Darker Convergence

The major premise of the AEI gathering was that these torture techniques facilitated one of the most important intelligence coups of the war against Al Qaeda, namely the identification of Bin Laden's hideout. As CIA Director Leon Panetta has made clear, and Senator John McCain drove home on the floor of the senate, that premise is flatly false. What we are witnessing is the big lie in progress. George Orwell described this phenomenon in Nineteen Eighty-Four, "To tell deliberate lies while genuinely believing in them, to forget any fact that has become inconvenient, and then when it becomes necessary again, to draw it back from oblivion for just so long as it is needed." The idea apparently is that a claim, repeated often enough as a raw fact, will gain acceptance, whether it is true or not. The issue in contest here is not whether "torture works." Indeed, it would be foolish to suggest that any particular technique, including torture techniques "do not work." Surely in some circumstances torture will get a prisoner to talk, and sometimes even to give information that is in some way useful. That is not the issue. Instead the effort here is, after the fact, to tie a signal accomplishment of American intelligence in the war against Al Qaeda — the successful location of Bin Laden — to the use of waterboarding, a torture technique. And that is the Big Lie.

What drives this display? It may be that Mukasey, Thiessen and Yoo genuinely believe that the use of these torture techniques is essential to national security. That attitude is common enough in authoritarian societies, too. But the real concern here clearly lies elsewhere. John Yoo, who wrote memoranda approving the use of torture and who has stated that he could approve, as a legal matter, a decision to crush a small child's testicles or to exterminate a village to get information, offers us the mindset of a hardened war criminal. He may be protected under the current political environment inside the American Beltway, but he risks arrest if he travels outside of the country.

We are witnessing an attempt to scuttle the prohibition on torture altogether — certainly in order to shield Bush administration policymakers from the proper legal consequences of their choices, but perhaps because of a growing be- lief among American Republicans in particular that the war against terrorists can only be fought using torture — which is to say, terror — as a principal tool.

For advocates of the Bush-era techniques, this is merely a question of using the most effective practices to collect intelligence. But nothing is more fundamental to a modern state than its attitude about the dignity of the human being, and, as millions who have taken to the streets of the Middle East with the word "dignity" on their lips know, only the absolute prohibition on torture provides meaning to these words.

Andrei Sakharov paid special attention to what happened to persons held in prison because, this lets us know all we need to know about the true nature of the society that operates that prison. They might be political prisoners punished because of their ideas, they might be common criminals, or they might be terrorists and lethal enemies of the state. But once they are disarmed and held in the power of the state, they must be treated in a way that recognizes the fundamental dignity of every human being. If the prisoner committed a serious crime, the state may punish him, even severely, through proper process. But in no circumstance can torture or similar cruel, inhuman or degrading treatment be allowed. Moreover, Sakharov pointedly reminded the Western democracies of their torch-bearing role. It was imperative that they live to the values they articulated. Do not take the false step of playing the game by your adversary's rules, he warned.

He issued that controversial warning, which brought him much trouble in Soviet society, in the context of arms negotiations. The West must insist on its core values first, he said, then it can talk arms limitations. And indeed it was this approach that linked human rights firmly to the process of international dialogue and security, that brought an end to the Cold War, and laid the foundation for a new world. There is no inconsistency between human rights advocacy and national security; rather, just the opposite. The Helsinki Process showed plainly their powerful consonance. By receding from human rights values today, the United States is undermining that great compact, it is acting against its own interests, and undermining its security and that of every other nation.

A second event is approaching on the horizon. Within roughly two weeks, in a Baltimore courthouse federal prosecutors will open the trial of Thomas A. Drake, a former senior official of the National Security Agency. Drake is being charged under the Espionage Act. But is Drake a spy for an enemy power? Certainly not. Drake is a patriot whose actions consistently reflected the best interests of the state. Drake discovered fraud, waste and abuse linked to a highly classified $1 billion government contract that supported a surveillance program. After raising questions about this internally and getting nowhere, he allegedly furnished information to a reporter at the Baltimore Sun, who published an award winning exposé about the contract fraud. This information was enormously embarrassing to Drake's boss because it also helped reveal that the NSA was engaged in snooping on the communications of tens of millions of American citizens and residents without court permission, conduct which constituted a crime under American law — as three federal judges in fact determined. So why is Drake, a classic whistleblower, being prosecuted as a spy? Lanny Breuer, a senior official of the Justice Department told Jane Mayer in an article in the New Yorker that the prosecution was almost "automatic" (even though it was only the fifth such prosecution in history) because "You don’t get to break the law and disclose classified information just because you want to." He added, "Politics should play no role in it whatsoever."

But these comments should be tested carefully. The fact is that classified information is disclosed every day and that criminal prosecutions rarely result. Alberto Gonzales, Pete Hoekstra, Richard Shelby, Dick Cheney are among the many high-profile political figures who made unauthorized leaks of US secrets in recent years. Gonzales, Hoekstra, Shelby and Cheney were dealing with compartmentalized and extraordinarily sensitive matters, and so were a series of the most senior figures in the Obama team when they gave interviews with the Washington Post's Bob Woodward, freely discussing, and allowing him to publish highly classified information in his discussion of Obama's conduct of the wars in Afghanistan and Iraq (Obama's Wars). They would all claim inadvertence or good, public-minded intentions, but a smart young prosecutor could easily fashion arguments and probably convince a jury that they did so for their own selfish reasons and that they damaged the security of the country. Breuer insists that "politics should play no role in it," but all the available evidence suggests exactly the opposite: this is all about politics. Gonzales, Hoekstra, Shelby, Cheney and the senior members of the Obama team never had anything to worry about because their leaks served some political purpose inside the Beltway. It is only leaks that expose wrongdoing or stupidity on the part of the powerful that bring down the wrath of the federal prosecutors.

Moreover, I mention the Drake case because the Justice Department official gives precisely the argument that the procurator general of the Russian Federation gave to justify the espionage charges against Aleksandr Nikitin, the man who courageously revealed the reckless dumping of nuclear waste by the Russian North Fleet in the Arctic Sea. The espionage label was used to silence a person who revealed vital information about the misconduct of government actors. Nikitin's acquittal in a trial brilliantly managed by Yurii Shmid, who spoke to us yesterday, and the severe slap that the Russian Supreme Court delivered to the prosecutors in 2000 can be viewed as a clear indicator of the rise of the rule of law and democratic constitutionalism in Russia. The national-security state was publicly thrashed.

The open advocacy of torture and the indictment and trial of Drake may be viewed as evidence of precisely the opposite trend in the United States today. They show us a state in which the national-security establishment asserts itself steadily and ever more aggressively. They show us a Justice Department which equivocates and waffles on the enforcement of fundamental laws respecting human rights — and nothing is more fundamental than the torture prohibition, but then zealously guards the prerogatives of senior figures in the national-security establishment whose conduct, once exposed, may earned them embarrassment. American Justice in the Obama era demands impunity for acts of torture, arguing that we should not "look back." But for the honest citizen whistleblower who has revealed criminal conduct it knows no mercy, not even the protection that statutes prescribe for the whistleblower. He must be punished for his very act of civic responsibility — which it deems an act of disobedience against the national-security state.

Tags: aleksandrov, andrei sakharov, bin laden, bush administration, civil liberties, cold war

    • Scott Horton
    • Scott Horton is a contributing editor at Harper’s magazine, where he covers legal and national security issues. As a practicing attorney, Horton has focused on investment in emerging markets. He is also a life-long human rights advocate and serves as a director of the Moscow-based Andrei Sakharov F...

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