"This is not the America I know," President George W. Bush said after the first, horrifying pictures of U.S. troops torturing prisoners at the Abu Ghraib prison in Iraq surfaced in April 2004. The President was not telling the truth. "This" was the America he had authorized on Feb. 7, 2002, when he signed a memorandum stating that the Third Geneva Convention — the one regarding the treatment of enemy prisoners taken in wartime — did not apply to members of al-Qaeda or the Taliban. That signature led directly to the abuses at Abu Ghraib and Guantánamo Bay. It was his single most callous and despicable act. It stands at the heart of the national embarrassment that was his presidency.
The details of the torture that Bush authorized have been dribbling out over the years in books like Jane Mayer's excellent The Dark Side. But the most definitive official account was released by the Senate Armed Services Committee just before Christmas. Much of the committee's report remains secret, but a 19-page executive summary was published, and it is infuriating. The story begins with an obscure military training program called Survival Evasion Resistance and Escape (SERE), in which various forms of torture are simulated to prepare U.S. special-ops personnel for the sorts of treatment they might receive if they're taken prisoner. Incredibly, the Bush Administration decided to have SERE trainers instruct its interrogation teams on how to torture prisoners. (Read "Shell-Shocked at Abu Ghraib?")
It should be noted that there was, and is, no evidence that these techniques actually work. Experienced military and FBI interrogators believe that torture leads, more often than not, to fabricated confessions. Patient, persistent questioning using subtle psychological carrots and sticks is the surest way to get actionable information. But prisoners held by the U.S. were tortured — first at Guantánamo Bay and later in Afghanistan and Iraq. The Armed Services Committee report details the techniques used on one prisoner: "Military working dogs had been used against [Mohammed al-] Khatani. He had also been deprived of adequate sleep for weeks on end, stripped naked, subjected to loud music, and made to wear a leash and perform dog tricks."
Since we live in an advanced Western civilization, there needs to be legal justification when we torture people, and the Bush Administration proudly produced it. Memos authorizing the use of "enhanced" techniques were written in the Justice Department's Office of Legal Council. Vice President Dick Cheney and his nefarious aide, David Addington, had a hand in the process. The memos were approved by Bush's legal counsel, Alberto Gonzales. A memo listing specific interrogation techniques that could be used to torture prisoners like Mohammed al-Khatani was passed to Secretary of Defense Donald Rumsfeld. He signed it on Dec. 2, 2002, although he seemed a bit disappointed by the lack of rigor when it came to stress positions: "I stand for 8-10 hours a day," he noted. "Why is standing limited to four hours?"
It would be interesting, just for the fun and justice of it, to subject Rumsfeld to four hours in a stress position — standing stock still with his arms extended, naked, in a cold room after maybe two hours' sleep. But that's not going to happen. Indeed, it seems probable that nothing much is going to happen to the Bush Administration officials who perpetrated what many legal scholars consider to be war crimes. "I would say that there's some theoretical exposure here" to a war-crimes indictment in U.S. federal court, says Gene Fidell, who teaches military justice at Yale Law School. "But I don't think there's much public appetite for that sort of action." There is, I'm told, absolutely no interest on the part of the incoming Obama Administration to pursue indictments against its predecessors. "We're focused on the future," said one of the President-elect's legal advisers. Fidell and others say it is possible, though highly unlikely, that Bush et al. could be arrested overseas — one imagines the Vice President pinched midstream on a fly-fishing trip to Norway — just as Augusto Pinochet, the Chilean dictator, was indicted in Spain and arrested in London for his crimes.
If Barack Obama really wanted to be cagey, he could pardon Bush, Cheney and Rumsfeld for the possible commission of war crimes. Then they'd have to live with official acknowledgment of their ignominy in perpetuity. More likely, Obama will simply make sure — through his excellent team of legal appointees — that no such behavior happens again. Still, there should be some official acknowledgment by the U.S. government that the Bush Administration's policies were reprehensible, and quite possibly illegal, and that the U.S. is no longer in the torture business. If Obama doesn't want to make that statement, perhaps we could do it in the form of a Bush Memorial in Washington: a statue of the hooded Abu Ghraib prisoner in cruciform stress position — the real Bush legacy.