Tortuous Debate

Good editorial from the WSJ today regarding the debate over U.S. interrogation techniques - which, to allow me to reiterate my position on this new thread, aren’t torture.

I’m going to post both the WSJ editorial, and the Washington Post editorial from Sunday condemning our interrogation practices, which will hopefully stimulate discussion and make vroom happy.

Torture and the Constitution

Sunday, December 11, 2005; Page B06

DOES THE Constitution permit the use of “waterboarding,” or simulated drowning, to extract information from people detained by the government? To most Americans, the very question may sound ludicrous. Waterboarding, after all, has been recognized as a torture technique since the time of Torquemada and the Spanish Inquisition. U.S. soldiers who were caught using it on enemy insurgents in the Philippines, in 1901, or the Vietnam War, in 1968, were prosecuted.

When suffocation by water was used by foreign governments, such as the Augusto Pinochet dictatorship in Chile, the State Department didn’t hesitate to call it torture.

Yet the Bush administration sees it otherwise. Not only have senior officials denied that CIA interrogation techniques, which are known to include waterboarding, constitute torture, but administration lawyers argue that the practice doesn’t necessarily violate the lesser international legal standard of “cruel, inhuman and degrading treatment.” In ratifying the Convention Against Torture and Other Cruel Inhuman and Degrading Treatment in 1994, the Senate defined “cruel, inhuman and degrading” as any practice that would violate the Fifth, Eighth or 14th amendments.

Secretary of State Condoleezza Rice pledged during her tour of Europe last week that administration policy was to prohibit all U.S. personnel from breaking that standard, presumably including those who staff secret CIA prisons. Since the administration continues to maintain that it is not legally bound by the constitutional test outside the United States, Sen. John McCain (R-Ariz.) is pressing legislation that would make that purported policy a law.

What Ms. Rice’s statements concealed is that administration lawyers have concluded that waterboarding and other CIA pressure methods don’t necessarily violate the Constitution. Case law, they say, doesn’t offer a clear guide to what actions represent a clear breach. The standard, they say, is flexible. In the case of a terrorist who may have information that could save thousands of lives, goes the administration reasoning, extreme measures might be acceptable.

That’s why, when he was asked about waterboarding and a series of other abusive acts during his confirmation hearing earlier this year, Attorney General Alberto R. Gonzales testified that “some might . . . be permissible in certain circumstances.”

Europeans and Americans who interpreted Ms. Rice’s statements last week as an assurance that the CIA will no longer use waterboarding, prolonged shackling or induced hypothermia in its secret prisons were misled. Administration officials tell us there has been no decision to abandon those practices. Similarly, those who have hoped that the McCain amendment would end CIA abuses, as we have, must lower their expectations. The creation of a legal standard, while essential, probably will have to be followed by an effort to compel the administration to respect it, through further legislation or court action.

Interpreting the Constitution as permitting waterboarding in secret prisons is, to most experts outside the administration, legally outrageous and politically untenable. It means that the Bush administration accepts, in principle, that the FBI may use waterboarding, painful stress positions, forced nudity and other methods on Americans, in American prisons, “in certain circumstances.”

That’s why the Justice Department has classified its memos on the subject and kept its conclusions secret. That’s why President Bush and Vice President Cheney have worked so hard to stop the McCain amendment, which would pave the way for legal challenges to their interpretation. They want to give themselves the authority to commit human rights abuses without having to explain or justify themselves to the public, the world – or an impartial court.

Tortuous Progress
December 13, 2005; Page A12

It’s coming late in the game, but a little honesty has finally crept into the debate over interrogation in the war on terror. To wit, the critics are at last having to explain what they really object to, as opposed to their typically vague and inaccurate accusations of “torture.”

Credit here goes to Vice President Dick Cheney and a few media dissenters, who have insisted that the critics confront the practical and moral realities of fighting terrorism. Specifically, they (and we) have opposed Senator John McCain’s Amendment that would establish the Army Field Manual as the standard for Defense Department interrogations and otherwise (that is, for the CIA) reinforce prohibitions on “cruel, inhuman and degrading” treatment.

Everyone understands that this would effectively forbid some interrogation methods now being used, at least by the CIA.

Mr. Cheney’s stand is smoking out the critics, who for months have hid behind incantations first about Abu Ghraib, which numerous probes have proved had nothing to do with interrogations, and then the so-called “torture memos,” which sanctioned no specific interrogation techniques. So congratulations of a sort to the Washington Post, perhaps the most vociferous promoter of the “torture narrative,” for finally admitting in a Sunday editorial what so offends its editors.

It turns out to be “waterboarding,” a rare interrogation technique reportedly used against the hardest al Qaeda detainees. The method involves immobilizing a detainee and inducing a feeling of suffocation. The Post says it should be banned both as torture and contrary to the U.S. Constitution. That’s certainly worth debating, though the Post may get an argument from U.S. servicemen who’ve endured the waterboard as part of training to resist interrogation – proof that, if practiced properly, it does no lasting physical harm.

There’s also last week’s ABC News report that 11 of 12 captured al Qaeda kingpins who have talked only did so after being waterboarded. This would appear to contradict so many glib suggestions, such as those in an open letter yesterday from Congressmen calling themselves the New Democrat Coalition, that such techniques “just plain don’t work.” The truth is that sometimes they do work.

But let’s say waterboarding were banned. The critics are still conveniently vague about just what interrogation techniques they would allow. The Post frowns on “other CIA pressure methods.” Well, what are they? Sleep deprivation? Exposure to hot and cold? Stress techniques such as kneeling for a long time? Or how about good cop-bad cop interrogation of the kind practiced in the average American police precinct? That can certainly be “degrading” and “cruel” if you interpret those words in the most expansive manner.

Part of the problem with interpreting those words is that they depend on the context. All things being equal, we can’t think of a worse human rights abuse than blowing someone to bits with a Hellfire missile. Yet no one objected when that happened to al Qaeda leader Hamza Rabia in Pakistan two weeks ago. If certain individuals can be ethically targeted for death in a war, then wouldn’t the same hold true for rough interrogation methods? A strange code of morality would allow the killing of Rabia but not his stressful questioning to prevent further murders he might plan against innocent civilians.

Some of the more sophisticated critics recognize this, as well as the possibility of “ticking bomb” scenarios. That includes Senator McCain, who has written in Newsweek that on occasion “an interrogator might well try extreme measures.” But he opposes writing any guidance into law or regulation – the way the Bush Administration has done – suggesting instead that the interrogator should go ahead and do what he thinks is needed and then depend on “authorities and the public” to “take [context] into account when judging his actions.”

In other words, Mr. McCain admits that what lies at the heart of his Amendment is moral hypocrisy: We’re supposed to ban rugged interrogation in general to make us feel better about ourselves, but only until such interrogation is required; then do whatever it takes. We prefer the Bush Administration’s candor in approving certain practices in certain cases – all the more so because, in the real world, bureaucratic and political imperatives will almost certainly put an end to all such methods if the McCain Amendment becomes law.

And don’t forget “rendition” – the turning over of captured terrorists – to the likes of Egypt or Syria, the practice favored by the Clinton Administration because it lacked the nerve to handle captured terrorists outside the criminal justice system. We trust the CIA more than Egyptian intelligence, but where are the “torture” critics on the morality of this practice? The truth is that if the McCain Amendment passes, rendition will almost certainly increase. Perhaps this will be the next liberal target, until every al Qaeda detainee is treated no differently than a common thief.

We realize that our views on this subject won’t carry the day, at least not until the U.S. suffers a more serious attack. The Bush Administration is already backing down from Mr. Cheney’s earlier position, holding out in this week’s negotiations on the McCain Amendment only for immunity for the past actions of U.S. interrogators. We still wish the President would take his case to the public, and perhaps even request hearings next year on Capitol Hill, because Americans are more sophisticated about the reality of what it takes to break these terrorists than are most journalists.

But at least the Administration has been willing to admit that protecting Americans takes more than denouncing “torture” at the top of one’s lungs. Once the McCain Amendment becomes law, perhaps the torture moralists will continue their creeping honesty and let us know what U.S. interrogators can do to break the next Khalid Sheikh Mohammed.

Nice round-up post by University of Tennessee law professor Glen Reynolds on the current state of the “torture” debate:

BIG TORTURE ROUNDUP: I’m in the process of giving my Administrative Law exam, so I guess it’s a good time to address this topic again . . . .

Writing over at Winds of Change, Tom Holsinger worries about that the McCain amendment will judicialize national security in destructive ways ( ):

The danger here is less that captured terrorists will sue for money damages concerning alleged mistreatment as that they will sue for class action injunctive relief, i.e., judicial oversight of the facilities in which they are held. The state of California?s prison system is rightly subject to such a class action federal civil rights lawsuit right now concerning its disgracefully ineffective medical care for sick and injured prisoners.

He’s wrong, however, about 42 U.S.C. Section 1983, which does not apply to the federal government, among other legal details, though I think he’s probably right about the dangers inherent in judicial micromanagement here, which is quite possible.

Max Boot, meanwhile, thinks that we need to work on our definitions ( All-Stars of Team Bush Fall Flat in Iraq ):

[i]I've discovered that the use of torture by the U.S. government is far more pervasive than previously believed. There are major facilities all over the country where thousands of men and women who have not committed any crime are held for prolonged periods while subjected to physical and psychological coercion that violates every tenet of the Geneva Convention.

They are routinely made to stand for long periods in uncomfortable positions. They are made to walk for hours while wearing heavy loads on their backs. They are bullied by martinets who get in their faces and yell insults at them. They are hit and often knocked down with clubs known as pugil sticks. They are denied sleep for more than a day at a time. They are forced to inhale tear gas. They are prevented from seeing friends or family. Some are traumatized by this treatment. Others are injured. A few even die. Should Amnesty International or the International Committee of the Red Cross want to investigate these human-rights abuses, they could visit Parris Island, S.C., Camp Pendleton, Calif., Ft. Benning, Ga., Ft. Jackson, S.C., and other bases where the Army and Marines train recruits.[/i]

Boot notes that quite a few people are playing fast-and-loose with definitions on torture, and I think that’s right. There’s true torture – involving, as Boot says, “fingernails pulled, electric shocks applied, sharp objects put where they don’t belong” – and then there’s other stuff. Complaints about U.S. forces basically involve “other stuff.”

In the interest of some clarity, Andrew Sullivan invokes a legal definition of torture ( The Dish ), which is progress. But does he think it includes things like fake menstrual blood ( Opinion & Reviews - Wall Street Journal ), and being wrapped in the Israeli flag ( Instapundit )?

Because he’s made much of those things. If he thinks they fall within the legal definition, then he’s not very serious. If he doesn’t think they fall within the legal definition, then – given his repeated treatment of those subjects as “torture” – he’s not very serious.

Real torture, as I’ve written since way back in 2001, is wrong, and counterproductive. But the point-scoring and line-blurring hysteria with which posturing critics have addressed the topic has made things worse and – as I’ve suggested before – may account for recent polls in which majorities around the world say that torture isn’t so bad ( Instapundit ).

This is a war that has been overlawyered from the beginning – see this piece by Tom Ricks from 2001 ( ) about how the Pentagon’s requirement that lawyers approve airstrikes let leading Taliban and Al Qaeda figures escape: “The Central Command’s top lawyer – in military parlance, the judge advocate general, or JAG – repeatedly refused to permit strikes even when the targets were unambiguously military in nature, an Air Force officer said.”

I love lawyers. I am a lawyer. But there are plenty of places where the role of lawyers should be limited, and war is certainly one of them. I think the McCain Amendment is an appropriate use of Congress’s authority – and, indeed, a case of meeting, if way too late, Congress’s responsibilities – but if it’s to do more good than harm it needs to be quite specific about what is permitted and what is not, and it needs to avoid creating a lawyers’ full-employment act in the process. I’m not sure that we’re there yet.

Do they work? Do they help? Do they give us valid information? Or do they lead us to think that Iraq has WMDs and is linked to terrorism? If they lead to more false information being provided, ditch em

What I liked about the WSJ piece is that it cuts past some of the political rhetoric we hear in the torture debate and gets to the more fundamental question:

What [i]is[/i] torture?

I mean, before we can even decide how to handle the torture issue in a liberal democracy such as the U.S., we need to have a discussion on what is barbaric and inappropriate with some kind of detail. There seems to be a lot of nuances to the debate and if we keep speaking in generalities, we never get anywhere.

I find “torture” as a general concept abhorrent as I think the majority of Americans do. But I would not define torture as the good cop/bad cop routine or putting a lot of undue pressure on a detainee.

Until we have that discussion, we’re just engaging in a political pissing match that does no one any good.

[quote]jsbrook wrote:
Do they work? Do they help? Do they give us valid information? Or do they lead us to think that Iraq has WMDs and is linked to terrorism? If they lead to more false information being provided, ditch em[/quote]

I think that the claim is that actual torture by Egyptians of an al Queda suspect rendered to them led to some bad pre-war intelligence on Iraqi WMD.

On the other hand, waterboarding has apparently produced cooperation and good intelligence from captured high-level al Queda terrorists.

I suppose that would seem to confirm the idea that torture doesn’t work. But it seems that stress-based interrogation can work.

[quote]BostonBarrister wrote:
jsbrook wrote:
Do they work? Do they help? Do they give us valid information? Or do they lead us to think that Iraq has WMDs and is linked to terrorism? If they lead to more false information being provided, ditch em

I think that the claim is that actual torture by Egyptians of an al Queda suspect rendered to them led to some bad pre-war intelligence on Iraqi WMD.

On the other hand, waterboarding has apparently produced cooperation and good intelligence from captured high-level al Queda terrorists.

I suppose that would seem to confirm the idea that torture doesn’t work. But it seems that stress-based interrogation can work.[/quote]

“Stress-based interrogation.” There’s a euphemism if ever there was one. But thankfully, it seems this debate may be almost over, and in a way that restores American honor: