Escaping Bush's State of Exception: Torture and Truth, Obama and Us

MR. MORRIS DICKSTEIN:  I'm Morris Dickstein, and I'm with the Center for the Humanities.  I'd like to welcome you all to the rescheduled version of the 14th Irving Howe Memorial Lecture.  I want to thank the Howe family, Alana Howe, for her support and the support of the family, which we've had since the very beginning.  Thank Max Palevsky, who originally endowed these lectures, who has sometimes been able to join us, from California, to come to these lectures. 


These lectures honor our late colleague and friend Irving Howe, who was a literary critic, political writer, and activist-intellectual who helped created and edit Dissent magazine, which you can subscribe to right at the table, from 1954 to his death in 1993, who was also a professor of English at Hunter College and here at the graduate school from 1963 to 1986.  Now, these lectures, over the years, have ranged widely over politics, literature and Jewish studies, all of them central to Howe's interests and contributions. 


It would be hard to imagine a more suitable speaker for these lectures than Mark Danner, who is Professor of Journalism at the University of California at Berkeley since the year 2000.  Also, in the fall semesters, he is the James Clarke Chace Professor of Foreign Affairs, Politics and the Humanities at Bard College.  And since I knew Jim Chace very well, I know how appropriate he is for that position.  He is also a former staff writer for The New Yorker and a frequent contributor to the New York Review of Books, where I'm sure most of you have read his work, as well as many op-ed pages here and abroad.


Now, it's a watchword of Howe's career that he was both an engaged journalist, in tune with the politics of the moment, and a vigorous academic and scholar, both a critic of American foreign policy, foreign and domestic, and a reflective analyst who took the long view.  An early and much modified commitment to democratic socialism was the base from which Howe's engagement with contemporary issues radiated.  But such a commitment, I would say, is no longer available to most intellectuals, thanks to the grim trajectory of socialism in the 20th century.


Mark Danner's work begins elsewhere, as a journalist with an attraction to extreme situations, political instability, brutal war, the massacre of civilians, incarceration, torture, something quite different from the Cold War that engrossed the attention of Howe and his contemporaries for over four decades.  The new themes are nationalism, fanaticism, covert warfare, secrecy and atrocity, perhaps above all, atrocity.  If we had to put a name on the last 20 years or 30 years, we might call it the age of atrocity. 


From the Haitian civil wars of the 1980s to the Balkan wars of the 1990s, the Iraq war and the so-called War on Terror of the past decade, Danner has served as a visceral witness, a relentless critic and a recording angel, working in real time, determined to shed light on policies that fester and proliferate in darkness and ignorance.  It was he, this spring, who broke the report of the International Red Cross, which provided vivid first person accounts by many prisoners tortured in America's so-called black sites, as a result of President Bush's state of exception, which he'll discuss tonight.  In other words, the suspension of the norms of warfare affirmed in the Geneva Conventions and in America's own civilized traditions.


In an op-ed piece shortly after these articles appeared in the New York Review of Books, in an op-ed piece in the Washington Post on April 26th of this year, Danner wrote,


"The first paradox of the torture scandal is that it is not about things we didn't know, but about things we did know but did nothing about."  He goes on to say, "Unlike Watergate or Iran Contra, today's scandal emerges not from a shocking revelation of wrongdoing, but from a long process of disclosure during which Americans have stared at blatant wrongdoing with apparent equanimity." 


Such comments tell us much about Danner's commitments, and even his style, grounded as much in outrage as in reportage, utterly committed not only to exposing shameful abuses, but to altering the mindset, the political calculations, the sheer indifference that enables us to tolerate them as we go about our daily lives with a shrug of tolerance, indifference or fatalistic acquiescence. 


Danner speaks to us tonight at a turning point in the Obama Administration, when American policy is not yet, I would say, despite the speech about Afghanistan and the troop increase, America's policy is not yet set in stone, and the president apparently has not yet fully decided how much he will continue or break with his predecessor's approach to terrorism, the Middle East, or the war in Afghanistan. 


On these and many other subjects, I strongly recommend Mark Danner's new book, which is for sale here tonight, Stripping Bare the Body: Politics, Violence and War.  His title this evening I think says it all.  His title is "Escaping Bush's State of Exception: Torture and Truth, Obama and Us."  Please welcome Mark Danner.  [Applause.]


MR. MARK DANNER:  Thank you.  Thank you very much, Morris.  That was a lovely introduction.  I wish my mother could be here to hear it.  [Laughter.]  One always does, I think.  Speaking of my mother, when you said I'm attracted to extreme situations, I couldn't help thinking of this book.  I dedicated…well, I'll read the dedication.  I'm very proud of it.  "For my mother, in partial answer to her favorite question: why can't you go somewhere nice for a change?"  [Laughter.]  This has become a joke between us over the years, and she was happy that she got a big book to attach the joke to.


I want to thank Morris Dickstein and Michael [Washburn], and also [Evan Sweeney] very much for inviting me, doing me the honor to invite me, and also very much the Howe family.  And I'm very glad that Alana Howe is here tonight in the audience.  As I told her just a few minutes ago, her late husband's work meant a very great deal to me, and still does, as a matter of fact.  I remember distinctly — speaking again of my mother…I hope she won't play too much of a part in tonight's discussion — I remember very well her handing me a copy of World of Our Fathers when I was quite young, and I remember also, because it's been over the last few months that I've reread it, reading for the first timePolitics and the Novel, which is just a remarkable, prophetic, extraordinary book. 


I gave a seminar this fall at Bard College called "Power, Violence and Make Believe: Revealing Politics in Fiction," and was having trouble finding things that I thought were particularly good, and turned to this book, which I had read in college, and just found it revelatory.  Reading it again, I didn't know how I'd understood it the first time, what with my younger brain, or my brain 30 years before.  And I was struck, among other things, by a comment in this book about Orwell and about 1984, which I want to take as a kind of point of departure tonight for my remarks on escaping the state of exception.  Irving Howe said of 1984,


The book appalls us because its terror, far from being inherent in the human condition, is particular to our century.  What haunts us is the sickening awareness that in 1984, Orwell has seized upon those elements of our public life that, given courage and intelligence, were avoidable.


A terror "particular to our century," "elements of our public life that, given courage and intelligence, were avoidable."  This strikes me…when I read it this time, it cut to my heart because I thought, though certainly as I stand here we are not living in anything like the totalitarian state painted so vividly in 1984, it is true, it seems to me, that we are in a situation particular to our century, under the influence of the War on Terror, and a state of exception the end of which we cannot now see.  I think my original title was "Bush's State of Exception," but I think now the title I had envisioned was "State of Exception," because we are still in it, and Obama now, to some extent, owns it.


Much that is particular to our century — and I mean now the 21st century — is to be found in that book, 1984, not least the notion of virtual war.  I'm talking about that endless shape shifting struggle fought between the super states of Oceana, Eurasia and East Asia that forms the background to Orwell's novel.  Of this struggle, this endless war, this virtual war, Orwell writes,


"If we judge it by the standards of previous wars, it is merely an imposture like the battle between certain ruminant animals whose horns are set at such an angle that they are incapable of hurting one another.  But though it is unreal, it is not meaningless.  It helps to preserve the special mental atmosphere that a hierarchical society needs."


Now, the War on Terror certainly is not an imposture.  We see tanks, we see artillery, we see soldiers dying, both in Iraq and Afghanistan.  But alongside it, I would suggest, stand the ghostly political benefits that Orwell has in mind here.  War produces fear.  Fear and the cowed population that is its result produces power.  Insofar as terrorism's product ultimately, its ultimate product is not death, is not mayhem, but fear, the benefits of that fear, which is, after all, the most lucrative of political emotions, are shared between the terrorists who cause it and the political leaders who conduct the fight against it.  That is, it benefits, very much, both parties.


We have seen this politics of fear used to great advantage during the last eight years, and its influence, I'll argue tonight, remains strongly with us still in the age of Obama.  In large part, I'll argue, it is this fear, and its potent political power, that keeps us imprisoned still in the state of exception.  My title, as Morris said, is "Escaping the State of Exception: Torture and Truth, Obama and Us."  I plan to touch on each of those subcategories in the next few minutes. 


But let me say a word about what the state of exception is.  It's a phrase used by Carl Schmitt, most famously, the Weimar and Nazi era legal scholar, German legal scholar, and more recently by Giorgio Agamben, who titled a slender and very complicated book with those words, State of Exception.  I use state of exception, in general, to designate the period of what might be called the soft state of emergency that we've been living through since September 11, 2001.  You could call it also a state of siege, martial law — there are a lot of other terms for it. 


It's important to point out, I think, that this doesn't just have to do with rules of military behavior.  It has to do very much with our civil life, and it is, and this, I think, is very important, not the first such state we've lived through in American history, by no means.  You can point to a number.  The late 18thcentury, the last years of the 18th century, when the Adams Administration expected a war with France, President Adams put in jail several hundred of his political opponents for speaking out against him. 


Most famously, our most revered president, Abraham Lincoln, imposed a state of exception in 1861, immediately after taking office, when he most famously suspended habeas corpus, arrested thousands of prisoners without benefit of the courts, and also imposed taxes, raised an army without Congress itself.  Woodrow Wilson also imposed a state of exception, threw thousands of people in jail, deported hundreds, or actually thousands, for speaking against America's entry into World War I.  And finally, of course, Franklin Roosevelt most notoriously imprisoned 110,000 Japanese Americans, most of them citizens, in concentration camps in California and Arizona.  So we have been here before. 


Now, like these previous states of exception, the one we're living in now has a number of diverse elements.  Its notoriety, as in the past, comes from specific things, but there are a lot of them, when you want to list them.  I'm going to list a few of them now.  Wholesale arrest and long-term detention of aliens on American soil.  After 9/11, something on the order of 5,000 people were arrested and sequestered in very harsh conditions.  We still don't know the exact number, but 5,000 is a fair estimate. 


Massive wiretapping of Americans without benefit of warrants, and this involves telephone calls as well as emails.  Extraordinary rendition, which is to say secret kidnapping of large numbers of foreign citizens on foreign soil and their transfer to other countries for interrogation or to secret American facilities for interrogation.  Establishment of offshore prisons, the most notorious of which, of course, is Guantanamo Bay.  I feel like I should start dancing.  [Laughter.]  Maybe you could close that door.


Female:          It's downstairs.

Oh, it is?  Oh, well, then I will start dancing.  Sorry.  The most notorious, obviously, of these offshore prisons is Guantanamo Bay, but there's one at Bagram Air Force Base in Afghanistan as well, and at one time or another, America was detaining over 100,000 prisoners, which is an extraordinary number, but true.  Establishment of secret prisons, the so-called black sites, for covert and prolonged detention of prisoners.  And these stretched across the world — Thailand, Afghanistan, Pakistan, Diego Garcia, Morocco, Romania, Poland, Lithuania.  We're still finding others, but there were a great many of these black sites.  And finally, of course, the development of enhanced interrogation techniques, so-called EITs, making use of suffocation, battery, close confinement, and other measures, and their widespread use on these detainees held in secret prisons.  Those are, it seems to me, the bare elements of the state of exception. 

I am convinced, or at least in my judgment, the key element characterizing the state of exception, and the thing that will be known in the future just the way we talk about habeas corpus when we talk about Abraham Lincoln, will be the singular phenomenon of torture.  It is something that has remained with us despite steps taken by Obama to eliminate it.  It is something that the society has not yet learned to cope with, or the darker view expressed at another moment by Morris in quoting an earlier piece of mine, perhaps the society has learned to cope with it, and is coping with it by doing nothing.

Anyway, this is in some ways an old story, the story of torture.  The first lengthy investigation of it appeared on the front page of the Washington Post in December, 2002, so almost exactly seven years ago.  We had 5,000 words, quite explicit, stress and duress techniques, very good report by Dana Priest and Barton Gellman, front page.  A few months later, the New York Times, typically, had a similar front page piece by Raymond Bonner and others, also quite explicit, so that's early 2003.  We had news coming out continually afterwards, and then this trickle of news, specific news, became a flood after the publication of photographs from Abu Ghraib prison in Iraq, when the story, for the first time, became televisual.  For the first time, it went from the print press up into the realm of television.  Why?  Because, of course, suddenly you had images.  Television reported on it for perhaps a month, a little bit more, and then very quickly lost interest. 

But it's fair to say that by the following fall, the American public had in its possession not only images of torture, but an enormous number of documents, hundreds and hundreds of pages of documents that were leaked by people within the government in the wake of the Abu Ghraib disclosures.  These documents tell, in fairly excruciating detail, how the policy of torture was developed, how particular techniques were chosen, how different bureaus of the government chose them, how the Department of Justice studied them and came to argue that they were legal, and how they were applied.  That fall of 2004, I published a book called Torture and Truth, about two-thirds of which was made up of these documents.  There was another quite lengthy compilation called The Torture Papers that was published a number of months later that was about 1,200 pages long that was published by Cambridge University Press.

Now, I should note, just as I remember as I say this that that book, my book, was rushed to press so it would be out before the election, because my publisher had the quaint idea that torture would be vigorously debated in the election campaign.  And of course, as you'll remember, well, it was never mentioned, in my memory, in any event.  It certainly wasn't a main issue. 

In the five years since, we've had a vast amount of additional information flood the public realm.  We're in the interesting position now of being able to look at torture not only from the point of view of the Department of Defense, who was preparing some of these techniques; not only from the point of view of the CIA, who was instrumental in putting them into practice; not only from the point of view of the Department of Justice, which looked at them individually and determined, with excruciating and fascinating legal reasoning, that they were, in effect, legal and did not violate the Convention Against Torture, the torture statutes and the various other laws that make torture illegal in this country and internationally.  We can look at all these things from many different points of view, and that is, in part, what I would like to do tonight in looking at the state of exception.

There was a protocol — and I'm going to confine my remarks mostly to what the CIA has done — that the Central Intelligence Agency developed.  And I brought the document here.  It's available on the Internet.  It's a fascinating memorandum that was prepared by the CIA and sent to the Department of Justice.  There's a little comment on the top, "Dear Dan, a generic description of the process.  Thank you."  Later he says, "If you have any troubles over the weekend, give me a call."  And this is prepared for the Department of Justice, for the lawyers who are determining these things are legal.  This was written, by the way, not long after my book was published, I realized, a couple of weeks later. 

There was a process of disclosure, as Morris quoted me as saying.  Together with the process of disclosure, the real narrative of torture simply continued unabated.  So we had disclosure, the feeling of crisis, how can this be happening, the thing is itself going on beneath the surface and continuing.  Anyway, this memo was prepared for the lawyers, sent to them, and it divides these techniques, this protocol, into three rough sections: conditioning techniques, corrective techniques, coercive techniques.  They are combined in fascinating and multifarious ways.  The conditioning techniques are designed, and I'm going to quote,

"to reduce the detainee to a baseline dependent state, to demonstrate to the detainee that he has no control over basic human needs, and to create 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."


The main conditioning techniques, the initial phase as set out in this document, are: nudity, sleep deprivation and dietary manipulation.  Orwell, of course, had a strong interest in the state's manipulation and use of language, and it's impossible not to think of him, and also Irving Howe's comments on him, I think, as you go through this and other documents.

We're in the position, as well, to see these conditioning techniques put into practice.  I'm going to talk a little about and quote from the words of a man named Abu Zubaydah, who was an Al Qaeda operative.  It's unclear how important he was.  The Bush Administration believed that he was a critical figure.  Many other people who know these matters well, including Ron Suskind, believe he was more of a kind of travel agent, a little bit unbalanced, not very important in Al Qaeda at all. 

What's important for us here is that he was the first of the big fish, of people whose names were known, to be captured.  He was captured in March 2002 in Pakistan.  There was a raid, he tried to escape, he was shot three times: stomach, thigh, and groin.  Immense bleeding.  He went into a coma.  The CIA managed to send over, secretly, a trauma surgeon from Johns Hopkins and just barely saved Abu Zubaydah's life.  He woke up from a coma, and I'm going to read just a bit of what he saw when he woke up after being in a coma for several weeks; it's unclear how long.

"I woke up naked, strapped to a bed, in a very white room.  The room measured approximately 13 feet by 13 feet.  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 a stress position, it's called, in the documents.

"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…"

This is a kind of canned nutrient supplement.

"…and water to drink.  At first the Ensure made me vomit, but this became less with time."

It should be said here that he doesn't know where he is, and we don't either.  It's probably Thailand, but it's not certain. 

"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 called the use of noise to induce stress.

"The guards were American, but wore masks to conceal their faces.  My interrogators did not wear masks.  During this first two to three week period, I was questioned for about one to two hours a day.  American interrogators would come to the room and speak to me through the bars of the cell.  During this questioning, the music was switched off, but was then put back 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 cold water in my face."

So this is phase one, in which a number of elements — the very loud music, the use of noise to induce stress, the very cold temperature, which is manipulation of temperature to induce stress, is the CIA name for it, the very bright, white light which is never turned off, the cold water, all of this is combined to keep the detainee awake for a very long period of time.  Now, he says two to three weeks.  The legal documents limit this to 180 hours, which I believe is what, seven days, one week.  I'm sure people here have spent an all-nighter working on something.  Has anybody spent two nights successively without sleeping?  If anybody has, you know the kind of disassociation that happens.  You can't remember time, you start to drool, you can't keep track of anything.  This is quite long-term sleep deprivation, and all these individuals things are combined to keep him constantly awake. 

All elements of this protocol in the CIA documents are tightly controlled, or at least are purported to be tightly controlled.  We hear about people who are watching the naked detainee who's chained to the chair to make sure he doesn't turn blue, because the temperature is in the mid 50s or lower than that.  Turning blue is a sign of hypothermia.  When this happens, they turn the temperature up a little bit.  The water temperature is controlled, the number of decibels of the music, all this is prescribed constantly, and supposedly constantly monitored. 

The key element, of course, is the stress position, which is keeping the detainee chained, absolutely immobile, in a chair for three weeks without moving.  Now, this element, like a lot of other elements of the protocol, evolved over time.  In fact, Abu Zubaydah, who was the first to be subjected to these things, was the only one to be subjected to long-term sitting.  After that it became long-term standing in which the detainees had their wrists chained to the ceiling and their ankles chained to the floor.  They're naked, of course, all this time, the room is very cold.  The CIA describes this as follows:

"The HVD" — high value detainee — "is placed in the vertical shackling position to begin sleep deprivation.  Other shackling procedures may be used during interrogation.  The detainee is diapered for sanitary purposes" — so there's no releasing him to go to the bathroom — "although the diaper is not used at all times." 

And indeed, the Red Cross report talks about times when they take the diaper away and the detainee is hosed off periodically when he defecates or urinates on himself.  Khalid Sheikh Mohammed was subjected to this for a number of weeks.  You can feel what it's like simply by raising your arms above your head for five minutes without moving them.  His description is as follows:

"I was kept for one month in the cell in a standing position, with my hands cuffed and shackled above my head and my feet cuffed and shackled to a point in the floor.  Of course during this month I fell asleep on some occasions while still being held in this position.  This resulted in all my weight being applied to the handcuffs around my wrist, resulting in open and bleeding wounds.  Both my feet became very swollen after one month of almost continual standing."

The interviewer from the Red Cross remarks in brackets in this quotation that "scars consistent with this allegation were visible on both wrists as well as on both ankles."  Long-term standing seems like a very simple concept.  In fact, it's very effective in causing a great deal of pain.  The Soviets used it.  In fact, it was a favorite torture used by the Soviets, who called it simply stoika.  The CIA studied it in a paper called "Communist Interrogation and Indoctrination of Enemies," and described what long-term standing does to the body.

"After 18 to 24 hours of continuous standing, there is an accumulation of fluid in the legs.  This dependent edema is produced by the extravasation of fluid from the blood vessels.  The ankles and feet of the prisoner swell to twice their normal circumference.  The edema may rise up to the legs as high as the middle of the thighs, the skin becomes tense and intensely painful, large blisters develop which break and exude watery serum."

So these swollen feet became an increasing problem with Abu Zubaydah.  Eventually a doctor was sent in to measure, with a tape measure, his feet, to keep track of how much they had swollen, and his lower legs.

We move from these conditioning techniques to a phase called corrective techniques.  This usually involves slapping, hitting, slapping on the stomach, slapping on the face, facial holds, grip of the face, and movement of the head back and forth rapidly.  I want to read a little chunk of Abu Zubaydah talking about this phase.  It also involves close confinement, among other things.  These are just excerpts, of course.  This stuff is much more elaborate, but I think the excerpts are important.

"Two black wooden boxes," says Abu Zubaydah, "Were brought into the room outside my cell."  Remember his room has three walls and then bars and an additional space.  "One of these [black wooden boxes, one] was tall, slightly higher than me and narrow, measuring perhaps an area of three and a half by two and a half feet by six and a half feet high."  So it's like a narrow standing coffin, roughly.  "The other was shorter, perhaps only three and a half feet in height," down here.  "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. 

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 a 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."

I've thought a long time about this piece of plywood, because I think it's interesting, for a number of reasons.  One is that a central paradox and problem in this kind of interrogation is how to inflict pain without inflicting injury of a sort that will make the prisoner uninterrogatable, that is, how to inflict pain without a kind of damage that will make it impossible to exploit him further. 

It is clear that walling is viewed by the CIA as a particularly effective technique.  In the document I held up a moment ago, in this memo, they say that it's one of the most effective techniques because it wears down the HVD, high value detainee, physically, heightens uncertainty about what the interrogator may do, and creates a sense of dread when the HVD knows he is about to be walled again.  An HVD may be walled one time — one impact with the wall is the definition — to make a point, or 20 to 30 times consecutively when the interrogator requires a more significant response to a question. 

Now, it's clear they were improvising here.  They used a towel, as he mentioned, to smash him against the wall.  As these interrogations go on, you see the emergence or the appearance of a special leather harness that's been made to fit around the neck with two handles.  One interrogator takes one, one takes the other, and they smash him together against the wall. 

Now, what about the plywood?  In 2005 an interrogator was interviewed by ABC who emphasized very strongly that all of these techniques needed individual approval.  That is, the interrogators were in constant contact with Langley, Virginia by cable and by email.  Each technique had to be approved at the deputy director level, which is at the very top, of course, of the CIA.  The interrogator said each one of these steps had to have the approval of the Deputy Director for Operations.  Before you laid a hand on him, you had to send in a cable saying "request permission to do X," and that permission would come.  The cable traffic back and forth was extremely specific.

Now, I don't have the documents, but I can imagine such a cable saying "we've just done walling, we've hit him 20 times, we're afraid we're going to break his arm or break his leg," and the cable coming back saying, "Put something on the wall," plywood, whatever.  So by the time he has come out of that box two hours or three hours later, the top of the American government has approved a different procedure. 

And it's worth saying at this point as well that if George Tenet, then the director of the CIA in the period we're talking about, was approving these things specifically, he was also going repeatedly across the  Potomac to the White House to discuss the specifics of this interrogation, particularly Abu Zubaydah, and Khalid Sheikh Mohammed, with the principals committee at the top of the American government, which includes, of course, the Attorney General, the Secretary of State, the Secretary of Defense, very often the Vice President, the National Security Advisor.  So all this stuff, there isn't really a great question about who knew, who didn't know.  The responsibility is spread all across the top levels of the government.  And we've known that also for quite some time.

We move from the corrective phase to the so-called coercive phase.  If you can bear a couple of more excerpts, I will read them, because it seems important to me to actually get a notion of what these specifics are.  This is again Abu Zubaydah.

"After the beating I was then placed in the small box."  This is a week or so later.  "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.  I don't know how long I remained in the small box.  I think I may have slept or maybe fainted."

Now, I'm going to break in a second because again, it's fascinating to me the different language employed here in talking about the same things.  The lawyers were told by the CIA about these techniques, as I said, specifically, and they had analysis of each one talking about why they were legal.  Here is what the lawyers in the Department of Justice had to say about this close confinement in this small box.

"Similarly, although the confinement boxes, both small and large"


so this is happening contemporaneously with him in this box.  It's actually not completely clear whether they did this first or afterwards, which is important.    

       "Although the confinement boxes, small and large, are physically uncomfortable because their size restricts movement, they are not so small as to require the individual to contort his body to sit, small box, or stand, large box.  You have also orally informed us" — they're talking about the CIA — "that despite his wounds, Zubaydah remains quite flexible, which would substantially reduce any pain associated with being placed in the box. 

We have no information from medical experts you've consulted that the limited duration for which the individual is kept in the boxes causes any substantial physical pain.  As a result, we do not think the use of these boxes can be said to cause pain that is of the intensity associated with serious physical injury."

So therefore this is not torture, they having defined torture as "pain equivalent to serious physical injury, organ failure or death."  That was the original Bush Administration analysis of the statute.  Abu Zubaydah again.

"I was then dragged from the small box, unable to walk properly, and put on what looked like a hospital bed, and strapped down very tightly with belts.  A black cloth was then placed over my face and the interrogators used a mineral bottle 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 this is a kind of gurney that goes all the way vertical, all the way horizontal. 

"The pressure of the straps on my wounds was very painful.  I vomited.  The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from the bottle.  On this occasion my head was in a more backward, downwards position, and the water was poured on for a longer time." 

The time is also very strictly prescribed. 

"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.  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 of urine tipped over and spilled over me.  I was then taken out again, and a towel was wrapped around my neck, and I was smashed into the wall with the plywood covering, and repeatedly slapped in the face by the same two interrogators. 

I was then made to sit on the floor with a black hood over my head until the next session 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 suffocations.  During that week I was not given any solid food." 

This obviously is to prevent him choking to death during the vomiting, which goes with this technique.

 "I collapsed and lost consciousness on several occasions.  Eventually the torture was stopped by the intervention of the doctor," who I'll talk about in a second.  "I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied.  It felt like they were experimenting and trying out techniques to be used later on other people."

And indeed, that is what happened.  We see, if we look at the different sessions, that these things did evolve over time.  I mentioned long-term sitting became long-term standing, with the wrists shackled to the ceiling.  Close confinement was replaced by long-term submersion in cold water.  The detainee is made to lie on plastic sheets and water is poured on so he's submerged in it, very cold water, or he's hosed down with very cold water when his hands are handcuffed. 

The CIA mentions that it's the cumulative — you know, there's been a lot of publicity about waterboarding, but as the CIA says, it's the "cumulative effect of these techniques used over time and in combination with other interrogation techniques and intelligence exploitation methods which achieve interrogation objectives."  I can't resist this language.  It seems so remarkable.  In time these techniques were combined in more complicated medleys.  We get a lot of different versions of these things.  There's not a lot of time. 

I'm going to read you one other excerpt, if I might, which comes from Khalid Sheikh Mohammed, who has particular relevance to us today because we're going to be greeting him soon in New York City, where he's going to be tried in federal court.  That will be an interesting experience, given what was done to him.  I'll talk about that in a moment.  Khalid Sheikh Mohammed, in his discussion — I should say these are accounts that the Red Cross took down.  They've been cross confirmed by CIA accounts, by other accounts of detainees who were completely separated, so there's a high credibility, as the Red Cross said, to these specific accounts.  Khalid Sheikh Mohammed.

"The number of people present varied greatly from one day to another." 

This is in his interrogations. 

"Other interrogators, including women, were sometimes present.  A doctor was usually present.  If I was perceived not to be cooperating, I would be put against a wall and punched and slapped in the body, head and face.  A thick flexible plastic collar would also be placed around my neck." 

So this is the evolution of the towel.  You had a leather collar, now a plastic collar. 

"…would also be placed around my neck so that it could then be held at two ends by a guard who would use it to slam me repeatedly against the wall.  The beatings were combined with the use of cold water, which was poured over me using a hose pipe.  The beatings and use of cold water occurred on a daily basis during the first month.  The beatings became worse.  I had cold water directed at me from a hose pipe by guards while I was still in my cell."


So he's chained to the ceiling. 

"The worst day was when I was beaten for about half an hour by one of the interrogators.  My head was banged against the wall so hard that it started to bleed.  Cold water was poured over my head.  This was then repeated with other interrogators.  Finally I was taken for a session of waterboarding.  The torture on that day was finally stopped by the intervention of the doctor.  I was allowed to sleep for about one hour and then put back in my cell, standing with my hands shackled above my head." 

During the succeeding session of torture he's talking about,

 "I was put into a cell where I was allowed to lie on the floor and could sleep for a few minutes.  Due to shackles on my ankles and wrists, I was never able to sleep very well." 

He describes in some detail his waterboarding, which is similar to Abu Zubaydah's except an oximeter has appeared, which is to say a thing that goes over the finger and records vital signs.  So there's an increasing realization on the part of the interrogators and the CIA that they risk losing one of these detainees, and they keep very close track of vital signs.  Especially they seem fearful of losing one during waterboarding. 

I should say about waterboarding that this, like the long-term standing, is a very old technique.  It certainly goes back to the Inquisition.  It was used extensively during the Algerian War by the French, who essentially would beat the detainee, as here, then strap him down to a bench, usually looking upward, with belts.  The bench would then be lifted so his head was submerged in a bucket of dirty water, detergent, soapy water, sometimes urine.  The point is to get the head under the water and cause this gag reflex. 

But it was used extensively also by the Argentines in the Dirty War in the late '70s, which I wrote about when I was in college, probably the first piece I ever did about human rights.  So despite the oximeter, which is a peculiarly American touch, and the tape measures to measure legs and various other things, it in its essence is very similar to what has been used during torture regimes very frequently before.  And Argentina is a great case of terror, counter terror being used in response.  A last word from Abu Zubaydah.

"Due to shackles on my ankles and wrists, I was never able to sleep very well.  The toilet consisted of a bucket in the cell which I could use on request." 

This is because he was shackled standing with his hands to the ceiling. 

"But I was not allowed to clean myself after using the toilet.  During the first month, I was not provided with any food, apart from two occasions as a reward for perceived cooperation.  I was given Ensure to drink every four hours.  If I refused to drink it, my mouth was forced open by the guard and it was poured down my throat by force.  At the time of my arrest I weighed 170 pounds.  After one month I weighed 130 pounds." 

He of course wasn't given any clothes, at least for the first month or longer. 

"Artificial light was on 24 hours a day.  I never saw sunlight." 


Again, that line evoked to me Orwell.  He was moved several times during this period.  He thinks one of those moves…I won't read it.  There's a very elaborate procedure by which they are ear muffed, blindfolded several layers, gloved, and then strapped into a chair immobile, and taken to the plane where they're strapped to the floor, and very often tranquilized by using a suppository.  It's completely unclear where he was taken, although in one site he saw, under his blindfold, snow on the ground.  And he saw, on one occasion, the water bottle that was used to pour water on his face didn't have the entire label torn off, and he saw a ".pl" on the edge of the label, and he suspects, therefore, that it was Poland.  It's unclear.  He was arrested in Pakistan.

Anyway, I apologize for going on at such length on this.  These are difficult and quite unpleasant things to discuss.  I also believe that, to quote Irving Howe again on Orwell, that these are elements of our public life that, given courage and intelligence, were avoidable.  I'd be happy to talk on how they might be in the question period. 

It seems to me the significant question that faces us now, as we prepare to make the acquaintance of Khalid Sheikh Mohammed, among others, in federal courts, is how, having done these acts and much, much more, which have been adjudged forthrightly and unequivocally to be torture by the International Committee of the Red Cross — and that organization is not just an NGO giving its opinion, it is the guardian of the Geneva Conventions, it has a statutory role — how we escape the state of exception.  How do we return to a state in which our national ideals are not a kind of moral decoration on what at least some of our leaders seem to believe are the grim realities of power?

Of course that phrase "some of our leaders" is quite relevant here.  The new president, Barack Obama, has spoken out strongly against torture.  He did so during the campaign, unlike John Kerry, and on his second day of office he issued an executive order, one of three, ending the use of these techniques and restricting interrogators to those techniques listed in the army's field manual.  This is the new field manual that was issued in 2006, on the same day precisely that President Bush gave a speech, I think a historic speech, the only speech, I think, of his that will live in history, defending torture and revealing the black sites.  This was September 6, 2006.  I think it's his most important speech. 

On the same day, the army, in what seemed to me a slap in the face to the Administration, issued a new field manual that explicitly forbade all of these techniques, that is, in specific.  There are some loopholes to that that again, we could talk about, but the Obama Administration has now restricted interrogation, at least officially, to the techniques allowed in the army's field manual. 

We can be glad, I think, that the president has brought to bear his usual eloquence on this issue in general.  I think it's extremely important that he talks about it, and talks about it explicitly.  He talked about it most recently in his beautiful and somewhat contradictory Nobel address, Nobel lecture last week in Oslo.  He said,

"To begin with, I believe all nations, strong and weak alike, must adhere to standards that govern the use of force.  I, like any head of state, reserve the right to act unilaterally if necessary to defend my nation.  Nevertheless, I'm convinced that adhering to standards strengthens those who do and isolates and weakens those who don't."

Extremely important statement, I think. 

"Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct,"


which the Bush Administration essentially did not believe.

"Even as we confront a vicious adversary that abides by no rules, I believe that the United States of America must remain a standard bearer in the conduct of war.  That is what makes us different from those whom we fight.  That is the source of our strength.  That is why I prohibited torture, that is why I ordered the prison at Guantanamo Bay closed, and that is why I have reaffirmed America's commitment to abide by the Geneva Conventions.  We lose ourselves when we compromise the very ideals that we fight to defend.  We honor these ideals by upholding them not just when it is easy, but when it is hard."

Well, this is very eloquent and I think very welcome, and very important.  It's not just pro forma.  It's real and it embeds these rules of war, which include not only the Convention Against Torture, but the Geneva Conventions and a whole raft of other rules, it embeds them not only in America's idealism, but its realism.  That is, it's irrevocably in our interest to follow these things, a point that, for example, Secretary of State Colin Powell made within the Administration when the proposal was made to not abide by the Geneva Conventions.  In this, as in all other matters, Colin Powell was a kind of Cassandra, predicting the future but condemned to have no one listen to him.  But now the president is saying it.  It's important. 

What he says contrasts, it seems to me, dramatically with the Bush Administration's central philosophy, which I think is defined by a sentence that I treasure.  I think it's a brilliant single sentence.  I have to quote it to you.  It's one sentence.  It comes from the Security Strategy of the United States of 2005. 

"Nations will continue to challenge us, employing the weapons of the weak, including international fora, judicial processes, and terrorism." 

Now, here you have the Bush Administration associating terrorism with international fora like the United Nations, judicial processes like courts and laws.  It's a very stark statement of the kind of nightmare of the rest of the world, which is an America unbound by anything except its own power.  It sees international life as a zero sum game in which the strongest state, by definition, simply has no interest in adhering to international law, in which the strongest is limited only by the extent of its own power.  And that's the nightmare of the world, an unbound America.  And it's a nightmare that the so-called wise men after World War II forestalled by embedding American power in institutions like NATO, the UN and many others we could name. 

The new president, whatever we say about his policies, and I'm going to criticize them, is very far from this.  And it's likely that distance, perceived by the world, it seems to me, that accounts for his early Nobel Prize, this idea that we're back, at least, to an America that, for all its failings, does admit that international law is in its own interest.  So we should be grateful.  We should be grateful he's ended these practices.  But we can show our gratitude, I think, by listening very closely to what he says, and by charting the differences between what he says and what he does. 

In the same speech, a few paragraphs later, the president said,

"America cannot insist that others follow the rules of the road if we refuse to follow them ourselves,"

a point also made by Colin Powell, secretly. 

"For when we don't, our actions can appear arbitrary and undercut the legitimacy of future intervention, no matter how justified." 

Very much a realist, again a realist justification here. 

"First, in dealing with those nations that break rules and laws, I believe that we must develop alternatives to violence that are tough enough to change behavior, for if we want a lasting peace, then the words of the international community must mean something." 

And then it seems to me the critical sentence of this entire speech, for our purposes here today, for the state of exception,

"Those regimes that break the rules must be held accountable." 

Accountable.  Important word.  The truth is that we've heard very little of that word lately.  As I stand here, precisely no one, beyond a handful of low-level soldiers from Abu Ghraib, have been held accountable for torture.  It's an immensely difficult problem, and I envy colleagues and friends who find it very simple, who simply believe that at some point, President Bush, Vice President Cheney and their colleagues at the top of the administration will be marched off in handcuffs for violating the Convention Against Torture, the domestic torture statute, the War Crimes Act, and any of the many other laws that they absolutely, clearly violated.  I don't expect that to happen any time soon.

Those techniques that were discussed and which I just described were talked about explicitly at the very top levels of the administration, and not least of the reasons for this is that the CIA made sure of it.  The CIA, many people of which remembered clearly the Church Committee hearings of the mid '70s, when its dirty laundry was exposed the last time, and those hearings, I think, loomed over the Bush-Cheney Administration, made sure that before they did this, or at least while they were doing it — it's unclear precisely when the opinions, the day the opinions were actually issued, or at least actually written — made sure that they had a so-called golden shield, which is what they called it.  You might also call it a "get out of jail free card."  That is, they made sure that they had explicit legal documents saying, point by point, everything they did was legal. 

We have a book here from David Cole that gathers some of those.  My earlier book also contains a number of them.  And they make extremely interesting reading, very interesting reading.  You'll remember the description of waterboarding.  I'm going to read just a little bit about what the lawyers have to say about waterboarding.

"As we understand it, when the waterboard is used" — this was written, by the way, by my colleague at the University of California at Berkeley, John Yoo, who now teaches constitutional law at Berkeley.  He lives right down the street from me.  I can hear the demonstrations from Code Pink through my window.

"As we understand it, when the waterboard is used," he wrote, "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."


I'm not sure how he would be aware of that, but leave that aside. 

"You have informed us that this…"

I guess it's his trust of the interrogators. 

"You have informed us that this procedure does not inflict actual physical harm.  Thus, although the subject may experience fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain.  As we explained, pain and suffering, as used in Section 2340, is best understood as a single concept, not distinct concepts of pain as distinguished from suffering.  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…"

— and Orwell flashes over my head —

      "…the waterboard is simply a controlled, acute episode, lacking the connotation of a protracted period of time generally given to suffering."

Now, it perhaps is useful to say, at this point, that Abu Zubaydah was waterboarded 83 times, Khalid Sheikh Mohammed 183 times, so this was a very persistent procedure that was used again and again and again.  There are the lawyers.  There are also the officials at the top of the government who George Tenet visited on a daily basis during Abu Zubaydah's interrogation and reported.  He made regular trips across the Potomac, which brings in senior officials of our government, as I said. 

All of which is to suggest — and I'm aware of the time here — that we are in a very strange, almost post Nuremberg moment in this country, which is to say that the Obama Administration, having decided that none of these procedures that I have described to you today merits investigation or prosecution, has essentially acceded to the view that you can do anything you like, as long as you accompany it with a slab of legal memo. 

The history of this, of this decision, is a complicated one.  It led, among other things, to the recent firing of Gregory Craig, the White House counsel.  But we're in a very conflicted situation where the Attorney General, Eric Holder, has essentially declared that anything permitted by the Bush Administration documents will not be prosecuted or investigated.  What might — I emphasize might — be investigated are procedures that went beyond those procedures as set out in the legal documents. 

What would those include?  Well, one interrogator went up to a hooded detainee who was nude, hooded, hands chained to the ceiling, and he had a power drill.  He revved it next to his head and threatened to drill into his skull.  Another interrogator brought a pistol, a semiautomatic pistol, next to the head of a hooded detainee, and racked the pistol, threatened to execute him.  In another instance — this was Khalid Sheikh Mohammed — interrogators threatened to kill his children, who were taken into custody, by the way, by the  Pakistani army.  Officials, interrogators, also threatened to rape his wife.  There were a number of other threats like that. 

And finally, well, the documents prescribe a particular use of water, a particular amount of water that can be used in waterboarding, and there were clearly occasions when too much water was used.  So it is possible, although I think doubtful, that we could have an investigation or a prosecution into the revving of a drill or the use not of waterboarding itself, but too much water.  That is conceivable.  As I say, I don't think it's likely.

President Obama has said repeatedly — we're at the escaping state of exception phase here — has said repeatedly that when it comes to these matters, he wants to look forward and not back.  I think that's a very pernicious phrase.  If adhered to religiously, we would never prosecute anyone.  Prosecution and punishment always involves — or at least until the Bush Administration — looking back.  Rendering justice, by definition, requires looking backwards.  But the political costs of justice, at least that provided by prosecution, are very great, and this brings me back to the politics of fear that I talked about at the beginning in association with Orwell and his observations about virtual war, and the continual war that was going on in the background of 1984. 

If President Obama has forgotten about the politics of fear, the former Vice President has been there to remind him quite vividly, beginning ten days after the inauguration, something that still strikes me as remarkable.  When Dick Cheney came forward, and in a television interview, said some very explicit things, this is ten days into the new administration.

"When we get people who are more concerned about reading the rights to an Al Qaeda terrorist than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry.  These are evil people.  We're not going to win this fight by turning the other cheek.  If it hadn't been for what we did with respect to the enhanced interrogation techniques for high value detainees, then we would have been attacked again.  Those policies we put in place, in my opinion, were absolutely crucial to getting us through the last seven plus years without a major casualty attack on the U.S."

A few weeks later a more specific statement in which the former Vice President warned of a 9/11 type event

"where the terrorists are armed with something much more dangerous than an airline ticket and a box cutter, a nuclear weapon or a biological weapon of some kind.  That's the one that would involve the deaths of perhaps hundreds of thousands of people, and the one you have to spend a hell of a lot of time guarding against.  I think there's a high probability of such an attempt. 

Whether or not they can pull it off depends on whether or not we keep in place policies that have allowed us to defeat all further attempts since 9/11 to launch mass casualty attacks against the United States.  If you release hardcore Al Qaeda terrorists who are held at Guantanamo, I think they go back into the business of trying to kill more Americans and mount further mass casualty attacks.  If you turn them loose and they go kill more Americans, who's responsible for that?"

Who indeed?  These dark admonitions, I think, are rather complicated and very clever.  They're complicated rhetorically because they point to the past as well as the future.  They're exculpatory.  They look at what was done before and say this was absolutely necessary to avoid this stuff, something for which we have very little evidence, very little evidence indeed.  And they also imply, in a slightly more complicated argument about the past, that it was the failure to use such techniques, that is, to keep the gloves on — the Bush Administration then took them off — it was the failure to use these techniques that in fact accounted for the attack on the United States to begin with. 

It's a very complicated argument involving presidential power, the limitations of the power of the executive that were put in place in the mid '70s, and the fact that that, not the Bush Administration's general ignoring of the problem of terrorism, not the ignoring of the presidential daily brief in early August that said Al Qaeda determined to attack within the United States, not the failure of the CIA to pass on the names of two of the conspirators to the FBI, not the failure to notice two reports of people training at airports, Muslims training at airports, young Muslim men who didn't want to learn how to land.  There are a string of these things that argue very strongly that 9/11 was allowed to happen in part because of simple human error.  This argument and others by Dick Cheney suggest that in fact it had to do with the gloves being on, and that thank god this Administration was there to take the gloves off.

The second part, of course, of the rhetoric here points to the future, and it lays a predicate for blame in a future attack.  That is, in the aftermath of a future attack on American soil, it will have been, we know now, because the Administration will have failed to do, and has failed to do what is necessary to prevent those attacks.  So the ground is being laid very clearly to destroy the Administration politically using the politics of fear in the aftermath of an attack. 

Now, those politics have been quite effective.  The most obvious instance of this is the Congress' refusal to vote funds for the President's plan to close Guantanamo, and there are other reasons as well, but this is a major one.  Congress was fearful of the warning cries that the new President will be "putting terrorists in our neighborhoods."  We see its effect elsewhere, not least in the refusal to release additional memoranda, to release additional photographs and other documents, and the increasing willingness of the Obama Administration to take positions very similar to that of the Bush Administration when it comes to lawsuits involving torture, secrecy, and detainee rights.  We see those strategies being followed increasingly, and it's distinctly troubling.

The most characteristic decision, though, is the one that…it seems to me the one that expresses most purely the ambivalence of the Obama Administration, caught between the desire to do justice and the reluctance to pay the political costs of doing it, of supplying that justice, is the decision not to bring criminal investigations, or rather to do so only in the case of those who have gone beyond the Bush Administration's immensely wide guidelines.

So how can we return to justice?  I happen to believe that the road to this is going to be very long.  It's not going to run through prosecutions, but through public education.  It's a very boring notion, but I'm now at the point in our subtitle, having gone through torture and truth and Obama, where I've reached us.  Because it's quite clear to me that, having lived with this state of affairs for a half dozen years, that one of the sources of the problems, and perhaps the largest one, is the opinions of the American public and the dynamics of the politics of fear which are embedded in the fearfulness of the American public and in the conviction, fed by statements like former Vice President Cheney and former President Bush's explicit statements that torture is the only thing that can protect us. 

Not least of the pernicious effects that this has caused is the rather striking opinion charted in the American public by recent pollsters about the willingness of Americans to accept torture.  A Pew poll that came out a couple of weeks ago found that, asking if you think the government should be able to torture sometimes or often, 54% of Americans, more than half, said yes.  Only 25% of Americans said the government should never torture.  Now, you might think, well, never is a big word, that's not so surprising. 

What's interesting is if you compare this to other polities.  Palestinians, 66% say the government should never torture.  Not surprising, for various reasons.  Iranians, 56% say the government should never torture.  Egyptians, 54%.  Now, you might say to all these people, these are people living under, to some degree, torture regimes, and there's some explanation for that.  Western Europeans, broad figure of 80% say the government should never torture. 

So this is very, very striking, the difference in American attitudes.  I think there are many reasons for this.  We can talk about it.  Obviously some of the reasons are the rhetoric we've heard from our leaders in recent years and their clever use of fear.  I think another reason is a failure on quite so high a level, a failure for other politicians who oppose this to make contrary arguments with quite so loud voices.  You don't hear them.  People are very scarce. 

And it is not just political leaders.  We're talking about a broader culture.  I should mention, I have to in this speech, "24" and the dynamics described in that, which is essentially a television program that was built around the ticking bomb scenario, whereby only torture is able to protect the country.  I think that series actually is built in a longstanding streak in American culture.  "Dirty Harry" is another very good example of it, in which torture plays a very key role on the part of Clint Eastwood.  He tortures a prisoner, a mass murderer, actually, at the 50 yard line of Kezar Stadium in San Francisco, as I remember well.  You can go back to cowboy movies, the general attitude that we want somebody powerful who's willing to cut through red tape and do anything that's necessary to protect us. 

I believe that it is only going to be a thoroughgoing effort to change this attitude that is going to begin to extract us from the state of exception.  Where would that begin?  Part of it would begin with education about the damage that torture has done to us.  There are some striking stories, I think, that need to be better known.  We cannot confirm, though to the extent that we've seen the documents, we can deny, not completely, Cheney's claim that torture was absolutely necessary to protect the country.  We need to make those documents public through the use of a commission, which I'll talk about a little bit more in a second. 

But I also believe that it needs to be made more clearly known, by people who will describe this in a very loud voice, that we have quite obvious evidence that torture has given us bad information, and that bad information, incorrect information, unfounded information, has harmed the country.  The most obvious example of this is the testimony given on February 5, 2003 by Colin Powell, Secretary of State, before the United Nations, in which he described in precise terms, you'll remember, the biological weapons vans which went around Iraq, and in the back of them evil figures were concocting biological weapons with which they were going to attack the United States. 

You'll remember also that he described quite specifically the training that was being given by Saddam Hussein's regime to members of Al Qaeda in the use of chemical and biological weapons.  All these things were described with great precision, and it was no accident that that moment, Colin Powell's moment on the world stage in front of the Security Council of the United Nations, was instrumental in turning around many minds when it came to the Iraq war, to the invasion and occupation of Iraq. 

Well, that information came, very directly, from the torturing of a detainee, Mr. al-Libi, who was captured by the Pakistanis, handed over to the Americans, eventually handed over to the Egyptians, who tortured him quite severely, using even more disgusting techniques than the ones I've described at great length to you tonight, and he made these things up.  They were total nonsense.  And we have all lived to see the Secretary of State of the United States putting forward complete nonsense as an argument for a war of choice in front of the United Nations, which to me is a remarkable occurrence that deserves a bit more notice.

Another example, since we've talking about Abu Zubaydah tonight, is the alerts in the spring of 2002, March, April 2002, some of you will remember them, in which we were told that…first it was shopping malls were going to be attacked.  Do you remember that?  Orange alert, shopping malls, pictured on the television screen, television news, "Shopping Malls, Shopping Malls."  A few weeks later, reports that financial institutions were going to be attacked. 

Again, the alert status goes way up, a lot of heated rhetoric from the Administration, pictures on the television screen of Chase Manhattan and Citibank and so on.  Well, this information came from precisely that white room that I've been describing for you tonight.  These were reports from Abu Zubaydah.  They then, having been extracted through these techniques, affected all of our lives, and they turned out, again, to be complete nonsense.

So if we can't confirm that torture helped protect the country, and I think it's true that we can't, we can confirm that it has definitely hurt American interests, not only in the ways I've described, but also by — and Obama talked about this in Oslo — damaging quite severely the reputation of the United States, also by depriving us the opportunity to render justice, which is to say we established and created a group of permanent detainees who could not legitimately be tried before a legitimate court. 

We will see, in coming months, how the Obama Administration and the Department of Justice cope with this when it comes to the trial of Khalid Sheikh Mohammed.  The reports are that "clean teams" were tasked to interview Khalid Sheikh Mohammed separately from the torture, or after it, to gather the same evidence, not using torture.  We'll see if judges accept that.  But in general, it seems to me a great part of the damage done to this country is the destruction of the idea of justice.

And finally, we did enormous damage to ourselves in what is, after all, a political war.  That is, this war, this endless war, if it is going to end, is going to end not by killing of every Jihadist, it's going to end by the gradual evolution of a state in which you will not have a constant supply of Jihadists, that is, in which it will not be a readily salable case that the United States is occupying Arab countries, humiliating young Muslim men, and otherwise suppressing the Muslim world. 

President Obama recognizes this.  It's one of, I think, the most welcome and interesting things about him.  He tried to put forward a contrary policy in his speech in Cairo, I thought a very important speech.  It's only the first step, and longtime policies of the United States with regard to Egypt, with regard to Saudi Arabia, stand in its way.

But it was a first step, and it remains true that it is very hard to believe, or hard to think that any gains gained through torture could counterbalance the single image of Lynndie England, this young American military female, standing in her combat fatigues with one hand in the handle of a leash, and the leash going down to the throat of a naked Muslim man who's lying prone on the floor, his face scrunched in agony and humiliation.  That single image is almost a perfect poster for the ideology of Osama bin Laden with respect to the United States, and it and similar images and similar reports of torture, from Guantanamo Bay as well, I think it had a very striking and horrible effect on the United States effort in the War on Terror.

Time is pressing.  I'd like to have a chance for you to ask questions.  I would like to say that I think my proposals in this are very boring.  They have to do, first and foremost, with the establishment of a commission on the model of the 9/11 Commission, but I hope avoiding some of its worst failings, that would recruit Americans of reputation and standing who would be given the highest security clearances and would go through the documents and dispel, or at least analyze the claims that Dick Cheney and President Bush also have made, and that would also make a further and broader judgment about what torture has coast the country and what the country ahs gained from it. 

I think that such an investigation and such a report is the beginning, just the beginning, of dispelling what has become a polity that believes in torture and that fears that it cannot be safe while following the law, which is, to me, the worst single after effect of the state of exception.  And until that view is dispelled, we will not have escaped the state of exception.  What is the significant difference in this state of exception over the others I named is that it was endless, which is to say we knew at the beginning of the Civil War that that state of exception would end with the war, similarly with World Wars I and II. 

This state of exception began with not only no ending date, but the admonition from the president in place that we would not have a clear ending.  And it is absolutely imperative that we escape it.  It seems to me the only way to do that is through public education and through an effort of courage on the part of the Obama Administration, when threatened with the politics of fear, to confront them.  President Obama has shown a wavering ability to do that.  I still retain some faith that he will go in a positive direction rather than a negative one, that he will understand that looking forward has to involve cleaning up the terrible mess that is behind him.  Otherwise I'm afraid that the state of exception will become the rule. 

I had planned to end on somewhat of a light note — [laughs] — and I see that I simply have not gotten there.  I will just say that Irving Howe's admonition, when I read it this fall, gave me great encouragement, when he said that "Orwell has seized upon those elements of our public life that, given courage and intelligence, were avoidable." 

Courage and intelligence.  I think it makes sense to look at the former administration not as something evil, but as a group of people who, faced with a great and horrible crisis, lost their nerve and did things that they should not have done, in causes that they should not have been putting first and foremost, like the aggrandizing of executive power.  And I think there is still time for people, as he says so eloquently, of courage and intelligence, to start to take the road back out of the state of exception.  Thank you very much for your attention.  [Applause.]

MR. DICKSTEIN:  I think we have some time for perhaps two or three questions, comments.  Sir?  Let me ask you to speak [inaudible].

MR. DANNER:  I'd be happy to.

MALE VOICE:  What do you think [inaudible]?

MR. DANNER:  I'm sorry, the best case? 

MALE VOICE:  Yes, the best case [inaudible].

MR. DANNER:  You know, I'd have trouble, and it's not from reluctance to argue against myself, but I'd have trouble making a best case for that.  I think he's made the best case, and it's not good enough.  It seems to me the simple reality that looking forward and not back is not an option because we are left with the population of Guantanamo, we are left with the fact that torture, which before the Bush Administration entered office was an anathema, has become a policy choice.  And that is, you know, Obama has said he's not going to do it.  He issued an executive order that he would not. 

But it seems to me that as long as you don't investigate this and renounce it in some official way — and that doesn't have to come only through prosecutions, although I think prosecutions would be salutary; I just don't think we're anywhere close to them.  But unless you investigate it and renounce it, renounce it, and he has not done that.  He has prohibited it, but not renounced it, which I think is a very important distinction.  And you can only renounce it, it seems to me, by renouncing what was done.  So I don't know what better case I could make. 

And I hope I've made it clear that the road forward through a commission, and especially through prosecutions of any kind, would be very difficult, and will be very difficult.  But I don't think the road that he's chosen will be any easier, because I think he's going to be continually entangled in legal cases that were brought before, in controversies involving the politics of fear.  It's interesting the dispute over Guantanamo.  I don't think he gets the credit that he thinks he might have earned by not looking backward.  This is homologous to other areas of the administration, that trying to be conciliatory with the past administration and with die-hard Republican antagonists has not gained him much.  And I think he will continue to be caught in contradictions. 

I think this trial, which will happen a couple of miles from here, is going to be immensely interesting, because Mr. Qahtani, fir example, who is the so-called 20th hijacker in Guantanamo, was put forward as a possible person to be tried before the Bush Administration's military commissions, and the judge who was given power to decide these things examined the case — she was a fairly hard line Regan Administration appointee — and she decided he could not be so tried.  Why?  Because he'd been tortured.  She told this to Bob Woodward.  And it'll be very interesting seeing how they plan to go about trying Khalid Sheikh Mohammed.  But we are entangled in this still. 

And it's interesting to me that if you look at the history of states of exception, even back to the Roman dictatorship, the key thing distinguishing all of them is that — well, certainly the Roman, in any event — is that they have a set date of elapse.  In the Romans it was six months.  It got out of hand under Julius Caesar, of course, and we know how that worked out for him.  But what was significantly different about this state of exception in which we're still living is that there was no end date.  There was no end date. 

And that is very Orwellian.  That is like that continual war between East Asia, Eurasia, and Oceana in1984.  There's no end.  And if there's no end to the state of exception, it's not a state of exception.  In effect, you've altered your polity very dramatically in ways that, some of which cannot be retreated from.  And I think we become, particularly when it comes to torture, perilously close to that unless something else is done.  So I'm sorry, I wish I could give a better argument against myself.

MALE VOICE:  First and most importantly, the [inaudible].

MR. DANNER:  Excuse me?

MALE VOICE:  In defense of Clint Eastwood.

MR. DANNER:  Oh, okay.

MALE VOICE:  [Inaudible] his character [inaudible] solely as a matter of revenge, but [inaudible] justice, which is different from—

MR. DANNER:  Well, not in "Dirty Harry."  He wants to find the kidnapped girl.

MALE VOICE:  The best example is [inaudible].

MALE VOICE:  He turns against it in his later films.

MR. DANNER:  Uh-oh.  I walked right into this, I can see it. 

MALE VOICE:  My question is, did the Bush Administration inflict torture exclusively to obtain information, or as punishment?  And if it was exclusively to obtain information, should there be a change in the value, militarily, and placing the highest value on the withholding of information by a captured prisoner?  Supposing that [inaudible] value [inaudible] captured, speak out and avoid torture.

MR. DANNER:  I'm not entirely sure I understand the question, but let me try to…first of all, on Clint Eastwood, we're going to have to differ on that.  "Dirty Harry" is my major footnote here, so have a look at that and I think it will bear me out. 

On the question of punishment or information, the real answer there is we don't know completely.  I believe, from what I've read and looked at, that the original motivation here certainly was to gather information, particularly in a kind of panic about a second wave attack, although it is fair to say that those who made these — I mean, these are very closely held decisions.  There was never a widespread discussion within the government about this. 

Phil Zelikow has a very interesting piece called "Legal Policy for the Twilight War."  A very interesting fellow who worked for Condoleezza Rice and directed the 9/11 Commission.  It talks about how the only questions that were asked, the lawyers were called in who were asked, what canwe do, that there was very little questioning about what should we do. 

So was some of this about inflicting punishment?  I suppose you could say so, at least in the sense that there were very few barriers against doing it at all, and there was an assumption, well, these people whatever.  We have to torture them if they're — Cheney has actually said explicitly, in a couple of speeches since, we didn't think the terrorists should be able to tell us in their own good time when the next attack would come.  And there's a kind of attitude.  It doesn't amount to saying we need to punish them, but it seems to me there are elements of that. 

Your question about information, I'm not sure that I really understand it.  It is true, for example, that the FLN, during the Battle of Algiers, actually throughout the entirety of at least the late Algerian War, they had a rule that you had to hold out for 24 hours.  I think it began as 48 hours, and then 24 hours.  So the FLN would know you were taken, would make what changes they could based on the information you had.  And of course the whole cell structure was, in part, meant to withhold from you information so even if tortured you wouldn't give up that information.  But I'm not sure what you mean by simply giving it up immediately.

MALE VOICE:  [Inaudible] the value that we hold that it is heroic for [inaudible] John McCain, the hero, [inaudible].

MR. DANNER:  He did, actually.  He did.  He did.  And talks about it in his book.

MALE VOICE:  [Inaudible].  Supposing [inaudible] value [inaudible], and he didn't simply give name, rank and serial number, but [inaudible]. 

MR. DANNER:  Well, okay.  That's a longer discussion.  I can see some very practical problems with it, however, because there is information that armies don't like disclosed, obviously, and I'm not sure it's a very practical proposal, not least because states that torture routinely would probably not regard the volunteering of information as particularly credible either.  So anyway.  Maybe in the back.  There's that gentleman who I recognize in the back row.

MR. DICKSTEIN:  One more.  Last question.

MALE VOICE:  [Inaudible] accountability of senior executives, an incredible [inaudible], just ask people [inaudible] southern hemisphere, where we have the president of Peru, Fujimori, put on trial—

MR. DANNER:  Absolutely.

MALE VOICE:  [Inaudible17 years for doing exactly what the Bush Administration did, and that was disappearings and torture.  And right now [inaudible] newspapers from Buenos Aires reports every day a trial ongoing right now of President [inaudible], again on exactly the same charges.  And so does that suggest that perhaps it takes 20 or 30 years for the charges to mature or does it suggest that Peru and Argentina have a firmer sense of accountability [inaudible] democracy than the United States?

MR. DANNER:  Well, thank you for that provocatively phrased question.  That's Scott Horton, by the way, who has done an enormous amount on this issue, an enormous amount since 2001, so thanks for your question, and thanks for coming. 

The relevant statistic in what you just said was the 20 years.  That is, I don't want, and if I've left that impression, I want to correct it, but I don't want people to leave here thinking I'm simply saying prosecutions can never happen, they're politically impossible.  I am not saying that.  What I am saying is in the near term, I think they're very unlikely or impossible, not least because the very top levels of the government are implicated. 

And it would, indeed, be unfair, and repeating or replicating an unfairness that was perpetrated after Abu Ghraib, to have the people in these rooms go on trial without the officials who put together the policies and the lawyers who lawyered them, and the policymakers who ordered them going on trial.  So I am stopped by that and by the reality of the fact that we are immensely far from that now. 

The idea that we're anywhere close to that, when 25% of Americans only are willing to say we should never torture, I think those statistics are very telling, and I think the effects of Dick Cheney's rhetoric are very telling, and I think, to be very clear, that any such prosecutions can only come at the end of a significant process by which torture has to be destroyed, the idea of torture, the idea of torture as in some way a redemption from risk and fear, which is the role it has taken in this country.  And only once that is destroyed — and that can only happen by a political process of education, not just the commission, but Obama talking about it and other people talking about it.  And I think a lot of politicians on the Democratic side think what's the upside here?  What's the upside?  There's no upside.  Well, the upside is that we get back to, or out of, the state of exception. 

And I think that the obvious place to go in the third part of what I was talking about tonight is toward truth commissions, toward what's called transitional justice.  We've seen a lot of them in the last 20 years.  South Africa is, I think, a relevant example.  The question of a truth commission is something I basically proposed, but it would not have a prosecutorial side, because I don't think it's politically possible now. 

We don't know whether a truth commission is possible at all.  But it would not have a prosecutorial side or that side which the South African one, for example, did, that is, a grant of immunity if you talk.  And a grant of immunity if you talk has to come together with a reasonable threat of prosecution if you don't.  So that part of a truth commission, it seems to me, we simply are not ready for now.  We're not ready, at least in a very sympathetic administration, some parts of it, to even have a commission itself. 

So I completely agree with what you said about Latin America, but I would point you back to the dates and say that this takes a while.  But unless we take that first step, we won't get there.  And believe me, a truth commission of the sort you're describing…remember that Argentina, by the way, has gone through a number of them, and they've been extremely difficult, and accounted for failures of government, for changes of government. 

So the political aspects of this are very real, and when Cheney very ruthlessly and astutely exploits them, he has his hands on something very powerful, and he knows it, and other politicians do as well, which is why I suggest, very boring and undramatic as it is, that the important thing is to take the baby steps in the right direction.  And they wouldn't just be baby steps, but compared to what you're suggesting they would be, to get to what you're suggesting down the road.  And I don't see those baby steps being taken even now.  So I attach myself completely to what you want.  I just am less optimistic about, perhaps, our distance from it.

MR. DICKSTEIN:  Thank you.

MR. DANNER:  Thank you very much.  [Applause.]

[End of recording.]

Mark Danner delivers the Irving Howe Memorial Lecture, CUNY Graduate Center, New York 

Return to the Speaking Page

© 2021 Mark Danner