The Dark Side

Jane Mayer’s book on the torture regime of the Bush administration is a must-read for anyone interested in politics, civil liberties, war on terror.

I guess you could figure out that I was reading The Dark Side: The Inside Story of How The War on Terror Turned into a War on American Ideals by my recent blogging on torture.

This is a must-read book by Jane Mayer. It follows the torture story meticulously and focuses on how the policy developed. It is clear from the book that there were some major villains in the Bush administration who pushed for torture and got their way most of the time. John Yoo, David Addington and others shut the actual officials who were supposed to make national security policy (at the subcabinet level) out. However, the cabinet principals don’t come out looking good. They were either indifferent or supportive of the euphemism “enhanced interrogation techniques”, properly known as torture.

While there are several people mentioned in the book who tried to stop torture by the US government, there were also lots and lots of bad guys, lawyers who wrote or approved torture memos, military, civilian and CIA personnel who approved, condoned, supervised or actually tortured suspected or actual terrorists and intelligence, military and law enforcement who consumed the results of torture investigations. There are times when I feel like the Obama administration should release the names and deeds of all those people, anyone who was in any way involved with the torture policy. I know it’s not going to happen and isn’t really fair either.

What should be done is to release all the information about US actions and policy with regards to torture. For example, the thousands of pages of the CIA Inspector General’s May 2004 report.

Torture, Prosecution, CIA and Public

Torture is what keeps me up, it’s what’s on my mind. I am afraid that it’s a policy that while discarded now will return another day as the country is almost equally divided on its use.

I have been knee deep in torture recently. No, I haven’t been tortured nor have I tortured anyone. I have been reading about torture. I recently wrote about torture in my review of Taxi to the Dark Side where I collected links to my previous writings on the subject as well. I also discussed US public opinion about torture a few months ago.

With the recent release of the OLC torture memos, the torture debate has restarted again. There have been calls for prosecuting those who carried out the torture and/or those who made the policy decisions. Obama has called for looking forward instead of backward (imagine if every criminal had the same attitude). Senator McCain is against investigating torture or prosecuting anyone.

I am generally of the opinion that if the state must fall it must fall but we should get to the truth. However, after reading a lot about torture I have a distinct feeling that there is not going to be any prosecutions and even if there are, the chances of acquittal are very high. I find myself agreeing with most of the points Tyler Cowen makes against prosecution. The public opinion just isn’t there against torture (more on this in a bit). Hence, I believe it is more important to build a consensus against torture than to prosecute, as Matt Yglesias argues.

This doesn’t mean that we shouldn’t do anything. For starters, we should make sure that the architects of the torture policy, like George Bush, Dick Cheney, David Addington, John Yoo, Jay Bybee, etc. are kept far from the levers of power. Therefore, I support efforts to impeach Jay Bybee, former head of OLC and currently a judge on the 9th Circuit Court of Appeals. Also, we need a commission or some other mechanism to make public all the details about torture as practiced during the Bush era.

There are some who think that it was the higher echelons of the Bush administration that was responsible for torture. I think it’s clear now that this is wrong. Democratic leaders might not have ordered the torture (or “enhanced interrogation”) but some of them knew about it and some even approved. Similarly, other Western governments or their intelligence agencies were complicit, directly or indirectly, in renditions, torture, black sites, or sharing intelligence.

While there were courageous people in the military, government and civil society who opposed torture and did try to stop such practices, there were also a lot of others, lawyers, military commanders, CIA personnel and others, who were fully complicit in requesting, approving and implementing torture. I am about to finish reading Jane Mayer’s The Dark Side and it makes the case in detail. See, for example, former CIA counterterrorism official Michael Scheuer’s response or Condi Rice’s defense of imperial powers for the President.

That’s why I found the case of abolishing the CIA to be worth considering. CIA has a history of illegal activities (see Family Jewels and Church Committee Report and Iran-Contra report). Spencer Ackerman argues against abolition of CIA, but I found Quincy Adams and Matt Yglesias more convincing.

As for arguments about torture and its efficacy, I think torture is wrong regardless of whether it can yield any useful information or not. It is possible for torture to extract true information, though typically there’ll be lots of false confessions as well. However, it’s inhuman and morally wrong and that’s why we shouldn’t do it. As Obama said recently:

waterboarding violates our ideals and our values. I do believe that it is torture. […] And that’s why I put an end to these practices. I am absolutely convinced that it was the right thing to do — not because there might not have been information that was yielded by these various detainees who were subjected to this treatment, but because we could have gotten this information in other ways — in ways that were consistent with our values, in ways that were consistent with who we are.

I agree wholeheartedly with Kevin Drum’s reasons for opposing torture.

I don’t care about the Geneva Conventions or U.S. law. I don’t care about the difference between torture and “harsh treatment.” I don’t care about the difference between uniformed combatants and terrorists. I don’t care whether it “works.” I oppose torture regardless of the current state of the law; I oppose even moderate abuse of helpless detainees; I oppose abuse of criminal suspects and religious heretics as much as I oppose it during wartime; and I oppose it even if it produces useful information.

The whole point of civilization is as much moral advancement as it is physical and technological advancement. But that moral progress comes slowly and very, very tenuously. In the United States alone, it took centuries to decide that slavery was evil, that children shouldn’t be allowed to work 12-hour days on power looms, and that police shouldn’t be allowed to beat confessions out of suspects.

On other things there’s no consensus yet. Like it or not, we still make war, and so does the rest of the world. But at least until recently, there was a consensus that torture is wrong. Full stop. It was the practice of tyrants and barbarians. But like all moral progress, the consensus on torture is tenuous, and the only way to hold on to it — the only way to expand it — is by insisting absolutely and without exception that we not allow ourselves to backslide. Human nature being what it is — savage, vengeful, and tribal — the temptations are just too great. Small exceptions will inevitably grow into big ones, big ones into routine ones, and the progress of centuries is undone in an eye blink.

Let’s look at recent polls about torture and investigation.

In the NBC/WSJ poll, 50% disapprove of Obama ordering the closing of Guantanamo detainee prison and 53% disapprove of the release of the OLC torture memos. 53% think that the Bush administration used torture while 30% say that they didn’t. 46% say that the harsh interrogation helped the US extract information while 42% think it hurt the US by undermining its moral authority. And only 33% want a criminal investigation of the Bush torture policy.

In the Washington Post/ABC News poll, 53% support Obama’s release of the torture memos. 48% think there are cases when torture should be considered and 51% support an investigation of the treatment of detainees.

In a Gallup poll, 51% favor an investigation of harsh interrogation techniques used by the Bush administration, but 55% think such treatment of terrorism suspects was justified.

30%, seem to agree with Cheney’s position that the ends justified the means and that no investigation is necessary. Nearly as many (25%), though, would appear to side with many congressional Democrats who say the techniques should not have been used and an investigation is warranted. Twenty-three percent think the techniques were warranted yet still favor an investigation, while 10% think the methods should not have been used but nevertheless oppose an official inquiry.

66% of Democrats favor an investigation while only 48% of independents and 37% of Republicans do. 39% of Democrats think use of harsh interrogation techniques on terrorism suspects were justified while 55% of independents and 80% of Republicans agree.

In the New York Times/CBS News poll, 37% say waterboarding and other aggressive techniques are sometimes justified to extract information from a suspected terrorist while 46% disagree. Interestingly, only 16% of African Americans think they are justified. Only 71% consider waterboarding to be torture. 34% want Congress to investigate torture and warrantless wiretapping. 47% want to keep the Gitmo prison while 44% want to close it.

As you can see, there is some variation in these surveys. Nate Silver and Andrew Gelman try to explain why that is. While support for torture investigation varies from 33% to 51% in the various polls, the other numbers are a bit more consistent. The country seems to be almost equally divided on whether the torture memos should have been released and whether the Gitmo prison should be closed. Those who think torture is sometimes or always justified seem to vary from 37% to 55% while opposition to torture never reaches majority status either.

Looking at my previous writing on public opinion about torture, there doesn’t seem to have been any big change in public opinion in the US.

Finally, Pew did a survey about torture breaking down the numbers by religion, attending church, political party, etc.

Often justified Sometimes justified Rarely justified Never justified
Total US 15% 34% 22% 25%
White evangelicals 18% 44% 17% 16%
White non-Hispanic Catholics 19% 32% 27% 20%
White mainline Protestants 15% 31% 22% 31%
Unaffiliated 15% 25% 29% 26%
Attend religious services at least weekly 16% 38% 19% 25%
Attend religious services monthly 18% 33% 23% 23%
Attend religious services seldom or never 12% 30% 27% 26%
Republican 15% 49% 21% 14%
Independent 19% 35% 23% 19%
Democrats 12% 24% 22% 38%

Only a quarter of Americans are against torture under all conditions. This is astounding, but even worse is that only one of six white evangelicals and one in seven Republicans thinks torture is never justified. Even if we are generous and add up the numbers for those who think torture is rarely justified to the “never justified” ones, only 47% of Americans are against the use of torture. But only one-third of white evangelicals and 35% of Republicans are opposed to torture. I guess we could call these people the American Taliban.

While the Pope has come out against torture, among his followers American White Catholics a bare majority believes torture is often or sometimes justified. I wonder if any priest will deny communion to these torture-supporters.

The only groups (among those listed) with a majority who think torture is never or rarely justified are White mainline Protestants (53%), the unaffiliated (55%), those who seldom or never attend religious services (53%) and Democrats (60%). It’s disappointing that even these numbers are so low.

It can be argued that this support of torture by the religious is not a result of their being religious but rather due to the fact that those who are more religious are more likely to be Republicans in the US. I would agree with that, however, if religion can’t even get the deeply religious to oppose such an inhuman practice as torture, what use is such religion?

War Crimes and Military Justice

War crimes happen in all wars. And are rarely punished appropriately. There are structural reasons for that which are unlikely to change. This is one more reason why war should be the last resort.

I wrote a long time ago that soldiers are almost never punished severely for war crimes against the enemy. During the past three years, I haven’t seen any evidence to the contrary.

A review of the Iraq War by the Washington Post last year showed that:

The majority of U.S. service members charged in the unlawful deaths of Iraqi civilians have been acquitted, found guilty of relatively minor offenses or given administrative punishments without trials, according to a Washington Post review of concluded military cases. Charges against some of the troops were dropped completely.

Though experts estimate that thousands of Iraqi civilians have died at the hands of U.S. forces, only 39 service members were formally accused in connection with the deaths of 20 Iraqis from 2003 to early this year [2006 — ZA]. Twenty-six of the 39 troops were initially charged with murder, negligent homicide or manslaughter; 12 of them ultimately served prison time for any offense.

Some military officials and analysts say the small numbers reflect the caution and professionalism exercised by U.S. forces on an urban battlefield where it is often difficult to distinguish combatants from civilians. Others argue the statistics illustrate commanders’ reluctance to investigate and hold troops accountable when they take the lives of civilians.

[…] The harshest penalty, meted out to two soldiers in separate murder cases in 2004, was 25 years in prison — one of the convicted shot an Iraqi soldier, and the other shot an Iraqi man in his house. Two others convicted in what was called a mercy killing of an Iraqi each received one year in jail.

Solis, who has studied civilian homicides from the Vietnam War, said there were 27 Marines and 95 Army soldiers convicted of murder and manslaughter in that conflict, which lasted much longer and produced many more casualties than the Iraq war has so far.

According to The Post’s review of publicly reported cases from Iraq, 39 U.S. service members were charged with crimes in connection with the deaths of Iraqi civilians or for allegedly covering them up, from the start of the war in March 2003 through early 2006.

Twenty-four Army personnel were charged in connection with civilian deaths. Twelve were convicted of crimes and received jail sentences that ranged from 45 days to 25 years. Four others were tried at courts-martial, resulting in one acquittal and three convictions with no confinement.

Charges against two others were dropped. Six received administrative punishments, including four who cooperated with government prosecutions of their superiors. In administrative cases, no trial is held and the charges and penalties are not made public.

Going back to the Vietnam War, the Los Angeles Times had this to report:

The files are part of a once-secret archive, assembled by a Pentagon task force in the early 1970s, that shows that confirmed atrocities by U.S. forces in Vietnam were more extensive than was previously known.

The documents detail 320 alleged incidents that were substantiated by Army investigators — not including the most notorious U.S. atrocity, the 1968 My Lai massacre.

Though not a complete accounting of Vietnam war crimes, the archive is the largest such collection to surface to date. About 9,000 pages, it includes investigative files, sworn statements by witnesses and status reports for top military brass.

The records describe recurrent attacks on ordinary Vietnamese — families in their homes, farmers in rice paddies, teenagers out fishing. Hundreds of soldiers, in interviews with investigators and letters to commanders, described a violent minority who murdered, raped and tortured with impunity.

Abuses were not confined to a few rogue units, a Times review of the files found. They were uncovered in every Army division that operated in Vietnam.

[…] Among the substantiated cases in the archive:

  • Seven massacres from 1967 through 1971 in which at least 137 civilians died.
  • Seventy-eight other attacks on noncombatants in which at least 57 were killed, 56 wounded and 15 sexually assaulted.
  • One hundred forty-one instances in which U.S. soldiers tortured civilian detainees or prisoners of war with fists, sticks, bats, water or electric shock.

Investigators determined that evidence against 203 soldiers accused of harming Vietnamese civilians or prisoners was strong enough to warrant formal charges. These “founded” cases were referred to the soldiers’ superiors for action.

Ultimately, 57 of them were court-martialed and just 23 convicted, the records show.

Fourteen received prison sentences ranging from six months to 20 years, but most won significant reductions on appeal. The stiffest sentence went to a military intelligence interrogator convicted of committing indecent acts on a 13-year-old girl in an interrogation hut in 1967.

He served seven months of a 20-year term, the records show.

Many substantiated cases were closed with a letter of reprimand, a fine or, in more than half the cases, no action at all.

You can read the documents and more reports related to war crimes in Vietnam at the LA Times website.

Then there is the case of Sergeant Joseph Darby.

In January 2004, Darby provided a compact disc of photographs and an anonymous note to Special Agent Tyler Pieron of the US Army Criminal Investigation Command, who was stationed at Abu Ghraib Prison, triggering an investigation which led to the implication of several soldiers violating the Geneva Convention. Darby initially wanted to remain anonymous — he and those implicated all served in the 372nd Military Police Company, but became known after Donald Rumsfeld publicly named him during a Senate hearing. Darby had agonized for a month beforehand, but finally decided to blow the whistle on his former friends explaining “It violated everything I personally believed in and all I’d been taught about the rules of war.” He had known Lynndie England, one of the most well-known suspects, since basic training. He testified that he had received the photos from Charles Graner, another soldier in the photographs.

The Joe Darby came home and was reviled in his hometown for ratting out fellow soldiers.

“If I were [Darby], I’d be sneaking in through the back door at midnight,” says Janette Jones, who lives just across the border in Pennsylvania and stopped here at midday with her daughter for a Pepsi and a smoke.

[…]

“They can call him what they want,” says Mike Simico, a veteran visiting relatives in Cresaptown. “I call him a rat.”

And so Joe Darby had to leave his hometown and move.

If you have read this far and are thinking that these war crimes and the lack of punishment is only the United States’ fault, think again. War crimes happen in all wars and are rarely punished or even seen as wrong. Take Israeli occupation of Palestine or the Pakistani army’s actions in Bangladesh/East Pakistan in 1971. Or any other example from history. And you’ll see the same thing being repeated again and again.

The problem is actually structural. First, when we are at war, we consider the enemy to be subhuman. The job is to kill the enemy and to defeat it. The soldiers need to muster up the courage to be able to kill on the battlefield. The psychological defenses they put up to justify all the mayhem around them creates a black and white world with no gray. When a war crime is committed, it is difficult to get it reported. If the enemy nationals are the ones complaining, it is easy to dismiss it as enemy propaganda. At a trial, the jury and judge belong to the same side as the accused soldiers and the victims are in general seen as part of the other. The military justice system in a good country like the US gives a lot of the benefit of doubt to the accused, which is as it should be. However, in a war situation and in the case of crimes against enemy nationals this makes the task of proving guilt very difficult.

And that’s why it is imperative that we do not go to war unless it really is absolutely necessary. As Matthew Yglesias notes:

I don’t think ordinary people can read Sydney Freedberg’s excellent cover story in the new National Journal but the teaser text explains the basic dilemma well:

Sometimes U.S. troops kill Iraqis in self-defense. Sometimes they kill them for other reasons. And sometimes it’s hard to tell the difference.

The crux of the matter is that soldiers in ambiguous situations understandably tend to err on the side of their own personal safety and that of their fellow soldiers. Likewise, officers faced with ambiguous situations tend to err on the side of giving the soldiers under their command the benefit of the doubt. And courts-martial, likewise, err on the side of taking a favorable view of American soldiers.

All of which is fine. Unless you happen to be an Iraqi. Which is precisely why people tend not to enjoy being under foreign military occupation.