Torturing the Evidence

National Review Online
Tuesday, December 16, 2008

In September 2002, senior leaders on the Senate and House intelligence committees — Democrats and Republicans — began receiving briefings on the CIA’s “enhanced interrogation program,” including the use of waterboarding on top al-Qaeda operatives. Among the leaders briefed was Nancy Pelosi, now speaker of the House.

The lawmakers raised no objections. According to Porter Goss, a congressman at that time and later head of the CIA, their chief concern was whether “the methods were tough enough.” But Carl Levin, the Democrat who runs the Senate Armed Services Committee, managed to suppress any mention of Speaker Pelosi and her congressional colleagues last week when his committee released its misleading and relentlessly partisan report, titled “Inquiry into the Treatment of Detainees in U.S. Custody.”

This document is the latest chapter in the Democrats’ torture narrative — a warped tale that trivializes true torture by confounding it with less extreme forms of interrogation. The committee thoroughly misrepresents the legal standards that govern detainee treatment and ignores non-partisan investigations that have found no evidence of a systematic program of abuse. Perhaps most significant, the Democrats ignore the fact that those rare episodes of abuse that have been uncovered have resulted in prosecutions.

According to the Levin report, the Bush administration reacted to 9/11 by “redefining” the law to permit aggressive interrogation tactics. Thus, the fable goes, in early 2002 the president determined that neither al-Qaeda nor Taliban fighters were entitled to prisoner-of-war treatment, in effect blocking application of Common Article 3 of the Geneva Conventions and the “well established military doctrine” of “legal compliance with the Geneva Conventions.” The administration then covertly set about having its Justice Department alter the legal definition of torture, the story goes, while its interrogators were schooled in illegal tactics by experts at the Defense Department. These techniques were employed by the CIA on important captives and became elements of a new warfare culture that spread to military interrogators at Gitmo and led, eventually, to the Abu Ghraib scandal.

That narrative is flawed in its fundamental assumptions and fictional in its sweeping conclusions. The Bush administration did not “redefine” detainee treatment law; it undertook to determine what the law says and whom it covers. The intent of the Geneva Conventions, the principal law on the subject, is to civilize warfare by affording benefits, including an absolute bar against abusive treatment, to eligible prisoners of war — i.e., to captured soldiers who adhere to the laws of armed conflict, meaning, among other things, that they forgo intentionally endangering civilians. By definition, al-Qaeda is not qualified for Geneva protections because it is a terrorist organization: It is not one of the sovereign nations that signed the 1949 pacts, and it specifically targets civilians. Though the Taliban was the de facto government of Afghanistan, its fighters also target civilians and hide among them, and consequently they do not qualify for Geneva protections.

The Bush administration did not negate the Geneva Conventions’ Common Article 3, which requires that captives be “treated humanely.” CA3 simply did not apply — or at least it did not until the 2006 Hamdan case, in which five Supreme Court justices ignored its terms. As the plain language of the law makes clear, CA3 governs civil wars: “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.” The war on terror is a global conflict, not a civil war. True, U.S. military doctrine recommends the observation of Geneva protections even for non-qualified captives, but that is a policy choice — it is not, as the Levin committee disingenuously asserts, a legal requirement.

It was natural that the administration should seek advice from the experts who know the most about coercive tactics — namely, from the military agency that oversees “Survival, Evasion, Resistance, and Escape” (SERE) training. The committee portrays this as sinister, claiming that SERE training is based on illegal exploitation of POWs over the last half-century. Again, the legal issue is misrepresented: The principal legal problem was not the interrogation methods themselves, but the fact that the prisoners in question were Geneva-qualified POWs. Geneva doesn’t protect qualified POWs only from torture — it protects them from any and all penalties for resisting interrogation.

Torture is illegal. And because torture is such a serious concern, our law has always defined it in such a way as to cover only truly heinous practices. In this we are not alone; foreign tribunals including the European Court of Human Rights and Israel’s Supreme Court have concluded that such tactics as the use of stress positions, hooding, diet manipulation, sleep deprivation, loud noises, and forceful shaking may be abusive but do not amount to torture. Those practices would, however, violate Geneva, under which those POWs eligible for protection may not be subjected to any penalties or inconveniences whatsoever for refusing to disclose more than name, rank, and serial number. Senator Levin may think we should be similarly constrained in questioning Khalid Sheikh Mohammed, but Geneva does not require it. Nor does any other law.

Congress has declined to criminalize waterboarding despite many opportunities to do so, and international law leaves a great deal of flexibility in interrogations. Even so, President Bush’s February 2007 directive required that all prisoners be treated “humanely.” Waterboarding, the most extreme tactic employed by the CIA, was limited to three top al-Qaeda captives (including Khalid Sheikh Mohammed) and hasn’t been used since 2003. At the Pentagon in 2002, Donald Rumsfeld echoed the president’s insistence on humane treatment and declined to approve waterboarding and other aggressive tactics, such as exposure to temperature extremes. When military lawyers objected to his approval of mildly coercive techniques, such as grabbing, poking, and pushing, Rumsfeld withdrew the authorization, ordered a study, and issued spring 2003 guidelines that rejected all tactics involving physical contact. Repeat: No physical contact. Hardly the stuff of torture.

Those guidelines were in effect long before Abu Ghraib. From the beginning of operations in Iraq, the president insisted that the Geneva Conventions be observed there. When the abuse scandal surfaced, it was the military that reported and investigated it, aggressively prosecuting the offending soldiers. Multiple investigations, including the bipartisan panel chaired by former Nixon, Ford, and Carter cabinet member James Schlesinger, have rejected the outlandish claim that President Bush installed a program of systematic prisoner abuse, much less a torture regime.

To be sure, the Schlesinger investigation also documented the exportation of interrogation tactics from Afghanistan to Gitmo to Iraq. This migration was attributable both to rotating personnel and to confusion about whether tactics approved for Gitmo had been approved for non-Iraqi detainees in Iraq. But this exportation in fact ran counter to official policy and, in any event, did not involve torture. The Schlesinger report also recounted that while U.S. forces had detained some 50,000 persons in the war on terror, there had been only 300 allegations of abuse, half of which had been investigated by late 2004. Those investigations produced 66 findings of abuse — and, significantly, only a third of those had anything to do with interrogations. There have been instances of abuse affecting about one-tenth of one percent of all detainees. This falls short of the standard of perfection but holds up well in any real-world comparison. President-elect Obama must be aware that the Cook County jail doesn’t have as good a record.

Prisoner abuse should not be taken lightly. There have been nearly two dozen detainee deaths reported, five of which are believed to have occurred during interrogations. But these episodes are endemic to warfare, not peculiar to the Bush era or a result of the president’s policies. Abuse is not to be tolerated — and it isn’t: dozens of U.S. military personnel have been disciplined and a number tried in courts-martial. There is a world of difference between relatively rare wrongdoing at the hands of a miniscule number of soldiers and a government program of torture.

The torture narrative is at odds with the facts. The U.S. does not have a policy of torturing captives, nor does it fail to abide by its obligations under the Geneva Conventions. When abuse has occurred, steps have been taken to punish the wrongdoers and rectify military practices. Those efforts will continue. A sober study would have made that clear. Congressional Democrats have instead found it expedient to smear the administration, the military, and the intelligence community for political purposes.