The Dark Side

By Jane Mayer

“We’re a nation of law. We adhere to laws. We have laws on the books. You might look at these laws, and that might provide comfort for you.” – President George W. Bush, after being asked if torture was justified.

If the president’s right to torture was so absolute, Cassel asked, could no law stop him from “crushing the testicles of the person’s child”? Yoo responded, “No treaty.” Pressed on whether a law, rather than a treaty, could prohibit the President from doing so, Yoo wouldn’t rule out the possibility that no law could restrain the President from barbarism. “I think it depends on why the president thinks he needs to do that,” he said.


“They were torturing people,” said a former CIA official with extensive knowledge of the CIA’s program. “No question. They did disgusting things to people. Their attitude was, ‘Laws? Like who the fuck cares?'”

States of mind are a gray area in criminal law. Proof of a criminal act is the easy part. The mental element, or mens rea, is a tougher nut to crack, especially when it comes to corporate entities like governments. The 2003 invasion of Iraq, for example, was an illegal act supposedly justified by the Bush administration’s belief that Iraq possessed weapons of mass destruction that were an imminent threat to the United States. This belief became a “stay out of jail free” card from the media and court of popular opinion (at least in the U.S.), even though evidence of such belief, not to mention evidence for such belief, was non-existent.

As with belief, so with intent. Ask not what a torturer does (or, if you do, answer with a despicably evasive bit of legalese like causing “suffering equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”), but rather what he or she intends. This is an approach capable of frustrating even the most strenuous application of the usual tools for unlocking the black box of an accused’s mental state, such as looking to circumstantial evidence and reasoning based on common sense inferences about the probable consequences of our acts. And for the icing on the cake, let’s adopt the unworkable distinction between general and specific intent as well. So that even if someone using “enhanced interrogation techniques” (to use the preferred euphemism) knows that these techniques are causing pain, “if causing such harm is not the objective, he lacks the requisite specific intent” for torture. As Jane Mayer observes of this legal casuistry (it comes from the infamous torture memo primarily authored by John Yoo), it defines “the crime of torture to make it all but impossible to commit.” Which was, of course, the point.

But intent provides more cover than this. It also provided cover for the higher-ups in the administration only too aware of the obvious criminality of their undertakings (one of the more amusing parts of this secret history has the Justice Department in a mad scramble to write laws giving policymakers “golden shield’ immunity from later prosecution). Seen from this lens, the perpetrators of torture were only (in language borrowed from Justice Brandeis) “men of zeal, well-meaning but without understanding.” Judge not the policy, but the intention behind it. Which, in this case, was nobility itself: To save not just American lives, but indeed America.

And yet there is no more evidence that the Bush administration (and in particular the office of the vice president, since Mayer’s reporting makes it clear that Cheney was in every regard the “true source of these policies”) meant well than that they truly believed in weapons of mass destruction. Indeed, in both cases all the evidence points the other way – that the events of 9/11 were simply used as an opportunity to implement long-held plans for the conquest of Iraq and the re-instatement of an imperial (Nixonian) presidency (absolute power, wielded in secret and wholly unaccountable).

The fanciful attribution of good intentions has a way of absolving even the most depraved actions. Mayer indulges the same bent in her account of the murder of Manadel al-Jamadi while in custody at Abu Ghraib. Jamadi died of suffocation subsequent to being hung by his arms in a shower stall after being severely beaten (the cause of death is the same as in a crucifixion). A CIA interrogator named Mark Swanner was in charge of Jamadi at the time of his death, and gave the order to shackle the prisoner in the form of torture known as “Palestinian hanging.” He even seems to have wanted to continue the interrogation after death, calling in some muscle to stand Jamadi up straight, not realizing his hooded victim had already expired. And yet, can good Americans blame him? Mayer can’t.

Both Swanner and his lawyer declined to be interviewed. A visit to his home address in northern Virginia suggested only that he seemed to lead a quintessentially middle-class suburban life, living in a colonial-style house with a front porch and swimming pool on a cul-de-sac. To some extent Swanner, like the abusive soldiers at Abu Ghraib, was a victim himself of circumstance. Poorly trained, placed in an unclear legal framework, and facing enormous pressure to help save American lives, he was only one of many responsible for what happened next.

Who would judge this fellow when he was really just trying to save American lives, not to mention the sanctity of their peaceful suburban homes and swimming pools? Why, he is a victim himself! Would someone please think of the torturers!

This is not Mayer’s finest moment, but it is a rare misstep. The Dark Side is a valuable piece of reporting that asks tough questions. Despite her best efforts, however, not all of these are answered. It seems, to take the most obvious example, that we will never know what role the president played in fashioning the policy of torture, if any. From what can be gathered it appears that he was, again, wandering around somewhere out of the loop, perhaps off on a bike ride, working out in the gym, or just gone to bed early, not even aware of the refurbishing of his imperial office by a seemingly all-powerful vice president. It was Cheney, Mayer demonstrates again and again, who “dominated the entire national security apparatus. “The President, whose powers he was constantly touting, was all but invisible on these issues.” Nature does abhor a vacuum. Just don’t call Dubya “stupid.” Only uninformed, uninterested in detail, easy to manipulate, etc., etc.

The key question in all of this, and one that does receive Mayer’s full attention, is what the point was in “taking off the gloves.” Even overlooking the utter moral depravity of such a slide into neo-barbarism, Why torture in the first place?

Because, its defenders never tired of repeating, it works. But did it? As far as anyone can tell, the answer seems to be Not at all.

This is not to say that prisoners weren’t made to talk. Anyone can be forced to talk. This isn’t difficult, and hardly requires the kind of elaborate psychological scaffolding provided by experts in interrogation techniques. The question is what the information provided amounts to. Deliberate misinformation? Simply telling interrogators what they want to hear (and from the very top this was an administration only interested in hearing what it wanted to hear)? Or what if the prisoner was innocent of any terrorist associations, as an outstanding majority of detainees at Abu Ghraib and Guantanamo were? What if they simply didn’t have any “actionable intelligence”? What if no such intelligence even existed in the first place? The outstanding accomplishment of the Bush administration has already been set in place by the media: He kept America safe. Mayer admits to some doubts as to how impressive an achievement this was:

it is hard to know if the Bush Administration’s success represents the vanquishing of new credible threats, or rather the absence of any. As former Secretary of Defense Donald Rumsfeld himself acknowledged in 2003, “Today we lack metrics to know if we are winning or losing the global war on terror.” During the Bush years, it’s been almost impossible to tell. In the absence of government transparency and independent analysis, the public has been asked to simply take the President’s word on faith that inhuman treatment has been necessary to stop attacks and save lives.

Almost impossible to tell, but the fact remains that absence of evidence is at least some evidence of absence. It is also telling that the few examples the administration has seen fit to provide relating to foiled plots have turned out to be so much wind.

Which hardly comes as a surprise. What actionable intelligence could captured “American Taliban” John Walker Lindh possibly have divulged under pressure? This was someone who didn’t even know about 9/11 after the fact. And how can anyone imagine that prisoners who have literally spent years in secret jails still possess information of any value? And yet still the beatings go on.

This was worse than stupidity mixed with Hollywood “alpha-male shit” (the clichéd fantasies of beta-male flunkies). Worse even than a mistake or a crime. Though the competition will no doubt be tough, the widespread adoption of torture will likely be remembered as the worst thing George W. Bush did in eight years in power. Though the results were negligible in terms of information gathered, the moral stain of waterboarding, “torture taxis” and Abu Ghraib will last forever.

Review first published online September 30, 2008.

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