Punishing torturers

My favorite biker leather daddy tells us to "S-T-F-U" about torture, because Garner was sentenced to ten years in prison.

A good first step. But the buck stops where?

The government has tried to limit domestic political damage by pinning the blame on Garner as "ringleader" of a small group of "abusers" (maybe I should add "Just a few bad apples" to my list of torture justifications).

I've already linked to it, but Andrew Sullivan's article in the New York Times about the events that led to Abu Ghraib is worth linking to again. If you haven't read it, please do. It's an important piece.

The Bush administration was sending out mixed signals on torture.

The critical enabling decision was the president's insistence that prisoners in the war on terror be deemed ''unlawful combatants'' rather than prisoners of war. The arguments are theoretically sound ones - members of Al Qaeda and the Taliban are not party to the Geneva Convention and their own conduct violates many of its basic demands. But even at the beginning, President Bush clearly feared the consequences of so broad an exemption for cruel and inhumane treatment. So he also insisted that although prisoners were not legally eligible for humane treatment, they should be granted it anyway. The message sent was: these prisoners are beneath decent treatment, but we should still provide it. That's a strangely nuanced signal to be giving the military during wartime.

You can see the same strange ambivalence in Secretary of Defense Donald Rumsfeld's decision to approve expanded interrogation techniques in December 2002 for Guantánamo inmates - and then to revoke the order six weeks later. The documents show that the president was clearly warned of the dangers of the policy he decided upon - Colin Powell's January 2002 memo is almost heart-breakingly prescient and sane in this regard - but he pressed on anyway. Rumsfeld's own revocation of the order suggests his own moral qualms about what he had unleashed.

But Bush clearly leaned toward toughness. Here's the precise formulation he used: ''As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.'' (My italics.)

Notice the qualifications. The president wants to stay not within the letter of the law, but within its broad principles, and in the last resort, ''military necessity'' can overrule all of it. According to his legal counsel at the time, Alberto R. Gonzales, the president's warmaking powers gave him ultimate constitutional authority to ignore any relevant laws in the conduct of the conflict. Sticking to the Geneva Convention was the exclusive prerogative of one man, George W. Bush; and he could, if he wished, make exceptions.

With these guidelines, Assisant Attorney General Jay S. Bybee came up with a new definition of "torture":

The president's underlings got the mixed message. Bybee analyzed the relevant statutes against torture to see exactly how far the military could go in mistreating prisoners without blatant illegality. His answer was surprisingly expansive. He argued that all the applicable statutes and treaty obligations can be read in such a way as to define torture very narrowly. Bybee asserted that the president was within his legal rights to permit his military surrogates to inflict ''cruel, inhuman or degrading'' treatment on prisoners without violating strictures against torture. For an act of abuse to be considered torture, the abuser must be inflicting pain ''of such a high level of intensity that the pain is difficult for the subject to endure.'' If the abuser is doing this to get information and not merely for sadistic enjoyment, then ''even if the defendant knows that severe pain will result from his actions,'' he's not guilty of torture. Threatening to kill a prisoner is not torture; ''the threat must indicate that death is 'imminent.' '' Beating prisoners is not torture either. Bybee argues that a case of kicking an inmate in the stomach with military boots while the prisoner is in a kneeling position does not by itself rise to the level of torture.

The path to Abu Ghraib is now clear. It leads directly from senior administration officials, and ultimately the President himself.

Who was responsible? There are various levels of accountability. But it seems unmistakable from these documents that decisions made by the president himself and the secretary of defense contributed to confusion, vagueness and disarray, which, in turn, led directly to abuse and torture. The president bears sole responsibility for ignoring Colin Powell's noble warnings. The esoteric differences between legal ''abuse'' and illegal ''torture'' and the distinction between ''prisoners of war'' and ''unlawful combatants'' were and are so vague as to make the abuse of innocents almost inevitable.

And so, is it enough that Garner was punished? No.

And the damage done was intensified by President Bush's refusal to discipline those who helped make this happen. A president who truly recognized the moral and strategic calamity of this failure would have fired everyone responsible. But the vice president's response to criticism of the defense secretary in the wake of Abu Ghraib was to say, ''Get off his back.'' In fact, those with real responsibility for the disaster were rewarded. Rumsfeld was kept on for the second term, while the man who warned against ignoring the Geneva Conventions, Colin Powell, was seemingly nudged out. The man who wrote a legal opinion maximizing the kind of brutal treatment that the United States could legally defend, Jay S. Bybee, was subsequently rewarded with a nomination to a federal Court of Appeals. General Sanchez and Gen. John P. Abizaid remain in their posts. Alberto R. Gonzales, who wrote memos that validated the decision to grant Geneva status to inmates solely at the president's discretion, is now nominated to the highest law enforcement job in the country: attorney general. The man who paved the way for the torture of prisoners is to be entrusted with safeguarding the civil rights of Americans.

Torture is wrong. I will not tolerate it, and I will not STFU about it.

P.S.: Mitch Berg has a link to something that I haven't addressed: terrorists who can't be broken. I think this is important, but I haven't said anything on it because it's clear that most of the people in Abu Ghraib, who were picked up mostly by random sweeps, were innocent. However, Sullivan does note in his article that the intelligence used to produce the 9/11 Commission report was procured without torture. I'm sure this will continue to be an issue in the future, so I will keep my eye on it -- and an open mind.