Liveblogging World War II: November 15, 1940
Let No One Else's Work Evade Your Eyes!

Dahlia Lithwick: We Are All the Bag Man

William the Bastard asserted the right to kill and torture--but he admitted that he had to justify what he had done to his tenants-in-chief afterwards. George W. Bush and Barack Obama say that what they do doesn't have to be explained and doesn't get to be reviewed by anybody.

Dahlia Lithwick:

The baby steps that have taken the United States from decrying torture to celebrating it: [N]o criminal charges will be filed against those who destroyed the evidence of CIA abuse of prisoners Abu Zubaydah and Abd al-Rahim al-Nashiri. We keep waiting breathlessly for someone, somewhere, to have a day of reckoning over the prisoners we tortured in the wake of 9/11, without recognizing that there is no bag man to be found and that therefore we are all the bag man.

President Barack Obama decided long ago that he would "turn the page" on prisoner abuse and other illegality.... What he didn't seem to understand... is that what was on that page would bleed through.... There's no getting past torture. There is only getting comfortable with it. The U.S. flirtation with torture is not locked in the past or in the black sites or prisons... it's feted on network television and held in reserve for the next president who persuades himself that it's not illegal after all.

In his new memoir, Decision Points, former President George W. Bush boasts that he not only granted his permission to water-board detainees but did so cowboy-fashion—with the words "Damn right." This admission has elicited barely a ripple of self-doubt among an American public that reconciled itself long ago to the twin propositions that torture can sometimes be legal and that every terror suspect is always a ticking time bomb. Bush's contention that American torture "helped break up plots to attack American military and diplomatic facilities abroad, Heathrow airport and Canary Wharf in London, and multiple targets in the United States," has been largely rejected by British officials. (You may recall that earlier claims that Bush-era torture of Khalid Sheikh Mohammed led to the interruption of a plot to crash planes into the Library Tower in Los Angeles, were roundly debunked by my colleague Timothy Noah, who has shown that the Library Tower plot was disrupted in 2002, before the United States had even captured KSM, much less begun to torture him.)...

[A]s Ronald Reagan's former Solicitor General Charles Fried has argued in Because It Is Wrong... for all that torture hurts our enemies, it invariably hurts us even more.... "In the past we have prosecuted American soldiers who engaged in the equivalent of waterboarding. We have also prosecuted German and Japanese commandants who ordered it. Some were even executed."... [T]he Bush spin on the old Nixonian formulation... it's legal if my lawyer tells me it's legal—has become the law of the land.... As Nan Aron explains, the "my lawyer ate it" defense has been deemed illegal since Nuremburg. Now it's a get-out-of-jail-free card.

Eric Holder and Barack Obama have taken pains to tell the American people that water-boarding is illegal torture. So what? That's just their opinion. President Bush disagrees. The persistent failure to hold anyone accountable at any level for years of state-sanctioned abuse speaks louder than their words. It has taken this issue from a legal question to a matter of personal taste. What we choose to define as torture is now just another policy disagreement, like extending the Bush tax cuts or picking a caterer. This is precisely the kind of sliding-scale ethical guesswork the rule of law should preclude.

Those of us who have been hollering about America's descent into torture for the past nine years didn't do so because we like terrorists or secretly hope for more terror attacks. We did it because if a nation is unable to decry something as always and deeply wrong, it has tacitly accepted it as sometimes and often right.... It demands the shielding of torture photos and the exoneration of those who destroyed torture tapes just a day after the statute of limitations had run out.... All this was done in the name of moving us forward, turning down the temperature, painting over the rot that had overtaken the rule of law. Yet having denied any kind of reckoning for every actor up and down the chain of command, we are now farther along the road toward normalizing and accepting torture than we were back in November 2005, when President Bush could announce unequivocally (if falsely) that "The United States of America does not torture. And that's important for people around the world to understand." If people around the world didn't understand what we were doing then, they surely do now...