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.