama and Attorney General Holder have both stated that waterboarding is torture. Accordingly, the United States is legally obligated to investigate not merely those CIA interrogators who went beyond waterboarding, but the lawyers and Cabinet officers who authorized waterboarding and other torture tactics in the first place.

The fact that such an investigation would be divisive, or might divert attention from President Obama's other priorities, is not an excuse for failing to fulfill this legal obligation, and not a justification for not prosecuting. The fact that a defendant has powerful allies does not warrant treating him more leniently. At the same time, prosecutors do have discretion not to bring charges for many reasons, and it would not be illegitimate to decline prosecution if a prosecutor concluded that it was not clear beyond a reasonable doubt that the lawyers and officials intended to violate the law.

But surely it is premature to make such judgments. All the facts are still not known. And even if prosecution were not warranted, it is still critical that there be some form of official acknowledgment of wrongdoing. The least President Obama should do, therefore, is to appoint an independent, nonpartisan commission of distinguished citizens, along the lines of the 9/11 Commission, to investigate and assess responsibility for the United States' adoption of coercive interrogation policies.

Only such a commission has the possibility of rising above the partisan wrangling that any attempt to hold accountable high-level officials of the prior administration is certain to set off. The facts that emerge should point to the appropriate response—whether a congressional resolution, disbarment proceedings against the lawyers, civil actions for money damages, or criminal prosecutions. Absent a reckoning for those responsible for making torture and cruel, inhuman, and degrading treatment official US policy, the United States' commitment to the rule of law will remain a hollow shell—a commitment to be honored only when it is not inconvenient or impolitic to do so.

— September 10, 2009

Notes

^[1]Office of Inspector General, "Special Review: Counterterrorism Detention and Interrogation Activities (September 2001–October 2003)," May 7, 2004, available at www.aclu.org/oigreport/.

^[2]All of the OLC memos discussed here are reproduced in The Torture Memos: Rationalizing the Unthinkable, edited by David Cole and with a foreword by Philippe Sands, just published by the New Press, with the exception of a July 2007 memo that was released only on August 24, 2009.

^[3]See, for example, Rogers v. Richmond, 365 US 534 (1961); Ashcraft v. Tennessee, 322 US 143 (1944).

^[4]"Memorandum for John A. Rizzo, Acting General Counsel, Central Intelligence Agency, Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques that May Be Used by the CIA in the Interrogation of High Value al Qaeda Detainees," July 20, 2007, available at www.usdoj.gov/olc/docs/memo-warcrimesact.pdf.

We Still Torture: The New Evidence from Guantánamo

By Luke Mitchell

Luke Mitchell is a senior editor of Harper’s Magazine.

We face the temptation to believe that an election can “change everything”—that the stark contrast between Barack Obama and George W. Bush recapitulates an equally stark contrast between the present and the past. But political events move within a continuum, and they are driven by many forces other than democratic action, including the considerable power of their own momentum. Such is the case with the ongoing American experiment with torture.

The release in April of documents from the International Committee of the Red Cross, from the U.S. Justice Department’s Office of Legal Council, and from the House Armed Services Committee gave further credence to what had long been known about CIA and military interrogation techniques. They are brutal and, despite the surreal claims of the Bush Justice Department, they are illegal. The assumption underlying coverage of “the torture story,” however, has been that U.S.-sponsored torture came to a halt on January 21. The culpability of the previous administration remains to be determined, we are told, and in terms of ongoing criminal liability, the worst Obama himself could do is obstruct an investigation. Regarding the launch of that investigation, we must be patient.

We cannot be patient, though, and not simply because justice must be swift. We cannot be patient because not only have we failed to punish the people who created and maintained our torture regime; we have failed to dismantle that regime and, in many cases, even to cease torturing.

This last charge is the least heard. Although it is true that waterboarding is once again proscribed, it is equally true that the government continues to permit a series of “torture lite” techniques—prolonged isolation, sleep and sensory deprivation, force-feeding—that even Reagan appointee Judge Susan Crawford had to acknowledge amounted to torture when she threw out the government’s case against one accused terrorist. Like waterboarding, these techniques cause extreme mental anguish and permanent physical damage, and, like waterboarding, they are not permitted under international law. But unlike waterboarding, they remain on the books, in detailed prison regulations and field-manual directives, unremarked by anyone except a few activists.

The United States has always tortured. But our approach to torture has evolved over time. In the past, we preferred to keep the practice hidden. During the Cold War, we exported most of our torture projects to client regimes in Latin America, the Middle East, and South Asia, while at home we worked to perfect a new form of “no touch” interrogation that would achieve terror and compliance without leaving scars, even as we denounced similar practices employed by our enemies. This was the age of hypocrisy—our secrecy was the tribute war crimes paid to democracy.

The hypocritical period ended, of course, with the attacks of September 11, the national flinch, the chest-thumping of George W. Bush, and the grim pronouncements of Dick Cheney, who loudly advertised his willingness to take the United States to “the dark side.” This, as we have all come to understand, was the time of open torture. It was the “shameful era,” when we put the techniques we had developed during the Cold War to use in the new “war on terror.”

Now we have entered what we may wish to call the post-torture era, except that it is not. Indeed, we cannot even revert to the easy hypocrisy of the Cold War. We have returned to our traditional practice of torturing and pretending not to, but the old routine is no longer convincing. We know too much. We know that we are still imprisoning men who very likely are completely innocent. We know that we still beat them. We know that we still use a series of punishments and interrogation techniques—touch and “no touch”—that any normal person would acknowledge to be torture. And we know that when those men protest such treatment by refusing to eat, we strap them to chairs and force food down their throats. We know all of this because it is well documented, not just by reporters and activists but by the torturers themselves.

It is this very openness that suggests why this new age—let’s call it the era of legitimized torture—is so perilous, not just to the men who are tortured but to liberal democracy. The moment is rapidly approaching when President Obama will cease to be the inheritor of a criminal regime and instead become its primary controlling authority, when the ongoing war crimes will attach themselves to his administration. And when they do attach themselves, Obama’s administration will be forced to defend itself, as all administrations do. And it will defend itself by claiming that what we call crimes are not in fact crimes.

This process has already begun. Rather than end illegal torture, we are now solidifying the steps that we have taken to make these activities legal. By failing to change the underlying problem even as we celebrate its supposed “solution,” we actually further entrench the past, the “bad” Bush era, into the present, the “good” Obama era. We will return to the rule of law, but within that rule will remain a rule of torture, given all the greater authority by our love of the new regime.

We have a tendency in the United States to judge actions not by their intrinsic merit but by the stylishness with which they are executed. Although the ostentatious lawlessness of the previous administration was pleasing to some, it ultimately frightened the majority of Americans. It was far too flamboyant. Obama and the Democrats seem to have rejected ostentation and lawlessness, and are all the more popular for that rejection. But they have not rejected torture itself.

As we learned from the Office of Legal Counsel memos, it is possible to parse “torture” to a considerable degree. What is the allowable incline for a waterboard? How many calories will suffice to avoid starvation? Which insects are permitted to be used in driving a man insane? The correct answer, according to those who parse, is the difference between a war crime and a heroic act of patriotism.

The OLC memos have been discredited but not the thinking behind them. We are still parsing, still weighing, still considering the possibilities. Whereas once we understood torture to be forbidden—something to be hidden and denied—now we understand it to be “complex.” We are instrumental in our analysis, and that instrumentality is held to be a virtue. We don’t torture not because it is illegal or immoral or repugnant to democracy but because “it doesn’t work,” leaving the way clear to torture that does “work.”

The combination of complexity and instrumentality creates the potential for a new inversion. We enter the “complex” realm of torture and draw a new line, and the logical consequence—the unavoidably intended consequence—is that whatever is on the “good” side of that line, the “useful” side, can no longer be called torture. And since it is no longer torture, it must be something else. In this way we arrive at the strangest and most absurd conclusion. What was once a crime becomes a sensible approach to law enforcement. And in becoming sensible it also becomes invisible.

It is our evolving understanding of force-feeding that most clearly demonstrates this process of inversion and invisibility—not because it is the most horrifying form of torture, though it is horrifying, but because it has been so completely mainstreamed. Indeed, as it is practiced at Guantánamo, force-feeding is understood not only to not be torture but in fact to be a form of mercy. It is understood, above all, as a way to “preserve life.”

As of this writing, at least thirty men are being force-fed at Guantánamo. They are being force-fed despite the departure of the administration that instituted force-feeding, despite the current administration’s order to shut down Guantánamo, and despite its even more specific order requiring prisoners there to be treated within the bounds of Common Article 3 of the Geneva Conventions, which—by every interpretation but that of the U.S. government—clearly forbids force-feeding.11. The conventions forbid “humiliating and degrading treatment,” and doctors who advise the Red Cross, which in turn has considerable oversight in interpreting the conventions, have repeatedly made clear that force-feeding is humiliating and degrading. See, for instance, the judgment of Red Cross adviser Hernán Reyes, in a 1998 policy review: “Doctors should never be party to actual coercive feeding, with prisoners being tied down and intravenous drips or oesophageal tubes being forced into them. Such actions can be considered a form of torture, and under no circumstances should doctors participate in them, on the pretext of ‘saving the hunger striker’s life.’”

Most of these prisoners are not facing imminent death. In fact, force-feeding is itself a risky “treatment” that can cause infections, gastrointestinal disorders, and other complications. The feedings begin very soon after prisoners begin a hunger strike, and continue daily—with military guards strapping them to restraint chairs, usually for several hours at a time—until the prisoners agree to end the strike. This hunger striker is not an emaciated Bobby Sands lying near death after many weeks of starvation. He is a strong man bound to a chair and covered in his own vomit.22. Dr. William Winkenwerder, who served as Bush’s assistant secretary of defense for health affairs and was therefore responsible for the force-feeding policy at Guantánamo, explained this peremptory approach to me three years ago with an almost poignant question: “If we’re there to protect and sustain someone’s life, why would we actually go to the point of putting that person’s life at risk before we act?”

If force-feeding does not save lives, then what does it do? What makes it useful? From the perspective of the prisoner, there can be only one answer: Pain makes force-feeding useful. The pain makes the strike unbearable, and therefore it prevents further protest.

This is not just a logical inference. The first experience many Guantánamo prisoners had with being forced to eat was not when they went on hunger strikes but rather when they underwent interrogations at the secret CIA bases where they were held prior to their arrival at Guantánamo. At these “black sites,” we now know from the ICRC and OLC reports, CIA interrogation teams used “dietary manipulation” as a “conditioning technique” to help gather “intelligence.” These techniques, in other words, were a form of torture, no different from other, more infamous techniques outlined in the same reports, including “walling,” “cramped confinement,” and “water dousing” (now better known as waterboarding).

A 2005 memo signed by Steven Bradbury, then the acting head of the Office of Legal Counsel, explains the method. Dietary manipulation “involves the substitution of commercial liquid meal replacements for normal food, presenting detainees with a bland, unappetizing, but nutritionally complete diet.” The CIA interrogation team would strap the prisoners to chairs and feed them bottles of Ensure Plus—cited by name—for weeks on end. As Bradbury noted, it was hoped that this would cause the prisoners to become compliant.

The interrogation team believed [redacted] “maintains a tough, Mujahidin fighter mentality and has conditioned himself for a physical interrogation.” The team therefore concluded that “more subtle interrogation measures designed more to weaken [redacted] physical ability and mental desire to resist interrogation over the long run are likely to be more effective.” For these reasons, the team sought authorization to use dietary manipulation, nudity, water dousing, and abdominal slap. In the team’s view, adding these techniques would be especially helpful [redacted] because he appeared to have a particular weakness for food and also seemed especially modest.

In imposing dietary control, safety was always a concern. “While we do not equate commercial weight-loss programs and this interrogation technique,” Bradbury wrote, “the fact that these calorie levels are used in the weight-loss programs, in our view, is instructive in evaluating the medical safety of the interrogation technique.” Bradbury even anticipated the almost sentimental patina of caregiving that informs the present-day discussion of force-feeding at Guantánamo, noting that “a detainee subjected to the waterboard must be under dietary manipulation, because a fluid diet reduces the risks of the technique”—by reducing the risk of choking on undigested vomit. The force-feeding, in other words, was for the good of the prisoner.

Forcing a man to drink a diet shake may seem like a minor affront, far removed from the rack or even from waterboarding. But actual prisoner testimony from another set of documents, the Red Cross interviews acquired by Mark Danner and published in The New York Review of Books in April, suggests that the dietary manipulation was traumatizing:

During the first two weeks I did not receive any food. I was only given Ensure and water to drink. A guard would come and hold the bottle for me while I drank. . . .

During the first month I was not provided with any food apart from on two occasions as a reward for perceived cooperation. I was given Ensure to drink every 4 hours. If I refused to drink then my mouth was forced open by the guard and it was poured down my throat by force. . . .

I was transferred to a chair where I was kept, shackled by [the] hands and feet [and] given no solid food during the first two or three weeks, while sitting on the chair. I was only given Ensure and water to drink. At first the Ensure made me vomit, but this became less with time. . . .

That is how we treated prisoners at CIA black sites, back in the shameful era. It is by no means the worst instance of man’s inhumanity to man. But dietary manipulation clearly was not a technique meant primarily to preserve life.

Compare now the shameful and repudiated practice of dietary manipulation under Bush to the sensible, life-preserving practice of “involuntary feeding” at Guantánamo today, in the post-torture era.

In February, Lieutenant Colonel Yvonne Bradley, a U.S. military lawyer representing Binyam Mohamed, the British resident who was recently released from Guantánamo, described a now-familiar situation to the Guardian. “Binyam has witnessed people being forcibly extracted from their cell,” she said. “Swat teams in police gear come in and take the person out; if they resist, they are force-fed and then beaten.”

Bradley continued,

It is so bad that there are not enough chairs to strap them down and force-feed them for a two-or three-hour period to digest food through a feeding tube. Because there are not enough chairs the guards are having to force-feed them in shifts. After Binyam saw a nearby inmate being beaten it scared him and he decided he was not going to resist. He thought, “I don’t want to be beat, injured or killed.”

That same month, Ahmed Ghap pour, an attorney with the human-rights group Reprieve, which represents thirty-one detainees at Guantánamo, told Reuters that prison officials were “over-force-feeding” hunger strikers, who were suffering from diarrhea as they sat tied to their chairs. He said in some cases officials were lacing the nutrient shakes with laxatives. And the situation was getting worse. “According to my clients, there has been a ramping up in abuse since President Obama was inaugurated,” Ghappour said, speculating that guards there wanted to “get their kicks in” before the camp closed.

David Remes, an attorney who represents fifteen detainees at Guantánamo, wrote in an April petition to the U.S. District Court for the District of Columbia that one of his clients, Farhan Abdul Latif, had been suffering in particular. When the nasogastric tube “is threaded though his nostril into his stomach,” it “feels like a nail going into his nostril, and like a knife going down his throat.” Latif had in recent months resorted to covering himself with his own excrement in order “to avoid force-feeding and that, when he was finally force-fed, the tube was inserted through the excrement covering his nostrils.”33. Latif, who is now being held in Guantánamo’s “Behavioral Health Unit,” has quite clearly been broken by his many years of confinement. Remes reports that his client has made several suicide attempts, the most recent of which was in his presence. “Without my noticing, he chipped off a piece of stiff veneer from the underside of the table and used it to saw into a vein in his left wrist,” he said. “As he sawed, he drained his blood into a plastic container I had brought and, shortly before our time was up, he hurled the blood at me from the container. It must have been a good deal of blood because I was drenched from the top of my head to my knees.” Latif survived this attempt as well.

Another prisoner, Maasoum Abdah Mouhammad, told his lawyers at the Center for Constitutional Rights that he and fifteen other men had also refused to eat:

Mr. Mouhammad described that men were vomiting while being overfed. Some of the striking detainees had kept their feeding tubes in their noses even when not being force-fed just to avoid having the tubes painfully reinserted each time. Mr. Mouhammad reported that interrogators were pressuring and coercing the men on hunger strike to eat, making promises that they would be moved to the communal living camp if they began eating. Mr. Mouhammad described these experiences as “torture, torture, torture.”

What was torture at the black sites remains torture today at Guantánamo. It is perhaps ironic that what began as a method for making men talk—in fact, as we are now learning, in order to make them lie, about ties between Al Qaeda and Iraq—is now a method of preventing men from “talking,” of preventing them from registering protest at the injustice of their condition. But that irony should not prevent us from recognizing the simple fact of the torture itself.

Every U.S. institution that could prevent force-feeding has failed to do so. Congress has failed to act, as have the courts, as has the president. Today the American Medical Association refuses even to sanction the doctors employed at Guantánamo, and one of those doctors, William Dudney, actually touts his previous job as the “Chief of Psychiatry, Guantánamo Bay, Cuba” in an advertisement for his “Medical Weight Management” services.

District Judge Gladys Kessler had the opportunity to address force-feeding in February, when lawyers for Mohammed Al-Adahi and four other prisoners at Guantánamo sought an immediate injunction against the practice. Kessler denied the injunction on the unconvincing grounds that her court lacked not just the jurisdiction but the competency to dispense justice. “Resolution of this issue requires the exercise of penal and medical discretion by staff with the appropriate expertise,” she wrote, “and is precisely the type of question that federal courts, lacking that expertise, leave to the discretion of those who do possess such expertise.” Once again, complexity prevents intervention. (Kessler, it should be noted, began her career working for Democrats in Congress.)

The Pentagon, so richly empowered by the circuit court, has failed as well. Dr. Ward Casscells was appointed assistant secretary of defense for health affairs in 2007 and thus far has survived in his role as the Pentagon’s top health official. I asked his spokesperson, Cynthia Smith, why he was continuing the previous administration’s policy of force-feeding even after the new president had ordered prisoners to be treated within the bounds of Common Article 3 of the Geneva Conventions. “The policy does save lives,” Smith wrote back (a week later, stipulating that I attribute quotes to her instead of to Casscells). “Idly watching detainees for whose care we are responsible engage in self-starvation to the point of permanent damage to health or death is not required by U.S. law, Common Article 3, or medical ethics.”44. Smith is one-third right. Force-feeding is indeed permitted under U.S. Bureau of Prison guidelines. But as previously noted, the Geneva Conventions are well understood to forbid the practice, and the guidelines of the World Medical Association are even more unambiguous: “Forcible feeding is never ethically acceptable.”

Smith went on to note that some strikers may be protesting because they feel pressured to do so by other prisoners. In such cases, force-feeding was a way to help them resist that pressure. This was a strange argument. Given that the prisoners are separated from one another and are under constant surveillance, such pressure could come only in the form of appeals to conscience. Smith’s logic was reminiscent of the claim by Marc Thiessen, a former Bush speechwriter, in the Washington Post in April: “The job of the interrogator is to safely help the terrorist do his duty to Allah, so he then feels liberated to speak freely”—which itself brings to mind the case of Alvaro Jaume, who was tortured under medical supervision in Uruguay in the 1980s, and who recalled, “These doctors are saving lives, but in a perverse way. The aim of torture is thwarted if the victim cannot support the interminable ordeal. The doctor is needed to prevent you from dying for your convictions.”55. The historian A. J. Langguth recalled some similar thinking many years ago in the New York Times, drawing from the memoirs of a CIA asset in the Uruguayan police force who was trained in the 1960s by Dan Mitrione, of the U.S. Office of Public Safety (which was founded to facilitate the training of officials in states believed to be threatened by Communist subversion).
“Before all else,” Mitrione explained to his Latin American protégé, “you must be efficient. You must cause only the damage that is strictly necessary, not a bit more. We must control our tempers in any case. You have to act with the efficiency and cleanliness of a surgeon and with the perfection of an artist.”
Mitrione was a bureaucrat at heart. “It is very important to know beforehand whether we have the luxury of letting the subject die,” he said, adding that a “premature death means a failure by the technician.”
Compare Mitrione’s claims with the words of the top lawyer at the CIA’s Counter-Terrorism Center, Jonathan Fredman, at a 2002 strategy meeting (the minutes for which were released in 2008 by Carl Levin as part of an investigation by the Senate Armed Services Committee, which he chairs). Fredman was similarly professional, emphasizing that “techniques that lie on the harshest end of the spectrum must be performed by a highly trained individual. Medical personnel should be present to treat any possible accidents.” He also discussed the strong requirement of a bureaucracy for documentation: “If someone dies while aggressive techniques are being used, regardless of cause of death, the backlash of attention would be severely detrimental. Everything must be approved and documented.” And he brought the same dark, almost humorous, perception of his task to bear, declaring that torture “is basically subject to perception. If the detainee dies you’re doing it wrong.”
Fredman, it should be noted, claims that he was “paraphrased sloppily and poorly.”The prudent degree of specificity may vary from regime to regime, but the mind of the torturer remains the same at all times and in all places. All of which, in any case, suggests that the Pentagon has no intention of changing its policy.

President Obama, to date, has done nothing either. In February, Ramzi Kassem, a Yale law professor who represents one of the hunger strikers, sent a formal letter to Gregory Craig, the new White House counsel, outlining the legal concerns about force-feeding and recommending in detail how to bring the treatment of hunger strikers in line with the Geneva Conventions (for instance, by prohibiting the use of restraint chairs). Obama could simply order these changes, but he has not.

Obama did ask Navy Admiral Patrick Walsh to visit Guantánamo and report back on conditions there. Walsh found the practices in question, including the use of restraint chairs, to be perfectly acceptable. When Reuters asked Walsh about specific incidents of abuse, he was evasive. “We heard allegations of abuse,” he said. “What we found is that there were in some cases substantiated evidence where guards had misconduct, I think that would be the best way to put it.”

Force-feeding is an especially egregious example of legitimized torture, but it is far from the only example. Just one percent of the prisoners held offshore by the United States are held at Guantánamo, and many other techniques remain legally available to their jailers. The Army Field Manual still permits solitary confinement, sensory deprivation, and sleep deprivation, as well as so-called emotional techniques such as “fear up,” which involves terrifying prisoners into a state of “learned helplessness.”

It is difficult to know the degree to which these practices are employed, though, because President Obama has adopted not only much of the Bush Administration’s torture policy but also its radical doctrine of secrecy. The Obama White House has sought to prevent detainees at Bagram prison in Afghanistan from gaining access to courts where they may reveal the circumstances of their imprisonment, sought to continue the practice of rendering prisoners to unknown and unknowable locations outside the United States, and sought to keep secret many (though not all) of the records regarding our treatment of those detainees.

The result is that what would at first seem to be something positive—a “national conversation about torture”—has instead become a form of complicity. We know that torture occurred, and we know that it continues to occur. Yet we allow ourselves to pretend otherwise because we don’t know enough. The secrecy allows us to transform a taboo into an “issue,” and most voters seem to desire, as Judge Kessler did, to leave the resolution of that issue to the “penal and medical discretion” of “a staff with the appropriate expertise.” In one recent poll only 35 percent of Americans called for the closing of Guantánamo, whereas 45 percent wanted to keep it open and 20 percent weren’t sure what we should do.

As ever, Democrats are attempting to split the difference. A major claim by Obama is that he does not want people in the CIA “to suddenly feel like they’ve got to spend all their time looking over their shoulders”—presumably because he does not want to prejudge their “appropriate expertise.” A more persuasive means of preventing torture would be to say precisely the opposite, that people in the CIA should spend all their time looking over their shoulders. But that is not what Obama has said. Now those who would speak against torture in a crisis situation face a strong deterrent. They will be understood as taking a side on an issue—a complex issue—rather than simply upholding well-established legal (and at one time political) precedent.

We have seen too much in the past eight years to pretend any longer that the United States is incapable of criminal abuse or to trust the “experts” to act secretly in what they believe, sincerely or not, to be our best interests. We have seen too much to permit ourselves the luxury of ambivalence. Indeed, now that we have seen what our nation has done in the depths of a panic, we should also be able to recognize the larger, longer-term crimes of our leaders. We have for many years imprisoned a greater proportion of our own people than any other nation on earth, kept many of those prisoners in the kind of prolonged solitary confinement that is shown in study after study to drive people insane, and countenanced the rape of those who aren’t in solitary confinement as part of a system of “rough justice.” We have known this about ourselves for a very long time and done nothing.

Now we have a choice. We can continue our experiment with torture or we can harness the obvious horror of the last eight years to rectify the more discreet horrors of the distant past and the darkening present, and in so doing at last become a nation whose actions embody its pretensions.