How the Commander in Chief's 'Call for Papers' Veils a Path Dependent Result of Torture

Abstract

Path dependence and critical junctures refer to decisive choices and events that prompt future trajectories, which are difficult to reverse because the progression of the political or institutional consequence involves entrenched behavior, anteceding determinations, and an elevated cost of altering course. This article contends that human rights abuses that followed from the Bush Administration’s interrogation policies were the product of a path dependent process. Namely, evidence from investigations indicates that the Bush Administration chose policies, based on a primal risk-averse assumption of dire harm from terror threats, and issued an effective “call for papers” to legal advisors to have them produce opinions to make no law applicable that would restrict detention and interrogation policies. The same inner-circle of four legal advisors issued critical memoranda and the White House classified the documents under national security so that other lawyers could not critique them prior to government actions being taken. Ultimately, if one discards the premises, signified by the reality that the first terrorist attack since 9/11 occurred at the 2013 Boston Marathon, that there has been virtually no other substantial evidence of plots near perpetration or of “sleeper cells,” and that wars in Afghanistan and Iraq were unrelated to imminent and direct threats inside American borders, the initial overzealous perception of jeopardy ostensibly produced government orders that deprived human rights, undermined U.S. integrity, abused numerous innocent people in foreign countries, and violated international and domestic law. Moreover, the legal memoranda should not be perceived as an intervening variable to dilute responsibility or the chain of causation between the premise of threats and government directives that arguably cashiered international law violations, crimes, or torts.