PJ Media

Torture: A Matter of Opinion or a Question of Legality?

As the sands run out on the Bush administration and the nation looks to the incoming Obama White House with a combination of apprehension for the future and a desire to put the past behind us, there remains some unfinished business that is so fraught with political danger and so heavy with symbolism regarding how we Americans see ourselves that the political elites in Washington are reluctant to address it.

I am talking about the whole matter of detainee abuse and whether those who specifically ordered it and carried it out should be punished.

There is no other issue in my lifetime except Vietnam that has elicited such passion in both defenders and detractors. At least with Vietnam there was, if not a middle ground, a gradation of opinion about our involvement and its legality. No such wiggle room exists on the torture issue. You either excuse it or condemn it. You either see the administration as blameless, trying to elicit information that would save us from another terrorist attack, or you believe war crimes have been committed in our name. Perhaps you see the application of torture as a matter of indifference or even justified during war time. Maybe you view the “enhanced interrogation techniques” as falling short of torture. Or maybe you believe that only a full investigation into detainee treatment followed by war crimes trials is the way to redeem the American soul.

Added to the opinion war now is a report issued (PDF required) by the Senate Armed Services Committee regarding the treatment of detainees in U.S. custody. Even for those familiar with most of the details regarding Bush administration decisions about “enhanced interrogation” techniques, there is some new information as well as confirmation of the involvement of certain administration officials that directly implicates them in violations of U.S. law.

It is against American law to torture prisoners — even terrorists. And our definition of torture mirrors that of the definition given by the Geneva Conventions. The Geneva Conventions prohibit the kind of “severe interrogation techniques” that were used on detainees like Khalid Sheikh Mohammed, the 9/11 mastermind. It’s not a question of whether waterboarding isn’t really “torture” because our special forces guys go through it as part of their training. Or whether “stress techniques” aren’t really torture because they leave no marks or don’t really distress the prisoner. The law is the law and these special interrogation techniques are in violation of the Geneva Conventions and hence, American law.

One of the major excuses offered in defense of the kind of “enhanced interrogation techniques” carried out against detainees is that many of our own military people are subject to the exact same treatment as part of their training to resist torture.

In an ironic twist to the torture story, there’s a very good reason both our soldiers and detainees in our custody experienced the exact same illegal techniques; in both cases, the same military unit was responsible for inflicting the torture.

From the New York Times story on the Senate Armed Services report:

The report documents how the military training program called Survival, Evasion, Resistance and Escape, or SERE, became a crucial source for interrogations as the Bush administration looked for tougher methods after the 2001 terrorist attacks.

The SERE training was devised decades ago to give American military personnel a taste of the treatment they might face if taken prisoner by China, the Soviet Union or other cold war adversaries. “The techniques were never intended to be used against detainees in U.S. custody,” Mr. Levin said in a statement.

In his statement on Thursday, Mr. McCain called the adoption of SERE methods “inexcusable.”

The report found that senior Defense Department officials inquired about SERE techniques for prisoner interrogations as early as December 2001, when the war in Afghanistan was weeks old and American troops were just beginning to capture people suspected of being members of the Taliban and Al Qaeda.

In September, the committee released a December 2001 letter from the head of the Joint Personnel Recovery Agency, which runs the SERE program, to a deputy of William J. Haynes II, the Pentagon’s general counsel, saying the agency’s officials “stand ready to assist” Pentagon efforts at prisoner “exploitation.”

In short, the administration used an off the shelf approach to torture; they employed the same unit that taught our soldiers how to resist illegal interrogation techniques to teach interrogators how to torture.

For in truth, no matter whether you look at it as a matter of international or U.S. law, the decisions made by Mr. Rumsefeld and Mr. Cheney violated legal strictures against torture. And the report makes that devastatingly clear.

This from a New York Times editorial quoting the report:

[A] bipartisan report by the Senate Armed Services Committee has made what amounts to a strong case for bringing criminal charges against former Defense Secretary Donald Rumsfeld; his legal counsel, William J. Haynes; and potentially other top officials, including the former White House counsel Alberto Gonzales and David Addington, Vice President Dick Cheney’s former chief of staff.

The report shows how actions by these men “led directly” to what happened at Abu Ghraib, in Afghanistan, in Guantánamo Bay, Cuba, and in secret C.I.A. prisons.

It said these top officials, charged with defending the Constitution and America’s standing in the world, methodically introduced interrogation practices based on illegal tortures devised by Chinese agents during the Korean War. Until the Bush administration, their only use in the United States was to train soldiers to resist what might be done to them if they were captured by a lawless enemy.

The officials then issued legally and morally bankrupt documents to justify their actions, starting with a presidential order saying that the Geneva Conventions did not apply to prisoners of the “war on terror” – the first time any democratic nation had unilaterally reinterpreted the conventions.

Whether you believe that the New York Times, in its always gentle fashion, is overstating the case against the Bush administration — and they are — one cannot deny that the guts of the report clearly show that there was stiff opposition from every branch of the service as well as the Justice Department to these coercive techniques. Military legal eagles recognized the illegality inherent in the orders coming from Mr. Rumsfeld and Vice President Cheney and feared that soldiers were being put at risk of prosecution. They also had practical objections to the torture, believing it wouldn’t work and might even have the effect of being a recruiting tool for al-Qaeda and the Iraqi insurgency.

From the report:

(U) In early November 2002, in a series of memos responding to the Joint Staff’s call for comments on GTMO’s request, the military services identified serious legal concerns about the techniques and called for additional analysis.

(U) The Air Force cited “serious concerns regarding the legality of many of the proposed techniques” and stated that “techniques described may be subject to challenge as failing to meet the requirements outlined in the military order to treat detainees humanely…” The Air Force also called for an in depth legal review of the request.

(U) CITF’s Chief Legal Advisor wrote that certain techniques in GTMO’s October 11, 2002 request “may subject service members to punitive articles of the [Uniform Code of Military Justice],” called “the utility and legality of applying certain techniques” in the request “questionable,” and stated that he could not “advocate any action, interrogation or otherwise, that is predicated upon the principle that all is well if the ends justify the means and others are not aware of how we conduct our business.”

(U) The Chief of the Army’s International and Operational Law Division wrote that techniques like stress positions, deprivation of light and auditory stimuli, and use of phobias to induce stress “crosses the line of ‘humane’ treatment,” would “likely be considered maltreatment” under the UCMJ, and “may violate the torture statute.” The Army labeled GTMO’s request “legally insufficient” and called for additional review.

(U) The Navy recommended a “more detailed interagency legal and policy review” of the request. And the Marine Corps expressed strong reservations, stating that several techniques in the request “arguably violate federal law, and would expose our service members to possible prosecution.” The Marine Corps also said the request was not “legally sufficient,” and like the other services, called for “a more thorough legal and policy review.”

The objections go on for an entire page. The administration and civilians in the Pentagon completely ignored them.

In the minds of the military lawyers, it was not a matter of opinion whether waterboarding, sleep deprivation, or putting a prisoner in “stress positions” was torture. They were absolutely clear in their opposition that what their people were being ordered to do violated the law. In this sense, one can defend waterboarding from now until doomsday and it wouldn’t change the fact that according to the UN Convention Against Torture — of which we are a signatory — the Fourth Geneva Convention, and the laws of the United States, Mr. Rumsfeld and Vice President Cheney violated the law by ordering the torture of detainees in our custody.

Again, from the report:

(U) With respect to GTMO’s October 11, 2002 request to use aggressive interrogation techniques, Mr. Haynes said that “there was a sense by the DoD Leadership that this decision was taking too long” and that Secretary Rumsfeld told his senior advisors “I need a recommendation.” On November 27, 2002, the Secretary got one. Notwithstanding the serious legal concerns raised by the military services, Mr. Haynes sent a one page memo to the Secretary, recommending that he approve all but three of the eighteen techniques in the GTMO request. Techniques such as stress positions, removal of clothing, use of phobias (such as fear of dogs), and deprivation of light and auditory stimuli were all recommended for approval.

(U) Mr. Haynes’s memo indicated that he had discussed the issue with Deputy Secretary of Defense Paul Wolfowitz, Under Secretary of Defense for Policy Doug Feith, and General Myers and that he believed they concurred in his recommendation. When asked what he relied on to make his recommendation that the aggressive techniques be approved, the only written legal opinion Mr. Haynes cited was Lieutenant Colonel Beaver’s legal analysis, which senior military lawyers had considered “legally insufficient” and “woefully inadequate,” and which LTC Beaver herself had expected would be supplemented with a review by persons with greater experience than her own.

On such specious and questionable grounds was the decision to violate the law made.

The government can’t just toss the law aside willy-nilly. As a nation of laws, some action must be taken against the perpetrators. But what? War crimes trials are being advocated for several members of the administration, but that is clearly not going to happen. The idea of handing an American over to the hypocritic left in Europe who wish to see Bush, Cheney, and several more in the dock at the World Court is laughable. One might be tempted to listen to their arguments if they hadn’t spent 40 years turning their backs on the most systematically brutal regimes in history behind the Iron Curtain and didn’t coddle thugs like Castro today. They have no moral standing to try their liberators and guarantors of their democracies.

No. This is an American problem. And we Americans must deal with it. Perhaps it would be worth the political war for a Democratic president to at least initiate an investigation by the Justice Department into the question of war crimes committed by the highest ranking members of the Bush administration. The results of that investigation may conclude that the principals are innocent or just not prosecutable.

But the consequences of doing nothing are equally problematic. Somewhere along the line, a majority of Americans must be made aware of what these men have done and why what they approved is wrong. The damage is deep. But I disagree with hysterical liberals that our reputation and moral leadership is gone, never to be seen again. How we deal with what has been wrought in our name says volumes about us as a people and how determined we are to clean up our own house.

I have given up trying to convince most of my conservative friends of the necessity of speaking out against what has transpired these last several years with regards to the approval of torture at the highest levels of our government. But I will continue to write about it because it is something about which I feel very strongly. I will not, as many liberals do, berate those of you who disagree with me. This is a matter of conscience. Each of us must examine our own beliefs, our own mind, and come to our own conclusions in this matter.

So in the end, while the issue is a legal one, where you stand is matter of opinion. One can dismiss the legal questions and file it under the rubric of justifiable actions taken by the chief executive during a time of war. We can try and sweep the entire matter under the rug, claiming there are more important issues to address like the economy and the continued prosecutions of the wars in Iraq and Afghanistan.

Or we can bite the bullet and risk the partisan political consequences that would surely flow if any attempt is made to investigate and prosecute lawbreakers. It may drive the two sides further apart — if it is done inexpertly and in a partisan manner. But we should risk the consequences if only to prove to ourselves that the number one reason to oppose what these men did in our name is that we are a better nation and a better people than that.