Visit Your Local PBS Station PBS Home PBS Home Programs A-Z TV Schedules Watch Video Donate Shop PBS Search PBS
Photo of Bill Moyers Bill Moyers Journal
Bill Moyers Journal
Bill Moyers Journal
Watch & Listen The Blog Archive Transcripts Buy DVDs
Bruce Fein & Mark Danner
Simon Johnson and Michael Perino, photo by Robin Holland
Watch Video
Read Transcript
Comment
May 1, 2009

"This government does not torture people." So stated then-President George W. Bush, reaffirming what many would contend is a deeply-held American principle.

But what if the United States did torture? That is the national question raised anew by a Red Cross report (reproduced by THE NEW YORK REVIEW OF BOOKS) and the recent declassification of Bush administration memos. The memos, written by the White House Office of Legal Council, provided legal guidance outlining acceptable interrogation techniques under U.S. and international law. But the Red Cross report, based on interviews with 14 high-value detainees, alleges that the use of these techniques did constitute torture. Additionally, President Barack Obama and Attorney General Eric Holder have stated publicly that at least one of the techniques — water-boarding — constitutes torture.

Legal scholar Bruce Fein and journalist Mark Danner explain to Bill Moyers on THE JOURNAL that all of this creates a tricky legal and political situation for the President. Fein argues that President Obama, as head of the executive branch, is charged by the Constitution with enforcing the law, and must therefore pursue the allegations. And Danner points out that our nation cannot afford to ignore the political debate surrounding torture — the issue must confronted publicly.

Many people, though, think the costs of investigating the allegations would be too great.

In the WASHINGTON POST, David Broder argues: "That way, inevitably, lies endless political warfare. It would set the precedent for turning all future policy disagreements into political or criminal vendettas. That way lies untold bitterness -- and injustice."

But Fein rejects the notion that torture is a partisan policy dispute. Reacting to Karl Rove making a similar point on FOX NEWS, Fein told Bill Moyers on the JOURNAL: "That is nonsense on stilts. Torture is not a political issue. Torture is something prohibited 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."

In the WALL STREET JOURNAL, Peggy Noonan writes that public hearings would divide the country and "would be a self-immolating exercise that would both excite and inform America's foes. And possibly inspire them."

But according to Mark Danner, it is this very divisiveness that makes it such an important political issue. He believes addressing the political climate in which the U.S. government used these techniques is as important as investigating potential lawbreakers. Without publicly considering the costs and efficacy of torture, we cannot come to a national consensus, leaving the door open for prisoner abuse by this or future administrations.

Danner notes on THE JOURNAL that some sizable portion of the country agrees with Dick Cheney, who continues to argue that these tactics protected the country, and "that President Obama, in deciding not to torture, has left the country vulnerable to another attack." Danner continues, "that is present politics [...] and that's why this has to be confronted, not only legally [...] but politically, as well."

At the moment, the President has clearly stated he does not wish to pursue investigations. But a series of legal decisions may force his hand. A recent decision by a federal appeals court clears the path for a civil lawsuit brought by five men against an airline company they allege cooperated with the CIA to fly them to black sites where they were tortured. The court rejected an argument — first advanced by the Bush administration and reaffirmed by the Obama administration — that the case should be thrown out because it would reveal state secrets. Additionally, a Spanish judge confirmed that he will proceed with an inquiry into six top Bush administration officials on charges that they set up a systematic program of torture at Guantanamo.

Bruce Fein
Bruce Fein is a nationally and internationally recognized expert on Constitutional law.Bruce Fein, photo by Robin HollandGraduating from Harvard Law School in 1972, Fein became the assistant director of the Office of Legal Policy in the U.S. Department of Justice. Shortly after that, Fein became the associate deputy attorney general under former President Ronald Reagan.

His political law career would take him to various outlets, including general counsel of the Federal Communications Commission, followed by an appointment as research director for the Joint Congressional Committee on Covert Arms Sales to Iran. Mr. Fein has been an adjunct scholar with the American Enterprise Institute, a resident scholar at the Heritage Foundation, a lecturer at the Brookings Institute, and an adjunct professor at George Washington University.

Fein has also authored a number of volumes on United States Constitution, Supreme Court, and international law, as well as assisted three dozen countries in constitutional revision, including Russia, Spain, South Africa, Iraq, Cyprus, and Mozambique.

Fein's writing, devoted to legal and international affairs, has appeared in THE WASHINGTON TIMES, THE CAPITOL LEADER, THE LEXINGTON HERALD-LEADER, SLATE.COM and THE DAILY BEAST, among others.

Mark Danner
Mark Danner is a writer, journalist and professor who has written for more than two decades on foreign affairs and international conflict.Mark Danner, photo by Robin Holland He has covered Central America, Haiti, the Balkans and Iraq, among many other stories, and has written extensively about the development of American foreign policy during the late Cold War and afterward, and about violations of human rights during that time.

His books include THE SECRET WAY TO WAR: THE DOWNING STREET MEMO AND THE IRAQ WAR'S BURIED HISTORY (2006), TORTURE AND TRUTH: AMERICA, ABU GHRAIB AND THE WAR ON TERROR (2004), THE ROAD TO ILLEGITIMACY: ONE REPORTER'S TRAVEL'S THROUGH THE 2000 FLORIDA VOTE RECOUNT (2004) and THE MASSACRE AT EL MOZOTE: A PARABLE OF THE COLD WAR (1994). Danner was a longtime staff writer for THE NEW YORKER and is a regular contributor to THE NEW YORK REVIEW OF BOOKS.

He is also professor of Journalism at the University of California at Berkeley, where he directs the Goldman Forum, and the James Clarke Chace Professor of Foreign Affairs, Politics, and Humanities at Bard College.

Published May 1, 2009.

Guest photos by Robin Holland.

Related Media:
Jane Mayer on torture
BILL MOYERS JOURNAL goes inside the July 2008 hearings on torture in Congress and gets perspective from journalist Jane Mayer on the debate over whether the U.S. sanctioned torture to prosecute the war on terror. Mayer's recent book, THE DARK SIDE: THE INSIDE STORY OF HOW THE WAR ON TERROR TURNED INTO A WAR ON AMERICAN IDEALS, documents the war on terror and the struggle over whether the president should have limitless power to wage it.

Philippe Sands
International lawyer and law professor Philippe Sands, author of TORTURE TEAM, talks about the approval of coercive interrogation by high-level American officials.

TAXI TO THE DARK SIDE
Bill Moyers on a new documentary that explores America's debate over torture tactics.



Jack L. Goldsmith on the torture memos
Former head of the Office of Legal Counsel under George W. Bush, Jack L. Goldsmith, discusses the Administration's expanded view of executive power and the now infamous torture memos.


YouTubeArchbishop Desmond Tutu
Bill Moyers sat down with Archbishop Tutu in 1999 discussing his chairmanship of the South African Truth and Reconciliation Commission.


YouTubeScott Horton on NOW
David Brancaccio spoke with Scott Horton about the legal underpinnings of the War on Terror and American detention policy. Scott Horton is a New York attorney known for his work in emerging markets and international law, especially human rights law and the law of armed conflict. Horton lectures at Columbia Law School.

References and Reading:
Justice Department memos on interrogation techniques.
The "torture memos" hosted on THE NEW YORK TIMES.

International Committee of the Red Cross Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody (PDF)

"Prosecution of Bush Six Back On"
by Scott Horton, THE DAILY BEAST, April 29, 2009.

"In Adopting Harsh Tactics, No Look at Past Use "
by Scott Shane and Mark Mazzetti, THE NEW YORK TIMES, April 21, 2009.

"How '07 ABC Interview Tilted a Torture Debate"
by Brian Stelter, THE NEW YORK TIMES, April 27, 2009.

"Court Allows Civil Torture Case to Proceed"
by Charlie Savage, THE NEW YORK TIMES, April 28, 2009.

Bruce Fein
"Czar Obama"
by Bruce Fein, SLATE.COM, April 9, 2009.

"How Obama Excused Torture"
by Bruce Fein, THE DAILY BEAST, April 17, 2009.

Mark Danner
Mark Danner's Web site.

"The Red Cross Torture Report: What it Means"
By Mark Danner , THE NEW YORK REVIEW OF BOOKS, April 30, 2009.

Published May 1, 2009.

Also This Week:

US TORTURE AND CONSEQUENCES?
A new debate followed the release of the Department of Justice's Office of Legal Counsel memos approving extreme measures of interrogation under the Bush administration. Bill Moyers sits down with Bruce Fein, former deputy attorney general under President Ronald Reagan and chairman of the American Freedom Agenda, and Mark Danner, who has been reporting on the US treatment and interrogation of detainees for the NEW YORK REVIEW OF BOOKS.

>More on Civil Liberties During Wartime

>More on The Church Committee and FISA

STEVE MEACHAM AND THE HOUSING CRISIS
The JOURNAL profiles Steve Meacham, a Massachusetts community organizer fighting to keep working people in their homes.

> HOUSING HELP
Find resources in your community to help with foreclosure and housing issues.

INSIDE THE BANKING CRISIS
Explore the JOURNAL's coverage of the American collapse.

TALK BACK: THE MOYERS BLOG
Our posts and your comments
OUR POSTS
YOUR COMMENTS
For Educators    About the Series    Bill Moyers on PBS   

© Public Affairs Television 2008    Privacy Policy    DVD/VHS    Terms of Use    FAQ   
SIGN UP FOR BLOG UPDATES AND PODCASTS EMAIL US