The “torture memos,” as they have come to be known, reveal much about the current administration. They point to a level of secrecy matching, or even surpassing, any sought or achieved by the executive branch in prior eras, even during wartime. They point to a lack of concern for accountability that veers far from previously acknowledged limits on unchecked executive power. They deliberately disregard, even nullify, the balance-of-powers doctrine that has defined the
The torture memos developed inside the White House by a task force of lawyers headed by presidential confidant and White House Legal Counsel Alberto Gonzales are important, and not just as evidence of a policy that disregards human rights and reciprocity in the treatment of soldiers, civilians, and prisoners. The torture memos are also — perhaps primarily — important because they reveal the most basic attitudes with which the administration greets the Congress, the courts, the American public, and the world at large.
One of the chief figures in turning legal questions on torture into policy in the matter of the treatment of prisoners has been Secretary of Defense Donald Rumsfeld, who oversaw the approval of harsh interrogation methods in 2002 and who became the personally responsible party for approving or disapproving the use of coercive interrogation and “category three” torture after the Spring of 2003. It seems only apt and fitting, then, that he, as well as Alberto Gonzales, be brought before Congress and asked questions about this policy and his role in it.
Based on a careful reading of the hundreds of pages of “torture memos” that poured out of the White House, the thousands of pages of military reports, investigations, and original documents that have emerged from Abu Ghraib prison in Iraq, as well as the flood of recent FBI e-mails and prisoner complaints that have emerged from Guantanamo prison in Cuba, we might — as a lawyer and an historian who have been working in this area for the last two years — suggest the following series of questions for Congress:
1. Does Torture Work? Given the detailed attention shown in the White House memos to describing three levels of interrogation (from questioning to physical abuse) to be applied in the war on terror, is there an underlying assumption that torture in fact really works? That it is more effective than ordinary means of questioning prisoners? And, if so, what does it work to produce? Have you considered whether it is a means of venting frustration or a means of obtaining reliable information? Is there clinical, verifiable evidence that torture produces better information more quickly and more accurately than other methods of interrogation? Did your discussions of torture involve consulting experts in
2. Assuming, for a moment, that torture is indeed effective, what is the difference between this conflict, and these detainees, and previous conflicts and prisoners? After all, the rationale that torture is necessary to save lives, if true, applies to any war. Surely the torture of German and Japanese soldiers — particularly officers — in World War II could have yielded information that might have “saved lives.” Wouldn’t this then apply no less to
3. Why was one of the first tasks of your administration finding a place —
4. In the war on terror, do you see the Department of Justice as essentially an adjunct of the Department of Defense? Is there an expectation that what the Pentagon deems necessary in the war on terror and the war in
5. Do you think that terrorists and alleged terrorists deserve to be tortured as a form of punishment? In a
6. Can you address the timing of the development of a Bush administration torture policy and your decision to step away so quickly from the
7. Why have you not consulted Congress on the question of torture? What role, if any, do you think Congress should play in overseeing either the treatment of military prisoners or the military commissions you are planning to set up to try them? In the August 2002 Memo from the Office of Legal Counsel, Congress, it was claimed, did not have the power to prohibit torture if the President, acting as Commander in Chief, deemed it necessary — do you still agree with this, as Alberto Gonzales seems to, given his recent Senate testimony? Do you really think that, in times of war, the President has the power to do whatever he wants?
8. Why did the complaints from detainees like David Hicks and the Tipton Three, NGOs, the International Red Cross, military whistleblowers, and other governments regarding the mistreatment of detainees fall on deaf ears for so long? The recently released FBI memoranda, and the recently unsealed court filings by
9. If Alberto Gonzales were not facing confirmation hearings, would the government’s position on torture have been revised, as it was just before he testified? Who or what precipitated the administration to suddenly change its definition of torture? How long has such a change been in the works? Who was responsible for that change, and who was involved in crafting the new definition(s)?
Memos and reports of special interest in relation to the above questions:
* September 25, 2001 memo from John Yoo, Assistant Attorney General, U.S. Department of Justice, Office of Legal Counsel, to Timothy Flanigan, Deputy Counsel to the President
* December 28, 2001 memo from Patrick F. Philbin, Deputy Assistant Attorney General, and John Yoo to William J. Haynes, General Counsel, Department of Defense
* August 2002 memo from Jay S. Bybee, Assistant Attorney General to Alberto Gonzalez, Counsel to the President
* Affidavit filed by David Hicks, prisoner in
* February 2004 International Red Cross Report
* March 2004 Taguba Report
Karen J. Greenberg is the Director of the Center on Law and Security at NYU School of Law and the editor of the NYU Review of Law and Security. Joshua L. Dratel is a criminal defense attorney in
Copyright C2004 Karen J. Greenberg and Joshua L. Dratel
[This article first appeared on Tomdispatch.com, a weblog of the Nation Institute, which offers a steady flow of alternate sources, news, and opinion from Tom Engelhardt, long time editor in publishing and author of The End of Victory Culture and The Last Days of Publishing.]