One thing about the whole torture nightmare that I think everyone needs to bear in mind is the meaning of the phrase "bad faith".
Let's use a typical regional manager job as an example to illustrate my point. Let's say that you're sitting down at your desk and a new profitability report just came in to your inbox. While reading it, you happen to notice that one of your region's factories came in way under expectations. In order to figure out what happened to cause the numbers to drop, you call up the plant manager, who tells you that everything is fine because, even though one of the main production lines was down for repairs, the problem is now fixed and everything is humming along smoothly.
Everything's fine, right? You know the plant manager and consider him to be an honest guy -- so you can probably rely on his word that everything is back to normal, right?
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Well -- what if you received a call from the night shift supervisor, who told you that last month's numbers were down because the plant manager embezzled half the budget for the month? What if you got an email from the shop steward that accused the plant manager of firing his top guys without cause, thereby dramatically reducing productivity and output?
The above situation illustrates the difference between "good faith" and "bad faith". If the only information you had was the explanation of the plant manager, who you knew to be a trustworthy guy and you had not yet received any contrary information, you could probably rely in "good faith" on the word of the plant manager. However, once you start getting contradictory information from people like the night shift supervisor and shop steward, you need to follow up on their concerns and not just sweep them under the rug -- otherwise you would be operating in "bad faith".
Bear all that in mind when you read the following.
Exhibit 1: On October 1 2002, Major General Michael Dunlavey sent a memo to General James Hill, Commander of US Southern Command, requesting the authority to use "aggressive interrogations techniques" like those used in SERE training. The memo reached Richard Myers, Chairman of the Joint Chiefs of Staff, and the Joint Staff solicited views of the military services. Here's what came back in November:
Air Force: "serious concerns regarding the legality of many of the proposed techniques...Some of these techniques could be construed as 'torture'." Further, they were concerned that "implementation of these techniques could preclude the ability to prosecute the individuals interrogated," because "Level III techniques will almost certainly result in any statements obtained being declared as coerced and involuntary, and therefore inadmissible...
Criminal Investigative Task Force (CITM): Chief Legal Advisor to the CITF at Gitmo, Maj Sam W. McCahon, writes "Both the utility and the legality of applying certain techniques identified in the memorandum listed above are, in my opinion, questionable. Any policy decision to use the Tier III techniques, or any techniques inconsistent with the analysis herein, will be contrary to my recommendation. The aggressive techniques should not occur at GTMO where both CITF and the intelligence community are conducting interviews and interrogations." He calls for further review and concludes by saying "I cannot advocate any action, interrogation or otherwise, that is predicated upon the principal that all is well if the ends justify the means and others are not aware of how we conduct our business."
Army: The Assistant Deputy Chief of Staff for Operations and Plans writes: "As set forth in the enclosed memoranda, the Army interposes significant legal, policy and practical concerns regarding most of the Category II and all of the Category III techniques proposed."
Navy: recommends that "more detailed interagency legal and political review be conducted on proposed techniques."
Marine Corp: expressed strong reservations, since "several of the Category II and III techniques arguably violate federal law, and would expose our service members to possible prosecution." Called for further review.Legal adviser to the Joint Chiefs, Jane Dalton, commenced the review that was requested by the military services. But before it was concluded, Myers put a stop to it -- at the request of Jim Haynes, the Department of Defense General Counsel, who was told by Rumsfeld that things were "taking too long." Over the objections of the Army, the Navy, the Marines, the Air Force and the Criminal Investigation Task Force, Haynes recommended that the "aggressive technique" be approved without further investigation. He testified that Wolfowitz, Feith and Myers concurred. On December 2, 2002 Rumsfeld approved Haynes' recommendation with the famous comment "I stand for 8-10 hours a day. Why is standing limited to 4 hours?"
Exhibit 2: As early as 2002, the FBI refused to take part in so-called "enhanced interrogation" and made their strong concerns known:
By June 2002—again, months before the Department of Justice gave the legal green light for interrogations—an F.B.I. special agent on the scene of the interrogation of Abu Zubaydah refused to participate in what he called "borderline torture," according to a D.O.J. investigation cited in the Levin report. Soon after, F.B.I. Director Robert Mueller commanded his personnel to stay away from the C.I.A.’s coercive interrogations.
Exhibit 3: In 2002, the Pentagon's Office of Legal Counsel requested advice from the top Defense Department office responsible for training our troops to resist torture by foreign governments (the JPRA). In response, the JPRA informed the Pentagon that the actions they were planning to take were "torture":
The military agency that provided advice on harsh interrogation techniques for use against terrorism suspects referred to the application of extreme duress as "torture" in a July 2002 document sent to the Pentagon's chief lawyer and warned that it would produce "unreliable information."
"The unintended consequence of a U.S. policy that provides for the torture of prisoners is that it could be used by our adversaries as justification for the torture of captured U.S. personnel," says the document, an unsigned two-page attachment to a memo by the military's Joint Personnel Recovery Agency. Parts of the attachment, obtained in full by The Washington Post, were quoted in a Senate report on harsh interrogation released this week.
It remains unclear whether the attachment reached high-ranking officials in the Bush administration. But the document offers the clearest evidence that has come to light so far that technical advisers on the harsh interrogation methods voiced early concerns about the effectiveness of applying severe physical or psychological pressure.
Exhibit 4: After reading the notorious Bush Torture Memos written by Yoo, Bradbury and Bybee in 2005, a top State Department lawyer working under Condoleezza Rice found their legal reasoning to be disturbing and deeply flawed:
[T]he former aide to Condoleeza Rice, Philip Zelikow, submitted a memo to the State Department insisting that the abusive interrogation policies under consideration and approved by the OLC lawyers were clearly illegal. The issue here isn’t that someone disagreed with their policies; it’s that, according to Zelikow: "The White House attempted to collect and destroy all copies of my memo."
So think about all of that for a minute.
Some former Bush administration officials would like you to believe that they shouldn't be prosecuted for formulating the torture program because they were acting in good faith in reliance on the legal reasoning contained in the Torture Memos. The part they're leaving out, however, is the mountain of evidence in their possession that demonstrated the serious concerns expressed by a wide variety of officials, lawyers and military commanders as early as 2001.
It is definitionally impossible for someone to be acting in good faith when they only select out the information that supports the program they are intent on implementing and cast aside any information or opinions that contradict their findings or rationale.
The officials in the Bush administration who devised the torture program were acting in extreme bad faith, and for this they must be prosecuted.