John McQuaid

I’ve argued that it’s unlikely any top Bush administration officials would be prosecuted for war crimes in the United States. This because the U.S. is an amnesiac country. We don’t like facing hard truths about ourselves. (Exhibit A: Why is New Orleans still so vulnerable?) We prefer to make a brief nod to whatever horrible disaster we’ve collectively enabled, then “move on.” And it seemed logical that this same attitude would apply to the torture regime created under Bush, Cheney and Rumsfeld. Jack Bauer’s antics notwithstanding, it’s pretty clear our dalliance with the dark side is ending, and Barack Obama would very much like to concentrate on other things, given that torture investigations would inevitably suck up a lot of political oxygen during a time when he is trying to accomplish other, more positive things.

But now I’m starting to think that Obama’s hoped-for outcome – that this all goes away for now – isn’t realistic. The reason is Bob Woodward’s story in today’s Washington Post, in which Susan Crawford, a Bush administration appointee who oversees Guantanamo’s military courts, comes out and calls torture “torture.” She refers to the treatment of Mohammed al-Qahtani, the alleged “20th hijacker” in the 9/11 plot. He never made it to the U.S., but was later captured in Afghanistan and shipped to Guantanamo, where he was subjected to harsh and degrading treatments over a 7-week period. Crawford ultimately judged that this met the legal definition of torture and blocked the case from proceeding.

This single case won’t make the difference on high-level torture prosecutions. But it is likely just the beginning of a parade of frank admissions about the torture regime. Why? It’s less about the nature of the acts committed than about how government and politics work.

We won’t see high-ranking officials suddenly going public anytime soon. Rummy ain’t gonna flip on himself.  But the Bush White House can no longer shut people up.  And lower-level officials in the Bush-era Pentagon, Justice Department, and intelligence agencies may decide they want to be on the right side of this issue, either for moral or legal reasons, as investigators (if there are any) will start looking at torture at the lowest levels and then work their way up the political food chain. If there are more torture findings like this one, from inside the system itself, the likelihood that criminal acts occurred becomes impossible to ignore. Impossible for career prosecutors, who will see a crime just sitting out there in plain sight; and impossible for Obama and his appointees, who may come to see a reckoning, rather than indefinite postponement, as the only viable way forward.

That said, Crawford took pains to note that individual techniques were approved, and thus hypothetically legal, just that the way they were employed crossed a line:

“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge” to call it torture, she said.

Pay attention, Rumsfeld & company – the “overly aggressive” interrogators is your defense argument.