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So Torture Is Legal?

By Anne Applebaum, The Washington Post, 17 June, 2004

To understand the magnitude of what may have gone on in America's secret prisons, you don't need special security clearance or inside information. Anyone who wants to connect the dots can do it. To see what I mean, review the content of a few items now easily found on the Internet.

Item 1: The "torture memo." Written in August 2002 by the Justice Department's Office of Legal Counsel, at the request of the CIA and then the White House, this memo argues that it "may be justified" to torture al Qaeda suspects. The memo, posted last weekend on The Post's Web site, also speculates that international law, which categorically prohibits torture, "may be unconstitutional."

Item 2: The "Rumsfeld memo." This document, unearthed by the Wall Street Journal, was written in March 2003 by a Pentagon working group. It declared not only that the American president has the power to evade international law and torture foreign prisoners but that interrogators who follow the president's commands can, in addition, be held immune from prosecution.

Item 3: The Abu Ghraib photographs. Remember what they show: not just torture but guards who appear absolutely certain of their legal and moral right to torture, as well as a large number of unidentified personnel, standing around and watching.

Item 4: The "dog testimony." Two Army dog handlers assigned to Abu Ghraib have submitted sworn statements, again obtained by The Post, asserting that military intelligence officers told them to use dogs to frighten prisoners. The Army had said that any use of dogs in interrogations would have needed approval from the U.S. military commander in Iraq.

As I say, connect the dots: They lead from the White House to the Pentagon to Abu Ghraib, and from Abu Ghraib back to military intelligence and thus to the Pentagon and the White House. They don't, it is true, make a complete picture. They don't actually reveal whether direct White House and Pentagon orders set off a chain of events leading to the abuses at Abu Ghraib, prisoner deaths in Afghanistan or other uses of torture we haven't learned about yet.

But who will fill in the blanks? Here is the tragedy: Despite the easy availability of evidence, almost nobody has an interest in pushing the investigation as far as it should go.

Clearly the administration will not ever, of its own volition, tell us what the White House knew and when the White House knew it: There's an election coming up. As if to underline this point, the president ducked and dodged last week when asked at a news conference about torture, declaring that "the instructions went out to our people to adhere to the law." But which law? The Geneva Conventions? Or the law as defined by secret memos?

Unfortunately, Congress has no real motive to find the answer either. After a bit of obligatory spluttering, the House has gone silent. On Monday some Democrats on the House Armed Services Committee tried to call on the Defense Department to hand over documents related to Abu Ghraib. The Republican leadership quashed the move. Meanwhile, Sen. John Warner's Armed Services Committee, conducting the only active investigation on Capitol Hill, is moving at a leisurely pace. With only a few working days left before the summer recess, it's hard to see how there will be much in the way of a comprehensive report ready before the elections.

The military is conducting its own inquiries, of course. But without political support, the military alone will be unable to push further, to uncover who, exactly, gave the military its orders, and which political decisions created the conditions that made abuse possible. The press is hard at work too, at least that part of it that is not supporting the idea that the Constitution somehow permits torture, and always has. But articles, television reports and blogs are useful only insofar as they move the public.

For in the end, it is public opinion that matters, and it is on public opinion that the fate of any further investigations now depends. Voters have some items of information available to them, as listed above. Voters -- ultimately the most important source of pressure on democratic politicians -- can petition their congressmen, their senators and their president for more. If they don't, the elections will be held, the subject will change. Without a real national debate, without congressional approval, without much discussion of what torture actually means and why it has so long been illegal at home and abroad, a few secret committees will have changed the character of this country.

Indeed, if the voters can't move the politicians, and the politicians aren't courageous enough to act alone, we may wake up one morning and discover that torture has always been legal after all. Edmund Burke, a conservative philosopher, wrote, "All that is necessary for the triumph of evil is that good men do nothing." It looks as if he was right.