Perhaps the exception proves the rule – by proving that the rule exists – but that never did make much sense, except for parking signs. If the sign says “No Parking on Sundays” that does “prove” that parking is allowed, as a rule, every other day of the week. But it’s not that simple. In other matters, exception after exception seems to prove the “rule” is kind of a joke. Grand juries in Ferguson and then Staten Island refused to indict white cops who killed unarmed black men, which hardly proves that there’s a rule that they shouldn’t really do that. There might as well not be any such rule at all, as this seems to happen again and again. That’s why, a week after the Staten Island decision to not charge the cop who put that fellow in an illegal chokehold and then sat on his chest until he died, is still generating massive protests across the nation – riots in Berkeley, on the other side of the continent, and now medical students all across America staging a die-in – all to say that making an exception for these two cops doesn’t prove any rule about not doing this sort of thing. It proves there’s not a rule about that at all. Exceptions sooner or later become the rule.
That’s a dangerous business, and we know it. No man is above the law. Richard Nixon found that out in that Watergate mess. He once said that if the president does it, it’s not illegal – but he resigned and flew home to California, because what he had been doing was illegal. Gerald Ford, and everyone else, said see, the system worked – and it did – and then Ford pardoned Richard Nixon for whatever he might have done or had been planning to do. Ford made an exception, because, he said, we needed to move on. Ford, in a way, was maintaining that this exception still proved the rule, the rule of law. Nixon was never charged with violating any law, but we are a nation of laws, not men, as everyone was saying at the time, and Nixon was, after all, gone for good. That would do. This particular exception really did prove the rule. The nation shrugged. It was over.
That’s putting it too neatly. We had a constitutional crisis on our hands at the time, and no one knew how this would turn out. We might have ended up a banana republic, run by an odd vengeful man who drank too much and ranted about Jews and niggers, privately, of course. We decided he was the exception. We weren’t like him. We were infinitely fair-minded good people, and we play by the rules. There are no exceptions, except for white cops now, and Wall Street bankers, and professional football players who beat their wives, and for Bill Cosby. But those exceptions, except for Wall Street bankers, aren’t exceptions any longer, are they? They’re outrages. We know that exceptions sooner or later become the rule. One must be careful about these things.
Now we have a new issue. We don’t torture people, but of course we have tortured people. We had a national policy of torture, even if we called it something else, and the release of the Senate Intelligence Committee on what the CIA was doing in the Bush-Cheney years proved that – and now we have to decide if our use of torture was a necessary exception that proved the rule, that we don’t torture people, even if we did. Maybe it wasn’t really torture – an untenable position under international law, and our own law. Maybe it was necessary this one time, because the threat was so dire and torture produced intelligence we could get no other way – but the exhaustive report shows that torture got us next to no useful information, and the dire treats detainees finally screamed out about were nonsense they made up to stop the pain. Maybe this was, after all, no more than sadism run amok, but then it is possible to make an exception for that – those were dark days and everyone was panicked, so such things can be excused, just this once, given the circumstances. Or maybe these were patriots doing the right thing, to keep the country safe, and it’s unfair to turn on them now – that’s the patriot exception. Or maybe they were just following orders. That’s the Adolf Eichmann exception. The Israelis didn’t buy it. They executed Eichmann anyway, but we might want to cut these CIA guys some slack. More than twenty of the detainees in question were entirely innocent of anything, and a few detainees died as we were doing our thing, but none of them were Jews after all. The Eichmann exception might apply here.
On the other hand, we might want to do the Gerald Ford thing and just let it go. An item in the Los Angeles Times notes that we’re going down that road:
A Senate committee report describing the CIA’s torture of detainees and accusing the agency of lying to top White House officials about its secret program may be the most detailed excavation of government officials’ misconduct in years. Still, the prospect that Washington will respond with major reforms, legislation, firings or criminal prosecutions was slim.
The day after the release of the report’s executive summary, the White House dodged questions on whether President Obama agreed with its core findings and suggested he already has done all he believes to be necessary to prevent a repeat of the brutal interrogations that he said “constituted torture in my mind.”
That was Gerald Ford noting that Nixon was now gone, but it’s not that simple:
Amid a fresh call for a major shake-up at the highest levels of the CIA, the White House expressed support for agency Director John Brennan, who was the deputy executive director in 2002 when the interrogation program was designed and implemented. The Justice Department defended its decision not to prosecute those involved, saying the report would not trigger reconsideration.
Hey, John Brennan was there, in the middle of this, and someone noticed that:
“No one has been held to account. Torture didn’t just happen…. Real actual people used torture,” Democratic Sen. Mark Udall of Colorado said Wednesday on the Senate floor as he called for Brennan’s resignation and a purge of top CIA officials. “What’s to stop the next White House and CIA director from supporting torture?”
What’s to stop the exception from becoming the rule? Well, there’s this:
The White House emphasized that Obama signed an executive order banning torture as one of his first acts as president. He also ordered the Justice Department to review the treatment of detainees and formed a task force to review practices of transferring prisoners to other countries. A CIA inspector general also has reviewed the program.
“The commander in chief concluded that the use of the techniques that are described in this report significantly undermined the moral authority of the United States,” White House spokesman Josh Earnest said.
Similarly, the Justice Department has cast the matter as a closed case.
A department official said Wednesday that federal prosecutors will not reopen their investigation of whether criminal laws were broken by CIA guards and interrogators for mistreating detainees.
They said they looked into this, and it’s all better now, or there’s not much they can do now:
That review began in 2009 when Atty. Gen. Eric H. Holder Jr. directed an investigation to determine whether the CIA mistreated detainees at secret “black sites” who were tied to the Sept. 11, 2001, attacks on the United States. The review generated two criminal investigations, but Department officials “ultimately declined those cases for prosecution” because of insufficient evidence, said the official, who spoke on condition of anonymity.
Prosecutors have read the Senate committee’s full report and “did not find any new information” that would warrant reopening the case, the official said.
Human rights advocates have contended that the investigation was too narrow. At the start, Holder made it clear that his department “would not prosecute anyone who acted in good faith and within the scope of the legal guidance” given by the George W. Bush administration that approved some of the interrogation techniques.
They were just following orders, and there’s this:
Even one of the few Republicans to support the Feinstein-led review, Sen. John McCain (R-Ariz.), suggested Wednesday that legislation in the new year to address findings of the report was unlikely.
“All of this stuff happened before we passed the Detainee Treatment Act,” he said of the 2005 law that prohibits “cruel, inhuman or degrading treatment or punishment” of detainees. “We cured it…. Now it’s against the law.”
Without a legislative response, the Senate inquiry would stand apart from its two comparable investigations of the past, said Loch K. Johnson, an expert on the CIA relationship with Congress. The Church Committee inquiry of CIA abuses in the mid-1970s and the Iran-Contra hearings of a decade later resulted in legislative reforms, said Johnson, who was a top aide on the Church Committee.
Neither of those investigations led to prosecutions, he noted.
“The attitude has been that the shame of it is a powerful thing,” he said.
It worked with Richard Nixon, after all, but this business about patriots just following orders is curious, because those orders have to come from someone, and Slate’s Fred Kaplan explores that:
Of all the shocks and revelations in the Senate Intelligence Committee’s report on CIA torture, one seems very strange and unlikely: that the agency misinformed the White House and didn’t even brief President George W. Bush about its controversial program until April 2006.
The question of the claim’s truth or implausibility is not trivial or academic; it goes well beyond score-settling, Bush-bashing, or scapegoating. Rather, it speaks to an issue that’s central in the report in the long history of CIA scandals, and in debates over whether and how policy should be changed: Did the torture begin, and did it get out of hand, because the CIA’s detention and interrogation program devolved into a rogue operation? Or were the program’s managers actually doing the president’s dirty business?
For whom do we make an exception? The low-level guys may be off the hook:
Were the CIA’s directorate of operations and its counterterrorism center freelancing after the Sept. 11 attacks, or were they exchanging winks and nods with the commander-in-chief?
The annals of history suggest the latter, and in a few passages, so does the report. A big lesson of the Church Committee – Sen. Frank Church’s mid-1970s probe into black-bag jobs, assassination plots, coup attempts, and other acts of CIA malfeasance since the agency’s origins – is that, in nearly every instance, there was no “rogue elephant” at Langley. Rather, the presidents in office at the time knew what was going on, at least in broad, strategic terms – and their CIA henchmen knew to give the leader of the free world a wide berth of “plausible deniability” in case they got caught. …
President Dwight Eisenhower knew about and approved the CIA’s plot to overthrow Iranian Prime Minister Mohammad Mosaddeq. President John F. Kennedy knew about, and approved, the plots to murder Cuba’s Fidel Castro; in fact, his brother, Attorney General Robert Kennedy, formed a top-secret “special group” in the White House to oversee the operation. President Lyndon B. Johnson (who, after he left office, told a reporter that Kennedy had been running “a damn Murder Inc. in the Caribbean”) carried on the enterprise elsewhere in Latin America.
It seems odd, then, that the officials running the CIA interrogation program, kept things secret from the highest elected officials and thus, as the report puts it, “impeded effective White House oversight and decision-making.” First, the history of these sorts of programs suggests they were carrying out White House decisions. Second, President Bush and especially Vice President Dick Cheney supported the program, and they still emphatically defend it. Bush wrote in his memoirs that he approved it.
Something odd is going on here:
The committee’s own account contains anomalies on this question. For instance, the report cites an internal CIA email noting that “the [White House] is extremely concerned [that Secretary of State Colin] Powell would blow his stack if he were to be briefed on what’s been going on.” That was written in July 2003, nearly three years before Bush was supposedly first briefed on the program, yet someone in the White House not only knew about it, but knew enough to know that certain Cabinet secretaries – in this case, a former Army general and chairman of the Joint Chiefs of Staff well-versed in the Geneva Conventions and official manuals on interrogation – might object.
The report also cites a briefing by a CIA station chief to a government official in a foreign country where the agency had set up a secret detention center. “The presentation,” the report says of the briefing, “also noted that the president of the United States had directed that he not be informed of the location of the CIA detention facilities to ensure he would not accidentally disclose the information.”
No date is provided for when this briefing took place (or perhaps it’s been redacted in the footnote), but the context suggests 2003 or 2004. Again, this is two or three years before Bush was supposedly first briefed on the program – yet, he already knew that the CIA did have secret foreign detention centers for interrogating suspected terrorists in ways that might be illegal if done stateside.
A key point here is that Bush “had directed” the CIA not to tell him the locations of these centers. This fits the classic pattern of “plausible deniability”: The president is told about the drift and outlines of the black program (be it an assassination, a coup, bribery, torture, or whatever), but he doesn’t want to be told too much. He doesn’t want his fingerprints on any directive, so that, in case things go awry, he can blame Langley – and part of Langley’s job is to take the blame.
It’s a dance of sorts, and Kaplan goes on and on with this sort of thing, showing the CIA was just doing what Bush and Cheney obviously wanted them to do, and didn’t really want to know about, but both were knee-deep in this:
None of this should imply that the CIA was blameless, or merely a White House tool, in its torture of detainees. The report lays out compelling evidence that the agency’s directorate of operations and its counterterrorism center lied to its own lawyers and inspector general; that they kept congressional intelligence committees in the dark; and that they contracted out many interrogations (at enormous expense) to inexperienced psychologists of a sadistic bent, ignoring dissent not only from FBI agents (who often eked out more useful information with gentler techniques) but also from the CIA’s own chief of interrogations, who wrote a memo, back on Jan. 21, 2003, expressing “serious reservations” about their techniques, adding, “This is a train wreck waiting to happen, and I intend to get the hell off the train before it happens.”
Maybe he did. The train wreck certainly happened, with consequences:
CIA officials linked to brutal interrogation tactics in a U.S. Senate report on torture may be prosecuted or sued overseas for their conduct, a threat that may keep them confined to the U.S. for the rest of their lives.
“The reality is that none of the individuals involved, particularly those whose names are known, should ever travel outside the United States again,” said Beth Van Schaack, who teaches international criminal justice and human rights at Stanford University. She noted the potential for suits in foreign courts under “expansive principles of jurisdiction.”
One cautionary tale: An Italian court in November 2009 convicted 23 Americans, mostly suspected Central Intelligence Agency officials, in absentia for abducting radical Islamic cleric Osama Mustafa Hassan Nasr on a Milan street in February 2003. Nasr, also known as Abu Omar, said he was kidnapped by CIA agents and turned over to Egyptian security officials and tortured.
None of the accused CIA officials appeared for the trial. The CIA station chief in Italy lost his retirement home when the absentia case concluded and the house was forcibly sold to help pay a damages award of 1 million euros ($1.5 million) to Nasr and 500,000 euros to the cleric’s wife.
CIA officials linked to the torture details released Dec. 9 in the Senate report may fare worse if countries exposed in the agency’s extraordinary rendition program are pressured to bring criminal cases. About 21 European countries cooperated in the U.S. practice of transferring terror suspects to a foreign country for detention and questioning without legal proceedings in American courts.
“As a result of the additional disclosures that are now public, there is going to be more pressure for prosecutions and accountability abroad in part because U.S. courts have failed to provide any accountability at home,” said Hina Shamsi, director of the American Civil Liberties Union’s national security project. “Pandora’s box was opened when the CIA made the decision to torture. The movement and need for accountability is ongoing.”
President Obama may have made an exception for John Brennan, and others would make exceptions for his cohorts, because exceptions prove the rule, of law, but others might not do that. American exceptionalism doesn’t play well abroad, and if Kaplan is right, Bush and Cheney should stay home too.
This is a problem, but Former CIA director Michael Hayden argues that the Department of Justice not bringing charges against any CIA interrogators as evidence of the CIA’s innocence:
John Durham, a special independent prosecutor, over a three-year period investigated every known CIA interaction with every CIA detainee. At the end of that the Obama administration declined any prosecution. [In 2012, the Justice Department announced that its investigation into two interrogation deaths, that Durham concluded were suspicious, out of the 101 he examined – those of Afghan detainee Gul Rahman and Iraqi detainee Manadel al-Jamadi – would be closed with no charges.] So if A is true how does B get to be true? If the CIA routinely did things they weren’t authorized to do, then why is there no follow-up? I have copies of the DOJ reports they’re using today. The question is, is the DOJ going to open any investigation and the DOJ answer is no. You can’t have it both ways. You can’t have all this supposed documentary evidence saying the agency mistreated these prisoners and then Barack Obama’s and Eric Holder’s Department of Justice saying no, you’ve got bupkis here.
This sets off Andrew Sullivan:
This is evidence that Obama’s weakness and vacillation on the question of torture has done great damage. Hayden is using the Obama DOJ’s own white-washing report to minimize the war crimes in the Senate report. One of the ironies in this, of course, is that Hayden has been criticizing the Senate Report’s failure to interview the CIA torturers themselves, even though the Durham investigation legally precluded that for three years. But the Senate Report had an obvious alternative to such interviews: it had the CIA’s own internal documents – its own internal conversations – in which it is perfectly clear that as they were practicing torture, they knew what they were doing could not be described by anyone as “humane”. These documents alone are more than sufficient proof of the claims made in the report. They are definitive. More to the point, no documents were included from any other source – either to buttress or to contradict the findings. But in the Durham “investigation”, the torturers were interviewed but not the victims – a clearly rigged process designed to exculpate the war criminals.
The exceptions shouldn’t be the rule:
There should, in my mind, be no debate about prosecutions for war crimes. Seriously, can you imagine the US opposing such prosecutions if they were in a foreign country? Besides, the US’ clear international and domestic legal obligations admit of no exception for the prosecution of those credibly accused of torture – let alone of those, like Cheney, who have openly bragged about it. It specifically bars any exception in the case of national emergency. Not to prosecute because of such an emergency is therefore to end the Geneva Conventions – which is what Obama has effectively done. He must not be let off the hook for that fateful step – and what it does to the core meaning of the United States.
From now on, the US is a human rights violator of the first order under international law, a rogue state that has explicitly tortured innocent people and never held anyone legally responsible. I know that sounds terribly harsh. But how is it untrue? And to refuse to prosecute war crimes is to condone war crimes. Not burglary or robbery – but the gravest crimes against humanity that we can imagine. The perpetrators walk among us, many still in the CIA, and some holding presidential Medals of Freedom. Whatever absurd self-congratulations about this report, we should be in no doubt that this makes us no better in this respect than some South American junta before the transition to democracy.
But wait, there’s more:
The fact that we are the most powerful country on earth makes this about much more than just us. It casts a dark and long shadow over humanity. It makes torture everywhere more likely, and more pervasive. It legitimizes evil. It removes from us any moral standing when it comes to Americans being tortured by these very same techniques – as they already have been in Syria, and as they will be in the future. When an American prisoner is tortured by an enemy power in the future, we will have no grounds to complain. Can we just face up to that instead of engaging in so much avoidance and denial? We didn’t just break Iraq; we broke the very structure of basic human rights that this country fought two world wars to establish.
That sums up the problem, although Adam Gopnik in the New Yorker puts it this way:
The excuses are many and are sure to proliferate, as will the defensive tone and the apologetics – and, not without some reason, some call for understanding. The defenses are of two kinds, both as false as they are deeply felt. First, there is the truth that the CIA interrogators were, for the most part, following orders and doing what they had been told they were authorized to do; to make them the prime villains is to clear the democratically elected politicians who allowed this to happen – and, more important, to clear the democracy that elected those politicians. We are all implicated, not just those who drowned and froze and tormented prisoners. If blame is to be had, it must not move only upward, to the bosses; it must move outward, to those who chose the top men and to the many who explicitly endorsed their reading of the “war on terror” and the threat of terrorism. (That prospect, one would guess, was at the heart of President Obama’s reluctance to release the report in the first place; to blame no one might be unacceptable, but to blame anyone in particular was to blame everyone.)
Second, and running directly from the general responsibility, there is the claim that if we hadn’t tortured people – hanging them upside down, raping them rectally, and all the horrible rest – some terrorist would have been able to kill more Americans, possibly with a radioactive bomb, or worse. This is an empirical claim, but without much of an empirical foundation: the report insists, for instance, that the famous “courier,” a key in the search for Osama bin Laden, was discovered (and certainly discoverable) not through torture at all but through normal investigative means. But it is also a moral claim of exceptionalism: after all, every nation can argue that it needs to torture prisoners in order to protect its people. The North Vietnamese were under far more direct threat from American bombers than Americans have ever been from mostly remote Arab terrorists, yet no one would ever suggest that the Vietnamese were justified in torturing American pilots, even if they could have found out about, say, the targeting and timing of bombing raids, which might conceivably have saved Vietnamese lives. That was, we said, and would say again, no excuse. We have none, either.
The problem may be us:
Searching for ultimate responsibility, we look at individuals: at Dick Cheney, clearly engaged and still unrepentant, and at former President George W. Bush, whom the report reveals to have given formal permission for the torture but to have been unaware of its extent until 2005 – a portrait of a disengaged and incompetent chief executive that will shock even his not easily shocked detractors. But we need to look also at ourselves. We need to look at the climate of fear that all but a few created and participated in after 9/11. That climate of fear made the imminent threat of more and worse terror attacks seem plausible, even highly likely. It was, in part, the natural and inevitable consequence of an atrocity that took so many lives so quickly and so unexpectedly. If that could happen, what couldn’t? But it was also engineered, crafted, and engaged in by many who knew better, or should have.
We did know better, but we made an exception instead, and Sullivan suggests the critical question. Can we just face up to all the exceptions we keep making, about torture and cops and all the rest, instead of engaging in so much avoidance and denial? That’s all that American exceptionalism is after all, avoidance and denial. The exception never does prove the rule.