The use of torture on suspected terrorists after 9/11 has already earned a place in American history's hall of shame, alongside the Alien and Sedition Acts, Japanese internment during WWII and the excesses of the McCarthy era. Even liberal societies seem to experience these authoritarian spasms from time to time. It is the aftermath of such episodes—what happens when a country comes to its senses—that reveals the most about a nation's character.
Of those earlier stains, the forced confinement of Japanese-Americans after Pearl Harbor provides the most useful comparison to our current situation. As with Bush's torture policy, Franklin Roosevelt's decision to relocate more than 100,000 people, most of them citizens, to remote camps in the desert was born of collective terror following a surprise attack. Deporting those of Japanese descent from their homes was presidential policy and an expression of popular will. There was little public or congressional complaint while it was happening. In 1945 the detainees were given $25 and a bus ticket home. America understood it had done something terribly wrong and decided to forget about it. Not until 1983 did a congressional commission officially acknowledge that the detentions were "unjust and motivated by racism." (Article continued below...)
Unlike the Japanese internment, waterboarding was ordered and served up in secret. But it, too, was America's policy—not just Dick Cheney's. Congress was informed about what was happening and raised no objection. The public knew, too. By 2003, if you didn't understand that the United States was inflicting torture upon those deemed enemy combatants, you weren't paying much attention. This is part of what makes applying a criminal-justice model to those most directly responsible such a bad idea. The issue we need to come to terms with is not just who in the Bush administration did what, but our collective complicity in their decision.
The justification for torture was in the air soon after the 9/11 attacks. Time bombs began ticking on "24" in November 2001. That same month, my colleague Jonathan Alter wrote in a NEWSWEEK column (which he has since regretted) that we should be open to the idea of "transferring some suspects to our less squeamish allies." Alan Dershowitz argued for legitimizing torture through a system of judicial warrants. "It is wise for American interrogators to employ whatever coercive methods work," wrote Mark Bowden in The Atlantic, referring specifically to the treatment of Khalid Sheikh Mohammed. And that's what liberals said.
Well before the nation reelected George W. Bush in 2004, the country's best investigative reporters had unearthed the salient aspects of his torture policy: in December 2002, Dana Priest and Barton Gellman revealed on the front page of The Washington Post that American interrogators were employing "stress and duress" techniques as well as shipping prisoners to places like Egypt, where even fewer rules applied. "Each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary," the reporters wrote. "They expressed confidence that the American public would back their view."
Seymour Hersh broke the Abu Ghraib story in The New Yorker in April 2004. In May of that year, The New York Times revealed that the CIA had waterboarded Mohammed. In June, another major Washington Post scoop described a Justice Department memo asserting that CIA interrogators couldn't be prosecuted for using torture on detainees. That same month, NEWSWEEK further revealed that Cheney's lawyers had declared waterboarding a legal and acceptable practice. The leaked Red Cross report and the new memos released by the Obama administration add horrible detail to the story. They do not fundamentally change what we previously knew.
As with Japanese internment, Bush's torture policy wasn't seriously challenged by the other branches of government while it was still in effect. Though House Speaker Nancy Pelosi claims she wasn't told about it, evidence suggests she and other senior members of the intelligence committees were briefed extensively on the use of waterboarding in fall 2002. One official quoted in The Washington Post said, "The attitude was, 'We don't care what you do to those guys as long as you get the information you need to protect the American people'." In September 2006, Congress passed the Military Commissions Act, which shielded U.S. interrogators from potential prosecution for torture. The Senate rejected an amendment introduced by Ted Kennedy that would have defined waterboarding as a war crime. In 2008 Democrats finally had the guts to pass legislation limiting interrogation techniques to those covered in the Army Field Manual. Bush vetoed the bill and there was no override.
President Obama has done the most important thing: reversing Bush's policy and declaring, as he did last week, that torture was unequivocally wrong. What we need now is a public airing through congressional hearings and perhaps an independent commission, an idea that the White House is resisting. Pursuing criminal charges would be too hard politically and too easy morally. Prosecuting Bush and his men won't absolve the rest of us for what we let them do.