Jane mayer begins her new bestseller with a subtitle that, even before the book’s opening page, warrants a moment’s reflection: On The Dark Side’s cover appear the words: “The Inside Story of How the War on Terror Turned into a War on American Ideals.”
Mayer’s subtitle pulls one up short in two distinct respects — first, in its assertion that the war against al Qaeda has become a war against American values and, second, in its assumption that the reader does not require persuasion on this first point but shares the judgment and is now only asking how this happened. Mayer turns out to be right on this second point, at least to a great many readers. Her book has topped the sales charts and has received rave reviews. Many people apparently now take it as a given that the war on terror has become not merely an error-prone and sometimes excessive effort to combat al Qaeda but a designedly malign attempt to subvert American constitutionalism. As Mayer suspects, these readers are through asking whether this has happened and are now only asking how.
Mayer’s book is a work of significant virtues and significant vices. It is essential reading for the richness of her narrative reporting — some but not all of which she has recycled from New Yorker articles over the past several years — on the uglier sides of the war on terror in practice. Yet her account has mistakes, from minute factual errors to big conceptual ones. And perhaps her biggest mistake is the one that resides in that subtitle and her related Manichean sense of the Bush administration as a hard-fought internal war between good and evil, between torturers and decent conservatives, between those who believe in the rule of law and those who do not, between practitioners of the old tried and true methods of fighting terrorists and those who eagerly chose to dwell in what Mayer’s arch-villain, Vice President Dick Cheney, once called “the dark side.” Mayer hates her foes too much; she defines the class too broadly; and she concludes far too blithely that September 11 required no voyage at all into the dark side. It is a judgment that will comfort her many readers, but it is very likely wrong, and her half-hearted efforts to demonstrate it — rather than merely assert it — will convince only those who already believe the Bush administration’s efforts to fight the enemy were actually a war against America itself.
Mayer’s book is at its strongest when she is digging out new information about the underside of counterterrorism, synthesizing that information with other people’s reporting, and weaving it all into gripping narrative. She brings a whole lot of information to the table, whether on details of extraordinary renditions, debates within the cia over how to handle those it snatched around the world, bureaucratic infighting throughout the administration over interrogation and detention policy, or the extreme anxiety officials felt about how best to conduct the fight against the enemy. She reports on new documents; she has clearly had significant access to key players. What’s more, the texture of her reporting gets down and dirty enough to make phrases like “coercive interrogation” all too real. No decent person can read her account of the cia’s interrogation program without something approaching nausea. And even those who believe — as I do — that some degree of ugliness is inevitable in a struggle like this will find their insides squirming with anxiety at her accounts of detainee deaths in American custody.
Moreover, much of the larger narrative she builds out of these blocks is correct, if not especially original. The energy for the shift towards the dark side came from Cheney’s office, which merged claims of the necessity of tough action in the wake of September 11 with beliefs about executive power that long predated the attacks. This drive for operational flexibility yielded overly permissive, sometimes dreadful legal analyses that authorized executive disregard for congressional strictures. And the Bush administration made errors — from renditions and coercive interrogations of innocents to an overbroad detention policy — and underestimated the damage such facts would do to American prestige when they finally emerged. The Dark Side offers a compelling narrative catalogue of America’s voyage into the abyss and the struggles on the part of administration officials — sometimes futile, sometimes successful, often with mixed results — to get out of it.
But Mayer’s story is actually too neat, too cohesive, too simple — and it gets a lot of things wrong. In her acknowledgments, she mentions that the book “was written quickly, and inevitably there will be errors.” Perhaps it should have been written less quickly. And it should not have been inevitable that it would contain as many errors as it does.
Some are insignificant little factual details Mayer just doesn’t bother to get right. She confuses her Washington think tank publications, for example; she describes the Justice Department’s Office of Legal Counsel as containing “many” political appointees; she wrongly describes the law of domestic intelligence collection; she misquotes the Convention Against Torture and misdescribes the requirements of the Geneva Conventions.
But some of the errors are more significant, reflecting a genuine lack of understanding of legal principles at the heart of her book. In describing the origins of the administration’s excessive executive power claims, for example, she cites “conservative legal scholars” including now-Justice Samuel Alito, who in 2000 told a Federalist Society audience that the president does not control “some executive powers — but the executive power — the whole thing.” This statement, quoted for its apparent drama and radicalism, is actually an innocuous paraphrase of a comment in a famous dissent by Justice Antonin Scalia; Scalia was, in turn, paraphrasing the Constitution itself, which does indeed grant “the executive power” in its entirety to the president. The idea that the president controls the executive branch is totally unremarkable and largely unrelated to the question at the heart of the Bush administration’s executive power claims. That question is not how much control over the executive branch the president has but how much substantive power the branch itself has, particularly when faced with statutes that purport to restrict executive conduct.
Mayer also blasts Cheney for a comment he made in a speech early in the war on terror, in which the vice president declared that terrorists do not “deserve to be treated as prisoners of war.” This, she claims, was a fateful remark: “Of all the complicated legal arguments made by the Bush Administration in the first months after September 11, none more directly cleared the way for torture than this.” I have no brief for Cheney, but this comment is not evidence of any of his misdeeds. It is a wholly unobjectionable statement of the law. The hard question is what process, if any, a country must grant to captives in determining whether they are terrorists or eligible for pow treatment — a point Mayer elsewhere seems to understand. There is simply no doubt that once reasonably identified as such, a terrorist gets far lesser protection from international law than an enemy soldier who fights according to the laws of war.
These failures to get basic facts right and to understand the relevant law significantly undermine trust in the author’s reporting on the most secretive affairs of state — affairs that centrally involved the application of disputed legal principles.
More fundamentally, Mayer is quite selective in her credulity. Her apparent certainty that nothing good can come from an evil like coercive interrogation leads her to dismiss out of hand any suggestion that the cia’s interrogation program may have saved a lot of lives. Her fbi sources say it didn’t produce anything useful, and that’s good enough for Mayer, who expends none of her bountiful skepticism on their own bureaucratic investment in that conclusion — or even on whether they were in a position to evaluate the agency’s take. President Bush and other administration officials have stated unequivocally that the cia’s interrogation program disrupted terrorists’ activities and saved lives. Yet Mayer deals with the possibility that he might be right, and with the moral questions that would pose, by defining the problem out of existence. The old rules worked well enough because her sources say they worked well enough. The cause of September 11 was just a set of errors, not a mismatch between tools and challenges. Nothing really had to change, except that people had to do their jobs better. And those who believed otherwise — except those, of course, whose deviance from the administration’s course on certain points make them convenient heroes — are villainous.
She is no less selective in her sympathy. She waxes eloquent about the patriotism, for example, of the lawyers who represent Guantanamo detainees and tells about their struggles against social pressures from colleagues and peers. By contrast, her villains are unrelentingly villainous, and the pressures on them are beyond her interest. And it’s not just Cheney and his Rasputin-like counselor, David Addington, and John Yoo and Alberto Gonzales who get this treatment. It’s an unnamed mid-level cia bureaucrat whom Mayer cattily describes as a “tall, pale-skinned, spiky-haired redhead who wore bright red lipstick” and whom cia men hated for her aggressiveness. In Mayer’s account, this woman almost singlehandedly arranged for the snatch, detention, and coercive interrogation of an innocent man named Khalid al-Masri and insisted on his continued detention long after it became clear he had been captured in error. “She thought he seemed suspicious,” Mayer writes. Perhaps. Yet I can’t help but imagine that were we to hear as much from this woman as about her makeup choices, there might be just a little bit more to the story than this. After all, most people — even cia officers with red hair and lipstick — don’t actively want to oppress innocent civilians.
Along the same lines, Mayer spends an entire chapter on the battle over coercive interrogation in the military between former Pentagon General Counsel William J. Haynes (the bad guy) and former Navy General Counsel Alberto Mora (the good guy). Mora pushed to prevent the liberalization of interrogation rules, and Mayer introduces him as “a courtly and engaging man, with neatly trimmed silver hair, warm brown eyes, and the ability to both listen well and to lead.” By contrast, she makes no visible effort to humanize Haynes or to understand his side of the struggle. He is, for her, nothing more than an apparatchik and a dupe of Addington’s.
I don’t doubt that Haynes — whom I should disclose is a friend — made big mistakes in office. But there’s more to be said for his tenure than the common wisdom, which Mayer reflects, allows. For one thing, he is almost certainly the reason that no detainee at Guantanamo — or at any military facility — was ever waterboarded. For another, his reaction when olc later rescinded its permissive interrogation memos was altogether honorable. These facts are in Mayer’s book, yet she is so uninterested in him — except as a villain — that they don’t remotely complicate her portrait. Indeed, the most sympathetic words spoken about him in the entire chapter come from Mora himself, who makes clear at the chapter’s end that he sees his foes’ conduct less as evil than as tragic. “These were enormously hardworking, patriotic individuals,” he says. “When you put together the pieces, it’s all so sad. To preserve flexibility, they were willing to throw away our values.”
The most basic problem with The Dark Side is that Mayer does not acknowledge that the issues America faced, and still faces, with respect to terrorism are hard. It’s obvious to her that we don’t need coercion of any kind, that it’s illegal in all circumstances, and that it doesn’t work anyway. It’s obvious too that the criminal justice process is adequate to handle the challenges of international terrorists based in parts of the world where the writs of the courts don’t reach and against whom evidence is, as often as not, pretty sketchy. And if all this is obvious, then any deviations from the obvious course must be a “war on American ideals” rather than a war against terrorists.
Mayer hews to her sense of the issues as easy even when her own reporting reveals how hard they are. One of the administration lawyers for whom Mayer harbors undisguised admiration — and rightly so — is a man named Dan Levin, who ran olc on a temporary basis after the previous head, Jack Goldsmith, withdrew the original torture memos and then resigned. Levin was given the unenviable task of replacing these memos with more measured guidance, and in one of the best sections of the book, Mayer describes the analytical rigor and care with which he approached the vague criminal prohibitions against the infliction of “severe pain or suffering” and tried to figure out what they did and didn’t permit:
Levin went to the dictionary but it wasn’t much help. What was the difference between “suffering” and “pain”? There must be one, or else the [law] wouldn’t have banned them separately. They didn’t teach this in law school. Nor was it an area of Justice Department expertise. Was a broken leg more painful than a migraine headache? If you couldn’t hit someone with a seven-pound hammer, would a two-pound hammer be okay? It seemed to Levin, he told colleagues, that it depended on the person. If severe pain was a crime, was moderate pain legal?
In the course of this study, Levin actually submitted himself to waterboarding to “help him understand a bit more about whether America had gone too far.” His conclusions about where the lines lay in coercive practices put him at odds with the Bush administration, and top officials prevented him from assuming the job on a more permanent basis as a result.
But what were those conclusions? As Mayer reports, Levin determined that waterboarding “could definitely be classified as illegal torture unless, in his view, it was strictly limited in terms of time and severity and was closely monitored in a very professional way.” Which is to say that he did not conclude that waterboarding necessarily amounts to torture in all circumstances. The law, in other words, while more restrictive than the Bush administration acknowledged at first, may not be nearly so restrictive as human rights advocates like to imagine. The legal question, in other words, is hard.
Yet having described Levin’s process with evident respect and reported his views at its end, Mayer still seems to regard the question as an easy one. She later describes the coercive practices at issue as “torture” and warns darkly that they “seemed in danger of becoming normalized.”
My point here is not to defend waterboarding or other highly coercive interrogation tactics. It’s simply that neither the law of such matters (how far can we go?) nor their prudential dimensions (how far should we go?) are obvious at all. Nor are questions like how much, if any, extra-criminal detention authority the government should have in this fight or whether some sort of alternative trial regime should govern criminal prosecutions. It is simply too easy to tell the story of the war on terror as a “battle for the country’s soul” in which members of one side stood up for American values and “fought valiantly to right what they saw as a dangerously wrong turn” while the other side represented a “terrible departure from America’s ideals.” To frame the question thus, particularly while waving away any notion that America’s toughest actions may have saved lives, is to play with a stacked deck.
I learned a lot from Mayer’s reporting, and much of it is probably correct. For its impressive detail, its narrative depth, and its disturbing accounts of what is taking place in the invisible recesses of America’s confrontation with the enemy, The Dark Side is a genuine contribution. What it isn’t, however, is either fair or remotely rigorous in its snap assessments of the costs and benefits of both the path America took and the paths it did not take.
