The Politics of Torture

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10.1057/9780230339224 - The Politics of Torture, Tracy Lightcap

Copyright material from www.palgraveconnect.com - licensed to McGill University - PalgraveConnect - 2011-09-05


The Politics of Torture


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Copyright material from www.palgraveconnect.com - licensed to McGill University - PalgraveConnect - 2011-09-05 10.1057/9780230339224 - The Politics of Torture, Tracy Lightcap

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The Politics of Torture Copyright material from www.palgraveconnect.com - licensed to McGill University - PalgraveConnect - 2011-09-05

Tracy Lightcap


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THE POLITICS OF TORTURE

Copyright © Tracy Lightcap, 2011. All rights reserved.

Where this book is distributed in the UK, Europe and the rest of the world, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN: 978–0–230–11377–0 Library of Congress Cataloging-in-Publication Data Lightcap, Tracy, 1946– The politics of torture / Tracy Lightcap. p. cm. ISBN 978–0–230–11377–0 (hbk. : alk. paper) 1. Torture—Political aspects—Case studies. 2. Torture—Government policy—United States. 3. Prisoners of war—Abuse of—United States. 4. War on Terrorism, 2001–2009. 5. Torture—Government policy—Soviet Union. 6. Political prisoners—Abuse of—Soviet Union. 7. Soviet Union— Politics and government—1936–1953. 8. Mexican War, 1846–1848— Prisoners and prisons, American. 9. Torture—Government policy—United States—History—19th century. I. Title. HV8693.L54 2010 364.6⬘7—dc22

2011005462

A catalogue record of the book is available from the British Library. Design by Newgen Imaging Systems (P) Ltd., Chennai, India. First edition: August 2011 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America.


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First published in 2011 by PALGRAVE MACMILLAN® in the United States—a division of St. Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010.

List of Tables and Figure

vii

Preface

ix

List of Abbreviations

xi

1 Introduction

1

2 Questions, Designs, and Mechanisms Appendix: Methods Used for Table 2.1

11 34

3 Crisis and Opportunity in the United States and the Soviet Union

37

4 Torture: From Informal Institution to Official Policy

73

5 The Mechanism Fails: The United States and the Mexican War

101

6 Torture and Leadership Projects Appendix: Personality and Leadership

127 143

7 Conclusions

147

Notes

163

Bibliography

183

Index

203


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Contents


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Tables 2.1 2.2

Comparison of interrogation techniques in the Soviet Union, 1937–38, and the United States, 2002–06

18

Comparative System Characteristics: The United States 2002–06, the Soviet Union 1937–38, and the United States 1845–48

32

Figure 2.1

Mechanisms for the Official Establishment of Torture

31


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List of Tables and Figure


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As J. R. R. Tolkein once said, “The tale grew with the telling.” This book began with reports in the press concerning the so-called “lap dance interrogation” outlined in the Schmidt—Furlow Report (Schmidt and Furlow 2005) concerning FBI allegations of abuses in interrogations of detainees at Guantanamo Bay prison. The stories told of female military intelligence interrogators questioning detainees in their t-shirts and using close physical contact, among other techniques, to upset the detainees’ concentration during interrogation (Schmidt and Furlow 2005). As might be expected, this technique elicited a strong reaction from the strictly religious Muslim males they were questioning. The stories reminded me of something similar I had read and I soon tracked it down: it was Aleksandr Solzhenitsyn’s account of a similar interrogation by a female NKVD officer during the Stalinist Terror (Solzhenitsyn 1973). It was a short step, fueled by curiosity alone, that led to the comparisons in table 2.1 of this book and then to an attempt to explain the similarities in techniques used during the War on Terror to those used by the NKVD so much earlier. Many years and much reading and reflection later, this book resulted. As is usually the case, this effort could not and was not accomplished alone. I received useful advice and criticisms from many people at various stages of my work. I particularly benefited from conversations over the entire period with David Ahearn. He read the original—and lengthy— paper that led to this book and has offered continually trenchant criticisms and suggestions about my ideas and the evidence I have offered for them. Kipton Jensen and Barry Prather read the penultimate draft of this book and made comments that led to several revisions, as did an anonymous reviewer of the submitted text. At initial presentations of earlier versions of this work I was aided by comments from Ross Burkhart, Cornell Clayton, Justin Wert, and Helen Knowles. John Tures, Alexander Gungov, Will Moore, and Scott James offered critiques and additional material that helped iron out my thinking on many issues. LaGrange College gave me a timely sabbatical that allowed me to finish the bulk of the writing for


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Preface

PREFACE

this book. I wish to thank my editor, Farideh Koohi-Kamali, for her faith in this project and her associates Robyn Curtis and Tiffany Hufford for their unfailing help in getting this manuscript to print. Finally, I would like to thank my wife, Ann Margaret Pointer, and my son, Allen Lightcap, for their help, advice, and support during this book’s long and sometimes frustrating gestation. I literally could not have finished this book without them. As is usually—and truthfully—said, much that is useful in this book is the result of my interactions with these intelligent and perceptive people. I must take responsibility for the obstinance that has led to its faults.


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x

ABC ACLU AUMF BICE CBS CID CIS COIN CPA CPSU DEA DTA FOIA GC GOSPLAN GUGB ICRC JAG JPRA JTF MCA MI MP NBC NEP NKVD OGPU OLC SERE SPC UCMJ USC VKP(b) WMD

American Broadcasting System American Civil Liberties Union Authorization to Use Military Force Bureau of Immigration and Customs Enforcement Columbia Broadcasting System Criminal Investigation Division (U.S. Army) Criminal Investigation Service (U.S. Navy) Counter Insurgency (as in COIN warfare) Coalition Provisional Authority Communist Party of the Soviet Union Drug Enforcement Administration Detainee Treatment Act Freedom of Information Act Geneva Conventions State Planning Committee Main Directorate of State Security (secret police of the NKVD) International Committee of the Red Cross Judge Advocate General (Department of Defense) Joint Personnel Recovery Agency (Department of Defense) Joint Task Force Military Commissions Act Military Intelligence Military Police National Broadcasting Company New Economic Policy People’s Commissariat for Internal Affairs All-Union State Political Directorate (secret police) Office of Legal Council JPRA Survival, Evasion, Resistance, Escape program Specialist (non-commissioned rank in the U.S. armed forces) Uniform Code of Military Justice United States Code (code of federal laws) All-Union Communist Party (Bolshevik) Weapons of Mass Destruction


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Abbreviations


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Introduction

F

or Anwar Sa’eed al Sheik it began in early 2003 when he left his native Syria to join the insurgency in Iraq and fight against the Americans. He did not last long as an insurgent; he was arrested by the U.S. Army on October 7, 2003, and sent to the Baghdad Central Detention Center in Abu Ghraib prison. Once there, he was transferred to the “Hard Site,” the internal cell block isolator used for dangerous prisoners and those who, like al Sheik, might have intelligence value.1 He had already been threatened with torture but things got worse for him quickly at the Hard Site. His head was covered with a sandbag and he was stripped naked, continually threatened with rape, made to stand in “stress positions” for hours, and threatened with worse punishment. Al Sheik resisted his interrogators at first but soon gave a second set of interrogators a full confession concerning his activities.2 He was then transferred back to the regular prison, but 18 days later he was sent back to the Hard Site where new interrogators threatened him with life imprisonment (al Sheik 2004). On November 24, al Sheik was involved in the second of the “firing incidents” at Abu Ghraib that day. The guards at the Hard Site were informed that he had a gun in his cell. When they tried to search al Sheik’s cell, he produced a pistol from its hiding place and began shooting. After trying without success to disable al Sheik with non-lethal rounds from a 12-gauge shotgun, the guards shot him in the legs with 00 buckshot from the same weapon, breaking one of his legs in the process (Taguba 2004b, Zernike 2005).3 He was then taken to the prison hospital. During his short stay there al Sheik was again threatened with severe torture (al Sheik 2004). It should surprise no one that al Sheik was not handled with kid gloves on his return to the Hard Site; after all, he had tried to kill some of his captors. The actual treatment he received, however, went well beyond the normal bounds of prison discipline. Al Sheik’s leg was still broken and he was on crutches. He was forced to walk back to the Hard Site and, once back in his cell, was deprived of his crutches, stripped naked, and had his life


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1


threatened. Soon afterward, a team from the night guard led by Specialist Charles Graner entered his cell. They forced al Sheik to eat pork and drink liquor, both anathema to Muslims, beat his broken leg, and, again, threatened him with rape. The guards then handcuffed al Sheik and hung him from his bed. They ordered him to curse Islam and hit his broken leg until he did so. He lost consciousness and awoke to find himself still hanging between the floor and his bed. One of the guards then urinated on him and called Graner, who laughed at al Sheik when he arrived. After several hours his handcuffs were finally removed and he was allowed to sleep. After threatening al Sheik most of the next day, Graner hung him from the door of his cell with his arms behind him. He pleaded for Graner not to do this since he believed his shoulder was broken. He was ignored and left to hang for over eight hours, losing consciousness again.4 He was then examined by a doctor who determined, after x-rays were taken, that al Sheik did not have a broken shoulder but that it was badly hurt. He was then taken back to his cell, having to crawl the entire way because he could not walk on his broken leg. For the next week, al Sheik was questioned every night while he was constantly threatened with death by armed guards, hung to his cell door, and terrorized by police dogs (al Sheik 2004). He was questioned by investigators attached to Major General Anthony Taguba’s AR-15 investigation of the 800th military police brigade at Abu Ghraib soon afterward. Al Sheik’s deposition concerning these allegations was found credible, largely due to corroborating evidence and testimony. Major General Taguba decided to include the deposition, among others, in his final report (Taguba 2004a). Al Sheik was later to repeat this testimony at Specialist Graner’s court martial that resulted in a ten-year prison sentence for Graner (Zernike 2005). For Samuel Provance, it began in September 2003 when he was sent to Abu Ghraib to replace the noncommissioned officer in charge of system administration for military intelligence who had been wounded in one of the frequent mortar attacks on the prison.5 At first, his duty at the prison was, like all active duty in Iraq at the time, dangerous, but otherwise unremarkable. This began to change when new teams of interrogators and civilian contractors arrived at Abu Ghraib from the detention center at the naval base at Guantanamo Bay in Cuba, where a new prison complex had been built to hold suspected terrorists captured around the world. The Guantanamo teams quickly took over direction of interrogations of detainees in the Hard Site. Provance had particular access to the consequences of the new interrogation routines since he both maintained the secret computer records and manned the top-secret section of the newly established Joint Interrogation and Debriefing Center. In these capacities, he had constant contact with interrogators and analysts at Abu Ghraib. He began to hear some disturbing accounts from them (Provance 2006).


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2

3

The other soldiers told Provance about detainees being kept naked in their cells, starved, deprived of sleep for extended periods, and threatened by police dogs. One of them described how military police guards had instructed him and others about techniques for striking detainees or knocking them unconscious without leaving marks. Another described exercising the detainees to exhaustion in the summer heat (“smoking”). A particularly close acquaintance confirmed accounts by released detainees that they had had cigarettes put out in their ears and that their families had been threatened with rape by U.S. soldiers (Provance 2006). In January 2004, Provance was interviewed by U.S. Army Criminal Investigation Division (CID) investigators working for Major General Taguba’s AR-15 investigation. He felt relieved when the investigation was announced, feeling that the abuses he had heard of would now be curtailed. To his chagrin, however, Provance soon discovered that he was one of very few soldiers at Abu Ghraib to level with the CID concerning treatment of detainees there. Despite his concerns—he was sure that he would be at least ostracized by soldiers who feared disciplinary action and at worst put in jeopardy of violent retaliation—he continued to cooperate until he was redeployed to Germany, rejoining his original unit in February 2004. Public revelations concerning the prisoner abuses at Abu Ghraib followed soon afterward in April as did the leak of much of the substance of Major General Taguba’s report. Provance was disappointed with discouraged by the outcome of these public exposures; the CID seemed to be concentrating on a few of the military police (MP) guards instead of the military intelligence (MI) interrogators who instigated the abuses. But he had not made these thoughts known and, since his commander strictly forbade any soldiers in his company to speak to the news media about Abu Ghriab, he was only disappointed with the attitudes of his superiors. Then Provance was informed that he would be interviewed by Major General George Fay in conjunction with the AR-15 investigation of Abu Ghraib itself and of the 205th Military Intelligence Brigade (Provance 2006). Provance’s interview with Major General Fay was a trying one. He answered all the questions that the general posed but then asked one of his own: Why wasn’t the general asking questions about the military intelligence interrogators? His account of Major General Fay’s reaction is interesting, I answered his questions to the best of my ability. After doing so, I told him that I didn’t understand why he had no questions about the MI interrogators. I volunteered that most of what I knew or had heard came from them. He was not interested. I repeated that I had heard a number of very troubling accounts. He looked annoyed by this, but then he invited me to share some details with him. I then shared with MG (Major General) Fay much of the account that I just wrote in this statement. MG Fay was clearly


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INTRODUCTION

4


Apparently the most disquieting of his revelations to Major General Fay concerned the interrogation of General Hamid Zabar of the Iraqi Army. To obtain General Zabar’s cooperation, his 16-year-old son was arrested and abused in prison. The general was then hooded and taken to another cell. When his hood was suddenly removed, he was confronted with his son by military intelligence interrogators. Provance had been particularly bothered by this incident, which was confirmed subsequently to Major General Fay’s investigators by one of Zahar’s interrogators (Provance 2006).6 In May Provance had a series of unpleasant surprises. When Major General Taguba’s AR-15 report was leaked in its entirety to the media, he discovered that he was the only MI (military intelligence) soldier who had testified to abuses at Abu Ghraib. Soon afterward, he was summoned to his commander’s office and given a written order not to speak to anyone about Abu Ghraib, an order he soon found had been issued to him alone. Provance had long been convinced that there was an effort by the army’s command structure to suppress information about abuses at the prison; he now felt he had a duty to speak out. ABC News had tried to contact him earlier, but Provance had not responded. On May 16 they contacted him again and he consented to an interview, which was shown on the nightly news two days later. This interview led to his first contact with the congressional investigation into the situation; he spoke first with Senator Lindsey Graham and then with his committee’s staff. As a result tensions in his unit increased and he was soon “flagged” (i.e., administratively reprimanded) and had his top secret clearance revoked, essentially ending his career in military intelligence. After his Senate testimony Provance was also reduced in rank, again for disobeying orders. Provance’s subsequent career in the military was spent in close cooperation with his Judge Advocate General Corps (JAG) lawyer, contesting the various actions against him. He was honorably discharged in October 2006, still convinced that the command of the armed forces was unwilling to face the source of the detainee mistreatment scandal. He continues to be active in groups calling for further investigation and a final reckoning about Abu Ghraib (Provance 2006). For people in the United States, it began on April 28, 2004, when viewers of the CBS television newsmagazine 60 Minutes II were shocked to be


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very unhappy to have all of this account. He pulled out my statement to CID from January and quoted back to me the passage in which I said I was glad something was done because what had been going on was shameful. He then said he would recommend administrative action against me for not reporting what I knew sooner then the investigation. He said if I had reported what I knew sooner, I could have actually prevented the scandal. I was stunned by his statements and his attitude. (Provance 2006, 8–9)

5

confronted with a dozen photographs documenting inhumane treatment of Iraqi detainees by U.S. military police and others at Abu Ghraib. Two days later, Seymour Hersh published an article in The New Yorker giving further details about abuses at Abu Ghraib and referring extensively to Major General Taguba’s then still secret AR-15 criminal investigation, followed by a more detailed report on June 14 (Hersh 2004a, 2004b). After that the story spread, as it became apparent that the commanders of Coalition Forces in Iraq had been informed of possible problems by the International Committee of the Red Cross (ICRC) during the previous year and that accounts of detainee mistreatment that had been widely discounted before appeared to have been confirmed by the subsequent multiple Department of Defense investigations (ICRC 2004, Ricchiardi 2004). It was further revealed that the criminal abuses of detainees had occurred not only in Iraq but also in Afghanistan and at the prison for detainees at Guantanamo Bay (Jones and Fay 2004, American Civil Liberties Union 2006c, Schlesinger et al. 2004). Subsequently, continuing requests under the Freedom of Information Act by the American Civil Liberties Union (ACLU) and others as well as independent investigations revealed a disturbing similarity in patterns of abuse, patterns that suggested an overall scheme of interrogation and incarceration that departed radically from past U.S. policy on both matters (Physicians for Human Rights 2005, Center for Constitutional Rights 2006a, ACLU 2006d). The evidence now at hand indicates that the interrogation practices adopted by military and civilian intelligence agencies during the War on Terror, like those described by Anwar Sa’eed Al Sheik and Samuel Provance, were in violation of international conventions that the United States had sponsored and officially abided by for much of modern history. As we shall see, the revealed practices clearly contravene international standards proscribing torture and inhumane treatment of prisoners taken during wartime. Further evidence has shown that the use of torture and abusive practices was extensively debated in executive circles in the United States, subjected to legal and policy analysis, and approved by officials at the highest levels.7 The torture and abuse of U.S. detainees in Iraq, Afghanistan, and Guantanamo Bay have contributed to a foreign policy debacle of unprecedented scope and intensity. Islamic radicals have long held that the United States and it’s allies are engaged in a war to undermine Islam itself. Furthermore, they have warned that in this war the United States would stop at nothing to destroy the cultural and political basis of the modern Middle East and replace it with a secular, capitalist, and Christian alternative (Rodenbeck 2006). America’s enemies in the Middle East could not have thought up a scenario that more closely fits their narrative explaining the U.S. intervention in Afghanistan and Iraq than the events at Abu


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INTRODUCTION


Ghraib and other prisons holding Islamic detainees. When combined with the constant friction that occupation by a foreign and culturally dissimilar power inevitably creates, the image of tortured and abused detainees has fueled insurgencies and greatly complicated the reconstruction of both countries and the reestablishment of order in them. In addition, the “soft power” of the United States—the power it has as a result of its domination of communications and its cultural and ideological hegemony—has been undermined not only in the developing world, but also among America’s allies in Europe and Asia (Nye 2004). Distrust of U.S. intentions and policies reached new heights worldwide and, for the first time, outright fear of U.S. power became commonplace (Pew Global Attitudes Project 2006). Although the collapse of U.S. prestige was not complete, Colin Powell, former secretary of state, was right when he said that the torture and abuse of detainees has undermined the moral basis of the War on Terror (DeYoung and Baker 2006). The election of Barrack Obama in 2008 and changes in policy by the new president have alleviated some aspects of the crisis but, as we shall see, the damage to the U.S. “brand” is still considerable and the danger of a reinstatement of torturous interrogations still exists. How did this happen? Why did the United States start using torture and abusive techniques as a tool of interrogation in the War on Terror and how did they come to be adopted? Jackson (2006) has identified three different strains of thought concerning these questions. The first ties the abuse of detainees directly to policies of the Bush administration. There are two tracks to this explanation. Some hold that the abuses were due to a lack of effective leadership and control of the prison systems in Iraq, Afghanistan, and Guantanamo Bay. The many investigations undertaken by the armed forces and the Department of Defense into these matters are a good example of this. All have pinpointed either unclear policies concerning intelligence interrogation, shortages of personnel or training, or poor coordination and supervision by commanders as the root causes of the problem (Human Rights First 2004; for the best overview, see Schlesinger et al. 2004). The second track is more accusatory, tying the torture of detainees to deliberate policy decisions made by members of the Bush administration. Here the focus is on the results of the prolonged debate within the administration over interrogation practices as the need for intelligence concerning terrorist organizations increased and the pivotal decision was made that the application of the Geneva Conventions to War on Terror detainees was conditional (see Danner 2004 for the text of the memos in question). Critics of these deliberations tie the abuse of detainees directly to President Bush, Vice President Cheney, and their circle of advisors, holding that the ambiguities of policy mentioned above


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stem from the decision both to redefine torture and to blur the limits of interrogation techniques—an argument that is very persuasive, as we shall see (Hersh 2004b, Hooks and Mosher 2005, or Greer 2004). Furthermore, the decision of the Department of Defense to migrate interrogation techniques from Guantanamo Bay to Iraq is generally and correctly cited as the precipitating cause of the widespread proliferation of torture and abuse of detainees there (Danner 2004). The second explanation focuses on systematic factors influencing the adoption of torture by threatened regimes. There is an established research tradition addressing general questions about the suppression of human rights, but studies specifically addressing the use of torture are both recent and rare. There are two main threads of research. The first harks back to the United States’ and other developed nations’ involvement in guerrilla wars in the developing world. Here the abuse of detainees is tied either to the continuation of imperial attitudes and methods in now “neocolonial” environments (see Historians Against the War 2006 or Harbury 2005) or to the degrading effects of guerrilla warfare on constraints on treatment of prisoners of war (Forsythe 2006). From these perspectives, the reappearance of prisoner abuse is related to a longstanding predilection for the use of torture and abuse by U.S. forces and others engaged in “asymmetric warfare” in the Third World. As Jackson (2006) points out, America’s record of abusive treatment of prisoners in colonial wars is a longstanding one. From Indian wars to the Philippine insurrection to Vietnam and the COIN (counter insurgency) wars in Latin America, U.S. armed forces and, in more modern times, intelligence agencies using third-party personnel have treated prisoners with no more and sometimes less regard than has been shown in the War on Terror (Otterman 2007, Jackson 2006, McCoy 2006, Harbury 2005). Further, as some critics have pointed out, this is by no means a solely U.S. trait. Indeed, the abuse of prisoners appears to be common among former colonial powers (Rejali 2007, Forsyth 2006, Jackson 2006). A related perspective is offered by more recent comparative quantitative studies of torture. Davenport and Armstrong (2005), Davenport, Armstrong, and Moore (2007), and Davenport, Moore, and Armstrong (2008) have examined the incidence of torture in autocratic and democratic regimes under various levels of threat from civil war, political dissent, and guerrilla war. Their research leads them to conclude that when threats to regimes are high enough, there is a strong propensity for governments of all kinds to revert to torture, a propensity strengthened by any prior experience of using torture. Furthermore, although democracies are less likely to engage in torture when not under threat (though the actual incidence is unexpectedly high), the use of torture under conditions of


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INTRODUCTION


threat is virtually identical for autocratic and democratic regimes. Indeed, like the more qualitative critiques cited above, these studies remark how unusual it would be if torture of detainees did not happen, given the circumstances leading to the War on Terror. Rejali’s (2007) comparative history of the development of torture techniques supports these findings. His work shows conclusively that many torture techniques, including those used at Abu Ghraib described by al Sheik and Provance, originated in democratic countries, not in authoritarian states. Finally, there is a thread of explanations concerning the cultural and psychological framework providing individual and social justifications for torture. Here perspectives show more diversity of approach. Some scholars have focused on the degrading effects of war itself as a enabler for detainee abuse. As war dehumanizes those waging it, the barriers to abusive behavior become significantly lowered; a mere igniting spark could blast them aside (Calhoun 2005, Hedges 2003). Others have described the construction of social narratives that dehumanize enemies in the War on Terror, narratives that so drastically change perceptions of wartime prisoners as to make falling into abusive patterns easy (Jackson 2006). Finally, some have emphasized a combination of conditions involving euphemistic justifications for torture, administrative quiescence, insularity and secrecy, and competition among interrogators as determinative (Huggins 2004). All of these perspectives have something to offer the interested scholar, but all have weaknesses as explanations for the official adoption of torture by the United States. It is true that both organizational failures and administrative decisions have had a role to play in the appearance of widespread use of torture in interrogations by the United States. But this observation begs important questions. Why did the organizational failures occur? Why were official decisions made that facilitated the informal legalization of torturing detainees? It is also true that the United States has a long history of prisoner abuse and remains faced with substantial external threats, facts that fit the scenario for the use of torture suggested by both historical and quantitative studies. However, the abuses visited on America’s enemies in the past were never the result of anything like the systematic deliberations and careful vetting of decisions that provided legal justification for the tortures in Iraq, Afghanistan, and Guantanamo Bay. Why did U.S. officials suddenly allow the torture and abuse of detainees to become part of a wide-ranging policy debate? Why were decisions made to legalize torture and abusive interrogation techniques? Moreover, in the Untied States most of the torture techniques used in the past were either informally practiced by local police departments and isolated armed force units or, like the Phoenix Program in Vietnam, carried out largely by third


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parties with U.S. direction and support (Rejali 2007, McCoy 2006). Why did interrogators for the armed forces, the Central Intelligence Agency, and the independent contractors they hired come to take an active role in torture and abuse as part of their duties? What happened that reversed a long policy tradition of keeping government employees at several removes from direct involvement? Finally, the cultural and psychological studies, although illuminating, do not explain why dehumanizing conditions and enabling narratives appear to have worked so well in this instance. After all, dehumanizing enemies is a normal part of warfare, yet the United States has avoided official involvement in sanctioning systematic torture and prisoner abuse in the past and at levels of threat much greater than faced during the War on Terror. In this book I will try to answer two related but different sets of questions. The first set involves the gaps in the arguments discussed above. Most of these explanations resolve themselves into various species of the “bad apples” argument used by U.S. officials to explain the abuses at Abu Ghraib that continues to concern Samuel Provance now that he is a civilian (Provance 2007). Organizational failures are the result of the administrative incompetence and neglect in the officer corps or in civilian ranks. Official decisions were made to facilitate torture because of the politicized intentions of decision makers determined to retrieve a deteriorating situation in Iraq. Dehumanizing narratives were promulgated to allow decision makers in executive office to use fear to manipulate their constituents. Although all true in part, these attempted explanations lead to the same questions: What kind of political environment created space for interrogations involving torture and abuse to flourish with official approval? What set of political and organizational incentives led to the decision to torture and abuse detainees in prisons run by U.S. civilian and military intelligence agencies? What was the actual sequence of those incentives and what mechanisms did they create? What are the legal and policy consequences of establishing torture at the center of U.S. conduct of warfare? As I will show, the answers to these questions lead to a second set of more general concerns. A convincing answer has to involve the use of comparisons to establish whether the sequences described are part of a general pattern or are unique to the modern United States. That in turn will help answer an existing question in research on torture: How does torture become officially established? As we shall see, the use of torture by modern states has been a good deal more widespread than one might think and there is a research tradition looking at the correlates of its use. However, there has been little systematic work on the actual mechanisms involved. There is also a lack of in-depth comparative research concerning this subject in either the quantitative or case study research literature.


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INTRODUCTION


Although a truly general approach to this question is beyond the scope of this book, I will suggest an explanatory mechanism leading to the adoption of torture that can be applied to the United States and many other cases. In what follows, I will attempt to show how exogenous crises present ruling elites with opportunities to establish authority and achieve their longstanding political goals. The creation of projects designed to address the crises is accompanied by narratives that both justify the project’s approach to the situation and disarm regime critics. These narratives and the rally effects they sustain, in turn, can provide enough support for regimes to achieve political goals that might otherwise prove illusive and to create authority for leadership that might otherwise never be established. It is the emergence of clandestine opposition to these projects and the threat that poses to the capability of justifying narratives to sustain support that leads ruling elites to create informal institutions that sanction the use of torture. The success or failure of the projects themselves establishes the grounds for either confirming torture as a tool of government or discrediting it. In the following chapters I will present three case studies and use process tracing through comparative historical narratives concerning them to address some of the ways torture can become officially established (Buthe 2002, Mahoney and Rueschemeyer 2003, George and Bennett 2005). The first two concern decisions to officially adopt torture as part of the interrogation process made in the United States from 2002 to 2005 and in the Soviet Union from 1937 to 1938. The last case presents a counterfactual example: the failure of the United States to develop a torture regime during the Mexican War of 1846–48. I will attempt to show that the leadership in all three polities faced similar precarious political situations, were presented with similar crises that provided them a way to transcend their difficulties, and responded in very similar ways. The differences in outcomes in the cases result from the character of the regimes themselves and from increases or decreases in the level of threat to the narratives their leadership used to legitimize massive projects of social change. In other words, as I will show, the decision to use torture as a method of interrogation in the United States is not the result of a unique situation that can be swept under the rug, dismissing it as a consequence of a failure of leadership, faults in the personal character of leaders, “colonial traditions,” or moral blindness. It is the result of a systematic and institutional problem stemming from a particular sequence of circumstances. It can be explained, faced, and remedied only as such.


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10

Questions, Designs, and Mechanisms

T

orture is a subject that has received a good deal of indirect scholarly attention in the past, but not as much concentrated study as one might expect, given its pervasiveness. On reflection, this is not that surprising, given the inherent problems in defining the concept, the horrific details of the actual practices, concerns about the effects of prolonged observation and study on torture victims, and the ease with which the use of torture by the twentieth century’s reprehensible autocracies in Italy, Japan, Germany, and the Soviet Union allows attention to shift away from the historical record (Rejali 2007). Until recently, the issue of torture has been usually treated as a subsidiary question, often as part of a more extensive historical treatment of wider subjects (e.g., see Conquest 1990 or Solzhenitsyn 1973). This is not to say that the question of government repression was ignored, far from it. There has been a longstanding interest in the causes and mechanisms of repression of all kinds, including a substantial quantitative tradition built around the “domestic democratic peace thesis” (see Davenport 2000 for an overview). However, research focusing directly on torture has been limited. There have been some descriptive histories (Peters 1985, Langbein 1977) and occasional government reports (see McCoy 2006 for descriptions of these). However, the only systematic recent studies directly focusing on the official adoption of torture until after the revelations from Iraq and Afghanistan were Rejali’s (1994) groundbreaking study of torture and modernity in Iran; Conroy’s (2000) comparative account of torture in Northern Ireland, Israel, and Chicago; and Hathaway’s (2002) transnational examination of the relationship over time between ratification of human rights treaties and the incidence of torture in 165 countries. Furthermore, with the exception of Conway’s study, none of these works focused even partially on the United States.


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2


This is, of course, no longer the case; the stories and supporting data concerning torture and abuse in the War on Terror have led to a tidal wave of new research. Scholars and journalists have written ethical and legal studies of the torture issue (e.g., Levinson 2004, or Greenberg 2006), descriptive histories (McCoy 2006, Otterman 2007), and accounts of torture as part of more comprehensive studies of the wars in Iraq and Afghanistan (Ricks 2006, Risen 2006, Rosen 2006). Journalistic accounts of the sequence of Bush administration decisions involved in establishing torture (e.g., Mayer 2008, Suskind 2006) and considerations by legal scholars of the possible legal ramifications of using torturous interrogations (see Sands 2008, among others) have also emerged. Perhaps most remarkably, however, these works have been supported and, in many cases, verified by primary documentation obtained through the Freedom of Information Act (FOIA) including legal memoranda from the Department of Justice’s Office of Legal Council (OLC) and other executive agencies; extensive reports of courts martial criminal investigations by the CID and the U.S. Navy’s Criminal Investigation Service (CIS); Department of Defense commission reports, AR-15 investigations, internal communications, inspector general’s reports, and legal memoranda; the reports of congressional investigations; and, finally, the still not completely released photographic and video records (Danner 2004, Greenberg and Dratel 2005, Jaffer and Singh 2007, U.S. Congress 2008).1 This immense (and growing) archive constitutes perhaps the most complete uncovering of the use of “alternative procedures” of interrogation and the consequences of it in world history. Yet for all this recent interest, the number of systematic quantitative and qualitative studies of torture remains small and the study of the official adoption of torture remains under-examined and under-theorized. There is further work by Hathaway (2003, 2004) and others (Powell and Staton 2007) on the effects of international treaties on torture practices and an additional study by Gilligan and Nesbitt (2009) on whether established international norms reduce torture. The most relevant work to the problems I examine here, however, are the “large N” comparative studies by Davenport and his associates (2005, 2007, 2008) mentioned above and Rejali’s (2007) major study of the history and style of torture practices. To recall, these works establish that torture is much more ubiquitous than it was thought to have been, that the difference between torture practices in autocracies and democracies is substantively small when regimes are not under threat and disappears when they are, and that democracies have been active developers of torture techniques, especially “stealth” techniques that leave effects difficult to forensically detect. If I am to present a useful explanation of how torture was officially adopted by the United States, this set of findings means that any model of the process must compare both authoritarian and


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democratic cases. Indeed, if the difference in the incidence of torture by autocracies and democracies when they are under threat is as trivial as this recent work indicates, then one might speculate that similar mechanisms are at work. However, although aggregate empirical studies are useful in setting the descriptive ground rules for a study of the official adoption of torture, they do not allow the kind of in-depth description of the sequence of decisions involved that is needed to answer the research question. They also do not greatly aid the discovery of the particular theoretical relationships that explain the mechanisms involved in the sequences themselves. To address these shortcomings and to lay out a model of the actual mechanisms that determine how torture can become officially adopted I will present a comparative qualitative study formed around a set of cases that replicate as closely as possible the kind of variation suggested in the quantitative studies combined with a detailed theoretical analysis of historical narratives of the adoption of torture. But first one of the thorniest questions in a study of this sort presents itself: What do I mean when I talk of torture? This is not as simple a question to answer as it appears. Torture, like Justice Brennan Stewart said famously of pornography, is one of those practices that is hard to define, but “I know it when I see it.” Part of the problem of definition stems from the forensic question of intent; that is, when one causes suffering in another, is it torture if the suffering is not intended? As we will see, confusions created over this point had a role to play in establishing the torture regimes we will consider. There is a second legal aspect that can be as vexing: How does one draw the line in defining torture? Obviously, some legal punishments involve suffering. When, then, does torture arise? Furthermore, international conventions and national laws have condemned both torture and “cruel, inhuman, and degrading” behavior. When is the border crossed between these two techniques? Obviously, there would not be much point in erecting two standards unless one denoted acts that are less reprehensible. Just as obviously, however, both torture and cruel, inhuman, and degrading abuses commonly arise in the same chain of events and are nearly impossible to distinguish within them. The second problem in defining torture is an empirical one: What is the scope of the phenomena in the first place? Torture is usually restricted to direct or indirect official acts. But, obviously, torturing others is not restricted to government agents. Private individuals and organizations can and do torture, perhaps with as much frequency as governments. Where does one, again, draw the line between public and private actions in deciding what constitutes torture? In addition, given the known instances of governments acting through private agents using well-concealed channels, there is a real danger of misspecifying the extent of torture in some particular cases (Otterman 2007, Rejali 2007). Here there is a secondary problem as well.


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QUESTIONS, DESIGNS, AND MECHANISMS


Torture is done for a variety of reasons as well as by a variety of actors. In the past torture was commonly used in classic and stateless societies as a rite of passage for young men, as a test of the courage of captives in wars, or as part of religious practices (Cartledge 2003). Also, torture was commonly used as a deterrent. Offenses particularly undermining either religious, economic, familial, or political institutions were attended by horrific punishments, often ending in death. The higher one’s social status, the more terrible and degrading the death was. It took the advent of modern nation-states to narrow the scope of torture, though not its incidence (Einolf 2007). For purposes of this study, I will use the definition in Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. It states that any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of one with the consent or acquiescence of a public official or person acting in an official capacity. (United Nations 1984)

Although not avoiding the question of intent, this definition places responsibility jointly on both torturers and public officials. In practice, this has meant that the act of torture is allowed to “speak for itself”; that is, if an official action has led to torture it is assumed that the torture is intentional. Also, since Article 16 of the Convention also bans cruel, inhuman, and degrading behavior, there is seldom a problem of separating the two categories.2 If I were studying a wider set of problems about torture, restricting the scope of torture to official acts would prove troublesome; some of the studies mentioned earlier use broader definitions. But following the usual practice of focusing on the official adoption of torture makes the restrictions of the concept in the Convention definition an aid, not a hindrance (Quiroga and Jaranson 2005). The research problem I am trying to deal with does not concern private torture, although, as we shall see, official torture can be and has been done for governments by contract employees of private firms. With the basic concept of the study defined, it is now time to move to the actual research design that I will be using. As I said above, this book is an attempt to explain the official adoption of torture as a common means of interrogation by the United States in the War on Terror. This automatically limits the scope of this inquiry. I will not be presenting a general theory of how torture comes to be used; indeed, given the ubiquity of


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torture in human history, I doubt such a theory could be devised. I will instead focus on a comparative analysis of the official adoption of torture in polities with strong executives and cycles of political authority determined by the support of a “selectorate”; that is, by “the proportion of a state’s adult population that has a formal role in selection of the leadership that rules it and, more importantly, that has the prospect of gaining membership in the privileged, winning coalition” (Bueno de Mesquita et al. 2005, 441). Selectorates can be small, as in autocracies, or large, as in democratic polities; the requirement here is that there be a politically relevant part of the population, whether a small elite or a mass public, that can be converted into a supporting coalition in order to ensure the legitimacy of executive authority. This will produce a limited explanation, but one that automatically generates a variety of subsidiary questions, both theoretical and practical in character. In the following chapters, I will present a sequential model linking political and organizational incentives to the official decision to use torture in interrogations for three separate cases: (1) the United States during the War on Terror (2002–2006), (2) the Soviet Union during the Stalinist Terror (1937–1938), and (3) the United States during the Mexican War (1846–1848).3 Why these three cases? How do they help us explain how torture becomes embedded in the interrogation processes of states? The first answer to these questions is a practical one: sufficient material exists for constructing historical narratives of these cases. The process of finding out why states use torture would run into a substantial initial barrier under any circumstances; since the dawn of the modern era, states have hidden any practice of torture behind as closed a veil of secrecy as their laws or traditions of executive discretion allow. There are many cases that could be considered as comparative tests for the explanations I have devised: the United Kingdom and its fight against the Irish Republican Army, the contest between the apartheid state in the Republic of South Africa and its African National Congress opponents, and others. In most cases that would fit the research question, however, the record of the decisions involved in establishing torture is still sketchy and the secondary literature underdeveloped.4 However, the United States, besides being necessarily included in order to answer the main research question I have posed, would be an excellent choice due to the availability of relevant information. The disclosures forced on the government concerning the interrogation practices established under the Bush administration are among the most complete records of decision making concerning the use of torture extant. Furthermore, a substantial, although largely descriptive, secondary literature of independent reports, participant’s memoirs, and journalistic accounts already exists, providing extensive data for supporting


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the explanatory framework I will propose. The Soviet Union during the Stalinist Terror is also an obvious candidate for testing these theories. The fall of the USSR opened a treasure trove of primary documentation concerning all aspects of soviet life. The archives of the Communist Party and of the “organs of state security” are particularly useful in pinpointing, albeit in less detail than the U.S. case, the decisions leading to the Stalinist Terror, how torture in the Soviet Union was established, and how it survived after the end of the purges in 1938. Needless to say, the secondary literature on all of these questions is voluminous and is more developed then the U.S. case as well. However, the main reason for choosing the United States and the Soviet Union as comparative cases was not only the availability of data but also their suitability as representative cases on the main independent variable in studies of government repression. As I have mentioned, there is an existing research tradition built around the large N quantitative comparative studies of repression based on the so-called domestic democratic peace thesis. These studies provide good evidence that, on most combined measures of repression, democracies are less likely to be repressive then autocracies, though this is conclusively the case only at high levels of democracy (see Davenport 2004 for a comprehensive overview of these findings). Studies of torture in particular have also shown differences in incidence between democratic and authoritarian governments, though, as already mentioned, there is less of a difference than might have been anticipated (Davenport and Armstrong 2005, Davenport, Armstrong, and Moore 2007, Davenport, Moore, and Armstrong 2008). In choosing the United States and the Soviet Union as subjects of my study, I have selected what Seawright and Gerring (2008, see also Gerring 2007) refer to as “diverse cases.” As they say, this design strategy “requires the selection of a set of cases—at a minimum, two—which are intended to represent the full range of values characterizing X, Y, or some particular X/Y relationship” (Seawright and Gerring 2008, 300). Given the many different definitions of democracy available, some might have reservations concerning how representative the United States and the Soviet Union are of a continuum between democratic and autocratic governments, given their divergent histories, unusual size, and economic and military power. However, if one looks at democracy as a combination of allowing relatively unrestricted participation in public life and contested elections (Dahl 1971), then there is no question that the two cases can be taken as exemplars of democratic and autocratic styles of government. Indeed, if case selection along the regime continuum is conceived in dichotomous terms, the United States and the Soviet Union would be the obvious choices. Finally, the recent finding that repression in democracies is inhibited only when democratic characteristics are well established


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and effective supports the selection of these cases as well (Davenport and Armstrong 2004, Bueno de Mesquita et al. 2005). The United States is certainly a “high-level” democracy, just as the Soviet Union under Stalin was a prototypical authoritarian state. Considering the substantial data available for each case and, as I will attempt to show, the similar mechanisms at work in both, this choice is almost unavoidable. However, the equation is incomplete. As Buthe (2002) points out, one of the first steps in any research using historical narratives as its prime source of data is to establish the explanandum, the dependent variable to be examined. Here that variable is the official adoption of torture. But it is just on this point that some readers might remain unconvinced. The tortures inflicted by the Soviet Union on prisoners during the repressions of 1937–38 are well known and notorious; indeed, they are considered a model of such techniques (Solzhenitsyn 1973, Rejali 2007). Those “harsh interrogation” techniques most mentioned in popular accounts of interrogations conducted by the United States from 2002 to 2006—sleep deprivation, systematic humiliations, “stress positions,” and “waterboarding”—appear less severe and were, in fact, applied to a much smaller group of people.5 Thus, a first step to establishing the explanandum of this study should be to compare the results of the decision to use torture in the two countries. Table 2.1 presents such a comparison of the interrogation techniques used by the People’s Commissariat of Internal Affairs (NKVD), the state security agency in the Soviet Union during the Stalinist Terror of 1937–38, and those used by the United States from 2002 to 2006.6 For illustrative purposes, the categories are drawn from the listings of NKVD interrogation techniques compiled by Solzhenitsyn (1973), Conquest (1990), Tucker (1990), and Rejali (2007).7 Although by no means comprehensive for either case, the table cites 42 different interrogation techniques in the order given by Solzhenitsyn, with some additional categories. Three of the techniques he lists—persuasion, psychological contrast, and deception— are non-abusive interrogation methods commonly used by both civilian and military interrogators. Of the other 39 techniques, all involving either torture or cruel, inhuman, and degrading behavior as defined here, 28 were used in both Soviet and U.S. interrogations, 5 are NKVD techniques with no U.S. parallel, and 6 are U.S. techniques that have no recorded Soviet counterpart. These results show substantial agreement in the torture techniques used by the two countries; 72 percent of the methods listed were used by both Soviet and U.S. interrogators. The actual styles of interrogation combine many of the techniques used, albeit in slightly different ways. Both the NKVD and U.S. military and civilian interrogators favored what Conquest (1990, 124) refers to as the “long interrogation,” involving prolonged questioning interspersed with torture


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The Soviet Union

The United States

Night Interrogation/ Sensory Deprivation

Solzhenitsyn 1973, 103 Conquest 1990, 125 (Prisoners interrogated at night, use of blackout goggles, earmuffs)

ICRC 2004, 260–61 Rejali 2007, 80, HRW 2004, 2–3 Danner 2009 (Detainees interrogated at night, hooding [multiple bags, extended periods])

Persuasion

Solzhenitsyn 1973, 104 (“Futility,” “emotional love” approach)

USDOA 1987, Appendix H (“Futility,” “emotional love” approach)

Foul Language

Solzhenitsyn 1973, 104 Conquest 1990, 278 (Prisoners cursed during interrogation)

ICRC 2004, 264 Al-Sheikh 2004, 226 (Detainees cursed during interrogation)

Psychological Contrast

Solzhenitsyn 1973, 104–05 Conquest 1990, 278 (“Fear up, harsh,” “Mutt and Jeff” approach)

USDOA 1987, Appendix H (“Fear up, harsh,” “Mutt and Jeff” approach)

Preliminary Humiliation

Solzhenitsyn 1973, 104–05 Conquest 1990, 122 Tucker 1990, 471 (Prisoner’s face down in hall, naked woman in cell, head forced into spittoon, forced to drink contents of spittoon, urinated on)

ICRC 2004, 261–262 Taguba 2004a, 292 Al-Sheikh 2004, 228, CCR 2006, 26, 28 Mustafa 2004, 238 White and Eggen 2005 FBI 2007 Danner 2009 CIA IG 2004, 77–78 (Detainees naked for extended periods, paraded naked, photographed in sexually explicit positions, forced to wear women’s underwear, forced to masturbate while being photographed and videotaped, “pyramids,” paraded on dog chain, forced to act like dog, subjected to forced grooming, urinated on, Koran abused, detainee wrapped in Israeli flag during questioning, forced enemas, “hard takedown”) Continued


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Table 2.1 Comparison of interrogation techniques in the Soviet Union, 1937–38, and the United States, 2002–06

The Soviet Union

The United States

Sexual Humiliation

Solzhenitsyn 1973, 105 (“Striptease” interrogation)

Schmidt and Furlow 2005, 7–9 (“Lapdance” interrogation, smearing detainees with perfume, red ink represented as menstrual blood, detainee genitals squeezed until in pain)

Threats of Death

Solzhenitsyn 1973, 105 (Threats of death, transfer to another prison)

ICRC 2004, 261, 264 Al-Sheikh 2004, 227 Hilas 2004, 242 CIA IG 2004, 41–42 ACLU 2005b, 2006e (Threats of death, transfer to an other prison, rape)

Deception

Solzhenitsyn 1973, 106 USDOA 1987, Appendix H (“File and dossier” approach) (“File and dossier” approach)

Threats to Hostages

Solzhenitsyn 1973, 106–07 Conquest 1990, 127 (Threats against family, detention, torture of family members)

ICRC 2004, 261 USDOD Memo, Greenberg and Dratel 2005, 1170, Juma 2004, 244 Provance 2006, 9 CIA IG Report 2004, 42–43 (Threats against family, detention, torture of family members)

Sound Effects

Solzhenitsyn 1973, 108 (Megaphones directly on prisoner ears)

Provance 2006, 3 HRW 2005b, 24 Danner 2009 Faleh 2004, 230 Youss 2004, 232 ACLU 2004b (Use of loud music, airhorns, loudspeakers on restrained detainees)

Tickling

Solzhenitsyn 1973, 108 (Tickling the interior of prisoner’s nose) Continued


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Table 2.1 Continued

The Soviet Union

The United States

Cigarette Burns

Solzhenitsyn 1973, 108 (Cigarette put out on prisoner’s skin)

Provance 2006, 4–5 ACLU 2004a, 2006b (Cigarette put out on detainee’s skin, cigarette put out in detainee’s ear)

Light Effects

Solzhenitsyn 1973, 108, 180, Rejali 2007, 80 (Continuous light in cells)

ICRC 2004, 263 ACLU 2004b HRW 2006, 28 (Continuous light in cells, continuous darkness in cells, use of strobe lights)

Continuously Led to Interrogation

Solzhenitsyn 1973, 108–09 (Prisoner continuously led to questioning then returned to cell to disrupt sleep)

Schmidt and Furlow 2005, 10–11 (“Frequent Flyer” program—detainees moved continuously from cell to cell to disrupt sleep)

The “Box”

Solzhenitsyn 1973, 109 (Imprisonment in small continuously dark or light cell)

ICRC 2004, 261–262, 267–268 Formica 2004, 47 Danner 2009 (Imprisonment in small continuously dark or light cells, detainee imprisoned in 4’ x 4’ x 20” cell for 4 days,detainee held in coffin-like boxes [3.5’ x 2.5’ x 6.5’, 3.5’ x 2.5’ x 3.5’])

Sitting on Chairs

Solzhenitsyn 1973, 109–10 (Sitting on edge of stool after weight loss for extended periods)

Jones and Fay 2004, 518 Danner 2009 (Sitting in a precarious position on stool for extended periods, detainee shackled to chair for 3 weeks)

“Divisional Pit”

Solzhenitsyn 1973, 110 (Prisoners confined to open pit during initial interrogation)

HRW 2005b, 11 HRW 2004b, 5, 7 Khalilzad Memo, Greenberg and Dratel 2005, 1171–72 (Detainees in open tents in desert, detainees in open cages in tropical climate, detainees in open pens)

Standing on Knees

Solzhenitsyn 1973, 111 (Prisoner kept up on knees 24–48 hours)

ACLU 2004d (Hand- and leg-cuffed detainees kept standing on knees for 24 hours) Continued


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Table 2.1 Continued

The Soviet Union

The United States

Standing

Solzhenitsyn 1973, 111 Conquest 1990, 121 Tucker 1990, 471 Rejali 2007, 80 (Standing for extended periods, standing on tiptoe for extended periods)

ICRC 2004, 262, 265 HRW 2006, 9 Danner 2009 CIA IG 2004, 44 ACLU 2005a (Standing for extended periods in “stress positions,” e.g., standing on narrow boxes, standing bound to cell door, bedstead, or window, standing on concrete blocks while hooded with hands cuffed behind legs, standing with hands suspended from ceiling by shackles)

Thirst

Solzhenitsyn 1973, 111, 494 Rejali 2007, 81 (Prisoner deprived of water for 3–5 days, prisoners fed salt herring to induce thirst)

HRW 2005b, 9 (Detainees fed salted crackers and deprived of water for 12 hours in desert)

Sleep Deprivation / “Conveyer Belt”

Solzhenitsyn 1973, 111–13 Conquest 1990, 123–4 Rejali 2007, 80 (Prisoners deprived of sleep for extended periods, continuous interrogation by teams for 3–4 days)

ICRC 2004, 261, 263 Jones and Fay 2004, 506 Provance 2006, 4 PHR 2005, 35 Formica 2004, 74 Schmidt and Furlow 2005, 20 (Prisoners deprived of sleep for extended periods [2 weeks in one instance], continuous interrogation by teams for 20 hours a day for 48 of 54 days)

“Box” With Insects1

Solzhenitsyn 1973, 113 (“Box” infested with bedbugs)

Punishment Cells

Solzhenitsyn 1973, 113–14 Rejali 2007, 81 (Imprisonment in cells made alternatively extremely hot or cold, use of nakedness, cold baths to increase effects of cold)

ICRC 2004, 262 HRW 2004, 15–16 HRW 2006, 9 Danner 2009 Al-Aboodi 2004,245 CIA IG 2004, 73–76 ACLU 2004a, 2004c Continued


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Table 2.1 Continued

Table 2.1 Continued The United States (Detainees confined in cells made alternatively extremely hot or cold, detainees frequently kept naked and doused in cold water to increase effects of cold) Locked in an Alcove

Solzhenitsyn 1973, 114 (Imprisonment in closet-like cell)

Jones and Fay 2004, 510, 529–30 (Detainees confined in “The Hole,” an “isolation closet”)

Starvation

Solzhenitsyn 1973, 114 Conquest 1990, 125 (Limited diet for extended periods)

Formica 2004, 8, 33 HRW 2005b, 12–13 Danner 2009 (Limited diet for extended periods [17 days on bread and water, crackers and water for extended periods, two weeks without solid food])

Beatings

Solzhenitsyn 1973, 116 Conquest 1990, 121 Tucker 1990, 468 Rejali 2007, 80 (Beatings by fist, kicks, stomping, chairs, clubs, rubber truncheons, wooden mallets, the “penalty kick” [kick in the groin], edge of rulers)

Taguba 2004a, 292–93 HRW 2005b, 11–12 Hanfosh 2004, 233 ACLU 2005a, 2006c Golden 2005 CIA IG 2004, 78–79, 69–70 Danner 2009 (Beatings by fist, kicks, stomping, chairs, batons, phosphorus bulbs [phosphorus poured on detainee], broomsticks, ax handles, phonebooks, kicks in the groin, baseball bats, “walling” [detainee’s head put in collar and swung into wall], rifle butts, metal flashlight [detainee died], choking to asphyxiation.)

Injured Extremities

Solzhenitsyn 1973, 116 Conquest 1990, 121 Tucker 1990, 471 (Fingernails squeezed until they drop off, toenails torn out, fingers slammed in door)

Taguba 2004a, 292 PBS 2005a Anonymous 2004, 248 CIA IG 2004, 44 ACLU 2005a (Feet stomped, feet smashed with ax head, feet jumped onto from bed, the falaka [detainee beaten on soles of feet with baton], stepping on detainees foot shackles while suspended from ceiling to injure ankles) Continued


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The Soviet Union

The Soviet Union

The United States

Close Restraints

Solzhenitsyn 1973, 116 Reajli 2007, 81 (Prisoner restrained in straightjacket)

ACLU 2005c (“Litter sandwich” [detainee wrapped in foam mattress, then restrained between two stretchers strapped together])

Breaking Bones

Solzhenitsyn 1973, 93, 116 Conquest 1990, 121 (Breaking prisoner’s back, legs)

CCR 2006, 20 HRW 2005b, 11 ACLU 2006d (Breaking detainee’s back, legs, ribs, hyoid bone [detainee died as result])

Bondage

Solzhenitsyn 1973, 117 Conquest 1990, 121 (“Bridling” [handcuffed prisoner bound by rope tying mouth and feet], “The Swallow” [prisoner’s hands and feet cuffed behind back, hands tied together, prisoner pulled off ground])

Mayer 2005 Golden 2005 ICRC 2004, 262 (“Palestinian hanging” [detainee hands shackled behind back and attached to bars of cell door or window at shoulder height or above], detainee handcuffed to ceiling with feet off floor, detainee handcuffed standing to cell door, bed, or railing)

Mock Executions

Solzhenitsyn 1973, 448 Conquest 1990, 126 (Mock execution by firing squad, pistol)

ACLU 2006e PHR 2005, 30 CIA IG 2004, 70–72 (Mock execution by firing squad, pistol)

Skull Squeezed Solzhenitsyn 1973, 93 Rejali 2007, 81 (Prisoner’s skull squeezed in iron ring, squeezed by cloth bandage) Body Burns

Solzhenitsyn 1973, 93 (Prisoner lowered into acid bath)

ICRC 2004, 259–60 PBS 2005a (Detainee hooded, handcuffed, forced naked onto hot truck bed for transport to interrogation [three months hospitalization required for burns], detainee forced to sit on hot exhaust pipe of HMMWV)

“Secret Brand” Solzhenitsyn 1973, 93 (Prisoner’s intestines burned with poker) Continued


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Table 2.1 Continued

Table 2.1 Continued

Solzhenitsyn 1973, 93, 127–8 (Prisoner’s testicles crushed beneath boot while restrained)

Rape

Tucker 1990, 472 (Adolescent male prisoner raped)

“Water boarding”2

The United States

Taguba 2004a, 292–93 Hilas 2004, 243 Anonymous 2004, 248 (Rape of female detainee by interrogators, rape of male detainees by broomstick, baton, phosphorus bulb, interrogators) Danner 2004, 34–36 Suskind 2006, 115, 228–30 Danner 2009 (Face of detainee under restraint covered with cloth, water poured on cloth until detainee cannot breath, simulating drowning)

“Sleeping Bag” Technique

White 2005 WAPO 2005 Rosen 2006, 96–7 (Detainee forced into sleeping bag secured around detainee’s head with electric cord, interrogator sat on detainee’s chest to question him [detainee with broken ribs died of asphyxia])

Exhaustion Exercise3

Provance 2006, 5 HRW 2005b, 9, 15 (Hooded detainees exercised to point of collapse in desert climate)

Use of Dogs

Taguba 2004a, 292 Jones and Fay 2004, 516–523 (Detainees threatened with, bitten by unmuzzled military police dogs)

“Short Shackling”

HRW 2004, 11–12 ACLU 2004c Schmidt and Furlow 2005, 12 Formica 2004, 33 Continued


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The Soviet Union Crushing Testicles

25


Table 2.1 Continued The United States (Detainee’s hands and feet are closely shackled, then attached to a short chain fastened to the floor for extended periods [usually combined with punishment cell regimen— nakedness, closed cell, great heat or cold, and frequent dousing with cold water]) Electric Shock

ACLU 2006f (Detainee attached to poles of electric battery and shocked)

1 A similar technique was authorized for U.S. interrogators in the classified August 1, 2002 OLC memorandum on interrogation techniques (Bybee 2002b), but there is no record of it ever being used (U.S. Department of Justice 2009). 2 Solzhenitsyn (1973, 126) mentions two instances of the use of “pumping”—forced infusions of water into the stomach (Rejali 2007). The dates of these accounts are uncertain and I have not included them. 3 This phrase is Rejali’s (2007). American soldiers usually refer to the technique as “smoking” (Human Rights Watch 2005b, ACLU 2005a). Abbreviations: ICRC (International Committee of the Red Cross), ACLU (American Civil Liberties Union), HRW (Human Rights Watch), USDOA (U.S. Department of the Army), CCR (Center for Constitutional Rights), FBI (Federal Bureau of Investigation), CIA IG (Central Intelligence Agency, Office of the Inspector General), USDOD (U.S. Department of Defense), PBS (Public Broadcasting System), PHR (Physicians for Human Rights), WAPO (Washington Post).

sessions meant to break down resistance by prisoners and obtain their full cooperation. Russian interrogators in 1937–38 appear to have tended more toward brute force in their work, though in both cases what Rejali (2007) describes as “scarring techniques” are used: six such techniques by the NKVD, five by U.S. interrogators.8 U.S. long interrogations depend more on humiliation and solitary confinement for prolonged periods in punishment cells (for descriptions of interrogations, see Solzhenitsyn 1973, Center for Constitutional Rights 2006a, or the sworn detainee statements in the Taguba Report [Taguba 2004a]). However, as table 2.1 reveals, the basic technical means adopted in the two cases are quite similar. This is not that surprising, given that what Rejali (2007) calls “Anglo-Saxon modern” torture—emphasizing positional tortures, “clean” beatings, and the use of prolonged interrogations under stress (“sweating”)—was the originating style for “Soviet modern” methods.9 The story of how torture became established and informally legalized in both cases is too complex to be summarized at this point, but perhaps readers reluctant to see why


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The Soviet Union


the comparison at the center of this book was made may now be more willing to follow the argument: the diversity of torture techniques in both cases and their substantial overlap should suggest the possible existence of common causal mechanisms. I should stop here, however, to touch on the question of moral equivalence. I will try to show in this book that the Soviet Union during the Stalinist Terror and the United States in the War on Terror made official decisions to informally institute torture. Some might take this as a basis for the argument that there is no substantial difference between them, at least on this subject. I must caution readers against any such misunderstanding. Moral questions are always a matter of degree. It is true that torturing people is usually considered morally wrong and that both states did it. However, the Soviet Union used torture as an adjunct to a process that led to the execution, by official count, of 681,692 people in 1937–38 and to the incarceration, usually on manufactured charges and in horrendous conditions, of better than 1 million more in the 1930s (Getty, Rittersporn, and Zemstov 1993, Getty and Naumov 1999).10 The wars in Afghanistan and Iraq have led to a substantial number of deaths in both countries and many Afghans and Iraqis have been imprisoned, often for no more valid cause and in conditions just as extreme as those that were found in the Soviet Union (Jones and Fay 2004).11 Still, any sense of proportionality between the results of the two cases would not find them morally comparable. Most of the victims of imprisonment and torture by U.S. armed forces and security agencies are, after all, still alive. I will have more to say on this subject in the concluding chapter of this book, but the next step in this introductory material is to describe the mechanisms I plan to elucidate as an explanation for the adoption of torture in the United States and the Soviet Union. The scheme revolves around two different strands of theory. The first is a generalization of Skowronek’s (1997) concept of political time. In his research on the U.S. presidency, Skowronek identifies two separate processes: (1) secular time, the actual advance of time and the accretion of economic development, technological advances, and historical precedent, and (2) political time, recurring patterns in electoral politics leading to the establishment of new electoral coalitions, their articulation by successive presidencies, and their final dissolution as their supporting coalitions fall apart. The underlying element of political time is the need to assert legitimate authority by succeeding presidents, a strategy most effectively pursued by the “creative destruction” of prior policies. The establishment of new regimes depends on the appearance of a “great repudiator,” that is, a political figure who can embody general discontent with an existing order and mobilize support for its overthrow. The


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reconstruction of presidential legitimacy under such circumstances can lead to initial disappointments for members of the new ruling coalition, given that the reformation they wish for is seldom completed, but it usually solidifies the liniments of the new regime. Filling them out is left to “orthodox innovators,” those presidents who must articulate the policies of the regime by, at the same time, showing loyalty to the new order and instituting policies that provide a separate justification for their rule. Finally, the cycle is completed by successors who preside over the collapse of regime coalitions as a “politics of disjunction” conspires to make cobbling together an agenda for change—and, thus, a warrant for legitimate leadership—virtually impossible (Skowronek 1997). As a theory of the electoral fortunes of U.S. presidents these ideas make sense and have had a substantial influence. Skowronek’s ideas are based on U.S. presidential history, but the scheme is not so wedded to that history that it cannot be generalized. As Orren and Skowronek (2004) point out, the basic ideas of the “new institutional approach” that Skowronek’s model is based on can be applied to many contexts. All polities have difficulties establishing the legitimate authority of institutions. Political institutions are an enduring source of order due to their capacity to intervene in the operation of other institutions and their ability to assert legitimate reasons for doing so, but they seldom have the field all to themselves. There is always the problem of “intercurrence”—that “the normal condition of the polity will be that of multiple, incongruous authorities operating simultaneously” (Orren and Skowronek 2004, 108). The establishment of legitimate authority is the process of mastering these “persistent incongruities and frictions among institutional orderings” (Skowronek 1995). Over time the unraveling of the patterns of behavior used to overcome those “incongruities and frictions” can tell us a great deal about how particular institutions and their consequences, intended and unintended, emerge. I will try to show in this book that the basic concepts of Skowronek’s (1997) description of how building authoritative leadership has worked in U.S. presidential politics can, with some revision, be used to analyze leadership in many modern polities, both democratic and autocratic, that have a strong executive component. To some extent, executives in many modern polities face problems similar to those of U.S. presidents. They must present reasons for leading and build support among relevant political actors in the context of the particular historical situation they inherit. Doing so must include a willingness to exploit the contingencies of particular junctures in time to upset inherited policies in the name of either repudiating previous evils or fulfilling the commitments of an established orthodoxy (or both), and, furthermore, a capacity to rally relevant political


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actors around these themes and forestall opposition to their initiatives (Orren and Skowronek 2004, Orren 1995). In the United States, due to constitutional limitations, this has meant building, sustaining, or opposing broad electoral coalitions in mass publics within the constitutional four year cycle of the presidency. But this is not, I think, a necessary condition. If executives have to make appeals to elite and popular opinion, they need to build legitimacy, although the inclusiveness of the base of their support and their attention to mass publics will vary with the level of democratic interventions they must accommodate. Also, the leadership patterns observed by Skowronek are by no means absent from the history of other polities. The United States is not the only country to have found itself in the hands of a great repudiator who creates an agenda for regime change that his followers find difficult to fulfill. In addition, the slow decomposition of support for political regimes over time is perhaps inevitable in any system, as are attempts by subsequent leaders to sustain regime doctrines as the basis of their authority. What varies is, first, the capability of rulers to forestall the consequences of regime decay and the level of institutional constraints affecting that capability and, second, the regularity of leadership change and regime establishment, a regularity found in the United States but often missing in other polities due to different constitutional structures or to autocratic rule. For both the United States and the Soviet Union I postulate that the initial condition for the official adoption of torture is the appearance of an orthodox innovator leadership situation in the face of a serious political crisis. As I hope to show in the ensuing analysis, if the perceived severity of crises is great enough it can offer the opportunity to establish leadership projects— policies and courses of action intended to particularly address the crisis and provide a solution for the problems that led to it. Such projects, however, are not self-sufficient sources of political support. Rather, I argue that they must be accompanied by a leadership narrative—a set of justifications for the project aimed at establishing overarching narratives that perform two vital tasks. First, the narrative must identify the project with both widely held values in the political culture and, more especially, the values associated with the established regime itself. Doing so connects the project with both “traditional” values (at least as defined by ruling elites) and the ideological foundations of the ruling coalition. Second, the narrative must clearly delineate the persons and organizations targeted by the project as opponents of the values it represents. This is usually done by describing the project as a Manichean conflict between the regime (good) and its opponents (evil), a conflict to be described and conducted as a war between irreconcilable polar opposites.12 The projects and the narratives that accompany them allow leaders in orthodox innovator situations the possibility of overcoming


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some of the dilemmas of what Skowronek (1997) calls the “politics of articulation.” As he describes it, this is the delicate situation where a leader must introduce new and disruptive policies that will justify her rule while at the same time adhering to the often unfulfilled policy commitments left by the originators of the regime she represents. By addressing severe crises and proposing ways to address them, regime projects and narratives can structure and help sustain rally effects. Rally effects are the sudden surges in public support that attend the emergence of crises. They have two components that are related to the crises regimes face. First, the shock of the onset of crisis reinforces unity within ruling coalitions and induces counter-elites to refrain from open opposition to the ruling regime’s actions. This, in turn, can help sustain the second component of the effect, the sudden increase in support from mass publics faced with palpable threats and turning to ruling coalitions to alleviate them (Brody 1991, Baum 2002). I argue here that leadership narratives, by giving focus to rally effects, help create operating room for new initiatives that address the crisis and for pushing forward policies that would normally have little popular support. This opportunity can then be exploited to address the unfulfilled policy promises that the regime has outstanding by articulating new initiatives. These policy initiatives, usually in new but still familiar forms, are reconstructed through the narratives by the leaders in question to reinforce the legitimacy and necessity of their continuing authority. In other words, I will try to show that the crisis and its attendant rally effect create the atmosphere needed to follow through on solutions to both the crisis and the longstanding policy puzzles that confound the politics of articulation. When projects to address such crises begin to mature, they almost inevitably create nearly as many problems as they solve. Foremost among these is the possibility of increasing opposition resulting from the projects themselves as they displace the lives and fortunes of those affected. This is a potentially dire situation; if the project begins to falter, the narrative will lose persuasive force. That in turn could lead to the degeneration of public support, to the reemergence of public opposition from counterelites, and to the reappearance of fissures in the ruling elites.13 A faltering narrative, in other words, would imperil both the capability of the leadership to deal with the crisis and the opportunity to bring its unfulfilled policy agenda to completion. Should the leadership come to believe that the threat of violent opposition is likely to emerge, especially from clandestine opposition networks, the next step is predictable: there will be measures taken to obtain “actionable intelligence” about the opposition and its tactics. But these measures may not yield the needed information, in part because the conviction that speed is necessary to forestall perceived threats makes the leadership impatient with the painstaking work involved


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in usual intelligence methods and in part because the very character of the projects creates greater opposition over time. The result is a decision by leaders to weaken the existing restraints on the armed forces and/or the intelligence services by creating situations where rules of investigation and interrogation become ambiguous—that is, the creation of accommodating informal institutions that allow space for torture to proliferate (Helmke and Levitsky 2004). The resulting repression of opponents may or may not create the possibility of eliminating rising threats to the projects involved. Either completion or failure of the leadership project in question ensues. Successful completion can lead to the legitimation of torture as the leadership project cements its presence as an institution in the polity. If the project fails, the narrative can be partially replaced by new leadership and new projects. However, unless directly repudiated, the precedents created during the use of torture can remain as a place holder for future leaders (Orren 1995). A graphic representation of the mechanisms I have just described can be found in figure 2.1. Attentive readers are probably wondering by this time when the third case, the United States during the Mexican War of 1846–48, would be discussed. Using the United States and the Soviet Union alone as cases creates a very substantial risk for the explanation I have just suggested. As I hope to show, in both of these cases torture developed as a result of the need to protect vital leadership projects from the perceived threat of clandestine violent opposition. However, leaving the examination of the processes involved at that would make an already serious risk of selection bias due to the small number of cases considerably worse. First, the inclusion of only two diverse, but exemplary, cases based on a continuous independent variable greatly increases the possibility of spurious conclusions. Although the Soviet Union and the United States are respectively good archetypes of autocratic and democratic regimes, the proposed mechanisms might be more convincingly supported if at least one other case was included, one that is located between these two cases in the scale of autocratic to democratic polities. Of course, this will not alleviate the main problem; a small number of cases is a small number of cases. However, including a case such as the United States in 1846–48 will increase, at least, the data available for examination and the scope of conditions on the main independent variable in this study. As can be seen in table 2.2, the United States in 1846–48 shares many features with both cases. Like the United States of today, it was a liberal democratic regime with competitive, multiparty elections to an effective legislature and had an active civil society. Like the Soviet Union in the 1930s, however, it was also a polity that had not fully institutionalized its constitutional structure, that legally restricted participation (indeed, more so than the Soviet Union did), and had limited


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QUESTIONS, DESIGNS, AND MECHANISMS Orthodox Innovator Leadership Situation

Severe Political Crisis

Percieved Threat to Leadership Project From Violent Clandestine Opposition Emerges

Percieved Threat Increases

Percieved Threat Decreases

Need for Intelligence Concerning Opponents

Completion of Leadership Project

Difficulty With Developing Actionable Intelligence

Official Establishment of Accommodating Informal Institution

Use of Torture and Repression of Opponents

Completion or Failure of Leadership Project

Figure 2.1

Mechanisms for the Official Establishment of Torture

administrative capacity. Finally, in terms of its socioeconomic development, the United States of that day, although having an identifiably capitalist economy, had only just begun the process of industrial development. This United States was a predominantly rural and agricultural country and had yet to deal with the specter of slavery. The United States in 1846–48 appears sufficiently different from the other two cases to allow us to make


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Establishment of Leadership Narrative and Connected Leadership Project

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Table 2.2 Comparative System Characteristics: The United States 2002–06, the Soviet Union 1937–38, and the United States 1845–48 Characteristic

The United States (2002–06)

The Soviet Union (1937–38)

The United States (1845–48)

Legislative Capacity

Civic Extensive private associations Liberal democratic Competitive, multiparty Substantial

Subject participant Extensive state associations Marxist-Socialist Noncompetitive, single legal party Nominal

Subject participant Extensive private associations Liberal democratic Competitive, multiparty Substantial

Polity IV Score

10

–9

10

Capitalist, postindustrial $34,280 (2001) 80.3% (2000) 74% (2000)

Command, developing $1,303 (1937) 32% (1940) 55.7% (1939)

Capitalist, developing N/A 10.8% (1840) N/A

Political Culture Civil Society Dominant Ideology Electoral/Party System

Socio-Economic System Economic System Per Capita GDP Urban Population Population Over 18

Sources: Political system: Barghoorn 1972, Armstrong 1978, Almond and Verba 1963, Watson 1990. Socioeconomic system: Sherman 1969, Nove 1989, Watson 1990, Harrison 1994, Perry and Mackun 2001, Bauman and Graff 2003, U.S. Census 1990, 2003, Afontsev et al. 2005, Lorimer 1953.

the argument that it fits best in the continuum from democratic to autocratic regime types somewhere between the United States of the present day and the Soviet Union in the late 1930s. Including this case, then, creates a wider range of variation in the independent variable used for case selection, an always desirable result (King, Keohane, and Verba 1994). Second, the explanatory mechanism I have proposed is threatened by not including at least one case where similar initial processes did not lead to the emergence of torture. This is the familiar conundrum of “choosing cases on the dependent variable”—that is, not including counterfactual examples where aspects of the proposed causal mechanisms fail to produce the predicted outcome (King, Keohane, and Verba 1994). Including the case of the United States during the Mexican War reduces the risks of this problem. As I shall show below, the United States in the early nineteenth century was a country facing a substantial political crisis over


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Political System

33

western expansion of the United States. This crisis was, moreover, faced by an orthodox innovator president, James K. Polk, who established a leadership project (a war with Mexico) and a leadership narrative (support for “manifest destiny”) to justify it. In short, the leading elements of the proposed mechanism—orthodox innovator leadership, a substantial political crisis, establishment of a leadership project and a connected leadership narrative, and perceived threats to the project—are all present. However, in the case of the Mexican War, the threat of violent opposition subsided as Mexico’s armed forces were defeated and attempts by its government to begin sustained clandestine irregular warfare failed. Consequently, the subsequent steps toward the official adoption of torture do not appear. This case, in other words, is a fine example of what Mahoney and Goertz (2004) call the “Possibility Principle”; it is a case where the outcome of interest—the official adoption of torture—could have occurred but did not. Also, the United States in the Mexican War meets their “Rule of Inclusion” for such cases: that “Cases are relevant if their value on at least one independent variable is positively related to the outcome of interest” (Mahoney and Goertz 2004, 657). Consequently, the Mexican War case is an example of the alternative sequence shown in figure 2.1: the initial conditions for establishing torture—crisis, establishing leadership projects and narratives, and perceived threats to both—are close to those of the other cases, but the mechanism stalls as other conditions fail to develop. However, despite these reasons for including the United States in the Mexican War in this analysis, I am well aware that including a case from such a disparate time period entails further risks. Obviously, the United States in 1845–48 is in the distant past and they did things differently then. But this merely increases my burdens when the case is discussed. I will try to show that the patterns involved are enough like those in the first two cases to allow the processes I am basing this study on to be traced even this far in the past. In the following chapters, I will present an argument in four parts. In Chapter Three, I will attempt to describe the leadership situations faced by George W. Bush and his administration and by Joseph Stalin and his allies in the ruling elite of the Communist Party, the events leading up to the crises faced by each, and how the course of these crises led to decisions that laid the groundwork for the use of torture in the interrogation of their enemies. I will begin with a narrative concerning the history of the early leadership of the two regimes and continue to describe the leadership dilemmas both Bush and Stalin faced. As I have already said, I will use an adaptation of Skowronek’s (1997) scheme for describing patterns of the U.S. presidency in political time, applying and expanding his analysis of the leadership dilemmas of orthodox innovators to both cases. I will


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concentrate on how serious political crises presented both leaders with opportunities to overcome the limitations inherent in their leadership situations. In Chapter Four, I will attempt to show how the threat of continuing opposition to the enabling projects of the Bush administration and the Soviet leadership under Stalin led to increasing disquiet concerning the projects themselves. In both instances, the initial successes of the projects led to expansion of their scope and to increased dependence on the leadership narratives as a tool to provide operating room for further initiatives to address both the crises themselves and the unfulfilled commitments of their inherited regimes. Increased resistance and the perceived threat of clandestine opposition, however, led in both cases to the development of accommodating informal institutions (Helmke and Levitsky 2004) that opened space for the official adoption of torture as an interrogation technique and, as we shall see, as a means to repress resistance to the projects. I end this chapter with a discussion of the consequences for these cases. Chapter Five will demonstrate how a very similar political environment and sequence of events before and during the Mexican War did not lead to official establishment of torture by the Polk administration, despite the emergence of sporadic irregular warfare at a fairly early stage of the war. In Chapter Six, I will present a discussion of the comparative narratives and attempt to sum up what can be learned about the official adoption of torture from them. I then conclude in Chapter Seven with some thoughts concerning the question of torture and the future of the United States. Appendix to Chapter 2: Methods Used for Table 2.1 The list of interrogation techniques in table 2.1 is not intended to be comprehensive. As might be imagined, torturers do not leave complete accounts of their methods or of the incidence of them. The techniques I have included here are those that are most closely comparable and were used in interrogations during the years covered. I am defining interrogations, however, as the long interrogations described by Conquest (1990). Recall that long interrogations indispensably include retaliation for lack of cooperation (“softening up”) that takes place outside the questioning itself. Needless to say, in both cases abusive techniques have been used subsequent to arrest and interrogation to keep order in prisons. These are not considered in table 2.1. Data in the table are drawn from two sets of sources. For the Soviet Union, I have used the comprehensive list of interrogation methods


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complied by Solzhenitsyn (1973) from prisoner accounts and his own personal experience, supplemented by techniques cited by Conquest (1990), Tucker (1990), and Rejali (2007). There are some potential validity problems with these lists; they are based solely on prisoner accounts, hardly a disinterested source. Still, the evidence is overwhelming that the use of torture by the NKVD was widespread in the late 1930s and that, although the incidence decreased markedly thereafter, torture continued to be used by successive agencies until the end of the Soviet Union. There is no reason to discount such personal testimony, especially when so much of it is internally corroborated. For the United States, I have used five different sources. I have relied heavily on the official AR–15–6 investigations of different U.S. Army units occasioned by the initial revelations concerning detainee abuse and on the reports of the International Committee of the Red Cross (ICRC) concerning detainee abuses in Iraq (Danner 2004, Danner 2009). These sources are mutually reinforcing in most respects. Second, I have used official reports and some journalistic accounts of courts martial and of criminal investigations by the Criminal Investigation Division (CID) of the U.S. Army and the Criminal Investigation Service (CIS) of the Navy. I have used only those investigative reports that involve either substantiated or indeterminate allegations; no unsubstantiated allegations have been included.14 My third source is memoranda issued by executive agencies, especially the Federal Bureau of Investigation (FBI), concerning interrogation practices. The fourth set of sources used in the table are the personal accounts, usually in sworn statements, by U.S. servicemen. This includes some hearsay testimony, but in many cases the hearsay allegations were subsequently found confirmed by the official investigations. Finally, I have used a few sworn statements by detainees themselves, usually for illustrative purposes. The allegations in these statements either have been found credible in AR–15–6 investigations or include allegations supported by confirmed accounts of other detainees incarcerated at the same time.


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Crisis and Opportunity in the United States and the Soviet Union

A

uthority is difficult to establish and indispensable to effective government. The problem faced by new leadership in most cases is the difficulty caused by the intercurrence of authority. The solution to the dilemma is paradoxical. As Skowronek (1997) points out, perhaps the most salient characteristic of new leadership is the disruption of accepted legal and organizational norms. Again, it is leadership in political time— leadership that repudiates, reinforces, or opposes established ideological justifications and policy commitments—that creates the basis for the authoritative exercise of executive power by new leaders and their associates. As the course of regimes changes through time, the character of leadership needed to establish authority does as well. Skowronek elaborates a complex scheme for determining the leadership strategies available to U.S. presidents at different points in political time. Here I will generalize parts of his framework to a consideration of the establishment of authoritative leadership in two very different contexts: the United States in the early twenty-first century and the Soviet Union in the late 1930s. Skowronek’s typology is based on a pattern of regime stability and vulnerability tied to the constitutional electoral cycle seen in the United States. He postulates that the transformation of U.S. political regimes begins with a repudiation of previous states of affairs. Such repudiations are particularly useful for establishing legitimate grants of power for new leaders. The “great repudiators” who begin them are in a unique position. The bankruptcy of previous regimes, dislocated by both the pressure of events and the difficulties of maintaining political coalitions, can make substantial new constituencies available for mobilization and create new ties between previously embattled and disunited elites once the moment in political time presents itself. Regimes can be reconstructed on this basis


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3


(Skowronek 1997). By galvanizing both ideological elites and mass publics for change, great repudiators have an unequaled opportunity to establish new policies and institutional changes without at the same time fracturing the new coalitions. Shortfalls in programatic agendas can be effectively blamed either on the priorities forced by the need to solidify regime foundations or on the ultimately futile resistance of the remnants of the opposition. In either case, great repudiators are generally spared recriminations from dissatisfied partners in their new regime. They have, after all, cleared the decks for the future and delivered power into the hands of the previously marginalized (Skowronek 1997). Subsequent loyal rulers called on to articulate the regime’s vision, however, face a much more arduous task. These “orthodox innovators” must turn the capabilities of executive power from disruptive acts to the task of fulfilling the agendas left to them. This might sound easy enough, but, as Skowronek (1997) points out, the process of doing so is fraught with peril. Those who established new regimes often cut corners for a good reason. Either the opponents of their innovations—in and out of politics—were too strong, members of their own coalition disagreed too much about the course to follow, or the resources available to the new government were insufficient to the tasks involved. Given their status as creators of new political opportunities, the great repudiators can get away with half measures. The orthodox innovators who follow, however, are expected to fulfill the regime’s promises, no matter the consequences for the political alliances that sustain it. The almost inevitable result is fragmentation of the political support of the regime. As these leaders use their power to create their own recasting of the policy arrangements necessary to fulfill regime agendas, they also destabilize the delicate balance between regime supporters that sustains their actions (Skowronek 1997). It is no wonder that so many presidents in these circumstances are considered failures. Skowronek’s scheme, once shorn of the constitutional framework of U.S. political history, reveals a relatively familiar pattern of results to analysts of executive power. As I have already asserted, the United States is not the only place where regimes are assaulted by repudiative leaders, where there are difficulties for those who loyally follow them, and where the legitimacy of regimes (though not necessarily their power) degrades over time. Since modern regimes, with few exceptions, have presented themselves as embodying popular will and as reflections of policies aimed at fulling it, it is not surprising that the pattern of difficulties and opportunities that Skowronek finds recurring in U.S. presidential history appears to challenge leaders in other institutional frameworks as well. The problem of using, disrupting, and, if possible, transcending the legacy of the past is alive and well in any political system with a strong executive and a set of relevant


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CRISIS AND OPPORTUNITY

Political Time and the Politics of Definition in the United States: Reagan’s Legacy Our government has no power except that granted by the people. It is time to check and reverse the growth of government which shows signs of having grown beyond the consent of the governed. —Inaugural address of Ronald Reagan (Pomper 1981, 191). “If we duck on Social Security then ... bang!”—I slapped my hands together—“you’ve just put one-half trillion of the budget out of reach. With nothing on Social Security where are we gonna be? Nowhere!” The President pondered a moment. “No, we’re not talking about Social Security cuts,” he said. “We’re only delaying the increase for three months. Once we explain it, the people will understand.” —Dialogue between David Stockman, head of the Office of Management and Budget and Ronald Reagan (Stockman 1986, 307)

Repudiation and Disappointment in the Reagan Revolution Skowronek’s scheme was devised to study the U.S. presidency and proves particularly useful when applied to the leadership dilemmas of George W. Bush when he ascended to office. Recall the course of the dominant conservative coalition in the United States established by the “Earthquake Election” of 1980. In that year, Ronald Reagan, a candidate representing the long-maligned right wing of the Republican Party, was elected president and led his party to control of the Senate and to a substantially reduced Democratic majority in the House of Representatives. Reagan’s campaign, which he himself characterized as a “crusade,” was built on a repudiative framework. To combat inflation and promote economic growth, the Democrats called for further public-private cooperation. In contrast, the Republicans asserted that a drastic reduction in the scope of government and deregulation of the private sector would help the economy grow out of its problems. The Republicans followed a similar line on energy policy (less regulation and more domestic production) and taxation (reduce government and cut taxes). Social policy got particular attention, with strong calls by Reagan to get the government


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political actors for leaders to rally to the cause of completing regime objectives. But perhaps the best way to make the case for this perspective is to turn to narratives of how something akin to orthodox innovator leadership situations arose in both the United States and the Soviet Union.


out of the business of supporting measures—“welfare,” banishing religion from the public square, gender equality, “diversity,” etc.—that right wing Republicans were convinced undermined social order. (The Equal Rights Amendment got particular attention along these lines in the campaign.) In foreign policy, the Republicans called for a refurbished defense establishment and a more aggressive opposition to the Soviet Union (Pomper 1981). Reagan’s combination of reduced taxes, a reinvigorated foreign policy, and support for moral refoundation struck a chord with an electorate disenchanted with the vagaries and governance failings of the Carter administration. The same combination helped establish a new political coalition based on an alliance of old–line fiscally conservative, business-oriented Republicans; newly activated, socially conservative evangelical Christians who turned to the Republicans in disillusion with Carter; and middle and working class “Reagan Democrats” distressed by steady increases in both inflation and taxes. The narratives of the “crusade” were provided by political cadres drawn from activist members of the new coalition and new conservative “think tanks” stocked largely with right wing Democrats concerned about shortcomings in foreign policy and what they saw as a rising threat from the Soviet Union (Phillips 2006). These new forces seemed unstoppable, at least at first. But, as Skowronek (1997) points out, only at first. Reagan had campaigned against an obviously dilapidated liberal hegemony during a time of substantial economic problems. Furthermore, these problems—the stagflation of the late 1970s—were largely immune to the policy prescriptions of the outgoing Carter administrations. Indeed, the theoretical framework of mainstream economics at the time hardly admitted that stagflation could exist (Bleaney 1985). Reagan’s own answers to these conundrums never coalesced into a coherent policy scheme. However, at least some of his minions had just such a coordinated result in mind. Increasing military spending to resist the perceived worldwide ambitions of the Soviet Union, decreasing income taxes and leveling the brackets used to calculate them, and reigning in the regulatory scope of the federal government were all realizable aims, given the disarray of the Democrats and the economic situation. The obvious difficulty was how to pay for new defense commitments with shrinking tax revenues; although Reagan’s inner circle was ready to use the new ideas of “supply-side economics” as political rhetoric to justify tax cuts, only Senator Jack Kemp and a few followers took them seriously as policy recommendations (Lekachman 1982). The most obvious alternative answer—one that resonated with the newly empowered conservatives—was to mount an assault on the New Deal legacy the administration inherited. There were those in the administration who were ready to attack the main New Deal programs, but the obstacles were formidable. Whittling


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down some government counter-cyclical programs proved possible (government efforts in employment training, for instance, were virtually eliminated) but the will to attempt substantial reductions in the welfare state, especially Social Security, in the face of a still divided government and a public increasingly apprehensive about its retirement proved lacking. The new administration instead choose both to cut taxes and to increase defense spending at the same time, a strategy that led to substantial budget deficits. Dealing with these deficits through regular political channels proved impossible due to the reluctance of the administration and its allies in Congress to either take on the structural interests embedded in the welfare state or raise revenues. The result, as Skowronek (1997) points out, was that the need to manage a burgeoning debt delivered the nation’s fiscal affairs into the hands of the Federal Reserve system. Federal Reserve Chairman Paul Volker’s decision to wring inflation out of the economy led to a sharp but short economic downturn in 1981 and early 1982, accompanied by a swift fall in the rate of inflation. Volker followed up with a persistent effort to address inflationary pressures by keeping the value of the dollar high in comparison to other currencies and keeping interest rates slightly ahead of prices. With low inflation and high interest rates, the United States soon found itself afloat in foreign funds eager to buy U.S. assets and with a swiftly declining industrial sector unable to sell goods overseas at a competitive price. However, the combination of foreign investment and federal budget deficits restored economic growth by 1983. The recovery, however, was the first of a series of high-unemployment expansions built on fueling investments in “FIRE” (finance, insurance, and real estate, where a considerable amount of the foreign money ended up) that created paper gains in the gross domestic product and accompanied further hollowing out of the economy’s industrial base. This was a far cry from the “Morning in America” promised in the 1984 presidential campaign and nothing in the next four years redeemed that promise (Campagna 1994). Other areas of promised reform were also neglected. Reagan had activated a new cohort of evangelical voters, combining these “value voters” with the so-called Reagan Democrats to create two legs of the new ruling coalition. But here as well, the delivery of the new administration faltered. Democrats who turned their coats got what the evangelical community did: a tax cut, symbolic gestures favoring “family values,” decreases in the rate of increase in social programs, decreases in aid to some controversial social policies (federal funding for abortions, for instance, was eliminated), and a foreign policy that at least “stood tall” against the Soviet Union and its allies. For the time being, that was considered enough by the new Republican electorate.


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But not by the new political cadre of the party. By the end of his two terms the gaps in Reagan’s crusade against liberalism had become more than bothersome to them. Reagan had delivered on major parts of his program. Domestically, the economy continued to grow, labor found itself almost squeezed out of its place at the national table, conservative judges now dominated the federal courts, and business regulation of all sorts was at least being reined in. In foreign affairs, defense expenditures had increased substantially, the pro-Cuban government in Grenada was overthrown, Libya was bombed, and the Sandinistas in Nicaragua were harassed. Also, as the end of Reagan’s term in office approached, it was evident that the Soviet Union was in serious decline. However, other irritants abounded. The Reagan administration had actually presided over an increase in the government’s share of the nation’s economy, an expansion financed by a tremendous increase in public debt. Reagan had sponsored substantial tax increases in his first term (albeit not in income taxes) as well and had done next to nothing to cut back on the steady increase of the core programs of the liberal welfare state. Finally, although foreign policy success had been a hallmark of the administration’s early years, the messy scandal of the Iran-Contra Affair showed the limits of national tolerance for the free presidential hand preferred by the new conservative elites. Reagan’s decision to deal with Mikhail Gorbachev to begin reductions in force levels and nuclear weapons in Europe, despite the concerted advice of neoconservatives in his administration, was also unexpected. As Skowronek (1997) points out, the concatenation of established public institutions connected to powerful private interests had sharply reduced the administration’s capability to bring about the full repudiative change its most active supporters had demanded. Reagan’s own reluctance to push his revolution to its limits did the rest. “A Charge to Keep” calls us to our highest and best. It speaks of purpose and direction. In many hymnals, it is associated with a Bible verse, 1 Corinthians 4:2: Now it is required that those who have been given a trust must prove faithful. —George W. Bush (Bush 2000, 45)

Frustration and the Politics of Definition in the United States: George W. Bush and Republican Refoundation When George W. Bush took office in 2000, after the most closely contested and acrimonious presidential election since 1876, he found himself the hope of an increasingly frustrated alliance. The foreign


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policy triumphs of his father’s administration, culminating in the dissolution of the Soviet bloc in 1989–91 and the destruction of the Noriega regime in Panama, were diminished by the “failure” to insure regime change in Iraq during the 1991 Gulf War. In domestic affairs, the level of disaffect became even greater. George H. W. Bush had broken his pledge to hold the line on taxation, finally yielding to financial pressures in the tax agreement of 1990. Further, he had shown, if anything, even less interest in the social agenda of the new Republican coalition than Reagan had (Heclo 2003). Finally, still no progress had been made on the dissolution of the New Deal welfare state—the programs that Republican elites felt were the root of both the country’s economic problems and the continuing opposition to further conservative reform. Indeed, George H. W. Bush, never a convinced Reagan Republican, had shown decided tendencies toward increasing the scope of government regulation and spending, particularly in environmental and educational policy. Republican cadres were convinced that it was these failings—and his reneging on his 1988 election pledge to not raise taxes—that had led to the Democratic electoral triumphs of 1992. That election swept the Republicans from power across the board, putting a formidable political adversary, Bill Clinton, into a presidency supported by Democratic majorities in both houses of Congress. The stifling of Clinton’s national health insurance scheme—and the sudden retirement of many conservative southern Democrats—led to a startling Republican election victory in 1994. Not only did the party win back its majority in the Senate but also, for the first time since 1954, won control of the House of Representatives. Ultimately, however, this triumph bore little fruit. Also, efforts to distract Clinton’s administration by congressional and special prosecutor investigations and, finally, by impeachment itself proved inconclusive. The Democratic president’s adroit use of executive power in both domestic and foreign affairs proved the equal and more of his Republican opponents. His ability to maneuver them into political corners, unsurpassed in recent times, is perhaps best illustrated by the budget showdown between the president and the Republican Congress in 1995. Unable to reach agreement with Clinton on a continuing resolution to keep the government running until a budget could be negotiated, the congressional leadership allowed substantial parts of the federal government to shut down. In very short order, the Clinton White House was able to exploit ill-advised remarks by Newt Gingrich, the then speaker of the house, to portray the entire effort as a fit of pique over seating arrangements on Air Force One, not a principled fight over spending priorities. Despite a later Republican triumph in getting Clinton to agree to “reforming” welfare in 1996, the original


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momentum of the 1992 triumph was never fully recaptured after this episode (Wills 1996). The attempt to impeach Clinton in 1999, driven at least in part by Republican frustration at their failure to move the “Reagan Revolution” forward in the face of his resistance, proved a costly and embarrassing fiasco, actually increasing Clinton’s political capital. Even the shocking personal lapses revealed by the Monica Lewinsky scandal proved to have little traction. After such a sustained series of setbacks, Republicans who had wanted to amend the Constitution to allow Reagan to run for a third term in 1988 were, no doubt, glad in retrospect that they had not succeeded. No wonder that Republicans everywhere eagerly awaited the 2000 presidential election. The emergence of George W. Bush as the candidate of the Republicans in 2000 raised the party’s hopes even further. Bush had been endorsed by the corporate elite of the party, had shown some talent as governor of Texas, and, as a convinced evangelical Christian, embodied the hopes of the party’s social conservatives, now highly motivated by Clinton’s personal indiscretion. Furthermore, although the Democrats had not been hampered by as contentious a primary season as the Republicans were before the election, when Vice President Al Gore emerged as the Democratic nominee he proved unable to overcome the difficulties for his campaign created by Clinton’s moral lapses and the country’s deteriorating economic conditions. Despite these problems, Gore won the popular vote in 2000 by better than half a million votes. However, the election led ultimately to a Republican victory, albeit, for the first time since 1876, only in the Electoral College. Bush’s triumph, though limited and bitterly contested, gave all supporters of the Republican cause reason for elation. At the same time, however, it opened the possibility of great problems for the new president. Bush faced some formidable tasks. There was the inherent problem of the perceived illegitimacy of his election and the pall this supposedly cast over his capability to take independent action. Despite the resonance of some conservative social issues with wide swaths of the electorate, most Americans were no more interested in unraveling the legislative framework of the New Deal in 2000 than they were in 1980 and showed little support of most other aspects of the unfulfilled Republican agenda (Hacker and Pierson 2006). Finally, the task of keeping the support of evangelical Christians (many with concerns for the poor), traditional business-oriented Republicans with their tight focus on lower taxation and less regulation, the less reliable Reagan Democrats now disenchanted with Republican economic measures except further tax cuts, and neoconservative intellectuals looking to frame a new world through the aggressive use of U.S. military power, all without unhinging the entire coalition, replicated the


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dilemma that had destroyed the presidencies of many orthodox innovators in the past (Skowronek 1997). As Skowronek (2005) says, Bush took arms against these troubles by defining himself politically in ways that would quiet concerns and defang his enemies. Bush was convinced that his father’s presidency had failed because others had defined what he was and what he was doing in ways that proved politically impossible to combat effectively. His answer was a simple one: he would state his commitments and stick to them. By casting himself as a leader who was convinced of his purposes and his course, Bush sought to create the situations necessary to achieve the first and clear the second. His pronouncements in the campaign had laid out what Skowronek calls a “Stalwart” position. Bush proposed a “compassionate conservatism” that combined the Reagan legacy of tax reduction, regulatory reform, a no-nonsense approach to crime control, decentralization of government, and family values with new initiatives addressing education reform and health programs as well as a serious commitment to allowing faith-based organizations to provide some government services (Skowronek 2005). Here was a candidate with something for everyone in his “base”: not the unfocused piety that passes for religion in Reagan’s Southern California, but solid east Texas evangelical Methodism; not conservative rhetoric and marginal change, but a commitment to fundamentally recasting the regulatory and social policies of the federal government; not empathy with the poor, but a program to reform their souls; not a foreign policy based on “realism” and “nation-building,” but on a muscular assertion of U.S. ideals and interests in a world where the United States was the only military superpower. Despite the turmoil attending his election, it is no wonder that conservative hopes were high when Bush finally took office. As one might expect after such a leadership stance, Bush immediately took action to accomplish much of this agenda. He took positions that belied his (supposed) compromising past as governor of Texas and established him as a leader who knew what he wanted, did what he promised, and ruthlessly held his subordinates to his priorities (Skowronek 2005, Heclo 2003, Suskind 2004a). As a Stalwart who could be trusted to follow through, he was able to deflect policy defeats as sidesteps toward the goals he had set. His followers would accept this because they saw, at last, a leader whose compromises—and Bush made more then one— would be used to work toward the refoundation of U.S. politics Reagan promised them (Skowronek 2005). Bush’s willingness to lead from purpose and his stress on personal integrity and accountability also made a useful contrast to what his coalition saw as the slippery nature of the preceding occupant of the oval office. Indeed, Bush was quite adroit in


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Bush’s political stance stigmatized all Democrats—Clinton, Gore, Kerry—as politicians unable or unwilling to define a clear alternative. Their appeal to nuance, complexity, and pragmatism became, by way of contrast with him, a revelation of the fact that the real identity of their party no longer stood a robust test of political legitimacy. His claim to definition relegated them to obfuscation, to crass instrumentalism, to the overly intellectualized hand wringing of “no easy answers,” to leadership of a party without a soul.

All of this—combined with a coordinated “message discipline” within the administration, congressional Republicans, and the party’s allies in the electorate—was aimed at forestalling successful media attacks on the new presidency and keeping policy focus (Skowronek 2005, Hacker and Pierson 2006). In short, having defined the terms of his leadership, Bush now attempted to impose them on a sometimes reluctant polity. Political Time and the Politics of Definition in the Soviet Union: Lenin’s Legacy In this country, in Russia, for the first time in history, the government of the country is so organized that only the workers and the working peasants, to the exclusion of the exploiters, constitute those mass organizations known as Soviets, and these Soviets wield all state power. ... Soviet power is not a miracle-working talisman. It does not, overnight, heal all the evils of the past—illiteracy, lack of culture, the consequences of a barbarous war, the aftermath of predatory capitalism. But it does pave the way to socialism. It gives those who were formerly oppressed the chance to straighten their backs and to an ever-increasing degree to take the whole government of the country, the whole administration of the economy, the whole management of production into their own hands. —Vladimir Lenin, recorded speech (Lenin 1976, 476) “The New Economic Policy!” A strange title. It was called a New Economic Policy because it turned things back. We are now retreating, going back, as it were; but we are doing so in order, after first retreating, to take a running start and make a bigger leap forward. ... Where and how we must now regroup, adapt and reorganize in order to start a most stubborn offensive after our retreat, we do not now know. —Vladimir Lenin, speech at a plenary session of the Moscow Soviet (Lenin 1976, 675)


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contrasting his goals to the those of the Democrats; as Skowronek (2005, 823) says,


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Skowronek’s theory of presidential politics is tied, as I have already mentioned, to the constitutional framework of U.S. elections and to the existence of established political parties. It is understandable, then, that his scheme excludes revolutionary situations, even the American one. However, as Orren and Skowronek (2004) point out, it should be obvious that the greatest source of repudiative authority would be leading a successful revolution. The forceful cancellation of former institutional frameworks automatically presents the opportunity for recreating the basis for authority. In the modern era, that opportunity has been claimed by political parties and leaders that assert reasons, both practical and ideological, for granting the new regime legitimacy. Tacking successfully between practical exigencies, incorporating authority from surviving established institutions into the new formations, and creating new ideological commitments, all while disrupting prior policy to create new political opportunities, are strategies that define the essence of repudiative leadership, whether in the cycles of U.S. electoral politics or in the cauldron of revolutionary change. Recurrent patterns of institutional change have to begin sometime. Revolutions, although a less common response to the crapulence of existing regimes, are as much a justification for institutional disruption as are the cumulative failures of electoral coalitions. I will try to show in what follows that great repudiators and the patterns their leadership creates can arise in many guises. After Vladimir Lenin led the Russian Social Democratic Labor Party (Bolshevik) to victory in the revolution of 1917, he faced a dire situation. However, through economic collapse, civil war on four fronts, and, later, foreign invasion, Lenin’s leadership, his pragmatic policymaking, and his capacity to pick and manage able subordinates proved to be the stabilizing force the Bolsheviks needed to finally win the civil war and consolidate Red power in Russia. This is usually and correctly considered a great political achievement, no matter how one gages the consequences. It made Lenin the undisputed architect of the new Soviet state and imputed to him (much to his chagrin) almost superhuman powers of political skill and policy acumen. It is not too much to say that, to other Bolsheviks, “Ilyich’s words” were law (Deutscher 1966, 272). However, as with Ronald Reagan 63 years later, perhaps the most remarkable aspect of Lenin’s time in power is how little of the agenda of the now All-Union Communist Party (Bolshevik) had actually been realized when he died in 1924. It is not as if Lenin had failed, of course. Like Reagan later, he could claim staggering accomplishments: leading a revolution; winning a civil war and fending off foreign invasions against daunting


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Repudiation and Disappointment in the October Revolution


odds; constructing a new government and creating a new, more disciplined party to support it; and reaching a rapprochement with hostile European powers that enabled the Revolution to consolidate. The disappointments were easily as great, however. Revolutionary activity in Europe, initially counted on to bring aid to the new government, subsided by 1920 and neither direct (the Red Army’s invasion of Poland was defeated in that year) nor indirect (the new Comintern [Communist International] attracted new communist parties, not new communist regimes) action could reignite it. Although the Bolsheviks had established themselves as the premier political force in the new Soviet Union, all knew that the new government rested on, at best, a quiescent population. The cadre who might have changed that had perished in large numbers in the civil war and the new state had neither the resources nor the people to replace them. Although a new constitution had been promulgated in 1922, the new country’s central administration was hardly on its legs yet; in that year Georgia still had a government controlled by the party’s Menshevik opponents and Ukraine had its own foreign ministry (Nettl 1970).1 The greatest problem for the new Soviet government, however, was in its ambition to “build socialism.” Here, of course, the main difficulty was that no one had any clear idea about how to do it. Lenin, usually more “conservative” in outlook than his comrades, had outlined a gradual approach for the new government. Early on he had advocated a system of national accounting and planning combined with new powers for workers’ soviets in the factories. Capitalists were to be tolerated, but controlled, and the peasants in the countryside slowly converted to cooperative agriculture (Nove 1989). The exigences of the civil war never allowed these ideas free play. The collapse of the country’s transportation network and the vast areas that passed out of control of Moscow brought both internal commercial transactions and foreign trade to a standstill. As goods disappeared and food supplies dwindled, money itself became superfluous. The government implemented a system of so-called War Communism based on direct nationalization of industry down to the workshop level and a combination of barter and direct confiscation to obtain the goods needed to supply the new Red Army and the cities. In the rural areas, where the Bolsheviks had broken up the great landed estates and allowed the rural peasantry to redistribute land within their communities, the government began forced requisitions of foodstuffs. These measures did little to relieve the administrative chaos under a desperate, inexperienced government and, of course, had a depressive effect on both agricultural and industrial production (Nove 1989).2 War Communism, however, gave the new state just enough leeway to win the civil war and establish itself.


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For many members of the party, the virtual disappearance of money and commercial enterprises during the civil war and the nationalization of industry seemed the harbinger of an approaching socialist order. But even after the Bolshevik’s victory economic collapse continued and, more ominously, there were outbreaks of open resistance to the government rising from its supporters.3 At this point Lenin made a decision that only a leader of his prestige could have: the party would retreat from War Communism and scale back its attempts to build a new economic order. The inauguration of the New Economic Policy (NEP) in 1921 substituted taxation for the forced requisitions of foodstuffs, returned small industrial enterprises and a good proportion of commercial trade to private hands, initiated indicative planning for large-scale industry, and re-instituted a system of state banking and finance (Nove 1989, Sherman 1969). Perhaps only a figure of Lenin’s authority could have accomplished and sustained such a reversal. The first socialist party to take power anywhere sanctioned the reestablishment of capitalist firms in trade as well as in light and service industry and permitted private agriculture, keeping for itself only the “commanding heights” of heavy industry and finance. The first miles of the long road to socialism had been rocky indeed (Nettl 1970, Deutscher 1966). But for Lenin his decisions bringing the NEP into existence were a retreat in a long-term process. In his view the party had no choice but to scale back to a role suiting its capabilities. Trying to continue the state’s control of production and distribution and bringing socialism to the countryside were simply not possible without increasing political difficulties (Service 2009, Nove 1989). But, as Lenin made clear in his 1922 speech to the Moscow Soviet quoted above and in other places, the NEP was a temporary measure, adopted only to get the economy on its feet so that building socialism could continue. Sooner rather than later the party would gain the experience and resources necessary to transform Russia. Lenin’s incapacitation by strokes and his eventual death in 1924 made these promises more doubtful, of course, but they were never abandoned. Instead, the now leaderless party submitted to collective direction of its affairs by the Politburo (the political bureau of the central committee of the party) and awaited events. DEPARTING FROM US, COMRADE LENIN ENJOINED US TO REMAIN FAITHFUL TO THE PRINCIPLES OF THE COMMUNIST INTERNATIONAL. WE VOW TO YOU, COMRADE LENIN, THAT WE SHALL NOT SPARE OUR LIVES TO STRENGTHEN AND EXTEND THE UNION OF THE WORKING PEOPLE OF THE WHOLE WORLD— THE COMMUNIST INTERNATIONAL! [capitalized in original] —Joseph Stalin, speech at the Second All-Union Congress of Soviets (Stalin 1979, 5)


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Those events came more and more to favor the general secretary of the party, Joseph Stalin. Stalin’s capacity for administrative work had attracted Lenin’s attention early on and had been rewarded (though few of his peers looked at it that way at the time) in 1922 with the newly created position of general secretary of the Central Committee and, to all intents and purposes, of the party itself (Nettl 1970). As the administrative head of the party, Stalin proved efficient at his work, both in providing personnel to fill state and party positions (often the same thing) and in supporting regional party bureaucrats in their factional conflicts (Harris 2005). His capacity to build support within the party and to be conciliatory to his friends in the apparatus and ruthless to his enemies soon made Stalin a force to be reckoned with within the party and the government. But he was by no means the only one. Stalin had a difficult row to hoe at first. Rivalries between the different leaders in the Politburo and Central Committee make the party’s history from 1923 to 1927 an interesting study in organizational dysfunction. Indeed, there must have been times when—to themselves, of course— some members of the party must have regretted the strictures against factions adopted at Lenin’s behest at the tenth party conference in 1921; at least, a legitimate electoral conflict might have cleared the air. The divisions in the All-Union Communist Party after Lenin’s death were as deep and as hard to reconcile as those George Bush found himself facing in 2000. The basic question came with the political and economic territory: how—and how soon—was the party to reverse the retreat embodied in the NEP? The Soviet Union was at a turning point after Lenin’s death. Was it to be a turn toward a slow accretion of economic growth driven by Russia’s comparative advantage as an agricultural producer (light industry, private farming, market-based services and trading, private investment and banking, strict budget controls, government control of the commanding heights) or should the country begin a planned industrialization program (heavy industry, cooperative agriculture, state control of investment, less stringent budgeting, socialization of trade, services, and industry), sacrificing in the present to insure higher growth rates and a developed economy in the future (Nove 1989)? The first alternative would continue the NEP and, superficially at least, Lenin’s policies as set before his death. This “right” view of the course of socialist development also had the actual situation of the party on its side. Changing what was still an agrarian economy with a small industrial base with the resources and experience that the Soviet government had at hand would be a daunting


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undertaking, one that Lenin himself had felt was politically impracticable and dangerous. However, there were strong arguments for industrialization. Lenin had always viewed the NEP as a temporary measure; he knew the revolution would always be stalled under it. The political dangers were particularly worrisome. Small capitalists have a tendency to become large ones and some elements in the substantial private farming sector (the so-called kulaks [large farmers]) would be only too glad to help them along the path. In addition, the party’s natural political allies would be in an industrial working class that did not yet exist. Even more to the point, however, was that only a substantial industrial base could hope to deliver the material abundance necessary to make communism possible. What was the revolution for if not to bring that about, no matter what the attendant sacrifices? As is usually the case, these very basic economic choices became lightening rods for political activity and possible career advancement for party elites. After Lenin’s death, there was no question who the most able man— Lenin himself said it in his “testament”—in the leadership was: the people’s commissar of military and naval affairs, Leon Trotsky (Deutscher 1966, Lincoln 1989). The prospect of Trotsky in power, however, was unsettling to other prominent Politburo members, due to fear of both military dictatorship and of their personal ambitions being thwarted (Deutscher 1966, Tucker 1990). Trotsky, an independent voice in the party until 1917, had always been in favor of pushing through to an industrialization program and, coincidently, sponsoring revolution abroad. He had been doubtful of the Soviet Union’s capacity to develop independently. Even before Lenin’s death, Stalin —in alliance with Grigory Zinoviev, head of the Leningrad party organization and of Comintern, and Lev Kamenev, head of the Moscow party organization and, at the time, premier —helped create a prevailing wind in the Politburo and the party against Trotsky and his allies, citing their lack of party discipline for trying to build a “Trotskyist” faction (the “Left Opposition”) within the party. Trotsky resigned his positions (he was also chairman of the Revolutionary Military Council) in 1925 but soon received some minor posts and remained on the Politburo until late 1926. With Trotsky in eclipse, Stalin joined Nikolai Bukharin (the leading party theoretician), Mikhail Tomsky (head of the trade unions), and Alexey Rykov (the new premier) to form a “right” bloc against his former allies, who had suddenly realized how vulnerable they were in the new power arrangements (Deutscher 1966, Tucker 1990). Zinoviev and Kamenev turned in desperation to Trotsky, forming a “United Opposition” with their followers and some other small party factions. Soon, however, this new formation also collapsed. The new members of the Central Committee of the party supported Stalin and his allies and by the end of


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1927 all three opposition leaders had been expelled from the party (Service 2009, Deutscher 1966).4 In all these confusing conflicts, it was Stalin who made just enough concessions, voiced just enough qualifications, and criticized other members of his alliances just enough to avoid clear identification with the factions he aided. Instead, it was he who took the main role in defining the stances of his opponents, using much the same set of tactics that George Bush used later (Deutscher 1966, Tucker 1990).5 It was Stalin who looked like the man with a clear and pragmatic sense of mission on the Politburo; it was Stalin who looked like the levelheaded, unambitious comrade; it was Stalin who was able to define his opponents as intellectual pettifoggers, incapable of doing anything except dividing the party in the face of its enemies. These political definitions, supported by often selective quotations from Lenin and, more damaging to them, from his opponents and former allies, were the hammer he used to bring the factions he created in turn—and himself—to prominence. The party’s strict discipline and prohibitions against open opposition to party decisions combined with the statements and actions of his rivals in past contests to provide Stalin all the ammunition he needed to brand his rivals as deviants from the Leninist framework the party had inherited, a framework he came to define and exemplify. Meanwhile, the rank and file of the party stood as aghast and impatient at a leadership groping its way forward without facing any major decisions about the country’s direction as did Republicans in the United States during the Clinton administration (Deutscher 1966). Only the “Leninist Central Committee united around Stalin” seemed to show a way forward (Deutscher 1966). As George Bush did with compassionate conservatism in the United States, Stalin attached himself to a pragmatic vision for fulfilling the Leninist legacy, “socialism in one country.” Although the idea was largely developed by Bukharin and Stalin never supported an unequivocal version of it, he used the concept effectively in debates with his opponents (Deutsch 1966, Nove 1989, Sherman 1969).6 Basically, socialism in one country held, contrary to what most Bolshevik theorists had maintained, that the revolution in Russia did not need the help of revolutionary regimes in more advanced capitalist countries to become established. Instead, the party could use the state to build socialism on its own, even in the underdeveloped environment of Russia. Although Stalin had little reputation as a theorist and never pushed the concept beyond speculation, both the idea and its proponent were very attractive to the new party he was helping to build (Deustcher 1966). Here was a leader who offered not dry intellectual theorizing but a practical administrative streak; not a policy of waiting


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on events but a road for taking control of them; not more intra-party maneuvering but a strong, already proven hand; not accommodation of class enemies but a willingness to accept revolutionary action. If Stalin could fully claim Lenin’s role as leader of the party and effective executive director of the country, he would have a substantial part of the party behind him (Getty 1993). Like George Bush, Stalin had established himself as a Stalwart and, largely through propaganda efforts that he controlled, as Lenin’s closest follower and comrade. By 1927, he had the reins of power in his hands and no organized opposition to stop him from using it. Stalin had relentlessly and successfully used a politics of definition to corner potential opponents in a way that deprived them of power and discredited them for further consideration for leading roles in the party and state. Doing so gave him as strong a reputation for purpose and self-determination as Bush established later. But using the leadership position that created had as many potential difficulties built into it as Bush faced 73 years on. The regime was still floating on a restive population with only utilitarian connections to it. Large and crucial parts of the economy remained in the hands of small capitalists and peasant farmers. The party itself still contained a large number of Stalin’s old rivals and, even more unsettling, numerous new cadres of uncertain loyalties. The legacy Lenin left the party had hidden as many faultlines as the one Ronald Reagan left George Bush; class conflicts had been muted, the inconvenient fact that no one knew how to make a fully planned economy work was still papered over, and the divisions in the party over future directions for the country remained as troublesome—albeit less public—as they had been before Stalin’s ascent. Like George Bush, however, Stalin in power faced a shifting political environment where his credentials as a Stalwart could help him establish his own authority only by recreating the party’s agenda to fulfill Lenin’s legacy in Stalinist terms.

Using Crisis and Creating Opportunity The overlapping and uncertain lines of authority arising from an orthodox innovator leadership situation create, as stated above, a political dilemma. As Skowronek (1997) points out, U.S. presidents in this category must fulfill at the same time the obligations and promises left by repudiative leaders and take actions that recast those obligations and promises to achieve the regime’s potential under new conditions and in ways that establish their authority as reinterpreters of an ongoing regime tradition. The almost inevitable result in U.S. presidential history is


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that the different forces in the regime coalition consume themselves in recriminations over the way their particular political interests and policy preferences have been sidelined or ignored. The presidents in question then find themselves presiding over a politics dominated by contests with the leaders of rival regime factions and by slowly decreasing effectiveness as their own policies are used as evidence of their “betrayal” of the Stalwart’s creed (Skowronek 1997). How can this situation be overcome? Not by negotiation between factions; each is justified by what it perceives as prior commitments and, besides, public wrangling over regime principles simply provides opportunities for opponents. Not by policy decisions that intentionally remake the political environment; such decisions are inevitably seen to be favoring one regime faction or the other and simply add fuel to the tribal fires each faction dances around. The solution is both difficult to carry off and dependent on exogenous events: the formulation of an overarching narrative that insulates the decisions of the executive in question from direct challenge by providing new resources that allow him to take action without providing either friends or foes opportunities for overt conflict over policy decisions. Of course, all leaders in both authoritarian and democratic regimes usually try to frame narratives that accomplish these goals; it is a normal part of modern politics. To be fully effective in the particular circumstances of orthodox innovator leadership, however, there has to be a further element to such narratives: they have to be formed during a substantial political crisis, preferably one activated by the presence of an identifiable and credible threat to, at a minimum, the interests of the coalition partners and, at a maximum, to the population at large. Such crises—normally the result of war (or threats of war) or of severe economic disorder, or, in rare instances, both—provide the window of opportunity for undertaking new courses of action, despite the possibility of disappointing coalition partners (Keeler 1993). The overwhelming potential for disaster resulting from either domestic or international events leads to a surge in support for the political leadership and to a related political quiescence among opponents or, more likely, to a calculation that resistance to leadership initiatives would be futile under the circumstances. The resulting situation provides the cover orthodox innovators need for making decisions that fulfill the political legacy they must manage. As Americans were reminded by Secretary of State Condoleeza Rice, political crises are moments of both danger and opportunity (NBC 2006). The danger is usually self-evident, the opportunity less so. However, if it can be effectively seized, solutions to many of the dilemmas of orthodox innovator leadership might be found and the politics of articulation might be transcended.


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We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors ... and you, all of you, will be left to just study what we do. —Anonymous senior advisor to George W. Bush (Suskind 2004b)

The Leadership Project in the United States: The 9/11 Attacks and the War on Terror 9/11 changed everything and changed nothing. When the United States was attacked by al Qaeda, a terrorist nongovernmental organization, the government was temporarily thrown into disarray. The intelligence establishment, particularly those officials left over from the Clinton administration, had feared and expected some kind of attack on U.S. territory (Clarke 2004). However, the scope and effectiveness of the attacks surprised everyone, not least the new president and his advisors. They had downplayed the possibilities of an attack by al Qaeda and now faced the consequences. By the time of his speech to the nation on September 21, 2001, however, the president had not only recovered but also begun to lay the framework to transcend the difficulties his presidency had already begun to face—for before and after the crisis the leadership situation Bush faced had not been substantially altered. The 2000 election had not delivered an evident mandate for completion of a conservative agenda. As mentioned before, Bush had responded to this by immediately attempting to push through a domestic policy agenda that would give substance to his Stalwart credentials. By August 2001, however, it was obvious that this agenda was in trouble. The first of the tax reductions the president had promised had been passed, but other measures, except education reform, where the president had adopted Democratic proposals, had met indifferent fates (Jones 2003). The declaration of independent status by Senator James Jeffords of Vermont after disputes about Bush’s commitments on several policy issues and his decision to caucus with the Democrats had cost the Republicans control of the Senate (Reeves 2001). Bush’s approval ratings were still fairly high, as is usual at the beginning of a new presidential term, but the level of partisan division in the electorate over his performance was unprecedented (Jacobson 2003). Finally, in what could have been a telling cultural signal, he achieved the dubious distinction of being the first president to be the subject of a television


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situation comedy. That’s My Bush!, which lampooned the new president on his weakest points, premiered to critical acclaim in April 2001. Needless to say, the show was canceled soon afterward. As Skowronek (2005) points out, the 9/11 attacks played to Bush’s major strengths. The president had already established a persona built around taking principled action based on trust in his “instinct” or “gut.” That instinct, informed by a lively faith and a preference for evaluating policy by evaluating the people proposing it, gave Bush a well-deserved aura of decisiveness at the very moment it was most called for (Suskind 2004a, 2006). On September 14 Congress passed the Authorization for Use of Military Force (AUMF), authorizing the president to use military force against the terrorists and their allies. October saw the successful invasion of Afghanistan and the destruction of the Taliban regime and al Qaeda’s military formations and training bases. Domestically, passage of the USA PATRIOT Act in the same month signaled a major shift in public perception and approval of the president’s actions (Jacobson 2003).7 Bush had thought, as have many other orthodox innovators, that using his powers as commander in chief would be a great aid to realizing the Stalwart agenda (Baker 2004).8 The president’s role as commander in chief in time of war is his office’s central constitutional grant of executive authority and the soundest basis for the extraordinary extension of executive capabilities (Skowronek 1997). Bush quickly seized the opportunity to proclaim himself a wartime president, mainly by simply asserting his powers as commander in chief and unilaterally declaring a de facto state of war (Griffin 2009). Now that role found full play as the administration embarked on a variety of ad hoc extensions of presidential power aimed at vanquishing enemies, foreign and domestic. It also coincided with the beginnings of a new narrative justifying administration policies that conveyed substantial political benefits. The administration had moved quickly to bring al Qaeda to its knees. Destroying the terrorists’ military formations and training facilities in Afghanistan and driving their organization underground in Pakistan’s Northeast Frontier Province were only the first steps in this effort. Already the Central Intelligence Agency (CIA) and Federal Bureau of Investigation (FBI) had been given orders after the 9/11 attacks to cooperate in a domestic and international effort to identify and neutralize terrorist networks (Suskind 2006). These secret efforts were supported by a public diplomatic offensive aimed at establishing a unilateral right to preempt further attacks (Suskind 2006, Clarke 2004). Accompanying these initiatives, the administration carefully constructed a vision of a nation involved in a war of a new and dangerous type, a global “War on Terror,” involving both other nationstates and clandestine terrorist organizations. Jackson (2006) describes several dimensions of this narrative: a contest between good (America and


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Americans) and evil (the terrorists); invocation of a right to national selfdefense; the need for “new thinking” about warfare and executive power to protect national security; and the need for strong leadership in the face of a continuous threat to national security posed by a faceless, stateless enemy. Accompanying the narrative was a legal framework, the so-called unitary executive theory of the presidency. Although controversial, this set of ideas provided a legal justification for extensive new claims for presidential power and discretion over all policy concerning national security. In a very short time, the use of secrecy in all presidential policymaking, domestic and foreign, became widespread as did the use of executive orders, signing statements, and classified legal opinions (Savage 2007, Griffin 2009).9 The administration stuck to this set of perspectives with admirable consistency over time (John, Domke, Coe, and Graham 2007).10 This new narrative was soon to be put to use in preparing the nation for an attack on Iraq. The continuing existence of the Baa’th regime in Baghdad had been a sore point with many of Bush’s advisors for many years (Mann 2004). When the administration took power the exposure of an assumed connection between Saddam Hussein’s government and terrorist activity was immediately brought to the fore as a national security priority. Planning for the overthrow of the Baa’th was also accelerated, despite little reliable evidence of an Iraqi threat to the United States (Clarke 2004). With the successful invasion of Afghanistan under its belt, the administration prepared to launch an invasion of Iraq in 2003 (Suskind 2004a, 2006). The rhetorical attack on the Baa’th regime combined all the new leadership project’s narrative themes. Iraq was portrayed as a rogue state possessing weapons of mass destruction (WMD) and aiming to acquire more. It was alleged that Saddam Hussein had ties with al Qaeda and that there was a real risk that he would provide them with the weapons they needed for a new, more destructive attack on the United States (Suskind 2006). Also, many in the administration believed that overthrowing the Baa’th would create the conditions necessary to “drain the swamp” in the Middle East of Islamic fundamentalist terrorism (Evans-Pritchard 2001). Creating a democratic government in Iraq with U.S. support would undermine authoritarianism in the region, creating a new set of circumstances in an area of vital importance that would be much more favorable to national interests (Suskind 2004a, Clarke 2004, Mann 2004). This combination of fear of terrorists and hope for a new, democratic Middle East provided the justifications the administration thought it needed to avoid seeking both grand national coalitions that would limit the United States’ response and an international consensus in favor of action against Saddam Hussein. They proved correct; the UN WMD inspection mission in Iraq was swept aside by an impatient administration, despite its work being unfinished


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(Blix 2005).11 The subsequent invasion of Iraq in 2003 was undertaken in partnership with the United Kingdom but without supporting UN resolutions, leading to a stunning military success and a new day, for good or ill, in Iraq. At the bottom of these themes was the invocation of presidential authority to conduct war and to protect the United States. It was claimed that a war against an evil, dedicated, clandestine enemy required an executive untrammeled by excessive legal restraints and called for an extraordinary public deference to presidential decisions. This, the administration inferred, is the price exacted by a true national security emergency (Griffin 2009). Such justifications could be expected after an awakening as rude as 9/11, but notice the ramifications for the president’s leadership situation. By calling on a new understanding of executive power, Bush was also calling for a new understanding from the regime coalition. This is not unfamiliar for orthodox innovators, but there were some new wrinkles to his approach, especially as far as domestic policy was concerned (Skowronek 1997).

Crisis and Political Reconstruction in the United States: The War on Terror and U.S. Politics Initially, the weakest part of the Republican coalition, the neoconservative elites that provided so much of the ideological and theoretical justifications used by the administration, especially in the area of foreign policy, was the main beneficiary of this new political environment. Before the attacks, the agenda of these allies was perhaps the most unpopular of any faction of the Republican coalition. When he was campaigning for the presidency, Bush drew a sharp distinction between the nationbuilding actions of the Clinton administration and the military operations that he termed necessary and limited to specific national security purposes. There was no question, however, that Bush basically agreed with the neoconservatives about the need for a more robust and, if necessary, unilateral foreign policy using military power as a tool not simply to protect U.S. national interests but to change the system of international relations in ways more favorable to those interests (Mann 2004). Despite this, their only policy proposals that were favorably embraced before 9/11 were increases in expenditures for the armed forces and yet another reorganization of the defense department. As might be expected, the neoconservative vision of using U.S. military power to achieve systematic change won considerable additional support as a result of the attacks. Afghanistan was conquered quickly and occupied


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lightly, leaving substantial forces available to reconstruct the Middle East in line with U.S. interests. In extending the War on Terror to Iraq, however, the administration was swimming upstream against a substantial current. There had been strong support for the invasion of Afghanistan; most Americans saw “Operation Enduring Freedom” as a necessary step to disrupt al Qaeda. The invasion of Iraq was much less popular; indeed, there had been very large demonstrations both in the United States and elsewhere against that war in the days before it came to pass.12 Despite this resistance, the administration pushed forward, making more claims for executive discretion to conduct the war and increase security surveillance both within the United States and abroad. These assertions of executive power had a considerable effect on other aspects of the administration’s domestic agenda as well. The early successes of the War on Terror and Bush’s popularity as a wartime president presented the other members of the long-frustrated Republican coalition an opportunity they had long waited for. After the 9/11 attacks, popular approval of the apparent successful conclusion of the first phase of the United States’ Middle Eastern wars could provide the political leverage necessary to complete the Reagan revolution in domestic policy. There were political problems with every aspect of that legacy. The Bush administration had been supported by most of America’s business interests but to accommodate them it had to work two sides of the room of U.S. politics. The first appealed to the Reagan Democrats by combining a stronger emphasis on cultural values (discussed below) with substantial new tax cuts. Before the attacks, the administration proposed and Congress passed the Economic Growth and Tax Relief Reconciliation Act in the summer of 2001. This bill massively shifted the distribution of income taxes, changed how retirement plans would be taxed, and greatly increased the exemption for estate taxes. The bill was carefully crafted to insure that the reductions in income taxes for middle-income voters would be enough to insure their continued support while assuring a substantial redistribution of wealth to higher income brackets (Galbraith 2008, Bartels 2005).13 The second side of the room, however, was more important. Before the attacks, the regulatory relaxation expected of Republican administrations since the Reagan era was front and center with the Bush White House. The early negotiations on a new energy policy conducted by Vice President Cheney’s office, negotiations that were conducted in secret with only industry input, were considered indicative and attracted much negative comment (Savage 2007). Although the tax cuts were appreciated, there was widespread concern that the nation’s finances would again become unbalanced. Also, the administration’s deregulatory initiatives did not have much resonance


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with a public already suspicious of the government’s dealings with business. The collapse of several corporations (the most spectacular of these was the energy investment giant Enron in early 2001) had soured things further; the 2002 National Election Survey found that only “gay men and lesbians” had a lower rating with respondents than “big business” (Bartels 2005). After the attacks and their aftermath, however, the administration accelerated an already present trend toward privatizing government functions, often through the use of non-competitive contracting processes (Frank 2008). Also, it made ever more open efforts to turn many agencies into sources for both transfers of funds to its business allies and offices for its political operatives. This process was accompanied by an increasing secrecy in government decision-making, increasing use of public relations operations to control media influence, and a more open ideological commitment to free markets (Savage 2007). That, in turn, fed new assaults on the government’s regulatory capacity: conversion of regulations into schemes of voluntary compliance with little or no enforcement, extensive use of political pressure to reduce enforcement efforts, and further reductions in the resources of government agencies (Ivins and Dubose 2003, Galbraith 2008).14 Again, the president’s high levels of approval and the administration’s willingness to expand the scope of executive discretion to areas of domestic policy provided protection for its actions. Finally, there was the last leg: conservative evangelicals who deeply desired social and cultural change aimed at placing faith, particularly protestant Christian moral values, firmly back into the public square. They had put their support behind the Republicans to achieve these changes. But this was a project that a substantial part of the population was indifferent or hostile to and was beyond the resources of the evangelical community to effect on its own. Evangelical organizations’ voices concerning social policy began to be heard as much as concerns of business interests were on regulatory questions. Although the Community Solutions Act, the administration’s main legislation on “faith-based initiatives,” foundered in Congress over constitutional issues, the president was able to issue executive orders that achieved much the same goals (Wills 2006, Dilulio 2002). Before the attacks, the White House Office of Faith-Based and Community Initiatives was created to aid further outreach by religious organizations into community roles, providing new resources and promising regulations to address the obvious constitutional limitations on the religious proselytizing that was almost sure to occur (Dilulio 2002). After the attacks and the administration’s decisive response, the office coordinated the activities of centers of Faith-Based and Community Initiatives in twelve federal agencies that succeeded in


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disbursing $2.2 billion to faith-based organizations by FY 2005. As the U.S. Government Accountability Office (2006) found, however, the necessary regulations for handling these funds within the law had either not been promulgated or were almost unknown to both agency officials and beneficiaries and, consequently, largely unenforced. The administration’s push forward, using its claims of executive discretion and a state of emergency, had achieved considerable effect on its international and domestic agenda. The nation’s place as the determining—and unilateral—political power in foreign affairs appeared to be solidified. Business elites could see favorable tax treatment, lucrative government contracts, and an end to the effective enforcement of the regulatory regimes they abhorred. Reagan Democrats could see further tax relief and fewer public resources aimed at America’s poor and minorities. Evangelical Christians found themselves with a government willing to transfer resources, not just pay lip service to moral refoundation. The possibility began to emerge that the fragmented Republican coalition could be united and used as “the base” to create the “permanent Republican majority” needed to relegate progressive tendencies to the sidelines of America’s politics and achieve real institutional change. But all these ambitions had a price: success against the terrorists at an acceptable cost. Higher taxes and national mobilization were not what Bush’s supporters had bargained for. We’ve got to hang with the president because if you start splitting with him or say the president has been abusing power we’ll all go down. —Anonymous Republican senator on George W. Bush (Drew 2006)

Normally in wartime, a nation is asked to tighten its belt and sacrifice its sons. One would be hard-pressed to find two decisions more likely to expose the fault lines between Bush’s supporters, however. Instead, the administration pressed on to a second round of tax reductions in 2003, excusing skyrocketing budget deficits as either the result of war or the price of maintaining economic stability in the face of the dislocations caused by the 9/11 attacks. Usually, such a strategy would have led to some difficult budgetary decisions in Congress. In this instance, however, the government’s deficits were covered by foreign investors and, increasingly, the central banks of Japan and China. Both countries had an interest in seeing that Americans did not lose their capacity to buy their goods, a capacity sure to decrease if public debts forced higher taxes or a devaluation of the dollar (Quiggan 2004). Furthermore, the Republican-controlled Congress had no more interest in exposing the inherent conflicts in the regime coalition than the president did. They had cooperated with the new


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administration’s course by abandoning the “pay-go” rules (a requirement that new programs and tax reductions be revenue neutral) in 2002 (Kogan 2005). The administration reciprocated by declining to veto spending legislation, no matter how pork-laden it was. As in Reagan’s time, the combination of substantial deficit spending and foreign financing led to an economic recovery, albeit a none too robust one. The price demanded for this understanding was high: party discipline behind the president’s major priorities (Hacker and Pierson 2006, Suskind 2004a). This served both branches well: the president got the legislative program he wanted, one that his ideologically unified party could support; indeed, the congressional leadership had agreed not to send Bush a bill he would veto, even if comparatively minor disagreements were involved (Sinclair 2007). The Republican Congress got government spending that could be used to mollify constituents and create political advantages for the party (Hacker and Pierson 2006). Moreover, both sides got these benefits with a modicum of public exposure. The president, by the judicious use of his decree powers, by appointing conservative executive (often these were recess appointments) and judicial personnel, and by issuing signing statements that conditioned executive compliance with legislation was able to deliver for different factions of the regime coalition without consistent resistance (Drew 2006, Broder 2006).15 This expansion of executive power in domestic affairs was protected by the high approval ratings generated by his performance on national security issues, especially after the Republicans regained control of the Senate in 2002. The Republican-controlled Congress used the halo effect of Bush’s performance to tamp down insurrections in the ranks and to solidify, along with the substantial increases in government spending, their ties to their supporters.16 While the conundrum of orthodox innovator leadership was still present—the president definitely did not have his way on everything, despite often insisting on it—the situation was now manageable for all concerned. Conflicts within the regime coalition could be countered either by calls for support for the commander in chief or by policy deliverables in kind and symbol that satisfied factional disquiet; indeed, the Madisonian scheme of separation of powers depending on interbranch conflict and congressional oversight seemed almost superseded (Hacker and Pierson 2006). Public disagreement over the president’s policies by opponents could now be assaulted as bordering on treasonous activity and, for both administration officials and ordinary supporters as rank disloyalty to the cause (Suskind 2004a). Bush’s reelection in 2004, a rare event in the careers of orthodox innovator presidents, and Republican success in congressional elections that year were the proof of the pudding (Skowronek 2005).


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It was both possible and necessary to alter everything: the streets, the houses, the cities, the social order, human souls. And it was not all that difficult: first, the unselfish enthusiasts would outline the plan on paper; then they would tear down the old (saying all the while, “You can’t make an omelette without breaking eggs”); then the ground would be cleared of the rubble and the edifice of the socialist phalanx would be erected in the space that had been cleared. —Raisa Orlova, remembering her childhood in the 1930s (Fitzpatrick 1999, 69).

The Leadership Project in the Soviet Union: Economic and Political Crisis and the Five-Year Plan By the beginning of 1927, Stalin had solidified his leadership of the Bolsheviks (Tucker 1990). Trotsky and Zinoviev had both lost their seats in the Politburo in 1926, though both were still members of the Central Committee. The United Opposition of the two with Kamenev was on the ropes. He was still, however, the leader of a collective, a collective that still supported the NEP and had done little to stop the retreat from building socialism Lenin had referred to in his last speeches. Given the economic situation in the country, it appeared unlikely that either Stalin or his new colleagues in the party leadership would be able to end that retreat. The NEP was delivering economic growth, albeit only by bringing idle industrial plant on line and despite a still nagging problem of unemployment. Although private agriculture in the countryside had apparently made food rationing in the cities a thing of the past, increased agricultural production was based on an increasing acceptance of land leasing, private employment, and petty capitalist trading in town and country (Nove 1989). The party was still divided on the course that should be taken in the future. The critique of Stalin’s opponents pointing to the lack of development of heavy industry and infrastructure under the NEP and consequent high rates of unemployment, the reappearance in surprising strength of private commodity trading, and the dangers of peasant farming becoming a drag on overall agricultural production had been suppressed in open debate, but the facts spoke for themselves.17 Still, it was hard to argue against policies that had delivered, even for a short time, relief from the privations of War Communism and the early years of economic reconstruction. During 1927 the Soviet Union faced two interlocking crises that together created the opportunity for promulgating a new leadership


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project and narrative, an opportunity Stalin was able to seize effectively. The first involved a “war scare” that led to considerable levels of public and, at first, elite concern. The Soviet Union had reached the beginnings of a rapprochement with Germany with the Treaty of Rapallo in 1922. Rapallo had normalized relations between the two countries and had led to the strengthening of their economic and clandestine military ties. These concessions had been renewed in the so-called Treaty of Berlin in 1926 (Tucker 1990, Sontag 1975). However, a series of agreements signed between Germany and its former World War I opponents at Lacarno in 1925 had raised fears in the Soviet Union that the Germans might renege on their recent obligations. Lacarno had normalized German relations with the other Western European powers and had settled some outstanding insecurities over borders. Unfortunately, it also specified that the borders of the newly established Eastern European countries would be left up in the diplomatic air. It was there that an increasingly apprehensive Soviet leadership found themselves in 1927. Three exogenous events took place in the spring that year raising apprehensions concerning war to a fever pitch. In April, Chiang Kai-shek, after a long period of uneasy cooperation, led the Kuomintang out of its alliance with the Chinese Communist Party and the Soviet Union. Soviet military advisors were expelled, the Soviet embassy in Beijing was attacked, and the army and police massacred Communists, both suspected and actual, in large numbers (Fairbank 1987). This setback in an area where the Soviet Union thought it had made considerable progress was startling and embarrassing. In the next month, however, an even more troubling development appeared. On May 26, Great Britain abrogated its 1924 trade agreement with the Soviet Union and broke diplomatic relations. Given the British role in the Lacarno pacts, this raised fears of a British-French plot to undermine the Soviet-German agreements and recast Eastern Europe to the disadvantage of the Soviet Union. Finally, in June the Soviet ambassador to Poland was assassinated by a Russian émigré (Sontag 1975, Snyder 1989). In hindsight, there was no evidence that any of these events were connected or significant. Given Chiang’s rising distrust of the Chinese Communists, the coup in China could have been predicted, the British and French were not, in fact, planning anything, and the assassination had no direct consequences. Indeed, if any cause could be blamed for these events, it was probably ill-advised Soviet policy, especially in China. It is understandable, however, that both public opinion and party cadres in the Soviet Union read more into the trip-hammer sequence involved than was warranted. The leadership of the party did little to dampen these fears, for reasons that will soon become apparent. In the context of a country that had only recently seen the last of invasion forces sent by major foreign


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powers withdraw and where the ruling elites were convinced, with good reason, of the precariousness of their position, fear of foreign designs on Soviet independence did not seem farfetched. As the year wore on public apprehension decreased somewhat, but the fear of foreign machinations leading to a war with the Western powers was never far from the surface, especially among party cadres. The second crisis was more dangerous and caused greater concern in ruling circles. The party leadership had been concerned that 1927 grain deliveries from the still largely private agricultural sector to urban areas would fall short of requirements and, by early 1928, it became apparent that they had and by over 2 million tons (Nove 1989, Tucker 1990). The prospect of severe food shortages in the cities was a real one and brought to the fore a continuing problem with the agricultural reforms that had accompanied the establishment of the Soviet state. The breakup of the great estates of the Russian nobility had increased the share of small farms in grain production to 85 percent, with corresponding decreases in overall productivity and, given increases in consumption by farm families, much lower amounts of marketable grain (Sherman 1969). The NEP had restored the industrial sector of the Soviet economy to pre-1917 levels but mainly by reconstructing plant and expanding light industry. The prospects for long-term economic development depended greatly on increasing overall productivity through investment in industry. Now continuing economic growth was endangered by the strain put on investment funds by persistently high food prices that raised real wages and, not coincidentally, unemployment. The difficulties of the situation were compounded by projected shortages in industrial crops (Sherman 1969, Nove 1989). In an atmosphere of looming international and domestic difficulties, the Fifteenth Congress of the party was convened in December 1927. At this Congress, Stalin took action as decisively as George W. Bush did after 9/11. Both Trotsky and Zinoviev had been expelled from the party shortly before the Congress met. Now, after a fractious debate, Kamenev and most of the leading supporters of Trotsky and Zinoviev were expelled from the party as well for open and public opposition to Central Committee decisions in violation of party rules.18 Stalin and his allies on the Central Committee were able to define opposition under the circumstances as the height of irresponsibility (and personally risky as well); even Zinoviev and Kamenev’s comrades in the Leningrad and Moscow organizations voted against them by large majorities (Deutsche 1966). Turning to the economic problems facing the state, the Congress agreed with Politburo proposals to begin the collectivization of agriculture by dispossessing the kulaks and moving small- and medium-sized farmers gradually onto larger collective farms. Taxes were to be increased on the kulaks and the free trade


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sector as well. Finally, the Congress also supported increasing the planned level of industrial investment and charged the State Planning Commission (GOSPLAN) to put together a Five-Year Plan for the entire economy to begin in 1928–29 (Nove 1989, Nettl 1970, Sherman 1969).19 This was a Leninist Stalwart’s solution to the state’s political and economic difficulties: (1) increase grain deliveries by providing the enterprise scale necessary to make higher capital inputs in agriculture feasible, thus increasing productivity; (2) use the agricultural surplus to stabilize real wages and to provide export earnings, creating, along with retained profits from the socialized sector, an investment fund for heavy industry; and, as importantly, (3) break the political power of small industrialists, commercial traders, and capitalist farmers by increasing the size of the socialized industrial sector and of the working class, taxing private trade out of existence and eliminating the kulaks (Nove 1989, Sherman 1969). Finally, a stronger industrial base could provide the liniments for an armaments industry that could strengthen the country’s defenses. The key to achieving these goals was to increase party discipline and the party’s recommitment to the socialist project. One can easily imagine the discomfort this program caused Stalin’s former “moderate” allies Bukharin, Tomsky, and Rykov; Stalin had pushed resolutions through the Congress that closely tracked the ideas of the “leftist forces” they had helped him overcome not too long ago. But recall how Stalin had defined himself during that struggle. He had never embraced a right program for the Soviet Union’s future on anything but pragmatic grounds; now, he could and did claim that conditions had changed and a new course was necessary. It was a course that put Stalin in the position of redefining and giving real substance to the advance of socialism the party had waited so long to see recommence. The time for argument was over at last, replaced by concrete policies calling for concrete action with the party in the lead. Further support for the policies of NEP was looked upon as a betrayal of the party’s purpose and, given the international and domestic situation, a threat to the Soviet regime itself. The so-called Shakhty show trial in 1928, condemning supposed saboteurs in Soviet industry, drove home the point (Solzhenitsyn 1973). The die had been cast for both a new economy and a new party, both with Stalin at their head. Although its actual plans were modest in scope—the original Five-Year plan called for no more than 14 percent of the rural population to be collectivized by 1933–34—the GOSPLAN was unable to get a final plan approved for most of 1928. However, provisional increases in industrial investment and initial collectivization efforts (and forced grain collections) showed positive effects quickly. That led to Stalin’s approval of upwardly revised plan targets in 1929–30, the first full year of the plan’s operation (Sherman


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1969). This decision had very dire consequences. A greater pace of development meant higher investment than planned and rapid expansion of urban areas. The level of planned investment had originally been set to show a 153 percent increase for the plan’s duration; now the call was to increase it by 237 percent by 1932 (Nove 1989). Planned levels of production in different industries showed similar increases in the initial targets, increases that in many instances simply ignored the technical and resource limitations involved. To top all of these mutations off, the plan was revised to provide for its completion in four instead of five years, an acceleration of nine months (Nove 1989). These changes, in turn, meant much more pressure to collectivize agriculture. Only collectivized farming had any chance of delivering the higher levels of grain needed to feed the quickly increasing numbers of new industrial workers and to generate export earnings. That in turn meant an accelerated campaign against the kulaks, who had the livestock, farm implements, and capital needed to make the collectives work (Sherman 1969). As the party had already accepted the idea of intensified class conflict in the countryside, the new directives to party organizations were put into force with enthusiasm by local cadres, usually with little or no direction from either government or party, except to get busy with the task at hand (Viola 1993). Within a short time, 58 percent of rural households had “joined” a kolkhoz (collective farm) (Sherman 1969). The resulting debacle haunted Soviet agriculture for decades to come. The story of 1929–30 in the countryside is a familiar one: more than a million kulak families exiled to new, inhospitable locations with attendant losses of life and productivity; opposition to collectivization in the countryside resulting in the slaughter of a substantial proportion of the country’s livestock (including draft animals); effective passive resistance by the peasantry and disorder approaching open civil war in some areas (Sherman 1969, Wheatcroft 1993). As a result, at the end of 1930, Stalin directed a halt to collectivization, leading to a quick departure of 30 percent of the farming population from the collective farms (Sherman 1969). But the respite was only temporary. The collapse of Soviet agriculture in 1932–33 and the attendant serious food shortages made taking action even more important and the Stalinist leadership was ready for it (Nove 1989). The break-neck pace of industrialization in the revised Five-Year Plan combined with the difficulties in agriculture and the replacement of private commercial enterprises with ad hoc state-directed agencies made the first three years of the effort to build socialism horrendously difficult for all sectors of society. To make the great sacrifices justifiable a leadership narrative had to be developed. The basics were already in place; socialism in one country had been given actual substance by the adoption of the Five-Year Plan, and increased class antagonisms and party discipline had


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been sanctioned. As was the case with the Bush administration’s narrative improvisations, however, the Stalinists came up with a collection of new themes rather than a coherent extension of ideology. Fitzpatrick (1999) has identified several of them: commitment not simply to building socialism, but to building a new world based on it; a call for heroic efforts and sacrifice; the remaking of individuals and “remolding of everyday life” to acquire skills and attitudes promoting rational behavior and a “Bolshevik way of thinking”; and a demonization of opposition to the Stalinist leadership tied to an intensified emphasis on the machinations of the Soviet Union’s domestic and foreign enemies (see also David-Fox 1999). The new rhetoric of the party was reinforced by a widespread use of military metaphors (“Bolsheviks can storm any fortresses,” “iron discipline,” etc.) and by a pervasive fear of war with an encircling capitalist and fascist enemy. Backing all this was a reworking of what was now called MarxismLeninism that was in context as controversial and as useful as the unitary executive theory would prove for George Bush 68 years later. Stalin’s interpretation of Leninism and his remarkable energy in producing defenses of it against successive rival interpretations gave theoretical backbone to new calls for intensified party discipline and increased vigilance against the party’s enemies (Stalin 1979). That, in turn, provided the justification for the extensive new claims for executive discretion inherent in the promulgation of the Five-Year Plan and its subsequent direct manipulation by Stalin and his comrades.

Crisis and Political Reconstruction in the Soviet Union: The Five-Year Plan and Soviet Politics Perhaps not surprisingly, opposition to the breakneck pace of the development effort emerged, this time amongst Stalin’s most prominent allies in the struggle with the Left Opposition. Soon Bukharin, Rykov, and Tomsky were targeted as “Right Deviationists”—notice how deftly Stalin was able to redefine his former allies as holding unorthodox and dangerous views and defying party discipline as willfully as the now disgraced left—for calling for a slow down in the pace of growth. Their fall from leadership positions and subsequent recantations in 1929–30 were resounding evidence of another element of the new narrative: thoroughgoing party discipline and repression of opposition to the directives of the party’s central leadership (Fitzpatrick 1999, Getty and Naumov 1999, Sakwa 1999). “Democratic centralism” as Lenin had conceived it was put aside as factional. The final mortar for these disparate bricks was an increasing “cult of personality” around Stalin himself as the leader of the country’s


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reconstruction and the guarantor of its advances (Brandenberger 2005). Surprisingly, in spite of the ad hoc nature of the plan, the privations involved, and the level of social and economic disorder that had resulted, the regime was able to pull through the crisis of 1932–33. When the second Five–Year Plan started in 1934, the higher levels of investment in industry and the partial recovery of a now collectivized agriculture—there was eight times as much cultivated collective and state farmland in 1932 as in 1928 and grain procurements had increased accordingly—had made the Soviet Union an industrial nation and apparently had quieted opposition to the new policies (Sherman 1969, Getty and Naumov 1999). We, as members of the Central Committee, vote for Stalin because he is ours. —Yan Rudzutak, speech at the Central Committee plenum of January 7–12, 1933 (Getty and Naumov 1999, 93)

As with the narrative adopted in a new century by the Bush administration, the Stalinist leadership narrative embodied a new understanding for members of the regime coalition. Stalin’s supporters were part of a party that had enjoined organized factions since Lenin’s time, but disputes over policy (supported, of course, by unofficial factions) were another matter. Those disputes had riven the party throughout the 1920s but had always been settled in the end, usually by the temporary expulsion of opposition figures from policymaking positions and their eventual recantation and partial reestablishment. Lenin, although nobody’s idea of a democratic leader, had established this pattern early on; if a member had skills the revolution needed, was willing to recant, and afterward showed appropriate discipline, rehabilitation was likely. Stalin demanded a new level of discipline from party members; opposition now had serious consequences for careers and was often life-threatening (Deustcher 1966, Getty and Naumov 1999). That discipline had some real benefits to party cadres, however. First, the vast administrative and managerial responsibilities created by the Five-Year Plan insured the place of the party in the nation’s life as nothing else had. This was especially the case for the regional party organizations. These now assumed a more active and, at first, independent role in the workings of what was now truly a party-state. Indeed, the normal interactions between center and periphery became characterized by hierarchical lobbying efforts by local and regional party organizations (Fitzpatrick 2004). The interactions within the leadership were also affected. Instead of the abstract doctrinal disputes that had characterized the 1920s, careers were made or broken in bureaucratic combat between different fiefdoms in the vastly expanded socialist industrial sector (Fitzpatrick 2004). But


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even low-level cadres now had both the promise of suitable work and the status accruing to the creators and monitors of a new society. The new role of the party was accompanied by a new acceptance of social and economic inequality by the Stalinist leadership. In the first years of the Five-Year Plan, there had been a resurgence of efforts to build a “proletarian culture,” a cultural revolution aimed at education and the arts in particular and built around the idea of equality of status and social participation (Fitzpatrick 1974, 1999). However, the lack of differential wage scales had made for difficulties in maintaining stable workforces in the new industrial enterprises; engineering and agricultural specialists were also in short supply.20 In his soon-famous speech, “New Conditions—New Tasks in Economic Construction,” Stalin, redefining the problems as usual, called for wage differences between skilled and unskilled work and for a new push to create a working class intelligentsia (Sakwa 1999). Given the privations associated with the initial years of the first plan, the advantages that this new policy promised to party members due to their status in managerial and administrative roles were not small incentives. But party elites realized that these privileges were a two-edged sword. Stalin’s initiatives had badly unsettled affairs in the Soviet Union with attendant problems in reestablishing authority. Some of this could be handled by repression and by public show trials, of which more below. Party members knew, however, that the disorder in the country was a visible threat to the regime. Under these circumstances, one of the requirements for party members had to be a willingness to suppress the doctrinal differences that had divided them in the past (Getty and Naumov 1999). A lack of discipline under the NEP was regrettable, under the Five-Year Plan it was dangerous. Yet opposition did not abate; the appearance of the so-called Ryutin Platform in 1932, denouncing Stalin and his allies, and perceived new threats from the now-exiled Trotsky seemed concrete proof that, despite all efforts, internal enemies were continuing to arise (Getty and Naumov 1999, Thurston 1996). But recall how by then the Stalinists—it was not Stalin alone—had used the politics of definition to characterize opposition to their leadership project. Opposition threatened to split the party in the face of continuing unrest and endangered the socialist project itself. Members of the party elite saw themselves at a turning point. Here was the party’s chance to fulfill Lenin’s legacy. How could any one who called himself a communist not throw in his lot with the “Leninist Central Committee united around Stalin,” support socialist construction, and push through to the end (Getty and Naumov 1999)? The quote from Rudzutak that begins this section was partially strategic, of course, but it appears to reflect the majority sentiment of the party as a whole at the time. Again, the dilemmas of orthodox innovator leadership among party


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and government elites had been effectively answered by a combination of political incentives offered by the regime and ideological conformity within the ruling party.

As I hope I have revealed in this chapter, the leadership projects of both the Bush administration and the Stalinists had a similar purpose: to create a reason to accept their leadership in ways that allowed them to overcome the restrictions of the politics of articulation. To reiterate, orthodox innovators are in a precarious position. First, they must justify their leadership by appeals to the legitimacy of past policy and promises to fulfill the legacy of the regimes they represent. Second, and at the same time, they must undertake new policies to meet those promises, hence partially recreating them; the changing political exigencies evoked by secular time allow no other course. This leads inevitably to factional disputes that disrupt the capacity of these leaders to lead effectively (Skowronek 1997). But what if exogenous events lead to the possibility of creating a new narrative that distracts both partisans and, more importantly, opponents? Then, as both George W. Bush and Stalin saw, albeit dimly at first, these new narratives can submerge factional disputes, leave opponents grasping at straws, and provide a reason for accepting new, more extensive, and more discretionary leadership initiatives. With both the War on Terror and the Five-Year Plans the two regimes found the tools that allowed them to fulfill their predecessors promises without falling into the same traps that others in orthodox innovator situations have. But in the process they both established narratives that became a vital piece in the puzzle of rule they had to solve. Discredit those narratives, and the capability of both the leaders and their partisans to put the disruptive effects of their policies to one side would be deeply undermined. Notice as well that questioning either narrative had been relegated to the pale of illegitimacy by the Manichean rhetoric in both. Opposition to the War on Terror was tagged as the equivalent of supporting the enemies of freedom and democracy, the murderers of thousands of Americans, and, in the last analysis, evil itself. Opposing the Five-Year Plans and the “transition to socialism” meant becoming a supporter of the blood enemies of the workers and kolkhoz peasants, an agent for the return of capitalism, and a tool of the fascist and capitalist warlords who wished to reduce Russia to subservience and destroy the revolution. These are not exaggerations of the formulations by either regime.21 It is perhaps no wonder that the critics who did arise tried—with much better success in the United States, of course—to identify themselves with


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Political Crisis, Political Opportunity, and the Prelude to Torture


the goals of the narratives while criticizing the means used to realize them. And what if the forces striving to overturn the narratives appeared to be willing to do so by using clandestine violent means? Then the necessity of defending the regimes’ claim to legitimacy becomes even more urgent, the use of secret means even more compelling, and the justification for crushing opponents even more convincing. After all, the governments in the United States and the Soviet Union were defending the most cherished elite values of the societies involved. Any threat that involved violent resistance could be eliminated justifiably by repressive means and a plea of necessity could be used to excuse excesses, especially if the repression worked in a reasonable amount of time. As we will see, it is the emergence of just such challenges that prepared the way for the implementation of torture by both the United States and the Soviet Union.


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Torture: From Informal Institution to Official Policy

T

orture in both its physical and psychological forms has been practiced since the invention of organized states and the use of prisons. It has been used widely as a tool of interrogation and intimidation. The justification has usually been that the terror of torture would make prisoners who are unlikely to respond to usual questioning or discipline more pliable. There is also a persistent belief that torture can insure a speedier answer to questions. In times of national security emergencies, real or perceived, the need to gather information concerning enemy activity may lead to using torture as a supposedly more expedient interrogation method, especially when one’s opponents are members of clandestine, irregular armed forces or opposition networks. Often torture of prisoners as part of interrogations has been used as a tool to intimidate opponents of existing regimes as well. The fascist and, as we shall see, communist regimes of the 1930s and 1940s were well known for using torture as a tool of intimidation, as are the civilian and military dictatorships found at different times and places around the world. However, the practice is not unknown in democratic states, although the intimidation of their own citizenry is less common than of subject peoples.1 Using torture in interrogations, however, creates a major problem for modern states, no matter what their ruling ideology. The difficulty attaches to the characteristics of citizenship. Citizenship in a modern state includes the notion, no matter how honored in the breach, of individual autonomy—an autonomy that is guaranteed by, among other things, the equal status of citizens as members of a political community (Marshall 1965). In other words, all citizens have, in theory if not in practice, equal dignity and legal standing in the community. That standing is obviously and deeply undermined when the state adopts torture as an interrogation technique, to maintain prison discipline or to quash opposition. It is


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this quandary that makes torture so difficult to analyze as an institutional phenomena. Since the eclipse of judicial torture in the sixteenth and seventeenth centuries, states have rarely mandated or even condoned torture (Langbein 2004). When torture is practiced, it is commonly done within an ad hoc framework that seldom officially describes or sanctions the actual techniques that evolve and, of course, systematic records are seldom kept. How, then, are we to approach analyzing how the practice is officially adopted? In a recent article, Helmke and Levitsky (2004) point the way by proposing a theoretical framework for examining informal political institutions. They define informal institutions as “socially shared rules, usually unwritten, that are created. communicated, and enforced outside of officially sanctioned channels” (Helmke and Levitsky 2004, 727). They further divide such informal institutions into types depending on how they fall under two dimensions. The first dimension is whether the outcomes favored by formal and informal institutions agree or diverge, the second whether formal institutions are effective or ineffective in constraining informal institutions. The four types of informal institution that result—complementary, accommodating, substitutive, and competing— can be characterized depending on how they combine these dimensions (Helmke and Levitsky 2004). I postulate in the following sections that the official use of torture in interrogations by modern states is an example of an accommodating informal institution. As Helmke and Livitsky (2004, 729) say, Accommodating informal institutions are often created by actors who dislike outcomes generated by the formal rules, but are unable to change or openly violate those rules. As such, they often help to reconcile these actors’ interests with the existing formal institutional arrangements. Hence, although accommodating informal institutions may not be efficiency enhancing, they may enhance the stability of formal institutions by dampening demands for change.

In other words, there is a dialectic of interaction between formal rules and accommodating informal institutions. Such informal institutions can be brought into existence when elites sponsor changes in formal rules, blur the interpretation of formal rules, or undermine the presumed limits that accompany formal roles. Accommodating informal adjustments to the incentives offered to actors consequently increases the flexibility elites can exercise in reaching policy objectives. By the same token, however, should authorities decide to do so, formal rules can be modified quickly to incorporate the accommodating, but informal, rules or to reinstate formal sanctions against those still using them (Helmke and Livitsky 2004).


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Also, as Helmke and Levitsky point out, these rules can be adjusted in such a way as to use the precedent of the informal practices to insure their continuation within formal institutions; that is, the informal practices may become officially recognized. Further, though Helmke and Levitsky do not mention this alternative, the stability of formal institutions may be decreased as well if the adjustments in formal rules to suppress informal institutions are incomplete. The existing precedent of the informal practices, now abandoned, but often still supported by the practitioners themselves, can continue to call into question the reassertion of formal limitations unless consensus is reached on forbidding the practices. As we shall see, these concepts help explain the emergence of torture in our two cases. The establishment of torture as such an informal institution, however, is predicated by a set of particular circumstances. To recall the mechanism I outlined earlier, for torture in interrogations to emerge there must first be a perceived threat to an established leadership project and its justifying leadership narrative. If that threat increases and if the threat of violent opposition to the project materializes, then the need for developing intelligence about regime opponents increases as well, particularly if clandestine opposition is involved. If difficulties with developing actionable intelligence then come about, official establishment of accommodating informal institutions and the use of torture and repression of regime opponents are the next steps. Here I need to emphasize that all the threats involved in this mechanism are perceived in character; there is no necessity that a viable threat to the aims of the regime project be involved. That is not the question. Instead, the fears leading to the establishment of informal institutions and the use of torture concern the justifications of the project in the leadership narrative. As I have tried to indicate, the War on Terror and the Five-Year Plans were used for political purposes that went far beyond the scope of the actual projects themselves. They were the instruments that structured and sustained rally effects for the leaders involved that in turn allowed them to overcome many of the obstacles inherent in orthodox innovator leadership situations. By having the narratives promulgated to support these projects in place, both the Bush administration and the “Leninist Central Committee united around Stalin” had the leeway to draw on support from the disparate elements within their political coalitions and to silence (with different levels of effectiveness) their opponents. But such narratives are fragile in content; the coalitions demand that their promises, promises they have been waiting to have fulfilled, be delivered on as the price for continuing support. But what if the projects appear to be failing? If that were to happen, the narratives themselves might fail to provide the glue necessary to keep leadership goals legitimate among regime supporters. If the prospect of clandestine violent


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FROM INFORMAL INSTITUTION TO OFFICIAL POLICY


opposition develops as well, then the need to sustain the project becomes all the greater and the urgency of doing so all the more overwhelming. The possibility of violence means that defense of the project becomes a defense of the “legitimate” processes that led to it, processes activated by true crises that have to be faced by the leadership and its allies. This situation calls for dedicated intelligence efforts aimed at undermining violent opponents, efforts that must bear fruit with dispatch. In the two cases presented here, this process appears to proceed through stages beginning with limited use of torture connected with concerns about national security and moving on to more widespread use of prophylactic arrests and torturous interrogations as opposition to leadership projects increases.2 In both the United States and the Soviet Union the use of informal institutions to accommodate torture was launched as national security concerns became rife. For the United States, it was the dawning realization of the Bush administration after the events of 9/11 that al Qaeda had much more operational sophistication and capability than they had previously suspected that led to the original decisions to use alternative procedures to gather intelligence (Clarke 2004, Sands 2008); in the Soviet Union, it was the murder of Sergei Kirov in 1934 and the subsequent use of torture to extract “confessions” from leaders of a newly proclaimed “Trotskyite–Zinovievite” conspiracy. In both cases, these actions appeared at first to contribute to the success of the leadership projects involved. Initial military successes in both Afghanistan and Iraq seemed to vindicate the Bush administration’s strategy in the War on Terror and contributed to strong surges in public approval for directly combating the terrorist threat in the Middle East without undue public concern about the methods used. Similarly, the strong growth in industrial production resulting from the first Five-Year Plan and the partial recovery of agricultural production after collectivization justified, at least for the governing elites, both the project and its accompanying narrative. Opponents of the success of socialism should not be treated with kid gloves. As we shall see, however, in both cases the level of perceived threats continued to rise as leadership projects matured. The swiftly rising insurgency subsequent to the invasion of Iraq and the palpable ineffectiveness of American efforts to establish political stability there dashed hopes for success of the leadership’s project soon after an initial proclamation of victory. The rapid rise in the level of violent opposition led to the widespread use of prophylactic arrests in Iraq and the proliferation of torture techniques from the CIA’s secret “black site” prisons, the Guantanamo Bay prison, and the prison at Bagram airbase in Afghanistan to Iraq. The result was a widening use of torture as a tool for gaining “operational intelligence” for use in suppressing violent opposition in a real shooting war. Similarly, the Soviet leadership


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was faced with the incessant civil disorder brought on by the massive economic transitions of the Five-Year Plans, plagued by continuing problems with agricultural production, alarmed by reports from the security organs of widespread conspiracies by underground organizations supported by fascist governments, and convinced that war with the fascist and imperialist states in Europe was an inevitable and looming danger. The shocking revelation by the People’s Commissariat of Internal Affairs (NKVD), the Soviet Union’s national security agency, of a plot to stage a military uprising against the government was the straw that broke the camel’s back. Stalin’s decision to clear accounts with his opponents, with those unlikely to give the regime unstinting support should war come, and with displaced and “foreign” populations led, as in Iraq later, to widespread prophylactic arrests. The informal proliferation of torture followed in an attempt to gain intelligence about clandestine organizations, to coerce confessions from the accused, and to suppress opposition to the leadership project. In short, the increasing apprehension of leadership elites concerning national security led to official decisions leading to the establishment of informal institutions that permitted a redefinition of rules concerning interrogation that blurred existing limits on the use of torture. As frustration with the rising tide of potentially violent opposition and the perceived threats to the regime’s leadership project increased, the informal institutions became more well established and the pressure to use torturous interrogations became more sustained. As we shall see, the space created by those blurred limits is where torture flourishes. Torture as an Accommodating Informal Institution in the United States The war against terrorism is a new kind of war ... The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American citizens ... In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners. —Attorney General Alberto Gonzales, Memorandum for the President, January 25, 2002 (Gonzales 2002, in Danner 2004, 84) However, I stand for 8–10 hours a day. Why is standing limited to 4 hours? —Handwritten note by Donald Rumsfeld in Action Memo: Counter-Resistance Techniques (Rumsfeld 2002, in Greenberg and Dratel 2005, 237)


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I have asserted above that the War on Terror had two complementary purposes. The first, of course, was the defense of the United States from further attacks. Shortly after the war on Afghanistan was launched in 2001, the United States was informed that before the September attacks Osama bin Laden and his chief aid, Ayman al-Zawahiri, had met with rogue officials from the Pakistani atomic energy commission concerning the acquisition of nuclear weapons (Suskind 2006). The nightmare scenario of a nuclear armed al Qaeda understandably increased the pressure to acquire as much intelligence about terrorist networks as possible in the shortest time feasible. Substantial data concerning the terrorist organization had already been seized during the Afghan campaign. The capture of hundreds of al Qaeda operatives and fellow travelers presented a golden opportunity to gain the information necessary to complete the picture (Suskind 2006). But that also presented difficulties. President Bush had issued a presidential order on November 13, 2001 that placed all the “detainees” under the jurisdiction of the secretary of defense and provided for military commissions to try them for potential offenses, but without protections of the Geneva Conventions (GC) or the procedures in the Uniform Code of Military Justice (UCMJ) (Bush 2001, Pfiffner 2010). In other words, the raw material for intelligence gathering was already imprisoned and could be threatened with military trials. The question was whether the usual one–two punch of the shock of incarceration and the realization of isolation in the hands of enemies used by security and police agencies the world over to prepare the ground for interrogation would be enough in this instance. It was known that al Qaeda had given at least some of its operatives training in resisting interrogation. However, Bush’s order had begun the process of blurring the limitations on the treatment and interrogation of detainees; application of the GC had been made optional and the use of the UCMJ by the new military commissions had been excluded. The question of using “enhanced” interrogation techniques arose as a consequence and sparked considerable disagreement between the CIA and FBI. According to Suskind (2006), the Bureau, the agency with the most experienced interrogators in federal service, favored the more conventional interrogation methods they had used effectively in previous operations against terrorist networks. Such strategies, however, take time; they depend on the establishment of a relation of trust between prisoners and interrogators and the sometimes lengthy process of corroboration of testimony. Given the urgency of the situation and the doubts concerning available intelligence about the terrorists,


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The Project Matures, Threats Emerge, and Elites React: The War on Terror

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their secret networks, and their plans, the CIA felt it was necessary to use more intense methods of questioning. As 2002 began, these matters were the subject of an extensive secret debate within the executive branch of the government over the legal limitations on interrogation techniques. This debate considered two questions in different successive phases. The first, in early 2002, concerned whether the detainees from the Afghan War should be extended the protections of the GC concerning prisoners of war. Shortly after 9/11, David Addington, Vice President Cheney’s counsel, began an informal “War Council” of lawyers with similar opinions—John Yoo, a deputy attorney general at the Office of Legal Counsel (OLC) at the Department of Justice; Jim Haynes, general counsel of the Department of Defense; Alberto Gonzalez, the White House counsel; Gonzalez’s colleague Timothy Flanigan; and, later, John Rizzo, general counsel of the CIA—with the goal of formulating as flexible a policy for prosecuting the War on Terror as possible.3 The vice president, who had long chaffed under what he considered unreasonable and unconstitutional restraints on executive power, both inspired and supported their efforts (Gellman 2008, Mayer 2008). In response to a request from Haynes, on January 22, 2002, the OLC issued a memorandum to Gonzales concluding that the GC did not apply to either the Taliban or al Qaeda since neither were state actors or signatories of the Conventions. Furthermore, the president’s powers as commander in chief under both the Constitution and the Authorization for the Use of Military Force allowed him to direct the actions of the armed forces, including treatment of prisoners, during time of war in any manner he saw fit (Bybee 2002a). In a subsequent memo to the president on January 18, Gonzales argued that since the controlling federal statute, the War Crimes Act, applied only to violations of the GC, the act did not apply to treatment of detainees (Gonzales 2002). The next day Secretary Rumsfeld issued orders to all commanders to remove GC protections from al Qaeda and Taliban members (U.S. Congress 2008). Secretary of State Colin Powell, who had already been unpleasantly surprised to see his agency kept out of deliberations on the form of the president’s original order concerning detainees, disagreed strongly in a memorandum to Gonzalez, as did his general counsel, William Taft. Their memoranda pointed to the long history of adherence to the GC in all conflicts involving the United States and to the attendant dangers to U.S. personnel who might become prisoners during the conflict if the GC were held to not apply (Powell 2002, Taft 2002). However, on February 7, 2002, after further consultation with Vice President Cheney, President Bush accepted Justice’s position and decided that Taliban and al Qaeda captives were “unlawful combatants,” a classification new to both U.S. and international law, and that the GC did not apply to them. He directed, however, that “the United States Armed Forces


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shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva” (Bush 2002, 106, Mayer 2008).4 In other words, the legal status of Taliban and al Qaeda detainees was redefined by these official orders in a way that made the GC and relevant U.S. laws inapplicable, and, as importantly, undermined existing standard operating procedures for interrogation in both the armed forces and the intelligence agencies. This blurring of established limits, in turn, opened the way for greater discretion concerning questioning to be exercised at all levels. The second phase of the debate concerned the actual techniques that could be used to interrogate unlawful combatants under U.S. and international law. Here the debate turned on the nature of torture itself. The OLC had already cleared more ground with an opinion issued on March 13, 2002. This memo held that the use of “extraordinary rendition” (transferring detainees to countries that used torture) was also not covered by the GC or by the Torture Convention. The more specific question of interrogation techniques was addressed in two more official opinions—the so-called Bybee memos—issued on August 1, 2002, reviewing the question of legal limits on interrogation (U.S. Congress 2009). The first was an unclassified, but not public, opinion written for Gonzales. In it the OLC held that to reach the level of torture an interrogation technique had to intentionally inflict severe pain or mental suffering and that a “level that would be ordinarily associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions” (Bybee 2002a, 115) would alone suffice for torture to occur (U.S. Congress 2008, Mayer 2008). Cruel, inhuman, and degrading techniques, although forbidden by the GC, could be applied to Taliban and al Qaeda detainees since the president had decided (using, in part, the January 22 OLC opinion) that the GC did not apply to them. Moreover, criminal liability did not attach under U.S. law unless such severe pain was inflicted intentionally (Bybee 2002b). In addition, the OLC promulgated a recently unclassified secret opinion requested by Rizzo at the same time that it found that none of the thirteen interrogation techniques (including waterboarding, see table 2.1) then in use by the CIA violated the anti-torture statute (USC title 81, sect. 2340A), whether they were used individually or in combination (Bybee 2002b, U.S. Department of Justice 2009, Pfiffner 2010). Finally, on the same date, Yoo reviewed for Gonzales U.S. treaty obligations under the UN Torture Convention and the so-called Rome Statute concerning jurisdiction over U.S. actions by the International Criminal Court. He concluded that neither treaty applied to the interrogation of al Qaeda operatives (Yoo 2002). Soon afterward Addington, Gonzales, Haynes, and Rizzo visited Guantanamo and suggested several interrogation techniques and incar-


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ceration methods to Major General Michael Dunlaevy, commander of Joint Task Force 170 (JTF 170) conducting intelligence operations there, and his staff. Dunlaevy then requested further directions from his superiors in the chain of command concerning interrogation techniques for use at Guantanamo, where most of the Afghan captives were held. The ultimate result of his request was a confusing set of memoranda from Secretary of Defense Donald Rumsfeld first approving a variety of techniques, including some that all involved parties agreed violated the GC, and then partially rescinding them a month later (Haynes 2002, Rumsfeld 2003a, Mayer 2008, Pfiffner 2010). Subsequently, a Working Group was convened in secret within the Pentagon to consider the requests from Guantanamo. Under Secretary Rumsfeld’s orders, the group conducted a full review of the legality of interrogation techniques requested by the Guantanamo commanders.5 After reference to the Bybee memos, they found that using most of the techniques considered was legal and appropriate and that even those techniques that appeared to skirt the GC could be applied with proper command authority (U.S. Department of Defense 2003, U.S. Congress 2008). In March 2003, at Haynes’ request, Yoo also provided an additional OLC memo to the Department of Defense that reiterated the legal analysis in the unclassified Bybee memo, with some additional expansive caveats (Yoo 2003, U.S. Department of Justice 2009). Rumsfeld subsequently approved the use of most of the techniques mentioned in the Working Group report, though in some cases only if he gave his express approval (Rumsfeld 2003b, Pfiffner 2010). It should be obvious from these descriptions of executive policy decisions that the blurring of formal rules requisite for the formation of informal institutions had taken place by the end of 2002 (Scheppele 2005, Bowker 2006). The improvisation of torturous interrogation techniques was the next step. By late 2002 both armed forces intelligence and the CIA had drawn on prior research and the “reverse engineering” of the interrogation resistance training in the Defense Department’s Joint Personal Recovery Agency (JPRA) Survival, Evasion, Resistance, Escape (SERE) program to develop enhanced techniques in interrogations (McCoy 2006, U.S. Congress 2008, Physicians for Human Rights 2010). The CIA had already begun using some of the techniques in earlier interrogations of Taliban and al Qaeda detainees at the Bagram Air Base prison in Afghanistan and at secret prisons in allied countries (Suskind 2006, Mayer 2007, 2005). At about the same time—the winter of 2002—elements of the 519th Military Intelligence Battalion had also improvised abusive interrogation techniques at Bagram prison (Bazelon 2005). The formal decisions stretching the definition of torture by the Bybee memos and the Working Group recommendations had justified their use in both instances retroactively.


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Initial steps toward building the informal rules used in torturous interrogations were developed in 2002 by the new “Tiger Team” interrogation units created by Major General Geoffrey Miller when he took command of JTF 170 (Taguba 2004a). Interrogators at Guantanamo had also been briefed on interrogation methods by SERE instructors (Benjamin 2006, U.S. Congress 2008). Agents of the CIA and the FBI took part in interrogations at Guantanamo as well, but the FBI soon withdrew over concerns about the legality of the extreme techniques (Schmidt and Furlow 2005, Mayer 2008, Department of Justice 2008). The subsequent abuses of detainees in Afghanistan and at Guantanamo have been well documented (Schmidt and Furlow 2005, Human Rights Watch 2004a, 2004b, Center for Constitutional Rights 2006a, 2006b, Physicians for Human Rights 2005, Mayer 2007). “The more successful we are on the ground, the more these killers will react,” Bush said, Bremer at his side. “The more progress we make on the ground, the more free the Iraqis become, the more electricity is available, the more jobs are available, the more kids are going to school, the more desperate these killers become, because they can’t stand the thought of a free society.” —Partial transcript of a joint press conference by President Bush and CPA administrator Paul Bremer (Ricks 2006, 248)

The Perceived Threat Increases and Torture as an Informal Institution Develops: The War on Terror The driving force behind the adoption of extreme interrogation techniques was an increasing attention to the resulting intelligence at the highest levels of government. The president and vice president, often accompanied by other members of the National Security Council, were briefed daily by representatives of all intelligence agencies and showed deep interest in the results of specific interrogations of al Qaeda and Taliban operatives (Suskind 2006). Although there is no evidence that specific methods of torture were discussed in these initial meetings, there was little need to do so. The officials present, particularly the vice president, deemed it politically important for the president to maintain “plausible deniability” (Suskind 2006). Many of them had firsthand knowledge of the new techniques; they had met at the White House to approve their use for specific interrogations (Human Rights Watch 2005, Scherer and Benjamin 2006, Schmidt and Furlow 2005, Mayer 2008).6 Subsequently, Bush has admitted both to having knowledge of the techniques and to officially approving their use (Greenberg, Rosenberg, and de Vogue 2008, Smith 2010).


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The reason for this increased attention was the second and connected purpose of the War on Terror: to provide the justification for the leadership project providing the cement that held the regime coalition supporting the Bush administration together. The centerpiece of this project was the war on Iraq and, as pointed out above, the war was a great success initially. But problems soon arose. The final admission of a failure to find weapons of mass destruction in any quantity issued in 2004 was an embarrassment for the Bush administration but did not undermine the narrative of democratic change in the Middle East that stood at the center of their justifications for the war (Duefler 2004). What did undermine that narrative and substantially so was the rapid decline of the security situation in Iraq subsequent to the initial military success there. As soon became apparent, British and U.S. forces had not been committed in sufficient numbers to fully occupy—or even patrol—the country. The administrative turmoil accompanying the occupation showed that little attention had been given to postwar planning (Ricks 2006). After some initial bureaucratic infighting with the Department of State, the Department of Defense had been put in charge of the transition to a new government in Iraq. The Office of Reconstruction and Humanitarian Assistance, the original occupation authority, had been intended as a brief transition agency leading to the transfer of power to a provisional government staffed largely by Iraqi exiles. Steps in that direction failed miserably in the face of Iraqi refusal to accept the leadership proposed. The Office was replaced by a new Coalition Provisional Authority (CPA) that would try to restore order, quiet Iraqi protests against being excluded from the transition, and construct an independent Iraqi government (Bremer 2006). However, a series of policy blunders by the CPA—disbanding the Iraqi army, extensive de-Baa’thification, and the privatization of Iraq’s largely nationalized industrial sector without sufficient financial or legal infrastructure in place to support private ownership— placed the entire occupation of Iraq under considerable pressure (Ricks 2006, Galbraith 2006).7 At first, the consequences of these shortcomings were only troubling: increasing levels of crime, widespread looting, extensive unemployment, a general breakdown in public services, and, ominously, small-scale guerrilla attacks on coalition soldiers. One might expect as much in the aftermath of most wars, but by August 2003 the situation had become much more worrying. In that month, car bomb attacks in Baghdad on the Jordanian embassy and United Nations headquarters had killed and wounded scores of Iraqi and foreign nationals. Further coordinated attacks in October on Red Cross headquarters, police stations, and hotels frequented by foreigners in Baghdad made it clear to all involved that a full-scale insurgency


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against the coalition occupation had been launched. The initial success of that insurgency was confirmed when most international organizations and diplomatic missions subsequently withdrew from the country (Ricks 2006). The command response to the situation was to bring the war to the insurgents. That decision, in turn, greatly increased the demand for actionable tactical intelligence (Ricks 2006). This created some further difficulties for both civilians and military commanders. Alert readers will have noticed that, as international law required, detainees taken in the conflict in Iraq were never deprived of GC protections. President Bush’s February 7, 2002 memorandum was quite clear on this point—the order applied only to al Qaeda and Taliban detainees—and it was never superseded. However, as subsequent investigations have made clear, the memorandum itself and subsequent legal opinions drafted by the OLC delineating the limitations of GC protections were both confusing and contradictory (Schlesinger et al. 2004, U.S. Congress 2009). What does it mean to “continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva”? Did the president mean to include all Iraqi detainees as al Qaeda members and thus deprive them of GC protections?8 Unfortunately, the level of uncertainty inherent in that formulation and the approval given for alternative procedures to be used in interrogations, in combination with the new push to obtain operational intelligence that would help quell the insurgency in Iraq, led to a swift deterioration in the limits on interrogation in Iraq. U.S. forces began sweeps of insurgent territory to locate and neutralize insurgent cadres. The method used was mass prophylactic arrests that sent large numbers of detainees into the CPA prison network maintained by the military in Iraq, a prison system already full to the brim with Iraqis charged with common criminal offenses and seriously understaffed in trained corrections and intelligence personnel (Ricks 2006, Schlesinger et al. 2004, Taguba 2004a). It was such a system that now absorbed the expectations of the entire civilian and military command structure of U.S. armed forces concerning the intelligence needed to suppress the insurgency. The gloves are coming off gentlemen concerning these detainees, has made it clear that we want these individuals broken. Casualties are mounting and we need to start gathering info to help protect our fellow soldiers from further attacks. I thank you for your hard work and your dedication. MI ALWAYS OUT FRONT! —E-mail communique from Captain William Ponce to all military interrogators in Iraq (ACLU 2005a, Schumway 2007)


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Those expectations created a situation where an expansion of the use of torture techniques in interrogations as an accommodating informal institution was predictable. For as Iraq slid toward chaos, the public image of American success, an image closely attuned to the leadership narrative adopted as the War on Terror emerged, was relentlessly reiterated by the president and other administration officials. It was clear what the Bush administration wanted from its Iraqi proconsul, Paul Bremer, and its military commanders: victory over the insurgency and a vindication of the strategic vision of a newly democratized Iraq, the first step in changing the Middle East to more closely suit U.S. policy objectives (Suskind 2006, Danner 2004). However, it was as clear to those on the ground that, far from being defeated, the insurgency continued to gain strength throughout 2003 and 2004. In addition, widespread use of ethnic cleansing by sectarian militias had triggered, first, a massive flight by Iraq’s non-sectarian, educated middle class, the supposed leaven for democratic politics there, and, second, the division of the country into sectarian enclaves. (Better than 40 percent of Iraq’s population now consists of external and internal refugees, the direct result of these disorders [Roth and Ekin 2010].) The political settlement so fervidly pursued by the CPA continued to be elusive in such circumstances. But to defeat the insurgency and begin the restoration of order, interrogations had to produce information useful for tactical operations and quickly. Guidelines on how to conduct such interrogations, however, were sadly lacking. Given what were touted as successful intelligence-gathering operations at Guantanamo and the need to greatly increase the flow of military intelligence, Major General Miller and a team from his Guantanamo task force were seconded to Iraq on August 31, 2003, to report on intelligence operations there and propose new methods (Miller 2003, Taguba 2004a). Subsequently in September, a team of JPRA SERE instructors were sent to Iraq to do on-the-job training for armed forces interrogators (U.S. Congress 2008). These were both short missions but had widespread ramifications. As later investigations of the field interrogations conducted by U.S. armed forces revealed, many abuses had already become common practice in some units. With trained interrogators and Arabic interpreters in short supply, Lieutenant General Ricardo Sanchez, the new commander


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While eating at the dining facility at Camp Victory, SPC Mitchell, an MI guard, told an entire table full of laughing soldiers about how the MPs had shown him and other soldiers how to knock someone out and to strike a detainee without leaving marks. They had practiced these techniques on unsuspecting detainees, after watching, he had participated himself. —Prepared Statement (Provance 2006, 4)


in Iraq, had allowed general officers in the field to issue their own orders on field interrogations with highly variable results (Ricks 2006). The situation now threatened to spin out of control, especially when the mass arrests sharply increased the number of detainees, most with no intelligence value and, again, held solely for prophylactic purposes (Jones and Fay 2004, ICRC 2004).9 Major General Miller’s mission made several suggestions in their final report to Sanchez, all based on Miller’s Guantanamo innovations: establishing a Joint Interrogation Debriefing Center (JIDC) to control interrogations and collate intelligence, using military police in cooperation with military and “other agency” (CIA) intelligence interrogators, using Tiger Team interrogation units, and reviewing the legal aspects of interrogations in Iraq (Miller 2003, Taguba 2004a, Jones and Fay 2004, U.S. Congress 2008). As Helmke and Levitsky might have predicted, these suggestions were reinforced by verbal briefings and training documents concerning the kinds of interrogation techniques used at Guantanamo promulgated by a follow-up team dispatched by Miller soon afterward and by the JPRA instructors mission (Jones and Fay 2004, Public Broadcasting System 2005b, U.S. Congress 2008). Subsequently, Lieutenant General Sanchez issued policies authorizing several of the Guantanamo interrogation practices (Danner 2004, Human Rights Watch 2005). Sanchez had been under considerable pressure, including frequent teleconferences with an increasingly impatient secretary of defense, a pressure he redirected down the line to his military intelligence chief, Colonel Thomas Pappas (Human Rights Watch 2005, Public Broadcasting System 2005b, Danner 2004). A 2003 visit to Abu Ghraib by Fran Townsend, a high-ranking member of Condoleezza Rice’s National Security Council staff, reinforced these pressures directly (Pfiffner 2008). Soon new teams of interrogators, dominated by civilian contractors and prescreened by Miller, were arriving at Abu Ghraib to join others already experienced in similar techniques (Jones and Fay 2004, Public Broadcasting System 2005b).10 Since intelligence at Abu Ghraib was handled initially by elements of the same 519th Military Intelligence Battalion that had already extemporized extreme techniques at Bagram the year before, the transition was an easy one, again driven by word-of-mouth transfers of advice and interrogation techniques (Jones and Fay 2004). Soon a hodgepodge of poorly trained, understaffed military intelligence and police units and civilian interrogator teams, without clear lines of command or responsibility, cooperating with CIA operatives and under tremendous pressure to produce actionable data, were taking the lead in creatively expanding the envelop of interrogation techniques to the elaborations found in table 2.1 (Danner 2004, Ricks 2006).


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Yezhov: Why are you acting so indecisively in the arrests of the enemies of the people? Piller von Pilkhau: We have arrested whoever needed to be arrested. Yezhov: Yes, but these are isolated individuals, and they aren’t the kind of people that constitute a real danger. Here, read through this list. Pillar von Pilkhau: As far as I know, there is no proof that these people are engaged in hostile activities. How can you arrest people, and, moreover, communists who hold important posts in the party, the government, or in the Red Army without any legal basis? Yezhov: Without what kind of basis? Pillar von Pilkhau: A legal basis. Yezhov: Take this list. In three days, I will check your work. —Conversation between Nikolai Yezhov, people’s commissar of the NKVD, and Roman Piliar von Pilkhau, head of the Saratov region NKVD. Pillar von Pilkhau himself was arrested soon afterward (Starkov 1993, 31) Isn’t it time to squeeze this gentleman and make him tell about his dirty deeds? Where is he, in prison or in a hotel? —Handwritten note from Joseph Stalin to Nikolai Yezhov (Starkov 1993, 29)

The Project Matures, Threats Emerge, and Elites React: The Stalinist Terror In 1934, with the economic situation in the Soviet Union somewhat better, there was a perceptible thaw in the legal air. Instructions were issued by the Politburo restricting the use of the notoriously severe laws protecting “social property” and mass arrests were curtailed (Benvenuti 1997, Getty and Naumov 1999). Also, an All-Union Procuracy for overseeing courts and police was established and, at Stalin’s suggestion, a new All-Union security agency, the People’s Commissariat of Internal Affairs (NKVD), was created. This new bureau reconstituted the Joint State Political Directorate (OGPU), the state security agency, as the Main Directorate of State Security (GUGB) and combined it with the state militia (the police), border guards, and a host of other functionaries (Benvenuti 1997, Thurston 1996). In the process, the administrative troikas (triumvirates) and the special “colleges” the OGPU used to independently sentence people for criminal offenses and for deportation were eliminated and their jurisdiction transferred to


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Torture as an Accommodating Informal Institution in the Soviet Union


civilian and military courts (Benvenuti 1997, Thurston 1996). The new NKVD had been recast as an investigative and security agency overseen by the Procuracy, much to the chagrin of its new people’s commissar, the former head of the OGPU, Genrikh Yagoda (Benvenuti 1997). This situation was not to last, however. First, although some restraints on the NKVD had been introduced, the level of social disorder in the country as a whole required the new agency to use administrative discretion to carry out mass arrests to deport “socially harmful elements”—criminals, those without proper identification, professional beggars—from the cities (Shearer 2003, Hagenloh 2009). Given the limited resources and manpower of the NKVD and the militia and the constant organizational and demographic upheavals accompanying the introduction of a planned economy, shifting over to more normal police operations was simply not feasible. Yagoda continued to press for a reduction of oversight based on the success of these “mass operations” and the resulting reductions of crime rates, but without success (Shearer 2003, Shearer 2009). Getting the NKVD entirely out of the business of suppressing social unrest, however, was impossible; the country was still in deep turmoil and, by then, the use of mass arrests to combat it had become organizationally embedded (Hagenloh 2009). The second development was more ominous. On December 1, 1934, Sergei Kirov, the general secretary of the Leningrad party organization and a Politburo member, was assassinated by a disgruntled (and, perhaps, mentally disturbed) party member, Leonid Nikolaev. Although controversy continues about the genesis and cause of this murder, there is no controversy about its results for the budding legal reforms: it stopped them dead in their tracks.11 Aboard the train to Leningrad on the day of the murder, Stalin composed a new extraordinary law aimed at terrorist organizations. The law ordered that all investigations of such activity be completed within 10 days and that all cases be sent to court to be heard without either defense or prosecution attorneys present. No appeals of the decisions were permitted and the death penalty could be applied (Thurston 1996, Getty and Naumov 1999). In a stroke, the limitations that had been evolving were eliminated. The new law was applied quickly to Zinoviev, Kamenev, and many of their old comrades. They were accused of operating a terrorist “center” (the first of many supposedly found in this period) in cooperation with Trotsky and of complicity in Kirov’s death. Since the NKVD was unable to substantiate the murder charges, both of the old opposition leaders were sentenced to substantial prison terms after a speedy trial (Thurston 1996).12 However, when Nikolai Yezhov, the secretary of the Central Committee and head of the Party Control Commission, reported to the Central Committee in 1936 that party purges, although involving nothing more than an exchange of party cards, had led to the expulsion


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of fully 17.7 percent of all party members as former “White Guards” (czarist soldiers or officials), disguised kulaks, petty criminals, and, most ominously, as spies for the intelligence agencies of fascist and “imperialist” governments or as “Trotskyite–Zinovievite” adherents with close ties to them, the elite of the party was deeply concerned (Jansen and Petrov 2002, Getty and Naumov 1999). No wonder there was intense interest in the ongoing NKVD investigations of underground activity. During all of this, and despite a horrendous history of torture of the state’s enemies in the civil war by the NKVD’s predecessors, there was no systematic use of torture by the “competent organs.” Criminal suspects and kulaks could expect to be roughed up (and sometimes much worse) during arrest, interrogation, and deportation (Conquest 1990).13 Some defendants in the early show trials of 1928–1930 were subjected to threats, sleep deprivation, and, in some cases, beatings as part of their interrogation if they showed reluctance to confess to their offenses (Conquest 1990, Solzhenitsyn 1973). However, such action was against regulations unless sanctioned by signed orders from the proper authorities and was sporadic as a consequence (Conquest 1990, Solzhenitsyn 1973). This soon changed. As a result of further investigations, Zinoviev and Kamenev were brought to Moscow to be put on trial for their lives, along with 14 codefendants (Hostettler 2003). Interrogation was put in the hands of the NKVD with expectations of further revelations of conspiracies against the regime. This caused some distress among their interrogators; after all, the lead defendants were longtime party members, close comrades of Lenin himself, and had held leadership positions in the party. Also, Yagoda had issued orders that interrogations were to proceed without threats or physical abuse of any kind (Orlov 1953, Jansen and Petrov 2002). But such a course became increasingly difficult to sustain. Though Zinoviev and Kamenev had been indiscreet in their conversations and letters, there was no direct evidence that the defendants had done anything like the crimes they were accused of. However, Stalin, his suspicions fully aroused by recent events and intelligence reports from both Yezhov (who had been given new investigative duties) and Yagoda, decided that an example needed to be made and the supposed terrorist conspiracy against his leadership eliminated (Thurston 1996, Getty and Naumov 1999). He was soon pressing Yagoda for the confessions that would substantiate the case being built around the “conspirators.” As these pressures mounted, the barriers against the NKVD using physical pressure on party cadres buckled and, finally, broke. Interrogators using more forceful methods seemed to be getting results and their methods were slowly adopted by many of their peers (Orlov 1953). A show trial for Zinoviev and Kamenev in August 1936 featured their confessions and ended in their conviction


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on charges based on the newly amended Article 58 of the revised Criminal Code (Hostettler 2003).14 Their deaths soon followed. Again, we see the blurring of institutional boundaries Helmke and Levitsky predict. In this case, of course, the process was much easier since the boundaries themselves were so permeable. The Stalinist leadership had never wholeheartedly embraced limitations on the administrative use of repression, despite the reform of the security organs and the renewed emphasis on “socialist legality” (Benvenuti 1997, Thurston 1996). While legal restraints on some NKVD activity had continued, the murder of Kirov and the promulgation of the December 1 law, along with the continuation of limited mass arrests, had undermined further efforts to establish legal constraints. Revisions to the already infamously vague Article 58 of the Penal Code earlier in 1934 before Kirov’s assassination had increased the scope of criminalized “counter-revolutionary” activity as well. These formal decisions by Stalin and the party leadership had laid the groundwork for a return to widespread repression (Hostettler 2003, Solzhenitsyn 1973). Both the leadership and the party had been deeply shocked by Kirov’s murder and a new atmosphere of diligent self-defense resulted (Getty and Naumov 1999). Although Zinoviev and Kamenev were probably never involved in anything more than clandestine discussions of politics, there had, in fact, been contacts between their followers and Trotsky during the recent past, contacts that they had lied about to their interrogators (Thurston 1996). Finally, the international position of the Soviet Union had substantially deteriorated. By 1936 the Soviet government was wary of the increasingly aggressive and virulently anticommunist fascist regimes in Germany and Italy. The efficient German and Polish intelligence services occasioned special concern; the NKVD continuously warned the leadership of subversive activities by foreign agents among the substantial German and Polish ethnic populations in the Soviet Union (Harris 2010).15 With hostile neighbors, no firm allies, and faced with a League of Nations quiescent in the face of fascist aggression, the Stalinist leadership felt that war with powerful and ruthless enemies was a growing threat (Tucker 1990, Thurston 1996, Shearer 2009). This crisis atmosphere in elite circles had much the same effect in the party as it did 70 years later in the United States. It generated almost irresistible pressure from the highest levels of leadership to root out a clandestine conspiracy that threatened to undermine the nation’s security and to leave concerns about the niceties of the methods used to another day. We must bear in mind that the growth of the power of the Soviet state will increase the resistance of the last remnants of the dying classes. It is precisely because they are dying, and living their last days that they


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will pass from one form of attack to another, to sharper forms of attack, appealing to the backward strata of the population, and mobilizing them against the Soviet power. There is no foul lie or slander that these “havebeens” would not use against the Soviet power and around which they would not try to mobilize the backward elements. ... Of course, there is nothing terrible in this. But we must bear all this in mind if we want to put an end to these elements quickly and without great loss. —Joseph Stalin, Report to Joint Plenum of the Central Committee and the Central Control Commission of the CPSU (Stalin 1976, 627)

The Perceived Threat Increases and Torture as an Informal Institution Develops: The Stalinist Terror The trial of Zinoviev and Kamenev shocked both elites and the population as a whole; it seemed that the government had been severely compromised by a combination of foreign and Trotskyite intriguers (Thurston 1996, Getty and Naumov 1999). In 1936, this public undermining of the party’s unanimity combined with the continuing disorders in the raw new cities thrown up by the Five-Year Plans and a sudden slowdown in economic growth to severely strain the Stalinist leadership (Manning 1993, Shearer 2003, Shearer 2009). If the suppression of opposition and frogmarching the country into a planned economy produced only continuing and, apparently, increasing social disruption, the mastic that allowed the Stalinist regime to overcome its orthodox innovator roots and push the “StalinistLeninist” social project forward might dissolve. Stalin took action soon after the August 1936 show trial to insure this would not happen, moving his protégé Yezhov into Yagoda’s position as people’s commissar of the NKVD (Thurston 1996, Jansen and Petrov 2002). This personnel move had as profound an effect on the NKVD and its use of torture in interrogations as the mission of Major General Miller to evaluate military intelligence had on interrogations in Iraq. As has already been mentioned, Yezhov had been in charge of conducting party purges in his position as chairman of the Party Control Commission (Starkov 1993, Thurston 1996). Also, Stalin had used Yezhov in a series of missions aimed at investigating the work of the NKVD after Kirov’s murder; indeed, Yezhov, not Yagoda, had been in charge of the actual investigation of the murder itself (Starkov 1993, Jansen and Petrov 2002). By the summer of 1936, Yezhov was directing widespread NKVD investigations into suspected conspiracies (Starkov 1993, Getty and Naumov 1999). Replacing Yagoda meant a great opportunity for him, so long as his investigations


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bore fruit and quickly. Yezhov immediately moved to purge Yagoda’s favorites and appointees from the NKVD and put the organization on notice that a new and firmer hand was at the wheel (Starkov 1993, Jansen and Petrov 2002). What followed was, perhaps, inevitable. In December 1936, Yezhov brought charges of treasonous activities against a second group of prominent Soviet leaders, all former adherents of the Left Opposition. In January 1937, Georgy Pyatakov, deputy people’s commissar for Heavy Industry, Karl Radek, a former head of Comintern, and 15 others were tried and convicted, again using Article 58 (Hostettler 2003, Thurston 1996). Pyatakov’s superior at Heavy Industry, Gregory “Sergo” Ordzhonikidze, died, perhaps by his own hand, soon afterward (Thurston 1996). Still, there was no sudden increase in administrative repression overall at this juncture. In part this may be because of the mixed signals from the leadership. Stalin, in particular, seemed of two minds. He continued to call for increased vigilance and obviously supported—indeed, he had directed—Yezhov’s increasing intrusions in the party’s business (Thurston 1996, Khlevniuk 2003, Jansen and Petrov 2002). By the same token, however, he also continued to caution against hasty judgments about party members and continually shied away from publicaly supporting draconian punishments and mass operations (Thurston 1996, Getty and Naumov 1999). The February–March 1937 Plenum meeting of the Central Committee, however, sent ominous signals. The Plenum began with a speech by Yezhov accusing Bukharin and Rykov and other former members of the Right Deviationists of a wide-ranging conspiracy against the Soviet government. The hairraising nature of Yezhov’s speech, conjuring up vast clandestine organizations directed by trusted leaders of the party, was sobering, especially since it was obvious that Stalin believed the allegations. Both Bukharin and Rykov were expelled from the party and arrested at the meeting (Getty and Naumov 1999, Jansen and Petrov 2002). The Plenum was followed by what Getty and Naumov (1999, 444) rightly call “The Explosion.” In May 1937, Yezhov’s agents, acting on confessions tortured out of several Red Army officers in custody for supposed Trotskyite leanings, arrested Field Marshal Mikhail Tukhachevsky and his closest associates, Generals August Kork, Iona Yakir, and Ieronim Uborevich, along with several other senior officers. After being tortured themselves (Tukhachevsky’s confession reportedly was found in the archives stained with blood), all the defendants were tried and executed (Thurston 1996, Getty and Naumov 1999).16 Subsequently in July, the Politburo approved the NKVD’s Order 00447, establishing new administrative troikas for the NKVD and ordering the agency to arrest and try “former kulaks, criminals and other anti-Soviet elements” using “simplified procedures.” Those found to be “the most active” were to be shot; others were to be imprisoned for 8 to 10 years. The order included a list of limits


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“A Chekist must not only be a good investigator, but a politician as well,” said Molchanov significantly. “He must be able to judge what concerns him and what does not, what has been written for him and what was written for political reasons.” “How could we know?” said one of the investigators. “The circular was signed by the People’s Commissar himself and addressed directly to us.” “Now you know!” retorted Molchanov. “I am telling you officially in the name of the People’s Commissar: Go back to your prisoners and give them the works.” —Georgy Molchanov, head of the Secret Political Department of the GUGB, to NKVD interrogators concerning interpretation of a 1936 circular from Genrikh Yagoda forbidding the use of physical threats against prisoners (Orlov 1953, 73–74)17

As in the United States later, the Stalinist leadership clung tenaciously to the leadership narrative it had developed. The sudden turn to widespread administrative repression was portrayed as a necessary step to protect the country’s national security from a new category of villain, the “enemies of the people” (Fitzpatrick 1999). Further, it was clear what Stalin wanted from the NKVD: he wanted opposition to the regime pulled up by the roots and destroyed. Only that would vindicate the course he had set the state on and maintain the political mechanisms needed to solidify his leadership and the party’s “leading role” in the new Soviet Union. The whole process of unmasking enemies and scapegoating regime opponents helped distract mass attention from the obvious problems that still faced “socialist construction” (Fitzpatrick 1999, Chase 2005). The demands on the NKVD for arrest, investigation, and trial of the enemies of the people escalated at once (Fitzpatrick 1999, Solzhenitsyn 1973). The Terror proceeded on two tracks: a continuing purge of “Oppositionists” of one kind or another and their supposed allies in the party itself and mass prophylactic arrests aimed at suppressing potentially disloyal groups (suspect ethnic minorities, White Guards, kulaks) in the population and restoring order by indiscriminate arrests of socially harmful elements (criminals, beggars, displaced persons) (Shearer 2003, Shearer 2009, Hagenloh 2009). The result replicated, albeit on a much larger scale, the later experience of the United States in Iraq: grossly overcrowded prisons and drastically overextended intelligence operatives commanded to quickly extract a largely fictitious stream of information from largely innocent prisoners. It will be recalled that Yezhov had replaced most of the experienced investigators and NKVD officials that Yagoda had slowly


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on executions totaling more than 72,000 people (Getty and Naumov 1999, 473–480). The Stalinist Terror had begun.


built up during his tenure. Now, faced with directives calling for mass arrests—the official number of arrests in 1937–1938 was 1,575,259—and administrative trials based predominantly on confessions, the NKVD had to quickly ramp up the personnel needed (Getty and Naumov 1999, Jansen and Petrov 2002). As in Iraq, the result was an immense influx of quickly trained, inexperienced interrogators and investigators all under immense pressure from the leadership of both the NKVD and the government to arrest, convict, and either imprison or execute vast numbers of the government’s enemies (Starkov 1993, Thurston 1996, Jansen and Petrov 2002). The simplified procedures used by the troiki favored confessions; developing cases based on actual evidence took time and, in most cases, the accused had not actually done anything illegal, even under the lax standards of Article 58 (Solzhenitsyn 1973, Jansen and Petrov 2002). The history of how the practice of torture metastasized in the ranks of the NKVD is not as detailed as the records on the War on Terror available to us from U.S. sources; the NKVD was not overseen by a judge advocate general’s corps, under investigation by an independent CID or CIS, or subject to a Freedom of Information Act. What we do know, however, indicates that Yezhov solved the problem of expediting investigations under Order 00447 by abolishing the already weakened constraints in the NKVD on torture. As in Iraq, this was done informally and secretly. Yeshov himself set an example by participating in interrogations where prisoners were severely beaten by NKVD “bone-breakers,” as the specialists in torture were known (Starkov 1993, Jansen and Petrov 2002). He also had memoranda concerning “progressive experiments” in interrogation techniques circulated (Starkov 1993). Yezhov’s new recruits, knowing little or nothing about how to conduct a sophisticated interrogation, took the commissar as a template for their own work and began, like their U.S. counterparts later, to experiment on their own. Soon the use of torture as an interrogation technique had generalized throughout the entire NKVD network; the interrogators were already convinced that the defendants were guilty and Yezhov, whose reputation as a defender of the socialist state was very high at the time, had shown them the way forward (Starkov 1993). Indeed, Solzhenitsyn’s sarcastic comment that NKVD interrogators “learned from the most successful workers” about torture methods is probably very close to the mark (Solzhenitsyn 1973, 102). With the zeal of local troiki for exceeding the limits set by Moscow and Stalin’s reluctance to give specific direction to the entire enterprise, combined with his continuing insistence that it was necessary to mercilessly crush opposition elements in Soviet society, the stage was set for the widespread establishment of the use of torture as an accommodating informal institution (Thurston 1996, Getty and Naumov 1999).


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The terrorists who declared war on America represent no nation, they defend no territory, and they wear no uniform. They do not mass armies on borders, or flotillas of warships on the high seas. They operate in the shadows of society; they send small teams of operatives to infiltrate free nations; they live quietly among their victims; they conspire in secret, and then they strike without warning. In this new war, the most important source of information on where the terrorists are hiding and what they are planning is the terrorists, themselves. Captured terrorists have unique knowledge about how terrorist networks operate. ... As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures. These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful. I cannot describe the specific methods used—I think you understand why—if I did, it would help the terrorists learn how to resist questioning, and to keep information from us that we need to prevent new attacks on our country. But I can say the procedures were tough, and they were safe, and lawful, and necessary. —President George W. Bush, Speech on September 6, 2006 (Bush 2006)

Reaction and Accommodation to Torture: The War on Terror When the initial revelations about detainee abuses in Iraq surfaced publicly on April 28 and 30, 2004, the Bush administration faced a major strategic crisis. Criminal investigations had already been launched by the army in January of that year when Specialist Joseph Darby had passed photographic evidence of abuses in the Hard Site at Abu Ghraib to the army’s CID. Subsequently, the Taguba and Jones-Fay Reports had already shown how extensive the use of extreme interrogation techniques had become and how completely discipline had collapsed as the informal institutions accommodating torture and abuse became established (Taguba 2004a, Jones and Fay 2004).18 But these investigations had been classified and were conducted under military law, conditions that could have made handling disposition of the entire matter within the military’s command structure easy enough. Having pictures of detainee abuse and summaries of the investigative reports broadcast through national and international media outlets presented a qualitatively different problem. Recalling Helmke and Levitsky again, informal institutions are often “created by actors who dislike outcomes generated by the formal rules but are unable to change or openly violate those rules” (Helmke and Levitsky


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Informal Institutions and Formal Precedents


2004, 729). This is often done in situations where goals unacceptable to either national or international publics are concerned. The administration’s response was a classic example of handling the consequences of an accommodating informal institution when it is exposed. First, the premise of criticisms based on the revelations was denied. Here the initial legal obfuscations deriving from the secret debate concerning torture proved useful. By depending on the narrow definitions of torture and the expansive view of the president’s authority concerning interrogation methods contained in the OLC memos promulgated by the Department of Justice, administration officials simply denied that the extreme interrogation methods used in Guantanamo Bay, Afghanistan, and Iraq rose to the level of torture (Scheppele 2005). This line of defense was quite successful in constraining media coverage of the scandal and confounding popular discourse concerning torturous interrogation techniques (Desai et al. 2010). However, it became more tenuous over time as the American Civil Liberties Union (ACLU) and other organizations pressed Freedom of Information Act (FOIA) requests through government bureaucracies and, where necessary, the courts. FOIA documents soon revealed wide swaths of data concerning the extent and variety of techniques used that called the United States’ adherence to the GC into question, especially as far as cruel, inhuman, and degrading treatment was concerned. Although the question of torture never became a major campaign issue in 2004, that the revelations came in the midst of a hotly contested presidential election campaign did nothing to make the administration’s position on these questions easier to defend. Subsequent events did little to relieve this pressure. Guantanamo had been carefully selected to make it difficult for writs from federal courts to run there. In addition, the CIA had established a series of secret “dark site” prisons in third countries that had been intended to allow unrestrained questioning of “high value” detainees in the War on Terror (Mayer 2007). Although the existence of the CIA prisons was not revealed until later, the Supreme Court’s decisions in 2004 put the first chink in the administration’s position concerning detainees at Guantanamo. On June 29, the Court issued opinions in two important cases, Rasul v. Bush (542 US 466) and Hamdi v. Rumsfeld (542 US 507). In Rasul the Court held that U.S. courts had jurisdiction to hear cases rising from the detention of foreign nationals at Guantanamo; in Hamdi that a U.S. citizen (Hamdi was a citizen) could not be held without due process rights at Guantanamo simply because the government had declared him an unlawful combatant. Although limited in scope—Rasul was a strictly jurisdictional matter and Hamdi’s citizenship made his case unique among Guantanamo inmates—these two cases began to stir hopes among those representing detainees and apprehension in the administration. The decision by the new OLC chief, Jack Goldsmith,


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to withdraw the Yoo memo sent to the Department of Defense in 2003 and subsequently the unclassified August 2002 Bybee memo further decayed the atmosphere around detainee interrogations (Goldsmith 2007).19 A replacement for the unclassified Bybee memo was finally finished by Dan Levin, Goldsmith’s immediate replacement; it withdrew several controversial aspects of the original (the defense of unitary executive ideas, for instance) while upholding most of its conclusions. Subsequently, three classified opinions were issued in May of 2005 by Levin’s replacement, Steven Bradbury, that again sustained the interrogation procedures already in place. All interrogation techniques, including waterboarding (see table 2.1 for a description), were again approved both individually and in combination. Even the cruel, inhuman, and degrading standard of Article 16 of the GC was held not to be violated, under U.S. law (U.S. Congress 2008, U.S. Department of Justice 2009).20 Although the Detainee Treatment Act (DTA), passed in December 2005, addressed the entire question of compliance with Article 16 in ways that seemed to restrict the use of extreme techniques, it was received with equanimity by the administration. The new OLC classified opinions had carefully defined the torture practices established in 2002 to avoid the strictures in the DTA. But in June 2006, the Supreme Court’s decision in Hamdan v. Rumsfeld (548 US 557) further undermined the legal distinctions that had been used in this line of defense (Lederman 2006a). In Hamdan the Court decided that Common Article 3 of the GC, forbidding not only torture but also cruel, inhuman, and degrading treatment, not only applied to detainees the administration deemed unlawful combatants but was also enforceable in federal courts as part of U.S. treaty obligations. Since violations of Common Article 3 are criminalized under the War Crimes Act, the Court’s decision called the entire framework used for extreme interrogation of al Qaeda and Taliban detainees into question (Lederman 2006a). Hamdan led to a second line of defense by the administration later that year that also fits well in Helmke and Levitsky’s framework. On September 6, 2006, President Bush, at the end of a long internal debate concerning the interrogation techniques and detention responsibilities of the CIA, admitted the existence of the CIA’s secret prison network and proposed new legislation to give legal sanction to the existing interrogation procedures (Liptak 2006, Linzer and Kessler 2006). In his speech on that day, the president admitted that the CIA had been using what he referred to as “an alternative set of procedures” for interrogating al Qaeda and Taliban operatives held in the dark sites. He proposed new legislation that, among other objectives, would allow the alternative procedures to continue in use by the CIA and the reestablishment of secret prisons by the agency should future situations warrant it (Liptak 2006, Lederman 2006b).


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There would also be amendments made to the War Crimes Act to provide affirmative defenses to CIA operatives using the techniques, to limit the scope of the application of Common Article 3 of the GC to extreme interrogation techniques, to allow the president to interpret U.S. obligations under the GC, and to limit or eliminate judicial review of cases stemming from their use (Lederman 2006c). On the same day, the U.S. Army issued a new field manual for interrogations that contained a schedule that specifically forbade the use of many of the abusive techniques discovered in investigations in Afghanistan and Iraq and reinforced adherence to the GC in all armed forces intelligence gathering (Barnes 2006). The proposed Military Commissions Act (MCA) was passed in December 2006. In July 2007, President Bush issued an executive order vaguely defining the scope of the alternative procedures allowed to the CIA, accompanied by another classified OLC opinion by Bradbury holding that Congress’s deliberations concerning the MCA had shown that the CIA interrogation program (with the possible exception of waterboarding) had been examined and was still valid under the 2005 OLC opinions. These actions went some way to solidifying a legal space for continuing the use of torture as an accommodating informal institution (Lederman 2007, U.S. Department of Justice 2009).21 Here, again, we see a vindication of Helmke and Levitsky’s (2004) approach; as they point out, one of the quickest ways to effect institutional change to solidify the benefits of informal institutions is to change the formal rules after the fact to give legal sanction to informal behavior. The Central Committee of the VKP(b) explains that the application of methods of physical pressure in NKVD practice was made permissible in 1937 ... It is known that all bourgeois intelligence services use methods of physical influence against the representatives of the socialist proletariat and they use them in the most scandalous forms. The question arises as to why the socialist intelligence service should be more humane against the fanatical agents of the bourgeoisie, against the deadly enemies of the working class and the kolholz peasants. The Central Committee considers that physical pressure should still be used unconditionally, as an appropriate and justifiable method, in exceptional cases against known and obstinate enemies of the people. —Secret telegram sent by the Central Committee to all party and NKVD units from district level up, January 10, 1939 (Khlevniuk 2003, 31)

Reaction and Accommodation to Torture: The Stalinist Terror The highpoint of Yezhov’s influence was probably the March 1938 show trial of Bukarin, Rykov, Yagoda, and 17 others (Hostettler 2003,


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Solzhenitsyn 1973). But the effect of the toll taken by almost 700,000 executions in less then two years, executions that in most cases were based on little or no real evidence, had begun to wear on both the party and the general population (Getty and Naumov 1999, Fitzpatrick 1999). The bulk of the executions had, in fact, been of particular classes of ordinary citizens: kulaks, “foreigners,” socially harmful elements, and the like (McLoughlin 2003). Still, the large numbers of party members killed for having only a passing acquaintance with the opposition had a chilling effect on the remaining cadres. Also, the unseemly competition between NKVD units to stretch the limits placed on executions enraged party members (Getty and Naumov 1999). Indeed, it was this translation of ideological zeal into requests for new arrest and execution quotas that led the Terror to extend far past the four-month time limit originally set for the operations in Order 00447. The attendant delays could not have set well (Getty and Naumov 1999, Jansen and Petrov 2002). The clearest signal of coming change, one that must have given Yezhov pause as he remembered his own career, was Stalin’s appointment of Lavrentiy Beria as Yezhov’s deputy in November 1938. Though Beria had considerable experience as a Chekist, he was an outsider to the central NKVD leadership and most recently had been head of the party in Georgia. In the summer of 1938, Yezhov’s protégé, Genrikh Lyushkov, head of the Far Eastern branch of the NKVD, defected to Japan and Aleksandr Orlov, the NKVD’s head of Spanish operations, to the United States. As a result, Yezhov’s credibility with the Stalinist leadership faltered (Jansen and Petrov 2002). Beria was obviously brought in to give Stalin another set of eyes inside the organization (Getty and Naumov 1999). Not long afterward, the Politburo issued a secret directive severely criticizing the NKVD, suspending mass arrests, abolishing the troiki, and calling for a return to legal procedure, overseen by the Procuracy (Getty and Naumov 1999). Yezhov’s replacement by Beria soon followed. Yezhov himself was arrested in early 1939, tried and convicted, and, finally, shot in 1940 (Starkov 1993, Jansen and Petrov 2002). Again the sequence laid out by Helmke and Levitsky was followed. The regime vehemently denied that torture had become commonplace or that the NKVD had exceeded its authority. Instead, the emphasis, at least for party members, was on the “excesses” of overzealous NKVD cadres during Yezhov’s tenure in office (Getty and Naumov 1999, Jansen and Petrov 2002). Once the decision had been made to rein in the security agencies, it proved fairly easy to do so. The tools were similar to those used later by the Bush administration as well. Since Stalin had no need to fear journalistic inquiries into the leadership’s actions, no allegations of abuse were allowed to reach the general public, though, of course, the dangers of crossing the


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government were by then well known, especially in party circles. Given the targeted nature of the arrests and the constant propaganda about the evil nature of the enemies of the people, there appeared to be public acceptance of the necessity of the terror (Thurston 1996, Fitzpatrick 1999). The party elite was placated by assurances that the NKVD had done great things in ridding the country of enemies, but it had not shown sufficient care for legal procedure in doing so (Getty and Naumov 1999, Getty 2002). When regional party and NKVD organizations began to bring charges against some of the more notorious torturers, the Central Committee sent the secret telegram excerpted above explaining that a decision had been made in 1937 allowing “physical pressure” in “exceptional cases against known and obstinate enemies of the people” (Khlevniuk 2003, 31). This exercise of executive discretion both kept the option of using torture in interrogations open and allowed the leadership and the party to begin to reassert control over the NKVD through calling for a return to sanctioned norms, albeit more flexible ones (Khlevniuk 2003). As is often the case in such instances, this proved extremely hard to do. Torture never returned to the level reached during the Stalinist Terror, but it had taken deep root in the security agencies and their new chief, Beria, was definitely not going to cross Stalin to uproot it. As Rejali (2007) points out, once torturers become an integral part of any official organization they have a tendency to hive themselves off from chains of command and continue their practices. The idea of torture as a tool of interrogation cannot be laid down by these operatives without undermining their view of themselves as selfless protectors of their society’s security. Obviously, this is sometimes a disguise for having acquired a taste for torture, but for many it was a sincere disagreement with the orders to put the restraints in place. It took courts martial to control torturers in France; it took Stalin’s death and a major regime change to even slow it down in the Soviet Union.


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The Mechanism Fails: The United States and the Mexican War

A

s I pointed out in chapter two, there are real risks in presenting evidence where the proposed causal mechanisms always work. The main problem is connected to proving causation in the first place. In experimental studies, the first requirement for an adequate design is an initial assignment of cases to either treatment or control groups using either random assignment or a matching procedure. Subsequent comparative measurement of treatment effects in relation to observation of control cases allows the efficacy of the explanation to be assessed (Blalock 1964). Such a comparison is not available for a comparative qualitative analysis of historical narratives such as the one I am presenting here. That does not mean, however, that the basic logic of quantitative research designs can be ignored in studies like this one. As I mentioned earlier, a basic weakness of many qualitative studies is the error of selecting cases on the dependent variable. This strategy is understandable; picking those cases that fit an explanation seems an obvious strategy if the data is limited and the exposition lengthy. However, doing so limits the explanatory power of the mechanisms used. The reason for this is simple enough: it deprives the study involved of any semblance of controls. Unless there are instances of similar cases that contain some of the causative elements of the explanatory mechanisms and where the expected behavior does not appear, we cannot be too sure what the cases where the mechanisms succeed are actually telling us (King and Powell 2008). In this chapter I will try to partially overcome this difficulty by writing just such a narrative about just such a case: the United States during the Mexican War. During the administration of James K. Polk, a prototypical


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5


orthodox-innovator president, many of the same initial conditions I have described were present. The country was facing a political crisis on two fronts: a possible war with Great Britain over the Oregon territory (present day Oregon, Washington, and British Columbia) and another with Mexico over the annexation of Texas, a territory that had declared independence but was still claimed by Mexico. In addition, as we shall see, the Polk administration also faced a variety of domestic issues left over from the time of Andrew Jackson, issues that had almost led to the dissolution of the union then and that now threatened to destroy the precarious political coalition Polk inherited. His solution was to give form to the expansionist sentiments of the time by pushing both situations to the brink of conflict. The Oregon question was settled peacefully, but a “war of choice” arose with Mexico. That war greatly enhanced the administration’s projects for a while but, like the war in Iraq, threatened to destroy the new narrative used by Polk to create the political unity needed to realize the remaining domestic goals of his administration. As I will show, the nearly uniform record of victory by United States armed forces in the war and the extremely successful strategy adopted to overcome irregular resistance in Mexico resulted in a situation where the lack of a viable perceived threat of successful violent clandestine opposition meant that the informal institutions necessary for torture never became established. That, as we shall see in the next chapter, had the paradoxical result that the regime narrative lost some of its power to insure political unity and silence opponents. Political Time and the Politics of Definition in the United States: Jackson’s Legacy I do not yet dispair [sic] of the republic. I shall live to see the day, when virtue shall resume its former empire in the cousels [sic] of the nation; when the public good will be the sole end & aim of the Legislatures of the Union; when our national character will no longer be stained ... Virtue, I trust, will once more rise from her lethargy & dispel those corruptions. —Andrew Jackson, letter to Senator John Branch, 1828 (Burstein 2003, 169). He had lived his whole life in plain sight of the public and the people, hiding nothing, simulating nothing, confessing nothing, extenuating nothing, and regretting nothing—except that he could never get a chance to shoot [Henry] Clay or hang [John C.] Calhoun. —Attributed to Andrew Jackson in a conversation with friends after the inauguration of Martin Van Buren, 1837 (Buell 1904, 363. The first names of Clay and Calhoun are added here.)


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THE UNITED STATES AND THE MEXICAN WAR

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One would be hard-pressed to find a figure in U.S. history who more thoroughly fits Skowronek’s image of a “great repudiator” than Andrew Jackson. When Jackson stormed into the presidency in 1829, he represented a variety of rising and frustrated forces in U.S. politics, forces whose conflicts and political ambitions were still awaiting James K. Polk when he took office sixteen years later. As Skowronek (1997, 130) says, The Jackson movement carried a disparate coalition of discontents into the election of 1828. Southern planters hostile to high tariffs joined northerners who enjoyed the benefits of trade protection. Northern radicals hostile to federal systems of internal improvements joined westerners with a keen interest in public works. Western debtors hostile to the National Bank joined easterners with an eye on the stability of financial markets. “Old Republicans” hostile to anything that hinted of national consolidation joined commercial interests of all stripes seeking to widen the opportunities opened by the current economic expansion. “His friends have no common principle,” observed Daniel Webster at Jackson’s inauguration. “They are held together by no common tie.”

All true and all irrelevant. Jackson had come to power in the crapulence of the first U.S. party system and he would forge these contradictory elements into the second. Interestingly, Jackson’s repudiation of the old regime was based, as many later instances of this type of presidency, on a moral crusade to restore that empire of “virtue” mentioned above by redeeming the values of the Jeffersonian past (Skowronek 1997). As is also usual in such circumstances, Jackson was able to do this in part by focusing on the individuals involved in “corrupting” the political system—in this case, President John Quincy Adams and his secretary of state, Henry Clay, the two participants in the “corrupt bargain” that deprived Jackson of the presidency in the election of 1824. In the process, Jackson found himself redefining how the polity worked (Skowronek 1997, Brands 2005). But the lack of coherent support for new policies referred to by Daniel Webster above remained a problem. Jackson was well aware of these differences. His underlying concern was always maintaining the federal union; it was obvious even by 1828 that if sectional differences fully coalesced there would be a real possibility of dissolution. His answer to the conundrum was to stretch the Jeffersonian ideal of equal and just treatment to meet new times. In particular, Jackson was interested in returning the national government to its democratic roots. Like the measures taken by many other great repudiators, his initial policy prescriptions for doing so were aimed at


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Repudiation and Disappointment in the Jackson Era


partially satisfying elements of his winning coalition, but never losing the basic principle of equal treatment for both individuals (or, more exactly, free white males) and sectional interests. Jackson’s way of doing this was to emphasize the constitutional limits on government. To those in the south who feared the establishment of any protectionist trade barriers, he promised relief in the form of a tariff intended to raise revenues for the federal government and nothing else. To those who feared the expansion of the market economy, he promised a cautious attitude toward banks in general and the Bank of the United States (hereinafter the Bank) in particular and stern opposition to federal aid to infrastructural projects that did not have an obvious national purpose. To those who feared the restriction or expansion of slavery or interference with state laws concerning American Indians, he promised an even hand that would protect the right of states to decide for themselves on these questions. To those excluded from government service, he promised a “rotation of office” that would eliminate the elite control of federal jobs that so many had complained about. At first, Jackson always tried to steer a middle course in his policies; he consciously attempted to adopt moderate versions of each of his initiatives and to admonish all parties to make concessions in the interest of maintaining the strength of the union (Skowronek 1997). This could not and did not last. All of the various factions involved had leaders with presidential ambitions of their own and public support for pushing policies that would help achieve them. The president, however, looked on any steps away from his program, whether principled or expedient, as a break in personal loyalty to him and to the principles of the newly forming Democratic Party. In part, this was a product of his personality and experience. Poorly educated, a professional soldier for most of his mature years, and a person given to interpreting opposition as a personal slight, his unwillingness to accept either “disloyalty” from his friends or opposition from his enemies was perhaps predictable (Brands 2005). This was not, however, the only reason for Jackson’s reluctance to accommodate resistance to his policies. Another was the difficulty of maintaining the policy balance his coalition depended on. Those opponents who insisted on winning the full measure of every point endangered the entire apparatus. It was the lack of public virtue that Jackson saw in such actions as well as his personal pique at them that furthered his disillusion with much of the politics he inherited. Jackson had a great advantage over his opponents, however: they persisted in acting as though the old constraints over the presidency inherited from the earlier, patrician years of the republic were still in force. The new president was quick to show them the error of their ways, but their ability to learn the lessons he was teaching proved limited. Jackson showed his


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intentions early in his administration with his famous toast “Our federal Union; It must be preserved!” (repudiating extreme views of state’s rights), his veto of the Maysville turnpike bill (a signal that he was serious about limiting “internal improvements”), and his sponsorship of the Indian Removal Act, but the real changes came later. In 1832, he consented to the first national presidential nominating convention (a device soon adopted by all future parties) for the newly christened Democratic Party, vetoed the rechartering of the Bank, and pushed through a new tariff to replace the 1828 “Tariff of Abominations” passed under the Adams administration. The veto message on the Bank recharter was particularly important. In it Jackson claimed that he was the sole elected representative of the nation as a whole and that he had an independent power to determine the constitutionality of proposed legislation. He had determined that the Bank was established unconstitutionally and that the opinions of the Congress and the Supreme Court to the contrary were immaterial to his decision concerning the recharter. His enemies rejoiced; the president had appeared to repudiate constitutional limits on his office and would surely be called to book by the electorate. Jackson rejoiced at their reaction, ran for reelection as the hammer of elite economic and political interests, and won a landslide victory (Skowronek 1997). His second term was as eventful as the first. South Carolina had voted to “nullify” the tariffs of both 1828 and 1832 within the state’s borders. After recalibrations of the 1832 tariff and passage of a “Force Bill” allowing the president to intervene to enforce federal law in South Carolina, the nullifiers, headed by John C. Calhoun, backed down. Jackson then moved against the Bank by ordering the transfer of federal deposits to selected state banks, a decision that earned him censure from the Senate. Jackson responded by pointing out that his decision to veto the Bank’s recharter had received a popular mandate in the presidential election and that removing the deposits was a purely executive decision. After some initial confusion in the congressional Democratic Party—many of Jackson’s supporters wanted the Bank tamed, not destroyed—his allies in the House of Representatives, headed by the new speaker, James K. Polk, passed a resolution of support and began an investigation of the Bank. This so-called Bank War continued until the expiration of the Bank’s charter in 1836 and was one of the mainsprings of the establishment of the Whig Party and of the second party system that arose in the election of 1836 (Brands 2005). Overall, Skowronek’s assertion appears correct: “Jackson’s vindication had signaled a wholesale reconstruction of American politics—one that permanently redefined the position of the presidency in its relations with the Congress, the Court, the cabinet, the states, the party, and the electorate” (Skowronek 1997, 153).


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But, as is usual for presidents of his ilk, Jackson had left much undone for his successors to contend with. The Bank’s charter was never renewed, but the scheme for depositing federal funds in favored (“pet”) state banks (hence increasing the reserves that they could use to back loans) turned out to coincide with a sudden influx of foreign funds, producing a massive real estate bubble that carried the entire economy into depression when it burst in 1837 (Watson 1990). The subsequent administrations of Martin Van Buren and of William Henry Harrison and John Tyler proved unable to come up with a scheme to create a stable currency. Jackson’s preference for a “hard money” system based on gold and silver coin was recognized by everyone (except Jackson himself) as unworkable. Van Buren had proposed creating an independent treasury for the federal government that could then control the fisc directly and the currency indirectly. He was finally able to get a Treasury Bill through Congress in 1840 only to see the Whigs dismantle it a few months later after they got control of Congress. The Whigs had proposed a new Bank in 1840, but Harrison’s death and Tyler’s independence as president doomed their efforts; Tyler vetoed all attempts at a new charter. Coming up with a tariff structure that could placate even a plurality of the interests involved also proved to be beyond the powers of either Jackson or his successors. The gimcrack mechanisms of the 1832 tariff stayed in place, satisfying no one, until 1842 when a Whig-controlled Congress overrode Tyler’s veto and passed a new protectionist tariff, resurrecting and inflaming sectional economic rivalries in the process (Watson 1990). Most grating of all, however, was the failure of the Jackson administration to promote the expansion of national territory. In 1836 a revolution against Mexico took place in Texas. The Texans’ army, led by Jackson’s one-time protégé Sam Houston, was able to win one of the most improbable victories in military history and Texas became independent.1 Jackson did nothing, despite widespread sentiment in favor of annexing Texas. He did not wish to start a war with Mexico or take on the political ramifications for the balance of slave and free states in the Senate that could result from annexing or even recognizing Texas (Brands 2005, Burstein 2003). Yet there remained the new Republic of Texas—a new country with a rapidly growing population of U.S. immigrants and a possible new source of foreign influence on a precariously held border. In one of his last acts as president, Tyler began negotiations to annex Texas, but the actual treaty was stalled until the election of 1844 was well underway by Calhoun, his secretary of state, due to fears that it would not be approved by the Senate. Tyler responded to this problem by proposing a congressional resolution annexing Texas (Haynes 2006). It was passed two days before James K. Polk became president.


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The inestimable value of our Federal Union is felt and acknowledged by all. ... All distinctions of birth or of rank have been abolished. All citizens, whether native or adopted, are placed upon terms of precise equality. All are entitled to equal rights and equal protection. To increase the attachment of our people to the Union, our laws should be just. Any policy which shall tend to favor monopolies or the peculiar interests of sections or classes must operate to the prejudice of the interest of their fellow-citizens, and should be avoided. If the compromises of the Constitution be preserved, if sectional jealousies and heartburnings be discountenanced, if our laws be just and the Government be practically administered strictly within the limits of power prescribed to it, we may discard all apprehensions for the safety of the Union. —Inaugural address of James K. Polk, 1845 (Woolley and Peters no date) “In any event, I intend to be myself the president of the United States.” —James K. Polk to Representative (soon postmaster general) Cave Johnson (Borneman 2008, 129)

Frustration and the Politics of Definition in the United States: James K. Polk and Democratic Refoundation No one, especially the man himself, expected James K. Polk to become the nominee of the Democratic Party in the election of 1844 or, much less, to be elected if he was. Polk was not unknown; he had been governor of Tennessee twice and speaker of the house under Jackson and Van Buren. However, he was still comparatively young for the presidency (at 49, he would be even today) and recently he had been rebuffed by the voters in Tennessee in two successive attempts to win the governorship again.2 A peculiar chain of events played into his unwitting hands. The annexation of Texas and settlement of land claims by the United States and Great Britain in Oregon had quickly become the main issues of the 1844 election. The joint congressional resolution Tyler had secured in the last days of his presidency affirmed that Texas was part of the United States, but the Oregon controversy raged on, submerged in a sea of diplomatic miscommunication. The two presumptive candidates of the Democratic and Whig parties, Van Buren and Clay, both made the same error in early campaigning: they adopted unacceptable positions on Texas and Oregon. Clay, thinking mainly of the potential political problems and of the largely “free soil” electorate for his party, set himself against annexing Texas and called for the continuation of joint administration of Oregon with Great Britain. Van Buren, given a political opportunity any presidential candidate would die for, instead criticized Tyler for pushing through the annexation


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resolution and prevaricated about finalizing the still pending treaty. It was this set of circumstances that led to Jackson calling Polk to his plantation, the Hermitage, for consultations. During these meetings Jackson pronounced both Clay and Van Buren politically dead, provided the Democrats could find someone—like Polk—who had been a staunch advocate of the annexation of Texas and a proponent of U.S. claims to all of Oregon. Now Jackson appeared ready to help him become president (Borneman 2008). Polk had been actively planning to pursue the vice presidential nomination, presumably on a ticket with Van Buren, but Jackson’s support and his own analysis of the situation led him to see new opportunities. At the Democratic convention in 1844, it soon became clear that Van Buren could not win the nomination and that other candidates were equally handicapped. The convention then turned to Polk. During his years in office and after, Polk had been as true a Stalwart as George W. Bush was many years later—a loyal, effective, down-the-line supporter of Jackson’s policies. Though better educated than Jackson—he was a university graduate—Polk was as parochial in outlook and just as likely to see loyalty to Democratic policy nostrums as a matter of personal principle (McCoy 1960). When added to Polk’s well-known antipathy toward Whigs and their supporters, this strong sense of responsibility to Democratic policies led to members of his party seeing Polk as a man whose word on political matters could be trusted implicitly (Haynes 2006, Borneman 2008). As word spread that the “Old Chief ” (Jackson) was supporting him as well, all of the various factions of the party saw a candidate they could get behind: not a protectionist, but not opposed to, as Polk put it, “incidental” protection; not an advocate of “pet banks,” but someone who would finally establish an independent treasury and begin to pay off the nation’s debts; not favorable to internal improvements, but willing to help states retire debts incurred in building them; not a careerist, but someone who pledged to serve only one term, while still standing strongly behind rotation in office; not a firebrand on either side of the slavery question, but instead dedicated to equal treatment of sectional interests; and, finally, unequivocally in favor of “reannexing” Texas and asserting claims to all of Oregon, whatever the consequences (Borneman 2008, Haynes 2006).3 Polk gave unflinching support of these positions and of his clear intention to promote “equal rights and equal protection” for all party factions during the ensuing campaign. The contrast between the decisive Stalwart Polk and the wavering beneficiary of the “corrupt bargain” Clay helped define the election more clearly along party lines than any in U.S. history to that date. Like George Bush in 2000, Polk’s redefinition of his enemies as “politicians unable or unwilling to define a clear alternative” also gave him the slender margin he needed to win the election (Skowronek 2005, 182, Skowronek 1997).


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Why, were other reasons wanted, in favor of elevating this question of the reception of Texas into the Union, out of the lower regions of our past party dissensions, up to its proper level of a high and broad nationality, it is surely to be found, found abundantly, in the manner in which other nations have undertaken to intrude themselves into it, between us and the proper parties to the case, in a spirit of hostile interference against us, for the avowed object of thwarting our policy and hampering our power, limiting our greatness and checking the fulfillment of our manifest destiny to overspread the continent allotted by Providence for the free development of our yearly multiplying millions. —John L. O’Sullivan, editor of the Democratic Review (Weinberg 1935, 112)

The Leadership Project in the United States: The Mexican War Since at the time it was considered unseemly for presidential candidates to publicly pursue the highest office, Polk conducted the usual relatively passive presidential campaign in 1844. He depended on a few pronouncements on major issues and allowed the state political organizations to do most of the active campaigning. However, even before his meeting with Jackson, Polk had penned a decisive answer to a query concerning Texas from a committee of Ohio Democrats who opposed annexation: he was for it and by the time he began his campaign for president everyone in the country knew it (Borneman 2008). In his inaugural address, Polk was even more explicit. Texas had once been part of the United States and was now an independent country that had asked for “reunion,” a request the government had already put in motion. The matter of annexation was between the United States and Texas and no one else. Also, Polk asserted that the claim the United States had to the Oregon territory was “clear and unquestionable.” The large number of pioneers who had moved to Oregon had already cemented the relationship. In other words, Polk had staked a claim to be the epigone of manifest destiny and now he was pledging to fulfill it. Manifest destiny was so diffuse and multifaceted a concept as to defy simple description. As Weinberg (1935) shows, the idea that, in some way, the United States was legitimately, if not legally, entitled to the entire territory it already claimed and to any other adjacent territory occupied by less “civilized” or “industrious” or “worthy” or “moral” peoples had claimed a prominent place in U.S. sentiments during the Jacksonian era. The arguments for expansion were influenced by two underlying factors. The first was the changing economy and expanding population of the country.


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Political Crisis and Political Opportunity in the Jacksonian Era


During the Jacksonian era, the United States was developing an industrial base and shifting, albeit slowly, to capitalist farming. This led, in part, to the emphasis the Whigs, based in an industrializing north, placed on infrastructural investment (“internal improvements”). But the country was still primarily agricultural and it was the shift from farming to the production of agricultural commodities that had the largest influence. The clamor of foreign industry for cotton and of the industrializing northeast for foodstuffs increasingly transformed what had been a land of largely self-sufficient family farms into a land of producers for domestic and foreign markets. That, in turn, led to continuing emphasis on expansion of national territory, but for quite different reasons. Those in the northeast and west were most interested in Oregon. There was ample new farmland there with established settlements that could absorb an increasing population. The harbors there and in California promised a new avenue for trade with the Orient. Southerners were more interested in expansion into Texas, largely because it was proven as a cotton-growing region and slavery was already established there. Paradoxically, both sets of interests opposed each other’s agenda, largely because the admission of new states immediately brought into question the balance in the Senate between slave and free states (Haynes 2006, Watson 1990). The other factor influencing the expansionary urge was political in nature. The Democrats had long been fearful of the results of the economic development of the country. Jackson had recast the older Jeffersonian ideology of the party as a commitment to the independence of white male citizens. From Jefferson he took the concern that, if wealth became too concentrated, the yeoman farmers and artisans who made up the backbone of the economy would be reduced to dependence as paid workers or to poverty as an urban underclass. Neither could support a democratic republic with anything resembling civic virtue; they could both be bought off or intimidated too easily, hence Jackson’s concern about “corruption”. He was convinced that the United States’ new capitalists were behind an ongoing conspiracy to use finance and government favors to insure their economic and political supremacy (Brands 2005). A way out of this difficulty was to insure the continual expansion of the land available for settlement in the country. That way those who found themselves being pressed by the inequalities in more developed parts of the country could find new hope by settling in new territory and establishing themselves independently again. The Whigs also supported the idea of an independent citizenry but felt that the inequalities that development had brought on were justified by differences in natural individual endowments. Capitalists deserved their wealth and deserved new arenas to pursue it. The common citizens, as they gained skills, could find new opportunities as the country


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expanded. This would have the additional useful result that both technological progress and the “civilizing influence” of the new U.S. economic and political institutions—the Whigs had every intention of using the new powers Jackson had claimed for the presidency—could be expanded to the country’s and, ultimately, the world’s benefit (Watson 1990). The only problem with fulfilling these ambitions was the existing set of political arrangements in North America. Other powers occupied a good portion of the western territory of what became the continental United States: Great Britain in Oregon, Mexico in California and New Mexico, the independent republic of Texas, and the American Indian nations throughout.4 Proponents of manifest destiny held that Providence had dictated that all these obstacles would be swept away due to a combination of the racial superiority of white Americans, demographic shifts in the disputed areas as Americans immigrated to them, and the moral imperative Americans had to spread the Christian religion and democratic institutions (Weinberg 1935). Such an expansion would have the salutary effect of reducing the capacity of foreign powers, especially Great Britain, to hem in the borders of the United States, restricting its future prospects (Burstein 2003, Brands 2005, Haynes 2006).5 As is often the case, sincere belief in these ideas usually corresponded with the economic and political interests cited above, though the degree of separation depended on the individuals involved. After his inauguration, Polk faced two inherited political crises that both could develop into full-scale wars and that he had staked out maximum positions on in his inaugural address. But, initially at least, backing down was not an option. The Polk administration had committed itself to the manifest destiny narrative as surely as the Bush administration did much later to its narrative on the War on Terror. Solving the Oregon and Texas annexation problems would have a similar effect on the prospects for a successful domestic agenda. To see why, recall Polk’s pledge to insure “equal rights and equal protection.” Polk had inherited a newly constituted Democratic Party from Andrew Jackson, but by the time he became president the party was being slowly torn apart from within by increasing sectional differences. This was nothing new, of course; Jackson himself had had to face down the nullification crisis and was always deeply concerned about the possibility of disunion. As pointed out above, Jackson’s answer to this was to concentrate the federal government particularly on those national aims that were most specifically set out in the Constitution and to insure as evenhanded an approach to all other questions as possible. The result, in his estimation, would be to relegate the entire issue of slavery to the respective states to deal with, thus keeping this potentially explosive issue off the national


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political stage. Jackson’s reluctance to take action on annexing Texas during his presidency, despite a strong wish to see Texas in the union, is indicative of his approach (Brands 2005, Burstein 2003). This worked for awhile, but the economic development of the country, by further exacerbating sectional differences, was slowly making it an untenable strategy. Commitment to a program of national expansion and to the manifest destiny narrative offered a way out. As pointed out above, although there were substantial differences between how those in different sections and parties viewed the prospect of expansion, the idea of expansion itself, variously justified, was a unifying one. Polk seized on this as quickly and for the same reason Jackson had; it gave him the lever he needed to unify Democrats and not simply around a foreign policy consensus. Polk saw that there remained a variety of domestic issues that could also help to damp down sectional rivalries and reunify his party. They were, of course, those left hanging by Jackson and his immediate successors: the structure of tariffs, currency stabilization, and the entire question of internal improvements. The Democrats were divided into a complex variety of factions around these issues. Many (by no means all) western Democrats wanted internal improvements and limits on the power of financial institutions but were ambivalent about protectionist tariffs. Southern Democrats wanted the lowest tariffs possible and easy credit, caring little about internal improvements. Northern Democrats were divided internally between those representing industrial and commercial interests, thus in favor of protective tariffs and a stable currency, and those firmly opposed to government promotion of further economic development, usually for ideological reasons (Watson 1990, Haynes 2006). Overlying all of these fault lines, moreover, was the entire question of expansion of slavery into new territories. Polk attempted to address some of these difficulties in his closely calibrated choice of cabinet secretaries. He paid particular attention to the concerns of Pennsylvania and New York Democrats. Both states were important to his narrow victory in 1844 and Polk was particularly anxious to satisfy Martin Van Buren’s followers in New York. As might be expected, his efforts, those of an upstart candidate made to mollify the concerns of ambitious men still looking to get the job they helped Polk win, satisfied no one (Bergeron 1987). Polk’s stand on expansion, firmly in line with the credo of manifest destiny, however, did offer a way out. It was suggested by his new Treasury secretary in the run-up to the presidential convention that nominated Polk. Robert A. Walker, born in Pennsylvania, but at the time a senator for Mississippi, had written a pamphlet claiming that annexing Texas would be the way forward for all national interests. Texas would provide a safety valve for the growing slave population in the south


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as growers moved there to take advantage of the new lands. This would reduce the likelihood that the north would have to contend with a black migration to the new free soil states and territories. Instead, manumitted blacks would move to Mexico (a country that had outlawed slavery), thus saving the free white labor in the north from the burden of absorbing them. It was this argument that Walker had used to help defeat a Van Buren nomination and, although Polk had not been the particular object of his purpose, he was exactly the man to put the strategy into motion (Haynes 2005). Combine these arguments with Polk’s apparent support of U.S. claims to all of Oregon and you had a set of arguments and policies that all of the party could rally behind. Supporting Polk on expansion gave the new president exactly the leverage he would need to overcome the various interests opposing a completion of the Jackson legacy.

Crisis and Political Reconstruction in the United States: The Mexican War and U.S. Politics The crises Polk inherited unfolded in tandem, causing interactions between them. By far the most important in terms of the inherent dangers of not reaching a settlement was the dispute over Oregon. Great Britain was the world’s foremost industrial economy and a substantial military power, particularly at sea. Polk, characteristically, refused at first to back down from the claim to all of Oregon (“5440’ or fight!” as radicals on the subject in his party asserted) he had made in his inaugural address. In asserting this claim in an official note to the British Foreign Office, however, he tempered his stance by offering to discuss a prior proposal by the Tyler administration to settle on a different (49) boundary line. Great Britain’s ambassador, Sir Richard Pakenham, knowing that his chief, Lord Aberdeen, had earlier rejected U.S. claims, refused to accept the note. Polk, as distrustful of British motives as Jackson had been, took instant offense and, after some more fruitless diplomatic contacts, asked Congress to put Great Britain on notice that the United States was ending the mutual occupation of the territory, as the original Oregon treaty provided (Borneman 2008, McCoy 1960). While this brewing conflict was going on, relations with Mexico had been deteriorating apace. As Polk said in his inaugural address, he considered the “reannexation” of Texas a settled issue. Mexico’s government, however, considered the congressional resolution grounds for breaking diplomatic relations with the United States, as tantamount, in fact, to a declaration of war. The Mexican government was in a difficult position. There was little support in their country for a war with the United States;


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the government was bankrupt, in trouble with several foreign governments, including the United States, over payment of outstanding debts, and had alienated much of the public. Having broken diplomatic relations, however, it had little choice but to keep any preliminary discussions at a minimum. This position was aggravated by the insistence of the United States—and the Texans themselves—that the border of the new state of Texas was the Rio Grande, which Mexico vehemently denied. Polk, with Texas in hand, was now intent on obtaining California and, perhaps, New Mexico as part of a general negotiation concerning border issues between the two countries. To bring pressure on the Mexicans to reset their borders, Polk sent a small army to Texas with orders to move to the Rio Grande border if it appeared that Mexican armed forces would cross it and also alerted the Navy’s Pacific squadron to prepare to occupy San Francisco and Los Angeles if hostilities commenced. He also sent a special envoy with minister status, John Slidell, to Mexico City with authorization to cancel Mexico’s debts to the United States and pay up to $40 million to settle all border claims for Texas and acquire California and New Mexico (Haynes 2006, Borneman 2008). The result of these initiatives was that by the spring of 1846 the United States found itself with two unresolved disputes with foreign countries that appeared to be heading for open warfare. The Herrara government in Mexico was overthrown by a military coup based on popular discontent over the appearance of Slidell in Mexico City and the possibility (a real one) of negotiations with the Americans over ceding Mexican territory. A new government, headed by General Mariano Paredes, took power, a government much more overtly hostile to the United States and apparently ready to try a trial by force over U.S. boundary claims. When Slidell left Mexico, Polk ordered General Zachary Taylor, the army commander in Texas, to proceed into the disputed territory. Taylor, seeing no hope of provender except by naval supply, moved to Corpus Christi at the mouth of the Rio Grande and built a fort there at about the same time that Mexican forces moved to Matamoros—across the river, in other words—to dispute his presence. When Taylor sent a detachment of cavalry to scout Mexican positions on April 25, they were surrounded by a much larger Mexican force and surrendered after a short fight causing sixteen American casualties. When Polk received Taylor’s message about the skirmish on May 9, he immediately drafted a message to Congress asking for a declaration of war. War was declared by an overwhelming congressional majority on May 11, though only after a vigorous debate with the president’s Whig opponents (Connor and Faulk 1971). In the meantime, Great Britain had thought better of further escalation and sent a new Oregon proposal, very like the earlier one made by the Tyler


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I told Mr. Lewis that if the notice [resolution ending the joint British American occupancy of Oregon] was lost the Democratic party were in danger [of] being so distracted and divided in Congress that my recommendations for reductions on the tariff and all my other measures would be lost also. I expressed an anxious desire to effect a reduction of the tariff, and again urged harmony on the Oregon question. —James K. Polk to Dixon Lewis concerning the connection between party discipline on foreign policy matters and his domestic program (Quaife 1910, 263) I called to their recollection that the Democratic party were in a decided majority in both Houses of Congress, that nearly four months of the session had expired, that very little had been done, and that the Democratic party would be held responsible by the country for the delay, and for the failure by Congress to act on these and the recommendations of the message on other subjects. I told them I desired Congress to approve or disapprove my measures as recommended in my annual Message and that I thought it important that they should act promptly on them. Each of them promised me that they would set to work and if possible induce the Ho. of Repts. to do so. —James K. Polk to a party of representatives concerning the progress of his agenda in Congress (Quaife 1910, 295–96) The Postmaster General called on me early this morning and expressed apprehension that the article in last evening’s Union on the question of the passing of the Notice Resolutions in Congress would give dissatisfaction to some of the Democratic members. ... I told him Mr. Ritchie [Thomas Ritchie, editor of the Washington Union] meant well, but might occasionally make mistakes, but he was always ready to correct them when informed of them. ... I then read the commencement of an explanatory article of that in yesterday’s Union, which I had hastily sketched during the few minutes Mr. B [James Buchanan] had been absent. ... Mr. Ritchie called at dark & talked over the matter, and I gave him the article copied by Col. Walker to make what out of it he pleased. It is the second or third time since I have been President that I have sketched an article for the paper. —James K. Polk concerning his use of the Washington Union as a way to influence members of Congress (Quaife 1910, 350–53)

Polk was concerned about all aspects of his proposed program. When he became president he had laid out his agenda in his first annual message.


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administration, to the United States for consideration. Given the new situation, Polk took the advice of his cabinet and accepted a 49˚ boundary line with a few adjustments, acquiring much of the present Pacific northwest without firing a shot (Borneman 2008). Settling matters with Mexico, however, proved more problematic.


It had four main items: (1) reduction and reconstruction of the tariff, (2) establishment of an independent (“Constitutional”) treasury, (3) settling border questions with Mexico (i.e., establishment of the Rio Grande as the border of Texas and, though not publicly admitted at first, the acquisition of California and New Mexico), and (4) settlement of claims in Oregon (Haynes 2006). This was a very adroit selection of issues, combining expansionist initiatives popular in all sections of the country and with adherents of both parties and the main domestic questions left over for Democratic Stalwarts to settle to achieve the party’s vision for the country. Polk’s use of enthusiasm for foreign expansion is especially noteworthy. By taking the annexation of Texas as a given and pushing forward for acquiring territories adjacent to it, Polk had put Congress on notice that annexing Texas was just the first step in our new relations with Mexico. He had also been very supportive of the 54˚40’ line in Oregon, encouraging the more radical expansionists concerned with that territory as well.6 Polk’s choice of issues to be addressed in his first year put his opponents in the unenviable position of having to go along with him on the popular national expansion issues and then suddenly shift gears to oppose his domestic program. Still, the agenda he proposed for domestic issues was fraught with difficulties. In those days, the great bulk of federal revenues was found in customs receipts. In the midst of two ongoing foreign crises, Polk was proposing a major reform and possible reduction in the tax revenues that would be available for prosecuting a war. Also, he was supporting no more than incidental protection for U.S. industry. This caused disruptions within his own party as well as a major activation of lobbying by the affected industries (Haynes 2006).7 His proposal for an independent treasury looked problematic also, with many in the financial community stirred to resistance. Yet, like George Bush after him, Polk was uniformly successful in getting his initial proposals passed into law. In part, this was because of a similar ideological cast to his party in Congress. Like George Bush and the Republicans much later, Polk’s Democrats were ideologically coherent and in the majority. His first annual message had been very well received by Democratic members of both houses and he had gotten many pledges of party support (Quaife 1910). As can be seen in the quotes above, Polk was quite capable of both reminding his party of the need for unity behind him on all issues and of appealing directly to fellow Democrats on grounds of personal and political commitment. He was also not slow to remind members that public opinion was always ready to blame those who neglected to act decisively on matters they had been elected to resolve. Indeed, he insisted on and usually got firm party discipline around his proposals, especially in the House of Representatives. Polk could also (and did) use his considerable


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powers over federal patronage—virtually every office in the entire federal government was within his gift—to reward his supporters and discipline those who showed signs of independence on important policy questions (Quaife 1910). There was one other factor in this, no longer present today: Polk’s ability to manage media coverage of his administration. During the 1840s the advent of the “penny press” greatly changed how politics worked in the United States. Widespread literacy among the voting public combined with new, much cheaper printing methods using the rotary press made a national newspaper-based mass media possible and profitable (Watson 1990). Adherents of political parties had been setting up newspapers to appeal to their fellows since the Jefferson administration—it is an obvious way to make a media business pay—but the new technology allowed much more widespread coverage. Polk had inherited an “administration newspaper,” the Washington Globe, originally established by Andrew Jackson. The Globe, like its Whig counterpart, the National Intelligencer, acted as a source of syndicated news for Democratic newspapers throughout the country and had been recognized as the voice of Democratic administrations when the party was in power and as the national organ of the party when it was not. Polk, however, had had differences with Francis Blair, the Globe’s editor, and from prior experience as governor knew the uses of a political newspaper he could control himself. He insisted that Blair relinquish his editorship and his interest in the paper. He then reestablished it as the Washington Union with Thomas Ritchie, former editor of the Richmond Enquirer and a well-known Democratic Stalwart, as editor. The president then took a very active role in providing the Union with an advance look at all major messages and legislative proposals his administration made. He also wrote occasional articles for the paper, giving his own views on issues of the day. Ritchie reciprocated by paying strict attention to how Democrats in Congress were supporting Polk’s program, particularly emphasizing any lapses in following the president’s marching orders (Bergeron 1987). The Union’s highly editorialized articles were sent around the country to hundreds of newspapers connected with the Democrats and were conveyed by telegraph with very little delay. In other words, the “news cycle” had speeded up considerably in the Polk administration and Polk himself had considerable control over how it presented his policies, his opponents, and, most importantly, his sometimes reluctant supporters (Quaife 1910). Finally, there was the war itself. Needless to say, we do not have any more estimates for the extent of the rally effect created by the war on the politics of the day than we do about similar questions concerning the Soviet Union. Still, although some prominent figures opposed the war


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from the beginning, the general reaction to the declaration was, at first, an unrestrained patriotic enthusiasm. This gave Polk a substantial advantage in dealing with his political difficulties. The immense popular outpouring of patriotic support for the war was never used overtly by Polk to push members of Congress to his support; such pressure would have been considered insulting by politicians of the day. Still, the prospect of openly opposing his initiatives must have given Polk’s rivals pause (Johannsen 1985). That the main resistance to Polk’s initiatives came from recalcitrant members of his own party rather than the Whig opposition is indicative. The power of the president to get Congress to toe the line as a result of these various pressure techniques can be found in the passage of the tariff in 1846 and the “Constitutional Treasury” legislation. Both of these measures had been under debate before the declaration of war with Mexico, but, as mentioned before, both had potential problems in a Congress where the majority was so divided on them. But, despite this, both bills passed and within a week of each other, after the war had begun. In short, Polk had been able to reform the entire mechanism for funding the federal government and distributing its tax revenues for various purposes after beginning the country’s first foreign war of choice (Sellers 1966). Passing the tariff bill in the Senate was a near thing, depending on the vote of Spencer Jarnagin, a Whig senator from Tennessee who had been incessantly courted by the president (Bergeron 1987). For all of that, however, it is obvious that Polk was able to maintain as strong a hold on both his party and its representatives in Congress as George Bush did 156 years later.

Torture and the Mexican War: The Informal Institutions Fail to Develop The Project Matures and Threats Recede: The Mexican War It would be difficult to find two countries in history as unprepared for warfare and as ignorant of the fact as Mexico and the United States in 1846. An impartial observer at the beginning of the conflict might have thought that the United States, despite its larger population and stronger industrial base, had gotten into an uneven contest. The Mexican regular army was four times the size of the U.S. Army, was well armed by the standards of the day, and had a good deal of battlefield experience. Even if the United States fared well in the war, Mexico presented formidable geographical and logistical obstacles to any invader, particularly to any force trying to take Mexico City. The United States did not appear to have either the arsenals, the trained soldiers, or, given the initially strong


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opposition of the Whigs to the war and ambivalence about war against another republican government in some quarters, the political cohesion to wage war effectively (Connor and Faulk 1971, Singletary 1960). Actually, as events would soon prove, the real condition of Mexico’s armed forces and political institutions were as precarious as Iraq’s 157 years later. The Mexican army, in particular, proved no match for the Americans. U.S. regulars was better trained, better equipped, and, above all, better fed and paid than Mexico’s army and, contrary to some expectations, the new volunteer regiments usually performed well when sent into battle. In particular, their much more proficient artillery and the presence of a large proportion of soldiers armed with rifled muskets in regular and volunteer units gave U.S. forces a tremendous firepower advantage over the Mexicans.8 The regular officer corps of the U.S. Army proved superior to the Mexican chain of command at all levels, particularly in its engineering corps that would prove decisive in the campaign for Mexico City.9 Finally, the financial stability and strong executive leadership of the Polk administration combined with the country’s industrial capacity enabled the United States to ramp up a much larger army capable of mounting very complicated military operations in a comparatively short time (Winders 1997).10 The Mexicans, their government bankrupt and without sufficient arsenal capacity, found expansion of their army impossible; indeed, it deteriorated in numbers (largely through desertion) and fighting capacity as the war continued. Mexico was badly overmatched from the first. The war was conducted in two distinct phases. The first involved General Zachary Taylor’s campaign in South Texas and North Mexico and the conquest of New Mexico and California. Taylor’s small army, outnumbered on the average by three to two, won all four major battles it was engaged in, inflicting roughly three times as many casualties on Mexican forces as it suffered. The conquest of New Mexico and California was similarly efficient. There were no regular Mexican forces stationed in either territory. A mixture of two volunteer regiments and, in California, naval personnel was able to conquer the entire immense area with no major conflicts and only one minor setback for U.S. forces. A subsidiary effort launched from Santa Fe to take the city of Chihuahua was also successful; in two battles a vastly outnumbered force of U.S. volunteers succeeded in routing its Mexican opponents. By the end of February 1847, the war in Northern Mexico between organized forces was over. Taylor’s army settled down to a long occupation and minor contests with irregular forces that lasted until the end of hostilities a year later (Singletary 1960, Connor and Faulk 1971). After the initial victories, the Polk administration was convinced that the Mexican government would sue for peace. Polk reasoned that a bankrupt


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government would be unable to pay and equip its army and, thus, would be forced to the negotiating table (Quaife 1910). He had also entered negotiations to return Antonio Lopez de Santa Anna, president of Mexico and army commander during the Texas Revolution and then in exile in Cuba, to Mexico with a promise of a cash stipend and the prospect of renewed peace negotiations. When he arrived, Santa Anna instead overthrew the Farias government—the third of nine different governments Mexico had during the war—and took overall command of Mexican forces (Haynes 2006, Borneman 2008). After failing in the Battle of Buena Vista to dislodge Taylor’s army in the north, Santa Anna began preparations for an expected campaign against Mexico City.11 That campaign was soon launched, starting the second phase of the war. The expense of the war and the number of deaths, largely from disease, in the army was becoming a political problem. The Democrats came under increasing pressure to end the war and lost the House of Representatives to the Whigs in the off-year election in 1846 partly because Polk could not bring the Mexicans to the table. Polk had little confidence in either Taylor or the ranking general in the army, Winfield Scott; both were Whigs, automatically earning his distrust, and Scott, in particular, was known to have presidential ambitions. Taylor, however, had made several military decisions that did not sit well with the president and Polk reluctantly gave the command of the expeditionary force against Mexico City to Scott instead (Haynes 2006, Borneman 2008). This proved to be an excellent decision. Scott was one of the best generals to ever command U.S. forces. In a relatively short campaign he led his small but well-equipped and commanded army to victory in four major battles and many minor encounters against Santa Anna and the Mexican army. By the time the Americans took Mexico City, they had outmaneuvered, outgeneraled, and outfought their opponents consistently (Singletary 1960, Connor and Faulk 1971).

Why Did Torture as an Informal Institution Fail to Develop? At this point, readers may see some interesting parallels between the Mexican War and the later war in Iraq. In both, the invading forces, though outnumbered and facing obstacles, were able to triumph easily and found themselves facing the problem of using a small army to occupy a country with a potentially hostile population. I have presented evidence that it was the emergence of the insurgency in Iraq in just such a situation and the formation of the informal institutions aimed at protecting a vulnerable leadership project that led to the proliferation of torture by the United States beyond its application to a few terrorist


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suspects. As the insurgency became stronger and spread beyond control, the need for actionable intelligence led to tremendous pressure on the forces in the field to develop and use “alternative methods” of interrogation. Yet in the occupation of Mexico very similar facts on the ground did not have the same results. Why? There are at least three main reasons why the same mechanisms did not arise in the Mexican War. Two have to do with the way the war itself was conducted. First, both Taylor and, especially, Scott made real efforts to conciliate the general population with the U.S. army. Both generals were apprehensive about the impact that irregular warfare could have on their campaigns. The invading forces were small; Taylor never fielded an army of more than 10,000 men and Scott never more than 15,000. The geography of Mexico and its comparatively sparse population made the two armies increasingly vulnerable as they advanced. There were few routes that could bear the traffic to keep even small armies supplied. These tended to run through unpopulated, mountainous country that allowed many opportunities for irregular forces to interfere with the armies’ supply lines or even cut them off altogether (Knapp 1995, Connor and Faulk 1971). The generals had to deal with different situations. In the north, Taylor had less to fear from an aroused population than Scott in the south. The northern Mexican states had been estranged from the central government since the constitution of 1824 was overthrown by Santa Anna during his first presidency. Representatives of these “Federalists” made contact with Taylor as he invaded and even offered an alliance based on breaking their states away to form a new republic. Taylor had no orders that would allow him to do that and soon faced irregular formations working in cooperation with the Mexican army. Part of this was due to the difficult time he had controlling the volunteers in his force. Many of them were from Texas and Louisiana and either held grudges against Mexicans or regarded them with contempt. War crimes committed by these forces were a major obstacle to maintaining quiescence; local guerilla units used the atrocities as recruiting tools. However, while his army was at one point cut off from supplies by guerillas, Taylor faced no general uprisings. In the last year of the war, he made every effort to punish crimes by his soldiers and to provide police protection for the population. Furthermore, a lively trade sprung up between the Americans—who paid in cash—and the Mexicans that both created goodwill by presenting economic opportunities to Mexican businessmen and alleviated some of Taylor’s supply problems. Even the decision to pay for part of the war’s expenses by levying tariffs on goods coming into Mexican ports was welcomed; U.S. duties were much lower than Mexican ones (Knapp 1995, Connor and Faulk 1971).


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Scott faced a much more serious situation. His supply line ran up a single road—the National Highway—with several vulnerable points and he faced the bulk of the remaining regular and irregular forces left in Mexico. Typically, Scott had a plan in readiness to address these difficulties. First, despite Congress’s failure to promulgate a code of military law, Scott put his entire department under martial law based on a code he wrote himself. In doing so, however, he did not suspend Mexican law. Instead, he allowed local Mexican authorities to operate without interference, so long as the peace was maintained. Scott also made every effort to enforce martial law equally between Mexicans and Americans. He publicly tried and as publicly hung both his own soldiers and Mexican offenders. This kind of evenhanded treatment impressed civilians; they knew they could not expect the same from either the Mexican government or its army. Second, Scott made sure that all debts of his army were paid in hard currency and, like Taylor, actually did much to revive business activity in the cities he occupied. Finally, Scott made a real effort to show respect for the Catholic religion. At the onset of the war, Polk himself had seen the appearance of an invading army of Protestant Christians as a major problem and had provided for Catholic chaplains to accompany the army (Quaife 1910). Despite protests from some in the ranks, Scott and his officers participated in the processions of several Catholic festivals in Mexico City and he ordered his regiments to be present on parade for them (Knapp 1995). But these efforts were only part of the equation. Scott also choose a politically appointed volunteer officer, Brigadier General Joseph Lane, to keep his lines of communication to his main base in Veracruz open. Lane got this position as a result of his successful relief of the garrison at Puebla, a choke point on Scott’s supply line, that was besieged by a large force of Mexican regulars and guerillas. He proved exceptionally efficient at his job, conducting many successful operations against Mexican irregular forces. Lane’s use of hired Mexicans and companies of Texas Rangers transferred from the north as intelligence gatherers and combatants was especially helpful to these expeditions.12 Finally, Scott expanded patrols by all army units along the National Highway to create what became a relentless campaign against irregular forces (Knapp 1995). Remarkably, these operations also had a salutary effect on Scott’s conciliation program. Many of the guerrilla commanders in the south were commanding what were actually bandit gangs that had been given official status by a reluctant, but desperate Mexican government.13 These bands did not abandon their modus operandi because of their now-official status. The supplies and information they needed were extracted by force from the general population and they viciously punished those they saw as


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collaborators. In fact, it was these practices by Mexican forces that were the main instances of systematic torture during the Mexican War. U.S. prisoners were often killed and mutilated by the irregulars; fellow Mexicans they thought had helped the Americans or were holding out either supplies or information were tortured, sometimes to death. The U.S. army’s response was instantaneous and severe; those captives who were found operating as guerrillas were brought before public courts martial, tried, and almost always convicted. Very few escaped with their lives. This was applauded by the civilian population in the south, who generally feared the guerrillas more than they did the Americans (Knapp 1995). The threat of a general uprising in the south was further ameliorated as a result. There were political reasons for the mechanism failing as well. Despite considerable instability, the Mexican government never collapsed and was courted by an increasingly frustrated Polk administration through relentless diplomatic efforts. Not long after Scott’s initial landing at Veracruz, Polk had sent Nicholas Trist, the chief clerk of the State Department, as a special envoy to the Mexican government with the particular purpose of negotiating a peace treaty. After some initial differences, Scott and Trist formed a close working relationship that continued throughout the campaign and occupation in the south. Once in Mexico City, one would think that Trist would have had an easy time. Although he had been instructed to demand a Rio Grande border for Texas and all of New Mexico and “Upper California,” Trist also had instructions to pay the Mexicans up to $30 million for the new territories. Also, a treaty, if signed, would mean the complete and immediate withdrawal of U.S. forces from remaining Mexican territory. The Polk administration and Trist thought a defeated government would leap at such an offer. In fact, however, the very idea of entering negotiations to surrender roughly half the nation’s territory was instantly recognized by Mexican officials as political suicide, even though it was obvious that the United States was anxious to make peace and withdraw its forces. The failure of Trist’s initial efforts, which took place before the final assault on Mexico City, finally led Polk to recall him to Washington. A month after the city fell, however, the Mexican government came to the table and Trist, on his own initiative, negotiated the Treaty of Guadaloupe Hildago. The treaty set new boundaries between the two countries that met Trist’s instructions, included a face-saving payment of $15 million for New Mexico and California, and the settlement of all outstanding American claims against the Mexican government. Despite terms many Americans thought were too generous, the treaty was soon ratified by both sides and by June of 1848 U.S. forces were withdrawing from Mexico (Haynes 2006, Connor and Faulk 1971).


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As can be seen, as organized hostilities drew to an end the situation in Mexico developed quite differently from that in Iraq. Unlike in the Iraq War, the invading U.S. army never had the intent of destroying the Mexican state. Indeed, for most of the war, the main problem facing the Polk administration was to find a Mexican government that could last long enough to negotiate a treaty and allow the invading armies to withdraw. There was no effort by the United States to replace the civilian authorities; even in areas that had been taken from Mexico with every intention of eventual annexation, Mexican laws and the existing governmental structures were left in place until the end of hostilities. By suppressing guerrilla (read bandit) activity, and providing an equitable justice system backed by an effective police force, the U.S. Army had, in fact, fulfilled functions that the central government of Mexico had conspicuously failed to provide for some time. Given the vast amounts of capital poured into Mexico to pay for supplies for the invaders, many Mexican towns and cities benefited economically from the war. In addition, by paying their debts on time and in cash, the Americans established goodwill with the country’s businessmen from the first. The decision to pay public homage to Mexican religious practices also paid dividends. Mexican political elites had been divided along laicist lines since the Mexican Revolution. Having an outside and apparently neutral force sponsor an evenhanded policy toward religion put many minds at rest. It is perhaps no wonder that General Scott was approached by a delegation of prominent Mexicans with the proposition that he become dictator of Mexico. Scott, whose political ambitions were focused on a point far north of the new Mexican border, courteously declined (Connor and Faulk 1971, Knapp 1995). No Threats, No Torture There are many similarities between the way the Polk administration handled the Mexican War and our other cases. The leadership project was as bold, the accompanying narrative as compelling, the actual application of both as energetic as in either the War on Terror or the Five-Year Plans. Further, while George Bush talked about the president as a unitary executive, Polk actually was one. The quote above about being “myself president of the United States” was no exaggeration. He appointed (and could fire and did) officers for the entire executive branch of the government. Polk was probably the last president who could justifiably claim that he could do every job in the government and actually did them, especially when his cabinet secretaries were out of town. He used his executive secretaries as his agents to impose his policies down the line to the departmental


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bureaus. Like both Bush and Stalin, he had a penchant for secrecy as well, dealing with both Santa Anna and the Mexican government through agents he, not his cabinet, appointed and instructed. He was every bit as strict a party disciplinarian as Bush (though not, of course, Stalin), requiring and getting loyal support from Democrats down the line on his policies. Finally, he was not living in a country where torture was unknown or fighting an enemy who scrupled to use it. Yet torture as an informal institution did not emerge. With the Mexican civilian population accepting, some reluctantly, some enthusiastically, the occupation, the Americans’ limited war aims, their obvious disinclination to interfere with Mexican politics or law enforcement, their sensitivity to Mexican cultural institutions, and the failure of the Mexican government’s efforts to ignite an irregular war, a dynamic that could lead to the threat of rising clandestine resistance did not develop. Consequently, a perceived increase in the possibility of violent clandestine opposition that could discredit the regime project of the Polk administration did not happen either. As a result, U.S. commanders on the ground did not face anything like the same pressures to obtain actionable intelligence. Despite lapses in order that led to several atrocities and the peremptory killings attributed to some units—the Texas Rangers were particularly known for this—the only evidence of systematic torture by any forces in the war was by Mexican irregulars, not U.S. troops.14 The long string of victories and the subsequent relatively peaceful occupation of Mexico quelled any concerns the Polk administration may have had about facing a violent Mexican resistance movement as the acquisition of territory proceeded. There were, of course, domestic political problems arising from the duration of the war, but the conditions that led to the establishment of informal institutions that facilitated the official adoption of torture by the United States during the War on Terror and in the Soviet Union during the Stalinist Terror simply did not arise. In their absence, torturous interrogations did not appear.


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Torture and Leadership Projects

T

his book has been largely about informal institutions, but, as the large N studies of torture show, the constraints imposed on polities by formal institutions matter. As mentioned earlier, work in what Davenport (2004) calls the domestic democratic peace tradition has consistently found that aspects of democracy have a negative effect on the incidence of repression by states. As Davenport (2007) points out, repression in democracies imposes costs and its benefits are doubtful in comparison to the alternatives. In democratic states rulers who use repressive measures can be removed or see their power diminished by elections. Citizens can remove their financial support for recalcitrant authorities as well. The institutional constraints in democracies—checks and balances, multiple veto points—can also make repression difficult to sustain. Finally, in democracies, ruling elites have many and better ways to deflect opposition into subsidiary issues and, in modern polities, have considerable resources available to influence public opinion (Davenport and Armstrong 2005). However, as might be expected in two polities with such disparate political frameworks as the United States and the Soviet Union, the fate of the leadership projects developed by their governments is and was quite different. In retrospect, the degree of success of the leadership projects in the Soviet Union and the United States was not a result of political elites instigating torture to protect them. Indeed, the final results were quite different because of the influence of other events, largely separated from the torture practices of the three governments I have considered. However, as I will try to show below, those projects did have a substantial influence on how these new exogenous effects were perceived by both elites and mass publics. How the leadership project of the Stalinists succeeded and the immediate legacy of that success was determined by how the project developed in an already


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6


authoritarian state and, further, how it worked to sustain the weakness of institutional constraints and the diminution of mechanisms of popular approval in the Soviet Union. How the leadership project of the Bush administration partially failed and the immediate legacy of that failure are, as already established research on democratic domestic peace would have predicted, largely a function of the development of democratic politics in the United States. The ultimate success of the project of the Polk administration and its subsequent failure to shield that administration from the consequences of its actions are also due largely to democratic constraints. But here, as I hope to show, the role of “secular time” and the failure of violent opposition to develop had a major role to play in how the Mexican War influenced the politics of the time. Torture and Its Aftermath: The Stalinist Terror and the War on Terror How dare they? How dare the incompetent and willful members of the Bush–Cheney administration humiliate our nation and our people in the eyes of the world and in the conscience of our own people? How dare they subject us to such dishonor and disgrace? How dare they drag the good name of the United States of America through the mud of Saddam Hussein’s torture prison? — Al Gore, former vice president, speech at New York University (2004) When you begin reading the newspapers, in particular Pravda, you automatically get upset that such a revolting and outrageous lie has been written, and who is this lie for? It’s for us, the Russian workers. Did Lenin, or Marx, ever teach the party to lie so outrageously, so shamelessly, without blushing? You commit acts of violence against workers and peasants. You scribblers, you’ve enslaved us worse than any tsar and you write impudently, you lie that you are for us workers. It’s time to drive you out, you vile creatures, so you won’t enslave the peasants in Lenin’s name. —Excerpt from an anonymous letter to Pravda in 1930 (Siegelbaum and Sokolov 2000, 46–47)

The difference between the commentary made in Vice President Gore’s jeremiad against torture and its consequences for U.S. foreign policy and the letter to Pravda is obviously not very great in terms of the level of feeling expressed, but the effects of each are indicative of the institutional differences mentioned above. Gore’s speech, one of the most blistering critiques of a sitting administration ever given by an American politician, was delivered at the height of the 2004 presidential campaign before a packed auditorium at New York University. The speech was widely covered


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by the media, it was continuously rebroadcast by CSPAN, and audiovisual copies were widely distributed by MoveOn, the political organization that sponsored it, as an organizing tool for political activists. The letter to Pravda, on the other hand, was not brought to public attention until 2000. Instead, it was included in a report called “Why Are You Silent about Your Crimes?” summarizing this and many other letters in a similar vein that were received but, of course, never published by the paper. At the time of the Stalinist Terror such expressions of discontent with basic government policy could be a one-way ticket to either death or a long prison sentence. This distinction tracks the substantial role that what Davenport (2007) calls Voice—the impact of public opinion and competitive elections in democratic countries—plays in the difference of levels of repression found between democratic and authoritarian states. But does that difference have much to do with how leadership projects turn out and the relation of their fates to the use of torture? At first glance, given the resounding repudiation of Republicans in the 2008 election in the United States, one might be inclined to say so. A closer look, however, is less reassuring.

Continuous Project, Continuous Torture: The Stalinist Terror Perhaps the most disconcerting aspect of the leadership projects in the Soviet Union and the modern United States from the perspective of the quantitative research on repression is the public indifference to—and, in some cases, active support for—the torture establishment built by both polities. In both cases, the governments formed narratives that cast their enemies as less than human, as threats to the people and their values, threats that had to be eliminated and suppressed. Of course, the actual denouement of these attempts to combine fear, hatred, and scapegoating of those who opposed the world the regimes tried to create was different. In the Soviet Union, while the population developed a healthy reluctance to challenge government decisions, there is scant evidence that the Terror was seen as a general threat to the entire population. Indeed, if you were not a past member or supporter of any opposition group in the party or of one of the groups proscribed by Order 00447 and were very careful to be sure not to indicate any sympathy for those who were, you could have gotten through the 1937–38 years without running tremendous risks (Thurston 1996). There is evidence that the general population thought that those who were tortured and killed really were enemies of the people anyway and that, when they heard that the party apparatchiks and NKVD interrogators themselves were targeted, the general reaction was that there was justice in the country after all (Thurston 1996, Fitzpatrick 1999). Furthermore,


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TORTURE AND LEADERSHIP PROJECTS


the leadership went to considerable lengths to build public perceptions in line with the leadership narrative through show trials and the extensive propaganda surrounding them (Preistland 2005). Since the use of torture was still a rumor, denied strongly and publicly by the government and not contradicted by the press, the people tended to avoid personal risk by taking the Stalinist leadership at its word. Also, the party elite’s need to maintain a leadership stance that avoided orthodox innovator-like dilemmas (and Stalin’s disfavor) was strong enough to withstand the party’s assault on itself (Getty and Naumov 1999). Turning against centralized planning during and after the Stalinist Terror was not only life threatening but also tantamount to repudiating the new and officially indispensable role the party had created for itself. In this case self-interest and caution reinforced themselves. The result was that immediate challenges to the Stalinist project were successfully suppressed. The long-term results were also instructive. First, even the rudimentary avenues of feedback concerning state policies that had existed before the Terror disappeared. Although evidently uncommon, it was not unheard of in the early 1930s for Soviet citizens both in and out of prison to write letters to newspapers and officials like the one quoted above, protesting the application and, in some instances, the reasoning of party decisions. Siegelbaum and Sokolov (2000) record many instances of both. During and after the Terror, individuals did criticize the authorities themselves. Indeed, there was active encouragement for denunciations of local officials for lack of zeal in tracking down enemies of the people or for showing insufficient skill or leadership in economic roles.1 However, the kind of unsolicited and robust criticism of the national leadership, its policies, or their effects found in the letter cited disappeared into private diaries and, later, privately circulated (the so-called samizdat) publications. The advent of World War II in 1941 and the extensive efforts by the security and intelligence agencies to root out any remaining echo of dissent in the armed forces and, as the Red Army advanced, the occupied populations completed the suppression involved (Nettl 1970, Conquest 1990). In addition, there was an explosion of the cult of personality around Stalin in the late 1930s. This aspect of Stalin’s rule became even more pervasive during the war itself. Although Stalin’s virtual destruction of the higher levels of the officer corps of the Red Army contributed greatly to the Germans’ early victories, his steadfast leadership as party secretary, chairman of the council of ministers, and generalissimo of the armed forces was usually recognized as a major factor in the Soviet Union’s final victory. The result was a secondary rally effect as Stalin became more and more a symbol for Soviet resistance and ultimate victory (Brandenberger 2005, Service 2009).2 After the war, exalting Stalin reached such lengths that


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the very idea of criticizing his leadership became not just dangerous, but impolite. Similar combinations of suppression and leadership idolatry were continued, in attenuated form, by subsequent rulers to the point that cumulative positive feedback concerning the performance of the state became pervasive. And, of course, at no point in this entire period did any member of the ruling elite have to worry about the constraints imposed by competitive elections.3 The second factor identified by Davenport (2007) as a restraint on repression is what he refers to as Veto—controls on the actions of governments stemming from structural requirements for internal cooperation among different branches of government. Here as well, the leadership of the Soviet Union faced no particular problems. As was pointed out earlier, the administrative capacity of the Soviet state was not well developed when the Five-Year Plans were launched; indeed, what executive coherence the state had acquired by the advent of World War II was largely due to the need to plan and regulate the economy. It was not that this in itself did not create attenuated versions of the veto points often cited in the domestic democratic peace literature. As Fitzpatrick (1999) points out, the need to accommodate local and regional political interests and to insure cooperation between industrial blocks made for an interesting set of administrative challenges for the Soviet state as its hold on the country’s economy strengthened. However, what was definitely missing in this picture, especially during and after World War II, was any functional constraint on Stalin’s decisions. The famous 1936 Soviet constitution (the so-called Stalin Constitution) is illustrative of why this qualification is necessary. The constitution provides for a separation of powers between a legislature, the Supreme Soviet of the USSR, an executive branch, the Council of People’s Commissars, responsible to it, and an independent court system with a Procurator to supervise execution of the laws (USSR, 1936). However, given the political monopoly of the Communist Party of the Soviet Union (CPSU) and the strict discipline it required of its members in adhering to party directives, the actual decisions, both before and after 1936, were in the hands of the Politburo of the CPSU and, ultimately, the party’s general secretary, Stalin (Getty 2005). After the body shock to the party delivered by the Stalinist Terror, those decisions were not even discussed seriously by other governing bodies, no matter their legal status (Reshetar 1971, Barghoorn 1972). The result of short-circuiting the mechanisms that could have ameliorated repression in the Soviet Union was twofold. First, the leadership project started by the Five-Year Plans and the repressive organs that maintained it became cemented as part of the Stalinist way of life. In this way, at least, the dilemma Stalin faced when the dual crises arose


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was successfully navigated. His power as head of the state and the party, especially after the Terror, was unassailable. In addition, the defeat of Nazi Germany had proven in the most dramatic way possible that the planned economy and the institutions that evolved to support it had created a state that could survive massive trauma and still deliver victory. The contrast with the collapse of the Russian monarchy during World War I could not have been clearer (Thurston 1996). Thereafter, of course, the Stalinist leadership project’s success cemented a variety of inefficiencies into the planning process that became so tied to what the CPSU saw as political exigencies that economic growth stagnated and finally almost collapsed (Ellman 1973, Kotkin 1992). But in the near term, the cumulative positive feedback loops fostered by Soviet policymaking led to a widespread impression of a state with considerable resilience and stability. The second result is somewhat puzzling, given the entrenchment of the state security bureaucracies: torture became much less widespread (Conquest 1990, Solzhenitsyn 1973). This finding is actually in line with the quantitative studies. It is true that both voice and veto were absent in the years of “High Stalinism.” It is also the case that the practice of finding plots hatched by enemies of the people had become routinized by the security agencies, albeit at less comprehensive levels than in the late 1930s (Rittersporn 1993).4 The official promulgation of a siege mentality during the early stages of the cold war did little to ease public impressions of threats from outside forces. Finally, it is not as if torture was abandoned; its use on “known and obstinate enemies of the people” continued. In other words, the regime continued to use the tools of the Terror—constant surveillance, intense public agitation against external threats, exposure of enemies of the people, prophylactic arrests, and confessions obtained by torture—as an official, though informal, part of maintaining power. For all this, however, Stalin was in an impregnable position as leader and his regime had weathered threats much more significant than the conspiracies that the successors of the NKVD purported to have uncovered between 1946 and his death in 1952, a period when, in line with the quantitative findings and those in this book, the use of mass arrests and torture was not as extensive because the state no longer felt the level of threat it had in 1937–38. Yet the use of torture as an informal, covertly legalized state activity continued and became part of the governing fabric of the Soviet Union. This was true even after Nikita Khrushchev, the next great repudiator in Soviet history, disavowed Stalinist institutions. The execution of Beria (by then deputy premier), Minister of State Security Viktor Abakumov, and their associates after Stalin’s death put at least the elite of the CPSU beyond the reach of the facilitators of the torture adjunct of Stalin’s regime.5 But, as a concern for intercurrence would predict, many of the features of the


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successful narrative used by Stalin to govern the country continued. The Soviet economy was continually extolled for its progress even as the populace itself experienced only frustration with its failures. The new regime altered its inherited cold war ideology by adopting the idea of “peaceful coexistence” with the capitalist world, tempered with concern about the threat of strategic isolation and counterrevolutionary activity by the United States and its puppets, treason within the communist movement by the Yugoslavs and, later, the Chinese, and the need for continuous vigilance against foreign influences (Sakwa 1999). And, because the narrative largely survived and was strong enough to justify itself, the security agencies and torture, although becoming less common and more covert, continued as well.6

Disrupted Project, Disrupted Torture: The War on Terror The short-term results of the revelations concerning torture in the United States might appear to be a sweeping confirmation of the role of voice in reducing repression in democratic societies, but only at first glance. Indeed, the Bush administration was vindicated, in its own eyes at least, by the initial public response to the interrogation practices it had used in Iraq and Guantanamo: the 2004 election returned them to power, despite the scandal at Abu Ghraib. Indeed, the use of torture never became a major campaign issue during that election cycle or, for that matter, during those that followed close on its heels. For a not inconsiderable part of the population and much of the Republican elite, the entire matter of a public debate about the torture of terrorists was (and is) considered a distraction that not just threatens national security but aids the terrorists in a manner akin to treason (see the various expressions of this linked in Lederman 2006d). Even prominent religious organizations joined the chorus calling for forms of abuse very similar to those used by the NKVD 70 years earlier to help protect the American people and their “values” (Lederman 2006d). Bush’s approval ratings did begin to sink after the 2004 election, but not due to public outcry over torture. Instead, it was the continuation of the Iraq War and a rapidly deteriorating economy that characterized the last months of the Bush administration that led to their decline. Yet in the 2008 presidential election voice did deliver a substantial Democratic victory and a “unified government” (both houses of Congress and the presidency in the hands of one party) for the Democrats for the first time since 1992. When one recalls the fond hopes of the Republicans for establishing a permanent majority on the basis of a unified party with majority electoral support, the 2008 verdict is certainly the kind of public


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reaction that has been cited by the domestic peace theorists as a constraint on repressive activities. So far, however, the Obama administration has been more a correction to the course set by the Bush White House on both foreign policy and the torture issue than a sea change. The difficulty has been that the Bush administration leadership project I have described here is, in fact, the result of a real crisis; nothing else could provide the rally effect necessary to create the policy opportunities I have described. The invasions of Iraq and Afghanistan have yet to provide the political solutions necessary to defeat the machinations of the terrorists. The Obama administration was committed during the 2008 campaign to a new effort in Afghanistan and to withdrawal from Iraq, both at least partly accomplished at the time of writing. However, the incomplete nature of his administration’s efforts in comparison to the maximalist approach of the Bush leadership narrative runs against the inclinations of Obama’s political allies and in favor of the political interests of his opponents. The resulting friction produces a dissatisfaction that is exploited by supporters of the Bush narrative. The new president has already issued executive orders forbidding use of “alternative procedures” of interrogation by the armed forces and U.S. intelligence agencies and withdrawing the torture memos. Promising to close Guantanamo Bay prison by the end of 2010 also signaled a willingness to break with the recent past, despite congressional roadblocks to following through on the decision. In addition, although much of the Military Commissions Act has not been repealed, some of its worse features have been eliminated by further executive orders and by passage of the Military Commissions Act of 2009. Finally, the attorney general decided that most, but not all, Guantanamo detainees should be tried for their crimes in the federal courts, not by military commissions, although resistance to this decision by both Congress and local officials has stalled further progress. However, although laws have been passed, orders issued, promises made, and memoranda of law repudiated, the informal institutions that the torture regime was based on could be reinstated easily. The Obama administration has not foresworn the use of renditions (kidnapping suspects on foreign territory) nor has it abandoned the assertions of executive privilege that have hindered public monitoring of the agencies involved in torture.7 Furthermore, although Attorney General Holder has launched investigations into the possibility of limited war crimes prosecutions, President Obama appears to have little relish for prosecuting former Bush administration officials, despite official rulings that at least one detainee was tortured, violating both the anti-torture statute and the War Crimes Act (Woodward 2009). In a way this is not surprising; although, as Gronke and his associates show, public opinion in the United States has generally


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opposed torture since the 9/11 attacks, the level of minority support has been substantial, averaging around 40.8 percent of all respondents. Furthermore, since Obama’s election support for torturous interrogations has reached majority levels (Gronke et al., 2010).8 Perhaps even more telling is the public reaction to the foiled 2009 Christmas Day terrorist attack on Delta flight 253. In a poll taken five days afterward, fully 71 percent of those questioned thought that the investigation of the attack should have been handled by the military and 58 percent that waterboarding and other “aggressive interrogation techniques” should be used in questioning Umar Farouk Abdulmutallab, the suspected terrorist (Rasmussen Reports 2009). If a successful large-scale terrorist attack were to occur, it is conceivable that President Obama would face overwhelming public pressure to reinstate harsh interrogation. His administration appears well aware of this possibility and has shown little inclination to fully relinquish the statutory and executive authority it might need going forward. The veto response has been similarly piecemeal. As has already been pointed out, the obstacles the judicial system placed in the way of torturous interrogations with its opinions in the Rasul, Hamdi, and Hamdan decisions led to new legislation—the DTA in 2005 and the MCA in 2006. During the last year of the Bush administration, this trend continued with the Supreme Court’s decision in Boumediene v. Bush (553 US 723). In Boumediene the Court held that Guantanamo detainees had a constitutional right to submit habeas corpus petitions to federal courts and that the Combatant Status Review Boards provided for in the DTA and available at Guantanamo were inadequate replacements for a habeas hearing before any court. All but one of the defendants involved in the case were soon released. However, the courts have not been as forthcoming about relief for torture victims. Indeed, so far cases being brought by torture victims and against the use of military commissions have been dismissed for lack of standing or because national security interests might be compromised (Cole 2009). Congressional action has been as inconsistent also. President Bush’s ambitious domestic agenda in his second term fell afoul of the special rules concerning unlimited debate in the Senate where, in an atmosphere of rapidly declining support for the president, Democrats were able to filibuster many of his administration’s initiatives. When the Democrats were able to retake majorities in both houses in 2006, Bush administration proposals were “dead on arrival” in most instances and, as might be expected, the number of presidential vetoes increased. After the election of 2008, President Obama signed the Military Commissions Act mentioned above, a series of amendments to the MCA, into law in October 2009. Although this new legislation does address some of the more egregious


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due process failings of the commissions under the previous law—admission of coerced or hearsay evidence, resources for defense counsel—it leaves many other provisions under the MCA untouched (Mariner 2009a, 2009b). Particularly worrisome are the still unmodified provisions in section 6(a)(3) of the MCA allowing the president to authorize interrogation methods for intelligence agencies through interpretation of the Geneva Convention (Lederman 2007). Finally, although there have been efforts by some in Congress to investigate the development of the use of torture, only one comprehensive effort to address the issue with legislation has yet resulted—the Cruel, Inhuman, and Degrading Interrogations Prohibition Act of 2010 (U.S. Congress 2008, Ambinder 2010a). The larger context, however, is clear: the narrative used by the Bush administration as a tool to build support for the War on Terror and its torture adjunct is still alive and well, despite the partial failure of the leadership project it supported. The foiled Christmas Day terrorist attack immediately revived many of its memes in popular discourse: warnings about the evil intent of the United States’ enemies; the need to regard terror as a military, not a law enforcement, problem; the need to greatly increase security surveillance to “insure the safety of the American people”; and questioning of the patriotism or “seriousness” of those not holding a maximalist position on the War on Terror (Duss 2010, Farley 2010). Republican political elites were ready to exploit renewed fears to reactivate the Bush narrative for political advantage as well. This is not to say that such fears are completely unfounded, of course, or that security concerns should be discounted. It is more that the new president, despite his considerable rhetorical skills, has had a difficult time displacing the leadership narrative that preceded him and calming the public disquiet that fuels it. In his speech reorienting overseas military efforts to Afghanistan, Obama made every effort to link U.S. policy to a cost-benefit calculus that would free it from a maximalist stance (Stewart 2010). It remains to be seen whether this tactic will work politically. In the meantime, continuing widespread public acceptance of the premises of the Bush administration’s narrative formed around the War on Terror continues to give his opponents opportunities. This opens a daunting possibility. Barring further action to enhance the veto mechanisms that can preclude the use of torture, voice itself, in the form of electoral defeats for the Democrats, may lead, paradoxically, to the reinstatement of the leadership narrative that justifies it. Quantitative research suggests that, unless concerted political policy decisions against using torture emerge, when even democratic polities return to the level of threat they faced in the past they will reinstitute torture and use techniques at least as severe as those used before (Davenport and Armstrong 2005). The very factors that can ameliorate


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repression in most cases, in other words, could reseat it at the center of the security policy of the United States. By looking at the Soviet example we can see how tenacious the hold of torture on that seat can be.

When the war began, it was my opinion that all those who ... could not conscientiously approve of the conduct of the President, in the beginning of it, should, nevertheless, as good citizens and patriots, remain silent on that point, at least until the war should have ended. Some leading Democrats, including ex-President Van Buren, have taken this same view, as I understand them, and I adhered to it ... and I think I should still adhere to it, were it not that the President and his friends will not allow it to be so. Besides the continual effort of the President to argue every silent vote given for supplies into an endorsement of the justice and wisdom of his conduct ... I carefully examined the President’s messages to ascertain what he himself had said and proved upon the point. The result of this examination was to make the impression, that taking for true, all the President states as facts, he falls far short of proving his justification; and that the President would have gone further with his proof, if it had not been for the small matter that the truth would not permit him. —Representative Abraham Lincoln, speech to the House of Representatives, January 12, 1848 (Smith 2005, 122)

Lincoln’s speech as a member of the new Whig majority in the House after the election of 1846 is an indication of how completely the leadership narrative of the Polk administration had collapsed, despite (and, in part, because of) the continuation of the Mexican War. Here is voice again and in full flower, representing the electorate’s fairly swift repudiation of both Polk personally (he was “Polk, the Mendacious” to all Whigs and more than a few disappointed Democrats by then) and his administration’s policies in general. This will probably remind some readers of similar denunciations made of the Bush administration, though usually not in the halls of Congress. But, unlike George W. Bush, Polk found his policies and their justifications under successful assault very soon after the original narrative was launched. However, a full-throated defense of what were, after all, successful administration initiatives by members of his own party was far less in evidence. Why should a successful leadership project bring on such a political debacle? There are at least two reasons for this situation that come to mind. The first has to do with the character of secular time. To recall Skowronek’s scheme of analysis, political cycles are subject to two separate influences.


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Project Completion and Its Aftermath: The Polk Administration and the Mexican War


The first, political time, has already been covered at length here. The second is what he calls secular time—that is, the slowly increasing levels of societal and technological complexity associated with economic development and institutional thickening in societies. As economies become more complex and interdependent and as the interests associated with them gain footholds in polities, the scope of the kinds of policy changes associated with great repudiators becomes more restricted. There are too many interests to accommodate, too many policies to change to achieve sustainable institutional support, too few resources readily available to achieve remarkable results. Hence a president such as Reagan, even if he had been committed to the full agenda of his followers (and the evidence is mixed at best for that), found it as difficult to make the oil tanker of U.S. domestic policy change course as Mikhail Gorbachev found somewhat later when he tried similar tactics to save a floundering Soviet Union (Skowronek 1997). Polk’s domestic agenda was limited, but not inconsequential. He had pledged to reform the nation’s tariff system and to enable the Department of the Treasury instead of selected state banks to hold federal tax receipts and regulate their expenditure. With virtually the entire revenue of the federal government derived from customs duties, tariff reform affected the government’s capability to pay its bills directly. Moreover, by the time the new tariff legislation was approved by the House of Representatives, the country was already at war with Mexico. Polk demanded a thorough review of the present system of federal revenues and expenditures—and thence was provided with the first approximation of an actual budget for the federal government—and then used these data to support his proposals. The “Walker Tariff ” (named after Robert Walker, Polk’s treasury secretary) that resulted from his proposals was balanced on a tightrope between a “revenue only” and an “incidental protection” measure. Getting this legislation approved was not easy; however, after several anxious weeks in the Senate, a tariff revision and accompanying legislation creating “bonded warehousing” was passed. The system that resulted lasted until 1861.9 The legislation to establish an independent treasury had been introduced at about the same time as tariff reform and took even longer to pass. This, however, was largely due to the administration becoming involved in the dual crisis over Oregon and Texas. When the bill was finally seriously considered it passed with little controversy (Bergeron 1987). As pointed out above, Polk had used the dual crisis adroitly to maintain party discipline among Democrats on these issues, but once these measures had been passed he saw his domestic policy promises fulfilled. The contrast between so limited a policy agenda and those facing leaders in the Soviet Union and the modern United States is striking. It is not as if Polk’s proposals sailed through Congress with no mobilization of his


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opponents; there was strong opposition to the proposed tariff changes. However, once the tariff revisions had been made and the independent treasury established, the Polk administration had settled in to run the country: collect revenues, bring the Mexican War to a successful conclusion, and stand foursquare against using federal money for internal improvements. Consequently, a main feature of the other regime projects studied here is missing: after the first year of the Polk administration, there were no further major goals to fulfill to achieve the vision of his supporters. In other words, one reason the leadership narrative lost compulsion may have been the absence of proposed policies for supporters in either elites or mass publics to rally around. This is almost solely because of the character of the policy environment; government in the United States had much less to do in the early nineteenth century than it does today. Early success on Polk’s domestic agenda deprived his supporters of further incentives to support him on the war. That, in turn, emboldened his critics and strengthened his political opponents. Having enacted a successful domestic program, acquired Oregon, and safely put Texas, New Mexico, and California in American hands, the Polk administration found itself losing the House of Representatives and enduring a rising firestorm of criticism over its invasion of Mexico (Johannsen 1985)—a paradoxical result, indeed. As paradoxical was the other reason I think Polk found himself in political trouble. One of the characteristics of the leadership projects in the Soviet Union and the modern United States has been that the projects themselves created forces that both opposed and sustained them. Projects to completely recast the economy of a modern nation or the political complexion of an entire geographic region would almost certainly generate staunch opposition to the regimes contemplating them. In the case of both the transformation of the Soviet Union’s economy and the United States’ wars in Afghanistan and Iraq, initial successes drove the leadership of the governments involved to push through to maximize their goals. The success of these projects promised a permanent shift in political conditions in the respective countries, shifts that would ensure fulfillment of the promises of the political movements their governments represented—hence the overreaching criticized in both efforts; hence the increasing rigidity of their leaderships’ policy stances; hence the stubborn, albeit often passive, resistance of the peoples subjected to those policies; and hence, most of all, the increasing desperation of the projects’ opponents. In other words, I am asserting here that in both the Soviet Union in the 1930s and in the modern United States, the regime projects created the very conditions that spawned the threat and, at least in the latter case, the reality of violent opposition to their policy goals. The resulting attendant descent into the use of torture in both cases has been described here already.


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However, there is a side product of this process that has not yet been covered. As the dangers and stresses of the leadership projects and the possibility of both elite and mass support waning increased in both the Soviet Union and the recent United States, so did the vehemence of the projects’ supporters, both within government and without. It was when the Stalinist Terror began that Stalin tightened CPSU discipline to its most stringent levels and public denunciations of opponents of the effort to build socialism became the strongest. It was when U.S. forces found themselves in a desperate situation degenerating into a full-scale war in Iraq that the Bush administration became most dedicated to the War on Terror. It was as the Terror took hold that public denunciations by party members and common citizens of all opponents as enemies of the people became the strongest. It was as the war in Iraq increased in fury there were public portrayals of domestic opposition to the administration as bordering on treason. It was just this upsurge of core support, just this degree of ideological polarization, that the Polk administration’s successes precluded. Not only did Polk’s supporters not have any further policy goals to pursue, but also the opposition of the Mexicans, under the pressure of repeated military defeats and their failure to ignite a popular insurrection against the U.S. invaders, became less and less a concern. In part, this was because Polk, having achieved all the goals he set out when originally negotiating with the Mexican government—New Mexico and California in American hands, the boundary of Texas set at the Rio Grande—steadfastly refused to bow to pressure from many quarters to annex Mexico completely (Johannsen 1985). Indeed, the campaign to take Mexico City was undertaken not to conquer Mexico, but to force the Mexican government to negotiate a peace treaty so that U.S. forces could withdraw from the country. Again, Polk’s success had left both the president and his supporters no reason to ramp up a campaign to win over public opinion. Moreover, the absence of promises yet to be fulfilled deprived the leadership narrative of its sustaining force. As with the Iraq War 150 years later, the lack of sustained support for the leadership narrative of the Polk administration contributed, though not in the same way, to a collapse of general public support as well. Within his first year in office, Polk had already disappointed many in his own party by compromising with Great Britain over the issue of demarcating the borders of Oregon but was able to keep discipline in the ranks by referring to his then unfinished agenda. When the Mexican War began, as Lincoln says in the quote above, at first the rally effect of the declaration kept criticism at bay effectively. The overwhelming and rapid success of the Polk administration in fulfilling its goals, however, gave new space for a rival narrative of considerable force: that the United States


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had illegally and immorally forced war on a much weaker fellow republic for the material gain of the slave-owning states and the political gain of Polk himself. These objections had been voiced at the onset of the war but had had little public traction. As 1846 midterm elections approached and all of the administration’s goals, except peace with Mexico, had been achieved, the Democrats’ difficulties became more evident. The war was costing a substantial amount of money and, although battlefield casualties had been low, the number of service-related deaths, mostly from sickness, was worrying.10 These concerns acted as a background for a drumbeat of criticism of the war itself as a shameful display of imperial ambition, unworthy of a republican power (Johannsen 1985). The midterm results further cemented the framing of Polk and his administration as amoral tools of the slave-owning interests. Although the opponents never gained the wholesale public condemnation they sought against the war, Skowronek (1997) is right in pointing out that the success of the administration had created grounds for the emergence of new issues that could not be addressed within the political compass of a Jacksonian Stalwart. These new issues appeared in part as a result of the president’s supporters no longer having any real interest in suppressing them.

Intensity and the Justification of Torture The interpretations above, if correct, reveal something disturbing about the leadership projects and accompanying narratives of the cases considered here. It is not the success or failure of the leadership projects that have left the way open for an informal legalization of torture. The critical variables are instead the level of resistance to the projects and the resulting doggedness of the defense of leadership narratives by their supporters. Indeed, as the experience of the Polk administration just examined shows, the more immediate the success of the leadership project and the more the threat of violent opposition subsides, the less likely a leadership narrative is to provide incentives for supporters to circle their wagons around their political goals and the leadership responsible for them. By the same token, more intense opposition to a leadership project and unfulfilled objectives—for both the project itself and the domestic agenda it provides cover for—will evoke a more concentrated and determined defense of the narrative and a strong leadership to support it. Those leaders in turn will have strong incentives to see the continuation of the projects and protection of the narratives as justification for turning the full resources of their states, released from legal constraints, on those who oppose them.


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In the case of both the Soviet Union in the late 1930s and the present United States this process led to more rigid policy stances and to a further demonization of the enemies the narratives described. The enemies of the people were and the terror networks of al Qaeda are real opponents of the governments involved; Stalin’s opponents did exist, bin Laden did direct the 9/11 attacks. In both instances, however, the perceptions of potential threats became more and more exaggerated as the initial “victories” came under duress. It was in the atmosphere of social and economic disorder and a deteriorating and threatening international situation after the initial successes of the first Five-Year Plan that the Stalinist leadership became convinced that the party had become heavily infiltrated with class enemies and then that the military was planning a coup d’etat (Getty and Naumov 1999, Shearer 2003). It was after the fall of the Taliban in Afghanistan and of the Baa’th government in Iraq that the emergence of the Iraqi insurrection convinced the Bush administration that its policy initiatives were in jeopardy (Mayer 2008, Mueller 2005). Further, in both countries as the leadership projects came under perceived threat the governments involved made systematic efforts to manipulate the level of public disquiet. Part of this, in both instances, was due to the real anxieties of the governing elites over the recent developments, but it was also done to attempt boosting the rally effects that sustained their regime narratives. The Stalinists, in full control of media, never relented in their efforts to maintain a narrative concerning the imminent threats to the Soviet Union from foreign powers and their agents and from internal opponents of the country’s efforts to build socialism. Conflating these two themes became a common tactic as the years of the Stalinist Terror approached (Chase 2005). Similarly, the Bush administration used the threat of terrorist attacks to shield their policies from criticism and to insure the loyalty of the Republican base (Greenwald 2007). It was as these efforts began to reach a crescendo that the use of torture reached one as well and the informal legalization of torturous interrogations became established. It is the residue of the narrative justifying the use of informal institutions to legalize torture as an interrogation technique that is the problem going forward in the United States. That residue has the potential for continuing the practice in already sanctioned forms. In their recent study of torture, Davenport, Armstrong, and Moore (2007) look at a variety of structural constraints on the use of torture. As they point out, although regimes with high levels of constraints on executives, less regulation of political parties, and greater electoral competition are significantly less likely to torture when not under threat, the substantive differences from


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autocracies are much less than one might predict. This finding is recapitulated and strengthened when regimes are under threat. Indeed, when threat levels are high, the incidence of torture is quite similar, no matter what structural characteristics are considered. This picture is disquieting when combined with Davenport and Armstrong’s (2005) earlier assertion that, as governments gain experience with torture, even democratic regimes are likely to continue to use torture to the extent they have historically. There are continuing calls from Republican and neoconservative elites for military action to meet threats in the Middle East, thus recapitulating the secondary rally effect Stalin was able to utilize during and after World War II to create the impervious autocracy of High Stalinism. There are continuing calls that still have resonance for the United States to return to “extreme techniques” to develop intelligence to help protect the American people. The suspended leadership narrative of the Bush administration hangs above U.S. politics like the sword of Damocles, always present, always with prominent public adherents, always threatening to reinstate torture at the center of America’s strategies in her struggle with the terrorists. Appendix to Chapter 6: Personality and Leadership Stalin is as near like Tom Pendergast as any man I know. —President Harry Truman upon meeting Stalin at the Potsdam Conference, 1945 (Daniels 1951, 278. Pendergast was the longtime Democratic political boss of St. Louis)

Some might be tempted to see this book as an attempt to directly compare the personalities of George W. Bush and Stalin. After all, both men played pivotal roles in the decision-making that led to the routine use of torture in interrogations. However, nothing could be further from the truth than such a comparison. The whole purpose of this study has been to avoid reading the institutional situations that led to the use of torture as an accommodating informal institution in the United States and the Soviet Union as being the result of the personalities of the leaders involved. There are some superficial similarities between the two men, particularly in their determination, willingness to take risks, and ideological certainty (Tucker 1990, Suskind 2004b). However, a fuller contrast between the personalities of the two leaders is one of the best pieces of supporting evidence for the institutional perspective offered here. George W. Bush, by all reports, is a compassionate and stable individual with a strong moral sense and deep religious convictions (Suskind 2004b, 2006). There is little evidence that


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he enthusiastically embraced either mass imprisonment or the use of abusive techniques; rather it seems he saw them as a matter of national necessity forced on the United States by a relentless and evil enemy (Suskind 2006). Stalin, however, was a vainglorious and domineering individual, driven by irrational fears and characterized by extreme ruthlessness (Tucker 1990, Medvedev 1999). It takes a special kind of individual to sign death warrants for thousands of people as part of everyday business; Stalin did it regularly during the Stalinist Terror and insisted that other members of the Politburo join him, even when their friends were involved (Getty and Naumov 1999).11 Indeed, Stalin seems to have been driven by a desire to force his opponents—and his subordinates—to swallow their pride and kowtow to his decisions in every sphere of their lives (Tucker 1990). There are reasons why George W. Bush is considered a “hard case” by those who know him well, but even at his worst he does not approach this kind of behavior (Suskind 2006). Considering James K. Polk in this context makes the case for an institutional argument, if anything, stronger. Like Stalin and even more like Bush, Polk was not a man given to second guessing himself. Indeed, of the three leaders he was probably the most unlikely to reconsider a course of action. His diary is replete with examples of his unwillingness to follow his cabinet’s advice, of an ideological certainty even more complete than Stalin’s, and of a faith in divine providence even more assured then Bush’s (Quaife 1910). Yet, despite these traits and despite the serious political difficulties that arose for him during the Mexican War, there is no evidence that Polk ever considered establishing the informal institutions that I argue led to the use of torture during the rule of the other two men. Polk was not the product of an era where such treatment would have been considered beyond the pale either. Recall that he was a slave owner living in a slaveholding country. Although there is no evidence that Polk himself ever abused his chattels, he was certainly not unfamiliar with the use of torture to obtain information. Not only was torture in common use to maintain discipline on plantations, but also the suppression of Nat Turner’s rebellion in 1831, an event that every slaveholder in the United States was well acquainted with, was accompanied by extensive use of torture against the participants to uncover the extent of the conspiracy and to terrorize the slave population back into submission. Also, although Polk apparently never succumbed to the more virulent racism that characterized many Americans’ attitudes toward Mexicans, there is plenty of evidence that he considered them deficient in the personal traits that


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would enable them to govern themselves effectively (Johannsen 1985, Haynes 2006). In short, if an argument from personality was sufficient, then we could have expected torture to emerge, with Polk’s (probably reluctant) consent, as frustrations with the U.S. occupation of Mexico increased. However, the mechanisms to produce torture remained incomplete and it did not. It is the institutions and the incentives they create that matter here.


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Conclusions

Consequences It doesn’t matter what distribution that memo had or how tightly it was controlled. That kind of thinking will permeate the system by word of mouth. Anyone who suggests that this and other official memos on this subject didn’t have an impact doesn’t know how these things work on the ground. —Former CIA agent Milton Beardon speaking of the unclassified Bybee memo issued by the OLC on August 1, 2002 (Pfiffner 2010, 25)

B

etween August 2003 and January 2004 thirteen people were tortured and murdered by members of the Fuentes drug cartel and corrupt Mexican police officers in a modest house in a middle class residential neighborhood in Cuidad Juarez, directly across the border from El Paso, Texas. Ordinarily, given the rampant violence in that troubled city, such crimes would be considered regrettable, but out of U.S. government control. In the instance of what became known as the “House of Death,” however, the story is more complicated and disturbing. The Bureau of Immigration and Customs Enforcement (BICE) of the Department of Homeland Security had paid $260,000 to one of the persons responsible for the murders for becoming an informant against the cartel and was well aware of his serial participation in multiple murders. After the evidence of his compliance—he tape-recorded the first of the murders surreptitiously and presented the recording to his BICE handlers—was in government hands, his continued use as an agent was confirmed by officials at the United States District Attorney’s office for Western Texas and by their superiors at the Department of Justice in Washington. The informant in question was a former Mexican traffic policeman, Guillermo Ramirez Peyro, known in the Fuentes organization as Lalo.


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7


Lalo began working for the Fuentes cartel soon after he was fired from the police and rose slowly in the organization. In April 2000, he approached U.S. authorities in El Paso, offering to be an informant on the cartel. He had been expecting to be put in contact with the Drug Enforcement Agency (DEA) but instead was given a “handler” affiliated with BICE. Between 2001 and 2002, Lalo passed on information through his handlers to BICE, DEA, and the FBI implicating his immediate superior in the cartel, Heriberto Santillan-Tabares, as a major cog in the cartel’s smuggling and execution operations. At the time, Santillan was aided in these murders—he called them carne asadas (barbeques)—by Commander Miguel Loya Gallegos, the night commander of the Chihuahua state police, and his officers (Conroy 2004, Rose 2006, Hyde 2007). By 2003 Lalo had thoroughly penetrated the lower levels of the Fuentes cartel. His intelligence had made Santillan the target of a multi-agency criminal investigation as a result. In August 2003, Lalo took the next step up the cartel ladder. He was approached by Santillan to help two members of the Juarez judicial police (Mexican parlance for detectives) with the murder of one of Santillan’s childhood friends, a lawyer named Fernando Reyes who had been on the fringes of the cartel’s business and was suspected of being an informant. Lalo actually secretly tape-recorded his conversation with Santillan and the entire murder, a grisly affair beginning with partial strangulation and finishing with the use of a shovel to smash Reyes’s skull. He then helped bury the body, the first of thirteen buried in the backyard of the House of Death. After this episode, he dutifully reported to his BICE handlers, playing them the recording to back up his story (Conroy 2004, Rose 2006, Hyde 2007). The use of paid informants is nothing new nor is the use of those suspected of heinous crimes; no one expects that informants at the center of criminal enterprises will be saints. However, it is rare indeed to have an informer nonchalantly present his handlers with a confession to being an accomplice to first-degree murder, identify the target of a major federal investigation as the instigator of the criminal conspiracy that led to it, and provide conclusive proof of the conspiracy, the murder itself, and his participation in it. As might be expected, the local BICE agents were unsure what to do and contacted the U.S. district attorney for Western Texas, Johnny Sutton, a longtime associate of George W. Bush. Continuing to use an informant who had admitted to committing murder was obviously “risky” and the BICE agents involved wanted their superiors to sign off on employing and paying Lalo.1 The decision was subsequently sent on to Sutton’s superiors at the Department of Justice. After some discussion, it was decided that Lalo could still be used as an informant, despite the obvious risk of further crimes and possible compromise of the interagency


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operation against Santillan. Twelve more murders were committed during 2003 at the House of Death; Lalo facilitated all of them and directly participated in many. All of his conversations with Santillan, including those directing further carne asadas, were recorded and reported to his handlers. To provide an additional source of information, BICE had also bugged Lalo’s phone (Conroy 2004, Rose 2006, Hyde 2007). During the last of these murders, one of the victims revealed the identity of the DEA’s agents in Cuidad Juarez to Santillan and Commander Loya. This information led to an attempt on the life of Homer Glen McBrayer, a DEA agent operating in Cuidad Juarez under diplomatic cover, and his family. McBrayer was phoned by his wife in the early evening of January 14, 2004; men she did not know had been ringing their doorbell incessantly. McBrayer rushed home and got his wife and two daughters into his car. He was then stopped by a Mexican police car and two cars full of civilians, all Santillan’s associates. Luckily, McBrayer was able to contact another DEA agent, who quickly arrived. At this point McBrayer’s assailants relented; they were right in the middle of a well-traveled street with potential witnesses everywhere and their intended victims were agents and citizens of a powerful and hostile government. As might be expected, this near murder of an undercover DEA agent and his family at the behest of the target of an ongoing investigation and with the help of an informant—Lalo—that the DEA thought deactivated six months previously caused a firestorm of interagency controversy.2 In an effort to quiet things down, Santillan was lured to El Paso by Lalo and arrested on a sealed indictment for drug trafficking, an indictment that was soon amended to include five of the previously disregarded murders at the House of Death. Unfortunately, the Mexican authorities, always distrusted by BICE and the federal attorneys attached to the investigation, were not informed of the House of Death and the arrests until some days later. The actual murderers, Commander Loya and many of his officers, escaped as a result (Conroy 2004, Rose 2006, Hyde 2007). By now careful readers will have noticed a number of similarities between this episode and the informal legalization of torture by the United States already described. Both episodes combine a sense of crisis, a deepening commitment to intense secrecy, distrust of legal methods and standard operating procedures, and a willingness to embrace “the dark side” to gain an intelligence advantage over a cunning and ruthless enemy. The then-head of the Criminal Division, Michael Chertoff, had, in fact, reviewed and largely approved the first Bybee memo but warned Yoo that his division would not immunize the CIA from possible criminal charges before the fact (U.S. Department of Justice 2009). There is no further direct evidence of Criminal Division involvement in the legalization of torture and certainly none of Judge Chertoff leaking


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the contents of the memo. But recall that this Bybee memo, although not made public, was not classified; as Agent Beardon says above, the chances that its contents remained a close secret within the Department of Justice are slim. Furthermore, the prima facie evidence is strong in this case for the slow decay of informal legal restraints that Rejali (2006, 2007) notes as part of the side effects of torture becoming established. Rejali (2006) refers to Gaspari’s useful distinction of Brazilian soldiers during the time of the Gorillas (the military dictators of the 1960s and 1970s) as “combatants”—those in the military who actually use torture to interrogate suspect terrorists—and “bureaucrats”—those who are more concerned with the discipline and functioning of the armed forces. As he points out, such two-track interrogation systems have a strong tendency to undermine discipline and organizational solidarity. I think that recent history in the United States suggests strongly that similar two-track systems have emerged at high policy levels as well as in the interrogation rooms they facilitate. The emergence of the War Council of lawyers called together to formulate legal strategy for the War on Terror is indicative. All of them—James Haynes, John Rizzo, David Addington, John Yoo, Timothy Flanigan, and Alberto Gonzales—were connected to either the Department of Defense, the White House, the CIA, or the Department of Justice. It was their deliberations that led directly to the legal strategies that informally legalized torture by the armed forces and by intelligence agencies, strategies that were opposed by “bureaucrats”—the judge advocate generals of the services at the Department of Defense and officials in the usual chain of command in other agencies and their attorneys (Sands 2008). Later meetings between Gonzales and members of the War Council prepared the way for the Principles Committee of the National Security Council—Vice President Richard Cheney, Attorney General John Ashcroft, National Security Advisor Condoleezza Rice, Secretary of Defense Donald Rumsfeld, Secretary of State Colin Powell, and CIA Director George Tenet—to meet in Rice’s office at the White House to plan the interrogation of terrorist suspects, meetings that included approval of combined techniques in classic long interrogations. President Bush has publicly admitted that he was aware of these meetings and their purpose and that he personally authorized the use of waterboarding by the CIA (Greenberg, Rosenberg, and de Vogue 2008, Smith 2010)3. In such a policymaking environment, what subordinate would reveal a lack of “toughness” by refusing to use a Mexican drug dealer/murderer as an informant if his intelligence might bring down a major drug cartel, especially if his victims were not citizens and were killed in Mexico, outside U.S. jurisdiction? I think the deaths in Cuidad Juarez speak loud enough for us to be fairly certain of the answer to this question.


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151

That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal advisor to a President in time of transition and public anxiety. ... A judge, like an executive advisor, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. —Justice Robert Jackson, concurring opinion in Youngstown Sheet and Tube Company v. Sawyer (343 US 579 [1952], 623)

I would not have told such a regrettable story unless there were an overriding reason. For the House of Death has a lesson for us, one foretold by the policy lessons rising from the comparative analysis of the informal legalization of torture by the United States and the Soviet Union and the portent of these policies for the future. Recall the sequence of the informal institutionalization of torture in the Soviet Union described earlier in this book. There was a purge of NKVD interrogators; investigations were launched as the Stalinist Terror came to an end; of those investigated roughly one-third were dismissed and many others convicted of breaches of “socialist legality” (Khlevniuk 2003). However, efforts to bring the worst of the NKVD “bonebreakers” to book ran afoul of the 1939 memorandum issued by the Central Committee mentioned earlier. The protection thus extended absolved most of the personnel involved with torture during the Terror; those investigated and sent into the gulag or to their deaths tended to be Yezhov’s protégés at the higher levels of command (Jansen and Petrov 2002). Subsequent practice by the security agencies, unchecked by either the party or Stalin himself, slowly cemented torture as an integral part of how the state worked in the Soviet Union. After the NKVD had been reined in, the kind of wholesale use of torture and abusive techniques in interrogations common in the Terror receded (Getty and Naumov 1999). But recall the text of the 1939 telegram: the party had not outlawed the use of torture; it had only reserved torturous interrogations for “exceptional cases against known and obstinate enemies of the people” (Khlevniuk 2003, 31). The interested reader can see how much restraint this created on the security services by reading the heartwrenching account of the brutal and sadistic interrogation of Alexander Dolgun by Deputy Minster of State Security Mikhail Ryumin in Gulag Archipelago (Solzhenitsyn 1973). The operative part of this account is that it took place in 1948, long after the end of Yezhov’s reign. After


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de-Stalinization, the continuation of the basics of the Stalinist leadership narrative, in combination with national security concerns during the cold war and the impetus to control public order through selective prophylactic arrests to suppress dissent, always provided a justification for torture of enemies of the people. Torture practice became more subtle as time went on—the psychiatric hospital partially replaced the Lubyanka—but the metamorphosis of the Soviet Union into a country where its citizens could rightly fear informally sanctioned torture at the hands of their government became complete. Indeed, it was just this defenselessness that was usually cited as the reason for denying that the rule of law could be found there. In the United States the informal institutionalization of torture has had a different course but could be as dangerous. The roots of the dilemma can be found in the quote from Justice Jackson above. The presidency has always been characterized, as we have seen, by a considerable, but ill-defined, grant of executive discretion. This discretion, usually deferred to by both the legislative and judicial branches, has been a mainspring of legal change, especially since the establishment of a national, activist state in the mid-twentieth century (Griffin 1999). As Pfiffner (2010) points out, the Bush administration made a strong effort to informally legalize torture as a method of interrogation by the United States. The opening gambit of this strategy was the original decision to deny detainees protections granted by the Geneva Conventions when military necessity dictated it. The OLC torture memos mentioned earlier went a long way toward establishing torture techniques as legally defensible. This is due to the special status of the OLC in the Department of Justice; it is, in many instances, the final authority for the interpretation of both the Constitution and statutory law for all executive agencies (Balkin and Levinson 2006). Personnel in those agencies— including, through the Department of Defense, the armed forces—can take the pronouncements of the OLC as the best legal authority for what they are doing. The memos promulgated by the OLC, especially the first Bybee memo, created a space for torture in U.S. law. To recall, this memo analyzed the law concerning the enforcement of the UN Anti-Torture Convention that the United States had signed and the anti-torture statute Congress had passed to enforce the treaty. As noted earlier, it provides an interpretation of the statute’s definition of torture that greatly expands the permissible bounds of interrogation techniques. If torture occurs only when physical pain is “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or when the level of mental pain or suffering inflicted psychological harm that lasted “for months or years,” the kinds of techniques found in


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table 2.1 become more understandable (Bybee 2002a). This is only part of the story, however. The memo also concluded that torture could occur only if the infliction of this level of pain or suffering was specifically intended by the interrogator, that enforcement of the anti-torture statute would be an unconstitutional interference in the president’s power as commander in chief in time of war, that there were common law defenses against accusations of torture, and that only the worst infractions against the statute would ever be prosecuted. The classified Bybee memo promulgated at the same time approved ten interrogation techniques for use by the CIA, both individually and in combination. This memo also confirmed that the CIA had taken due diligence to insure that the techniques did not deteriorate into torture. Finally, on the same day Yoo’s letter to Alberto Gonzalez, the then White House counsel, opined that the treaty obligations the United States had under the Anti-Torture Convention were limited by the anti-torture statute passed to give it force. Since the memos had already redefined the techniques covered as within the borders of the statute, the treaty’s requirements would not apply (U.S. Department of Justice 2009). These memos were used to form the boundaries of interrogations by the CIA. They also became the basis for interrogations by the armed forces, especially after the so-called Working Group Report on interrogation techniques was circulated by the Department of Defense. As I have mentioned before, the Bybee memos were withdrawn for a time in late 2003 by Jack Goldsmith—then assistant attorney general and the new head of the OLC. Immediate efforts were made to reintroduce the content of the original memos in replacements, efforts that were successful by late 2004 (in the so-called Levin memo). In December 2005, Goldsmith’s replacement at the OLC, Stephen Bradbury, issued two new classified memos that reiterated the conclusions of the Bybee memos and interpreted the new provisions of the Detainee Treatment Act to be consistent with them. Congress’s passage of the Military Commissions Act in 2006 established the torturous interrogation techniques even more firmly by giving the president discretion to decide which interrogation methods used violated the Geneva Conventions (Pfiffner 2010). From the beginning, these legal machinations had the effect of thoroughly blurring the formal limits that had contained interrogations by U.S. security agencies and military intelligence units. The inherent confusions this created in the field allowed the establishment of accommodating informal institutions that had a disastrous effect on the actual operational practices (Ricks 2006, Mayer 2008). Of even more concern, however, is the constitutional space created for torture as a result of executive practice. As Griffin (2009) points out, the constitution can change both formally through amendment and court decisions (“legal” change)


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and informally through new institutions established by decisions based on executive discretion (“political” change). The informal process of constitutional change that will allow torture to become an established practice in the United States has already begun. President Bush’s initial framing assertion that the United States was at war used the earlier experience of wartime presidencies as a basis for the extraordinary claims that his administration would make. The torture regime established during his administration was predicated on the assumption of war powers and the immense executive discretion they entail. Such policy innovations usually remain unchallenged: the actions taken by presidents for policy purposes are seldom reviewed by courts or submitted to the amendment process (Griffin 2009). Informal constitutional change requires time to establish, and sanctioning the use of torture is no exception. But the comparative sequences in the United States and the Soviet Union have revealed, as Davenport, Armstrong, and Moore (2007) predicted, the fragility of both institutional and cultural constraints on the use of torture under crisis conditions. Recall the comparison of the two cases in table 2.2. The United States is a welldeveloped, highly institutionalized polity, supposedly bound by the rule of law and by civilized values for better than two centuries. The Soviet Union was, at the time of the Stalinist Terror, a new state with a ruling elite that struggled with the balance between political expediency and legal constraints. Yet both, under similar pressures, succumbed to the widespread use of torture in interrogations, destroying in the process both regulatory and social barriers to abusive practices. In both cases the mechanism used was an accommodating informal institution, allowing decision-making elites acting in secret to blur the boundaries of sanctioned behavior while never unequivocally addressing either the practices as they developed or the possible consequences of them. In the aftermath of Abu Ghraib, one hears a good deal about the need to strengthen the rule of law as a deterrent to further slippage toward unsanctioned abuse (ACLU 2006d). It would be wise to remember, however, just how extensive the secret debate within the Bush administration was concerning the definition of torture and its legal ramifications. Obviously, a concern about the rule of law cuts both ways, especially if the practices that result are the product of informal processes arising in crisis situations. Griffin’s point that the powers of the presidency can actually create new constitutional regimes—and, therefore, new aspects of the rule of law—should give pause to those who call for a restoration of the status quo ante bellum. It does not look like that will be enough; the precedents have already been set. This book presents evidence that the crises that led to the widespread use of torture in both the United States and the Soviet Union were the


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result of policy decisions framed within the leadership narratives used to overcome the dilemmas of orthodox innovator leadership. The decision to create the informal institutional space for the use of torture was driven by understandable fears of substantial threats to the political arrangements of regimes in both countries. However, it was the further expansion of the leadership projects—the war in Iraq and the Five-Year Plans—that created the levels of opposition and disorder that led to the metastasizing of torture throughout the security agencies of both governments. As that opposition increased, as the disorder threatened to invalidate the basic premises of both leadership narratives, the capability of the regimes in question to control how torture was used decreased as well; accommodating informal institutions, as Helmke and Levitsky (2004) point out, can easily slip out of the grasp of those who create them. And in both cases, the result was a descent into barbarism. Now, in the United States, we face the choice of how to prevent that barbarism from establishing itself as firmly in our institutional practices as it did in the Soviet Union. Remedies Yoo was asked to explain how the torture statute would interfere with the President’s warmaking abilities, and gave the following answers: Q: I guess the question I’m raising is, does this particular law really affect the president’s war-making abilities ... A: Yes, certainly. Q: What is your authority on that? A: Because this is an option the president might use in war. Q: What about ordering a village of resistants [sic] to be massacred? ... Is that a power the president could legally ... A: Yeah. Although, let me say this. So, certainly that would fall within the Commander-in-Chief’s power over tactical decisions. Q: To order a village of civilians to be [exterminated]? A: Sure. —Colloquy between John Yoo (former deputy assistant attorney general, Office of Legal Counsel) and an investigator for the Department of Justice, Office of Professional Responsibility (U.S. Department of Justice 2009, 64)

As already noted, the quantitative studies of torture done recently indicate that there is a significant difference, though not as much as one might expect, between democracies and autocracies in the use of torture. As might be expected, states with high levels of democracy and more lenient autocracies are slightly less likely to begin using torture in the first place,


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while authoritarian states are more prone to take the leap. But recall the findings in Davenport and Armstrong (2005): both autocracies and democracies appear equally likely to use torture when under threat and both autocratic and democratic regimes that had used torture in the past would continue to use it at roughly the same level when faced again with a new threat. But if the combatants are to be restrained and the process of informal constitutional change arrested the question becomes a different one: what affects the response of democratic governments to their experience of using torture once the initial threat has receded? Recent research by Conrad and Moore (2010) addresses this very question. They reasoned that in countries where democratic pressures could be brought to bear on executives, exposure of torture would be potentially quite damaging to their continuation in office. Although they expected that the presence of violent opposition would have dampening effects on their incentives, executives in more democratic polities would act to restrain interrogators. As has been the case in most other studies of torture, they found that the presence of violent dissent (guerilla attacks or civil war) made it much more likely that a government would resort to torture and that the differences in the incidence of torture in autocracies and democracies were slight in such circumstances. If violent dissent was not present, however, the findings were more encouraging. Conrad and Moore found, as they had hypothesized, that competitive elections (“Voice”) and a free press (“Freedom of Expression”) made it more likely that states will terminate the use of torture and that the combination of a strong separation of government powers and more extreme partisan divisions made it less so. In other words, if violent dissent subsides, states with periodic competitive elections and a free press are likely to abandon the use of torture, although institutional and political divisions can make this more difficult (Conrad and Moore 2010).4 When one considers the process of the informal institutionalization analyzed here in congruence with these findings, the informal legalization of torture as a technique of interrogation does not seem inevitable. The obvious question is whether the political opposition to the use of torture will reach levels that can provide barriers to the ascendency of the combatant mindset among government elites. That question, in turn, has two components. First, Griffin’s (2009) useful distinction between a legal and a political constitution should alert us to one avenue forward: creating (1) formal, legal barriers to informal institutions that create space for torture and (2) specific statutes outlawing particular practices. Some preliminary steps have been taken. As mentioned above, President Obama has ordered the memoranda used to establish an informal accommodation


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of torture to be withdrawn and has further ordered intelligence agencies to follow interrogation procedures laid down in the new U.S. Army field interrogation manual. He has withdrawn approval for the use of “extraordinary rendition”—intelligence agencies transporting suspects to third countries with known reputations as torturers for questioning. Also, he signed the Military Commissions Act of 2009, a statute that brings many procedures used by the military commissions at Guantanamo in line with the Uniform Code of Military Justice. But the bulk of these actions are still matters of executive discretion and, consequently, liable to discretionary change in the future. Specific statutes outlawing particular practices and providing better mechanisms for establishing legal accountability are needed. This is not as simple as it sounds; the statutory changes required would actually be quite substantial. First, the anti-torture statute (18 USC §2340 et seq) should be updated and amended. The discrepancies between the present statute and the UN Anti-Torture Convention were the basis for many of the legal distinctions in the Bybee memos and their progeny that allowed the blurring of the borders of interrogation to take place. House Intelligence Committee Chairman Silvestre Reyes’s proposed Cruel, Inhuman, and Degrading Interrogations Prohibitions Act of 2010 was a step in the right direction. While upholding the reservations the United States had to the UN Convention, this legislation would extensively amend the anti-torture statute to include a schedule of prohibited interrogation techniques and create a new category of crime—medical malfeasance— that covers the activities of medical personnel in interrogations. The bill, an amendment to the 2010 Intelligence Authorization Act, would also have provided substantial punishments for violations of the act. It should be reintroduced and passed. Second, legislation specifically outlawing the practice of extraordinary rendition should be enacted. The covert nature of this practice makes monitoring it difficult; it is better to have it removed from the intelligence tool chest altogether. Finally, statutes allowing civil relief for victims of torture need to be revisited as well. Harbury (2005, 143) has formulated a list of specifics. She suggests that ... the Federal Torts Claims Act should be amended so that all acts of torture or murder, or any cruel, inhumane, or degrading treatment by any U.S. officials, agents or contractors, are covered, whether carried out within the United States or abroad. ... the Torture Victims Protection Act should be amended to expressly include actions by U.S. officials, agents, or contractors acting abroad. ... the Alien Tort Claims Act should be amended to include a waiver of sovereign immunity.


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These legal changes would be politically wrenching—they amount to an admission that United States has tortured people and that it might do so again.5 However, they would also create a vehicle for both criminal actions and civil suits to be brought against those who perpetrated acts of torture against aliens and, as importantly, against citizens at home in the United States. The second component is more important than the first. In order for political opposition to coalesce, there must be some consensus about its object. Consider the Reyes amendment just mentioned. The Cruel, Inhuman, and Degrading Interrogations Prohibition Act is actually a rather conservative bill. It accepts the reservations the United States made when it ratified the UN Anti-Torture Convention.6 It also, paradoxically, accepts the reasoning of the Bybee, Levin, and Bradbury OLC memos concerning torture. The act’s sole purpose is to specifically criminalize the interrogation techniques that the memos identified as merely cruel, inhuman, and degrading treatment and, thus, outside the reach of the anti-torture statute. In short, Reyes’s bill agreed with the OLC’s interpretation of 18 USC §2340; it merely extends the statute’s criminal reach. The immediate problem with such a strategy is twofold. First, by accepting the OLC memos reasoning such an approach runs afoul of the obvious difficulty of shortchanging the idea of torture as a legal concept. The techniques used by the armed forces and the intelligence agencies during the War on Terror have been generally considered torture in common parlance since they were first described and have been prosecuted as such by the United States against both foreign enemies and U.S. soldiers and operatives (Harbury 2005). Similar actions by other countries—the Soviet Union is the obvious example—have been roundly and rightly condemned by both the U.S. government and its people. If the law cannot be interpreted to prosecute the publicly accepted object of its prohibitions then trust in its efficacy and equitable application must suffer accordingly. Second, accepting the basic premises of the leadership narrative that evolved to justify the use of torturous interrogation proposals (as the Reyes amendment does) is tantamount to not challenging the source of the informal institutions that began the legalization of torture. As I have already pointed out, the leadership narrative used by the Bush administration is still in waiting. The precedents set while using it are available for any future president willing to reactivate them. And the leadership project necessary to do so—a new war against a new enemy—is, unfortunately, not a farfetched possibility. What is needed instead is a direct political confrontation with the entire framework of justification for using torture. The obvious answer to many will be to use existing statutes to prosecute those at the center of the


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decisions that promoted the informal legalization of torture and actually took part in the long interrogations that resulted during the Bush administration. The difficulties of bringing successful actions against those involved are very great, however. The OLC memos have recently been declared to be poorly constructed by the Department of Justice’s Office of Professional Responsibility, but ultimately they were not condemned as unprofessional (U.S. Department of Justice 2009).7 It is not illegal for attorneys to give bad advice and, given the privileged status of OLC recommendations, it was probably not illegal for intelligence agencies and the armed forces to follow that bad advice either. There are also provisions granting limited defenses for participation in torturous interrogations in the Military Commissions Act, although, given the OLC memos and President Bush’s memorandum of February 7, 2002, it is unlikely that any of the torturers could be prosecuted successfully in a federal court (Lederman 2006b). The requirement here is a new political consensus concerning the way the law should work during the War on Terror. Some tentative steps have been taken already with the passage of the Military Commissions Act of 2009. These amendments to the original act cure some of its most egregious features (Mariner 2009a, 2009b). Yet controversy over the scope of interrogations and the use of torture remains. The fate of Representative Reyes’s Cruel, Inhuman, and Degrading Interrogations Prohibition Act is indicative of the remaining problems. The reception of the proposal among Republicans was swift and negative. The Obama administration was similarly taken aback; it had not heard that the legislation was to be introduced and had reservations about it. The result was that the entire Intelligence Authorization Act was withdrawn and Reyes’s amendment was stripped from it. The bill then passed easily (Los Angeles Times 2010). It is high time that decisions concerning the use of torturous interrogations be addressed openly. Wittes (2008) is correct: at present, law concerning the threat of terrorism is woefully underdeveloped.8 It is imperative that Congress take a hand in the entire matter. The longer legislative consensus eludes us, the longer the precedents for the use of torture established by the Bush administration remain as placeholders for future action (Pfiffner 2010, Griffin 2009). Allowing the possibility of the use of “alternative procedures” to remain an executive order away from being reestablished is dangerous in the extreme. Given recent history and the findings concerning torture, no one should be overly sanguine concerning the possibility of torture becoming an accepted tool of executive power in the United States. Indeed, the recent findings by Conrad and Moore (2009) detailing the difficulties in reversing the use of torture in polities with strong separation of powers and intense partisan differences highlight the potential roadblocks. To get over them, I join Danner


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(2009) and Pfiffner (2010) in calling for the establishment of a bipartisan congressional or investigative commission akin to the 9/11 Commission to look into the entire matter. Such a commission would have two purposes. The first would be to establish what happened and why it did. A factual consensus must precede any legislative one. Only then can proposals be made for a legislative program that would lay out a way forward in an increasingly complicated and, with the increased activity of the judicial system, legally convoluted policy area. Second, the use of what Ivie (2007) calls “rehumanizing rituals” to bring some semblance of reality to perceptions of others is the first step in reforming our presently distorted public dialogue. Past commissions considering major public issues have been, in very large part, rituals. At their best, they have laid bare our actions and those of our enemies, giving us a chance to reconsider our choices outside the toxic swamp of our partisan differences. I believe this is of ultimate importance; the United States needs to find a way forward that will preclude the consideration of torture as an option in the future. This is not a call for humanizing the terrorists; that would be beyond the capability of any commission. However, unless we can revert to the deep questioning of U.S. actions that characterized the country’s immediate reaction to the 9/11 attacks, it is unlikely that we will be able to face down the use of torture effectively. Senator Patrick Leahy’s pleas to establish something like such a body—a “Truth Commission”—have fallen on deaf ears, both among Republicans and within the Obama administration (Dennett 2009). However, whatever the obstacles, it is imperative that proposals such as his be revived and brought to fruition. Suggesting such wrenching changes in national policy on the basis of what is, after all, a preliminary study based on a limited number of cases is a bold course. It is quite possible that future research will lead to different conclusions and better models. The question of stopping torture, however, has such daunting implications that I believe we must act boldly. The matter resembles policy choices concerning climate change. There is a minority of reputable climate scientists who interpret evidence of global warming as being due to climatic changes tied to long cycles in the Earth’s temperature and not to changes brought on by the effects of modern industrial societies. Hence, the best course might be to avoid any major changes in the course of economic development. These scientists argue that if they are correct, then industrial pollution has little to do with the climatic changes involved; and, if they are not, societies will be much richer than they would have been with restrictions on economic growth and, consequently, better able to shoulder the costs associated with reducing global warming. The answer usually given to this line of thinking is


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that if such views are mistaken—and the probability that they are is so high as to be probative—then the damage done by environmental decay will be so substantial as to be either irreversible or so detrimental to economic development as to put the costs of repairing the damage beyond human capacity. As I pointed out earlier, torture cannot long live at the center of any society without the degradation of the status of free citizens to that of subjects becoming a substantial danger. Like global warming, the cost of doing nothing and hoping things will work out is likely to be so high that the future of freedom in the United States will be at risk. The United States is standing at the crossroads. I hope we summon the political will to face our actions and repudiate them. Only then can I say that I do not believe my country is sinking down.


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1

Introduction

1. Most of the detainees at Abu Ghraib were housed in tents. The prison had been largely destroyed during the U.S. invasion. Only the Hard Site cell block was partially restored for use as an internal isolator for interrogations (Public Broadcasting System 2005b) 2. This is a standard (and very old) interrogation technique called “Mutt and Jeff” included in all the recent U.S. Army field manuals on interrogation. One interrogator(s) threatens, the other(s) offers succor. 3. Annex 8 of the Taguba Report describes two firing incidents that took place on November 24, 2003. One involved a gunfight like the one al Sheik describes at the Hard Site between a prisoner and guards who had gone to his cell to confiscate a pistol they had found out about through a prison informer (Taguba 2004b). The detainee number of the prisoner involved is not given in the annex, but a subsequent news report about al Sheik’s testimony at Specialist Charles Graner’s court martial identifies the detainee as al Sheik (Zernike 2005). 4. This technique is generally referred to as “Palestinian Hanging.” It is actually very dangerous, especially when the person subjected to it loses consciousness; the effect is very similar to a crucifixion and can lead to death by asphyxiation. The name refers to the use of the technique by Israeli intelligence, but, as Rejali (2007, 355) points out, it far outdates Mosad practice. 5. Abu Ghraib was under almost constant attack by Iraqi guerillas throughout 2003. Since the prison itself is indefensible, the military police units there did not have any heavy weapons, and airstrikes were too dangerous to guards, detainees, and the local population alike, Abu Ghraib made a tempting target. See the relevant analysis in the Jones-Fay Report (Jones and Fay 2004), or the interview with former Brigadier General Karpinski (Public Broadcasting System 2005b). 6. There is an eyewitness account of a similar incident by Mohanded Juma Juma, one of the Abu Ghraib detainees (Juma 2004). Unfortunately, his statement does not identify the father and son in question. General Fay was probably shocked because treating an enemy flag officer in this fashion is a blatant violation of U.S. Army regulations.


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NOTES

7. For evidence confirming these assertions, see, as examples of a swiftly growing literature, Pfiffner 2010 or Sands 2008. The interview testimony in Sands’ account is especially interesting and informative.

Questions, Designs, and Mechanisms

1. The presence of Marine units in Iraq makes investigation by the CIS necessary. 2. It is instructive to know that the entire text of the Convention was not agreed to by the United States and does not apply in federal law. The Anti-Torture Statute (18 USC § 2340 et seq.) tracks the Convention by defining torture as inflicting severe physical or mental pain or suffering. However, although the statute does outline conditions that could lead to mental pain and suffering in more detail, it does not give a specific legal definition of severe pain or suffering (Harbury 2005). The statute also specifically excludes cruel, inhuman, and degrading behavior as punishable under the law. As will be shown, the lack of specification of what constitutes severe pain and suffering and the exclusion of cruel, inhuman, and degrading behavior were exploited later to open legal avenues for torture (Pfiffner 2010). 3. The purges and mass arrests in the Soviet Union between 1937 and 1938 have had a variety of names in the past: the Great Terror, the Yezhovchina (Yezhov’s reign), and the Great Purge have been the most popular. I have followed current practice here by referring to the period as the Stalinist Terror. There is no doubt that the entire process was put in motion by Stalin himself, that he could have stopped it at anytime he choose, and that the execution and imprisonment quotas for the NKVD were approved by him (Getty and Naumov 1999). There is also no doubt that, while Stalin approved extensions of the mass arrests and executions, he intervened only occasionally to direct the local course of the mass arrests and executions and he expressed ambivalent opinions about their progress at times (Getty 2002). The terror was his creation but its final scope and shape was crafted by his followers. It was a Stalinist Terror indeed. 4. There is one case where the record is well developed and sufficiently examined to immediately raise questions with careful readers: Nazi Germany. As has been the case with the Soviet Union, the collapse of the German fascist state provided a trove of archival material on all aspects of the operations of the state security and military intelligence apparatus, materials that have provided evidence for a voluminous secondary literature. That literature establishes beyond any doubt that torture was an integral part of state security interrogations. Furthermore, the Gestapo did obtain opinions from the Ministry of Justice retrospectively legalizing the use of torture by their agents (Rejali 2007). Why not use the Nazis as a case? The main reason for not doing so is that the Nazi autocracy did not last long enough to establish cycles of political authority; Hitler was its only leader and was never challenged after the party solidified its hold on Germany in the


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2

5.

6.

7. 8.

9. 10.

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early 1930s. Unlike the other regimes that could be considered, the German fascist regime was probably the best example in modern times of a state based on charismatic authority; indeed, the fuhrerprinzep (leader principle) at the center of Nazi ideology specifically disallows the entire idea of a legitimate selectorate (Shirer 1990). Characterizing the Nazi regime must await a more general theorization of the informal legalization of torture. We do not know how many people were actually subjected to torturous interrogations by the United States and we probably never will; records of this kind are seldom complete, if they are kept at all. We do know, however, that by no means everyone who was incarcerated in Afghanistan or Iraq was tortured. Estimates for the Stalinist Terror are less uncertain since using torture and abuse to obtain confessions was a standard procedure for, at least, the 1,344,923 people convicted and either imprisoned or executed (Getty and Naumov 1999). Still, solid figures elude even here; if Solzhenitsyn (1973) is to be believed, many probably confessed without anything more than stringent questioning being applied. The choice of time period for the United States is arbitrary. Since these practices were developed and conducted in secret, there is no way to verify that they did not continue even after the Supreme Court’s decision in Hamdan v. Rumsfeld (548 US 557) greatly increased the possible criminal liabilities involved. However, the decision to push for legislation—the Military Commissions Act of 2006—to allow at least some of the abusive techniques to continue to be used suggests strongly that the “alternative procedures” were put on hold after Hamdan (Bush 2006, Pfiffner 2010). Still, whether the techniques were in use when the MCA was passed or afterward is uncertain. Recently, the inclusion of Appendix M in the new field intelligence manual (FM 2–22.3) authorizing U.S. Army intelligence interrogators to conduct separate interrogations is ominous. Recent reports of the use of beatings, punishment cells, and sleep deprivation in a secret prison in Afghanistan are troubling as well, if inconclusive (Ambinder 2010b). See the Appendix to this chapter for an explanation of the sources used in the table. The scarring techniques used by the NKVD were: cigarette burns, beatings, injured extremities, breaking bones, body burns, and the “secret brand.” Scarring techniques used by U.S. forces and intelligence agencies are: cigarette burns, beatings, injured extremities, breaking bones, and body burns. A descriptive contrast of the two styles of torture can be found in Rejali (2007). The figure for incarcerations includes internal exiles. The total number of deaths by execution during the Stalinist Terror remains uncertain, although the official figure for 1937–38 is now generally accepted as being a close estimate. Controversy still rages, however, about the accuracy of the estimates with those who had backed the much higher estimates made before Getty, Rittersporn, and Zemskov’s (1993) article based on archival sources. The total number of deaths in the GULAG during the Terror is higher, due


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NOTES

11.

12.

13.

14.

NOTES

to the number of prisoners who died in the labor camps and prisons and those executed for common offenses; Ellman (2002) estimates that figure at around 1 million. For those who would like to examine the entire controversy further, the website sovietinfo.tripod.com has usefully collected the main articles and comments from both sides of the argument. The Jones-Fay Report (Jones and Fay 2004) includes a useful description of the strains put on the Coalition Provisional Authority’s prison system and on Abu Ghraib by the mass arrests of 2003–2004. This description ought to make it clear that I am talking about a subset of the presidential narratives Skowronek describes (see Skowronek 1997). The conditions and the character of the opportunity to use such a narrative strategy are due to the influence of exogenous events not usually available. The process in recent U.S. history is well described in Mueller (2005). As Baum and Groeling (2009) point out, rally effects inevitably decay. The capability of supporting elites to sustain narratives breaks down as the public acquires conflicting information and the media provides opportunities for counter-elites to bring alternative interpretations to light. However, their results show that the supporters of the ruling coalition remain strongly resistant to change in their attitudes toward leadership projects. I speculate that this characteristic of “the base” provides a chance, one that the elites dependent on them will seize, that the narrative can be sustained or rekindled if the initial conditions for the effect can be kept alive. There is one exception to these rules, the use of the “litter sandwich.” This was investigated by the CID and the use of the technique was confirmed. However, criminal charges arising from using the litter sandwich were dismissed since it was found by the investigators that the technique is in fairly widespread use in U.S. prisons and jails to control unruly or disobedient prisoners (ACLU 2005c).

3 Crisis and Opportunity in the United States and the Soviet Union 1. The Mensheviks (minority) were one of the two major factions in the Russian Social Democratic Labor Party. The name was given them by the Bolsheviks (majority) after the faction lost an otherwise inconsequential vote concerning party membership at the Second Congress of the party in 1903. Subsequent differences, particularly on revolutionary strategy, led to a full-fledged split between the two groups by 1912. After the Russian Revolution, many Mensheviks renounced their views and joined the Bolsheviks (Nettl 1970). 2. As might be expected, the destruction through war and government policy of the entire framework of commercial institutions that had formed the connective tissue of the Russian economy led to an almost complete breakdown in both industrial and agricultural production. It is no surprise that, faced with a civil war and foreign invasion, the new government turned to direct requisitions to keep the army in the field and fed. That in turn produced a


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3.

4.

5.

6.

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further substantial negative effect on production. Gross output by all industries (including agriculture) in 1921 was down by 69 percent in comparison to 1913 (Nove 1989). The most disturbing of these for the new government was the uprising among the sailors of the Baltic Fleet at Kronstadt, outside what was then Petrograd. The sailors had been one of the most reliable military units during the October Revolution that brought the Bolsheviks to power but had become disillusioned with their rule, especially the privations of War Communism. They rose against the government on March 2, 1921, and were suppressed shortly thereafter. Many were executed or imprisoned for long terms (Lincoln 1989). The loose use of the terms “left” and “right” in the politics of the time in the Soviet Union can be confusing, especially when the impeccable revolutionary credentials and socialist ideologies of the leaders involved are considered. The basic division was around the economic choice the regime had to make that I mentioned earlier: NEP or planned industrialization? The right was generally in favor of a continuation of the NEP, the left of planned industrialization. This was confounded, however, by the further question of loyalty to party decisions on policy. Lenin had been well aware of the divisions in the party on the course forward and of its precarious political position. His decision to ban factions within the party was an attempt to address both questions by increasing party discipline. After his death, this made being on the wrong side of a Central Committee increasingly dominated by Stalin and his adherents a dangerous place. The left-right distinction in power struggles at the time was tied as much to using party discipline for political maneuvering as to differences in economic theory (Tucker 1990, Service 2009). The resemblance may be more than coincidental. As Pearlstein (2005) points out, F. Clifton White specifically refers to the study of Stalinist tactics in his memoirs of faction fighting in the early days of the conservative movement’s takeover of the Republican Party. Perhaps Stalin’s clearest statement on the idea can be found in his 1926 pamphlet Concerning Questions of Leninism (Stalin 1979). Even this formulation is a factional polemic, woefully short of practical details. The act’s title is an acronym standing for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. In his 2005 article, Baker quotes Mickey Herskowitz, a journalist who was writing a book about Bush in 1999. According to Herskowitz, Bush told him that “‘One of the keys to being seen as a great leader is to be seen as a commander-in-chief.’ And he said, ‘My father had all this political capital built up when he drove the Iraqis out of Kuwait and he wasted it.’ He said, ‘If I have a chance to invade. If I had that much capital, I’m not going to waste it. I’m going to get everything passed that I want to get passed and I’m going to have a successful presidency.’” Herskovitz reports similar views among Bush’s advisors at the time. A more nuanced view of the efficacy of small wars as a tool for building presidential authority can be found in Skowronek (2008).


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9. The idea of a unitary executive theory of the presidency had been percolating in conservative circles at least since the Church Committee’s devastating report on U.S. intelligence activities and the subsequent passage of the Foreign Intelligence Surveillance Act in 1978. In brief, the theory holds that the president has been given a broad grant of executive power by the Constitution. This grant, through the commander-in-chief clause, is especially broad in the area of national security during wartime, but it extends to a largely unhindered discretion in directing the executive branch. It further includes making policy within a cone of executive privilege and classification of information, determined ultimately by the president alone, that precludes both congressional and public scrutiny in many instances (Savage 2007, Pfiffner 2008, Skowronek 2009). Vice President Dick Cheney (as White House chief of staff) and Secretary of Defense Donald Rumsfeld (as White House chief of staff and defense secretary) had lived through the changes in executive power during the Ford administration; both men and their staffs were dedicated to restoring what they thought was a constitutional balance by increasing the president’s power (Savage 2007, Gellman 2008). 10. It is worth noting that the Manichean tone of the narrative fit quite well with the evangelical persuasion of many Republican voters. Indeed, the use of such stark contrasts has been plausibly interpreted by some writers as a set of codes to particular segments of the electorate, codes embedding a set of policy preferences and beliefs not easily articulated in public by U.S. presidents. It also closely reflected Bush’s own strong religious convictions (Suskind 2004b, Greenwald 2007). 11. Indeed, as Blix (2005) makes clear, it was the contemptuous assumption that Iraq was continually pulling wool over the eyes of UN inspectors and a faith that WMD would be discovered after invasion that led to the miscalculations about their existence and the discrediting of the main justification for the war itself. 12. Demonstrations in London, Barcelona, and Rome all attracted an estimated 1 million participants; those in New York and San Francisco 100,000 and 200,000 respectively (BBC News 2003). As might be expected, there were also substantial demonstrations in Iraq and Syria as well. 13. As Bartels (2005) points out, polling data in 2001 show that most respondents favored the initial tax cut, despite thinking that it was disproportionately favorable to the rich. His study is rife with examples of how the 2001 and 2003 income tax cuts were simply too complex in their overall effects to activate widespread concerns among even well-informed voters. A similar point is made by Hacker and Pierson (2005). The clear implication of the results is that the electorate wanted tax relief and was willing to allow the bulk of the cuts to go to the wealthy to get it. 14. George Bush was no more the instigator of the waves of deregulation that characterized the U.S. economy in the late twentieth century than Stalin was of Leninist ideas of party organization. Indeed, one could look to Democratic administrations starting with the Carter presidency for the source of these deregulatory efforts (Ivins and Dubose 2003). As with Stalin earlier, Bush


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15.

16.

17.

18.

19.

20.

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was a Stalwart, expected to carry the tendencies of the established regime— including a commitment to deregulation—to their logical conclusion as part of his role as an orthodox innovator. Recess appointments are executive appointments made when Congress is not in session. If the Senate still refuses to approve such an appointment—executive appointments are subject to unlimited debate, requiring a 60-vote margin to evoke cloture in the face of determined opposition—it expires after the recess of the subsequent Congress. However, any recess appointment can be renewed indefinitely during recesses. There are more aspects to this picture, of course. The steadily increasing and coordinated influence of interest groups and the Republican leadership, especially in the House, had a role to play as well. Keeping moderate Republicans behind all the president’s decisions and ramming potentially unpopular legislation through both houses took a combination of carrot and stick (Hacker and Pierson 2006, Phillips 2006). However, the determining factor that allowed these tools to work effectively was the widespread approval of the president’s handling of the War on Terror. This tended to defang the press in particular, to the great advantage of the Republican coalition (Ricchiardi 2004). The payoff for the administration was substantial: presidential support scores for Bush during his first 5 years averaged 81.5 percent, the highest since the Johnson administration (Poole 2006, Kady 2006). These successes were in part due to the administration strongly backing a smaller number of bills, but the overall record is impressive, especially when the slim majorities the Republicans held in both houses are taken into account. See Sherman (1969) for a short and informative history of the problems the economy developed under the NEP. Nove (1989) gives a more complete treatment. What had happened was that followers of the now disbanded United Opposition had organized independent street demonstrations in Moscow and Leningrad to commemorate the tenth anniversary of October Revolution. The police broke the demonstrations up and Trotsky and Zinoviev were expelled from the party for their role in them. Despite efforts by Kamenev to defend the right of opposition to central directives, the Congress, solidly behind Stalin and his new allies, enforced party discipline and expelled seventy five supporters of the opposition, including Kamenev. Zinoviev and Kamenev recanted and were readmitted to the party. Trotsky never did; he was first internally exiled and then expelled from the Soviet Union in 1929 (von Rauch 1965, Getty and Naumov 1999). In reading the following sections, the reader should keep in mind that the Five-Year Plans were based on an October 1 to September 30 planning year (Sherman 1969). Thus originally the first year of the plan was from October 1, 1928 to September 30, 1929 and the last from October 1, 1933 to September 30, 1934. For a revealing case study of the problems of labor supply and its relation to industrialization in the years of the Five-Year Plans, see Kotkin’s (1995) study of the founding of Magnitogorsk, perhaps the prototypical new Soviet city.


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4 Torture: From Informal Institution to Official Policy 1. This is not to say that using torture for purposes of intimidation is unknown in democracies, of course. The record of the United Kingdom in Northern Ireland is instructive (Conlon 1994). 2. Rejali (2007) postulates that torture in democracies can arise from three different causes. First, concerns for national security can lead to autonomous action by either the armed forces or security agencies or both that bleeds into torture as resistance stiffens. Second, the use of inquisitorial legal regimes with their emphasis on building evidence toward confessions can lead to pressures for using torturous interrogations. Finally, the use of torture to establish “civil discipline”—torturing “marginal” citizens to insure that order is maintained informally through terror in neighborhoods and cities. It is interesting that all three of these motives are present in both the United States during the War on Terror and in the Soviet Union during the Stalinist Terror. Rejali’s typology may have wider implications than he thinks. 3. The OLC and the memoranda of law it produces will play a large role in this narrative and it might be well to mention why at this point. The OLC is tasked with determining whether the actions of executive branch officials are lawful. Like those of state attorney generals, its opinions are both binding and authoritative for executive officers, that is, an executive officer can treat OLC opinions as statements of what the law is on particular points (Goldsmith 2007). 4. At this point the extraordinary influence of the vice president and his counsel, David Addington, should be mentioned. Both had long ties reaching back to Cheney’s time as secretary of defense (1989–93) when Addington was general counsel for the department. Cheney is arguably the most experienced vice president in U.S. history: a former White House chief of staff, member of Congress, secretary of defense, and CEO of Haliburton, a large multinational corporation. He realized before he essentially nominated himself as vice president that he could have a substantial role to play in the Bush administration. Bush was relatively inexperienced in foreign affairs and had no experience working with the federal government. As an elected officer with no political ambitions beyond the vice presidency, Cheney thought, correctly, that he could have a disproportionate role to play in the administration, even before the 9/11 attacks. Addington, as his counsel, then chief of staff, shared Cheney’s dislike for the post-Vietnam, post-Watergate


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21. Compare Bush’s Veterans Day Address (Bush 2005) and Stalin’s Defects in Party Work and Measures for Liquidating Trotskyites and Other Double Dealers (Stalin 1979) as examples of rhetoric by the two leaders. For analysis of the two styles, see Priestland (2005) or Getty and Naumov (1999) for Stalin, and Ivie (2007) for Bush. The similar emphasis in the speeches on stark Manichean contrasts and voluntarism is illuminating.

5.

6.

7.

8.

9.

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limitations (the War Powers Resolution, the FOIA, the War Crimes Act, and the Foreign Intelligence Surveillance Act were particularly detested by both) and his expansive views on presidential power under the Constitution. This last became particularly important; both men felt that in many areas of public policy the president was (or, more correctly, should be) much less subject to either public opinion, congressional oversight, or legislative constraints than was the case. As will become clear, the two men proved to be a formidable team, given Addington’s intelligence and drive and Cheney’s unprecedented influence over President Bush, understanding of federal government, and ties to Secretary Rumsfeld (Gellman 2008, Savage 2007, Goldsmith 2007, Cole 2007). The initial reaction to the Guantanamo commander’s requests from many Pentagon lawyers—particularly Alberto Mora, the general counsel of the U.S. Navy—had been negative. The Working Group included lower-level representatives of the judge advocate generals (JAGs) of the different branches of the services, but the draft report was roundly condemned by the JAGs as well as by Mora. Despite this, Haynes passed the report on to Rumsfeld for approval, without informing either Mora or the JAGs (Mayer 2006, Sands 2008). President Bush did ask about the efficacy of the interrogation techniques in general, however, and he knew of the White House meetings on torturous interrogations (Suskind 2006, Mayer 2008). The original order for de-Baa’thification had been fully vetted in Washington before Bremer arrived in Iraq; the subsequent decree disbanding the army, security services, and the Iraqi Defense Ministry was his own idea. Bremer maintained that both orders were both necessary to democratize Iraq and well received. Neither Lieutenant General Jay Gardner, Bremer’s predecessor, nor Lieutenant General Ricardo Sanchez, the new Coalition military commander in Iraq, was consulted about either decree (Bremer 2006). Probably so. The AUMF specifically gives the president powers to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons” (Bush 2001). By declaring insurgents captured in Iraq as members of al Qaeda, the administration could bring them under the AUMF and, consequently, under the president’s November 13, 2001 order placing them under the jurisdiction of the Department of Defense. Once that was done the OLC memos concerning interrogation would apply. That some Iraqi insurgent groups, most notably Abu Musab al Zarqawi’s Monotheism and Holy War, later declared themselves al Qaeda affiliates made the administration’s case easier, of course. A useful discussion of the strains the mass arrests and subsequent prophylactic incarcerations created for the CPA prison system in Iraq and the military units that staffed it can be found in the Jones-Fay Report (Jones and Fay 2004).


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10. There is an intriguing side issue here. Former Brigadier General Janis Karpinski was still in charge of the 800th Military Police Brigade and, as a consequence, responsible for staffing the CPA prison system when Major General Miller made his fateful visit. According to her, Miller ordered other officers to leave the meeting he was having with military police and intelligence personal so he could speak with her privately. He then asked her, “Give me Abu Ghraib.” Karpinski, taken aback, replied that the prison system belonged to the CPA and she was in no position to “give” anyone anything associated with it. Miller brushed this objection aside, saying that Sanchez had given him his choice of prisons to take over and he had chosen Abu Ghraib. He also said that he would change how the prison worked. Subsequently, command at the prison was passed from Karpinski’s military police to the 205th Military Intelligence Brigade under Sanchez’s military intelligence head, Colonel Thomas Pappas (Public Broadcasting System 2005b). This chain of events strongly suggests that Miller, who personally approved the new interrogation methods at Abu Ghraib and provided training and interrogation teams for the prison, had been given effective command of intelligence operations at Abu Ghraib considerably before March 2004 when he was appointed as the new commander for detainee operations in Iraq after the scandal had broken and Karpinski had been demoted. 11. There has been as much speculation about Kirov’s murder and Stalin’s possible role in it as there has been about George W. Bush’s role in “fixing” intelligence about WMD in the run up to the war in Iraq. Earlier work asserting a conspiracy by Stalin to eliminate Kirov (Orlov 1953) has been shown to have substantial shortcomings, but at this late date the truth of the matter will probably never be known. One thing is certain: there has been no undisputed documentary evidence or reliable testimony that implicates Stalin. See Getty (1993) and Lenoe (2002) for overviews of the entire matter. 12. The contrast between the NKVD that was unable to prove murder charges against Zinoviev and Kamenev, even after extensive interrogation, and the NKVD that brutally coerced “confessions” during the Stalinist Terror is illustrative of the progress of torture as an informal institution in the Soviet Union. 13. Beating criminal suspects during arrest and interrogation was a widespread, though seldom admitted, practice by police departments throughout the world during the 1930s. Although evidence obtained under torture was never considered valid under the common law, it was not until Brown v. Mississippi (297 U.S. 278) in 1936 that the Supreme Court declared torturing a confession out of a criminal suspect unconstitutional and a violation of the due process of law (Skolnick 2004). An idea of how torture was used in some U.S. state prisons at roughly this time can be found in Burns (1997); its use by the police in interrogations is set out in Rejali’s (2007) able summary of the Wickersham Commission’s report. A comparison of U.S. practices in the 1930s with Solzhenitsyn’s (1973) descriptions of torture in the GULAG (the Russian abbreviation for Chief Administration of Corrective Labor Camps and Colonies) and by NKVD interrogators is enlightening.


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14. Article 58 (Counterrevolutionary Crimes) is probably the most notorious criminal statute in Soviet law. The article’s provisions allowed for considerable flexibility in formulating criminal charges, particularly after they were amended during the late 1930s. For a description, see Solzhenitsyn (1973). It was finally repealed in 1958 (Hostettler 2003). 15. One of Solzhenitsyn’s biggest surprises in the GULAG was running into an actual agent of Romanian military intelligence in prison. As he says, “I had met a couple of hundred fabricated spies and I had never thought I might meet up with a real one. I thought they didn’t exist” (Solzhenitsyn 1973, 610). For someone like Stalin, even one confirmed spy was probably enough, especially given known operations by Polish intelligence in the Soviet Union and NKVD reports about the extent of foreign intelligence operations in the country (Harris 2010). Jibes from Trotsky in exile about discontent within the party, often supported by secret government information, probably did their part as well (Deutsche 1966). 16. As with the Kirov murder, there is little chance at this late date that we will ever learn whether there was actually a plan by Tukhachevsky and his subordinates to carry out a military coup d’etat. Some have seen the entire business as part of an elaborate operation by either (1) the NKVD as engineered by Stalin or (2) White Guard organizations. The operation involved double agents who aimed at misleading the German security services into providing false incriminating evidence against Tukhachevsky and his circle to those who were almost certain to pass it on to the NKVD (see, for example, Lukes 1996). Others think the field marshal was planning a coup against Stalin but was found out before his plans could come to fruition (see, for example, Rogovin 1998). No matter what the actual fact of the matter, there is no doubt that members of the Stalinist leadership were convinced of the danger and acted accordingly; see the quotes from later interviews with Molotov cited in Getty and Naumov (1999). The generals were exonerated after Stalin’s death. 17. Referring to members of the security services as “Chekists” had by this time become a general habit. The name is based on the Russian abbreviation (CHEKA) for the All-Russian Extraordinary Commission for Combating Counterrevolution and Sabotage, the original Soviet security agency. Solzhenitsyn(1973) records many zek (prisoner) nicknames for the security agents. 18. Rejali (2006) makes this point clearly: when the “combatants” (the torturers) become established, they become impervious to discipline by superiors who are not combatants themselves. 19. Goldsmith’s reasoning was that since the Yoo memo he had withdrawn relied so extensively on the unclassified Bybee memo, there was no choice but to withdraw the unclassified Bybee memo as well. He immediately set to work on a replacement for the first Bybee memo but resigned before it was finished (Goldsmith 2007). 20. Goldsmith’s (2007) description of his long bureaucratic battle with David Addington and Vice President Cheney is riveting. The main lesson concerning


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NOTES

that battle, however, is that it was Goldsmith who finally abandoned the field in the face of their unrelenting resistance. Levin and Bradbury, his replacements, were under intense pressure from the White House to reiterate the main conclusions of the withdrawn memos. Both Levin, who had insisted on gathering further evidence about the reverse engineering of SERE techniques, and Patrick Philbin, who had strongly objected to the analysis in Bradbury’s second memo involving combined techniques, found themselves sidelined by opposition from Addington and Cheney after Alberto Gonzalez became attorney general. Both returned to private practice (U.S. Department of Justice 2009). 21. The Supreme Court’s subsequent decision in Boumediene v. Bush (523 U.S. 723)—although establishing the constitutional basis of the habeas rights for detainees and thus declaring part of the MCA unconstitutional—said nothing about the already established extreme interrogation techniques.

5 The Mechanism Fails: The United States and the Mexican War 1. The victory of the Republic of Texas at the Battle of San Jacinto was decisive. Through a series of incomprehensible errors, General Antonio Lopez de Santa Anna (the Mexican commander and president) placed his army in positions on the battlefield with no effective lines of retreat. Then, knowing that Houston’s command was at hand, he allowed his army to retire for an afternoon siesta without setting pickets to warn of an attack. Despite his army being slightly outnumbered, Houston saw his opportunity and took it, launching an attack that resulted in roughly half the Mexican force being killed or wounded and the rest taken prisoner (Hardin 1996). Texas declared independence but its new government was never recognized by the Mexicans. 2. In those days, like many states, Tennessee’s constitution mandated two-year terms for its governors. 3. The idea of “re-annexing” Texas was based on the assertion by the Jackson administration that it had been part of the original Louisiana Purchase. Actual boundaries for the purchase were notoriously vague, especially as one moved west from the Mississippi-Missouri River. Suffice it to say that Mexico had vigorously defended its possession of Texas and dismissed U.S. claims (Haynes 2006). 4. What was called New Mexico in the 1840s was all of present-day Utah and Nevada, most of Arizona, and substantial parts of New Mexico, Colorado, and Wyoming. 5. It is worth remembering that at the time the only major power the United States had been in a declared war with—twice—was Great Britain. The growing economic ties between the two countries, ties that favored the British, led to much apprehension about the control Great Britain could exercise over U.S. economic development. Indeed, the entire controversy about protective tariffs can be seen as a conflict between Southerners increasingly dependent


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6.

7.

8.

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on English demand for industrial crops and Northerners increasingly worried about competition from English industry (Watson 1990). Notice that in the second quote given above Polk specifically ties party unity on the Oregon question to the then pending legislation on tariffs. We can only guess how often such admonitions came up—Polk’s diary is often mute on the tenor of his discussions—but we can assume that the president made this point more than once. The manufacturing interests in the Northeast fought the new tariff with what was probably the first organized lobbying effort in U.S. history. Not only were all members of Congress who might be wavering approached (and, in at least one instance, bribed), but the manufacturers went to the length of sponsoring a fair displaying their products that would be—they said—put in jeopardy by competition from England if the protectionist duties put in place by the Whigs in 1842 were repealed. Unfortunately for them, the fair convinced Polk that U.S. goods were so high in quality and so reasonably priced that they had nothing to fear from foreign competitors (Haynes 2006). Despite this, the final legislation was not strictly a revenue-only bill but included several classes of modified duties aimed at the incidental protection Polk had promised (Borneman 2008). The Mexicans followed common military practice of the day by sitting their artillery in static defenses before combat commenced. In contrast, U.S. guns were used as “flying artillery”; that is, their crews were trained to limber their pieces quickly and move them around the field so as to concentrate fire as opportunities in battle emerged. Also, although the 12-pound Napoleon smoothbore cannon was the standard piece in both armies, the Americans had a much more varied inventory of weapons available, particularly including howitzers that proved useful in the mountain fighting that characterized so much of the campaign to take Mexico City. Similarly, soldiers in both the Mexican and United States armies were usually armed with smoothbore muskets, weapons that were sighted for a range of 100 yards but were seldom accurate at less then 50. However, a considerable proportion of the Americans—including several entire regiments—were armed with rifles, most with the formidable Model 1841 rifle musket, the direct ancestor of the weapons that turned the battlefields of the civil war into such slaughterhouses. These rifles were sighted for 500 yards and, in the hands of a decent marksman, were deadly at that distance. In other words, Mexican infantry advancing over open ground came under accurate fire a good quarter mile before they could return it with any prospect of success. Combine this disparity with the almost total lack of small-arms training by the Mexicans—their infantry were taught to fire their weapons from the hip without taking aim—and the American obsession with marksmanship, then throw the maneuverable U.S. artillery into the mix, and you will see why the firepower advantages the Americans had in almost every battle of the war were overwhelming (Winders 1997). The Battle of Cerro Gordo is indicative. Santa Anna had chosen a blocking position on the National Highway, the main (and only) road from Veracruz


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10.

11.

12.

13.

14.

NOTES

to Mexico City. Mexican defenses had been laid out with care and easily withstood a determined direct assault by the U.S. Army in the course of the battle. Unfortunately for the Mexicans, the American engineering corps found an easily improvable route through what the Mexicans thought was impassable terrain. Scott sent the bulk of his army around the Mexican left, building a crude road as they went, and hit positions in their rear in overwhelming force with substantial artillery support. The Mexican position crumbled under the attack and their army retreated in disorder (Singletary 1960). During the two-year course of the war, the U.S. Army had increased from a peacetime strength of around 6,000 regulars to more than 78,000 men— regulars and volunteers—under arms (Winders 1997). Buena Vista was the most desperate battle of the war for the Americans. Taylor had been deprived of almost all his regulars to help build up Winfield Scott’s army for an invasion of Central Mexico. He was left with a largely volunteer force, half the size of his original army. Santa Anna, showing commendable energy, marched north with an army that outnumbered the Americans by three to one. Taylor was caught by surprise; he was not on the field when the battle started. For once, the U.S. firepower advantage seemed to be neutralized as some volunteer regiments fled the field and the Mexicans attacked courageously. The Mexican army’s bad luck held, however; at the height of its attack Taylor arrived at the field with Colonel (and future Confederate president) Jefferson Davis’s Second Mississippi Rifles and their fire broke the Mexican advance. The other volunteer units stood their ground and the Americans held the field. The Mexicans retreated south the next day (Singletary 1960). Lane, who, as one of his soldiers said, “would rather fight than eat,” excelled at analyzing intelligence and quickly putting together the correct forces to exploit each situation (Knapp 1995, 55). This tactical flexibility gave him victory in every engagement he fought. The Mexican irregulars hired by the United States were also bandit gangs but were paid well to refrain from attacks on the civilian population. As collaborators and well-known criminals, they also had little to gain by further antagonizing an already hostile population (Knapp 1995). The Texas Ranger companies that had served as scouts for Scott were ordered out of Mexico City after a murder spree brought on by the killing of one of their officers (Connor and Faulk 1971). With the exception of a retaliatory rampage after Ranger Captain Samuel Walker was killed at the Battle of Huamantla, there is no evidence that the Ranger companies that were part of Lane’s command showed such lapses (Knapp 1995, Johannsen 1985).

6

Torture and Leadership Projects

1. Denunciations became a prominent part of Soviet life during the Terror. There is a close question here about why this was the case. It was obvious that increased latitude in denunciations to the NKVD would have created


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a strong probability that the number of false accusations rising from economic privations and personal rivalries would increase as well. The appearance of persons making multiple accusations gave even the NKVD pause. Nonetheless, the Stalinist leadership not only made no attempt to curb the practice but even encouraged it in the name of increasing “democracy” in the party (Fitzpatrick 1999). The actual reason was probably that, given their apprehensions about the likelihood of war with the fascist powers, Stalin and his allies were perfectly willing to accept the death or imprisonment of innocent persons in order to finally settle accounts with opposition to the new order they were creating (Jansen and Petrov 2002, Getty and Naumov 1999). The practice continued throughout Stalin’s time in office, but without such dire effects (Kozlov 1999). 2. Looking at the research concerning rally effects in the United States leads one to the unavoidable conclusion that the Stalinists had inadvertently stumbled onto strategies that allowed the engineered continuation of rally effects during their time in power. As described above, rally effects in the United States are the result of crises that produce a combination of compliant opposition elites, mass publics startled into a surge of support for the government, and media with a corporate interest in supporting responses to the crises (Groeling and Baum 2008, Baum 2002). In democracies, however, publics recover their balance, criticism from counter-elites emerges, and the media senses the changes; the rally effects then decay (Baum and Groeling 2009). By closely controlling the media, systematically suppressing political opposition, and relentlessly reiterating the scope and presence of the crises the state faced and the inhuman nature of its opponents, the Stalinists controlled these mechanisms directly. Indeed, one could look at their entire agitation and propaganda effort as an attempt to create mechanisms to sustain rally effects in the population beyond their usual lifespan by a combination of coercion and control of information. It is impossible to systematically evaluate their success, of course, but anecdotal evidence suggests that the effort to build a “Bolshevik way of thinking” had considerable success, even among their opponents (Figes 2007). The German invasion in 1941 provided the government with another crisis, this time much more severe than the one in 1927–28, and conducive to an even stronger secondary rally effect. Stalin could use that to support the personal excesses of High Stalinism after the war (Taubman 2005). 3. It is cumulative feedback, either positive (reinforce system state) or negative (change system state), that is dangerous to system equilibrium (Lange 1965). By systematically manipulating institutions for the formation of public opinion, suppressing independent political voices, and turning electoral institutions into a bad joke, the Stalinist leadership began to get nothing from either public or governmental sources that contradicted the state’s vision of socialist construction. It is not surprising that they began to believe their own press clippings. 4. It is interesting that this happened despite the increasing autonomy of the security agencies under Beria. The decision to stop the Terror and to then


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portray it as a time of excess leading to offenses against socialist legality probably had something to do with the sudden decrease in the use of torture. Paradoxically, it was Beria who took administrative action soon after Stalin’s death to rein in torture by the security agencies. Indeed, Beria pushed many reform initiatives at the time that greatly concerned his more ideologically Stalwart party comrades (Taubman 2005). 5. It was also, however, part of an extensive leadership struggle between Khrushchev and his party associates and the security apparatus. As in Stalin’s day, the problem of succession to power proved difficult (Taubman 2005). 6. Khrushchev had again separated the state security and internal police functions that had been combined in the NKVD and its immediate successors. The new Committee for State Security (KGB) had responsibility for the internal secret surveillance that had been an NKVD function. Khrushchev, after his overthrow of Beria, also condemned the use of torture in his secret speech that began de-Stalinization (Taubman 2005). The result was that the KGB turned to a much more subtle approach to its work. The use of secret surveillance of all kinds was ratcheted up, both at home and abroad, and the use of prophylactic arrests (though not mass arrests) continued. Torture was not abandoned but was more and more farmed out to third parties, particularly psychiatric hospitals (Rejali 2007, Service 2009). These actions finally led to the withdrawal of Soviet psychiatry from the World Psychiatric Association in 1983 (Van Voren 2009). Recent disquieting revelations concerning the use of the anti malarial drug mefloquine have raised similar questions about medical practice at Guantanamo Bay prison. Mefloquine, a drug with potentially severe neuropsychiatric effects, was given to all arriving detainees in combined inoculations totaling five times the usual prophylactic dosage. Apparently none of the detainees was examined prior to inoculation for the actual presence of malaria. Mefloquine is known to cause, “anxiety, paranoia, hallucinations, aggression, psychotic behavior, mood changes, depression, memory impairment, convulsions, loss of coordination (ataxia), suicidal ideation, and possibly suicide” (Denbeaux et al. 2010, 7). It is usually not prescribed for general use as a consequence. The drug was also one of a family of drugs experimented with by the CIA for use in interrogations. Although the Department of Defense insists that the use of mefloquine at Guantanamo was a straightforward public health precaution—there is malaria active in Afghanistan—the actual practices stray so far from usual medical procedures that suspicion is easily aroused that the drug was being used to “soften up” detainees for future interrogations (Denbeaux et al. 2010, Leopold and Kaye 2010). 7. The practice of extraordinary rendition, that is, sending detainees to prisons in countries known for torturing to be interrogated, has been stopped, though the Obama administration continues to assert that renditions to third countries can continue, if there are diplomatic assurances that torturous interrogations will not take place. This was the same standard used


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8.

9.

10.

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by the Bush administration and has been decried by many as insufficient (Savage 2009). Also, the new Detainee Review Boards used at Bagram prison in Afghanistan, although patterned on the Combatant Status Review Boards found unconstitutional in Boumediene, are more open and at least allow detainees to bring witnesses on their behalf. This has resulted in about half of all detainees examined being released, according to the military authorities (Prasow 2010). Gronke and his associates point out that the sudden appearance of majority support for torture after such a long period of disapproval is probably the result of intensified partisanship following the new president’s inauguration, spurred on by recent public statements supporting torture by former vice president Cheney (Gronke et al. 2010). I do not doubt that this is true, but the basis of the shift in support is beside the point; Obama must be prepared to deal with the public as he finds it. Bonded warehouses are where importers can store their goods without paying duties on them until a buyer for the goods can be found. They still exist; a familiar example is the duty-free stores at some airports (U.S. Department of the Treasury 2001). Estimates differ, but the United States probably suffered a bit less than 5,000 (around 1,700 deaths) battlefield casualties in the war, while overall losses were better than 25,000. The additional casualties were deaths (around 11,000) and medical discharges (around 9,700) due to sickness, most among volunteer units that never participated in the actual fighting (Winders 1997). Mexican casualties have never been reliably tabulated, but battlefield casualties alone have been estimated at better than 25,000. Khrushchev, for instance, was a close friend of General Iona Yakir, one of the accused in the supposed conspiracy of the Red Army. Khrushchev denounced General Yakir at once as an enemy of the people and enthusiastically supported his execution (Taubman 2005, Deutstche 1985).

7 Conclusions 1. It should be noted here that the DEA thought that Lalo had been deactivated as an agent long before and that BICE had done nothing to disabuse them of their mistake. BICE did not trust the ties the DEA had with the Mexican police authorities and kept their continued use of Lalo secret (Hyde 2007). 2. On February 24, 2004, the DEA special agent in charge in El Paso, Sandalio (Sandy) Gonzalez, wrote a blistering memorandum to his BICE counterpart outlining the sequence of events and expressing his surprise and outrage over the entire affair (Gonzalez 2004). After the memo had been sent, Attorney General Ashcroft was told of the House of Death and authorized a joint special investigation by the DEA and BICE. Perhaps predictably, it was Gonzalez who was removed from his post as the Department of Justice closed ranks to keep its investigation of the House of Death secret (Rose 2006).


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3. Stalin approved interrogation protocols personally during the Terror. Other members of the Politburo had full knowledge of the procedures used as well (Taubman 2005). The process was similar in the case of the United States, the responsibility the same. 4. They also found that civil law judicial systems are associated with the continued use of torture, just as Rejali (2007) predicted. 5. There is another problem involving these changes: if they were adopted some practices in U.S. prisons might be outlawed. Although the definition of torture in the anti-torture statute and in the Convention excludes most prison practices, the extensive use of solitary confinement in the isolators of the “super-max” state and federal prisons could—and almost certainly would— be assaulted as cruel and inhuman if these legal initiatives were undertaken (Fathi 2010). This makes the already substantial political risk of sponsoring such changes without a prior political consensus even greater. 6. The Senate balked at simply adopting the Convention because of concerns involving the application of the Constitution. The statute particularly limits the scope of the Convention to actions in congruence with judicial interpretations of the 5th, 8th, and 14th amendments, as the OLC memos correctly point out. Harbury (2005) believes that, despite this, both the War Crimes Act and the Anti-Torture Statute provide sufficient grounds as a matter of law for prosecutions of those involved in the torture regime established during the War on Terror. She also admits, however, that so far the courts have failed to agree with her interpretation—hence her emphasis on civil remedies and the chilling effect they have on executive action. I strongly agree with her on this, as I hope I have made clear. 7. The Office’s original analysis did hold the OLC’s work on the memos to be unprofessional (U.S. Department of Justice 2008). This conclusion was modified in the release of the final report. 8. Witte is correct that Congress needs to engage with the issue of torture in order to bring some semblance of order to the question. Indeed, the 2009 amendments to the Military Commissions Act track his recommendations for reform closely. However, his advice on the use of what he calls “coercive interrogation” is, in my opinion, badly flawed. Witte does not comprehend how informal institutions would undermine every effort to control interrogation regimes, barring the revisions in both the criminal and civil law proposed here. His rather cavalier attitude toward the accumulated experience with torture regimes is unsettling. With scientific studies precluded by ethical concerns (but see Physicians for Human Rights, 2010), the careful evaluation of present experience is all that a proper research program can do. Such evaluations suggest strongly that although torture can get its victims to talk and, in some instances, might even get them to tell the truth, it is close to impossible to separate actionable intelligence from frantic attempts to say what interrogators want to hear so that the torment will stop. The problem becomes almost insurmountable when one considers that the same person may tell interrogators the truth in answer to some questions and then lie to stop the torture for others. Interrogations that cannot depend


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on corroborating strains of testimony with prior results and outside intelligence are, to be blunt, a waste of time (unless one is, like the Soviets, interested in coerced confessions). Of course, the interrogators will always think they could not have gotten the information they did without using “alternative procedures,” but, as Rejali (2007) points out, there is copious evidence that those using torturous questioning are the last people to ask for a dispassionate evaluation of their work. Witte is right in saying that there is little systematic evidence that torture does not work, but there have been recent revelations that U.S. security agencies have apparently tried to fill that gap in our knowledge (Physicians for Human Rights 2010). The very fact that they have is enough to bring the entire conversation concerning coercive interrogation to a complete moral impasse.


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Abakumov, Viktor, 132 Abdulmutallab, Umar Farouk, 135 Abu Ghraib, 86, 154, 163n1, 163n5, 172n10 prisoner abuse at, 1–6, 9, 95, 163n6 accommodating informal institutions, 30, 74–75, 96, 143, 153, 155 Stalinist Terror and, 94 actionable intelligence, 29, 31, 75, 180n8 in Mexican War, 121, 125 Adams, John Quincy, 103 Addington, David, 79–80, 150, 170n4 Afghanistan, 56, 58–59, 139, 142 Obama administration and, 134, 136 Alien Tort Claims Act, 157 al Qaeda, 55–57, 76, 78, 82, 142 excluded from Geneva Conventions, 79–81, 84 Iraq insurgents labeled, 171n8 al Sheik, Anwar Sa’eed, 1–2, 5, 163n3 alternative procedures, 98, 134, 159, 165n6 perceived need for, 180n8 al-Zawahiri, Ayman, 78 American Civil Liberties Union (ACLU), 96 American Indians, 111 Anglo-Saxon modern torture, 25 anti-torture legislation, 136, 157–159, 180n6 See also Detainee Treatment Act (DTA); Geneva Conventions (GC); Military Commissions Act (2009); United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment

Armstrong, John A., 7, 154, 156 Article 58, 90, 92, 173n14 Ashcroft, John, 150, 179n2 autocratic regimes, 7–8, 11, 15, 16–17, 155–156 See also Soviet Union “bad apples” argument, 9 Bagram Air Base prison, 76, 81, 86 Bank of the United States, 104–106 Bank War, 105 Battle of Buena Vista, 120, 176n11 Battle of Cerro Gordo, 175n9 Beardon, Milton, 147, 150 beatings, 22, 172n13 Beria, Lavrentiy, 99–100, 177n4 bin Laden, Osama, 78, 142 “black site” prisons, 76 Blair, Frances, 117 Bolsheviks, 47–49, 63, 166n1 bondage, 23 bone breaking, 23, 94 Boumediene v. Bush, 135, 174n21 Bradbury, Steven, 97–98, 153, 173n20 branding, 23 Bremer, Paul, 82, 85 Brown v. Mississippi, 172n13 Bukharin, Nikolai, 51–52, 66, 68, 92, 98 Bush, George H. W., 43 Bush, George W., 6, 39, 44–46, 143–145, 167n8 approval of interrogation techniques by, 97, 150 approval ratings of, 169n16 compared with Polk, 108


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INDEX

Bush, George W.—Continued compared with Stalin, 52 deregulation and, 168n14 election of, 42 Iraq detainees and, 78 re-election of, 62 September 11 and, 55–56, 59 on terrorism, 95 Bush administration adoption of torture by, 6–7 leadership narratives of, 75–77, 158 leadership projects of, 71, 134 legalization of torture by, 152 re-election of, 133 strengthened by criticism, 34 Bybee memo, 80, 97, 147, 149–150, 152–153, 173n19 anti-torture legislation and, 158 Calhoun, John C., 105 California (territory), 111, 114, 119, 139, 140 car bomb attacks, 83 Cheney, Richard “Dick,” 6, 79, 150, 168n9, 170n4 Chertoff, Michael, 149–150 Chiang Kai-shek, 64 China, 61, 64, 133 Christmas Day terrorist attack, 136 cigarette burns, 3, 20, 165n8 Clay, Henry, 103, 107–108 climate change, 160 Clinton, Bill, 43–44 close restraints, 23 Coalition Provisional Authority (CPA), 83 collectivization, 67, 69, 76 Committee for State Security (KGB), 178n6 Communist Party of the Soviet Union (CPSU), 47, 50, 131 Community Solutions Act, 60 compassionate conservatism, 45, 52 Conquest, Robert, 17, 34 Conrad, Courtenay, 156, 159 Conroy, John, 11

constitutional change, 153–154, 156 continuous interrogation, 21 Criminal Investigation Service (CIS), 12 Cruel, Inhuman, and Degrading Interrogations Prohibition Act of 2010, 136, 157–160 Danner, Mark, 159–160 Darby, Joseph, 95 dark site prisons, 96–97 Davenport, Christian, 7, 12, 127, 129, 131, 154, 156 death threats, 19 de-Baa’thification, 83, 171n6 deception, 17, 19 deficit spending, 61–62 dehumanization, 8–9 democracies narratives and, 54 rally effects in, 177n2 repression in, 16–17, 127 selectorates in, 15 use of torture by, 7–8, 12–13, 143, 155–156, 170n2 Democratic Party (19th century), 104–105, 110–112, 115–116 Mexican War and, 120, 125 demonstrations, 59, 168n12 denunciations, 130, 140, 176n1 deregulation, 168n14 de-Stalinization, 151–152, 178n6 Detainee Treatment Act (DTA), 97, 153 divisional pit, 20 Dolgun, Alexander, 151 domestic democratic peace thesis, 16, 127 Dunlaevy, Michael, 81 Economic Growth and Tax Relief Reconciliation Act, 59 electric shock, 25 ethnic cleansing, 85 evangelical Christians, 41, 44, 60–61 executions during Stalinist Terror, 26, 92–93, 98–99, 144, 165n10


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204

executive discretion, 15, 59–61, 68, 100, 152, 154, 157 exhaustion exercise, 24 extraordinary rendition, 80, 134, 157, 178n7 faith-based initiatives, 60–61 Fay, George, 3–4, 163n6 Federal Torts Claims Act, 157 field interrogations, 85–86 firing incidents, 1, 163n3 Fitzpatrick, Shelia, 131 Five-Year Plans, 65–71, 131, 169n19 effects on ideology, 71, 142 used for political purposes, 75–76 Flanigan, Timothy, 150 food shortages, 65, 67 foul language, 18 freedom of expression, 156 Freedom of Information Act (FOIA), 12 Geneva Conventions (GC), 78, 164n2 denied to Iraq detainees, 6, 84, 152–153 Obama administration and, 136 War on Terror and, 77, 96–98 Georgia (Soviet republic), 48 Germany, 11, 63, 90, 132 Gerring, John, 16 Getty, J. Arch, 92 Gilligan, Michael, 12 Gingrich, Newt, 43 Goertz, Gary, 33 Goldsmith, Jack, 96–97, 153, 173n19, 173n20 Gonzales, Alberto, 77, 79–80, 150, 153 Gonzales, Sandalio “Sandy,” 179n2 Gorbachev, Mikhail, 138 Gore, Al, 44, 128–129 Graham, Lindsey, 4 Graner, Charles, 2 Great Britain, 174n5 Oregon territory and, 102, 111, 113–114, 140 relationship with Soviet Union, 64

205

great repudiators, 28, 37–39 Jackson as, 103 Khrushchev as, 132 Lenin as, 47 orthodox innovators and, 53 Reagan as, 39 revolution and, 47 Great Terror. See Stalinist Terror Grenada, 42 Griffin, Stephen, 154, 156 Gronke, Paul, 134 Guantanamo Bay detention camp, 2, 5, 76, 96 interrogation techniques of, 7, 80–82, 85–86 medical torture at, 178n6 Obama administration and, 134 Supreme Court decisions and, 135 Hamdan v. Rumsfeld, 97, 135, 165n6 Hamdi v. Rumsfeld, 96–97, 135 Hard Site, 1–2, 95, 163n1 Harrison, William Henry, 106 Hathaway, Oona, 11–12 Haynes, James, 79–81, 150 Helmke, Gretchen, 74–75, 90, 95, 97–99, 155 Hersh, Seymour, 5 High Stalinism, 132, 143, 177n2 Hitler, Adolph, 164n4 Holder, Eric, 134 House of Death, 147–149, 151, 179n2 Houston, Sam, 106 human rights, 7 humiliation, 25 Hussein, Saddam, 57 individual autonomy, 73 informal institutions, 74–77, 81, 95–96, 127, 142, 155 barriers to, 156 legalization of torture and, 158 See also accommodating informal institutions injured extremities, 1–2, 22 Intelligence Authorization Act, 159


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INDEX

INDEX

intercurrence, 27 International Committee of the Red Cross (ICRC), 5 interrogation techniques, 34–35, 163n2 criminalization of, 158 “enhanced,” 81–82 Guantanamo prison and, 85–86 imported to Iraq, 7, 80–81 legal constraints on, 135–136, 153 legal issues surrounding, 78–82, 86, 97 list of, 17–25 public acceptance of, 135 during Stalinist Terror, 94 two-track, 150 violation of international conventions, 5 of War on Terror, 96–98 See also torture Iraq, 139 contrasted with Mexican War, 120, 124 first Gulf War, 43 insurgency in, 76, 83–86, 120–121, 142 Obama administration and, 134 United Nations inspectors in, 168n11 United States invasion of, 57–59 Iraqi detainees, 171n8 abuse of, 2–7, 85, 95 excluded from Geneva Conventions, 6, 78–79, 84, 152 mass arrests and, 86 Italy, 11, 90 Ivie, Robert, 160 Jackson, Andrew, 102–106, 108, 111–112 Democratic Party and, 110 Jackson, Richard, 6, 7, 56 Jackson, Robert, 151 Jeffords, James, 56 Joint Personal Recovery Agency (JPRA), 81

Juma Juma, Mohanded, 163n6 justifying narratives, 10 Kamenev, Lev, 51, 63, 65, 169n18 trial of, 88–91 Karpinski, Janis, 172n10 Kemp, Jack, 40 Kirov, Sergei, 76, 88, 90, 172n11 kolkhoz (collective farms), 67 Kork, August, 92 Khrushchev, Nikita, 132, 178n6, 179n11 kulaks, 51, 65–67, 89, 92, 99 Lacarno pacts, 64 Lalo. See Peyro, Guillermo Ramirez Lane, Joseph, 122, 176n12 leadership narratives, 10, 28–29, 31, 54, 71–72 American success as, 85 of Bush administration, 158 Five-Year Plan as, 67 justification for torture in, 75–76 manifest destiny as, 111 Mexican War and, 124 of Obama administration, 136 of Polk administration, 33, 137–141 in Soviet Union, 130 of Stalin, 68–69, 133 during Stalinist Terror, 93 strengthened by criticism, 141–142 leadership projects, 10, 28–31 of Bush administration, 134 Five-Year plan as, 131 Mexican War as, 109 perceived threats to, 75–76 of Polk administration, 33, 125 public opinion and, 129–130 reasons for success of, 127–128 strengthened by criticism, 71, 139–141, 141–142, 155 War on Terror as, 83 See also Five-Year Plans; War on Terror Leahy, Patrick, 160 Lenin, Vladimir, 46–49, 51, 69, 167n4


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206

INDEX

McBrayer, Glen, 149 Mahoney, James, 33 manifest destiny, 33, 109–112 Marxism-Leninism, 68 mass arrests in Iraq, 84, 86 in Soviet Union, 87, 132, 164n3 during Stalinist Terror, 93–94, 99 mefloquine, 178n6 Mensheviks, 166n1 message discipline, 46 Mexican irregulars, 122–125, 176n13 Mexican War, 30, 33, 101–102, 114, 117–125, 137–141, 175n9, 176n10 casualties in, 179n10 contrasted with Iraq, 120 criticism of, 140–141 as leadership project, 109 military tactics, 175n8 Mexico, 118–125 contemporary drug war in, 147–149 manifest destiny and, 111 relations with United States, 113–116 slavery and, 113 See also Mexican War Military Commissions Act (2006), 98, 134, 136, 153, 159, 165n6 Military Commissions Act (2009), 134, 157, 159, 180n8 military intelligence (MI), 3–4 military trials, 78 Miller, Geoffrey, 82, 85–86, 172n10 mock executions, 23

Molchanov, Georgy, 93 Moore, Will, 7, 154, 156, 159 Mora, Alberto, 171n5 moral equivalence, 26 nation-building, 58 Naumov, Oleg, 92 Nazi Germany, 132, 164n4 neocolonialism, 7 Nesbitt, Nathaniel, 12 New Economic Policy (NEP), 46, 49–51, 63, 65–66, 167n4 New Mexico (territory), 111, 114, 119, 139, 140, 174n4 Nicaragua, 42 night interrogation, 18 Nikolaev, Leonid, 88 NKVD. See People’s Commissariat of Internal Affairs (NKVD) Obama, Barak, 6 Obama administration, 134–136, 156–157 anti-torture legislation and, 159 extraordinary rendition and, 178n7 Office of Legal Council (OLC), 12, 170n3 anti-torture legislation and, 158 Operation Enduring Freedom, 59 Ordzhonikidze, Gregory “Sergo,” 92 Oregon territory, 102, 107–111, 113, 114–116, 138–140 Orlov, Aleksandr, 99 Orlova, Raisa, 63 Orren, Karen, 27, 47 orthodox innovators, 28, 31, 38–39, 53–54, 155 Bush as, 45, 56, 58, 62 Polk as, 33, 101–102 Stalin as, 52–53 Pakenham, Richard, 113 Pakistan, 56 Palestinian hanging, 23, 163n4 Pappas, Thomas, 86


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Levin, Dan, 97, 173n20 Levitsky, Stephen, 74–75, 90, 95, 97–99, 155 Lewinsky, Monica, 44 Libya, 42 light effects, 20 Lincoln, Abraham, 137 litter sandwich, 23, 166n14 long interrogation, 17, 34 looting, 83 Lyushkov, Genrikh, 99

207

INDEX

Paredes, Mariano, 114 PATRIOT Act, 56 “pay-go” rules, 62 peaceful coexistence, 133 penny press, 117 People’s Commissariat of Internal Affairs (NKVD), 77, 87–94, 99–100 KGB and, 178n6 torture techniques used by, 17–25, 165n8 use of torture by, 35, 151, 172n12 persuasion, 17–18 Peyro, Guillermo Ramirez, 147–149, 179n1 Pfiffner, James, 152, 160 Phoenix program, 8 polarization, 140 police dogs, 3, 24 political time, 26–27, 37 Polk, James K., 33, 105, 144 collapse of leadership narrative, 137–141 election of, 107–108 expansionist policies of, 111–114, 116 media coverage of, 117 Mexican war and, 118, 124 as orthodox innovator, 101–102 post-war agenda of, 138–139 presidential agenda of, 115–117 unitary executive theory and, 124–125 Ponce, William, 84 possibility principle, 33 postwar planning, 83 Powell, Colin, 6, 79, 150 preliminary humiliation, 18 presidential authority, 58–59 presidential legitimacy, 27 Principles Committee of the National Security Council, 150 proletarian culture, 70 prophylactic arrests, 76–77 in Iraq, 84 during Stalinist Terror, 93–94 See also mass arrests

Provance, Samuel, 2–5, 9 psychiatric hospitals, 178n6 psychological contrast, 17–18 punishment cells, 21, 25 purges, 88, 164n3 Pyatakov, Georgy, 92 racism, 144 Radek, Karl, 92 rally effect, 10, 29, 134, 166n13, 177n2 of Mexican War, 117–118, 140 of World War II, 143 rape, 24 Rasul v. Bush, 96, 135 Reagan, Ronald, 39–42, 47, 138 Reagan Democrats, 41, 44, 59, 61 regime decay, 28 regime projects. See leadership projects Rejali, Darius, 11–12, 17, 100, 150 list of torture techniques and, 25, 35 religious issues, 122 repression, 11, 16–17 in democracies, 127, 129 in Soviet Union, 90 repudiative authority. See great repudiators revolutions, 47 Reyes, Fernando, 148 Reyes, Silvestre, 157–160 Rice, Condoleeza, 54, 150 Ritchie, Thomas, 117 Rizzo, John, 79–80, 150 Rome Statute, 80 Rudzutak, Yan, 69–70 rule of inclusion, 33 rule of law, 154 Rumsfeld, Donald, 77, 79, 81, 150, 168n9 Russian Revolution, 47–48 Rykov, Alexey, 51, 66, 68, 92, 98 Ryumin, Mikhail, 151 Ryutin Platform, 70 Sanchez, Ricardo, 85–86 Santa Anna, Antonio Lopez de, 120–121, 125, 174n1, 175n9, 176n11


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208

Santillan-Tabares, Heriberto, 148–149 scarring techniques, 25, 165n8 Scott, Winfield, 120–124 Seawright, Jason, 16 secular time, 26, 128, 137–138 selectorates, 15 sensory deprivation, 18 September 11 attacks, 55–59, 142 sexual humiliation, 19 short shackling, 24 show trials, 66, 70, 89–90, 98, 130 Siegelbaum, Lewis, 130 Skowronek, Stephen, 26–29, 37–42, 47, 53, 141 on Bush, 45–46 slavery, 31, 104, 111, 112–113, 144 sleep deprivation, 3, 21 sleeping bag torture, 24 Slidell, John, 114 “smoking” (interrogation technique), 3 socialism in one country, 52 socialist legality, 90 Social Security, 41 Sokolov, Andrei, 130 solitary confinement, 25, 180n5 Solzhenitsyn, Aleksandr, 17, 35, 94 sound effects, 19 Soviet Union, 16, 46–53, 154 adoption of torture in, 76–77 comparative system characteristics of, 32 extent of torture in, 26 international condemnation of, 158 international position of, 90–91 justification for torture in, 141–143 leadership narratives of, 71–72 leadership projects of, 139–140 political labels in, 167n4 post-Terror politics of, 129–133 pre-Terror politics of, 63–71, 87–91 rally effects in, 177n2 Reagan and, 40, 42 as representative autocracy, 16–17 during Stalinist Terror, 91–94, 98–100, 164n3

209

torture techniques used by, 17–25, 34–35 use of torture by, 11, 151–152 Stalin, Joseph, 77, 143–145 consolidation of power, 63, 65–66, 68–71, 88–89 “cult of personality” around, 68, 130–131 leadership narratives of, 75–77 leadership projects of, 71, 140 Lenin and, 49 murder of Kirov and, 172n11 personal involvement in Terror, 91–93, 99, 164n3, 180n3 rise to power of, 50–53 strengthened by opposition, 34 use of rally effect by, 143 Stalinist Terror, 16, 91–94, 98–100, 164n3 contrasted with War on Terror, 26 denunciations and, 176n1 executions during, 165n10 public opinion of, 129–130 Stalin’s role in, 143–145 strengthened by opposition, 140 use of torture during, 17–25, 151, 165n5 Stalwarts Bush as, 45, 56 Leninist, 66 Polk as, 108 Stalin as, 53 standing, 21 standing on knees, 20 starvation, 22 Stockman, David, 39 stress positions, 1, 17, 21 Supreme Court decisions, 96–97, 135, 165n6, 172n13, 174n21 Survival, Evasion, Resistance, Escape (SERE) program, 81 Suskind, Ron, 78 Sutton, Johnny, 148 Taft, William, 79 Taguba, Anthony, 2–5


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INDEX

INDEX

Taguba report, 163n3 Taliban, 56, 82, 142 excluded from Geneva Conventions, 79–81, 84 tariff issues, 104–106, 112, 116, 118, 138–139, 174n5, 175n7 Mexican War and, 121 tax cuts, 59, 61, 168n13 Taylor, Zachary, 114, 119–121, 176n11 Tenet, George, 150 Texas, 174n1 US annexation of, 106–109, 111–114, 116, 138–140, 174n3 Texas Rangers, 125, 176n14 That’s My Bush!, 55–56 thirst, 21 threats to hostages, 19 tickling, 19 Tiger Team interrogation units, 82, 86 Tomsky, Mikhail, 51, 66, 68 torture, 6–9, 73–74 at Abu Ghraib, 1–5 academic studies of, 11–12 as accommodating informal institution, 30, 74–77, 85, 94, 143 constitutional change and, 153–154 constraints on use of, 142–143, 154–155 definition of, 13–14, 152–154, 164n2 in democracies, 7–8, 12–13, 143, 155–156, 170n2 difficulties in reversing use of, 159–160 factors influencing adoption of, 7–8 Gore on, 128 importance of preventing, 160–161 informal legalization of, 141, 149, 156 institutionalized in Soviet Union, 89–90, 151–152, 172n12 institutionalized in War on Terror, 95–98, 152–155 justifications for, 141–143, 152, 180n8

lack of prosecutions for, 134–135, 151, 159 legal issues around adoption of, 79–82, 135–136, 149–150, 152–153 list of torture techniques, 17–25, 34–35 mechanisms for adoption of, 28–33 medical, 178n6 by Mexican irregulars, 123, 125 Obama administration and, 156–157 operational intelligence and, 77 in post-Terror Soviet Union, 132–133, 178n6 public acceptance of, 129, 133, 135 redefined by Bush administration, 7 slavery and, 144 during Stalinist Terror, 91–94, 99–100, 130, 165n5 strengthening legal protections against, 157–160 unconstitutionality of, 172n13 United States foreign policy and, 5–6 unreliability of confessions, 180n8 in US prisons, 180n5 Torture Victims Protection Act, 157 Townsend, Fran, 86 Treaty of Berlin, 64 Treaty of Guadaloupe Hildago, 123 Treaty of Rapallo, 64 Trist, Nicholas, 123 Trotsky, Leon, 51, 63, 65, 70, 169n18 Truman, Harry, 143 Truth Commissions, 160 Tucker, Robert, 17, 35 Tukhachevsky, Mikhail, 92, 173n16 Tyler, John, 106–107 Uborevich, Ieronim, 92 Ukraine, 48 Uniform Code of Military Justice, 78 unitary executive theory, 57, 68, 124–125, 168n9


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210

United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment, 14, 152–153, 157–159, 164n2, 180n6 United States (19th Century), 30–33 comparative system characteristics of, 32 economy of, 110 media in, 117 in Mexican War, 118–125 military power of, 175n8, 176n10, 176n11 pre-Polk politics of, 102–109 relationship with Mexico, 113–116 war casualties of, 179n10 United States (contemporary), 15, 154–155 adoption of torture in, 76–77 aftermath of 9/11 in, 55–62 comparative system characteristics of, 32 electoral politics of, 37 Geneva Convention and, 164n2 institutionalization of torture in, 152–155 justification for torture by, 141–143 leadership narratives of, 71–72 leadership projects of, 139 modern political history of, 39–46 presidential politics of, 27–28 prisoner abuse and, 8 as representative democracy, 16–17 torture affecting foreign policy of, 5–6 torture techniques used by, 17–25 See also War on Terror Van Buren, Martin, 106–108, 112 veto, 131, 132, 135, 136 Vietnam War, 7–8 voice, 129, 132–133, 156 Volker, Paul, 41

211

Walker, Robert A., 112–113 Walker Tariff, 138 War Communism, 48–49, 63, 167n3 War Council of lawyers, 150 War Crimes Act, 79, 97, 134, 180n6 War on Terror, 56 anti-torture legislation and, 159 beginnings of, 58–62 contrasted with earlier wars, 7, 77 contrasted with Stalinist Terror, 26 dehumanization of enemies, 8 Geneva Conventions and, 6 leadership narrative of, 85 legal strategy of, 150 during Obama administration, 136 popular support for, 169n16 purposes of, 78, 83 strengthened by criticism, 71, 140 studies of torture in, 12 torture institutionalized in, 95–98 undermined by torture, 6 used for political purposes, 75–76 waterboarding, 24, 97, 98, 135 authorized by Bush, 150 weapons of mass destruction (WMD), 57, 83, 168n11 Webster, Daniel, 103 Weinberg, Albert K., 109 welfare reform, 43 welfare state, 41–43 Whig Party, 105–106, 110, 119 Wittes, Benjamin, 159 Working Group Report, 153, 171n5 World War II, 130–132, 143 Yagoda, Genrikh, 88–89, 91, 98 Yakir, Iona, 92, 179n11 Yezhov, Nikolai, 87–89, 91–94, 98–99 Yoo, John, 79–81, 149–150, 155 Yoo memo, 96, 153, 173n19 Yugoslavia, 133 Zabar, Hamid, 4 Zinoviev, Grigory, 51, 63, 65, 88–91, 169n18


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INDEX


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The Politics of Torture

The Politics of Torture

The prohibition of torture

Torture

Ethics of Torture

The Torture Trust

Spirituality and the Ethics of Torture

Tong Torture

Statelessness: the quiet torture of belonging nowhere

The Torture of Slaves in Athenian Law

Torture and the Military Profession

Bind, Torture, Kill

Two cousins to torture

Torture and Democracy

The Torture Debate in America

The Wound and the Witness: The Rhetoric of Torture

Desert, Retribution, and Torture

Bind, Torture, Kill

Bind, Torture, Kill

Girl, (Nearly) 16- Absolute Torture!

Torture: When the Unthinkable Is Morally Permissible

Ames, Jefferson - Girl On The Torture Wheel

The Politics of Unemployment

The Politics of History

The Politics of BSE

The Elements of Politics

The Politics of Misinformation

The Price of Politics

The Nature of Politics

The Psychology of Politics

The Politics of Life

The Politics of Torture