By Glenn Greenwald, Salon.com
Recent ACLU-compelled disclosures of previously concealed DOJ documents reveal many of the details of what has been long known: that the highest levels of the Bush administration secretly implemented an illegal torture regime. But while those torture programs began in secret, we have gradually learned more and more about them. The more time that goes by and the more we learn — particularly if we do nothing meaningful to stop it — the more the responsibility for these policies shifts from the administration to all of us collectively.
Torture and America
While there is much rhetorical protest over these torture programs in the halls of Congress and in our elite media institutions, there has been little real action in response. Indeed, it has long been known that we are torturing, holding detainees in secret prisons beyond the reach of law and civilization, sending detainees to the worst human rights abusers to be tortured, and subjecting them ourselves to all sorts of treatment which both our own laws and the treaties to which we are a party plainly prohibit. None of this is new.
But our elite political institutions have decided, collectively, to do nothing about that. Quite the contrary, with regard to many of the revelations of abuse, our elected representatives — with some noble exceptions — have chosen to remain largely in the dark about what was done. When forced by court rulings or media revelations to act at all, they have endorsed and legalized this behavior — not investigated, outlawed or punished it.
A 2006 ruling by the Supreme Court in Hamdan that the President's interrogation and detention policies violated the law led Congress, on a largely bipartisan basis, to enact The Military Commissions Act to legalize those policies. That enabling behavior followed a familiar pattern with other abuses: for instance, revelations that the President and telecom companies were breaking our surveillance laws led to the legalization of much of that program with the Protect America Act, and may soon lead to amnesty for the lawbreakers. With regard to all of the most severe acts of illegality, no criminal prosecutions have been commenced and no truly meaningful Congressional investigations have been pursued.
Whether it's the war in Iraq or illegal surveillance or the abolition of habeas corpus and now the systematic use of torture, it's the Bush administration that conceived of the policies, implemented them and presided over their corrupt application. But it's Congressional leaders who were the key allies and enablers, never getting their hands dirty with implementation — and thus feigning theatrical, impotent outrage once each abuse was publicly exposed — but nonetheless working feverishly the entire time to enable all of it every step of the way.
It is vital to emphasize here that these matters are not obsolete matters of the distant past — something we can all agree to leave behind in the spirit of harmoniously moving forward. The torture, detention and surveillance policies in question are still the formal and official position of our government — and thus can be applied with far greater vigor not merely in the event of a new terrorist attack, but at any time. An October, 2007 New York Times article reported on the new disclosure of a 2005 memorandum authorizing various torture techniques and emphasized:
[T]he 2005 Justice Department opinions remain in effect, and their legal conclusions have been confirmed by several more recent memorandums, officials said. They show how the White House has succeeded in preserving the broadest possible legal latitude for harsh tactics.
Although Democratic leaders in Congress have often issued dramatic statements condemning torture, there is ample evidence that many of them were aware of these programs long before the public was, and did nothing.
In December, 2007, The Washington Post reported that the Bush administration, beginning in 2002, repeatedly briefed leading Congressional Democrats on the Senate and House Intelligence Committees — including, at various times, Jay Rockefeller, Nancy Pelosi, and Jane Harman — regarding the CIA's "enhanced interrogation methods," including details about water-boarding and other torture measures. With one exception (Harman, who vaguely claims to have sent a letter to the CIA), these lawmakers not only failed to object to these policies, but affirmatively supported them.
Those political officials who were in a position to put a stop to these abuses but failed to do so have the greatest responsibility to take meaningful action now. And there are some mildly promising signs, including the testimony which House members have been seeking from John Yoo, David Addington and others as to the specifics of how this torture regime was implemented. But that must be but the first step, not merely a symbolic palliative to those demanding action.
It isn't surprising or particularly revealing that there were not immediate consequences for these revelations. Our political system, by design, works slowly and methodically. The Founders purposely imposed significant hurdles to undertaking the most significant steps (such as criminal investigations of high Executive officials or impeachment) precisely to ensure that such actions were taken deliberatively, not impetuously. It took two-and-a-half years for the much simpler Watergate scandal to lead to what would have been the impeachment of Richard Nixon. The failure to impose immediate or even rapid consequences, while frustrating to many, would not really be a cause for legitimate complaint.
But when it comes to Bush's torture policies and other examples of extremism and lawlessness, we're not imposing consequences slowly. We're not really imposing consequences at all. Quite the contrary, we've been moving in the opposite direction — when we're not affirmatively endorsing and providing protection for that conduct, we're choosing not to know about it, or simply allowing it to fester. And the more that happens, the less that behavior becomes the exclusive province of the Bush administration and the more it becomes our country's defining behavior.
This could — and should — still all be reversed. The Congress could aggressively investigate. Criminal prosecutions could be commenced. Our opinion-making elite could sound the alarm. New laws could be passed, reversing the prior endorsements and imposing new restrictions, along with the will to enforce those laws. We still have the ability to vindicate the rule of law and enforce our basic constitutional framework.
We always possess the choice — still — to take a stand for the rule of law and our basic national values, but with every new day that we choose not to, those Bush policies become increasingly normalized, increasingly the symbol not only of "the Bush administration" but of America.