Mark Danner and Bruce Fein on American Use of Torture

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Two weeks after President Obama’s release of the torture memos from the Bush administration’s Office of Legal Counsel, a debate erupted over what to do with the overwhelming evidence of human rights abuse. In this Journal episode, Bill Moyers talks to veteran reporter Mark Danner and Bruce Fein, chairman of the American Freedom Agenda and former counsel to three Republican presidents. 

BILL MOYERS: Welcome to the Journal.

Enhanced interrogation, “harsh” questioning techniques, extraordinary rendition… now we know what they were really talking about — throwing a man against a wall 30 times in a row, depriving a prisoner of sleep for 11 straight days, waterboarding one detainee 183 times — in a word, torture.

With President Obama’s release two weeks ago of those memos from the Bush administration’s Office of Legal Counsel and the imminent release of photos documenting further mistreatment, a national debate has erupted over what to do with the overwhelming evidence of human rights abuse. The President said, “This is a time for reflection, not retribution.”

But we wrestle with a powerful dilemma — shall we move on, as Mr. Obama has suggested, or do we hold a Congressional investigation, appoint an independent commission or a special prosecutor, and put those responsible on trial?

With me are two men who have been thinking and writing a lot about the morality and legality of our actions since 9/11.

Bruce Fein has worked for three Republican Presidents, including as the Associate Deputy Attorney General under Ronald Reagan. He was counsel to Congressman Dick Cheney when Cheney was the ranking House Republican on the committee investigating Iran Contra.

Nearly two years ago he was here on the Journal calling for George Bush’s impeachment…

BRUCE FEIN: He’s claimed authority to say he can kidnap people, throw them into dungeons abroad, dump them out into Siberia without any political or legal accountability. These are standards that are totally anathema to a democratic society devoted to the rule of law.

BILL MOYERS: Now in private life, Bruce Fein is chairman of the American Freedom Agenda, an organization advocating the restoration of constitutional checks and balances. He’s also the author of this book: “Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy.”

As a reporter for 25 years, Mark Danner has covered everything from politics to war to human rights, with a special focus on American foreign policy. A long time staff writer for “The New Yorker,” he is now a frequent contributor to the “New York Review of Books.”

“The Wall Street Journal” says his recent publication of a secret Red Cross report on the treatment of prisoners was key to President Obama’s decision to release those memos from the Office of Legal Counsel. Among his many books is this one: “Torture and Truth.” He has written new books that will come out this Fall: “Stripping Bare the Body: Politics, Violence, War” and “Voices from the Black Sites.”

Welcome to the Journal.

The President had a press conference on Wednesday night in which he was asked two questions about torture. If you’d been there, Mark, what would you have asked him?

MARK DANNER: I would have asked him to get out in front of the country this whole debate about torture. Why it was done. Whether it really protects the country. What we’ve lost and what we’ve gained. Because I think the losses have been very, very great.

But until the country is convinced and understands how great the losses have been, and parts with the notion that torture is necessary to protect us, we still are going to be having this continuing debate about torture as a necessity to protect the country, which I think is very harmful.

BRUCE FEIN: I would have asked him, since he’s agreed that what was done was torture, and that the United States criminal code makes torture a crime. And there’s no national security exception, no exception if you get useful information. And because we had impeached, in the House Judiciary Committee, a former President, called Richard Nixon, for failing faithfully to execute the laws. How he can justify not moving forward with an investigation when we have a former President and Vice President openly acknowledging they authorized waterboarding, what he has described as torture, is a crime.

Or in the alternative, if he thinks that there are mitigating circumstances, and there’s body language suggests that, then he should pardon them like Ford did Richard Nixon. And the reason why the difference between a pardon and non-prosecution is important, is because a pardon requires the recipient to acknowledge guilt. That there was wrongdoing. There was a crime. Just forgetting and sweeping it under the rug suggests this wasn’t illegal.

BILL MOYERS: But he is clearly trying to move, as he says, beyond the past. He’s closing Guantanamo. He doesn’t countenance torture. He says it won’t happen on his watch. I mean, shouldn’t that settle the issue?

MARK DANNER: This is an issue that, as he has put it, divides the country. But because it divides the country, in my opinion, is one reason we have to confront it. The idea that this is about the past is simply wrong. It’s not about the past. It’s about our present politics.

You have a political predicate being laid down by the former administration and by some Republicans now in office that essentially says, because these techniques have been stopped, if and when there’s a second attack, it will be the fault of the new administration. That President Obama, in deciding not to torture, has left the country vulnerable to another attack. That is present politics. That’s not about the past. That’s about now. And that’s why this has to be confronted, not only legally, because I agree with that. But politically, as well.

BRUCE FEIN: Mark, torture isn’t a Republican or Democratic prohibition. We ratified the Convention against Torture in the Senate. We passed it and made it a crime. It’s not a Republican or Democratic issue. Moreover, with regard to this idea of well, as long as we got good information, then we can flout the law. That’s not how you do it in the United States. I’ve been around for 41 years. If you think the law is deficient, then we should have repealed the torture statute.

In fact, if it was so important to undertake waterboarding and torture, Cheney should be out there demanding that it be reinstituted. Because he still agrees that we’ve got Osama Bin Laden and Al Qaeda out there wanting to plot and kill us.

MARK DANNER: But he is out there demanding it be reinstituted.

BRUCE FEIN: He should be asking, “Repeal the statue.”

MARK DANNER: You know, for all factual purposes–

BRUCE FEIN: Not just take my handcuffs off.

MARK DANNER: That’s what– for all practical purposes, that is what Cheney is saying. Cheney is saying that the fact that we’re not doing this now, he doesn’t say waterboarding in particular, but he says the fact that we’re not doing this now is leaving the country vulnerable. That is what he’s saying.

BILL MOYERS: Let me play for you what Former Vice President Cheney actually said to Sean Hannity the other day. Take a look.

DICK CHENEY: We had to collect good, first-rate intelligence about what was going on so we could prepare and defend against it. And that’s what we did. We — with the intelligence programs, the terror surveillance program, as well as the interrogation program, we set out to collect that kind of intelligence. It worked. It’s been enormously valuable in terms of saving lives, preventing another mass casualty attack against the United States.

MARK DANNER: What’s critical about that, I think, is not only that the former Vice President of the United States is saying it. It’s that a lot of Americans believe it. You know, the torture discussion, I think involves the law in the way you suggest. I think it involves prosecutions in the way you suggest. I have no problem with that. I agree with that. But the key question here is: if it’s simply a legal matter, if it’s a matter of recognizing the law was broken and prosecuting people, why wasn’t this done in 2004? We have known about this, for five long years now. How it happened, who approved it. More documents are coming out. But in fact, the basic narrative we’ve known since the summer of 2004. Nothing was done, because as a political matter, the politics of this, until very recently, and arguably still, cut in the other direction. Which is to say, a lot of people believe it, a lot of people think you have to be harsh with terrorists. A lot of people support, either vocally or quietly what the Vice President just said so vividly.

BRUCE FEIN: This is the way I would respond–

MARK DANNER: That’s the political problem we have to confront.

BRUCE FEIN: But you cannot separate the political from the legal, the constitutional.

MARK DANNER: Oh, I agree with that.

BRUCE FEIN: The President of the United States, the Attorney General, when I was in office, I took an oath to uphold and defend the Constitution of the United States. Meaning, to enforce it. And there’s a way out of that. You can issue pardons. You don’t have a right to consult the political forces, say, “I’ll just ignore the law.”

And in fact, in 2004, we confronted the same problem we had with Nixon. He wasn’t going to investigate Watergate and the obstruction of himself. That’s why I had a special prosecutor, and ultimately an independent counsel. That hasn’t been done in this case. But now, the President and the Vice President who authorized this are gone. So, there’s no obstacle. If President Obama didn’t want to be President and faithfully enforce the laws, he shouldn’t be there.

MARK DANNER: You know, let’s–

BRUCE FEIN: He should issue a pardon.

But I want to go to the more important issue. This is the whole idea of who we are as a country. If you think the law is handcuffing you, you change the law. The President can’t say, “I just flout the law.” That’s what banana republics and tyrannies do.

MARK DANNER: Can we follow the Watergate parallel just for a second? Because I think this makes my point. Watergate, as some of your viewers will remember, and some won’t–

BILL MOYERS: High crimes and misdemeanors.

MARK DANNER: Involved not only high crimes and misdemeanors, involved Judge Sirica. That is, you had prosecutions going on. You also had the Watergate Select Committee, which was a television event, I remember, vividly.

It showed the country what happened, and why what happened was wrong. And in so doing, it laid the political groundwork for political change. And for investigation, true investigation, so that the legal part of it didn’t simply seem to be a witch hunt. That’s what, to me, that’s how torture has to be–

BRUCE FEIN: But that can have all–

MARK DANNER: Confronted, on both sides–

BRUCE FEIN: All Obama has to do is ask for a joint committee or a torture committee and it would happen tomorrow.

We have to confront this issue, whether we’re going to live by a rule of law. ‘Cause it’s the same issue that’s arose, Bill, with regard to the electronic surveillance. “Oh, the FISA statute’s handcuffing our ability to gather intelligence. To heck with the law, we’ll just go ahead and do it.” No, in this country, if we want a republic to exist, you have to change the law. That’s the difference between a civilized country, and one that’s arbitrary and capricious. That’s what we’re fighting about.

BILL MOYERS: So, what do you want Obama to do, Bruce?

BRUCE FEIN: If Obama thinks that these people, and he’s said, have committed torture, and he doesn’t believe it should go forward for political reasons, he needs to pardon them.

BILL MOYERS: Before they’re convicted of anything?

BRUCE FEIN: Yes, that’s what happened with President Nixon. He wasn’t accused of anything. He wasn’t indicted. You can issue pardons before there’s a formal accusation.

BILL MOYERS: So, therefore– then what?

BRUCE FEIN: Then at least we do not have a situation where we have set a precedent that lies around like a weapon, that you can violate the law with impunity. Then, at least, at that point, we can have a full investigation. There’s no criminal culpability.

BILL MOYERS: You would follow the pardon with an investigation?

BRUCE FEIN: And try to–

BILL MOYERS: Congressional investigation?


BILL MOYERS: Special prosecutor?

BRUCE FEIN: We need Congress to get back and do its work, Bill.

BILL MOYERS: But they’re compromised. I mean, four top Members of Congress were briefed on this, back in 2002.


BRUCE FEIN: Then they need to be exposed, the Congress shouldn’t be covering up itself.

MARK DANNER: Well, the problem here is, the entire top of the government is implicated in this. It’s not just the Bush Administration. Congress was briefed. And it’s one of the reasons why Democrats in Congress, some Democrats, are not enthusiastic about a commission.

So, if you define it narrowly in a legal way, to me, that’s a dead end. I support prosecutions, but I believe there needs to be a full investigation that will not only tell us, in minute terms, what was done. We now already know a lot about this. But that will educate the country, not only about what was done, but what was lost. And why this is important.

BILL MOYERS: An investigation by Congress, as you say, compromised? Or by an independent commission that’s not accountable to Congress or the White House?

MARK DANNER: I would favor, myself, an independent commission, along the lines of 9/11. There are downsides to that. There’s no question about it. It would take time. You need to have, obviously, the highest security clearances. They need to look at all information. But they need, above all, to be credible, and authoritative.

You need to be able to speak to the country, and say, “This was a disaster. And this is why.” And, you know, there’s one other point to be made about the relationship between politics and the law. At the end of the day, it’s the politicians who make the law.

Lawyers may not want to recognize that. But in 2006, this is very late, 2006, few years ago, we already knew about Abu Ghraib. We already knew about torture. Congress passed a law called the Military Commissions Act that, part of which, shielded those interrogators who took part in this stuff from prosecution under the War Crimes Act. Now, this was passed in full view of the public by Congress. Democrats could have filibustered it. They didn’t. Why? Because they knew it would be a political risk. And they would be accused of “coddling terrorists.”

BILL MOYERS: The other day, Karl Rove was on Fox News, saying you don’t want any administration to criminalize policies of the previous administration. Take a look.

KARL ROVE: We’re going to turn ourselves into the moral equivalent of a Latin American country run by colonels in mirrored sunglasses, and we’re going to do is prosecute systematically the previous administration or threaten prosecutions against the previous administration based on policy differences. Is that what we’ve come to in this country?

BRUCE FEIN: That is nonsense on stilts. Torture is not a political issue. Torture is something prohibited–


BRUCE FEIN: Under a treaty by the U.S. Senate. It was prohibited in the U.S. Criminal Code. A bill passed by the House and Senate, including Republicans. And this idea that this would be like banana republics. No, we have due process. No one gets convicted without proof beyond a reasonable doubt, right to counsel, opportunity to cross-examine all adverse witnesses, make all the arguments, reasonable reliance on the law, which is a defense. So, this idea of saying that we have a criminal enforcement system that’s a banana republic shows his ignorance of how our system works, as opposed to how banana republics work.

BILL MOYERS: I spent the weekend reading the documents that you’ve published in the “New York Review of Books,” from the Red Cross Report. And then I spent the rest of the weekend, reading the four memos that had been released by the government recently. I want to ask you this, I mean, they turned the stomach. But is there anything new in them?

MARK DANNER: I mean, what I think is distinct about the Red Cross Report is that it describes, in minute detail, from the detainees themselves, the kind of torture that they were subjected to. In great detail. You know, it’s easy to talk about waterboarding. And say, “It only takes 30 seconds. It’s very easy. It’s very effective. It’s not cruel, because it breaks people very quickly.” You heard this, particularly on Fox News, but elsewhere for years now.

In fact, we find out a couple of things. We find out that it’s extremely violent, that it causes extensive vomiting and physical reactions. And those descriptions are very vivid in the Red Cross Report. We find out from the legal documents you’re talking about that this was not done once to Abu Zubaydah. This was done 83 times. This was done 183 times to Khalid Shaikh Mohammed, in a month. So, we’re talking about six times a day.

BILL MOYERS: These documents that have been released, spell out–lawyers spelling out specific water temperatures to be used when hosing detainees. The length of time detainees could be denied sleep or put in stress positions. How the head and the neck needed to be supported by a towel when they were knocking them against the wall. I mean, Mr. Lawyer, what’s going on there? Why are lawyers doing this?

BRUCE FEIN: Well, what you see, it’s clear that they got marching orders. “We need to do this to save the country. Give us some kind of legal cover.”

BILL MOYERS: You think it came from the top?

BRUCE FEIN: Of course, it came from the top. I worked in Office of Legal Counsel.

MARK DANNER: We need to get that document, though.

BRUCE FEIN: I worked in Office of Legal Counsel. Office of Legal Counsel never just out of the sunset said, “Hey, why don’t we write a memo saying you can do all these things to save the country.” They obviously got a request over from the White House. And we don’t even know whether they had already started these enhanced interrogation techniques and then thought after the fact, “Hey, let’s get a legal cover.”

Which is, apparently, what they did in the illegal surveillance. They started the violations of FISA and then said, “Now, let’s concoct some kind of theory that justifies this. And why it looks so slipshod, in terms of its rationale. But one of the recurring refrains in these memos is the cop out of the advice.

We assume that there will be physicians on the scene, where if it becomes torture, they’ll stop it. Well, how are they going to know? But they keep saying that we assume that the pain or the mental suffering becomes prolonged, the physicians will say it’s too much. And you’ll stop. But it also is what you’re saying, very antiseptically written. Like, you know, it’s like you can read in “1984.”

MARK DANNER: If you read the Red Cross Report closely, as you spent your weekend doing– I’m sure it was a happy weekend– there were moments where, in fact, the physicians did stop certain things. One of the detainees, who was subjected to forced standing. That is, his hands were manacled to the ceiling. And he was kept on one foot for days. One foot, because one of his legs he had lost in fighting at Afghanistan.

A doctor finally came in and measured with a tape measure the swelling of his leg, his remaining leg, and decided that this had to be stopped. During the waterboarding, they put a clip on one detainees hand to monitor the oxygen content of his blood, to make sure that they wouldn’t kill him. This is the one who is waterboarded 183 times in a month.

So, you had this perverse both legal sides of this. You know, the Red Cross Report and the four memoranda that the Obama Administration released are in a funny way the mirror sides of the same event. You have on the one hand the detainees talking about it, on the other hand, the lawyers describing these things. And it makes it haunting– you know, I’d encourage viewers to just read these.

BILL MOYERS: We will link viewers to our website. But I want to ask you this. You were talking about how these documents got written. The columnist David Broder wrote this weekend, that these memos, and I’m quoting, “represented a deliberate and internally well-debated policy decision made in proper places.” What’s your take on that? He is saying these were done in– under the right procedure, in the right way, by the right people.

MARK DANNER: First of all, he is, in a sense, the voice of the Washington establishment. He is telling you, look, this happened within the government. It happened according to channels, et cetera. It’s important for a second reason, I think, which is that this stuff was debated at a high level of government. It was talked about.

And there’s evidence that, as this interrogation was going on– that’s described in minute terms in the Red Cross Report. As the waterboarding was happening, the sleep deprivation, the forced standing, there was daily, really hourly, contact between those rooms in Afghanistan, Thailand, and elsewhere, in the Black Sites. Daily contact between them and Langley, Virginia. All of these things had to be approved at the acting director-level of the C.I.A. And daily contact between the C.I.A. and the Principals Committee in the White House. George Tenet came over and briefed–

BILL MOYERS: Director of the C.I.A., right.

MARK DANNER: Then the Director of the C.I.A., and briefed the principals, almost on a daily basis on these interrogations. So, you know, they were informed in real time what was going on. Which goes back to the question about prosecutions. You know, again, I don’t oppose prosecutions. I think they should come, perhaps not immediately. But they should definitely come. But the question is also, where do you start?

If the President approved it, the Vice President approved it, the Principals Committee, including the Vice President and the Attorney General, by the way, were briefed on it every day. You know, you have the interrogators doing it. You have the top level of the C.I.A. approving it, in writing. You have the Justice Department approving it extensively, minutely, in writing, right down to the level of techniques and whether you can put insects in the black box in which you’re stuffing a detainee. You have, from the bottom-most levels of the interrogators, all the way to the President, involvement of the entire U.S. Government.

BILL MOYERS: All right, but let me ask Bruce, who served in the Justice Department, only one of the three of us who did. It is two or three days after 9/11. The President has said to John Ashcroft, the Attorney General, “John, don’t let this happen again.” And everybody says, “We’re in a pressure cooker.” The C.I.A. is frantically trying to find out if there’re going to be more attacks. And everybody said, “We’ve got to find out if they’re going to attack us again. And the detainees we have here are the ones who can tell us. If anybody knows about the next plot, it’s them.” What would you have done?

BRUCE FEIN: Well, there are two things that I would think I would have advised the President. Number one, we can get any law repealed, revoked, changed, authorized what you think needs to be done. Congress did that with regards to the authorization to use military force, so you change the law if you think they’re restricting. Even-

BILL MOYERS: You go to Congress.

BRUCE FEIN: Yes, go to Congress. And you can do this in secret session. Then Congress would have done anything the President- they would have passed a law saying the world is flat after 9/11, if the President asked for it. The second thing is, even if you thought that there was no time whatsoever. You’d say, “Mr. President, if we do it, as soon as we’ve done, we need to go to Congress and ask for ratification, after the fact. They’ve got to ratify what we’re doing is legal.” We can’t just throw the Constitution and shred it. Like we’re- now national security, then it trumps the Constitution of the United States.

So, there are ways in which you can approach this kind of crisis. Even defying the law as long as you make certain that you’re going to go back, have political ratification. You can explain what you’ve done, without exposing sources and methods. And if you have to expose sources and methods, in order to have a legitimacy, that’s what a republic requires. That’s how you can do this.

MARK DANNER: It’s clear why they didn’t do that. They essentially say that when it comes to wiretapping, when it comes to torture, when it comes to various other things involving the President’s power to make war, Congress simply cannot interfere. Therefore, the war- the laws that seem to do that, like FISA, are inherently illegitimate.

BILL MOYERS: President Obama has absolved those who did the torturing. They won’t be prosecuted, he said. And Attorney General Holder said the other day, and I’m quoting, “It would be unfair to prosecute dedicated men and women, working to protect America for conduct that was sanctioned in advance by the Justice Department.” Is something a crime if the Justice Department has defined it as legal?

BRUCE FEIN: Well, Bill, there’s been a longstanding rule in the laws that reasonable reliance upon legal advice is a defense. In fact, it was successfully invoked by Bernard Barker in the Watergate case. He told- “E. Howard Hunt told us, we need to burglarize the psychiatrist’s office of Daniel Ellsberg for national security purposes.” So, that is already into the law. That’s entirely proper.

But the people you go after, you were mentioning, Mark, is at the very top. It’s at Bush and the Cheney level. That’s why Richard Nixon was under investigation for obstruction of justice. They didn’t say, “Just go after Haldeman and Ehrlichman and the Watergate burglars.” They went after the President of the United States. That’s why he needed a pardon. And that’s what should happen here.

The authorization came at the top. It’s unfair to suggest these people who are being told by the President, who has access, purportedly, to all the national intelligence and security things in the world. “Do this. It’s legal.” And then you prosecute them? And the one who actually was responsible gets off scot-free? No, that’s not the rule of law.

BILL MOYERS: Is the Obama Administration echoing, in effect, the defense of the German officials, who, at the Nuremberg Trial following World War II, said they were only following orders that had been from policy set by their higher-ups?

MARK DANNER: One of the problems with talking about Nuremberg is that one has to have– you know, if you order someone to, say, “Look, there’s a crowd of people over there. Shoot them. Here’s the order.” It’s reasonable to assume that the person who has been given that order can look at this and say, “Well, that’s murder. I shouldn’t do it.”

You have a case, in the torture debate, that’s somewhat different, where you had legal documents that said, “You know what? Torture is defined in this way. In fact, waterboarding doesn’t fit under these strictures.” Now, we can look at these documents and find them absurd, I do. But they were legal arguments. The C.I.A. demanded them. And this goes back to the Church Commission–

BILL MOYERS: Senator Church investigating–


BILL MOYERS: Right. Right.

MARK DANNER: We’re talking about Watergate again, of course, because this was in the aftermath of Watergate. They uncovered all kinds of assassination attempts, C.I.A. wrongdoings. And, in fact, from that point on the President, who before would have basically said, “I didn’t know about that.” Henceforth, as a result of those hearings, the President had to sign a finding and say, “You know what? Do this. I order you to do this. I’m the President. This is legal.”

We have that in this case. And the result is, of course, the C.I.A. was very concerned to get their legal golden shield. That’s why we have these documents. The result is that the entire government is implicated. I admire Bruce, because he has the courage of his convictions. He’s saying, “Prosecute the President. Prosecute the Vice President.”

BRUCE FEIN: Or pardon. No, and I’m not saying that. I’m saying you can pardon him. You can pardon him.

BILL MOYERS: Isn’t there the assumption of guilt, if you pardon them?

BRUCE FEIN: Of course, there is. And that prevents it from being a precedent that you can violate the law with impunity. That’s why it’s important to have a pardon rather than non-prosecution.

MARK DANNER: But if you’re going to have a pardon- I mean, I think the pardon is very interesting idea. But if you’re going to have a pardon, the only way to do it, it seems to me, is at the end of a long investigation, or at least, a thorough investigation, that shows why they need to be pardoned.

BILL MOYERS: And who should do the investigating?

BRUCE FEIN: It would have to be an independent commission, because as you pointed out, and Mark, the Congress itself is implicated. Congress can’t be trusted to investigate itself. Pelosi’s not going to investigate herself. Jane Harman’s not going to investigate herself. Harry Reid‘s not going to do that. So, you need an independent commission.

In the past, Bill, we’ve recruited people off the U.S. Supreme Court to head these kinds of commissions. There’s Earl Warren.

BILL MOYERS: Robert Jackson from the Supreme Court presided over the Nuremberg Trials.

BRUCE FEIN: Yes, so that- those would be candidate to undertake this kind of commission. But the critical thing is that the commission has to have access, as Mark said, to all classified information. And they have to have authority to declassify it. Because what made the Church Committee successful, to the extent it was, like Watergate had been. It was public. You can have some secret sessions. But it’s an educational mission that Mark’s talking about, that’s got to be done. This can’t be done in secrecy.

BILL MOYERS: You know, during the Vietnam War, the United States sponsored, trained, and funded an operation, Operation Phoenix, which approved our allies in South Vietnam, practicing torture. Taking Viet Cong suspects and torturing them. North Vietnamese soldiers, insurgents.

By the C.I.A.’s own account, over 20,000 suspected insurgents were killed or tortured to death with our approval. We have also learned in all these hearings you’ve been talking about, how the U.S. trained torturers in Central America and let death squads operate in Central America. We now think that there’s torture going on by our allies in Iraq.

So, here we are talking about maybe 28 men after 9/11 who were tortured, and talking about three of them who were waterboarded a number of times. Why all the tumult now?

BRUCE FEIN: It’s a matter of proximity to the evil. If you’re doing it directly, it’s different than if you’re encouraging somebody else to do it. And one of the things that your question brings out is, as you know, we had the Chief of Staff to Colin Powell, Lawrence Wilkerson testify, just last year, there have been 108 detainees, who died in U.S. custody. And 25, he says, have been found by our own internal investigation to be victims of murder. And we just sort of shrug our shoulders. It shows all-


BRUCE FEIN: Well, why do we do it? It’s Alexander Hamilton in “Federalist 8,” and I encourage all your readers the read “Federalist 8.” It said, at a time of crisis in war, even democracies will yield civil liberties and freedom, because they’ll be fearful. And that the leaders have to try to prevent that. And that’s what’s going on here.

Remember the same phenomenon in World War II. 120,000 Japanese Americans. Got to put them in concentration camps. Even though five months after Pearl Harbor, no evidence of espionage, no evidence of sabotage. They were volunteering out of the concentration camps to go fly, and got the medal for their bravery. And yet, we did it. And it took twenty-some, thirty years later before we said, “This got it wrong.” This is happening again. The leaders are there to try to prevent us from succumbing to our basest instincts from fear.

MARK DANNER: There’s no question that there have been many times in American history when the United States is attacked, when it responds by breaking its own laws. You could cite the Palmer Raids, Korematsu, as you just did, the McCarthy period. You can cite a number of examples. But you asked why this is different. And I’ll tell you what it seems to me is dramatically different. This was made legal, within the American Government. I say “made legal” with quotes. This was officially done. This was ordered by the President. The Department of Justice made memos saying you can do this. The principals, Attorney General, Secretary of Defense, Secretary of State, National Security Advisor, sat in meetings and talked about interrogations that were plainly illegal, according to our laws, and according to treaties we have signed.

All of it is now laid out before the public, and finally, if you look at Fox News, if you look at discussion of this — usually on the conservative side, not always, but usually on the conservative side — you find a strong attempt, basically, to say, “Not only should this stuff have been done, but we should not handcuff ourselves. We should keep doing it.” So, we’re talking about not simply what happened before. We’re talking about the politics of now. And that’s why it’s important.

BILL MOYERS: Are we in danger of letting this preoccupation with what is over and happened five years ago, distract us from coping with the world?

BRUCE FEIN: No. Indeed, our greatest character as a nation comes from putting rule of law and how we behave towards others as more important than what the GNP is. Once we decide it’s more important to prevent a layoff in some place, as opposed to following the rule of law, then we’ve lost our soul as the United States of America. Then we’re the Roman Empire. And that’s not what the founding fathers fought for.

Moreover, the Nixon period shows that you can chew gum and walk at the same time. There, you may recall, in the middle of impeachment, we had the Yom Kippur War. We had crisis with the Soviet Union. Putting on high alert, all those sorts of things. The impeachment process went on. You can pass laws, as well. There’s no reason why that the focus on prosecution or pardons and confronting this directly disables us from addressing these other issues. And if it does, that’s the price you pay for liberty in a republic.

MARK DANNER: And one should add, by the way, that this is vitally important not only because of what happened before, but because of what’s going to happen after another attack. And we have to assume there will be another attack. And if the argument that torture is absolutely crucial to protect the country is accepted by the population, then in the wake of another attack, the politics, I think, are very likely to be extremely poisonous.

Blaming the current administration, because it didn’t torture, and thus left the country vulnerable. So, we’re talking about not simply the Bush Administration. We’re talking about who we are, what we do in the world, how we fight this war, and what will happen in the wake of another attack that’s very likely to come.

BILL MOYERS: This has been very informative. Bruce Fein, Mark Danner, thank you for joining me on the Journal.

MARK DANNER: Thank you, Bill.

BRUCE FEIN: Thank you, Bill.

BARACK OBAMA: We have rejected the false choice between our security and our ideals by closing the detention center at Guantanamo Bay and banning torture without exception.

This transcript was entered on June 7, 2015. 

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