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Mark Danner Speaking at the 2009 Wellfleet Meetings



The 2009 Wellfleet Meetings

Mark Danner

Introduced by Robert Jay Lifton

Obama and Us: Why We Seem Unable to 

Escape Bush's 'State of Exception'

October 24, 2009

RJL: We're about ready to start.  You can see that the power of our meeting has held back the storm, but our power is not infinite, and there could be some rain later today.  We'll see.  Our schedule is pretty much as I described it yesterday.  There might be some juggling of the order this afternoon to keep with schedules, but it will be the same three presenters.  

And this morning Mark will make the presentation and I'll make a comment, and then after the coffee break Jim Carroll and Roberto Toscano will present, and then the afternoon — and we'll decide when to reassemble, partly depending on if the weather permits a walk, we'll see — and the three presenters and commentators will be Jim Gilligan, BJ and Peter Brooks, and Sunday morning, tomorrow, Larry Friedman, Jim Scully and Norman Birnbaum.  

And we won't break as late later this afternoon because we also have an evening panel, as you know, which will consist of Mark Danner and Roberto Toscano.  Are there any questions procedurally, or about our plans and agenda before we begin?  Okay, I'll turn things over to Mark.

MD: Thank you.  Thank you, Robert.  First of all just a word to say how happy I am to be here.  I think it's safe to say I can't think of anyone whose work has meant more to me over a longer period than Robert J. Lifton's, and it was an enormous thrill to be invited to come here and speak, so I thank him and BJ for their hospitality.  I'm only sorry my subject this morning is so grim and so early in the day.  

Robert told me last night that in a few decades of experience talking about grim things, from Hiroshima to Nazi doctors to apocalypse, Aum Shinrikyo, terrorism, etc., I think you said you often promise that you'll come back next time and talk about sexual pleasure and ecstasy the next time around.  [Laughter.]  I don't know if I can really, in good faith, make that promise, but — [laughs] — but I like the idea.  

I'm talking today about — or the title, in any event, under the general heading of The American Mind, is Obama, Torture and Us: Why we Seem Unable to Escape Bush's 'State of Exception.'  I'm going to try to organize my remarks around those several points, from Bush's state of exception, to torture, to Obama, and last of all, I hope, to us.  And I'm going to start just with something not in the title, which is the idea of stripping bare, which is — I happen to be in the middle of a book tour, blathering about this new book Stripping Bare the Body: Politics, Violence, War.  And it really puts in a kind of context, I think, the phenomenon of torture and where we are now.  

The title Stripping Bare the Body comes from a line from a former Haitian president, a man named Leslie F. Manigat, a well-known intellectual in Haiti who briefly came to power in an élection bidon, a tin can election, a fake election, after the fall of Duvalier.  He was overthrown about five months later in a military coup, which gives him a fair amount of longevity compared to other Haitian presidents.  But he remarked to me and has written elsewhere that "political violence is like stripping bare the social body, the better to place the stethoscope and track the real life beneath the skin."  

And it's the notion which this book is really premised on that in times of political upheaval, whether they're coup d'état, revolution, overthrowing a dictator, war, ethnic rivalry, ethnic conflict of various kinds, we essentially strip bare what is usually concealed beneath the surface of society, and we see what is beneath it, making it function, the underlying conflicts that are usually disguised.  And in the book, that theme is followed through Haiti in the period of the late Cold War after the fall of Duvalier, then to the Balkan Wars and the televised genocide of the early and mid '90s, and finally to the war on terror and the Iraq war, when the United States essentially reimposed an ideological frame that had been lost with the end of the Cold War, terrorists became essentially the new communists, and we restored to ourselves a kind of evangelical foreign policy, imperialistic, aggressive, unilateral, in which one of the desires was to spread political change, at least through part of the Middle East.

A key part of this part of stripping bare, at least in my conception, is that what we have done in the last eight years is stripped bare our own social body.  And when we look at the issue of torture in particular, and Bush's  state of exception in general, we see a lot about us, about our own fears, about our own preconceptions about violence and human rights, and that our failure to escape it, which is in my title, which can be summarized as the general frustration and disappointment of many, particularly in the human rights community, that many of the strictures placed on the country in the last eight years have not only not been remedied, the authors of them have not been prosecuted or investigated, but in fact a great many of them, and arguably most of them, have persisted to this day.  So that is the problem.  And our problem, I think, considering in these two days the American mind, what does it say about us that the state of exception remains overshadowing us, and how can we strip that bare?

Bush's "state of exception."  The state of exception is a phrase, of course, that I'm sure many people here know is owed to Carl Schmitt, the Weimar and Nazi era legal theorist who began his paper Political Theology in 1922 with the wonderfully great lead "sovereign is he who decides the exception."  It's a definition of sovereign power according to which the person who can suspend the legal order, who has the ability to suspend the everyday, suspend the everyday functioning of society, is the one who, at the end of the day, actually has sovereign power.  

This is not a new notion, by any means, as Schmitt pointed out.  It certainly goes back to classical times, at the very least.  The most obvious example is the Roman dictatorship, which was an important institution in the republic.  It became degraded with the late republic.  You'll remember that Julius Caesar was appointed dictator first for six months, then for ten years, and then indefinitely, which did not work out very well for him.  But you can think of the state of exception, in a funny way, as the portal through which the late republic became the empire, because his nephew Octavian, later Augustus, became the permanent presider over the state of exception and the republic went away, except in name itself.

We know this concept much more commonly through the idea of, in the English traditional, martial law; French tradition, state of emergency.  It's in the American Constitution, Article 1, Section 9, with the so-called suspension clause, that habeas corpus shall not be suspended except in times of invasion or rebellion.  I want to emphasize, just at the beginning, that Bush's state of exception is only the latest in a series that we've seen in American history, arguably beginning in 1798, with the Espionage Act of that year.  Lincoln, of course, suspended habeas corpus in April of 1861 unilaterally, later confirmed by the Congress.  Wilson also, the Espionage Act — I'm sorry, 1798 was the Sedition Act, excuse me — the Espionage Act under Wilson, the Korematsu cases during World War II, arguably some of the laws passed during the McCarthy era.  

So when we look at what Bush has done, and the particular state of exception that was defined, really, in the year and a half, two years after 9/11 and that we're still struggling with today, it's only the latest version, but it has its own particular character.  Some of those I cited before, very often they had a lot to do with limitations of freedom of speech, among other things.  This did not happen after 9/11, or at least it did not happen formally. 

What did happen was a series of laws, decrees, and many informal decisions interpreting laws within the government — and that is where we get to torture — that were laid down and formed, in fact, what might be called a kind of soft martial law.  Martial law obviously was never declared, habeas corpus was never suspended formally, although it was discussed within Ashcroft's Justice Department after 9/11.  But a series of decisions came down, some administrative, bureaucratic, others formally legal, that defined Bush's state of exception.  What are those?

One is a crackdown on illegal aliens, or what might be more broadly defined as a broadening of the definition of illegal.  People who had been in the country for years were suddenly picked up in really mass dragnets.  Most of the country was not particularly aware of this or didn't particularly care, but about 5,000 were imprisoned.  Those numbers are not hard, but it's something like that.  And often in extremely harsh conditions, for prolonged periods of time, incommunicado, no lawyers, no anything.  And another characteristic of Bush's state of exception, we began to learn about this while it was still going on, which I'll talk about in a minute, that is, disclosure accompanies the actual steps underway, but the steps underway continue.  And I'll talk about that with respect to torture.

Warrantless wiretapping is the second obvious part of the state of exception.  Again, this was not done formally.  The Bush White House essentially believed — and again, another key attribute of their state of exception — that they had the right to do this without passing laws to do it, so they circumvented FISA, the Foreign Intelligence Surveillance Act, which was passed in 1978.  They circumvented, without actually asking the Congress for power to do it.  

One of the formal parts of the state of exception is the authorization for the use of military force, AUMF, which was passed on September 14, 2001 by the Congress.  And that single law, which was usually taken, at least by the people who passed it in Congress, to refer to the attack on Afghanistan, was actually used, from time to time, informally by the Bush Administration to justify things it did without legal sanction.  Part of this has to do with their use of the state of exception to make, in effect, a statement about presidential power.  

And the person to look at when it comes to that particular subject is Dick Cheney, who — I returned to my hotel last night, or motel, and there he was making a speech on CSPAN essentially reaffirming once again that torture had been necessary to protect the country, that the things done after 9/11 were absolutely necessary to protect the country.  

And he's a fascinating figure in this regard because, in essence, not simply what he wanted to do, but of his radical ideas about governmental, and especially presidential power, and the notion not only that the president had the power to do these things, but it didn't need the Congress, which is one of the reasons we have a very misshapen legal regime right now around interrogation, torture and other things, because the vice president in particular did not recognize the right of Congress to interfere in this realm, and very often chose to take  the actions it did without any legislative approval.  

So we have what might be called a mostly informal state of exception.  When you look at the, especially for the jurisprudence, as it were, surrounding torture, for example the so-called torture memos, these are documents drafted within the Department of Justice.  They are not, generally, speaking, laws that Congress put together, although Congress belatedly did a few of these things.  

Now, one could go on about these individual attributes and talk about, for example, prolonged detention, which is another obviously very important part of it, not only in Guantanamo, Abu Ghraib, Bagram, but black site secret prisons around the world.  Probably at the height of the Bush era detention regime there were somewhere between 90,000 and 100,000 detainees.  That's including Iraq and Afghanistan.  Some of these were very high value detainees, HVDs in the Defense Department parlance, who were held mostly in the so-called black sites prisons, which were secret prisons in Afghanistan, Thailand, Morocco, Poland, Romania, Lithuania…what am I leaving out?  Probably Diego Garcia.  

There was a very large system, call it a secret gulag, if you wanted to be inflammatory, I guess.  It had its own air force flying people from place to place.  Khalid Sheikh Mohammed was picked up in Pakistan.  He was flown first to Afghanistan, later to Poland, perhaps once to Guantanamo.  Part of Guantanamo was also a secret black site prison.  So that was the detention regime.

I'm going to choose to focus after that sort of introduction on torture, because I think, for various reasons I hope to make clear, it seems to me that torture is the keystone step, I think, in Bush — or keystone attribute of Bush's state of exception, and it is the one…well, we're still trying to cope with all of these things, but I think it's the one we're having the most difficulty with, the one that recently has attracted the most attention, although one theme here that particularly affects me as a journalist is that we have a couple of narratives, most dramatically with torture, which is that we have the narrative of what happened, what happened secretly, how the torture regime was put in place, where the techniques were developed, where they were derived from, etc., but at the same time we have the narrative of revelation.  

And that second narrative began very, very early.  I gave a talk at Harvard the other day, and realized as I was speaking…I was quoting from a document that I'll quote from in a second, from the CIA.  It's a report from the CIA to the Department of Justice setting out the…  It's, "Dear Dan: A generic description of the process.  Thank you."  It's a CIA person writing to an official in the Department of Justice, Dan Levin, who was running the Office of Legal Counsel, which is the most prestigious sort of think tank part of the Justice Department.  And I was quoting from this, and it's a concise description of the protocol of interrogation or torture, whatever word we want to use — extreme interrogation techniques, EITs.  

But as I was quoting, I realized that the last time I had spoken at Harvard was during a book tour as well for the promotion of a book I wrote called Torture and Truth, which was published in October, 2004.  It was largely made up of government documents about torture.  And I realized that I had spoken at the Kennedy School at that point and was talking about these specific issues, and this document was written the following month, which is to say I was in this mode.

I think I probably came to political consciousness when watching the Watergate hearings.  That's kind of my generation.  I remember vividly sitting and watching television during August of, I guess it was 1974, and my mother shouting in the background, "Go outside!  Do something!  Stop watching television!"  And I think there was a narrative instilled in one that maybe many journalists have which is there's a sequence, and that sequence is three parts.  It goes from revelation, which is in part what journalists do — they find out secret things and reveal them to the society; to investigation, which is something the society as a common body does through its courts, through the Congress, as happened with Watergate, courts and Congress; and finally you have a third step which I would call expiation — people are tried, they're punished, the society returns to a kind of state of grace or whatever you'd like to call it, the status quo ante, for those who don't like religious metaphors.  

And another attribute, at least from my perspective as a writer and journalist, of Bush's state of exception, is that that process, that tripartite process, has been suspended after revelation, which is to say we have known, really beginning in 2002, that the U.S. government is torturing.  At the end of 2002 Barton Gellman and Dana Priest published a 5,000 word exposé in the Washington Post, front page, about stress and duress techniques.  The New York Times typically followed a couple of months later with its own five or six thousand word piece.  

After the revelation of Abu Ghraib, you'll remember the photographs, which was the first and only time torture became a televisual story, a story with images that television was interested in, in the wake of that, in April 2004, an enormous flood of documents came into the public realm.  This is an indication that this, within the government, is an extremely controversial policy, the rate of leaking.  And I published, as I mentioned, 500 pages, 400 pages of those documents in my book Torture and Truth.  They're very explicit.  They describe in very precise terms what is done, what the stress positions are.  And I'll go through a protocol of that in a second.  

But these were out in spring of 2004.  Waterboarding was discussed in the New York Times in the beginning of May 2004.  We have known the narrative not only that the U.S. government, both the military side and the intelligence side, were running fairly extensive extreme interrogation programs beginning, really, the latest you could say would be May 2004, so getting on five and a half years.  We've known the intimacies of the narrative for at least four years.  We know it now almost day-to-day.  And that isn't to say that a lot of documents don't need still to come out, but in terms of a jigsaw puzzle here, we can see the shape, we know what's in the puzzle, we know a lot of the details.  There are more interesting things to emerge, no doubt.

So part of this, when we get to "and us," the "and us" part of the title, is the recognition, first of all, that this is not a crisis, this is not a shocking thing, this is not a controversy — maybe a shocking thing, but it's not a controversy.  When we call it a crisis, when we call it a controversy, this is our way of framing it as something aberrant, and it isn't aberrant at this point, or at least this would be my argument.  It is something that we have learned to live with, as a society, because we have known about it for an extended period of time.

I am not, needless to say, the only one who has written about it extensively, and I have a bookcase in my house in California, one full wall that is simply books on torture, various aspects of it.  So there's a paradox here, of course.  When we talk about the state of exception, what happens when the state of exception becomes permanent?  The Romans discovered that.  I'm not going to go that far, but we are in a situation where this stuff has lingered.  

And the Obama — that doesn't mean Obama has done nothing, but it does mean that we, as Americans, have relinquished our chance to be shocked.  And in effect what happens now is every time a new, large document comes out, the press touts it, people like me and other people go on TV and denounce it, people get up in arms about it, and then people stop talking about it and we sort of…things go on and then we wait until the next document comes out.  So we've settled into this routine of kind of revelation of documents every once in a while.

All right, the story of how the U.S. came to torture is a journalist's and a writer's dream.  It's complicated.  It's kind of a…there is a lush undergrowth here of detail, anecdote, character that is rather priceless.  I'm going to have to give a very brief summary, just saying that there is the military track, there is the intelligence track.  

One thing that strikes me in looking at this history is that it was improvised, that though there was a great deal of knowledge within the CIA, in particular, that was gathered after the Cold War, and particularly after the Korean War, when the intelligence agencies of the U.S. government became fascinated by these American POWs who the North Koreans somehow got to go in front of cameras and give these elaborate confessions — how did they do that, what were these skills?  A lot of research was done.  

But when the time came to shape this stuff in the immediate aftermath of 9/11, it was put together in rather slapdash fashion.  Essentially a couple of flimflam artists, psychologists, psychologist/flimflam artists named Mitchell and Jessen, who had worked with the SERE program, Survival, Evasion, Resistance, Escape, which was a program originally developed to train U.S. fliers who had been downed behind enemy lines, and in which these fliers being trained, pilots, are subjected to harsh interrogation, two psychologists associated with this program were essentially called to reverse engineer it.  

And when you look at it — the most detailed account of this came from the Senate Armed Services Committee.  Jane Mayer has also written about it a lot.  It's astonishing how slapdash this was, that is, how little training these guys had.  They'd never conducted an interrogation.  They had no idea what they were doing.  Nonetheless, they put it together.  

And that background in the SERE program is very important for a couple of reasons.  One, the original SERE program was put together explicitly to ape illegal interrogation, illegal, explicitly.  It was supposed to look like what the North Koreans would do to you if you were imprisoned, or the Red Chinese, as they were then called, and as the documents call them.  So this program was adapted to a program that was then argued, by the administration, was legal, which gives you an Alice in Wonderland look at things.  

The techniques designed to be illegal were then handed to the lawyers, the lawyers made these arguments essentially saying, "Oh, wow, these are legal."  These conform to the Convention Against Torture, for example, the 1984 international treaty that forbids torture and all of the domestic undertakings that followed from it.  The lawyers basically spent a lot of time arguing why waterboarding was legal and these other techniques were legal, but they originally came from a regime that was specifically designed to be illegal.

This was put together…well, I think what I'll do is refer a little bit to this aforementioned document.  This is a little memo that was written, as I say, after most of the big flood of revelation after Abu Ghraib.  December, 2004, "Dan, a generic description of the process.  Thank you."  I think on another page it says, "If you have any trouble over the weekend, call me."  So this is somebody in the CIA who's the head of the OLC.  The Office of Legal Counsel is the body within the Justice Department.  It's a very elite group, great for your resume if you're a lawyer to get in the Office of Legal Counsel.  It interprets the laws for the government, essentially.  

So this guy is the successor of Jay Bybee, who is now a federal judge, whose name is on the first torture documents, the ones you've heard about a lot which say nothing is torture unless it causes pain equivalent to major organ failure or death, remember that quote?  That was under the heading of Jay Bybee, now a judge, lifetime appointment on the 9th Circuit in San Francisco — or actually, he's in Las Vegas, I guess.  But it was written by John Yoo, now my colleague at Berkeley, on the Berkeley faculty.  Dan Levin replaced these guys, supposedly was reforming this stuff.  

And you can see that at some point…it's interesting that this is dated at a time when Alberto Gonzales, whose name is also on a lot of these documents, including the decision not to observe the Geneva Convention, the military order that lets the president basically imprison who he wants, he was up to become Attorney General of the United States at this time, and they were putting together a new set of documents so he would not be embarrassed.

So this is a very sort of explicit document that divides the protocol of interrogation into conditioning techniques.  

"The HVD" — that's High Value Detainee — "is typically reduced to a baseline dependent state using the three interrogation techniques discussed below in combination.  Establishing this baseline state is important to demonstrate to the HVD that he has no control over basic human needs.  The baseline state also creates in the detainee a mindset in which he learns to perceive and value his personal welfare, comfort and immediate needs more than the information he is protecting."  

It's a beautiful way to put it.  I have to control myself because I tend to lose…the prose here I think is really kind of priceless, and I have to control myself how much I quote from it.

"It is the cumulative effect of these techniques used over time and in combination with other interrogation techniques and intelligent exploitation methods which achieve interrogation objectives."  

The conditioning techniques are described as nudity.  "The HVD's clothes are taken and he remains nude until the interrogators provide clothes."  This went on very often for six, eight weeks, several months at a time.  Sleep deprivation.  "The HVD is placed in the vertical shackling position."  That is, he's standing nude, usually a hood over the head, wrists shackled to the ceiling, feet shackled to the floor, and kept in usually an extremely cold room, and occasionally doused with very cold water.  Khalid Sheikh Mohammed was kept in this position probably for about three weeks.  I'm talking about straight, in other words, no pausing for anything, sleep, nothing.

Dietary manipulation.  "The HVD is fed Ensure Plus or other food at regular intervals.  He receives a target of 1,500 calories per day."  One of the interesting things about these documents is how they try to get these numbers.  You have numbers of decibels that noise can rise to and music can rise to, you have amount of calories, heart rates, when it comes to waterboarding.  Very, very specific.  It's kind of a religion within the documents itself.  Anyway, conditioning techniques, corrective techniques, insult slap, abdominal slap, facial hold and attention grasp.  And then finally the coercive techniques, which include walling, water dousing, which is separate from waterboarding, stress positions, wall standing, cramped confinement.  

Well, let me…again, something that I find very interesting.  Oh, it's 79 decibels that white noise was not supposed to go beyond.  What I found interesting in sort of five years of writing about this stuff is that when you look at the different…  People sometimes ask me, my mother last, quite recently, about evil.  It's a subject that our host has been interested in for many years.  And I kind of hate that idea because I've met a lot of people and interviewed people who have been responsible for mass killing and various other things, and you're always disappointed.  You want some kind of grandeur of affect.  You want something that will explain how somebody can kill all these people or torture people or whatever.  It's just a disappointing thing.  You don't find it.  

But I think, at the end of the day, in these documents, I have found an answer, to some degree, to that question, which is failure of empathy, absolute failure of empathy.  And it seems to me that you see it very strongly in these documents.  And it's not…I want to emphasize I don't think it's limited to a handful of people.  I think it's actually an absolutely common phenomenon.  And one of the things you find — and I debated John Yoo a few years ago, and the remarkable thing, I read some things, depositions of people who had been tortured, and he got up afterwards and said, clearly very angry, and said — and I had, in reading them, said this is sleep deprivation, this is stress technique, I'd identified each of the things and where they came from.  

And he got up and said, "Well, that was a cheap rhetorical trick.  Those things are plainly illegal."  And he was absolutely serious.  And I realized he simply couldn't understand how what he had written could be legitimately translated into those things.  They just didn't…you know, he had written the stuff.  It was very ordered, it was very obvious what he would do, and this stuff, this isn't the same thing.  And it was remarkable because he's an extremely intelligent man, and yet he basically didn't see it.

Let me just, speaking about empathy, which I think is an important point here, let's talk at least a bit about how this is perceived for the person who is being subjected to it, and then we'll talk a little bit about Obama, and then I will finish.  These quotes are from the so-called Red Cross Report, which was a report done after the Red Cross finally got to interview High Value Detainees.  

This was following a speech of Bush's in September 2006, September 6th, it was.  Does anybody remember this speech?  It's from the White House.  I happen to believe it's the only speech of Bush's that will live in history, with the possible exception of the one after 9/11, because it is his speech about torture.  He talks about Abu Zubaydah, he talks about these special techniques.  It's very explicit and no one noticed it.  I happened to be neurotically in my house with CSPAN on with no volume, and there he was, and I happened to watch it.  But I've never met anyone who actually saw it.  And it was a remarkable speech that talked specifically about Abu Zubaydah.  

And after that speech he transferred 14 of the main High Value Detainees to Guantanamo, where they were finally interviewed by the International Committee of the Red Cross, whose job it is to interview prisoners of war, and they produced a report.  These reports are secret.  They are made not for public consumption, but to go to the relevant agencies of government who are responsible for keeping the detainees, so the report was sent directly to the CIA.  The CIA, of course, never answered or did anything, and eventually this "came into my hands," as someone put it, came into my hands, and I published it.  

And it's remarkable because it basically has the detainees' version of what you just heard.  I'm going to read a little from Abu Zubaydah.  He was the first of the big fish who was captured in May, 2002.  He was shot.  It was Faisalabad.  They sort of did a raid.  He tried to jump off a roof.  They shot him three times — stomach, groin and leg.  He lost a lot of blood.  The CIA flew over a surgeon from Johns Hopkins, just saved his life, and this account begins when he wakes up from his coma.  He doesn't know where he was

"I woke up naked, strapped to a bed in a very white room.  The room measured approximately four meters by four meters.  The room had three solid walls with a fourth wall consisting of metal bars separating it from a larger room.  I'm not sure how long I remained in the bed.  After some time, I think it was several days, but can't remember exactly, I was transferred to a chair, where I was kept shackled by the hands and feet for what I think was the next two to three weeks."

This is the first and only instance of stress position in a sitting position.  After that they shackled him to the ceiling.

"During this time I developed blisters on the underside of my legs due to the constant sitting.  I was only allowed to get up from the chair to go to the toilet, which consisted of a bucket.  Water for cleaning myself was provided in a plastic bottle.  I was given no solid food during the first two to three weeks while sitting on the chair.  I was only given Ensure and water to drink.  At first the Ensure made me vomit, but this became less with time.  The cell and room were air conditioned and were very cold.  Very loud, shouting type music was constantly playing.  It kept repeating about every 15 minutes, 24 hours a day.  Sometimes the music stopped and was replaced by a loud hissing or crackling noise."

This is use of noise to induce stress, as it's called in the documents.  Never more than 79 decibels it's supposed to be.

"The guards were American, but wore masks to conceal their facers.  My interrogators did not wear masks.  During this first two to three week period I was questioned for about one to two hours each day.  American interrogators would come to the room and speak to me through the bars of the cell.  During the questioning the music was switched off, but was then put on again afterwards.  I could not sleep at all for the first two to three weeks.  If I started to fall asleep, one of the guards would come and spray water in my face."

Anybody who's ever — I mean, I'm sure everybody here has spent an all-nighter.  Has anybody ever spent two nights successively without sleeping?  You know the sort of personality dislocation that comes about quite quickly, particularly when it comes to time.  So we're talking about, he's estimating, several weeks.  It's probably two weeks.  But no sleep at all.  A lot of pouring on of cold water.  And also he's naked and the room is kept at a temperature calculated to keep him just short of hypothermia.  That is, they're watching him very closely to make sure he doesn't turn blue.  

And there's stuff in the documents where they're saying, "He's going to turn blue.  We have to turn it up a click," etc., but they're keeping very close watch.  But it's probably in the high 40s or so.  He's naked, sitting there, they keep pouring cold water on him and keep playing this endless music.  The light is continued very bright, white light, so no day, no night, just a kind of constant present.  And the only break in this routine is periodic interrogation.

Male: No messages.  No messages.  [Laughter.]

Male: That's too weird.

MD: Abu Zubaydah, where are you?  

Male: Is that torture, or is it something else?

Male: There's a dog stepping on the machine.

MD: The dog was very tired of this whole idea.  Let me read a couple of more excerpts, just to give you an idea of what this stuff is.  Again, one of the fascinating things here is that if you look at a lot of the documents, you can get these different views.  You can get the detainee's view of it, you can get the CIA's view of it, which is set out in the document I quoted, and many others as well, what exactly they thought they were doing.  And finally, you can get the lawyer's view of it, because the connection between the lawyers and the intel people and the defense people, who I haven't talked about, is absolutely critical, and it remains critical today when it comes to how the administration is trying to deal with this.  So let me read just a little bit more of what happened to this guy, the first big fish.  This is just an excerpt from later in his account.

"Two black wooden boxes were brought" — this is called forced confinement in the documents, the CIA, that is — "two black wooden boxes were brought into the room outside my cell."  Remember he's got a three-sided cell with bars in the front.  "One was tall, slightly higher than me, and narrow, measuring perhaps an area three-and-a-half feet by two-and-a-half feet by six-and-a-half feet high," so it's kind of coffin-like in shape, very small and narrow, and six-and-a-half feet tall.  "The other was shorter, perhaps only three-and-a-half feet in height.  I was taken out of my cell.  One of the interrogators wrapped a towel around my neck.  They then used it to swing me around and smash me repeatedly against the hard walls of the room.  I was also repeatedly slapped in the face."  

This is walling, walling in the documents, and it's thought to be, by the CIA, a particularly effective technique.  You see an evolution also.  At the beginning they use a towel around the neck and they eventually develop a leather collar that seems to have been made specifically for the purpose, to keep him from breaking his neck, obviously.  

"I was then put into the tall black box for what I think was about one-and-a-half to two hours.  The box was totally black on the inside as well as the outside.  They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply.  It was difficult to breathe.  When I was let out of the box, I saw that one of the walls of the room had been covered with plywood sheeting.  From now on it was against this wall that I was then smashed with the towel around my neck.  I think that the plywood was put there to provide some absorption of the impact of my body.  The interrogators realized that smashing me against the hard wall would probably quickly result in physical injury."

This is, of course, one of the key problems, and this is not just the CIA, but people who interrogate or torture in this way, through the ages, the key is always how do you inflict sufficient pain without inflicting injury that will remove this person from the realm of interrogation.  That is, one of the key things is to continue interrogating them, so how do you do it without inflicting permanent, disabling injury.  

And the other point to make about this is that there was constant communication between wherever they were — and this is probably Afghanistan, not certain, but probably Afghanistan, Bagram, probably — and Langley, Virginia, where the CIA is.  I don't have proof, but I assume that after they walled him for the first time, someone said, "You know, Jesus, we're going to break his arm" or something.  They sat down at the computer and emailed the Deputy Director, who was in charge of this, and said, "Hey, what do we do?"  And someone probably said put up some plywood, you know, do something, because there was a constant back and forth.  

As there was, by the way, a constant back and forth — George Tenet, then DCI, would go over to the White House and do daily briefings on the progress of this interrogation to the Principals Committee, so Secretary of Defense, National Security Advisor, Vice President, the absolute top of the government.  So one of the problems, when we talk about escaping the state of exception, is the responsibility of it was spread so wide.  Anyway, let me do one last thing here from Abu Zubaydah.  

"After the beating, I was then placed in the small box.  They placed a cloth or cover over the box to cut out all light and restrict my air supply.  As it was not high enough to sit upright, I had to crouch down.  It was very difficult because of my wounds.  The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful.  I think this occurred about three months after my last operation.  It was always cold in the room, but when the cover was placed over the box, it made it hot and sweaty inside.  The wound on my leg began to open and started to bleed."  

The lawyers discussed this a little in their documents, too, the kind of effect of this on his wounds.  

"I don't know how long I remained in the small box.  I think I may have slept or maybe fainted.  I was then dragged from the small box, unable to walk properly, and placed on what looked like a hospital bed, and strapped down very tightly with belts."  Were strapped across the chest, across the hips, at the ankles and at the wrists with leather straps.  "A black cloth was then placed over my face and the interrogators used a mineral water bottle" — this usually came out of the refrigerator, the water was cold — "to pour water on the cloth so that I could not breathe.  After a few minutes the cloth was removed and the bed was rotated into an upright position," so it was up to vertical.  

"The pressure of the straps on my wounds was very painful.  I vomited.  The bed was then again lowered to a horizontal position and the same torture carried out again with a black cloth over my face and water poured on from a bottle.  On this occasion my head was in a more backward, downwards position, and the water was poured on for a longer time.  I struggled against the straps, trying to breathe, but it was hopeless.  I thought I was going to die.  I lost control of my urine.  Since then I still lose control of my urine when under stress."  

Now, this is the famous waterboarding.  There are a lot of different versions of it.  The French used it extensively in Algeria.  They would strap somebody to a bench, lift the bench up, the head would go usually into a bucket of water, sometimes dirty water, sometimes soapy water, sometimes urine, so the water went down through the nostrils.  This is a different sort of variation, but there's a use of the hospital gurney to tilt someone's head back, which is the critical part of this.

"I was then placed again in the tall box.  While I was inside the box, loud music was played again, and someone kept banging repeatedly on the box from the outside.  I tried to sit down on the floor, but because of the small space, the bucket with urine tipped over and spilled all over me.  I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with a plywood covering and repeatedly slapped in the face by the same two interrogators as before.  I was then made to sit on the floor with a black hood over my head until the next session of torture began.  The room was always kept very cold.  This went on for approximately one week."  

"During this time the whole procedure was repeated five times.  On each occasion apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between.  On one occasion the suffocation was repeated three times.  I vomited each time.  I was put in the vertical position between the suffocations."  Da-da-da.  "I was not given any solid food," which is, again, something to make sure that you don't lose one of these subjects, because vomiting could cause suffocation and choking.  "I collapsed and lost consciousness on several occasions.  Eventually the torture was stopped by the intervention of the doctor."  

Doctors loom in and out of here.  You see an increasing concern for medical supervision as this stuff, as you get to the later prisoners.  Khalid Sheikh Mohammed had an oximeter, I believe it's called, placed on his finger to try to keep a record of vital signs while they were doing this.  I mean, the interesting thing is he seems to…we know that he was waterboarded 83 times, Khalid Sheikh Mohammed 183.  

And one of the issues here, in an early stage of revelation about this, we were told by a former interrogator, among others, John Kiriakou, whose interview I rely on quite a bit, that this stuff is so effective, it's amazing, they talk right away.  And people who advocated this stuff would very often use that and say, well, you know, actually it's not very brutal at all, you just had to do it once, boom, they talk, wow.  

In fact, that seems, we know now with certainty that that isn't true.  These things were done extensively, over a very long period of time, and there were major disagreements, which is another sub-theme here, between interrogators about what needed to be done.  The flimflam guys, the shrinks — or actually, they were psychologists — were almost uniformly harsh.  They always believed things were being retained, and the interrogators on the ground very often said, "Look, that's it.  We're not going to get anything more out of him."  And there was a lot of pushing, particularly from these so-called experts, to do more.  

Meanwhile, you had people on the FBI side who argued extensively within the government and now outside it — one man, Ali Soufan, has been quoted off the record for years by me and various other people, and now has gone public, who had been the first interrogator of Abu Zubaydah, had used basic FBI techniques, no physical coercion of any kind, and claims that he got the most information from him, got the most results with those non-coercive techniques.

Okay, let me talk a bit about…it's almost…okay, I think I have about ten more minutes.  One could go on about the mechanics of this stuff for a very long time.  Let me just emphasize one more time that we've really known in fair detail about this stuff for on the order of five years.  I mean, the particular CIA protocol really came out last spring, with the Red Cross report, but various reports, ABC News and others, go back to 2005.  We've known about it for a long time.  The question is why can't — as my title suggests — why do we seem unable to escape the state of exception.  

There are many people in human rights groups and others who have worked on these issues for a long time who are extremely angry at Barack Obama, who believe that during the campaign he gave a very clear sign that all this stuff was not only going to be ended, but you were going to have a renunciation of it, and in some way, a correction.  And of course you can argue what that correction should be, whether there should be prosecutions, or in some way to go back on this stuff.  

And in fact I tend to think that the record is much more complicated with Obama, but it is true that it is distinctly mixed.  President Obama, in his second full day in office, issued several executive orders that stopped this, first; second, closed the black sites; third, declared the Guantanamo would be closed within a year, which is a deadline that they will now miss, they will not be able to make that; and set up a series of task forces on these various issues that have yet to report.  

In the time since, a number of interesting contradictory events have happened.  The new Attorney General, in his confirmation hearings, was asked very directly whether waterboarding was torture, as, by the way, Michael Mukasey, his predecessor, the last Bush AG was asked.  Mr. Mukasey would not answer.  Eric Holder, in a refreshing and almost unbelievable turn of events, actually said yeah, it's torture.  It was kind of shocking.  But he did explicitly say it.

The second thing that happened, after the Red Cross report came out, there was an enormous fight within the government whether or not to release the so-called torture memos, which have just come out, I'm very glad to say, in a little book.  These are the latest in a series of memos from within the Department of Justice which show yet another description of the things that we have just been talking about.  And I'm going to just read a couple of sentences from one.  This is the analysis of waterboarding, of which we just heard a description.

Male: From when is this?

MD: This is August 1, 2002, which are the first and most notorious set of memos.  There are later descriptions which I actually think are worse, but are longer.  The whole subject of these documents is a really interesting one, how the lawyers describe things.  Anyway, let me just read this very quickly.

"As we understand it, when the waterboard is used, the subject's body responds as if the subject were drowning."  Now, important to remember, this is August 1st.  This is being written while he's being waterboarded, basically, because he's being waterboarded over the late spring and early summer of 2002.  And we think that the lawyers gave them some kind of verbal approval and then wrote the memos afterwards.  

"The subject's body responds as if the subject were drowning, even though the subject may be well aware that he is, in fact, not drowning."  You see the influence of the SERE program here, which is that you have soldiers who know that however horrible this is, they're not going to die.  One could argue, and I certainly would, that the situation with detainees is rather different.  They don't know where they are.  It's not comparable.  

"You have informed us that this procedure does not inflict actual physical harm."  That "you," by the way, is the CIA.  "Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain."  Absolutely crucial, because the convention against torture defines torture as severe physical suffering, among other things.  "As we explained in Section bla-bla-bla, pain and suffering, as used in Section 2340, is best understood as a single concept" — pain and suffering is, again, part of the law — "not distinct concepts of pain as distinguished from suffering."  

Again, a reference.  "The waterboard, which inflicts no pain or actual harm whatsoever" — note these phrases and remember the description, okay — "the waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view, inflict 'severe pain or suffering.'  Even if one were to parse the statute more finely to attempt to treat 'suffering' as a distinct concept, the waterboard could not be said to inflict severe suffering.  The waterboard is simply a controlled, acute episode, lacking the connotation of a protracted period of time generally given to suffering."  [Muttering, laughter.]  

You know, I've read that before.  I read it at Harvard the other day.  People always, "Argh!  I can't believe that!"  But these documents really are a lesson in what lawyers can do.  And the interesting thing here is…you know, I did another discussion at Harvard, a smaller one in which I was — I didn't read that, but I was talking about whether or not this administration should look back at these memos and in some way renounce them, whether or not you're going to prosecute anybody.  

And someone, I think he was a Harvard law guy, basically said, "Well, there's another name for what you're describing: rule of law," you know, it's like precedent.  And I wanted to say, you know, you could have said that in '45 about the Nuremburg laws.  I mean, the question has to do with more than the formal authority of a legal regime.  It has to do with whether these lawyers were actually doing what they are supposed to do within the government, which is take a professional, honest view of what the law says and what the proposed activity is in relation to the law.  

And there's an enormous amount of evidence that that is not at all what's going on here.  I mean, it's hard to make assumptions about intention, and usually confusing to do that, but I think just on the evidence of what you read and see, it is extremely hard.  And now we know a lot of the documents that they base these rulings on, it is very hard to see this as a dispassionate consideration of what this activity means in relation to the statutes that they're judging. 

After an enormous fight within the government — some of you may have seen the piece the other day about Greg Craig, the president's counsel.  This was run prominently in the New York Times.  He's on his way out.  It was a terrible piece, actually, completely about rumors.  But that's one of, in my opinion, that's one of the consequences of that fight last spring.  That is, Greg Craig pushed very hard for these memos to be published, or released.  The CIA fought equally hard not to.  It became very bloody within the bureaucracy.  Craig's forces eventually won, but they took on board a lot of damage, and people are trying to force him out.  

I think that fight, and also, extremely important, the efforts by the former Vice President, which began a week after the inauguration of Obama, to, in a very high profile way, defend extreme interrogation and put the notion of extreme interrogation and torture in this broader picture of the Bush Administration that "kept us safe" and defined these techniques as absolutely necessary to keeping the country safe, that effort, which is a fascinating effort, and which is continuing, I think both things, the fight within the administration over the documents, the fight outside the administration led by Vice President Cheney, which the Republicans originally were not thrilled about at all.  

They didn't want him as their spokesman, but they have come around to the power of the national security argument, and this is where we get to "us," the power of fear, the power of that narrative that we are vulnerable, and the comfort, because in some way, apparently, it is a comfort for people to think that the government or someone in the government is willing to use untrammeled power to keep them safe, this kind of very basic notion that you see in "Dirty Harry," in "24," more obviously.  In a different way "Dirty Harry" is against the government, "24" brings it in the government.  

But this idea that the Democrats could leave us vulnerable, the Republicans are strong and will continue to be strong, that continues to be, I think, a frightening and threatening narrative for the administration in place, and I think it has led them to realize, I think would be the way to put it, that the underestimated the difficulties with all of these issues. 

And I think there's been a…well, I don't just think, I know that there's been a reevaluation within the administration on the political costs associated with these things, and one should add, by the way, Guantanamo, where the Democratic Congress would not give them the money to close it, one of the very large screw-ups in the first months of the Obama Administration, where they realized how easily these issues could be demagogued.  And that's my word.  Others would say that Americans don't want to coddle terrorists.  But they were reversed in a very public way on the Guantanamo issue.  

So where are we now?  Eric Holder, who had said that waterboarding is illegal, and waterboarding is torture, said it explicitly in his confirmation hearings, has come up with a decision — it's rather complicated in its genesis, but the short version is this.  There's a report by the Inspector General of the CIA that was produced in 2004 that essentially was an examination of this program.  It was done about the same time as this document and about the same time as I was running around talking about torture, me and other people, which looked at things that went beyond what was permitted.  

That is, waterboarding was permitted, extensive sleep deprivation, various kinds of physical brutality, punching, beating, a lot of different things, confinement, confinement with insects, various other things were explicitly permitted in these documents, and we've talked only about some of them.  Immersion in cold water as opposed to waterboarding, other things as well — dousing with cold water.  But this Inspector General report, among other things, pointed out that the interrogators had gone beyond what was explicitly permitted.  

There are several things that it cited specifically.  I'll just mention a couple.  One is detainees in cell naked with a hood chained to the ceiling, and an interrogator came into the room with a power drill.  And a power drill, this is used — Saddam's regime used this a lot, but in the Middle East it's kind of a favorite thing.  You drill into somebody's head, you drill into their arm.  It's not pleasant.  They're still doing it in Iraq, actually.  You find bodies with their elbows drilled or their kneecaps drilled.  

Anyway, someone came in next to the hood, went rrr-rrr-rrr with the drill.  Didn't do anything with the drill, rrr-rrr-rrr.  Second, same thing, came in to the hooded detainee, took a semiautomatic pistol, hand gun, and racked it next to his head, threatened, put the gun to his head.  Subsequently they had a guard or an interrogator playing a corpse in the next cell as if they had fired a gun, pretended that this guy had been shot.  They threatened to kill the children of Khalid Sheikh Mohammed in particular.  They threatened to rape his mother.  

What else?  Oh, waterboarding.  The Inspector General also points out that it is used much more extensively than had originally been described in the legal documents.  So those are the things that went beyond, in sort of rough order.  What Eric Holder has decided, which has made him unpopular with just about everybody, is that those interrogators who adhered to what was permitted "legally" — I put that in quotes — by the Bush Administration lawyers will not be in legal jeopardy, and nor will those who wrote those documents or those who developed the policies, needless to say, but interrogators who went beyond that could be, or at least could be investigated.  

And that has been handed over to John Durham, who is an independent counsel, the U.S. Attorney out of Connecticut, Hartford, I believe.  So this has gone on.  He's also investigating the destruction of the videos of the early interrogations which were destroyed by the CIA.  So we may eventually be in the position, when we talk about "us," of possibly investigating not the people who waterboarded, but the people who maybe used a little too much water; not the people who deprived someone of sleep for three weeks in a freezing room, but the person who walked up and rrr-rrr, ran the drill next to their head.  

It's a very odd position that the administration has found itself in, partly, I think, through a kind of ad hoc kind of reasoning, and in essence now the CIA and the right, as I saw with the Cheney speech last night, is absolutely infuriated and they're trying to make a very big issue out of this, that at the same time as we're threatened from abroad by the same forces that attacked us on 9/11, the administration is going after not the terrorists, but those who fought to keep us safe.  

It's a very powerful narrative, and it's a wonderful…you know, we can talk about this.  I want to get to questions.  But there's something very complicated about this argument that should be, I think, pointed out, and it's summarized in the phrase "the gloves came off," after 9/11, the gloves came off.  It's a very…we heard this repeatedly, Cheney, it's part of his rhetoric and it goes unspoken under a lot of his other rhetoric, that there's something sort of secretly exculpatory about that rhetoric.  

It says 9/11 was successful not because we weren't paying attention to the presidential daily briefs, you know, Al Qaeda determined to strike within the United States, not because we weren't giving terrorism a high priority, which they weren't, not because we weren't listening to the FBI special agents in Minneapolis and Phoenix who were reporting about the airline pilot training, not because of all these other things, not because we lost track of these people because the CIA didn't hand them over to the FBI — and it probably, by the way, wasn't inadvertent.  It probably happened because they were trying to recruit them.  

So there's a particular government involvement in that attack — not involvement, that's overstating it.  But the point is that there was a feeling, I think, of guilt, not to put too fine a point on it, after 9/11, and there is an exculpatory narrative here which says the reason this happened was because the gloves were on, because these things had been passed post Church Committee in the mid '70s to limit government power, to limit the CIA, to limit warantless wiretapping, as in FISA — you can tick off all of these things — and that left the country vulnerable.  Therefore, A, it wasn't our fault; B, it was the fault of the Democrats who did this; C, we're now unleashing, taking the gloves off; D, now that we're out of power, they're putting the gloves back on; therefore, if there is an attack, or the next attack, whatever you'd like to call it, this could very clearly be laid at the feet of the Obama Administration and President Obama himself.  

And this is a very, very powerful story line.  And I think it has really become inscribed as a fearful possibility in the political mind of this administration.  The Republicans have been consistently very good at playing on national security.  There are, I think, historical reasons for this and historical reasons for the Democrats' weakness on national security.  But Karl Rove, a couple months after 9/11, explicitly said to the Republican National Committee in Austin, we can work with this.  The public trusts Republicans to be strong on national security and doesn't trust Democrats.  We can win on this issue.  

And they are still playing this.  It's not playing, I mean, it's just the bitter kind of politics of national security, but it looms over the state of exception and the realization by this administration that getting out of it is going to have very, very high political costs.  And it has caused them to slow down in a lot of areas, and essentially decided, and I think the most monumental decision they've made, not to prosecute anyone, and essentially to leave in place these memos — they're no longer governing, but they're left in place, they're not renounced — in which — and this I'll end on — the final result is that torture has gone in our recent history, in our recent memory, from being an anathema, sometimes practiced, by the way, through foreign governments, I mean, it wasn't, obviously, absent from American history, but from being a legal and political anathema to being a policy choice.  Which is to say that in the wake of another attack, this stuff could be used again because it's still there.  

And we have one of our political parties, our two major parties, one of them explicitly supports torture.  The Republican Party — they call it extreme interrogation, but it is their official position that they support it.  The other major political party is ambivalent, as so often on various things.  So we have one and a half of two parties essentially supporting this, and we are living with it.  We have failed to escape it.  

And the final thing, just not to end on a note of absolute desperation — this won't get us quite to sexual ecstasy or anything — but I think we are in the middle of the story and not at the end.  I think that the decisions that have been made could well lead to unintended consequences, particularly even — and my optimistic colleagues think this — that possibly the investigation of the guy who racked the drill or racked the gun or whatever, that if anyone is, indeed, prosecuted or investigated, the natural response of the defense in such a case would be to say, wait a minute, we have to go back to the process by which all this stuff was approved.  

So there are avenues already in existence for this to lead to a larger investigation, and I believe personally that the administration — I think I understand, having talked to them and just watched them closely, why they have done what they did.  I think they've made a major mistake.  I've always supported the creation, boring as it is, of a commission not unlike the 9/11 Commission, because I believe strongly that what needs to be destroyed, first of all, is not the torturers, who can be hired on any street corner, not the lawyers, likewise — [laughter] — but torture.  

And the image in the American mind that this kind of violence…and more than this kind of violence, but the willingness, the commitment, the determination to go beyond the rule of law and do anything necessary to protect us is the single thing that will make us safe.  And I think that idea, inscribed as it is in the minds of so many Americans, which has made this, as a political issue, a very difficult one, and majorities will support this stuff if the question is asked in the right way, the only way that will be changed, I think, is if you have an authoritative investigation that will essentially say, at the end, this stuff was not a good idea and hurt the country in all kinds of ways quite beyond the legal and moral implications.  And I've supported that from the beginning.  I think they've made a major mistake in not taking that course.  I thank you for your attention.  I'd be glad to talk about anything you want.  [Applause.]

RJL: Thanks very much, Mark.  Thank you.  A really remarkable presentation.  Let me just say a couple of things about what you said and its direct relationship to what I've been preoccupied with for a long time.  What you brought out in the Nazi example of using lawyers to legitimate outrageous acts, the Nazis never destroyed the professions, they rather promoted a policy of Gleichschaltung, re-gearing of the professions, destroy opponents, assert, employ professionals who will put forward the kind of politics, and in this case, torture process that you want.  And therefore professionals, including especially lawyers, but also doctors, prominently, in the Nazis and in another way in American usage, so Gleichschaltung, a version of Gleichschaltung is what the Bush Administration was about in connection with the professions.  

In terms of SERE, my very first study was of Chinese thought reform, and I was among the Americans who studied — I talked about this last year, so I won't go into it — but the CIA was immediately fascinated with this communist device for manipulating and controlling the human mind.  It was like a mental atomic bomb which they wanted to have.  So in that sense, the reverse engineering in which the detailing of communist techniques became American policy of interrogation and torture was something they naturally came to as a Cold War manifestation.  To that extent, we're very much still living in the Cold War, at least its effects.  

And the other thing I wanted to say, and this is the most important thing in terms of your presentation, we sitting here and listening to you could feel ourselves witnessing the torture — this is the most explicit description of torture we've certainly heard in this room — witnessing the torture or being ourselves on the rack, so it's a reversal of that refusal of empathy.  It's bringing empathy in a painful way so that we have to experience what you are describing.  

And in my interviews, and I know in yours, too, when you're interviewing people about horrendous acts, there's always the need to translate their words into images so that you're there in terms of what they did.  It's hard and it's painful and there's all kinds of ramifications, but when you do it, you take on a survivor-like mentality in which you share some of the pain of the victims, and that affects you from then on in terms of your way of reporting the work and your own public, ethical policies and positions.  We heard from you that process of a scholar, a writer, a journalist becoming survivor-like in his responses and the power that that entails.

Okay, let's have questions and comments.  Start here, Larry.

Larry:  Mark, in Amnesty International, the folks who have received this, all that you've gone into, and answered it doesn't work.  And I imagine it's filtered down a lot.  A lot of people know you don't get intelligence.  You can get data in other ways, but not with the brutalizations.  So if that's the case, are we talking about kind of the politics of a process, and not the securing of any kind of intelligence?

MD: Do you want to go through several, or should I just…?

RJL: Maybe several.  There are a large number of people.  I'll call on people not in the order, but just to hear your response.  Peter Brooks, who we haven't heard from yet, go ahead next.

Peter: Mark, I think what you said early on about the lack of empathy is, of course, totally right.  But I want you to say more about that in relation to the legal profession and these memos because there is, after all…I'm thinking particularly of your colleague John Yoo and his present travails, which I don't think will result in any kind of disciplinary action, but could.  There is, after all, when you become a lawyer, an oath to support the law.  And just reading those memos, I said to myself when I first read them, anyone trained as an interpreter of poetry, for instance, could not have written these memos, because you cannot hold yourself to such a low standard of interpretation of the English language as Yoo did.  

And so there's something that comes together in the lack of empathy, professional lawyering, and the total perversion of meaning that you get in those memos.  And that's something I haven't quite grasped yet.  But there is something you could call the ethics of interpretation, and Yoo and Bybee and the others are clearly on the other side of that.  And I wish someone, certainly the dean of your law school just blathers on the subject, but someone could define the problem here in a more precise way.

MD: Okay.  [Laughs.]

RJL: Jeff.

Jeff: Two points, two quite different points.  I wonder if the Civil War is not the sort of transformative moment in American history in this.  I'm sure you know Mark Neely's work.  He wrote one book about Northern torture during the war and one on Southern, and it's sort of contradictory because if there ever was a legitimate calling forth of Article 1, Section 9, it was Lincoln's suspension of habeas corpus for an invasion or domestic rebellion.  

I mean, if the Civil War is not a domestic rebellion, it's hard to imagine one.  So it was as legitimate a use of that state of exception as we've had.  Almost every other use of it has been illegitimate.  But in that context, what emerged — and it was worse in the South than the North — but they used water torture at Fort Monroe.  It was really very extensive use of torture that emerged, in a way becomes a part of our collective consciousness, I think, and experience, that somehow has now gotten detailed and elaborated in the ways you described.

The other point, which is on the "us" side, I had, I think it was 2003 to 2004, for about six months, I had a patient who was into S&M, and she was a master of S&M.  In fact, she used to do — in New York there's a whole subculture of dungeons, and she would come to sessions — she was about six-two and she would come in black leather pants and she would do performances.  There would be hundreds of people coming to auditoriums and she would show how to be tortured.  

And so the sexualization of this torture and, you know, I think the dating is not unimportant.  It was really interesting in terms of acting out, ritualizing, making play out of what was happening in a much more dire way to the culture.  I mean, I learned — [laughs] — I was astonished at how elaborate and extensive all this is in this world of S&M.  I'm not sure what it means.

Male: We're all perplexed by the spasmodic reactions to all kinds of evil.  We're all puzzled by these things — why aren't we more responsive to Darfur, why certain disasters don't have the mazel, don't have the good fortune of getting any kind of response.  If we look at television coverage, we're shocked to see how few times Darfur is mentioned on public TV in a year when terrible things are going on.  I mean, your shattering presentation, Mark, really places the question on us.  Where has our empathy been?  And that goes back to questions of the Holocaust as well.  How do we overcome that lack of empathy?  

In regard to your conclusion, I know that you and others have written about the efficacy of torture in terms of getting accurate information, but is there anything unequivocal about that that can be added to the moral argument that would make it less of an "us and them," Democrats and Republican argument and make it stronger?

MD: Well, that's a good place to start, since you began there.  I think that the question about efficacy is a fraught one because you would like, and Amnesty would like there to be an absolute consensus on the fact that this doesn't work.  And if there were that consensus, it would simply become aberrational entirely — not just legally, morally, and politically, I think, but also as a functional activity, why are we doing this.  

The problem is that there are people who think it works, quite obviously.  I think that in my experience they are a minority, depending on how you conceive the universe of people whose opinions on the subject might be of some kind of exemplary value because they know something specific about it.  But there certainly are people who think it works, people who believe very fervently it works, and not just Dick Cheney.  

People very often say, well, you know, you get false information.  And it is the case.  I mean, those of you who remember seeing in the news in the spring of 2002, that ah, they're about to hit shopping malls.  Oh my god, they're about to hit financial institutions.  Well, where did that come from?  It came from that white room that I just described where Abu Zubaydah finally felt that he needed to say something, and he started talking about these various plans, which were fake.  But they had an almost instantaneous emergence out of this depth.  They came to the surface on your television screens.  And it was fake information.  

The more consequential — I mean, that was consequential that everyone saw it — much more consequential in terms of policy fake information from torture was the interrogation by the Egyptians of Mr. al-Libby, who told them, after extensive and very brutal torture, of the biological weapons trucks that Saddam had running around Iraq carrying these so-called mobile labs.  And that information, of course, went almost directly into the speech of the much lionized Colin Powell, then Secretary of State, who, on the fifth of February, 2003, addressed the Security Council to such devastating political effect.  And every word he said about biological weapons trucks was derived from Mr. al-Libby and was absolutely false.  

So does this prove it doesn't work?  No, it doesn't prove it doesn't work.  Does it prove you get false information sometimes?  Absolutely.  An interrogator would say, well, you often get false information.  You interrogate, you try to figure it out, you are creating a kind of mosaic in which you go back and highlight what's true, what isn't, that it's a very laborious process, and simply the fact that you get false information does not say this might not be useful.  And the fact is, as I say, that many people, it's unfortunate to say, do feel it's useful.  

The other problem here, when it comes to efficacy, is that we have now defined this…the political debate, going from just the question of efficacy to the political debate built on it has to do with…it's really built around the ticking bomb, which is sort of an intellectual fraud, but it's had immense influence, and it essentially goes like this.  Did interrogation of these people, "tough interrogation," as Cheney called it last night, result in the interruption of certain attacks, or the prevention of certain attacks, and thus save American lives?  

All sides, unfortunately, in Washington, have kind of given in to the premise of this.  Cheney, Bush and others argue that the answer to that is absolutely yes.  American lives were saved.  We got the information by doing these things, QED, we have shown that we need it.  On the other side, basically they argue, well, that's not true.  The library tower, that really wasn't an attack, this thing — you know, they disprove it.  But of course in a logical sense, if you're an intelligence person and you think this stuff gets information, it doesn't have to be valuable just to prevent an attack, it could be valuable giving you a clearer picture of Al Qaeda, which would then be used to prevent an attack.  

There's nothing that argues necessarily for the propinquity.  The propinquity part — does everybody understand what I'm saying?  That comes from outside.  That's sort of a liberal part of the, consequentialist part of the ticking bomb that lets us say, well, as long as you have a guy sitting here who knows.  I know that Robert knows that there is going to be an attack in two hours with a nuclear weapon.  He has that information and he's sitting here.  It is the only way to stop it.  So I have all the information except for that little bit in his head.  Therefore you narrow everything down so torture becomes a very specific, hygienic thing to get — I mean, there's a very liberal side of this, but it's very distorted, is what I'm trying to say, very distorted.  

I think — and I'll try to be briefer, but this is a really hard question — I think, at the end of the day, that you cannot base your argument against torture or extreme interrogation on efficacy because at the end of the day, that means that if you can get any information with it that it's fine.  And this isn't the realm of consequentialism.  Torture is wrong because it's illegal, it's immoral, it uses human beings as means, not ends, just the way terrorism does, by the way.  Kant, of course, was and would be horrified by it.  There are very good reasons to say we shouldn't do this, and also political reasons, what it did to the country politically by making us the caricature that Osama bin Laden had made of the U.S.  

When you look at the image of Lynndie England, American female standing there in combat fatigues, short hair, by the way, which is important, holding the leash that leads down to the neck of the naked Arab man lying on the floor with his face clenched in pain and humiliation, you could not embody Osama bin Laden's philosophy of humiliation of the Arab world by the United States, imperial humiliation, any better in an image.  And that image, for good reason, is everywhere in the Middle East.  So the political damage has been extreme.  But I think the case can't, at the end of the day, be based on efficacy, frankly.  I'm sorry.  I'll try to do better on the other ones.

Peter Brooks, who of course has read these things very carefully, I love the phrase ethics of — I mean, you raised a lot of questions, including about my colleague John Yoo.  I love the phrase "ethics of interpretation."  I think it's worth remembering, and you, in your work, have recalled this often, that a lot of people, not just literary critics, spend their lives interpreting, and it's a deep part of the legal system.  And the question of what is legitimate  interpretation obviously is at the heart of the law.  

I think that it's fairly obvious, when we look at what was done, when we look at the records that we have of what was done and we look at how it is described and made legal in these documents, that there is a lack of, for lack of a better word or a better term, I would call good faith.  And I think at the end of the day you get to an irreducible point.  You can call it good faith, you can call it honesty, you can call it a lot of things, but there is something irreducible about lying, and I think the lying comes out in these documents.  

The problem, of course, is that this not necessarily a provable thing.  And we're in a situation now where both sides are supporting one another — the intelligence, interrogators and policymakers on one side and the lawyers on the other.  And the interrogators say, "Hey, the lawyers said it was okay," and the lawyers point back to the interrogators and say, "Well, they gave me descriptions that clearly fit within these guidelines," and there's no room for good faith.  It's as if it's a system without oxygen.  And it's very disturbing.  

And I think one of the worst implications of what Obama has done thus far, the administration, is that they are leaving this in this kind of unstable equilibrium in which essentially whatever you do is okay as long as you have a slice of memo slathered on top of it, as long as you have the lawyer's sort of slathering of butter over these actions, they're fine.  And that can't, at the end of the day, be where we're left, I don't think.  And the person who raised this question I mentioned at Harvard, you know, "It's rule of law, what about that, precedent, the new administration can't come in and undo what was done before, we have to look forward not back," Obama's formulation.  A formulation, by the way, if we held to completely, we would never prosecute anybody. 

Male:  For anything.  [Laughter.]

MD: And what I think of, you know, I had this…I had just come back from Iraq in January of 2004 and I did this debate in New York with Christopher Hitchens, and the premise of the debate — Christopher and I had done a series beginning a couple months before the war about the war — and the premise of the debate, the organizers had said one thing about this debate, this is the fourth one you've done with Christopher, we don't want to look back, we want to look forward — let's not talk about…  

So I got up and I said thank you to the organizers, I'm so glad to be here, their premise I will hold to, but I just want to say it brings to mind this image of you're walking down the street, someone's coming in the other direction, when they come abreast of you they haul off and smack you in the face, and you're completely surprised.  You're lying on the ground, you're a bloody heap, you look up and you say, "Why did you hit me?"  And the person looks down and says, "Don't obsess about the past."  [Laughter.]  Anyway, I wish I could do more with ethics of interpretation.

Civil War, you're quite right that the closest…well, I mean, Wilson's advocates would argue for legitimacy too, I think, but if you look at the various states of exception, Lincoln suspended habeas corpus in April, 1861.  I don't think you can simply say that was legitimate.  There's a lot of debate about it.  The most obvious reason is because that appears in Article 1, which is Congress, and he did it unilaterally.  He would say Congress was not in session, which was completely true, and when Congress came back in they reaffirmed it.  But there is considerable argument about that.  

I agree there was a good deal of torture in the prison camps during the Civil War, there's no question.  One should say also there was a good deal of torture in the Philippines campaign, for example, in which water torture was used extensively.  One should say there's a counter tradition here, though, that deserves to be pointed out, I think, in which Washington at Trenton, for example, laid down lines about not torturing prisoners very early in our — I mean, before our history itself as an independent nation began.  The Lieber Code under Lincoln.  This country had led the way in rules of war.  

There was a famous case after, of course, the Philippines involvement, or at least the active combat phase, as we now call these things, in which someone was prosecuted for waterboarding.  In fact, a sheriff was prosecuted during the Reagan Administration for waterboarding, so there's a significant legal history in which these things have been investigated and declared to be illegal.  It's not as if this is…  I mean, when we talk about bad faith, there's a history to prove bad faith here.  

And to go back to your question, there are all these cases — I mean, I'm not a lawyer and I'm certainly not going to pretend to be one, but there are a lot of prominent cases here, like Youngstown, for example, of presidential power — that's the most famous — that are not cited in these memos.  Most lawyers I've talked to look at these and say they're a lot of things, but they're not legal arguments, and I think that's true.

On the S&M, all I can say is you have an interesting profession.  [Laughter.]  What can I say?  I don't know.  I think there is a degree of ritualized behavior here, there's no question about it.  There are scripts that are eventually enacted in these kinds of encounters.  The thing I would say, though — this goes way far from your question, but it goes to the issue of why I think torture is so repugnant — particularly it should be to us because there is a sense in which you could not get in a further…farther away from the notion of a private realm that is the heart of liberalism, which is the establishment — and this goes to Sherry Turkle's talk a little yesterday, I think — that at the heart of the system or the philosophy, Enlightenment philosophy for which, of course, torture was also a very important case, is pushing the government back and creating a private realm, creating a kind of dike there where the water is not going to overflow.  

And torture is the most obvious kind of penetration of that private realm.  What you're doing is taking over someone's nervous system.  You're seizing control of their nervous system and manipulating it for your own uses.  And it could not be more intrusive.  There's just nothing more intrusive than that.  So it strikes me as there's something absolutely contrary to the philosophy on which the country at least tells itself it was built. 

The comment about lack of empathy.  I don't want to go, I guess, too far on…I mean, I introduced the idea in connection with evil.  But I also think, you know, these officials…I'm struck by the lack of empathy and the fact that they really can't imagine that these are human beings, at the end of the day, or human beings like them.  And this goes a long way, you know, this is a very common phenomenon.  I don't think it's necessarily us.  We can't imagine the people who are killed by drone attacks and that they're actually people like our relatives.  

We can't imagine the Iraq war, the so-called combat phase, the first three weeks, the best count available of civilian deaths, just civilians, not military, and it's very low, because it's a hospital count, is 3,400 dead Iraqis who were killed in those three weeks.  The idea that this invasion took that many civilian lives, which of course is more than 9/11, which would be on the American population 40,000 people, is absolutely incomprehensible to Americans.  

And the West has had a long history of, when you kill them with bombs, when you kill them at a distance, when you kill them with drones, they're not really dead, this isn't really…  So I don't know what more to say about the lack of empathy.  I meant it, really, how impressed I was with the attitudes toward the devisers of this policy and its legal guardians, as much as anything.

RJL: A procedural matter now, just because, understandably, this presentation has evoked a lot of ideas and feelings, and we have our own schedule and a busy schedule after the coffee break.  What I suggest now, in kind of balancing my hats or roles as a kind of convener and now as a commentator, is that I make my own comment.  I still have listed Norman, [Deena], Peter Kuznick, Michael, Carl, and have their comments come after my comment.  And we'll back, a little bit, the coffee break, and still have time for the two presentations after the coffee break.  So if you'll bear with me, I hope you will for this sequence so that we can proceed.  I'll make my comments even briefer than I had intended.  

All I want to talk about is the possibility, not inevitability, somewhat more hopeful possibility of American resilience at this moment of intersection of the residuum of the Bush Administration and the Obama Administration struggles.  I want to start by inserting two psychological concepts that I have used in my work and argue their relevance for this situation.  And they're very simple ones, but they have to do with two concepts.  One is proteanism, or the protean self, which is seeing the self as multiple and fluid, and the second is that of survivor meaning, which I referred to before, or ultimately the possibility for survivor wisdom.  And of course that requires precisely the empathy that Mark has referred to.

When one refers to psychological concepts like this, they don't directly determine political behavior.  There are various steps.  And ultimately it's the political behavior and the policies, in terms of social issues, that determine things.  But the psychological substrate or soil can be significant for that political and social behavior.  

The Obama phenomenon is puzzling to progressives like ourselves — I think it's fair to speak of most in this room as that — because he, on the one hand, seemed to hold so much hope for us, and we feel connected to him and to the phenomenon he may represent, and on the other hand, we feel extreme disappointments, some of which were suggested by Mark, in terms of his policies, certainly about torture, and ways of surviving the Bush Administration, and also about economics and other issues.

My argument is that by looking at proteanism and looking at survivor meaning and survivor missions we may understand his behavior a little better and perhaps our own ambivalence a little better.  The relevance of proteanism for this, because protean self has to do with endless possibility for change or transformation and for multiple images, some of them seemingly antithetical within the same self, and also for very varied kinds of people coexisting together, all those are aspects of what I call proteanism.  And in a way the inauguration moment of Obama has been mentioned several times yesterday in significance for Americans, I would again evoke that moment as a protean moment in American society of bringing together all kinds of people in relationship to the idea of change and of a new beginning, however flawed that has turned out to be.  

I came to the idea of proteanism in working with Chinese way back in the mid '50s and Japanese youth in the early '60s.  Ultimately East Asian society, as we think of it, is very stable and unchanging.  Not so.  But came back to bring it to American society and saw in my book on the protean self America as a quintessentially protean nation built on motion, the motion of the moving frontier and of waves of immigration.  But I have to modify that and see America as a tandem nation, a tandem always between proteanism and a reactive fundamentalism, the fundamentalism from the beginning.  

It didn't start with the name, which is an early 20th century idea of Christianity, the fear that with liberal Christianity one is losing the essentials or fundamentals of Christianity, but fundamentalist-like behavior, the dark side of American history, including genocidal and other egregious forms of behavior toward Native Americans and toward black Africans.  And these were often religiously sanctioned and considered a religious or a secular necessity for fundamentalist-like reasons, along with a history of evangelical movements, whether they're movements of renewal or camp meetings or whatever, all through American society.  And Jim Carroll will have something to say about it very soon, that phenomenon.  

The American fervor has brought particularly intense reactions of the fundamentalist movement.  Of course we see the danger of fundamentalism as a reaction to proteanism.  When things open up, that's terrifying to many people, and that fear, as Mark indicated, is manipulated politically, and you get fundamentalist waves.  The most extreme historical example is that Weimar to Nazism, but it's always in motion in American society.  

I had the good fortune of being very close to David Riesman when I was young, and he taught me we can see America as a backlash nation.  The fundamentalism is always so strong that he was afraid of joining any movements, even though he favored them, like the anti-nuclear movement, of which he was an early leader, the Civil Rights movement, feminist movement, because he always feared the backlash as being more harmful than whatever could be accomplished by the movement.  I didn't agree with him, and we had our conflict, but he turned out to be all too correct in terms of the backlash that we've seen.  Yet I think that the proteanism still is with us and has some possibility for us in the immediate present and the future.

In terms of the second point, that of survivor meaning and survivor wisdom, I cam to this idea particularly in working with Hiroshima survivors.  And they exemplify — many of them, not all — some of them exemplify the possibility of survivor meaning through their embrace of a commitment to telling the world about what the impact on human beings of that first atomic or nuclear weapon, they being the exemplars of that.  In my work on survivor psychology, there are lots of other things, including indelible imagery, struggles with feeling and issues of self-condemnation, but the overarching issue is that of meaning.  How can I give some significance or meaning to this otherwise unabsorbable catastrophe which I've been part of if I'm to give any significance or meaning to the rest of my life?  

So that survivor meaning issue is particularly dramatic in relation to wars, and we've seen the Bush Administration day after day embracing the traditional warrior ethos in relationship to all American war-making, especially Iraq, more recently.  We must not allow the men and women to have died in vain.  We must carry on their unfinished work, which is to intensify and expand the war.  There's always been an alternative survivor meaning and mission.  We saw it very vividly with Vietnam, we saw it with World War I very vividly, and the people I interviewed, the Vietnam veterans, felt, some of them, very close to World War I veterans for that reason.  And it is one cannot justify the suffering in this war.  The meaning of our war is its meaninglessness.  That was the central message of anti-war veterans.  

And it didn't begin in the 20th century.  You can see it in The Iliad.  It begins from the beginning of war-making.  Somebody just wrote a book now called The War That Killed Achilles, and it's a reading of The Iliad in which what I've always felt to be very strong, you hear those wails and voices of pain about the suffering and the cries that this is not worth anything the war may have accomplished.  So the alternate, anti-war meaning and mission has been there from the beginning of war-making.  

I've been interested in three great voices — one could choose many more — in response to survival of World War II — Camus, Grass and Vonnegut, different people, different men in different places, because all of them survived a death encounter in World War II.  Each of them did a great deal after that, but each wrote a great book that had to do with a transmuting of their survivor meaning.  Camus' The Rebel, which is a great critique of totalism, Vonnegut's Slaughterhouse Five, another great book, and Grass's The Tin Drum, one of the great novels of the 20th century, really.  And in these men and in the anti-war veterans, too, you see a merging of survivor meaning with proteanism.  They change and open out and become more fluid and manifest the protean possibilities at their best.  

But again, you always see, if you look at the Vietnam War, which is still very much with us in this society, you find alternative survivor meanings and missions drawn from it, so that while many of us, people around this table, were taking our meaning from the Vietnam War as avoiding wars like that, with little justification and alien counterinsurgency wars in which they must be atrocity-producing situations, as I call them, there was another group in American society, one subset of them call themselves the Vulcans, and they became George W. Bush's main advisors.  

This has been detailed by James Mann in his book The Rise of the Vulcans.  They saw the meaning and mission of the Vietnam War overcoming American weakness and projecting more American power on the world, and in that sense, for them, the Iraq war was supposedly an extension of a response to 9/11, which it had nothing to do with, but was really an expression of a survivor mission in relationship to Vietnam.  Yet it's also true that the survivor meaning of Vietnam is still reverberating and is being invoked more and more in connection with Afghanistan.  

It's sad that someone like Senator Kerry renounces the relationship between — that's a political statement, not really a military one.  I mean, Vietnam and Afghanistan are very different wars, but the American response is all too similar, and the American survivor residuum and survivor meaning and mission from Vietnam of an anti-war kind is playing an important part in this debate about Afghanistan.  It may not be enough, but it is very much with us.

So finally, back to Obama and the American mindset, let me just say that Obama still confuses us, as does the phenomenon that brought him into office.  He's a visionary with the soul of a mediator and a deep antipathy to confrontation.  That in itself is confusing.  He's a man with a grandiose idea of including everybody under one tent, and that is a grandiose, in a way an absurd idea.  He's a would-be agent of transformation with a conservative bent.  What could be more confusing than that?  But he is all these things.  

He's also defined in this society as an African American, but he's actually a very unusual exemplar of that definition in terms of his ethnic background.  And he himself is highly protean in his disprate elements, but also in his demonstrated capacity for multiplicity and change in terms of the ideas and subsets that he entertains.  For instance, he can be enormously progressive and clear in relation to nuclear weapons and considerably less so in relationship to what to do about the Bush Administration's torture.  

His election — it isn't just Obama — was a great protean moment in American society.  Of course many things came together, but nonetheless, it was extraordinary and meant a great deal, and we shouldn't forget that.  Yet he's had all kinds of fundamentalist responses of an ugly kind, and we see them in operation in a kind of unholy marriage of the radical, potentially violent right and the Republican right in conemning him with throwing facts to the wind.  So that's, again, the interaction of proteanism and fundamentalism right there.  

And I think Obama also struggles with very traditionalistic kinds of impulses.  He wants to be traditionalist in making a public display of family structure, and he is cautious about his own proteanism.  And his being awarded a Nobel prize, the committee was — I mean, there are many ways to interpret this.  Perhaps it's even fair to agree with the critics and say that he hasn't yet done enough to earn it.  But they put a bet or a kind of affirmation of his potential for sustaining survivor meaning and survivor wisdom from American war-making nad from the Bush Administration, and also for his protean and progressive possibilities.

So I'll close these little remarks by saying that these are still struggles over survivor meanings within Obama himself, within American society at large.  Most of us have strong opinions about it, but we have to get used to the idea that our opinions are held by many people.  That's a novelty.  And we have to see ourselves as part of this community which is trying to bring what we consider to be progressive, and therefore, in a sense, protean and certainly wise survivor meaning to what we're articulating.  Nothing is inevitable in all this, but much is possible.  

I'll close these remarks, because it seems appropriate, with a little dream I had, or an image of it, some years ago in which I was holding forth grandly on the subject of the meaning of history, and my only audience at the time was our two Standard Poodles.  We had two Standard Poodles in New York.  BJ always thought that everybody in New York should have two Standard Poodles.  But in any case, I gave my discourse to the Poodles.  They listened, but had no response.  And that was the end of the dream.  And I woke up, of course, smiling at the absurdity of my dream, but also at the absurdity of giving a single principle to the meaning of history.  But I had a sense of comfort when I woke up, and a sense of possibility.  So now we still have time, and let's…

Male: We are your Poodles.  [Laughter.]

RJL: You could do worse.  And they are pretty intelligent.  Now, we have a holdover hand, so maybe I should…my conscience tells me that I should call on them and they can remark on anything.  Norman.

Norman:  Well, first of all thanks to Mark and to Bob for venturing, each in his way, into these really dark realms, which are difficult, I think.  It's very difficult to deal with these things systematically because of their intrinsic awfulness and horror.  But I want to ask each of you to think now or speculate now or later about the question raised marvelously at the end of the Second World War by Dwight McDonald with the phrase "the responsibility of peoples," which he, in a marvelous essay in Politics.  

To what extent is, for instance, the American public acceptance of the instrumental use of torture, somewhat wider, part of the very constituent knowledge in the way of our warrior republic, a kind of incorporation of social Darwinism as a view of the world?  You can find this not alone, of course, in the United States.  Think of the beauties of the English countryside in one of those "Masterpiece Theatre" replications of a Jane Austen novel.  Over the horizon a second son is in India looting, pillaging, repressing.  

And in the Third Reich, I think Bob will…Bob and I talked about this when he made his courageous journey to Germany to find the Nazi doctors, plenty of whom were around.  In the Third Reich it's quite clear to, I think, anybody who knows the material that an enormous number of people in the country knew about the Holocaust when it was going on.  They were told about it by their sons, brothers, fathers who came back from the Eastern front.  There's no way they could not have known about it.  They did know about it, whatever their denials.  

You get these complicities which are often constitutive of the self-image and political assumptions of a national body politic.  And in that sense, the torture we've seen is not alone a horrible event, but is, in some sense, it's painful to say it, a predictable consequence of the previous strand of American and Western history.

RJL: Let's go on.  Please make your comment as brief as you can.  Okay, I have Deena.

Deena:   I work at a place that is endlessly in search for the effective counter-narrative to the ticking bomb, the torture narrative, and I sort of throw the question out, what is it?  I look at the Obama inauguration as kind of a moment of potential transitional justice put in suspended animation.  In a traditional transitional justice scenario, you have the change of regime, you have the moment where revelation, where a truth commission or a prosecution or a revelation, the opening of the files changes the consciousness of the state.  

But it's very different here because the people who were the victims are not part of the body politic.  They're the ugliest victims you can imagine.  They're not Hiroshima survivors.  They're terrorists.  Or at least some portion of them are.  Abu Zubaydah and Khalid Sheikh Mohammed are not nice people, and they wanted to kill us, and they're psychotic, some of them.  They're wackos.  They're not interesting people who we can easily identify with.  

One of the things I struggle — I'll just throw out a couple things.  One was there was a very strong moment when we thought McCain had the alternate thing.  There he was, the American hero, saying we don't torture.  Torture is not part of America.  But somehow that didn't work enough.  That hasn't been enough legislatively or culturally.  

And then secondly, is it better to have the leak of documents, the revelation of the narratives of torture, or does it, like the exposure of hundreds and hundreds of military people to the SERE training, ultimately dull us, produce acceptance, produce the feeling that, well, it's not really that bad, or it's not really that unusual?  Does more revelation help or does less?  Should we just go to prosecution?

MD: That's a big ending.

Deena:  I don't know.  These are the questions.

RJL: I can't take any more hands.  Peter Kuznick, please, and then a couple more, and then answer.

Peter: Mark, you weren't here yesterday when we did our initial go around and introduced ourselves.  I talked about this documentary film series I'm doing with Oliver Stone that's coming out soon.  It's really a ten part study on the history of American evil from World War II to the present, and the final episode, I wrote extensively about what you were talking about today, yet here when you say it, even though I wrote it myself, it's still shocking again.  On Thursday we did a big whistle-blowers even that I organized in Washington with Dan and people you would know like Ray McGovern and Coleen Rowley, the FBI of Minneapolis, and Larry Wilkerson, Colin Powell's chief of staff.  But the most interesting one, for me, was Craig Murray.  You know Craig?

MD: Of course.  Former ambassador.

Peter: Former British ambassador to Uzbekistan.  He was ambassador until he started to find out what they were doing.  Uzbekistan was the United States' principal ally in the region.  They were sending people there to be tortured in ways that go even beyond what you were talking about.  And what shocked him the most was seeing not just the reports, but the bodies, or photos of the bodies of the people who were being boiled to death.  But the things he was talking were so horrific, so he went to his superiors there, and he's like, this is outrageous.  This is illegal, it's immoral.  

And they said, well, as long as we're not doing it, we can still use the intelligence, and we shouldn't make any stink.  But then they got worried about him and they finally ushered him out because he was too much of a threat.  I know a lot of people in the United States have been leaking things and giving photographs, but who do you think are the American Craig Murrays, people in that position who were speaking out in that way and really risking their careers?

RJL: Michael.

Michael:  This question of we've learned to live with it.  I was thinking about Graham Greene's novel Our Man in Havana, where Captain Segura talks to Wormwood and talks about a torturable class, and he says Latin Americans are torturable; Scandinavians you can't torture.  You can torture Catholics, but not Protestants.  [Laughter.]  So going to a Schmittean argument, one of the things that Schmitt was writing about was kind of good and evil and that liberalism could not confront the issue of your enemy, right?  

That's its basic failure, according to Schmitt, in some ways.  And when Schmitt…what's important in politics is to define your enemy.  And it wasn't that your enemy was evil, it was that he was a stranger.  And one of the things that's great about this is they've been able to cast this stranger as an evil stranger also.  And so they've created a class that is torturable, and most Americans are quite happy with that, in a certain kind of way.  Also the media kind of supports it with "24" and other things like this.  I mean, they very much have done this.  And a lot of people believe this whole narrative that liberalism is insufficient when confronting a real enemy, and I think this is something that has to be in the counter-narrative.  How do we do this?  

And then the other issue is what Schmitt argued, that in declaring the state of exception, it was the idea that we depart from norms and we go to the decision, right?  The decision is the big thing.  It's the idea that the leader is creating this decision as a departure from norm, as a departure from the rule of law.  And it seems like unless we go back and confront that decision and all the constituent elements in that decision, we're not going to be able to do anything here, on a certain level.

RJL: Carl.

Carl: On the counter-narrative, I don't think we can often enough stress the U.S. experience in the Civil War — I'm glad Chuck mentioned it — and the fact that it's utterly unknown to 99.9% of the American people that a man named Francis Lieber, who came as a young man from Prussia, where he'd fought in the Waterloo battles and also with the Greek independence movement, and was asked by Lincoln to draft what became Federal Law 100, the first time the codification of the traditional rules of law that had gone back to feudal times.  It was a path-breaking thing.  

Lieber did allow one exception in relation to treatment of POWs and so on.  That is "military necessity," which has been exploited thereafter.  But he laid the basis for what became the Geneva Conventions and the Hague Conventions and so on, because after the Civil War, a meeting was called by, of all people, the Germans and the Russians — they met at Brussels — to, for the first time, deal with such issues as POWs.  

And apropos of that, when [Sherine] was doing her book on the German resistance, one of the things that she discovered that I found both instructive and appalling is that in the de-Nazification process after World War II, not a single judge was ever held to account for the decisions made during the Nazi era, on the grounds you don't look back.  And at the same time, the widows and descendants of the July 20th conspirators were denied the benefits given to Gestapo veterans on the grounds that what they had done was an act of treason.  So the stretching of the law in Swiftean caricature has its own precedent in World War II and what happened after Nuremburg.

RJL: Mark.

MD: Well, god, as usual, a flood of interesting points.  I think what you say about the Lieber codes is very interesting, and I think we should remember the Lieber Code.  I'm always shying away from the discussion of Nuremburg.  The human rights community raises it a lot and I always find myself saying, well, you know, the U.S. isn't occupied.  The U.S. hasn't lost a war.  And not only do the upper ranks of the military remain unchanged, the Defense Secretary is the same between administration, which is not, to my knowledge ever — no, in fact, it never has happened before.  

So we have to remember that in making parallels to postwar settlings of account or transitional justice, as Deena called it, this is very different from most of them.  There is usually a cataclysmic collapse of legitimacy, as happened in Argentina following the Falkland War, there is a cataclysmic social revolution, or at least a limited one, as in South Africa with the ending of the de Klerk regime, etc., or there is an occupation.  It's usually a loss of war that leads to a truth commission and a commission of reconciliation, etc., and there is very often an outside element of some kind, which is simply not present in the United Stats.  I mean, we had an orderly transfer of power.  

You could argue that Barack Obama is the major consequence of the Iraq war, that we owe George Bush for him, and I think that's very true.  But it is the same machinery of government, and there hasn't been a revolution or a loss at war.  So I think that we…I'm always…you know, it's funny in these sessions, it made me think, as these extremely smart questions and thoughts were being set out that I always feel afterwards, in seeing them come back at me, that I've said things too declaratively and universally, and what the hell am I talking about, and it's the society, it's us, bla-bla-bla, and I think, ah, God, I didn't really mean it that way.  

Because obviously it sounds almost unmediated, and of course the people in power have certain powers.  There is certain political sovereignty residing in the people, and you take polls and they say no, if it'll prevent an attack, I would support torture, and seven in ten say that.  Now, how does that relate to the day-to-day activities of the government as decisions are made that are made, that becomes quite complicated.

Let me try to go through several of these points.  I can't address all of them.  Deena's points about transitional justice I think were very much to the point, and they also remind us how complicated this narrative actually is, that John McCain indeed, at a certain point, seemed to be the carrier of water for the human rights movement.  It was an interesting point.  He's not only, obviously, a war hero, but he gives a vivid picture of torture in his memoirs.  I encourage everybody to read it.  They beat him very, very severely, as you're reminded every time you see him.  The upper part of his body was permanently damaged because they didn't treat his broken arms and broken shoulders.  

I think that's a good image that he came to power and it's been put in suspension.  The question is, of course, how much they really plan to do and how much they really weighed what could be done.  I'm on a thing, for my sins, called The Torture List.  You may be on it as well.  It means every day you get 50 emails talking about torture.  It's, you know, have your coffee, you can read them.  And these are all people, very eminent legal people, most of them, who were taken whole cloth, basically, into the administration.  

So it's not as if you don't have a willingness, within the upper ranks of the administration, a knowledge about and a willingness to do something about this.  And yet we are where we are, because I think the political heavy lifting is too great.  And that's where you get to the idea of popular will and volition, and the fact that sometimes — politicians know this very well — that even if 60% of the public is for gun control, the 30% who are vehemently against it are vehemently against it.  

And there's a similar — it's not quite the same, but a similar dynamic at work when you come to issues of fear, I think, that fear itself is an enormously powerful emotion that is worth more — a very strong no is much more powerful and useful than a fairly weak, milksop yes.  And we have that enacted in the torture issue, I think, repeatedly.  We see it acted out in front of us.

On whether it's better to have exposure or not, I'm biased on this.  Every book I've published, I think with the exception of this one, has an appendix with a lot of documents.  God help me, if I could get everybody to read the 40 pages of the Red Cross report, which is clearly written, easily read, on the New York Review web site, but I've never yet met someone who's actually read it, and yet it's the best…well, there you go.  Thank you.  Finally.  Two.  But if you can get people to read these things, everything would be different.  People don't.  

And in fact, the times I've talked on television usually about these things, you get people on the other side — Liz Cheney is the most dramatic, who I did a program with recently — who simply…  You know, they will come on — she's a particularly egregious example — and simply lie, based on the fact that they know no one's going to ever check.  So you're forced to basically say, well, no, it says here that actually Abu Ghraib was connected to Guantanamo, bla-bla-bla, here's the report, here's the report, here's the report.  It doesn't matter.  They just say the opposite.  And the reason they can do that is no one ever checks or cares, and television has now become this kind of, it's all opinion.  It's all opinion.  There are no facts of the matter at all.

You said at the very end should we go — you sort of stuck it in at the end — should we go to prosecution.  I think we are enormously far from prosecution, and I think those — you know, I did a debate with Liz Holtzman recently in New York, and her position, like many people I know is, you know, Obama has no choice.  Bush, Cheney, all the rest of them should be in handcuffs, they should be marched — and she's quite serious about that, a former prosecutor.  She thinks these people should all be arrested, it's absolutely clear they've broken the law, I can show you in three minutes, show it.  But she kept saying he has no choice.  

And I got up and said, well, if he has no choice, why hasn't it happened already?  They obviously do have a choice.  And I think prosecution is no only too much heavy lifting politically, but it won't do what is required.  And I tried to explain that.  I'm not against it in the least.

Deena:  It's the delegitimation question.  How do you get the delegitimation?

MD: But there is a broader way.  The problem is prosecution does damage to you, political damage to yourself.  And we get back to the survivor notion here because Cheney and the others talk about this, talk about survivalism.  They are talking about what has become sacred to them, which is the first year after 9/11 during which they alone were protecting the lives of 300 million Americans.  That really is how they think about it.  

And it is compounded with the guilt of having seen it happen and let it happen to begin with.  I think this is very emotional, very personal.  And prosecution, as a political issue, we're not going to become like some Latin American republic, as people say, or dictatorship in which the new regime comes in and — Republicans say this a lot — we're not a banana republic.  Even though I think of pants and shirts when I heard banana republic, but…  [Laughter.]  So I think that relates very much back to Robert's idea of survivalism.

Norman's comments were, I think, extremely provocative.  Dwight McDonald's phrase "the responsibility of people," yes, and you make me want to go back to that essay which I haven't looked at for a long time.  I'm not really sure about social Darwinism.  I guess I wasn't quite sure of what point you were trying to make.  I'm wary, I suppose, of talking about torture, even though one can, as a continuation of previous strands, genocidal strands and other things in American history, just because very often people say, well, you know what?  We did this in Latin America.  What about the Indians?  

This is simply my own personal predilection, that I like to try to get specific because I feel like otherwise you're lost, you're just lost.  And I like to try to distinguish it, because I've written about torture in Latin America and massacres in Latin America, and U.S. involvement, and I personally think this is dramatically different in the sense that it was officially put on by the government using the Department of Justice, all the agencies of the U.S. government discussed it, meetings of policymakers, and has, in effect, been public for five years.  I think that is different than what has happened at various stages along the way, and some of the things that you were referring to.

Peter, the series sounds fascinating.  Ambassador Murray is a really interesting man.  The whole boiling, Uzbek predilection for boiling people alive shows how torture has this great historical side to it, that you can find in each culture their own particular preferences.  They like putting the arm in boiling water and just boiling it, boiling it, boiling it.  

And Murray eventually was able to see…have reports on it and see corpses of people to whom this was done.  He was eventually drummed out, I think for a variety of reasons.  He's an interesting man.  But it should be emphasized that what the British were doing — he was a servant of the British government — is what most governments do.  They don't try to intervene domestically on how people interrogate.  They just hope that they can get cooperation with intelligence services.  

And this is the thing that governments, one of the sources of power that a government like Uzbekistan has is the withholding of intelligence information.  I think we think too much about our power over Karzai and over other governments, and think too little about their power over us, which is usually the way it works.  They have us by the proverbial short hairs.  And when it came to Uzbekistan and the U.K., that's exactly the situation it is with the United States, and it is with Karzai now.  

Tom Friedman writes these columns saying, "We have to say this or bye-bye, fellow," as if…that isn't…they, just like the Salvadoran generals and various others, are the ones in the seat of power because of our larger strategic concerns.  And that's a situation we get ourselves in that I think is really regrettable and we should think about.

The torturable class, I'm glad to be reminded of Our Man in Havana.  Your points about Carl Schmitt are fascinating.  I'm not sure where to begin with that.  Let me try.  You said liberalism is insufficient, as he said, of course.  This is his attack on liberalism.  The other quote by Schmitt, since you're giving me the chance to jump in, also from Political Theology, is that "states of exception are to jurisprudence as miracles are to theology," which I think is a great, poetic notion that I love.  So we're now in the midst of a miracle jurisprudentially speaking, and we should keep that in mind.  

Whether liberalism is sufficient in confronting a real enemy, he obviously believed that it was not, and his analysis of that is extremely provocative.  But whether we can go back and actually study it — I mean, you're basically saying let's go back, look at the state of exception, examine how it happened.  I am perfectly happy to do that, and that's one of the reasons why I glom onto this notion of a commission, which has its own political pitfalls.  The problem is that any such commission, to be effective, will have to narrow things much narrower than that.  

The problem with the state of exception, of course, is the entire government is implicated in it.  We should be grateful, I think, for Cheney's radicalism — I mentioned this at beginning — that a lot of these things were not memorialized in law.  Congress essentially stood aside and let the executive have its way.  And by the mid Bush Administration you had a ping pong game going on between the executive and the Supreme Court, and Congress was nowhere to be found.  So the legal regime itself is extremely spotty, and I think had it been different, we might have a torture law right now that would have made this legal.  We might also have a prolonged detention law, which I didn't talk about at all, but which Obama is supposed to be introducing.  

Talk about a mixed blessing of Obama.  You have somebody come in who's saying I'm going to put this on a legal footing, and what does he do?  He looks at Guantanamo and says there are five classes of prisoners here, including the fifth, those who can neither be tried nor released.  Therefore, how do we make that legal?  I mean, if we accept that, and we probably don't.  But how do we make it legal?  Well, we establish a law for prolonged detention.  We do it with people who are mentally ill.  It's not unprecedented.  But it would be a huge change.  And that is one of the consequences of putting this thing on a legal regime.  And that's going to be enormous.  We're waiting for that, so we're in the middle of things.

Carl mentioned the Lieber Code, which I agree with you is extremely important and I think needs to be, you know, that awareness of history and the United States — and I would go back, as I mentioned, the Battle of Trenton — is vital, and vitally important.  

And it's one of the reasons, it's interesting, when you look at these documents, the sort of inside story of what was done in the early days after 9/11, the person who responded most vigorously against the move to withhold Geneva Convention protections from prisoners in Afghanistan, in particular Al Qaeda, was Colin Powell, Secretary of State, who not coincidentally was the only one in the top group who had seen military service and who had served two terms in Vietnam, who was in the chain of command for My Lai, who had real experience of this, and he is vigorous in saying this is a terrible decision, we shouldn't do it, it will have cataclysmic impacts not only on our reputation, but the treatment of our own troops.  

And unfortunately, in this case, as in so many others, he played Cassandra in the administration, the person who predicted, predicted, predicted in mellifluous tones and who lived to see all of his predictions come true and crash down on his own head.  So it's a sad story.  I guess we've come back to Proteus in classical models here to talk about the wrestling with Menelaus.  

Anyway, I think the protean idea, the last point I'd make is I think your protean idea is very beautiful, and not least in its optimism, because I prefer to take it as optimistic.

RJL: Not optimism, but hope.

MD: Well, I think hope is optimistic.  [Laughter.]

RJL: Okay, on that note.  Now, we're going to have a coffee break.  I'm sorry, I can't call on any people right now.  We have to have our coffee break.  I'd really appreciate it if you'd get your coffee and your buns or whatever and just bring them back so that we don't have too much trouble, because we are behind time, and we have still—

MD: Sorry.

RJL: No, it's been enormously important to us.  Thank you.  [Applause.]



"Obama and Us: Why We Seem Unable to Escape Bush's 'State of Exception" Introduction by Robert Jay Lifton.

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