In the weeks after 9/11, Americans began torturing prisoners. At first, spurred on by fear, panic, guilt, and desperation, they improvised—stripping a wounded John Walker Lindh, the so-called American Taliban, taping him naked to a stretcher and leaving him bleeding and untreated for days in a freezing shipping container. But even in this early case, it was powerful people in the Office of the Secretary of Defense who ordered those interrogating Lindh to “take the gloves off.” Soon that phrase—“After 9/11, the gloves came off”—would be used by the head of counterterrorism in testifying before the Senate, and by then what had come off, for the first time since George Washington insisted his soldiers treat all prisoners humanely at the Battle of Trenton, was systematic protections governing Americans’ treatment of prisoners of war. President George W. Bush stripped those captured in the war on terror of the protection of the Geneva Conventions and, indeed, of their very status as prisoners of war. Those captured after September 11 were deemed “unlawful combatants”: As “combatants,” they would be denied the legal rights due civilians under the Constitution; as “unlawful,” they would be denied the protections conferred on soldiers by the laws of war. Detainees in the war on terror were thus cast into—as an eminent British jurist characterized Guantánamo, where nearly a thousand were interned—“a legal black hole.”
What is undeniable, as we gaze back on the decade separating us from 9/11, is that thousands of these prisoners were mistreated and hundreds were tortured. American military officers and soldiers tortured prisoners in Guantánamo; in Abu Ghraib and other prisons and military bases in Iraq; and in Kandahar, Bagram, and other prisons in Afghanistan. American intelligence officers tortured prisoners at so-called black sites, secret prisons set up in Pakistan, Afghanistan, Thailand, Morocco, Poland, Romania, and Lithuania. The methods they used—the “alternative set of procedures,” in President Bush’s preferred phrasing—were developed and refined within the offices of the American government, debated in memoranda that traveled between military departments and government bureaus, debated and parsed by clever lawyers, and approved and initialed by high officials who inscribed personal recommendations in the margins. (“I stand for eight to ten hours a day,” scrawled Donald Rumsfeld. “Why is standing limited to four hours?”)
The documentary record of how these “enhanced interrogation techniques” were developed, debated, and approved is voluminous. In documents from the CIA, the Pentagon, and the Department of Justice, we read precise descriptions of “the abdominal slap” and “the cold cell” and “the use of noise to induce stress,” of “forced nudity” and “longtime standing,” of “cramped confinement” in small boxes and “walling” (repeated smashing of the naked, hooded detainee against a wall by means of a collar about the neck), of sleep deprivation (not to exceed eleven days) and of “simulated drowning”—the infamous waterboarding. CIA medical experts prescribe the precise amount of water needed to achieve suffocation and its temperature; Justice Department lawyers obligingly respond that while such suffocation does produce “a controlled acute episode”—it is not torture. Beside these bureaucratic euphemisms, the detailed and extensive descriptions of how torture was used, including methodical first-person accounts compiled by investigators of the International Committee of the Red Cross that recount the effect of torture on detainees—one subjected to suffocation by water 183 times, another 83 times—are vivid, shocking, and revolting [T1 ].
That these activities constituted torture and thus violated not only the Geneva Conventions but also the War Crimes Act and the Convention Against Torture is disputed by almost no legal authorities beyond those officials personally responsible for approving them. The American military prosecuted waterboarding as a war crime in the Spanish-American War and in World War II, and American courts prosecuted and convicted civilian police officers of waterboarding as recently as 1983. Yet in the wake of September 11, the highest officials of the American government personally approved torture, among them the former president, vice-president, and secretary of defense. (By his own account, George W. Bush, when asked by his director of central intelligence whether Khalid Shaikh Mohammed should be waterboarded, had an immediate and dramatic response: “Damn right!”)
Among those who have affirmed publicly that waterboarding constitutes torture and violates U.S. and international law are the current highest law-enforcement officer of the land, Attorney General Eric Holder, and his boss, President Barack Obama. On his second full day in office, President Obama ordered the black sites closed and torture stopped. But in hoping to break cleanly with torture, the new president proved reluctant to confront it directly. His very words point up the deep moral quandary that Americans—who see themselves as leaders in advancing human rights—find themselves mired in after 9/11: “Where force is necessary,” President Obama told the Nobel Committee in December 2009, “we have a moral and strategic interest in binding ourselves to certain rules of conduct … That is what makes us different from those whom we fight. That is a source of our strength. That is why I prohibited torture.”
This bold statement brought vigorous applause in Oslo. The plain truth, though, is that torture is illegal, by international treaty and federal statute. President Obama has no more power to prohibit torture than President Bush had to order it. President Obama does have the power, indeed the obligation, to enforce the law and to investigate and punish those who violate it. And in this he has gone only partway. It is this dilemma, ten years after 9/11, in which the country is still caught.
Must we—can we—return to the rule of law? Can we not, as President Obama has urged, simply “look forward and not backward”? The president has once again supplied his own answer. “America—in fact, no nation—can insist that others follow the rules of the road if we refuse to follow them ourselves,” he said in Oslo. “Those regimes that break the rules must be held accountable.”
Apart from a few low-level soldiers foolish enough to pose for grotesque photographs at Abu Ghraib, no one has been held accountable for torture—not those who designed the methods, nor those who ordered them used, nor those who applied them in secret rooms. Americans have lived with the reality of torture for many years now, and many say they support its use. Though Americans may still believe it is their adherence to “certain rules of conduct” that makes them “different from those whom we fight,” one of the saddest consequences of 9/11 is that a great many Americans now say they believe that the country can’t protect itself from terrorism while following the law. We have learned, ten years on, the limits of American exceptionalism. President Obama has “prohibited torture.” In the wake of the next terrorist attack, a future president, or perhaps even this one, might well approve it. Torture, once anathema, has become a policy choice.
Mark Danner, a regular contributor to The New York Review of Books, is the author, most recently, of Stripping Bare the Body: Politics Violence War.