Whatever the Law Says

They can’t help themselves. They want to confess.

How else to explain the torture memorandums that continue to flow out of the inner sancta of this administration, the most recent of which were evidently leaked to the New York Times. Those two, from the Alberto Gonzales Justice Department, were written in 2005 and recommitted the administration to the torture techniques it had been pushing for years. As the Times noted, the first of those memorandums, from February of that year, was “an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.” The second “secret opinion” was issued as Congress moved to outlaw “cruel, inhuman, and degrading” treatment (not that such acts weren’t already against U.S. and international law). It brazenly “declared that none of the C.I.A. interrogation methods violated that standard”; and, the Times assured us, “the 2005 Justice Department opinions remain in effect, and their legal conclusions have been confirmed by several more recent memorandums.”

All of these memorandums, in turn, were written years after John Yoo’s infamous “torture memo” of August 2002 and a host of other grim documents on detention, torture, and interrogation had already been leaked to the public, along with graphic FBI emailed observations of torture and abuse at Guantanamo, those “screen savers” from Abu Ghraib, and so much other incriminating evidence. In other words, in early 2005 when that endorsement of “the harshest interrogation techniques” was being written, its authors could hardly have avoided knowing that it, too, would someday become part of the public record.

But, it seems, they couldn’t help themselves. Torture, along with repetitious, pretzled “legal” justifications for doing so, were bones that administration officials — from the President, Vice President, and Secretary of Defense on down — just couldn’t resist gnawing on again and again. So, what we’re dealing with is an obsession, a fantasy of empowerment, utterly irrational in its intensity, that’s gripped this administration. None of the predictable we’re shocked! we’re shocked! editorial responses to the Times latest revelations begin to account for this.

Torture as the Royal Road to Commander-in-Chief Power

So let’s back up a moment and consider the nature of the torture controversy in these last years. In a sense, the Bush administration has confronted a strange policy conundrum. Its compulsive urge to possess the power to detain without oversight and to wield torture as a tool of interrogation has led it, however unexpectedly, into what can only be called a confessional stance. The result has been what it feared most: the creation of an exhausting, if not exhaustive, public record of the criminal inner thinking of the most secretive administration in our history.

Let’s recall that, in the wake of the attacks of September 11, 2001, the administration’s top officials had an overpowering urge to “take the gloves off” (instructions sent from Secretary of Defense Rumsfeld’s office directly to the Afghan battlefield), to “unshackle” the CIA. They were in a rush to release a commander-in-chief “unitary executive,” untrammeled by the restrictions they associated with the fall of President Richard Nixon and with the Watergate era. They wanted to abrogate the Geneva Conventions (parts of which Alberto Gonzales, then White House Council and companion-in-arms to the President, declared “quaint” and “obsolete” in 2002). They were eager to develop their own categories of imprisonment that freed them from all legal constraints, as well as their own secret, offshore prison system in which their power would be total. All of this went to the heart of their sense of entitlement, their belief that such powers were their political birthright. The last thing they wanted to do was have this all happen in secret and with full deniability. Thus, Guantanamo.

That prison complex was to be the public face of their right to do anything. Perched on an American base in Cuba just beyond the reach of The Law — American-leased but not court-overseen soil — the new prison was to be the proud symbol of their expansive power. It was also to be the public face of a new, secret regime of punishment that would quickly spread around the world — into the torture chambers of despotic regimes in places like Egypt and Syria, onto American bases like the island fastness of Diego Garcia in the Indian Ocean, onto U.S. Navy and other ships floating in who knew which waters, into the former prisons of the old Soviet Empire, and into a growing network of American detention centers in Afghanistan and Iraq.

So, when those first shots of prisoners, in orange jumpsuits, manacled and blindfolded, entering Guantanamo were released, no one officially howled (though the grim, leaked shots of those prisoners being transported to Guantanamo were another matter). After all, they wanted the world to know just how powerful this administration was — powerful enough to redefine the terms of detention, imprisonment, and interrogation to the point of committing acts that traditionally were abhorred and ruled illegal by humanity and by U.S. law (even if sometimes committed anyway).

Though certain administration officials undoubtedly believed that “harsh interrogation techniques” would produce reliable information, this can’t account for the absolute fascination with torture that gripped them, as well as assorted pundits and talking heads (and then, through “24” and other TV shows and movies, Americans in general). In search of a world where they could do anything, they reached instinctively for torture as a symbol. After all, was there any more striking way to remove those “gloves” or “unshackle” a presidency? If you could stake a claim the right to torture, then you could stake a claim to do just about anything.

Think of it this way: If Freud believed that dreams were the royal road to the individual unconscious, then the top officials of the Bush administration believed torture to be the royal road to their ultimate dream of unconstrained power, what John Yoo in his “torture memo” referred to as “the Commander-in-Chief Power.”

It was via Guantanamo that they meant to announce the arrival of this power on planet Earth. They were proud of it. And that prison complex was to function as their bragging rights. Their message was clear enough: In this world of ours, democracy would indeed run rampant and a vote of one would, in every case, be considered a majority.

The Crimes Are in the Definitions

This, then, was one form of confession — a much desired one. George W. Bush, Dick Cheney, Donald Rumsfeld, and their subordinates (with few exceptions) wished to affirm their position as directors of the planet’s “sole superpower,” intent as they were on creating a Pentagon-led Pax Americana abroad and a Rovian Pax Republicana at home. But there was another, seldom noted form of confession at work.

As if to fit their expansive sense of their own potential powers, it seems that these officials, and the corps of lawyers that accompanied them, had expansive, gnawing fears. Given this cast of characters, you can’t talk about a collective “guilty conscience,” but there was certainly an ongoing awareness that what they were doing contravened normal American and global standards of legality; that their acts, when it came to detention and torture, might be judged illegal; and that those who committed — or ordered — such acts might someday, somehow, actually be brought before a court of law to account for them. These fears, by the way, were usually pinned on low-level operatives and interrogators, who were indeed fearful of the obvious: that they had no legal leg to stand on when it came to kidnapping terror suspects, disappearing them, and subjecting them to a remarkably wide range of acts of torture and abuse, often in deadly combination over long periods of time.

Perhaps Bush’s men (and women) feared that even a triumphantly successful commander-in-chief presidency might — à la the Pinochet regime in Chile — have its limits in time. Perhaps they simply sensed an essential contradiction that lay at the very heart of their position: The urge to take pride in their “accomplishments,” to assert their powers, and to claim bragging rights for redefining what was legal could also be seen as the urge to confess (if matters took a wrong turn as, in the case of the Bush administration, they always have). And so, along with the pride, along with the kidnappings, the new-style imprisonment, the acts of torture (and, in some cases, murder), the pretzled documents began to pour out of the administration — each a tortured extremity of bizarre legalisms (as with Yoo’s August 2002 document, which essentially managed to reposition torture as something that existed mainly in the mind of, and could only be defined by, the torturer himself); each was but another example of legalisms following upon and directed by desire. (Yoo himself was reportedly known by Attorney General John Ashcroft as Dr. Yes, “for his seeming eagerness to give the White House whatever legal justifications it desired.”) Each, in the end, might also be read as a confession of wrongdoing.

What made all this so strange was not just the “tortured” nature of the “torture memo” (just rejected by the new attorney general nominee as “worse than a sin, it was a mistake”), but the repetitious nature of these dismantling documents which, with the help of an army of leakers inside the government, have been making their way into public view for years. Or how about the strange situation of an American president, who has, in so many backhanded ways, admitted to being deeply involved in the issues of detainment and torture — as, for instance, in a February 7, 2002 memorandum to his top officials in which he signed off on his power to “suspend [the] Geneva [Conventions] as between the United States and Afghanistan” (which he then declined to do “at this time”) and his right to wipe out the Convention on the Treatment of Prisoners of War when it came to al-Qaeda and the Taliban. That document began with the following: “Our recent extensive discussions regarding the status of al Qaeda and Taliban detainees confirm…”

“Our recent extensive discussions…” You won’t find that often in previous presidential documents about the abrogation of international and domestic law. It wasn’t, of course, that the U.S. had never imprisoned anyone abroad and certainly not that the U.S. had never used torture abroad. Water-boarding, for instance, was first employed by U.S. soldiers in the Philippine Insurrection at the dawn of the previous century; torture was widely used and taught by CIA and other American operatives in Vietnam in the 1960s and 1970s, as well as in Latin America in the 1970s and 1980s, and elsewhere. But American presidents didn’t then see the bragging rights in such acts, any more than a previous American president would have sent his vice president to Capitol Hill to lobby openly for torture (however labeled). Past presidents held on to the considerable benefits of deniability (and perhaps the psychological benefits of not knowing too much themselves). They didn’t regularly and repeatedly commit to paper their “extensive discussions” on distasteful and illegal subjects.

Nor did they get up in public, against all news, all reason (but based on the fantastic redefinitions of torture created to fulfill a presidential desire to use “harsh interrogation techniques”) to deny repeatedly that their administrations ever tortured. Here is an exchange on the subject from Bush’s most recent press conference:

“Q What’s your definition of the word ‘torture’?

“THE PRESIDENT: Of what?

“Q The word ‘torture.’ What’s your definition?

“THE PRESIDENT: That’s defined in U.S. law, and we don’t torture.

“Q Can you give me your version of it, sir?

“THE PRESIDENT: Whatever the law says.”

After a while, this, too, becomes a form of confession -– that, among other things, the President has never rejected John Yoo’s definition of torture in that 2002 memorandum. Combine that with the admission of “extensive discussions” on detention matters and, minimally, you have a President, who has proven himself deeply engaged in such subjects. A President who makes such no-torture claims repeatedly cannot also claim to be in the dark on the subject. In other words, you’re already moving from the Clintonesque parsing of definitions (“It depends on what the meaning of the word ‘is'”) into unfathomable realms of presidential definitional darkness.

On the Record

Of course, plumbing the psychology of a single individual while in office — of a President or a Vice President — is a nearly impossible task. Plumbing the psychology of an administration? Who can do it? And yet, sometimes officials may essentially do it for you. They may leave bureaucratic clues everywhere and then, as if seized by an impulsion, return again and again to what can only be termed the scene of the crime. Documents they just couldn’t not write. Acts they just couldn’t not take. Think of these as the Freudian slips of officials under pressure. Think of them as small, repeated confessions granted under the interrogation of reality and history, under the fearful pressure of the future, and granted in the best way possible: willingly, without opposition, and not under torture.

Sometimes, it’s just a matter of refocusing to see the documents, the statements, the acts for what they are. Such is the case with the torture memos that continue to emerge. Never has an administration — and hardly has a torturing regime anywhere — had so many of its secret documents aired while it was still in the act. Seldom has a ruling group made such an open case for its own crimes.

We’re talking, of course, about the most secretive administration in American history — so secretive, in fact, that Congressional representatives considering classified portions of an intelligence bill, have to go to “a secret, secure room in the Capitol, turn in their Blackberrys and cellphones, and read the document without help from any staff members.” Such briefings are given to Congressional representatives, but under ground rules in which “participants are prohibited from future discussions of the information — even if it is subsequently revealed in the media…” So representatives who are briefed are also effectively prohibited from discussing what they have learned in Congress.

And yet, none of this mattered when it came to the administration establishing its own record of illegality — and exhibiting its own outsized fears of future prosecution. Let’s just take one labor intensive — and exceedingly strange, if now largely forgotten — example of these fears in action. In 2002, a new tribunal, the International Criminal Court (ICC), was established in the Hague to prosecute individuals for genocide, crimes against humanity, and war crimes. “[T]hen-Undersecretary of State John R. Bolton nullified the U.S. signature on the International Criminal Court treaty one month into President Bush’s first term” and Congress subsequently passed the American Servicemembers’ Protection Act which prohibited “certain types of military aid to countries that have signed on to the International Criminal Court but have not signed a separate accord with the United States, called an Article 98 agreement.” The Bush administration, opposed to international “fora” of all sorts, then proceeded to go individually, repeatedly, and over years, to more than 100 countries, demanding that the representatives of each sign such an agreement “not to surrender American citizens to the international court without the consent of officials in Washington.”

In other words, they put the sort of effort that might normally have gone into establishing an international agreement into threatening weak countries with the loss of U.S. aid in order to give themselves — and of course those lower-level soldiers and operatives on whom so much is blamed — a free pass for crimes yet to be committed (but which they obviously felt they would commit). We’re talking here about small, impoverished lands like Cambodia, still attempting to bring its own war criminals of the Pol Pot era to justice.

In the process of twisting arms, the administration suspended over $47 million in military aid “to 35 countries that ha[d] not signed deals to grant American soldiers immunity from prosecution for war crimes.” In this attempt to get every country on the planet aboard the American no-war-crimes-prosecution train before it left the station, you can sense once again the administration’s obsessional intensity on this subject (especially since experts agreed that the realistic possibility of the ICC bringing Americans up on war crimes was essentially nil).

The Bush administration regularly reached for its dictionaries to redefine reality, even before it reached for its guns. It not only wrote its own rules and its own “law,” but when problems nonetheless emerged from its secret world of detention and pain and wouldn’t go away — at Abu Ghraib, Guantanamo, and elsewhere — it proceeded to investigate itself with the expectable results. For Bush’s officials, this should have seemed like a perfect way to maintain a no-fault system that would never reach up any chain of command. Indeed, as Mark Danner has commented, such practices plunged us into an age of “frozen scandals” in which, as with the latest torture memos, the shocked-shocked effect repeats itself but nothing follows. As he has written: “One of the most painful principles of our age is that scandals are doomed to be revealed — and to remain stinking there before us, unexcised, unpunished, unfinished.”

How true. And yet, looked at another way, the administration — with outsized help from outraged government officials who knew crimes when they saw them and were willing to take chances to reveal them — has already created a remarkable record of its own criminal activity, which can now be purchased in any bookstore in the land.

Back in the early fall of 2004, when the first collection of such documents arrived in the bookstores, Mark Danner’s Torture and Truth, America, Abu Ghraib, and the War on Terror, it was already more than 600 pages long. In early 2005, when Karen J. Greenberg, executive director of the Center on Law and Security at the NYU School of Law, and Josh Dratel, the civilian defense attorney for Guantanamo detainee David Hicks, released their monumental The Torture Papers, The Road to Abu Ghraib, another collection of secret memoranda, official investigations of Abu Ghraib, and the like, it was already an oversized book of more than 1,200 pages — a doorstopper large enough to keep a massive prison gate open. And, of course, even it couldn’t hold all the documents. A later Greenberg book, The Torture Debate in America, for instance, has military documents not included in the first volume.

Then, there were the two-years worth of FBI memos and emails about Guantanamo that the ACLU pried loose from the government and released on line, also in 2005. This material was damning indeed, including direct reports from FBI agents witnessing — and protesting as well as pointing fingers at — military interrogators at the prison, as in an August 2, 2004 report that said: “On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water…Most times they had urinated or defecated on themselves, and had been left there for 18, 24 hours or more.” Or a Jan. 21, 2004 email in which an FBI agent complained that the technique of a military interrogator impersonating an FBI agent “and all of those used in these scenarios, was approved by the DepSecDef,” a reference to Deputy Secretary of Defense Paul D. Wolfowitz.

Other paperback volumes have also been published that include selections from these and other documents like Crimes of War: Iraq by Richard Falk, Irene Gendzier, and Robert Jay Lifton and In the Name of Democracy: American War Crimes in Iraq and Beyond by Jeremy Brecher, Jill Cutler, and Brendan Smith. If all of these documents, including the latest ones evidently in the hands of the New York Times, were collected, you would have a little library of volumes — all functionally confessional — for a future prosecutor. (And there are undoubtedly scads more documents where these came from, including perhaps a John Yoo “torture memo,” rumored to exist, that preceded the August 2002 one.)

What an archive, then, is already available in our world. It’s as if, to offer a Vietnam comparison, the contents of The Pentagon Papers had simply slipped out into the light of day, one by one, without a Daniel Ellsberg in sight, without anyone quite realizing it had happened.

The urge of any criminal regime — to ditch, burn, or destroy incriminating documents, or erase emails — has, in a sense, already been obviated. So much of the Bush/Cheney “record” is on the record. As Karen J. Greenberg wrote, back in December 2006, “What more could a prosecutor want than a trail of implicit confessions, consistent with one another, increasingly brazen over time, and leading right into the Oval Office?”

Looking back on these last years, it turns out that the President, Vice President, their aides, and the other top officials of this administration were always in the confessional booth. There’s no exit now.

Tom Engelhardt, who runs the Nation Institute’s Tomdispatch.com, is the co-founder of the American Empire Project. His book, The End of Victory Culture (University of Massachusetts Press), has just been thoroughly updated in a newly issued edition that deals with victory culture’s crash-and-burn sequel in Iraq.