From today’s Wall Street Journal:
“Last June, the White House disavowed a Justice Department opinion providing possible justifications for torture of terrorism detainees — and promised to quickly produce a revision.
Six months later, that process remains unresolved, leaving the Defense Department, the Central Intelligence Agency and other agencies without definitive legal guidance for interrogations in the war on terrorism.
Friday, a senior Justice Department official said the project “hasn’t been abandoned” but simply delayed because of the “press of business” in other counterterrorism efforts. The official said Deputy Attorney General James Comey wanted it finished by year end, and the department expects to publicly release the document.
Drafts have been circulating since July at several agencies, including the CIA, Pentagon and State Department. Recent versions, the senior Justice official said, have examined “what is torture, what does it mean, what are useful sources for interpreting the statutory language, but it won’t go into the president’s ability to order torture if he wanted to.”
Several officials said they doubt a revised Justice Department opinion ever will emerge. “There’s a lot of water between now and then,” an administration official said. Some officials don’t want to commit a definitive policy to paper, while others see no need to bring up the subject since congressional and public interest in it is flagging, people familiar with the discussions say.
“The question is: Why do people have to write opinions about how far you can go?” said one official.”
Why do people have to write opinions about how far you can go? Well, they might not have to write such opinions if we all had confidence that some combination of basic decency, command oversight and military doctrine would prevent our soldiers and intelligence operatives from going anywhere near the legal limits on permissible forms of interrogation. This is why, for instance, I allow my students to come and ask me questions without first inquiring about their understanding of those limits: I am completely confident that when they question me, they will not come anywhere near the point at which their understanding of the laws on torture would be relevant. If we had the same sort of confidence in the interrogation techniques used by our armed forces and intelligence personnel, it might still be a good idea to come up with an opinion, just to be on the safe side. But in view of the fact that they have already violated both the laws on torture and the Geneva Conventions, and that these violations have not just taken place at one location, but have been widespread, I would have thought the need for a clear policy was obvious.
Torture is an ineffective interrogation technique. It needlessly turns people against us in a conflict in which we need to win them over. It violates national and international law. It goes against what we aspire to stand for as a nation. And it is just plain wrong. If we didn’t already know the Bush administration’s attitude towards torture, their failure to come up with a policy that clearly repudiates it because they were too busy with things they take to be more important would tell us all we need to know.
You might wonder: if the Justice Department has provided no opinion, what, exactly, are interrogators using for guidance? It turns out that the answer is: while the Justice Department has withdrawn its memo if August 2002 — the one that said that the President has the authority to set aside federal laws and treaties, and that “cruel, inhuman or degrading treatment” is permissible — a Pentagon memo based on that memo and incorporating its reasoning has not been withdrawn. From the WSJ again:
“”There is the [Pentagon] memorandum which was not withdrawn, which incorporates the [Office of Legal Counsel] analysis in it,” said former Assistant Attorney General Randolph Moss, who headed that office under the Clinton administration. “So it raises a lot of concerns about what rules people are operating under.”
Mr. Moss said the administration should clarify what it now believes the law allows. “There is a perception out there that the view of the United States on the torture statute is one that imposes very few limits on what can be done” to enemy prisoners,” he said. “Having created that perception, I don’t think we can stand back and say we don’t care to opine on it.””
There are two major problems with engaging in the kind of ‘what is the limit’ line-drawing that we are talking about here. First, it may encourage people who wouldn’t go that far to actually go that far. Second, people always go somewhat beyond the limits. So when your new limits go as far as these go, any step further is in the totally reprehensible zone.
Third, and I know I said there were only two, there is always, always, always the problem of thinking that someone is a terrorist and being wrong about it. It just can’t help to countenance torture.
Nobody is using thumb screws here.
In some cases we’re talking about interrogation techniques that use psychological pressure. (i.e. sleep deprivation, solitary confinement). Some people are now trying to redefine that as torture.
Obviously, we shouldn’t be abusing prisoners for no good reason (such as the Abu Gharib abuse), but if any sort of mental or physical discomfort is defined as torture then we won’t have a whole lot of tools left in the basket.
the fact that line-drawing is difficult doesn’t mean the gov’t shouldn’t try. (ack — double negative.)
more to the point, the body of case law on the scope of acceptable conduct during police interrogation is pretty substantial. courts don’t abdicate their responsibility in line-drawing even if the next case will push that line. the acceptable scope of interrogation conduct should be clearly defined. To the extent that the word “reasonable” creeps in anywhere, soldiers like cops must understand that there are consequences for going too far. When cops go too far, the perp walks. When soldiers go too far, they need to be punished.
Prof. Hilzoy, i think i disagree that torture is always ineffective. If one is interrogating a subject on a matter which is falsifiable [e.g., where is X located], then if the subject is shown to have spoken truthfully on the matter the torture has worked.
the problem is, as i understand it, that the US intelligence is so deficient we are still trying to get a handle on the strategic picture. In this context, torture is useless because we are incapable of judging what components of what we are told are true, and what was said in order to stop the pain.
I vaguely remember having read someplace that field agents have been instructed to mix true (especially on the verifiable stuff) and false (especially on the non-verifiable stuff) information under torture. The enemy then places undue reliance on the false info, having obtained confidence in its accuracy. [LeCarre, maybe?]
lovely topic for a monday. thanks for starting the week on such a cheery note, professor [/end snark]
Francis
Jeez, Francis, you think I decide what thrilling new developments this administration will decide to visit on us?? 😉
There is no excuse for this. But, given the Justice Department has been run by a man who believes in driving a steel toed boot into the face of civil liberties, not surprising.
“Nobody is using thumb screws here.”
You have personal knowledge of how the prisoners to whom the ICRC is denied all access are being treated? (KSM, for example?) And how the “rendered” folks are being treated?
” . . .if any sort of mental or physical discomfort is defined as torture then we won’t have a whole lot of tools left in the basket.”
No one [serious] is arguing that anything less than a suite at the Ritz Carlton is torture. If we treat these detainees — all of them, whether we think they are in AQ or not — no more harshly than we treat US criminal suspects, we’ll have plenty of tools in the basket, and will also be in a much better place wrt the detainees and their familes after the detention is over.
Torture doesn’t just give you wrong answers some of the time. It gives you life-long grievances, which we may have reason to fear long after the direct appeal of the jihadi way of life has lost its luster. If we acted as if we thought the opinions of uncommitted Moslems mattered, maybe the whole project would have a better chance of success.
Obviously, we shouldn’t be abusing prisoners for no good reason (such as the Abu Gharib abuse), but if any sort of mental or physical discomfort is defined as torture then we won’t have a whole lot of tools left in the basket.
Hence the need for a line. Which is sort of the whole point of this topic.
Thumb screws? I have no idea. But severe pain up to the level commensurate with organ failure is cool, IIRC …
Third, and I know I said there were only two, there is always, always, always the problem of thinking that someone is a terrorist and being wrong about it. It just can’t help to countenance torture.
But unfortunately, the Bush administration disagrees with you, so the US will continue to countenance, endorse, and carry out acts of torture.
After all, torturing terrorist suspects is one of the ways the Bush administration proves to its loyal supporters that it’s “serious” about terrorism. You can’t expect it to quit a successful* strategy just because it’s immoral.
*Successful in Bush administration terms: helps win elections.
CharleyCarp: If we acted as if we thought the opinions of uncommitted Moslems mattered, maybe the whole project would have a better chance of success.
Depends. The Bush administration’s project seems to be (after you cut away all the lies) probably to invade Iran next, after building military bases in Iraq. See PNAC for details. But for the PNAC project to be successful, the opinions of uncommitted Moslems don’t matter – nothing much matters except conning at least 51% of the US electorate into voting Bush, and in that, their strategy is self-evidently successful.
Sebastian’s oft-repeated comment about the official line’s always being pushed is, as always, a very sensible one.
As to the matter of the definitions and redefinitions of torture/interrogation, I’m reminded of the comments of someone who identified himself or herself as an ex-interrogator for the military police at the Whiskey Bar, one “Pat.” I don’t think that Billmon’s site allows for commenter searches, but “Pat” showed up around the Abu Ghraib scandal and as of around September hung out occasionally at the “Moon of Alabama” spin-off site. According to “Pat,” the most effective interrogation technique involved layers of trust. Yes, some part of that trust was predicated on the interrogator’s ability to ease difficult circumstances, but, again, according to “Pat,” overly intolerable circumstances would skew the results of cooperation.
My sense of the technique as confined by ethical rules was that it relied heavily on the talent of the individual interrogator, and my guess is that under the current intake of prisoners and the demand for information, the number of people who could work subtly within ethical confines has been insufficient. In Iraq, simply too many people are being arrested for them to be interrogated by professionals who understand clearly the limits of both the law and ethics. This opening-up of interrogation seems to demand much stricter regulation than the opposite… Again, as Sebastian said above, the laws need to be confining in order to be able to punish the few over-steppers we’d be able to prove a case against.
(Hope this isn’t a double comment; multiple error messages…)
Sebastian’s oft-repeated comment about the official line’s always being pushed is, as always, a very sensible one.
As to the matter of the definitions and redefinitions of torture/interrogation, I’m reminded of the comments of someone who identified himself or herself as an ex-interrogator for the military police at the Whiskey Bar, one “Pat.” I don’t think that Billmon’s site allows for commenter searches, but “Pat” showed up around the Abu Ghraib scandal and as of around September hung out occasionally at the “Moon of Alabama” spin-off site. According to “Pat,” the most effective interrogation technique involved layers of trust. Yes, some part of that trust was predicated on the interrogator’s ability to ease difficult circumstances, but, again, according to “Pat,” overly intolerable circumstances would skew the results of cooperation.
My sense of the technique as confined by ethical rules was that it relied heavily on the talent of the individual interrogator, and my guess is that under the current intake of prisoners and the demand for information, the number of people who could work subtly within ethical confines has been insufficient. In Iraq, simply too many people are being arrested for them to be interrogated by professionals who understand clearly the limits of both the law and ethics. This opening-up of interrogation seems to demand much stricter regulation than the opposite… Again, as Sebastian said above, the laws need to be confining in order to be able to punish the few over-steppers we’d be able to prove a case against.
Argh! Will someone please delete the redundancy?
JackMormon, I find the only solution to avoiding a double-post is to Ctrl-C my comment, and if I get an error message, or even if it looks like my comment wasn’t posted, hit Refresh, wait five minutes, hit Refresh again… and then, and only then, post the comment again. You can always post the comment in a notepad file while you wait.
“In some cases we’re talking about interrogation techniques that use psychological pressure. (i.e. sleep deprivation, solitary confinement)”
Have you ever been subject to sleep deprivation? I have and can therefore attest that it’s a hellish feeling. Sleep deprivation is also fatal, if carried on for long enough, by the way.
Sullivan on Torture
Andrew Sullivan rounds up what we know about abuse in the war on terror. He notes the common themes in the incidents of abuse (electroc