Jordan, a South Dakota-born reservist who volunteered to go to Iraq, has been in legal jeopardy over Abu Ghraib and his subsequent statements to Army investigators for the past two years. Maj. Gen. Antonio Taguba, who conducted one of the earliest probes into Abu Ghraib, accused Jordan in his March 2004 report of “making material misrepresentations.” The new charges against Jordan contend that he lied when he told Taguba that he “never saw nude detainees [and] never knew of dogs being used in interrogations.”

Some of the military’s evidence implicating Jordan in this matter is contained in two lengthy unpublished interviews, obtained by Salon, that Army investigators conducted with two soldiers already court-martialed for their activities at Abu Ghraib. The Army’s Criminal Investigation Command (CID) questioned Cpl. Charles Graner and Staff Sgt. Ivan Frederick II while they were serving prison terms. The men told investigators that Jordan witnessed abuse and did nothing to stop it, and even helped construct a plywood wall to hide what was going on from Iraqi police.

If what Graner and Frederick claim is true, then Jordan represents the intersection between the abuse conducted by low-level soldiers and the aggressive demands of high-ranking military and civilian officials for more complete intelligence information from the detainees.

What is unclear from Friday’s charges is whether Jordan is being held accountable solely for his own actions at Abu Ghraib or whether he is also being prosecuted for the abuses committed by soldiers under his command. So far 10 enlisted soldiers have been convicted for the now-infamous abuse of detainees at Abu Ghraib. More than a year ago, the Army obtained statements indicating that Jordan knew and condoned sexual humiliation of Abu Ghraib prisoners.

While human-rights experts hailed the charges against Jordan as a sign of the Army’s willingness to move up the chain of command in prosecuting Abu Ghraib cases, they also expressed concern that the specificity of the references to Sanchez’s orders may insulate high-ranking military and civilian officials from responsibility for the prisoner abuse.

In CID interviews with Graner and Frederick, Jordan is depicted as central to the abuse. Graner, who has been portrayed by the government as the ringleader of the actual abuse at Abu Ghraib, described Jordan as “the man that ties everything with everybody.” According to Graner, Jordan saw “people hanging from their cell, restrained to the doors and everything that went on” — and did nothing to stop it.

Frederick painted a similar picture in his Nov. 3, 2004, interview with CID as he discussed Jordan’s role at the prison. “He saw them [detainees] nude and handcuffed to the doors,” Frederick recalled. “I talked to him directly a couple times and he never said anything to me about how we were treating the detainees.”

Graner described to Army investigators the fallout from the night of Nov. 7, 2003, when some of the most disturbing instances of sexual humiliation occurred at the prison. That night, according to Army investigations, Graner and his fellow soldiers forced a naked group of prisoners to form a pyramid, simulate masturbation and simulate oral sex. The abuse occurred outside the jail cells in a prison corridor that could be seen through a doorway by Iraqi police who were stationed at Abu Ghraib.

Graner said that he told Jordan the next day what occurred on the prison night shift. As Graner recounted, Jordan’s response was neither shock nor outrage. Instead of ordering the abuse halted, Jordan allegedly helped Graner erect a plywood wall that would obscure the view from the prison corridor.

“I had reported to him [Jordan] the night after the masturbation about what had happened,” Graner told investigators. Graner said that he expressed the view that “if it was going to happen, it shouldn’t happen out in the open.” In response, Graner said that Jordan “gave me the wall.” Both men allegedly picked up the plywood at nearby Camp Vigilant and, in Graner’s words, “we put it up.”

Graner was interviewed by CID under a grant of immunity on April 6 and 7, 2005.

In his own interview with Army investigators, Frederick also identified the photograph that shows the plywood wall apparently designed to conceal detainee abuse. When questioned by CID, Frederick described it as “the partition so that the Iraqi police could not see” into the intelligence wing of the prison.

Jordan himself discussed this topic on Feb. 10, 2004, with Taguba. According to the Taguba report, Jordan claimed that the partition was designed to protect prisoner privacy. “It had something to do with if they brought somebody out that was doing a clothing change or they were taking a garment from or something like that,” Jordan said. “They didn’t want females walking by observing.”

Nowhere in Friday’s charges against Jordan is there any reference to another shadowy activity in which he participated at Abu Ghraib — the hiding of “ghost detainees” at the prison whom the CIA interrogated in off-the-books fashion.

Both Frederick and Graner describe Jordan as deeply involved with the CIA at the prison. According to Graner, Jordan oversaw 40-50 of these “ghost detainees,” whom the CIA would deliver to the prison, interrogate and then remove to parts unknown without the assignment of prisoner numbers or any military paper trail.

One such ghost detainee, Manadel al-Jamadi, died at Abu Ghraib during a CIA interrogation in a shower room at the prison in November 2003. A military autopsy found that the cause of death was “blunt force injuries complicated by compromised respiration.” Photos of Jamadi’s body, packed in ice, were among the more shocking images from Abu Ghraib.

According to documents obtained by Salon from an investigation into Jamadi’s death, Jordan arrived in the shower room soon after the prisoner died and was involved in a discussion with a CIA operative about what to do with the dead body. Capt. Christopher R. Brinson told government investigators that the body was removed the next day by placing it on a stretcher and putting an IV into his arm to fool other prisoners into thinking that Jamadi was still alive.

In his 2004 interview with Taguba, Jordan admitted helping handle ghost detainees, but only under the orders of a superior officer, the military intelligence commander at Abu Ghraib, Col. Thomas M. Pappas.

Salon telephoned two attorneys involved in Jordan’s defense requesting comment. The calls were not returned. When interviewed by Taguba, Jordan denied knowledge of any prisoner abuse at Abu Ghraib. As Jordan put it during hostile questioning by Taguba, “I never imagined anything going on other than normal operations.”

In their charges against Jordan, the Army repeatedly refers to such statements as “totally false.”

With additional reporting by Michael Scherer

It could take weeks or even months to lay off workers under the terms of their current union contracts.

Meanwhile, Wisconsin Assembly Speaker Jeff Fitzgerald announced Tuesday the Republican-led chamber would pass its version of a bill cutting collective bargaining rights for most public employees. Fitzgerald said Republicans were elected to lead the Assembly in November to make deep cuts to state spending, and they will deliver on that pledge.

“When you talk about a compromise, no. We’re going to make a reform,” Fitzgerald said.

Senate Democrats walked out last week rather than vote on Walker’s bill that would force public workers to pay more for their benefits. He also wants to eliminate collective bargaining for nearly all workers except concerning salary increases that aren’t greater than the Consumer Price Index.

The proposal, designed to help Wisconsin plug a projected $3.6 billion budget hole, has led to eight straight days of massive protests that grew as large as 68,000 people on Saturday.

Security was tight in the Capitol on Tuesday morning as both the Senate and Assembly were in session. Democrats in the Assembly planned to push for adoption of more than 100 amendments.

The Senate continued to be stymied in its ability to vote on the bill after the 14 Democrats walked out on Thursday, making it impossible for the remaining Republicans to take up the measure. The Democrats stayed away again on Tuesday, while the 19 Republicans continued on with other business, including passing a resolution commending the Green Bay Packers on winning the Super Bowl and extending a tax break to dairy farmers.

The Senate met under the watchful eye of state patrol troopers, but only about 15 members of the public, in the galleries. The roar of protesters chanting and beating on drums just outside the Senate chamber in the Capitol Rotunda could be heard as Republicans conducted its business.

Walker and Republican leaders have repeatedly called on the Democrats, who escaped to Illinois, to return and get back to work.

Democrats have said they won’t come back until Walker is willing to negotiate.

Public employees have said they would agree to concessions Walker wants that would amount to an 8 percent pay cut on average, but they want to retain their collective bargaining rights. One Republican senator also has floated an alternative that would make the elimination of those rights temporary.

Walker has repeatedly rejected both offers, saying local governments and school districts can’t be hamstrung by the often lengthy collective bargaining process. He says they need to have more flexibility to deal with up to $1 billion in cuts he will propose in his budget next week and into the future.

It’s a high-stakes game of political chicken that has riveted the nation and led to ongoing public protests. Neither Republicans nor Democrats are budging: Walker says he won’t negotiate, and the 14 missing Senate Democrats say they won’t return until he does.

“We’d love to come back today,” said Democratic Sen. Jon Erpenbach, one of the 14 who went to Illinois. “We could be up there this afternoon and pass this if he would agree to removing the language that has absolutely nothing to do with balancing the budget.”

Republicans planned to forge ahead with other business Tuesday, including a resolution honoring the Green Bay Packers for winning the Super Bowl and a bill extending tax breaks to dairy farmers. Those bills have bipartisan support, but Senate Majority Leader Scott Fitzgerald — Jeff Fitzgerald’s brother — has tried to put pressure on Democrats by threatening to take up more controversial matters, such as a GOP-backed proposal requiring voters to show photo identification at the polls.

“You have shut down the people’s government, and that is not acceptable,” Fitzgerald said to Democrats during a brief meeting Monday setting the Senate’s agenda for Tuesday. Two Democratic senators participated in the meeting by phone.

Democrats counter that Walker could compromise and put an end to the stalemate.

“It’s right in front of the governor,” Miller said. “He just needs to pick it up and allow us to move on. … This is a no-brainer.”

As Walker spoke under heavy guard at a late Monday afternoon news conference inside his conference room, thousands of protesters could be heard through the doors blowing whistles, banging on drums and chanting “Scott Walker has got to go!”

“This guy is power drunk and we’re here to sober him up,” said Bert Zipperer, 54, a counselor at a Madison middle school who was among the protesters. “He wants to do it unilaterally without any compromise. He wants to be a national conservative hero and he thinks he can get away with this.”

Walker’s plan would allow unions representing most public employees to negotiate only for wage increases, not benefits or working conditions. Any wage increase above the Consumer Price Index would have to be approved in a referendum. Unions would face a vote of membership every year to stay formed, and workers could opt out of paying dues.

The emergency plan is meant to address this year’s $137 million shortfall and start dealing with the $3.6 billion hole expected by mid-2013. The benefits concessions would amount to $30 million this year, but the largest savings Walker proposed comes from refinancing debt to save $165 million.

That portion must be done by Friday for bonds to be refinanced in time to realize the savings by June 30, the end of this fiscal year.

Walker said not passing the bill by Friday would make even deeper cuts necessary and possibly result in laying off 1,500 workers over the next four months.

Associated Press writer Ryan J. Foley contributed to this report.

Looking through my list of contacts I figured out that the text was from a soldier — let’s call him Frankie — a 34-year-old father of three. I had met Frankie at his home exactly one year prior. His small raised-ranch house was surrounded by similar ones, separated by narrow yards filled with lawn ornaments — frog statues and mini-windmills. Inside, it was crammed with evidence of dedicated parenting — cheerleading uniforms on hangers, children’s toys piled up on the edges of the living room, and photos of beaming kids plastered on the fridge. We sat at his kitchen table, drinking water out of McDonald’s souvenir glasses. The lights were mostly off, the television tuned in to the game with the sound off; his wife had taken his three young kids to the mall for the day so they wouldn’t overhear what he had to say. 

No longer in the National Guard, he had let his beer gut grow out but still kept his head closely shaved. Frankie was back working in a cafeteria where his father had before him. He considered applying the skills he’d learned as a Military Police officer at a position in one of the many local prisons, as had several other members of his unit. He said the night shifts would be too much, but one couldn’t help wondering whether time at Abu Ghraib had been enough prison work for one lifetime.

Frankie was one of the guards assigned to take over the blocks at the hard site when the other soldiers were court-martialed. He was told there would be no photos of naked detainees stacked into pyramids but was trained how to short-shackle prisoners to bed frames, tie sandbags over their heads and keep them awake for days. In Frankie’s view, they “were fairly decent to the prisoners, but obviously you have ill feelings toward them to start with.”

It had been four years since he’d come home, but he said it was the first time he had really spoken about the prison. When he first came home, people asked him questions. When he was grabbing a beer at the local bar, people inevitably asked, “Oh, come on, you must have known the abuse was happening. Did you see the pictures? Did you get in on the action?

“I just kind of swept it under the rug or joked about it,” Frankie told me. “You kind of push it away as best you can.” But that didn’t always work.

Frankie’s stepfather told me that soldiers like Frankie needed to be left alone and treated like nothing had happened. His wife was “more or less supportive” and occasionally he told her stuff — stuff he thought he probably shouldn’t — but only when he got “drunk and stupid.”

“Honestly, she gets more upset that I was drinking than about what I told her,” he said with a laugh, adding that he usually didn’t even fully remember the conversations.

I had placed my tape recorder prominently between us on the kitchen table. It made it easier to listen intently without having to take notes. But it was also to remind him that this interview was on the record and part of my job.

He was understandably cagey when he told me about what happened in the prison. He ran through the list of abusive techniques he used on detainees, but haltingly. “I don’t want to even be associated with it,” he said. “There might be that shadow, like when a girl cries rape, and even if they prove the guy innocent, it is always there in the back of people’s minds for the rest of his life.”

It seemed even harder for him to explain what was happening inside his head. He told me he no longer constantly thought about Abu Ghraib the way he did when he first got back. He no longer jumped whenever a car backfired, but he was still on edge, still had nightmares and bouts of depression.

Compared to other soldiers whom I had spent weeks and months with, I barely knew Frankie. We only met twice, for perhaps a total of four hours, first at his home and later at the fluorescent-lighted cafeteria where he worked. Yet, those two conversations had provided him with something he hadn’t been able to get anywhere else. I wished desperately that he’d had those conversations with his wife, instead.

When I started reporting the book, I never imagined that tough soldiers would tell me what happened in those prisons, let alone how it made them feel. But since then, soldiers have told me that it’s easier for them to talk to someone like me than anyone else. Over Coca-Colas at a strip-mall Chili’s, one soldier admitted for the first time that he had tried to kill himself in Iraq. Another confessed to having lashed an Abu Ghraib prisoner repeatedly over his third-degree burns. I heard their voices slow down and saw their eyes glaze slightly as they told me that they had come to realize ugly things about themselves. I learned how to listen for the things they weren’t saying and how to offer them the space to fill in those gaps.

I wanted to know everything I could about these soldiers. I wanted to get inside their minds and understand the world from their perspective. I hung on their every word, relistened to the recorded conversations later, paying attention for places where I had failed to pick up a nuance or implication that needed more explanation, and coming back with more questions. It’s unusual to have someone hang on your every word. For soldiers who are used to being brushed aside, it can be unheard of.

Friends can’t understand what they are going through, and other soldiers will just call them pussies. They fear that V.A. psychiatrists, who pump them full of pills, are only concerned with getting them well enough to be sent back to the war zone. Some of the wives have even told me that they would rather not know the stories that their husbands have told me. Telling family members, especially wives, means tarnishing yourself in the eyes of someone you have to face every morning at breakfast.

I made a conscientious effort not to send any mixed messages to the soldiers. I bought a new wardrobe of baggy clothing, asked after their wives, kept things professional — and placed that tape recorder out in plain sight. But I learned that it’s not a low neckline that’s seductive — it’s someone’s desire to listen.

I feel a certain sense of responsibility for taking on these soldiers’ stories. I know the risks of reliving those experiences, especially for veterans suffering from post-traumatic stress disorder. I have learned how easy it can be for subjects to misinterpret that strange and unique intimacy, one of detachment and utter bonding, which is unlike any other relationship. In some ways we were complete strangers, but in others, I knew them better than anyone else.

It’s impossible to spend so much time with someone without establishing some kind of friendship. I worry about crossing the line between journalist and friend. Journalists are criticized for interviewing subjects, siphoning off their experiences and emotions for a story, and then dropping them. But doing the opposite can mean entering confusing territory. When a soldier drunk-dialed me and told me he had given up all hope of fixing his life and was just going to redeploy, was it unethical when I tried to discourage him? When a soldier tells you he is suicidal, can you urge him to see a therapist? When another texts you telling you he has left his wife, how do you respond?

Over that past year, Frankie had sent me texts wishing me a happy New Year, merry Christmas — messages I had assumed were just text blasts. Other times he casually asked me about the status of the book. I thought little about the messages; my responses were short and polite. Just a week before, on June 20, he had written, “Let me know if u come back 2 cumberland 4 ur book. Would love 2 talk 2 u again.”

That night of July 4, looking back at some of the texts, and remembering others, I saw how much I had misunderstood. I had been naive to think that that tape recorder could be a symbolic barrier between interviewer and subject. I had relied on that small electronic device to be a shield. But it was also an indicator that what he had to say was important, and that he mattered, something rare in a veteran’s life.

The tragedy of this story is how desperate soldiers are for someone with whom they can share their experiences and their suffering. I had been so critical of the people in these soldiers’ lives who weren’t willing or able to listen to them. But when I received that text from Frankie, it was I who didn’t want to respond or hear about his feelings. When it got truly personal, it turned out I was no better.

The next morning, I received a text apologizing. It was an accident, he said. I figured it was his attempt to save face. Wanting to quickly put it behind us and avoid embarrassing him, I wrote back saying that I understood — people mistakenly send texts all the time.

Then, just like so many people do when they feel uncomfortable seeing a vulnerable side of a veteran, I said nothing. I tried to tell myself that having that tape recorder let me off the hook. But it didn’t. Even when he texted a month later, I ignored his cry for help and never talked to him again.

Justine Sharrock is the author of “Tortured: When Good Soldiers Do Bad Things” (Wiley, 2010). Her article “Am I a Torturer?” was part of a Mother Jones series nominated for a 2008 National Magazine Award. Her work has also appeared in Alternet, the Utne Reader, San Francisco magazine and the San Francisco Chronicle.

Here’s a look at what prominent voices on the left and the right are saying about the report prior to its release and how they’re responding to the news that the Justice Department may reopen some prisoner-abuse cases.

Marcy Wheeler, aka “emptywheel,” Firedoglake: “But notice what is not on this list? … The Office of Public Responsibility report, which has been due out all summer, and last we heard was at the CIA being reviewed to protect (presumably) John Rizzo’s role in crafting OLC memos that claimed to authorize torture … If it is, indeed, DOJ’s plan to release all the other torture documents save the OPR report, it will have the effect of distracting the media with horrible descriptions of threats with power drills and waterboarding, away from the equally horrible description of lawyers willfully twisting the law to ‘authorize’ some of those actions. It will shift focus away from those that set up a regime of torture and towards those who free-lanced within that regime in spectacularly horrible ways. It will hide the degree to which torture was a conscious plan, and the degree to which the oral authorizations for torture may well have authorized some of what we’ll see in the IG Report tomorrow … If it is, indeed, DOJ’s plan to release the IG Report and announce an investigation without, at the same time, releasing the OPR report, it will serve the goal of exposing the Lynndie England’s of the torture regime while still protecting those who instituted that regime.

Spencer Ackerman, Washington Independent: “But pay attention as well to what might not get released today: another long awaited report, this time from the Justice Department’s Office of Professional Responsibility about the propriety of legally sanctioning the interrogation program by the Office of Legal Counsel … But without the OPR inquiry on the Office of Legal Counsel — which Holder has pledged to declassify — the CIA inspector general report will present stories outside of the context that gave rise to them … Without that context, it won’t be possible to understand what drove interrogators to enter those interrogation chambers, even if the torture they applied was more severe than what the department’s lawyers specified was acceptable.“

Atrios: “Threatened execution isn’t torture because it doesn’t actually destroy any organs.”

Digby: “The article goes on to say that Jay Bybee ok’d these tactics so long as they weren’t intended to cause lasting mental harm, so Holder’s (potential) inquiry will necessarily skip looking at these events. If someone is going to be prosecuted for torture, it has to be for something other than threatening to use an electric drill on someone or partially drowning them. That would only be considered torture if some faceless bureaucrat hadn’t written a memo authorizing them. Oh well.”

Daphne Eviatar, Washington Independent: “As Newsweek reported Friday evening, the CIA inspector general report expected to be released on Monday reveals that the CIA staged mock executions to terrify terror suspects into talking. Regardless of whether interrogators got the information they were looking for, these actions were clearly against the law. It is a violation of both the federal anti-torture statute, and of international law, to threaten a suspect with imminent death. Yet there was no other possible purpose for staging a mock execution in a room next to a detainee — complete with gunfire to suggest a prisoner had been killed — other than to terrify the detainee into believing that he would be next.”

Mark Hosenball and Michael Isikoff, Newsweek: “At the same time the administration releases the inspector general’s report, it is also expected to release other CIA documents that assert the agency collected valuable intelligence through the interrogation program. For months, former vice president Dick Cheney has called for these documents to be released. However, a person familiar with the contents of the documents says that they contain material that both opponents and supporters of Bush administration tactics can use to bolster their case. The Senate Committee on Intelligence is now conducting what is supposed to be a thorough investigation of the CIA’s detention-and-interrogation program. The probe is intended not only to document everything that happened but also to assess whether on balance the program produced major breakthroughs or a deluge of false leads.”

David Johnston, New York Times: “Mr. [Eric] Holder [Attorney General] was said to have reacted with disgust earlier this year when he first read accounts of abusive treatment of detainees in a classified version of the inspector general’s report and other materials.“

Tom A. Peter, Christian Science Monitor: “The incidents described in the report are among the most extreme examples of ‘enhanced interrogation’ techniques used by CIA interrogators. While waterboarding and sleep deprivation were approved in legal memos from the Justice Department, other methods, such as using a power drill appear to have been improvised methods not specifically mentioned by the Justice Department. One former US official described some of these practices … as being done ‘almost in juvenile detective mode.’”

Bobby Ghosh, Time: “Five Questions for the CIA IG’s Interrogation Report … 1. Who was really behind the interrogation regime? … 2. Did the interrogations work? … 3. What did the interrogators really do? … 3. What did the interrogators really do? … 5. What happened before August of 2002?”

Kathryn Jean Lopez, the National Review: On the possibility of reopening some prisoner-abuse cases: “This seems potentially shamefully dangerous.”

Jeffrey H. Smith, general counsel of the CIA from 1995 to 1996, Washington Post: “If media reports are accurate, the conduct detailed in the inspector general’s report was contrary to our values. It caused harm to our nation and cannot be repeated. But prosecuting those who actually carried out that behavior has consequences that could further harm our nation. Even if the attorney general concludes that a criminal charge could be brought, other factors must be considered. Sometimes broader national objectives must be given greater weight.“

That, in a nutshell, is the twisted Washington mentality when it comes to lawbreaking:  when political crimes become so blatant and extreme that they can no longer be safely excused (Watergate, Iran-contra, Abu Ghraib), then it’s necessary to sacrifice some underlings who carried out the crimes by prosecuting them, but — no matter what else happens — the high-level political officials responsible for the crimes must be shielded from all accountability.  In ordinary criminal justice, what typically guides prosecutions is the opposite mindset:  namely, a willingness to immunize low-level soldiers in order to ensure that the higher-level criminals suffer the consequences of their crimes.  But when it comes to crimes committed by political officials in America’s Versailles culture, only the pawns are subjected to the rule of law while the monarchs and their highest royal court aides are immunized.

Note the distortions on which the Post Editors rely in order to justify their two-tiered justice system.  DOJ torture-authorizing memos should shield those who acted in accordance with them because they were created and followed in “good faith.”  That assertion is groundless and false.  The Post itself this morning reports what has long been known:  that a DOJ ethics reports due in the next several weeks will not only “renounce Yoo’s approval of harsh CIA interrogation practices [but also] recommend that he and Jay S. Bybee, a former colleague, be referred to their state bar associations for discipline.”  The necessary conclusion of that DOJ recommendation is that the torture-authorizing memos were written in bad faith (i.e., not merely wrong, but entirely groundless and produced with bad intent), since only a finding of “bad faith” (not mere error) could justify ethics proceedings against these lawyers. 

A recently released report from five Inspectors General makes clear that Dick Cheney and David Addington selected Yoo to write these memos because they knew in advance that he’d approve of whatever they wanted to do.  This process was the opposite of “good faith”:  what happened was that the highest-level political officials wanted to break the law, and so they found a hardened ideologue at the DOJ willing to write memos to classify those crimes as legal.  To describe that process as “good faith” is to twist that phrase beyond recognition.  It was blatant criminality accompanied by advanced bureaucratic cover from John Yoo — the same person who wrote memos advising the President that not even the Bill of Rights could constrain his actions.

For all the talk about how Bush/Cheney executive power theories created a lawless presidency, the “principle” about to be institutionalized — and that the Post Editorial Page today expressly endorses — will do more to spawn presidential lawlessness than all of those DOJ memos combined.  We now apparently believe that Presidents are free to break the law as long as they can find a low-level DOJ functionary to write a memo justifying that conduct in advance.  It’s impossible to imagine any President — occupying the most powerful political office in the country and commanding blind loyalty from all sorts of operatives — who would be unable to find a lawyer-underling willing to endorse whatever he wants to do.  Richard Nixon had lawyers defending what he did in Watergate.  Ronald Reagan had lawyers defending what he did in arming Iran in order to fund the Nicaraguan contras in violation of the law.  George Bush had lawyers justifying his spying on Americans without warrants even though FISA criminalized exactly that.  And Dick Cheney had lawyers justifying his torture regime.  That’s always going to be true.  

If, as appears to be the case, this is the principle by which we’re now governed — presidential acts in blatant violation of clear statutes are no longer crimes if a DOJ lawyer justifies it in advance, even using legal reasoning found to be in bad faith — then, by definition, Presidents are literally no longer bound by the rule of law.  If the crimes are embarrassing enough, we’ll find a Lynndie England — or some obscure, easily demonizable, extra-sadistic CIA interrogator — to scapegoat and punish in order to pacify the citizenry and create the illusion that the rule of law still prevails.  But the one thing that remains off-limits in Washington culture above all else is subjecting high-level political officials to the rule of law when they commit crimes.  The low-level scapegoating which the Post today endorses is the approach which, by all accounts, Eric Holder is likely to pursue.

The most ironic aspect of the Post‘s Editorial is its oh-so-solemn plea that we do what’s necessary “to ensure that such mistakes are never repeated.”  Leaving aside the perversity of referring to a formal torture regime as a “mistake,” what the Post advocates — enabling Presidents to break the law as long as they have a low-level DOJ permission slip — is to ensure that these sorts of things will happen over and over.  We have rampant lawlessness in our political class precisely because the consequences for high-level lawbreaking no longer exist.

UPDATE:  In comments, BriGuy301 writes:

Apparently the Washington Post believes the Oath goes like this:

“I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Memos of John Yoo.”

It isn’t just The Washington Post that believes that, but most of official Washington.  It was once the case that ”the law” meant ”the Constitution, treaties, and laws approved by Congress and signed by the President.”  Now, in Washington, “the law” means:  ”what John Yoo wrote.”

UPDATE II:  Andrew Sullivan has more on the significance of The Post‘s desire to see only low-level “rogue interrogators,” but not high-level policy-makers, prosecuted for torture crimes. 

And for those who doubt that the Post is making this argument, see here.

Like Chile after the regime of General Augusto Pinochet or the Philippines after the dictatorship of Ferdinand Marcos, Washington after Bush is now trapped in the painful politics of impunity. Unlike anything our allies have experienced, however, for Washington, and so for the rest of us, this may prove a political crisis without end or exit.

Despite dozens of official inquiries in the five years since the Abu Ghraib photos first exposed our abuse of Iraqi detainees, the torture scandal continues to spread like a virus, infecting all who touch it, including now Obama himself. By embracing a specific methodology of torture, covertly developed by the CIA over decades using countless millions of taxpayer dollars and graphically revealed in those Iraqi prison photos, we have condemned ourselves to retreat from whatever promises might be made to end this sort of abuse and are instead already returning to a bipartisan consensus that made torture America’s secret weapon throughout the Cold War.

Despite the 24 version of events, the Bush administration did not simply authorize traditional, bare-knuckle torture. What it did do was develop to new heights the world’s most advanced form of psychological torture, while quickly recognizing the legal dangers in doing so. Even in the desperate days right after 9/11, the White House and Justice Department lawyers who presided over the Bush administration’s new torture program were remarkably punctilious about cloaking their decisions in legalisms designed to preempt later prosecution.

To most Americans, whether they supported the Bush administration torture policy or opposed it, all of this seemed shocking and very new. Not so, unfortunately. Concealed from Congress and the public, the CIA had spent the previous half-century developing and propagating a sophisticated form of psychological torture meant to defy investigation, prosecution, or prohibition — and so far it has proved remarkably successful on all these counts. Even now, since many of the leading psychologists who worked to advance the CIA’s torture skills have remained silent, we understand surprisingly little about the psychopathology of the program of mental torture that the Bush administration applied so globally.

Physical torture is a relatively straightforward matter of sadism that leaves behind broken bodies, useless information and clear evidence for prosecution. Psychological torture, on the other hand, is a mind maze that can destroy its victims, even while entrapping its perpetrators in an illusory, almost erotic, sense of empowerment. When applied skillfully, it leaves few scars for investigators who might restrain this seductive impulse. However, despite all the myths of these last years, psychological torture, like its physical counterpart, has proven an ineffective, even counterproductive, method for extracting useful information from prisoners.

Where it has had a powerful effect is on those ordering and delivering it. With their egos inflated beyond imagining by a sense of being masters of life and death, pain and pleasure, its perpetrators, when in office, became forceful proponents of abuse, striding across the political landscape like Nietzschean supermen. After their fall from power, they have continued to maneuver with extraordinary determination to escape the legal consequences of their actions.

Before we head deeper into the hidden history of the CIA’s psychological torture program, however, we need to rid ourselves of the idea that this sort of torture is somehow “torture lite” or merely, as the Bush administration renamed it, “enhanced interrogation.” Although seemingly less brutal than physical methods, psychological torture actually inflicts a crippling trauma on its victims. “Ill treatment during captivity, such as psychological manipulations and forced stress positions,” Dr. Metin Basoglu has reported in the Archives of General Psychiatry after interviewing 279 Bosnian victims of such methods, “does not seem to be substantially different from physical torture in terms of the severity of mental suffering.”

A secret history of psychological torture

The roots of our present paralysis over what to do about detainee abuse lie in the hidden history of the CIA’s program of psychological torture. Early in the Cold War, panicked that the Soviets had somehow cracked the code of human consciousness, the Agency mounted a “Special Interrogation Program” whose working hypothesis was: “Medical science, particularly psychiatry and psychotherapy, has developed various techniques by means of which some external control can be imposed on the mind/or will of an individual, such as drugs, hypnosis, electric shock and neurosurgery.”

All of these methods were tested by the CIA in the 1950s and 1960s. None proved successful for breaking potential enemies or obtaining reliable information. Beyond these ultimately unsuccessful methods, however, the Agency also explored a behavioral approach to cracking that “code.” In 1951, in collaboration with British and Canadian defense scientists, the Agency encouraged academic research into “methods concerned in psychological coercion.” Within months, the Agency had defined the aims of its top-secret program, code-named Project Artichoke, as the “development of any method by which we can get information from a person against his will and without his knowledge.”

This secret research produced two discoveries central to the CIA’s more recent psychological paradigm. In classified experiments, famed Canadian psychologist Donald Hebb found that he could induce a state akin to drug-induced hallucinations and psychosis in just 48 hours — without drugs, hypnosis or electric shock. Instead, for two days student volunteers at McGill University simply sat in a comfortable cubicle deprived of sensory stimulation by goggles, gloves and earmuffs. “It scared the hell out of us,” Hebb said later, “to see how completely dependent the mind is on a close connection with the ordinary sensory environment, and how disorganizing to be cut off from that support.”

During the 1950s, two neurologists at Cornell Medical Center, under CIA contract, found that the most devastating torture technique of the Soviet secret police, the KGB, was simply to force a victim to stand for days while the legs swelled, the skin erupted in suppurating lesions, and hallucinations began — a procedure which we now politely refer to as “stress positions.”

Four years into this project, there was a sudden upsurge of interest in using mind control techniques defensively after American prisoners in North Korea suffered what was then called “brainwashing.” In August 1955, President Eisenhower ordered that any soldier at risk of capture should be given “specific training and instruction designed to … withstand all enemy efforts against him.”

Consequently, the Air Force developed a program it dubbed SERE (Survival, Evasion, Resistance, Escape) to train pilots in resisting psychological torture. In other words, two intertwined strands of research into torture methods were being explored and developed: aggressive methods for breaking enemy agents and defensive methods for training Americans to resist enemy inquisitors.

In 1963, the CIA distilled its decade of research into the curiously named KUBARK Counter-intelligence Interrogation manual, which stated definitively that sensory deprivation was effective because it made “the regressed subject view the interrogator as a father-figure … strengthening … the subject’s tendencies toward compliance.” Refined through years of practice on actual human beings, the CIA’s psychological paradigm now relies on a mix of sensory overload and deprivation via seemingly banal procedures: the extreme application of heat and cold, light and dark, noise and silence, feast and famine — all meant to attack six essential sensory pathways into the human mind.

After codifying its new interrogation methods in the KUBARK manual, the Agency spent the next 30 years promoting these torture techniques within the U.S. intelligence community and among anti-communist allies. In its clandestine journey across continents and decades, the CIA’s psychological torture paradigm would prove elusive, adaptable, devastatingly destructive, and powerfully seductive. So darkly seductive is torture’s appeal that these seemingly scientific methods, even when intended for a few Soviet spies or al-Qaida terrorists, soon spread uncontrollably in two directions — toward the torture of the many and into a paroxysm of brutality toward specific individuals. During the Vietnam War, when the CIA applied these techniques in its search for information on top Vietcong cadre, the interrogation effort soon degenerated into the crude physical brutality of the Phoenix Program, producing 46,000 extrajudicial executions and little actionable intelligence.

In 1994, with the Cold War over, Washington ratified the U.N. Convention Against Torture, seemingly resolving the tension between its anti-torture principles and its torture practices. Yet when President Clinton sent this Convention to Congress, he included four little-noticed diplomatic “reservations” drafted six years before by the Reagan administration and focused on just one word in those 26 printed pages: “mental.”

These reservations narrowed (just for the United States) the definition of “mental” torture to include four acts: the infliction of physical pain, the use of drugs, death threats or threats to harm another. Excluded were methods such as sensory deprivation and self-inflicted pain, the very techniques the CIA had propagated for the past 40 years. This definition was reproduced verbatim in Section 2340 of the U.S. Federal Code and later in the War Crimes Act of 1996. Through this legal legerdemain, Washington managed to agree, via the U.N. Convention, to ban physical abuse even while exempting the CIA from the U.N.’s prohibition on psychological torture.

This little noticed exemption was left buried in those documents like a landmine and would detonate with phenomenal force just 10 years later at Abu Ghraib prison.

War on terror, war of torture

Right after his public address to a shaken nation on Sept. 11, 2001, President Bush gave his staff secret orders to pursue torture policies, adding emphatically, “I don’t care what the international lawyers say, we are going to kick some ass.” In a dramatic break with past policy, the White House would even allow the CIA to operate its own global network of prisons, as well as charter air fleet to transport seized suspects and “render” them for endless detention in a supranational gulag of secret “black sites” from Thailand to Poland.

The Bush administration also officially allowed the CIA ten “enhanced” interrogation methods designed by agency psychologists, including “waterboarding.” This use of cold water to block breathing triggers the “mammalian diving reflex,” hardwired into every human brain, thus inducing an uncontrollable terror of impending death.

As Jane Mayer reported in the New Yorker, psychologists working for both the Pentagon and the CIA “reverse engineered” the military’s SERE training, which included a brief exposure to waterboarding, and flipped these defensive methods for use offensively on al-Qaida captives. “They sought to render the detainees vulnerable — to break down all of their senses,” one official told Mayer. “It takes a psychologist trained in this to understand these rupturing experiences.” Inside Agency headquarters, there was, moreover, a “high level of anxiety” about the possibility of future prosecutions for methods officials knew to be internationally defined as torture. The presence of Ph.D. psychologists was considered one “way for CIA officials to skirt measures such as the Convention Against Torture.”

From recently released Justice Department memos, we now know that the CIA refined its psychological paradigm significantly under Bush. As described in the classified 2004 Background Paper on the CIA’s Combined Use of Interrogation Techniques, each detainee was transported to an Agency black site while “deprived of sight and sound through the use of blindfolds, earmuffs, and hoods.” Once inside the prison, he was reduced to “a baseline, dependent state” through conditioning by “nudity, sleep deprivation (with shackling …), and dietary manipulation.”

For “more physical and psychological stress,” CIA interrogators used coercive measures such as “an insult slap or abdominal slap” and then “walling,” slamming the detainee’s head against a cell wall. If these failed to produce the results sought, interrogators escalated to waterboarding, as was done to Abu Zubaydah “at least 83 times during August 2002″ and Khalid Sheikh Mohammad 183 times in March 2003 — so many times, in fact, that the repetitiousness of the act can only be considered convincing testimony to the seductive sadism of CIA-style torture.

In a parallel effort launched by Bush-appointed civilians in the Pentagon, Secretary of Defense Donald Rumsfeld gave General Geoffrey Miller command of the new American military prison at Guantánamo in late 2002 with ample authority to transform it into an ad hoc psychology lab. Behavioral Science Consultation Teams of military psychologists probed detainees for individual phobias like fear of the dark. Interrogators stiffened the psychological assault by exploiting what they saw as Arab cultural sensitivities when it came to sex and dogs. Via a three-phase attack on the senses, on culture and on the individual psyche, interrogators at Guantánamo perfected the CIA’s psychological paradigm.

After General Miller visited Iraq in September 2003, the U.S. commander there, General Ricardo Sanchez, ordered Guantánamo-style abuse at Abu Ghraib prison. My own review of the 1,600 still-classified photos taken by American guards at Abu Ghraib — which journalists covering this story seem to share like Napster downloads — reveals not random, idiosyncratic acts by “bad apples,” but the repeated, constant use of just three psychological techniques: hooding for sensory deprivation, shackling for self-inflicted pain and (to exploit Arab cultural sensitivities) both nudity and dogs. It is no accident that Private Lynndie England was famously photographed leading an Iraqi detainee leashed like a dog.

These techniques, according to the New York Times, then escalated virally at five Special Operations field interrogation centers where detainees were subjected to extreme sensory deprivation, beating, burning, electric shock and waterboarding. Among the thousand soldiers in these units, 34 were later convicted of abuse and many more escaped prosecution only because records were officially “lost.”

“Behind the green door” at the White House

Further up the chain of command, National Security Advisor Condoleezza Rice, as she recently told the Senate, “convened a series of meetings of NSC [National Security Council] principals in 2002 and 2003 to discuss various issues … relating to detainees.” This group, including Vice President Cheney, Attorney General John Ashcroft, Secretary of State Colin Powell and CIA director George Tenet, met dozens of times inside the White House Situation Room.

After watching CIA operatives mime what Rice called “certain physical and psychological interrogation techniques,” these leaders, their imaginations stimulated by graphic visions of human suffering, repeatedly authorized extreme psychological techniques stiffened by hitting, walling and waterboarding. According to an April 2008 ABC News report, Attorney General Ashcroft once interrupted this collective fantasy by asking aloud, “Why are we talking about this in the White House? History will not judge this kindly.”

In mid-2004, even after the Abu Ghraib photos were released, these principals met to approve the use of CIA torture techniques on still more detainees. Despite mounting concerns about the damage torture was doing to America’s standing, shared by Colin Powell, Condoleezza Rice commanded Agency officials with the cool demeanor of a dominatrix. “This is your baby,” she reportedly said. “Go do it.”

Cleansing torture

Even as they exercise extraordinary power over others, perpetrators of torture around the world are assiduous in trying to cover their tracks. They construct recondite legal justifications, destroy records of actual torture and paper the files with spurious claims of success. Hence, the CIA destroyed 92 interrogation videotapes, while Vice President Cheney now berates Obama incessantly (five times in his latest Fox News interview) to declassify “two reports” which he claims will show the informational gains that torture offered — possibly because his staff salted the files at the NSC or the CIA with documents prepared for this very purpose.

Not only were Justice Department lawyers aggressive in their advocacy of torture in the Bush years, they were meticulous from the start, in laying the legal groundwork for later impunity. In three torture memos from May 2005 that the Obama administration recently released, Bush’s Deputy Assistant Attorney General Stephen Bradbury repeatedly cited those original U.S. diplomatic “reservations” to the U.N. Convention Against Torture, replicated in Section 2340 of the Federal code, to argue that waterboarding was perfectly legal since the “technique is not physically painful.” Anyway, he added, careful lawyering at Justice and the CIA had punched loopholes in both the U.N. Convention and U.S. law so wide that these Agency techniques were “unlikely to be subject to judicial inquiry.”

Just to be safe, when Vice President Cheney presided over the drafting of the Military Commissions Act of 2006, he included clauses, buried in 38 pages of dense print, defining “serious physical pain” as the “significant loss or impairment of the function of a bodily member, organ, or mental faculty.” This was a striking paraphrase of the outrageous definition of physical torture as pain “equivalent in intensity to … organ failure, impairment of bodily function, or even death” in John Yoo’s infamous August 2002 “torture memo,” already repudiated by the Justice Department.

Above all, the Military Commissions Act protected the CIA’s use of psychological torture by repeating verbatim the exculpatory language found in those Clinton-era, Reagan-created reservations to the U.N. Convention and still embedded in Section 2340 of the Federal code. To make doubly sure, the act also made these definitions retroactive to November 1997, giving CIA interrogators immunity from any misdeeds under the Expanded War Crimes Act of 1997 which punishes serious violations with life imprisonment or death.

No matter how twisted the process, impunity — whether in England, Indonesia or America — usually passes through three stages:

1. Blame the supposed “bad apples.”

2. Invoke the security argument. (“It protected us.”)

3. Appeal to national unity. (“We need to move forward together.”)

For a year after the Abu Ghraib exposé, Rumsfeld’s Pentagon blamed various low-ranking bad apples by claiming the abuse was “perpetrated by a small number of U.S. military.” In his statement on May 13, while refusing to release more torture photos, President Obama echoed Rumsfeld, claiming the abuse in these latest images, too, “was carried out in the past by a small number of individuals.”

In recent weeks, Republicans have taken us deep into the second stage with Cheney’s statements that the CIA’s methods “prevented the violent deaths of thousands, perhaps hundreds of thousands, of people.”

Then, on April 16, President Obama brought us to the final stage when he released the four Bush-era memos detailing CIA torture, insisting: “Nothing will be gained by spending our time and energy laying blame for the past.” During a visit to CIA headquarters four days later, Obama promised that there would be no prosecutions of Agency employees. “We’ve made some mistakes,” he admitted, but urged Americans simply to “acknowledge them and then move forward.” The president’s statements were in such blatant defiance of international law that the U.N.’s chief official on torture, Manfred Nowak, reminded him that Washington was actually obliged to investigate possible violations of the Convention Against Torture.

This process of impunity is leading Washington back to a global torture policy that, during the Cold War, was bipartisan in nature: publicly advocating human rights while covertly outsourcing torture to allied governments and their intelligence agencies. In retrospect, it may become ever more apparent that the real aberration of the Bush years lay not in torture policies per se, but in the president’s order that the CIA should operate its own torture prisons. The advantage of the bipartisan torture consensus of the Cold War era was, of course, that it did a remarkably good job most of the time of insulating Washington from the taint of torture, which was sometimes remarkably widely practiced.

There are already some clear signs of a policy shift in this direction in the Obama era. Since mid-2008, U.S. intelligence has captured a half-dozen al-Qaida suspects and, instead of shipping them to Guantánamo or to CIA secret prisons, has had them interrogated by allied Middle Eastern intelligence agencies. Showing that this policy is again bipartisan, Obama’s new CIA director Leon Panetta announced that the Agency would continue to engage in the rendition of terror suspects to allies like Libya, Pakistan or Saudi Arabia where we can, as he put it, “rely on diplomatic assurances of good treatment.” Showing the quality of such treatment, Time magazine reported on May 24 that Ibn al-Sheikh al-Libi, who famously confessed under torture that Saddam Hussein had provided al-Qaida with chemical weapons and later admitted his lie to Senate investigators, had committed “suicide” in a Libyan cell.

The price of impunity

This time around, however, a long-distance torture policy may not provide the same insulation as in the past for Washington. Any retreat into torture by remote control is, in fact, only likely to produce the next scandal that will do yet more damage to America’s international standing.

Over a 40-year period, Americans have found themselves mired in this same moral quagmire on six separate occasions: following exposés of CIA-sponsored torture in South Vietnam (1970), Brazil (1974), Iran (1978), Honduras (1988) and then throughout Latin America (1997). After each exposé, the public’s shock soon faded, allowing the Agency to resume its dirty work in the shadows.

Unless some formal inquiry is convened to look into a sordid history that reached its depths in the Bush era, and so begins to break this cycle of deceit, exposé and paralysis followed by more of the same, we’re likely, a few years hence, to find ourselves right back where we are now. We’ll be confronted with the next American torture scandal from some future iconic dungeon, part of a dismal, ever lengthening procession that has led from the tiger cages of South Vietnam through the Shah of Iran’s prison cells in Tehran to Abu Ghraib and the prison at Bagram Air Base in Afghanistan.

The next time, however, the world will not have forgotten those photos from Abu Ghraib. The next time, the damage to this country will be nothing short of devastating.