There are new reports based on Jane Mayer’s new book The Dark Side detailing a Red Cross investigation that concluded that detainees have been tortured by the CIA and also revealing that the administration ignored warnings that many of those being held at Guantanamo had been detained by mistake. The authorised use of torture is a disgrace and a blot on the reputation of the government, but it has hardly been a secret. Indeed, the efforts of members of the administration and its supporters to define away various forms of torture as something other than torture took for granted that the government was using torture on detainees. The way that most Republican presidential candidates were rushing to out-do one another at one debate in their enthusiasm for brutality towards terror suspects, the dreadful invocations of necessity from Republican bloggers and the ease with which administration supporters began deploying euphemisms to describe torture (e.g., “enhanced interrogation techniques”) all pointed with certainty that the government was using torture and its defenders were either indifferent to this or openly supportive of it. The progression of apologists for the state is always more or less the same: to suggest that the government is doing something flatly illegal and immoral is disloyal, and then once it has been proved that the government has been doing something flatly illegal and immoral it is only soft-headed idealists who think that such things are unjustifiable. “We have to be pragmatic!” they tell us. This is where the logic of wanting to “get things done” takes you.
It is this other information, which is again not entirely surprising, that is more damning in its way, since it reveals the fraud behind the entire defense of detention facilities for “enemy combatants” who were, as Mr. Bush never tired of saying, “picked up off the battlefield.” According to the new book’s account, this was always as false as it seemed to sound:
After a study involving dozens of detainees, the analyst came up with an answer: A large fraction of them “had no connection with terrorism whatsoever,” Mayer writes, citing officials familiar with the report. Many were essentially bystanders who had been swept up in dragnets or turned over to the U.S. military by bounty hunters [bold mine-DL]. Previous published reports have described the CIA analyst’s visit but have not provided details of its findings.
According to Mayer, the analyst estimated that a full third of the camp’s detainees were there by mistake. When told of those findings, the top military commander at Guantanamo at the time, Major Gen. Michael Dunlavey, not only agreed with the assessment but suggested that an even higher percentage of detentions — up to half — were in error.
As the story relates, the administration refused to review the status of any of the detainees, no doubt concluding that to acknowledge that such a huge percentage of detainees had been arrested in error would be to make sure that the entire para-constitutional system they were trying to create would be fatally undermined. The premise of the dissenting minority in Boumediene was essentially that if the government has defined someone as an enemy combatant, he should not enjoy any measure of due process and to grant such an “enemy combatant” the ability to contest his detention and the charges against him would be to risk the acquittal and release of terrorists. Of course, when the government is allowed to define who an “enemy combatant” is, up to and including U.S. citizens such as Padilla, it takes away the possibility of reviewing the very designation that strips the detainee of legal rights, and then without those rights he cannot contest his detention. Better still from the government’s perspective, because the detainees are charged with terrorism and would not have been uniformed members of any military, they cannot claim the status of prisoners of war and so the government tries to find a way to evade international legal obligations as well. The argument that these detainees should not have access to the courts relied on the belief that terrorist suspects should not be processed through civilian courts, which presupposed that their status as terrorist suspects had some basis in reality. The entire system was justified according to the assumption that the government never makes mistakes and always acts in good faith, when we know that the opposite is typically the case.
This news also reminds us of the secret prison network that the CIA was running in certain European countries, which was revealed back in 2006 to cries that Mary McCarthy was breaking the law and betraying national security. If there had been half as much outrage about the government’s violations of the law as there was about Ms. McCarthy’s alleged wrongdoing, the entire detention system would have been dismantled years ago. As I suspected at the time, the secret prisons were exactly the kind of black sites that were designed in such a way that they were an invitation to abuses, and that is assuming that they were not specifically intended as places where detainees were to be abused and tortured all along, and this new report of torture by CIA interrogators makes that seem even more likely.
Recast as a series of indictments, the story Mayer tells goes like this: Since embarking upon its global war on terror, the United States has blatantly disregarded the Geneva Conventions. It has imprisoned suspects, including U.S. citizens, without charge, holding them indefinitely and denying them due process. It has created an American gulag in which thousands of detainees, including many innocent of any wrongdoing, have been subjected to ritual abuse and humiliation. It has delivered suspected terrorists into the hands of foreign torturers.
Under the guise of “enhanced interrogation techniques,” it has succeeded, in Mayer’s words, in “making torture the official law of the land in all but name.” Further, it has done all these things as a direct result of policy decisions made at the highest levels of government.
As the rest of the review makes clear, the same executive usurpation that created the detention system and drove the abuse of detainees is also behind the use of warrantless surveillance, and all of it is premised on the idea that the President and his agents are not under the law.
Things like “torture” and “illegal eavesdropping” can’t be compared as though they’re separate, competing policies. They are rooted in the same framework of lawlessness. The same rationale that justifies one is what justifies the other. Endorsing one is to endorse all of it.