The Grand Inquisitor 2

We are finally getting to the heart of the matter. Michael Totten wrote in response to an Andrew Sullivan post:

I won’t climb down an inch in my opposition to torture. And I’m not talking about make-believe “torture,” I mean real actual torture, the kind Andrew Sullivan is talking about here:

Let's retire at the start the notion that the only torture that has been used by the U.S. has been against known members of al Qaeda. This is not true. Many innocent men and boys were raped, brutally beaten, crucified for hours (a more accurate term than put in "stress positions"), left in their own excrement, sodomized, electrocuted, had chemicals from fluorescent lights poured on them, forced to lie down on burning metal till they were unrecognizable from burns - all this in Iraq alone, at several prisons as well as Abu Ghraib. I spent a week reading all the official reports over Christmas for a forthcoming review essay. Abu Ghraib is but one aspect of a pervasive pattern of torture and abuse that, in my view, is only beginning to sink in.

If someone were to ask me where I think we ought to draw the line while interrogating prisoners, I couldn’t answer. I don’t know. A question like that isn’t exactly a no-brainer. Reasonable people can argue about it and, most likely, come up with a reasonable compromise. But I will say this: raping, electrocuting, and crucifying boys (or girls or adults or anyone else) absolutely is over the line.

Although Michael Totten claims he can't draw the line on interrogating prisoners he plainly knows where to start. Most people would agree that the acts described above are torture; that they are abhorrent to national values and anyone guilty of perpretrating them should be punished. These are the acts which should be ruthlessly proscribed in clear and pointed distinction from activities like putting panties over people's heads, playing loud music, forcing suspects to drink whiskey to loosen their tongues or imposing sleep deprivation. By having the moral sense to recognize torture so clearly Mr. Totten rescues us from being blinded by the merely legal perspective. Michael Ledeen points out that the most questionable interrogation method of all is process called rendition, which is unlikely to be examined by the committee examining Mr. Gonzalez.

A week or so back, I criticized the Washington Post for giving a lot of space to an article that basically "outed" a CIA aircraft, and only in passing raised what I took to be the main issue, namely the transportation of captured terrorist suspects to countries where they could be interrogated more vigorously than in the United States. The Post journalist had briefly quoted Michael Scheuer, the recently retired CIA officer who became a best-selling author writing under "Anonymous," to the effect that the philosophical subleties of this issue would not have disturbed his former employers. They would simply have saluted and done what they were told by the White House.

I doubt anyone in this administration -- which, remember, already retreated from its earlier positions on interrogation methods permitted against captured terrorist suspects -- is going to point out that the most controversial and ethically questionable method of all was developed during the Clinton administration in direct response to orders that came directly from the White House. "Rendition" was a Clinton creation, and was approved by Clinton's lawyers, with no apparent cries of pain either from the Justice Department or from anyone in Congressional "oversight" committees. Gonzales might quietly make that point if anyone yells at him. It won't register with the Democrats, but it might help the public understand the real world a little better.

Here, returned to earth, it should be plain that whatever the letter of the Geneva Convention, rendition and raping boys should be classed as like abominations while photographing prisoners or putting women's underwear over their heads should be left out of the reckoning altogether. The real task is to create a practical and ethically acceptable regime for interrogating prisoners while strengthening the safeguards against real torture -- two sides of the same coin, for we are charged by the spirit of humanitarian law to safeguard not only prisoners, but all protected persons. We are adjured to prevent the torture of Margaret Hassan no less than Abu Musab Zarqawi, and in so doing must give the troops such means as can be countenanced by our moral values. This process should not be cheapened by the tacit understanding that no embarassing questions will be put to Roberto Gonzalez if none will be be addressed to William Jefferson Clinton.

Addendum

Heather MacDonald at City Journal describes the evolution of the Pentagon's interrogation methods after finding that its preexisting "16 approaches" didn't work. (Hat tip: Rick Ballard)

But the Kandahar prisoners were not playing by the army rule book. They divulged nothing. “Prisoners overcame the [traditional] model almost effortlessly,” writes Chris Mackey in The Interrogators, his gripping account of his interrogation service in Afghanistan. The prisoners confounded their captors “not with clever cover stories but with simple refusal to cooperate. They offered lame stories, pretended not to remember even the most basic of details, and then waited for consequences that never really came.” Some of the al-Qaida fighters had received resistance training, which taught that Americans were strictly limited in how they could question prisoners. Failure to cooperate, the al-Qaida manuals revealed, carried no penalties and certainly no risk of torture—a sign, gloated the manuals, of American weakness.

Attempts were made to adapt the doctrine by pushing the envelope of the Geneva Conventions focusing on stress and sleep deprivation techniques. But the Pentagon was not the only organization looking for answers. The CIA, having been assigned the hardest cases, wanted more.

In response to the CIA’s request, Assistant Attorney General Jay S. Bybee produced a hair-raising memo that understandably caused widespread alarm. Bybee argued that a U.S. law ratifying the 1984 Convention Against Torture -- covering all persons, whether lawful combatants or not -- forbade only physical pain equivalent to that “accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or mental pain that resulted in “significant psychological harm of significant duration, e.g., lasting for months or even years.” More troubling still, Bybee concluded that the torture statute and international humanitarian treaties did not bind the executive branch in wartime.

Here was the smoking gun, the administration's opponents argued: the philosophical underpinning for Abu Ghraib was the presumed Presidential power to authorize any force that stopped short of producing "organ failure, impairment of bodily function, or even death".  A Presidential license to torment. MacDonald makes the point that the Abu Ghraib violations flowed, not from the Bybee memorandum, but from entirely different causes, but were unfairly presented in the same narrative. Yet in a sense they were part of the same narrative because the Bybee Memorandum represented the Executive Branch's attempt to answer the question: what is torture and what is allowable under interrogation. But Bybee's advice was rejected and the Presidential license refused. In June, 2004 a New York Times article reported:

At a White House briefing Tuesday, Gonzales specifically disavowed the part of the memorandum discussing the president's authority as commander in chief, saying it was "irrelevant and unnecessary." Senior Justice Department officials took a broader view, saying the entire memorandum would be withdrawn.

Still the doubts remained. The Washington Post records this exchange between Senator Leahy and Roberto Gonzales.

LEAHY: Do you think if the Bybee memo had not been leaked to the press -- because it had never been shown to Congress, even though we'd asked for it -- do you think it would still be the overriding legal opinion?

GONZALES: Sir, that I do not know. I do know that when it became -- it was leaked, we had concern about the fact that people were assumed that the president was somehow exercising that authority to engage in torture. And we wanted to clarify the record that the president had not authorized or condoned torture, nor had directed any actions or excused any actions under the commander-in-chief-override that might otherwise constitute torture.

LEAHY: Well, do you think there's any connection whatsoever between the policies which actually you helped to formulate regarding the treatment interrogation of prisoners, policies that were sent out, Department of Defense and elsewhere, and the widespread abuses that have occurred? ...

GONZALES: I believe that is a very good question, Senator. And that is why we have these eight completed investigations and these three pending investigations. And while we've had four hearings involving the secretary of defense, you've had 18 hearings involving the deputy secretary, undersecretary of defense, you've had over 40 briefings with the Congress, because we care very much about finding out what happened and holding people accountable. Unlike other countries that simply talk about Geneva, if there is an allegation that we've done something wrong, we investigate it. We're very serious about our commitments, our legal obligations in Iraq. And if people have done things that they shouldn't have done in violation of our legal obligations, they are going to be held accountable.

Yet despite the fact that everyone went home and felt good after such assurances, no one was nearer an answer. Heather MacDonald described that by attempting to push the limits the military found itself with fewer licit interrogation techniques than it had before.

Reeling under the PR disaster of Abu Ghraib, the Pentagon shut down every stress technique but one -- isolation -- and that can be used only after extensive review. An interrogator who so much as requests permission to question a detainee into the night could be putting his career in jeopardy. Even the traditional army psychological approaches have fallen under a deep cloud of suspicion: deflating a detainee’s ego, aggressive but non-physical histrionics, and good cop-bad cop have been banished along with sleep deprivation.

Timidity among officers prevents the energetic application of those techniques that remain. Interrogation plans have to be triple-checked all the way up through the Pentagon by officers who have never conducted an interrogation in their lives. In losing these techniques, interrogators have lost the ability to create the uncertainty vital to getting terrorist information. Since the Abu Ghraib scandal broke, the military has made public nearly every record of its internal interrogation debates, providing al-Qaida analysts with an encyclopedia of U.S. methods and constraints. Those constraints make perfectly clear that the interrogator is not in control. “In reassuring the world about our limits, we have destroyed our biggest asset: detainee doubt,” a senior Pentagon intelligence official laments.

Donald Sensing has a long post on the recent destruction of a 36-ton Bradley in Iraq resulting in the death of all 7 occupants. If a suspect is found, what technique should be be used to discover where the other mines are planted? The ridiculous "16 approaches" method reviled by Heather MacDonald's interviewees, even now watered down? Or the rapes and crucifixion system which by common consent is torture? Is there is nothing in between? How did we get to where the only choices are between the impractical and the inadmissible? Possibly by the route of partisan politics; at hearings where you may either recite the Boy Scout Pledge or the Green Lantern Oath; where the failure to supply answers never got in the way of uttering a good platitude; where votive candles burn and still burn before the letter of Geneva and the practice of rendition; and people weep at a grave alone.