Legal Principles and Torture

Harold Hongju Koh tells the Senate about legal responsibility and torture

Ed. Note: There was much to praise in the response of the American people to the attacks of September 11, 2001: the rush to help, to give blood and send gifts; the sympathy for the victims and for the police, firefighters, and medics who tried to rescue them; even the patriotic hoopla, which expressed a genuine readiness to make sacrifices for the common good. But the Bush administration had no interest in any of this; it never attempted to build on the sentiments of solidarity in order to begin a long-term, democratic struggle against zealotry and terror. Instead, it looked for shortcuts, a search that had two advantages from its perspective: shortcuts were (or were thought to be) cheap and they required a significant augmentation of state power. It turns out that the opponents of “big government” mean only to set themselves against the public uses of power—to collect taxes, fund the welfare state, and regulate the market. They greatly admire, on the other hand, what power can do in secret.

Torture is one of the shortcuts, a substitute for multilateral police work; the uncertainties of intelligence gathering; the expense of guarding ports, reservoirs, and transportation centers; and the financial regulation necessary to cut off the funding of terrorist groups. Some of the torturing was (and is) done by proxies (there are, it seems, versions of multilateralism that the U.S. government welcomes). Some of the torturing was done by American soldiers and intelligence operatives, who clearly were acting with government authorization. The “bad egg” theory of Abu Ghraib had a very short life and is already a discredit to the officials and officers who put it forward.

Many members of the Bush administration were involved, directly and indirectly, in formulating the torture policy; there were also a few brave lawyers in the State Department and in the armed forces who opposed it. Alberto Gonzales was at least complicit in shaping the legal rationale for torture, and he was explicit in defending it. His promotion from White House counsel to attorney general, with only polite opposition from Senate Democrats, is, to put it mildly, shameful. Harold Hongju Koh explained the shamefulness to the Senate, in the text below, excerpted from his testimony on January 7, 2005, to the Senate Committee on the Judiciary; a large majority of its members then approved the appointment. Truth to tell, the continued tenure of Donald Rumsfeld as secretary of defense, on which the Senate will never vote, is an even greater shame.

The torture policy is an international crime, and the defense of torture by administration lawyers is an offense against professional ethics and the rule of law. Torture did not figure in the presidential election; presumably John Kerry’s focus groups persuaded him not to make it an “issue.” It is an issue nonetheless, and it will haunt our nation—as ...