Gerald Herbert  /  AP file
Former Justice Department Criminal Division chief Michael Chertoff is likely to be confirmed Tuesday as homeland security secretary.
By Tom Curry National affairs writer
updated 2/15/2005 4:37:20 PM ET 2005-02-15T21:37:20

Why have the allegations of torture and abuse of prisoners at Iraq’s Abu Ghraib prison, at the Guantanamo Bay Navy base and in Afghanistan not damaged the Bush administration in purely political terms more than they have?

The torture charges fueled Democrats’ efforts to defeat President Bush’s nomination of Alberto Gonzales as attorney general.

Citing a now-famous Aug. 1, 2002, memo solicited by Gonzales and written by Jay Bybee and John Yoo in the Justice Department’s Office of Legal Counsel (OLC), Democratic senators accused Gonzales of “creating a permissive atmosphere” that led American soldiers to abuse prisoners.

But the Senate voted to confirm Gonzales after Democrats decided that the torture issue was not worth a filibuster.

On Tuesday, Abu Ghraib and Guantanamo were again lingering phantoms as the Senate voted  to approve former Assistant Attorney General Michael Chertoff, now a federal appeals court judge, to be homeland security secretary.

Chertoff and interrogation
Like Gonzales, Chertoff won confirmation despite Democratic senators’ questions about what he might have known about abusive interrogation methods during his 2001-2003 stint as chief of the Justice Department’s Criminal Division.

According to Sen. Carl Levin, D-Mich., one recently released FBI document shows that agents “strenuously objected” to the Defense Department’s interrogation methods at Guantanamo and raised concerns “as early as fall 2002, before the abuses occurred at Abu Ghraib and elsewhere.”

Levin said FBI agents voiced their worries about interrogation techniques to Justice Department officials, including senior officials in Chertoff’s Criminal Division.

When Levin asked Chertoff about this at his nomination hearing, he could not recall such discussions. Levin said the Bush administration had stymied attempts to get more information on Chertoff’s role.

But it isn’t just administration secrecy that explains why Abu Ghraib and Guantanamo haven’t helped the Democrats politically. Some Democrats say torture may in some cases be necessary, although no Democrat has claimed that the depravity in the Abu Ghraib photos was one of those cases.

Torture sometimes justified?
Last June, in the immediate aftermath of the Abu Ghraib revelations, Sen. Charles Schumer, D-N.Y., said at a hearing of the Judiciary Committee, “If we knew that there was a nuclear bomb hidden in an American city and we believed that some kind of torture, fairly severe maybe, would give us a chance of finding that bomb before it went off, my guess is most Americans and most senators, maybe all, would say, ‘Do what you have to do.’”

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Schumer added, “It's easy to sit back in the armchair and say that torture can never be used. But when you're in the foxhole, it's a very different deal.”

During last year’s presidential campaign Democratic candidate Sen. John Kerry and his advisers apparently decided that criticizing Bush on the torture/abuse issue would not be a winning strategy.

Kerry did say in May that if he were president, “I would personally have been concerned long ago about the reports (of detainee mistreatment) that were coming out from the Red Cross and from elsewhere.” But he never raised the issue of Abu Ghraib during his three debates with Bush, nor did Kerry’s ads focus on the issue.

In August Kerry found himself under fire from the Swift Boat Veterans for Truth for his 1971 Senate testimony in which he’d endorsed allegations that U.S. soldiers had committed atrocities in Vietnam.

Kerry under fire
Republican consultant Chris LaCivita, who served as the Swift Boat Veterans’ strategist, said Monday that Kerry held back from criticizing Abu Ghraib partly because “it’s no longer fashionable among those in the Democratic Party to engage in the bashing of American servicemen and women while they are in combat. It might have been in vogue in 1970 and 1971 when Kerry was getting his sea legs in politics,” but not today.

“Had Kerry done something that cast aspersions on American troops currently serving” by using torture as an issue, “he would have opened himself up to people saying, ‘Wait a minute, this is the same type of charge he made in 1971, with a blanket indictment of American soldiers,’” LaCivita said.

Elisa Massimino, director of the Washington office of Human Rights First, an advocacy group that opposed Gonzales’ nomination, said torture has so far fallen short as a compelling issue due to “the inability to really make a case to the public that the Abu Ghraib pictures are not just about Abu Ghraib.”

She noted that, “some of us had been ringing the alarm bells as early as December 2002 when deaths occurred at Bagram” air base in Afghanistan.

She added, “If you asked most Americans how many detainees have died in U.S. custody, they would say less than 10. In fact it is almost 50.”

“Abu Ghraib is a window on a broad policy,” Massimino said. “With each nomination, the window opens a bit. You might get the window wide open when the Haynes nomination comes up.”

She is referring to Bush’s nomination of Pentagon general counsel William Haynes to serve as an appeals court judge. “He would have known a lot more about deaths in custody than Gonzales knew,” Massamino said.

Focus on degrading treatment
University of Texas law professor Sanford Levinson, a critic of the Bush administration, who edited a new book of essays on torture, said the debate had become badly distorted by focusing only on whether certain actions are or aren’t torture.

As its name indicates, The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment bans more than torture.

In 1994 the Senate ratified this treaty, with certain reservations, narrowing its definition of torture. It was those limitations that Bybee and Yoo discussed in their memo.

Alluding to last week’s Washington Post report that female interrogators at Guantanamo had rubbed their bodies against detainees and made lewd remarks to provoke them, Levinson said, “It is a stretch to call it ‘torture’ but not a stretch at all to call it degrading.”

Levinson also says, “It is far too easy (and tempting) for critics of the OLC memo(s) to focus on John Yoo or Jay Bybee … rather, say, than on Senate Democrats who voted to support the relevant ‘reservation’ to the United Nations convention that has helped to cause so much consequent mischief.”

But he notes that Democratic senators probably agreed to the reservations due to a need to compromise with then-Sen. Jesse Helms, R-N.C.

Levinson is dismayed that the 2004 campaign was not the occasion for a thorough political debate on the treatment of detainees. Legal scholars, politicians and citizens, he said, need to deal not so much with the extreme scenarios such as the one Schumer cited, but cases that descend "into the muck" of specific interrogations.

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