Commentary Magazine


The Dark Side by Jane Mayer

In The Dark Side, the investigative journalist Jane Mayer presents a broadside, perhaps the harshest yet offered, against the Bush administration’s conduct of the war on terror. Her bill of indictment is comprehensive.

After the shock of 9/11, Mayer writes, our government “panicked,” precipitously deciding to “transform the fight against terrorism from a criminal-justice matter to a full-fledged military war.” In prosecuting this war, the administration, led by Vice President Dick Cheney and a few gung-ho advisers, assumed executive powers that were historically and legally unprecedented, and then used them in horrifying ways.

Cheney, Mayer writes, “believed it was an urgent matter of life and death to not just solve crimes but instead to preempt them before they were committed.” This meant not only confronting regimes and known terrorists who constituted a threat to the United States, as enunciated in the Bush Doctrine, but also confronting individuals who were merely thought to be connected to terrorism.

In the case of such terror suspects, according to Mayer, the administration felt “it had no time to establish guilt beyond a reasonable doubt.” And so “previously illegal practices” were authorized, including eavesdropping on communications abroad, and killing, capturing, and detaining individuals outside the conventional processes of the criminal-justice system. “Simply by designating the suspects ‘enemy combatants,’” charges Mayer, “the President could suspend the ancient writ of habeas corpus that guarantees a person the right to challenge his imprisonment in front of a fair and independent authority.”

Nor was that all. In Mayer’s telling, the administration also permitted government agents to “physically and psychologically torment U.S.-held captives,” thereby making “torture the law of the land in all but name” and turning the United States into “the first nation ever to authorize violations of the Geneva Convention.” Under this self-granted dispensation, the U.S. government has subjected untold numbers of innocent Muslims to treatment “reminiscent of the Spanish Inquisition,” sacrificed America’s “cherished values,” and destroyed our moral standing in the world.

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None of these charges is new. Each has been leveled for some time by administration critics. But Mayer has assembled them together in what amounts to a relentless closing summary for the prosecution. Throughout, in the manner of a prosecuting attorney, she declines to engage with opposing facts or counterarguments. This gives The Dark Side its peculiarly hermetic quality: Mayer is not only preaching to the choir but conducting it and singing all of the solo parts at the same time.

The Dark Side opens with John Quincy Adams’s famous admonition to Americans not to go “abroad in search of monsters to destroy”—an apposite quotation, perhaps, were it not for the revelation on September 11 that the terrorist threat to the United States was not a fantasy, as Adams’s words suggest. Nor did we go in search of these particular monsters. On that day the monsters came to us, their arrival having been preceded by an escalating series of attacks on Americans over the years: Beirut in 1983, the World Trade Center in 1993, Khobar Towers in 1996, U.S. embassies in Kenya and Tanzania in 1998, and the U.S.S. Cole in 2000, to name just a few.

For Mayer, it is axiomatic that the aftermath of September 11, and what it revealed about the flaws in the American security apparatus that made the jihadist attack possible, did not necessitate any new framework for thinking about the protection of the United States from a new form of foreign aggression. She is outraged that Bush and Cheney would even presume to ask their legal advisers to study the latitude available to them in fighting the terrorists—to determine which practices would be permissible and which would fall into a gray area requiring new laws and policies.

Instead, these advisers are presented here in monochrome—all black. David Addington, Cheney’s legal counsel, is “a loner” with “rigidly conservative views” who “seemed to revel in being anonymous and abstemious,” so indifferent to the opinions of right-thinking people that, according to a colleague, he “didn’t care about advancement in the Washington world.” Another administration attorney, deputy White House counsel Timothy Flanigan, is a “Mormon and anti-abortion activist” who was “involved in the politically divisive legal investigation of Bill Clinton’s sex life.” John Yoo, who ran the Office of Legal Counsel at the Department of Justice, is said by unnamed critics to have “fictionaliz[ed] the founding history of the country.” (How he did so is not explained.)

By contrast, the administration’s critics are portrayed without blemish. Alberto Mora, a Navy lawyer who charged wrongdoing at Guantanamo, is “a courtly and engaging man, with neatly trimmed silver hair, warm brown eyes, and the ability to both listen well and to lead.” Michael Ratner, a Columbia University law professor who represented a number of Guantanamo detainees, is “a graying pillar of America’s left-wing legal bar.”

Even John Walker Lindh, the so-called American Taliban who was picked up by U.S. military in Afghanistan, is portrayed as a man who won friends among the Taliban for his skill at “cooking macaroni.” To his misfortune, Lindh “came to the region to study Arabic,” but “got caught up in a religious cause.” Mayer seems unaware that the closest Arabic-speaking area to Afghanistan is many hundreds of miles to the West. Could Lindh have been in Afghanistan for other reasons?

When she discusses the protections of the Geneva Convention, Mayer shows no familiarity with the argument, put forth most plainly by Andrew C. McCarthy, that al Qaeda’s status as a stateless network denies it the right to be considered a “high contracting party” to the Convention and that therefore its operatives have “no general or presumed claim on the treaty’s protections.”

In Mayer’s view, al-Qaeda terrorists fall into the same category as, say, members of the French Resistance in World War II; they, too, according to her, might have been considered “non-uniformed ‘unlawful’ combatants.” Therefore, Americans are obliged never, under any circumstances, to subject al-Qaeda members to “physical or moral coercion,” even in a “ticking-time-bomb” scenario when it is known that an attack is imminent.

Mayer has no patience with those who argue that a line can be drawn between torture and “stress and duress”: i.e., interrogation methods that fall short of torture and are not employed for the amusement of government agents or to coerce confessions but are, rather, applied to elicit information that may save the lives of civilians targeted by terrorist plots. No rational person would dispute that a hot poker through the eye constitutes torture and should be taboo. But a few days of sleep deprivation? Inflicting boredom on a subject to make him more talkative? Isolating him and causing him to feel dependent on his captors?

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If Mayer had raised such questions and sought to answer them in a dispassionate and thorough manner, The Dark Side might have been something other than a rehearsal of the most conventional of liberal clichés. And loose clichés at that: Mayer writes blithely, for example, that there has been “nearly universal bipartisan acceptance outside of the Bush administration that Guantanamo should be shut down.”

What “universal bipartisan acceptance” is that, exactly? Without any apparent sense of contradiction, Mayer herself notes on the very next page that “a bill to close Guantanamo was defeated when the Senate voted overwhelmingly (94-3) against transferring the detainees to prisons in the United States.” Having written herself into this corner, she then wishes her way out of it by asserting as fact that every one of those 94 votes was cast for a dishonorable reason: “the fear of appearing ‘soft’ on terrorism.”

Contrary to Mayer, scholars and lawyers across the political spectrum have argued that the conflict in which America is now engaged is unique and requires a new legislative framework—new rules about spying, detention, interrogation, and the use of lethal force; perhaps new institutions as well. For Mayer, all such talk is a function of 9/11-induced panic. To her, what has transpired in the last seven years is not “a battle for America’s security” but “a battle for the country’s soul.”

In this connection, Mayer approvingly quotes Eric Haseltine, a former adviser to the Director of National Intelligence, who judges that “our greatest sin in the eyes of Muslims was not invading the Middle East, or even our support of Israel: our greatest sin was robbing Muslims of hope.” And how do we give back to Muslims the hope we have allegedly purloined? By returning to pre-9/11 thinking; by re-casting the war on terror as a criminal-justice matter alone; and by extending American constitutional protections to foreign terrorists on foreign soil.

According to Mayer, “it is hard to know” whether the Bush administration’s successful avoidance of a second attack on American soil since 2001 “represents the vanquishing of new credible threats, or rather the absence of any.” If, over the years ahead, the message of this book should come to be embraced by Washington, we may find out.

About the Author

Clifford D. May, a former New York Times foreign correspondent, is president of the Foundation for Defense of Democracies.




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