By Jane Mayer, Doubleday, New York, N.Y. 400 page, $27.50
Foreigners one day may visit this country to teach our children how our democracy decayed, drop by drop. The text for the course will be Jane Mayer’s “The Dark Side.” A classically great work of investigative journalism, it is an appalling, profoundly disturbing revelation of the Bush administration’s war on terrorism. It is a grim warning of the threat to us that exists in a president who sets himself against the Constitution in a parallel world that he secretly constructs in the name of security. When reading it, you may have the fleeting sense that you are in Berlin and the year is 1938.
The questions posed to our children will be whether President George W. Bush, Vice President Richard Cheney, Secretary of Defense Donald Rumsfeld, together with other high office holders and military commanders, should have been indicted for war crimes, crimes against humanity, and the violation of federal criminal statutes described in “The Dark Side,” and whether, failing in that, we endangered ourselves to greater subversions of liberty.
In September 2001, when the dust of the Twin Towers had not yet settled, Cheney, mentor to Bush and long-fixated on his felt need to increase the power of a presidency weakened by Vietnam and Watergate, took charge of national security issues. President Bush authorized CIA Director George Tenet to use secret paramilitary death squads anywhere on earth to detain and interrogate suspected terrorists. When Congress, however, would not give him unlimited war powers, he secretly obtained, from a cadre of lawyers in the Department of Justice’s Office of Legal Counsel, bizarre, some said insane, legal memoranda that, in sum, held that Congress could not limit Bush’s conduct of warfare. This cadre informally called itself the “War Council.” They advised Bush that he could defend the nation as he saw fit and ride over laws specifically designed to curb him. They assured him that he could set aside statutes prohibiting torture and secret detentions. Terrorists, they said, were outside the body of law, beyond the protection of the Geneva Conventions. They could be tortured. They knew what Cheney, Bush and Rumsfeld wanted and accordingly advised Bush that he had inherent authority to use military commissions empowered to sentence illegal combatants to death, all without review by Congress or the courts. These legal memos, hidden from all but a select White House circle, were five-and-dime store stunts manufactured to create a paper world of authority where none existed and upon which the principal actors, such was their contempt for the public, were ready to rely in justification of their abhorrent conduct. Indeed, these masters of self-deceit honed a memo stating that proof of torture required not only proof of the specific intent to inflict suffering but proof that the suffering was of “significant” duration. In short, the world might condemn an act out of hand as painful torture, but the torturer could raise in defense the claim that he intended an objective that involved a result other than that of pain.
And so it was that the natural passion to defend this country and punish those who had slaughtered our people was tragically placed in the hands of Bush, Cheney and Rumsfeld whose joint cunning and stupidity has caused one of the greatest horrors in our national history.
The nightmare CIA secret “extraordinary rendition” program sent detainees to Egypt, Morocco, Syria, Jordan, Uzbekistan, and Afghanistan for torture. Bush and Tenet knew that those renditions were forbidden by the U.N. Convention Against Torture. Suspects in our custody were held in CIA top-secret “black site” prisons. Thus, Bush, Cheney, and Rumsfeld, Mayer contends, are prosecutable for war crimes and crimes against humanity, to say nothing of their violations of our federal criminal law.
Bush, Cheney, and Rumsfeld approved of “enhanced” interrogation techniques in violation of the Convention Against Torture. After all, an Office of Legal Counsel memo declared that Convention unconstitutional because Bush, they said, had the power to order any interrogation technique. Indeed, the Office of Legal Counsel declared waterboarding lawful. Sexual humiliation, hooding, shackled eight-hour standing with arms extended overhead, slamming prisoners headfirst against walls, sleep deprivation, bright-light bombardment, 24-hour-a-day eardrum-shattering noise for weeks, caging squatting men in dog crates, were the order of the day. One of the Office of Legal Counsel scholars hypothetically suggested as lawful the gouging out of a prisoner’s eyes, “slitting an ear, nose, or lip, or disabling a tongue or limb.” Among the barbaric cruelties was “Palestinian hanging” in which a man’s hands are secured behind his back and he is suspended from behind like a carcass in a slaughter house. Examining such a corpse, Dr. Michael Baden, the noted forensic pathologist for the New York State Police, found that “asphyxia is what he died from – as in a crucifixion.” Surely, to see a crucifixion where beatings, broken bones, and murder were commonplace might give pause even to a predatory animal passing through at night.
The International Committee for the Red Cross described the treatment of Abu Zubayda, an al Qaeda logistics chief, as torture that constituted a war crime. The Los Angeles Times demanded a criminal investigation of the Bush administration for war crimes. So dismissive was Bush of lawful restraints that he himself ordered the waterboarding of Zubayda. So in-your-face arrogant was the CIA that hundreds of hours of videotapes of the interrogation of Zubayda , including his extensive waterboarding, were withheld from the 9/11 Commission and, in defiance of a federal court, were actually destroyed by the CIA.
In 2002, one-third of Guantánamo’s 600 prisoners had no connection with terrorism, thus implicating Bush, Cheney and Rumsfeld in committing war crimes. Bush had “thoughtfully” determined that they were all “enemy combatants.” Rumsfeld was directly involved in the straight-out-of-hell, unutterably inhumane savaging of Mohammed al-Qahtani, the suspected “20th hijacker” who had set out but failed to join the 9/11 hijackers. His torture produced nothing of substance except the Pentagon’s dismissal of the charges against him because his torture tainted his confession. Military interrogators opened themselves to prosecution for the brutal abuse of detainees. Frightened by the criminality of military torturers, the FBI denounced them. Alberto Mora, General Counsel of the Navy, warned that criminal charges from assault to war crimes were chargeable against Bush administration officials. Incredibly, a March 2003 Office of Legal Counsel memo declared that federal laws prohibiting assault, maiming, and other crimes did not apply to military interrogators in Guantánamo.
The scenario left by the Bush administration is beyond ordinary imagining. When the next president is elected, a “transition team” will be designated by him to assist him in taking power. That team will be confronted with determining the location, inhabitants, and history of that parallel world of perhaps thousands of uncharged men and women cut off from access to their families, tortured, humiliated, beaten, and kept off stage to this day by Bush’s resistant administration.
Harold Reynolds practices law in Scarsdale, and was the Clerk of Court, Appellate Division, First Department, from 1985-1989.