Tortured Arguments

[thedrifter]

Tortured Arguments
Giving al Qaeda an interrogation-resistance manual.

Tuesday, October 9, 2007 12:01 a.m. EDT

On current course, U.S. warfighting doctrine will be as tame as a church social. Over the weekend, Condi Rice announced that Iraq convoys protected by military contractors will also have State Department minders onboard vehicles equipped with video cameras. Now comes the latest flap over "torture" techniques during terrorist interrogations, well on their way to becoming little more than a friendly chat.

Post-Abu Ghraib, opponents of terrorist interrogations got the Bush Administration to repudiate a 2003 Justice Department memo said to be overbroad. Now critics are up in arms over newly leaked 2005 memos that responded to that earlier criticism by attempting to be more specific.

Given the anti-antiterror mood in Congress, the CIA wanted to know with precision what it can and cannot do with al Qaeda captives, lest its officials find themselves without defense in front of some Congressional committee. So, according to newspaper reports, the Justice Department's Office of Legal Counsel responded by detailing that slapping, hypothermia, sleep deprivation and so-called stress positions are allowed. Are these torture? If so, then we really are at the point where al Qaeda agents will be treated like common felons.




What's really at issue here is whether U.S. officials are going to have even the most basic tools to interrogate America's enemies. Newspaper accounts of the 2005 memos say "waterboarding," or simulated drowning, is also allowed in the memos, which reflects the CIA's view that this is especially effective in breaking hard cases rapidly. Reportedly, this technique was used against al Qaeda masterminds Khalid Sheikh Mohammed and Abu Zebaydah. Waterboarding, by the way, is also part of interrogation-resistance training for some Americans, to prepare them to face the enemy if captured. If Congress wants to outlaw this technique, it can do so. But it then has an obligation to say what is allowed.

As it stands now, the scolds in Congress and the Beltway press have decided to impose their view that no pressure tactics are ever necessary or justified. But if Congress and the press are going to take over the design of the war on terror, how can they justify walking away from any responsibility to make clear what is permissible?

The notion that the U.S. goes around unnecessarily "torturing" people without any rationale whatsoever is so absurd that it is almost never stated explicitly. But it is equally awkward for the Administration's critics to admit that the "coercive" methods listed in these memos to induce cooperation from al Qaeda operatives may actually work. Former CIA Director George Tenet has said explicitly that they do work and have saved American lives. But rather than face these hard issues directly, the scolds fall back on generalities about our "values."

If Congress doesn't want to wade into the difficult business of approving this pressure technique while forbidding that one, or making clear which methods can and can't be used in combination, then it should understand that the course it is on now will help al Qaeda operatives resist interrogation.

Congress wants the OLC memos made public, but the reason to keep them secret is so enemy combatants can't use them as a resistance manual. If they know what's coming, they can psychologically prepare for it. We know al Qaeda training often involves its own forms of resistance training, and publicly describing the rules offers our enemies a road map for resistance.




Perhaps the worst canard is the assumption that the Administration went looking for some yes-man to issue the OLC memos. The premise of this narrative is that issuing these memos would somehow help the career of acting OLC head Steve Bradbury. This is preposterous. The amply documented way to get ahead in today's Washington is to loudly object to some Bush policy, and then advertise your disagreement in Congressional testimony or in a tell-all book.

Former Deputy Attorney General James Comey has made himself the toast of the town that way. Meanwhile, Mr. Bradbury's predecessor at OLC, Jack Goldsmith, is now at Harvard, basking in applause for attacking his former Administration colleagues in a book. Mr. Bradbury no doubt knew he was dooming his chances of Senate confirmation any time soon. It's just possible he signed the memos because he thought they were the right thing to do under the law and as policy.

The critics of Bush policy want to have it both ways: They want to smear Administration officials with the generalization of "torture" while washing their hands of any responsibility to say what kind of interrogation, if any, they favor. If a Democrat wins the White House in 2008, she may discover that no one in her government will dare sign a memo allowing any kind of aggressive interrogation beyond "Have a nice day."

Ellie

[thedrifter]

So Be It?
The dangers of defining "torture" down.

BY BRET STEPHENS
Tuesday, October 9, 2007 12:01 a.m. EDT

It all but goes without saying that torture, properly defined and in nearly every circumstance, is wrong. But what do you make of the following statement, from a recent editorial in the Economist: "Dozens of plots may have been foiled and thousands of lives saved as a result of some of the unsavory practices now being employed in the name of fighting terrorism. Dropping such practices in order to preserve freedom may cost many lives. So be it"?

The subject of torture is again in the news thanks to a front-page story last week in the New York Times. It claims that in 2005 the Justice Department issued secret legal memorandums authorizing what the paper calls "severe interrogations," even after the administration had apparently renounced such methods. President Bush responded to the Times's story, as he has previously, by insisting "this government does not torture people." But the editorial writers at the Times were not impressed: "Is this a nation," they asked, "that tortures human beings and then concocts legal sophistries to confuse the world and avoid accountability before American voters?"

Two significant questions arise from this debate. First, what do we really mean by the word "torture"? And second, is the "So be it" standard put forward by the Economist a persuasive one?

The first question is not just a hairsplitting one, although a lot of hair gets split when government lawyers are asked for their opinion. Torture is a word that preserves its moral force only when used precisely and consistently to denote uniquely barbarous acts. "The needle under the fingernail" is one example. Simply to mention it causes most people instinctively to shudder.

By contrast, "slaps to the head," among the examples cited by the Times of the administration's "brutal" methods, doesn't come close to meeting any plausible definition of torture. The other examples--"hours held naked in a frigid [50 degree Fahrenheit] cell; days and nights without sleep while battered by thundering rock music; long periods manacled in stress positions; or the ultimate, waterboarding"--come progressively closer to the line, and perhaps they cross it. But how do we tell?

A useful benchmark was offered by a landmark 1978 decision laid down by the European Court of Human Rights. In Ireland v. the United Kingdom, which dealt with Britain's (extrajudicial) treatment of members of the Irish Republican Army, the court concluded that the following methods did not amount to torture:

"(a) Wall-standing: Forcing the detainees to remain for periods of some hours in a 'stress position,' described by those who underwent it as being 'spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers.'

"(b) Hooding: Putting a black or navy colored bag over the detainees' heads and, at least initially, keeping it there all the time except during interrogation.

"(c) Subjection to noise: Pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise.

"(d) Deprivation of sleep: pending their interrogations, depriving the detainees of sleep.

"(e) Deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the center and pending interrogations."

Remarkably, the European Court reached this careful judgment despite the fact that the "five techniques were applied in combination, with premeditation and for hours at a stretch" and that some of the detainees sustained "massive" injuries. The court's reasoning wasn't meant to excuse the behavior of British authorities, which it rightly described as "inhuman and degrading." But by maintaining the "distinction between 'torture' and 'inhuman or degrading treatment,' " the court sought to preserve the "special stigma [attached] to deliberate inhuman treatment causing very serious and cruel suffering."

These distinctions are not "legal sophistries," as the Times would have it. They are a juridical necessity to ensure that our definition of torture does not become so diluted as to render its prohibition unenforceable. But the abuse of the word does have its rhetorical uses: As with the militant anti-abortion movement, which believes that every abortion is murder and thus that every abortionist is a "murderer," the Times editorialists and their fellow travelers would characterize anyone who favors so much as touching a hair on 9/11 mastermind Khalid Sheikh Mohammed's head as "pro-torture." This isn't argument. It's moral bullying.

For the record, count me as one who does not object to the interrogation to which KSM was reportedly subjected, including waterboarding. This is not because I take the use of waterboarding lightly (although I have a hard time concluding that a technique, however terrifying, to which CIA officers are willing to subject themselves experimentally can properly be counted as torture). It's because I take the threat posed by KSM seriously.

That makes it difficult for me to subscribe to the "So be it" line of reasoning. Taken seriously, it says that the civilized world would be better off sustaining a nuclear 9/11 than tarnishing its good name, that righteous victimhood is a finer thing than an innocent life saved through morally compromised methods, and that self-preservation is not the most fundamental requirement of democratic life.

In nearly all conflicts, even existential ones, limits should be observed, and it's worth thinking through where exactly the limits lie. But when the moral trade-off comes down to KSM waterboarded in order to extract actionable intelligence, or some mother's child murdered, it's not a tough call. And no amount of inflated, imprecise and tendentious allegations of torture should change that.

Ellie