Interrogating terrorists is a tough business that requires tough measures. But how tough should they be? The latest controversy — this time over the CIA’s destruction of videotapes of two such interrogations — revives the problem that Congress hasn’t wanted to face since early 2005: just what is torture under US law?
The outcry du jour concerns two people who were videotaped while being subjected to “alternative” interrogation methods (which probably means waterboarding). The two are Khalid Sheik Muhammed, the operational planner for the 9-11 attack and Zayed Abidin Muhammad Huseyn (aka Abu Zubayda) who was an al-Queda recruiter and trainer, a close bin Laden lieutenant.
According to CIA Director Michael Hayden, the CIA tapes were destroyed after they no longer had any intelligence value. A proper answer — and decision — as far as it goes. But what else figured into the CIA’s action?
Both of these men were high-ranking al-Queda members who were likely to have knowledge of other members who would be an imminent danger to American lives. Both were well-trained to be resistant to the kinds of interrogation which American agencies were known to use. And both apparently provided highly valuable intelligence that has led to the capture of other al-Queda members and the thwarting of other al-Queda planned attacks.
The interrogation tapes were made in 2002 and destroyed in 2005. Why? One likely reason is that in 2005, American law on torture was changed in a manner that made it vague. Between 1996 — when Congress enacted Title 18 US Code Section 2340 to implement the UN Convention Against Torture — and 2005, American law was quite clear about what was torture and what wasn’t.
Section 2340 defined as torture, "…an act committed by a person under color of law specifically intended to inflict severe physical or mental pain or suffering (other than incident to lawful sanctions) upon another person within his custody or physical control." To avoid being struck down as unconstitutionally vague, the law went on to define terms undefined in UNCAT including "severe mental pain or suffering." US law defines that as, "…the prolonged mental harm caused by or resulting from…: (1) intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or threatened administration of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; (3) threat of imminent death; or (4) a threat to do those things to a third person.”
Between 1996 and 2005, American courts ruled several times on what was torture (e.g., repeatedly forcing people to play “Russian roulette”, causing long-term psychological damage) and what was not (e.g., holding people overnight at gunpoint, which was found to not have caused that kind of long-term damage). In 2005, all that changed when Sens. John McCain (R-Az) and Lindsay Graham (R-SC) pushed through an amendment to the law which muddied up the law’s definition of torture.
The McCain Amendment provided that, in interrogation of terrorist detainees, "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman or degrading treatment or punishment." The problem is that no one in 2005 — or for that matter, now — knows what in blazes “cruel, inhuman or degrading treatment or punishment” means.
It would be — or should be — routine to videotape interrogations of terrorists and terrorist suspects. Analysts not present at the interrogation could then take whatever time they needed to assess what was said and what it meant. A detainee’s speech, body language and responses to questions asked hours or days apart could be pieced together to gain valuable insight into the meaning of the answers.
But those tapes, when (inevitably) leaked, could be dangerous to the interrogators. First, inevitably leaked, the interrogators’ identities would be revealed to other terrorists who would then want to capture, interrogate and probably kill them. Moreover, the tapes would reveal interrogation methods that other terrorists could be trained to resist. Second, they would inevitably be the fodder of Congressional investigations and possible prosecutions.
Interrogations conducted before the McCain amendment was enacted wouldn’t be prosecutable because the amendment wasn’t retroactive. But — setting those aside — what about those done after?
Some in Congress now want to outlaw waterboarding and other “alternative” interrogation methods altogether. Sen. McCain, during the confirmation of Attorney General Michael Mukasey, said that waterboarding was already illegal. Is it?
Probably, but not certainly. It’s cruel, but is it so cruel as to be against the law? To those who now want to outlaw it specifically, apparently not. Our interrogators shouldn’t have to risk prosecution years after by some overzealous US attorney who wants to second-guess some action as “cruel, inhuman or degrading.”
Judged by the thousands of US pilots who were waterboarded as part of their “SERE” — survival, evasion, resistance, and escape — training, the technique, while horrific, doesn’t cause the long-term psychological harm that torture does.
There are many interrogation methods that are effective — including the administration of some psychotropic drugs — that cause no lasting harm and can be highly effective. These are not techniques that are allowed under our civilian criminal justice system, nor should they be. But there is need for both clarity and wide latitude in interrogating terrorist prisoners outside that system.
That latitude should allow methods which — though distasteful — capitalize on the psychology and prejudices of the detainee. Muslims believe that contact with pigs is against their religion. Would sprinking bacon bits on a detainee’s head be degrading? Sure. Is it torture? Hardly. And the law should make it clear that it is not so.
In a delightfully obscure phrase of the 1960s, William F. Buckley, Jr. warned us to not let liberals “immanentize the eschaton.” He meant conservatives should argue against liberals’ inserting into worldly politics that which is spiritual. In this war — at its foundation an ideological war — we should take advantage of the enemy’s beliefs, prejudices and fears. Radical Islam wants to impose those beliefs, prejudices and fears on us. Why shouldn’t we use them against the radical Islamists?
The law should be clear, returning to the definitions and clarity that existed before 2005. Let’s immanentize THEIR eschaton.
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