Saturday, January 22, 2005

Distorting the Law and Facts in the Torture Debate

Distorting the Law and Facts in the Torture Debate :
by Stuart Taylor Jr.
A fog of confusion surrounds the question of what can be done to extract potentially lifesaving information.

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.

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.

    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."

  • con·cept: Distorting the Law and Facts in the Torture Debate