Distorting the Law and Facts in the Torture Debate

Legal Affairs

Distorting the Law and Facts in the Torture Debate

A fog of confusion surrounds the question of what can be done to extract potentially lifesaving information.

by Stuart Taylor Jr.

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Many human-rights groups and other critics of Bush administration policy on squeezing information out of captured terrorism suspects would have you believe that even mildly coercive "stress" interrogation methods are clearly illegal and indistinguishable from torture.

This is false.

Meanwhile, many champions of the administration would have you believe that President Bush, White House Counsel Alberto Gonzales, and other top officials have been unfairly pilloried merely for denying terrorists the kid-glove treatment provided by the 1949 Geneva Conventions for legitimate prisoners of war.

This, too, is false. So are the competing claims that these top officials bear no responsibility—or all of the responsibility—for the illegal torture of prisoners not only in Iraq but also (it has been plausibly alleged) at prisons in Afghanistan and at Guantanamo Bay.

Such distortions have spread a fog of confusion both over the debate about Gonzales's nomination to be attorney general and over the vital question of what can and should be done to extract potentially lifesaving information from suspected terrorists. More alarmingly, the understandable backlash against the Bush administration's disdain for the Geneva Conventions and for basic due process, together with many critics' overreactive lumping of all coercive interrogation methods together with torture, may have produced the worst of both worlds.

There has been probably been more abuse of prisoners—including many innocent prisoners—than would have occurred had the administration shown some respect for human-rights law and refrained from its sweeping (and false) suggestions that all those detained on suspicion of being Qaeda or Taliban members are "bad people," as Bush declared in July 2003. At the same time, many of those who set interrogation policy and who interview suspected terrorists have now reportedly shied away from even mildly coercive methods for fear of being trashed in the media and Congress.

The debate over the Geneva Conventions; over the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; and over related federal criminal statutes is highly complex. The most basic interpretive conflict is this:

The administration correctly insists that the Geneva Conventions were carefully drafted to exclude from their protections terrorists and other "unlawful combatants" (excepting citizens of occupied territories such as the current Iraqi insurgents). The administration also claims, more debatably, that the Convention Against Torture—as adopted by the U.S.—imposes few (if any) restrictions on the use of coercive-interrogation methods short of torture. Human-rights groups and many Europeans, on the other hand, suggest that "customary international law" and the Convention Against Torture have extended Geneva's general ban against inhumane treatment—which these groups define so broadly as to preclude almost all coercive interrogation—to everyone in the world, terrorists included.

Many media accounts misleadingly suggest that the fundamental flaw in the administration's approach is its position that Geneva does not protect Qaeda terrorists from coercive interrogation. But this has long been U.S. policy. And it should be.

As The New York Times editorialized in 1987, President Reagan was right to reject proposed revisions to the Geneva Conventions that could be read as giving "the legal status of POWs" to terrorists, whose method is mass-murdering innocent civilians. These revisions, called "Protocol 1," would have confounded Geneva's original purpose of protecting civilian noncombatants. They would also have precluded effective interrogation of terrorists, because Geneva specifies that POWs cannot be "threatened, insulted, ... exposed to any unpleasant or disadvantageous treatment of any kind" or otherwise coerced to answer questions.

Media accounts are also off base in faulting the administration's position that deliberate infliction of pain or suffering does not amount to torture unless "severe." That definition comes from the Convention Against Torture itself and the 1994 criminal law implementing it; the latter also specifies that it is not necessarily torture to (for example) tell a prisoner that if he refuses to talk, he or his family will be killed. The 24 interrogation methods that Defense Secretary Donald Rumsfeld approved in April 2003 for Guantanamo, while coercive, are at least arguably permissible under international law. Indeed, 17 of them have long been authorized by the Army field manual.

Finally, media accounts and human-rights groups are wrong to suggest that not only all Iraqis but also non-Iraqi Qaeda terrorists are clearly protected by the Fourth Geneva Convention, which governs in occupied territories such as Iraq. That convention prohibits "physical or moral coercion" to get information from "protected persons"; transferring protected persons to other countries; and refusing to disclose their identities and locations to the International Committee of the Red Cross.

But as the Justice Department has argued, the detailed provisions of the Fourth Convention strongly suggest that such non-Iraqi terrorists are not "protected persons." And as Gonzales testified on January 6, Geneva should not be construed as "creating a sanctuary for terrorists [who] come and fight against America" in Iraq.

The problem is that the administration has not been content to make such reasonable arguments for coercive interrogation. Top officials have also:

Disdained due process by repeatedly tarring all detainees at Guantanamo (and, by implication, elsewhere) as "bad people," in Bush's words—despite massive evidence that many are innocent noncombatants—while spurning the Third Geneva Convention's requirement (in Article 5) that "should any doubt arise" as to the status of captives, they should be treated as POWs "until such time as their status has been determined by a competent tribunal."

Gratuitously disparaged the Geneva Conventions' protections of POWs as "obsolete" and even (in some respects) "quaint," as Gonzales said in his leaked memo to Bush of January 25, 2002.

"Play[ed] cute with the law," in the words of Sen. Lindsey Graham, R-S.C., by adhering for nearly two years to an August 1, 2002, Justice Department-to-Gonzales memo making the legally indefensible claims that 1) even infliction of severe physical pain does not amount to torture unless "equivalent in intensity to organ failure, impairment of bodily function, or even death"; and 2) the president has virtually unlimited power to authorize use of torture in wartime interrogations.

(Gonzales withdrew the second claim in June as overly broad—though not necessarily wrong—because Bush had not ordered torture. The Justice Department repudiated the "organ failure" definition of torture in December.)

These high-level pronouncements appear to have helped spawn some of the torture at Abu Ghraib prison—which administration defenders wrongly dismiss as nothing but aberrational sadism by a few bad apples—and the suspected torture at Guantanamo and in Afghanistan.

The August 1, 2002, Justice Department torture memo was adopted almost verbatim by a March 2003 Pentagon "working group" memo; this, in turn, circulated in the military and helped shape the interrogation methods approved for use in Guantanamo, which later migrated to Afghanistan and Iraq. More broadly, notwithstanding Bush's vague order that all detainees be treated "humanely," his rhetorical suggestions that they are all terrorists are surely seen by some in the military and the CIA as a tacit message that they all deserve very harsh treatment.

Most important, perhaps, the administration has provided very little policy guidance on what interrogation methods short of torture should be used in Iraq or Afghanistan. This invites indiscriminate use against Taliban dishwashers and others who have no important information of methods every bit as harsh as those deemed appropriate for Qaeda leaders who may have detailed knowledge of planned attacks. As an independent panel headed by former Defense Secretary James Schlesinger found last August, "The number and severity of abuses would have been curtailed had there been early and consistent guidance from higher levels."

The Schlesinger report stresses not only the damage done by the Abu Ghraib scandal to the war on terror, but also "the current chilling effect the reaction to the abuses [has] had on the collection of valuable intelligence through interrogations." It calls for issuance of a "well-documented policy and procedures on approved interrogation techniques," and notes that their "aggressiveness ... must be measured against the value of intelligence sought, to include its importance, urgency, and relevance."

Almost six months later, no such clear policy appears to exist. Why not? Do Bush, Gonzales, and other top officials prefer to duck responsibility for making the tough choices while uttering pabulum about "humane" treatment—and leaving it to interrogators in the field to make up their own rules?

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