The baby steps that have taken the United States from decrying torture to celebrating it. 

The law, lawyers, and the court.
Nov. 10 2010 6:24 PM

Interrogation Nation

The baby steps that have taken the United States from decrying torture to celebrating it.

Former President George W. Bush. Click image to expand.
Former President George W. Bush

The old adage held that if they couldn't get you for the crime, they would get you for the coverup. But this week, it was revealed that both the crime and the coverup will go permanently unpunished. Which suggests that everything in between will go unpunished as well.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

In an America in which the former president can boast on television that he approved the water-boarding of U.S. prisoners, it can hardly be a shock that following a lengthy investigation, no criminal charges will be filed against those who destroyed the evidence of CIA abuse of prisoners Abu Zubaydah and Abd al-Rahim al-Nashiri. * We keep waiting breathlessly for someone, somewhere, to have a day of reckoning over the prisoners we tortured in the wake of 9/11, without recognizing that there is no bag man to be found and that therefore we are all the bag man.

President Barack Obama decided long ago that he would "turn the page" on prisoner abuse and other illegality connected to the Bush administration's war on terror. What he didn't seem to understand, what he still seems not to appreciate, is that what was on that page would bleed through onto the next page and the page after that. There's no getting past torture. There is only getting comfortable with it. The U.S. flirtation with torture is not locked in the past or in the black sites or prisons at which it occurred. Now more than ever, it's feted on network television and held in reserve for the next president who persuades himself that it's not illegal after all.

In his new memoir, Decision Points, former President George W. Bush boasts that he not only granted his permission to water-board detainees but did so cowboy-fashion—with the words "Damn right." This admission has elicited barely a ripple of self-doubt among an American public that reconciled itself long ago to the twin propositions that torture can sometimes be legal and that every terror suspect is always a ticking time bomb. Bush's contention that American torture "helped break up plots to attack American military and diplomatic facilities abroad, Heathrow airport and Canary Wharf in London, and multiple targets in the United States," has been largely rejected by British officials. (You may recall that earlier claims that Bush-era torture of Khalid Sheikh Mohammed led to the interruption of a plot to crash planes into the Library Tower in Los Angeles, were roundly debunked by my colleague Timothy Noah, who has shown that the Library Tower plot was disrupted in 2002, before the United States had even captured KSM, much less begun to torture him.)

But even the repeated assertions that torture saved American lives in this or that unfalsifiable international terror scenario is beside the point, as Ronald Reagan's former Solicitor General Charles Fried has argued in Because It Is Wrong, a book co-authored with his son Gregory Fried. They argue that torture is immoral and illegal and that it has degraded and shamed this country. As the Frieds vividly demonstrate in their book, for all that torture hurts our enemies, it invariably hurts us even more. And as Charles Fried reminded an Australian newspaper again today, the illegality of water-boarding isn't a close call, even though we have come to call it "simulated drowning" or "enhanced interrogation." It has been a crime for decades: "In the past we have prosecuted American soldiers who engaged in the equivalent of waterboarding. We have also prosecuted German and Japanese commandants who ordered it. Some were even executed."

British papers may claim that there will be legal repercussions following Bush's admissions, but the truth is that the Bush spin on the old Nixonian formulation for presidential conduct—it's legal if my lawyer tells me it's legal—has become the law of the land. Indeed, it's exactly the formulation used by Jose Rodriguez, the man who ordered CIA officials to destroy videotapes showing prisoners being abused: His lawyers said he could. As Nan Aron explains, the "my lawyer ate it" defense has been deemed illegal since Nuremburg. Now it's a get-out-of-jail-free card.

Eric Holder and Barack Obama have taken pains to tell the American people that water-boarding is illegal torture. So what? That's just their opinion. President Bush disagrees. The persistent failure to hold anyone accountable at any level for years of state-sanctioned abuse speaks louder than their words. It has taken this issue from a legal question to a matter of personal taste. What we choose to define as torture is now just another policy disagreement, like extending the Bush tax cuts or picking a caterer. This is precisely the kind of sliding-scale ethical guesswork the rule of law should preclude.

Those of us who have been hollering about America's descent into torture for the past nine years didn't do so because we like terrorists or secretly hope for more terror attacks. We did it because if a nation is unable to decry something as always and deeply wrong, it has tacitly accepted it as sometimes and often right. Or, as President Bush now puts it, damn right. It spawns a legal regime that cannot be contained in time or in place; a regime that requires that torture testimony be used at trials and that terror policies be withheld from public scrutiny. It demands the shielding of torture photos and the exoneration of those who destroyed torture tapes just a day after the statute of limitations had run out. Indeed, as Andrew Cohen notes, when the men ordering the destruction of those tapes are celebrated as "heroes," who's to say otherwise? Check, please.

All this was done in the name of moving us forward, turning down the temperature, painting over the rot that had overtaken the rule of law. Yet having denied any kind of reckoning for every actor up and down the chain of command, we are now farther along the road toward normalizing and accepting torture than we were back in November 2005, when President Bush could announce unequivocally (if falsely) that "The United States of America does not torture. And that's important for people around the world to understand."If people around the world didn't understand what we were doing then, they surely do now.And if Americans didn't accept what we were doing then, evidently they do now. Doing nothing about torture is, at this point, pretty much the same as voting for it. We are all water-boarders now.

Correction, Nov. 11, 2010: This article originally misspelled Abd al-Rahim al-Nashiri's name. (Return to the corrected sentence.)

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