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Padilla v. Yoo: A Blow to the Government

Yes, we tortured. Who is responsible?

But having my current government release the evidence is a strange kind of relief, sunlight coming out of the clouds. A few weeks ago, I attended a panel on the the executive response to 9/11. Ann Compton, the only reporter on Air Force One on 9/11 (after My Pet Goat), moderated Andrew Card, Michael Chertoff, Douglas Feith, Tim Flanigan, and Ari Fleischer—all of whom had been intimately involved in the response to the bombings. (John Yoo was in the audience.) Let me say that it was agony remembering 9/11, feeling again that scorched and distraught feeling we all had from being attacked. I was awestruck as they told what 9/11 had felt like from the inside—believing that there were more planes in the air, ready to hit, and not knowing what to do to prevent more attacks. They told unanimously about being given a single policy directive: This must never happen again. Stop another attack at any cost. There was no countervailing interest.

But that scorched feeling inside me quickly worsened into feeling almost too sick to listen, knowing how that prime directive had forced my country far off course, away from morality. We were a small audience of journalists selected for our interest in constitutional law, and so we were soon drilling them about the constitutionality of their responses. How could the administration have authorized and implemented torture, indefinite detention, the suspension of habeas corpus, the destruction not just of the Taliban but of Afghanistan itself (that last a paraphrase of an Afghani journalist's question)?

My question: How they could have been so certain that anyone they picked up on the battlefield had to be guilty? Why should citizens be expected to believe that our government was omniscient, knowing in advance who should never see daylight again? Chertoff answered that on a battlefield, they would have been permitted to kill anyone there; where should the line be drawn between what was permitted in battle and what was permitted to people picked up in battle? Then Flanigan looked directly into my eyes and said, essentially: We were the lawyers. We did what we were asked to do. If you want to hold someone responsible, look to the policymakers.

That disavowal took my breath away. (As did the moment Feith looked straight into the eyes of the Afghani journalist and said: Our goal was to prevent an another attack on the U.S. We were successful. In other words, your country = not my problem.) Afterward, law professor Sherilynn Ifill, who was sitting next to me, said: If I were to convene a truth commission, Flanigan is the first one I'd call. He's ready to name names.

Spain Plays the War Crimes Card

For months, or maybe it's years by now, critics of the Bush administration's wrong turn into torture have been musing that the officials behind it might soon be forced to stop traveling abroad. Behind this fond hope or fear, depending on where you stand, lies the threat of prosecution abroad for war crimes. And now the Spanish may oblige, courtesy of prosecutor Baltasar Garzon, who made his name going after Chilean dictator Augusto Pinochet. Garzon’s list of six high-level American officials is in line with much of the reporting, including ours at Slate, on who knew about and approved coercive interrogation—Alberto Gonzales, David Addington, Jim Haynes, Jay Bybee, Doug Feith, and John Yoo. You can’t fault the Spanish for settling for the low-level bad apples, as the Abu Ghraib prosecutions here in the United States did. Though missing from the list are Dick Cheney and George W. Bush—suggesting that Garzon is bold, but not crazy bold.

Losing the freedom to travel abroad isn’t the more serious curtailment of freedom that some critics of the administration might wish upon these men. But it’s not nothing, either. It’s an embarrassment. It pushes these former officials off the world stage—now they’ll have to think twice about defending themselves before a European audience, even if they want to. The threat of prosecution is also, of course, a challenge to American dominance. At home, it will fuel the criticism of international treaties and institutions that in any way purport to give foreign courts jurisdiction over Americans. Abroad, this news from Spain is of a piece with international defiance of the United States over the financial crisis leading into the Group of 20 meeting this week. How has the United States lost its moral authority abroad? Let us count the ways.

Is It a Crime To Have Authorized Torture ... Even After You Stop?

Dahlia, thank you for pointing to that poll. One of the things that makes me feel ashamed, occasionally, is that I lived through an era in which my country tortured—and I did nothing about it. Seeing these numbers helps lift that feeling of shame. You point out that 38 percent of those polled want a criminal investigation. The more moving thing, to me, is that an additional 24 percent want an independent panel to investigate. Only 34 percent want us to forget all about it and move on.

The best reasoning I've heard yet for investigating instead of pretending that now everything is peachy keen, despite the fact that our nation violated some core Constitutional principles, international laws, and moral foundations: without an investigation, all the people and principles that brought us to torture will remain unquestioned—and can easily return to power in another era. Let's air the dirty laundry and name the dirty launderers. Nixon's pardon left us with Don Rumsfeld and Dick Cheney. Do we want the likes of John Yoo, David Addington, and their own pro-torture followers waiting in public life for decades, saying that no authority ever explicitly rejected the horrific moral reasoning that they put in place—and taking their places in future administrations?

Speaking of which: In a few weeks, I'll be at a weekend seminar on constitutional issues with  Prof. John (Torture Memo) Yoo himself, along with a panel of other legal luminaries. If anyone wants to send me some homework and reading, and perhaps some questions you'd like me to ask Mr. Torture, please, please do.