The use of torture on suspected terrorists after Sept. 11 has already earned a place in American history's hall of shame, alongside the Alien and Sedition Acts, Japanese internment during World War II, 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. How do we come to terms with having betrayed our ideals?
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 out West was born of collective terror following a surprise attack. Expelling those of Japanese descent from their homes was a presidential policy and also an expression of popular will. There was little public objection while it was happening, and Congress passed a law to support FDR's order. As the foreign threat receded, the Supreme Court limited the scope of the policy, and in 1945, FDR rescinded it entirely. 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 rather than real military necessity."
Unlike the Japanese internment, water-boarding 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 on 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 how we were collectively complicit in their decisions.
The justification of torture was in the air soon after the Sept. 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," Mark Bowden wrote a couple of years later in the Atlantic, referring specifically to the treatment of Khalid Sheikh Mohammed. And that's what liberals said. Conservative commentators had few such qualms.
Well before the country re-elected George W. Bush in 2004, our 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 and shipping prisoners to places, like Egypt, where even fewer rules applied, a practice known as rendition. "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." Those officials weren't wrong.
Seymour Hersh broke the Abu Ghraib story in The New Yorker in April 2004. In May, the New York Times revealed that the CIA had water-boarded Khalid Sheikh 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 revealed that Cheney's lawyers had declared water-boarding a legal and acceptable practice. The leaked Red Cross report recently published by Mark Danner in the New York Review of Books and the new memos released by the Obama administration add horrible detail to the story. But 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 in effect. Although House Speaker Nancy Pelosi claims she wasn't told about it, evidence suggests she and other senior members of the intelligence committees were extensively briefed on the use of water-boarding and other coercive methods in the fall of 2002. According to one official quoted in the Washington Post, "there was no objecting, no hand-wringing. 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 American interrogators from potential prosecution for torture. The Senate rejected an amendment introduced by Ted Kennedy that would have defined water-boarding as a war crime. In 2008, five years after water-boarding ceased to be used, 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: ending Bush's policy of allowing torture and declaring, as the new president did in his April 29 press conference, that it was unequivocally wrong. What we need now is a public airing through congressional hearings and perhaps a high-level commission—Jack Goldsmith and Philip Zelikow, brave opponents of torture and legal casuistry inside the Bush administration, would be excellent choices for it. But pursuing criminal charges would be too hard legally and politically and too easy morally. Prosecuting Bush and his men won't absolve the rest of us for what we let them do.