Let's agree about two things. First, comparing the United States' current interrogation practices to those of the Soviet gulag or Nazi concentration camps, as Sen. Richard Durbin did recently, is careless. Second, being better than Stalin or Hitler has never been America's goal. We have thankfully always aspired to something much higher. But in the super-charged torture debates, it's much easier for the Bush administration to focus on the critics' choice of words than on the interrogation practices themselves. And too often, administration critics seem more interested in defending strained analogies such as Durbin's than in confronting the most vexing questions that many Americans are struggling to resolve.
The incredible fact is that, nearly four years into the war on terrorism and despite three Supreme Court decisions and countless lower court rulings, we still seem to be making up our detention and interrogation policies as we go along. Or, rather, the Bush administration seems to be making them up with almost no input from the other branches of government.
Is it that the American public somehow accepts torture in pursuit of the administration's war on terrorism? Does our fear of new attacks -- now bolstered by last week's transit bombings in London -- explain why there has been so little effort in Congress to compel the administration to develop a meaningful legal framework for dealing with detainees?
It's hard to say. There isn't sufficient proof of either. The polling results on the interrogation issue (like those on racial profiling or other controversial aspects of the administration's tactics) really depend on the circumstances and scenarios surrounding the questions asked. A more likely explanation: The debate has become so noisy -- so many government reports, so many investigative journalism pieces, so many lawsuits, so many disclosures, so many challenges to patriotism -- that it is hard for the public to determine what the noise is all about. The pattern is familiar: Disclosure. Outrage. Outrage about the outrage. Repeat.
The administration surely bears the lion's share of the blame in this regard. Any realistic debate over interrogation practices has to distinguish between targets and tactics. The fact that the government uses coercive methods on someone cannot be proof, in itself, that the person is a legitimate threat. Basic legal principles dictate that the threat has to be properly identified before any coercion can even be contemplated. Yet the administration consistently seeks to blur this distinction or ignore its import. This is why the conservatives' outrage at the outrage rings so hollow.
Take the recent flap over Durbin's comments concerning detention practices at Guantanamo Bay, Cuba. Quoting from an FBI report -- which described one detainee, chained by hand and foot, covered in his own defecation -- the Illinois Democrat expressed legitimate horror at our conduct. In response, no government official ever denied that the incident took place; more importantly, no government official ever offered any defense that the detainee to whom it happened was of particular consequence. Instead, the focus was on Durbin's unfortunate (and subsequently retracted) reference to the tactics of Nazi Germany.
The administration was certainly correct, in the early days after Sept. 11, 2001, to worry about the appropriate legal designation for those who clearly were not fighting conventional warfare. The administration had a big problem to confront: When it began to capture people suspected of terrorist activity -- which was inevitable -- what would it do with them? There is a lot to support the administration's early view that the Geneva Conventions protections could not cover violent conduct by individual men or groups of men who wore no uniform, who had no allegiance to a particular government, who targeted civilians and who posed an imminent threat to Americans.
But the administration never bothered to do the serious work that follows from that important judgment. Instead, it invoked broad designations -- illegal combatant, unlawful combatant, terrorist, etc. -- that plainly have resulted in large numbers of unjustified detentions. And it never bothered to set any clear limits on interrogation methods. For every promise of humane treatment, one could find an asterisk allowing for an exception. With an unknown number of detainees dead under questionable circumstances and thousands detained worldwide, the administration cannot seriously claim that it has executed a careful plan as a substitute for the Geneva Conventions.
Here, however, is where the critics have let the Bush administration off the hook. They have rightly brought to light the excesses of the administration's conduct -- conduct that otherwise might not have been subjected to scrutiny. But it is one thing to criticize clearly objectionable interrogation tactics; it is much harder to confront the question of what interrogation tactics, if any, are not objectionable. If there is a small group of terrorists who are rightfully designated as not covered by the Geneva Conventions, and who may have knowledge of an imminent threat to the lives of literally thousands (perhaps millions) of persons, that question needs an answer. How should this hard-core group of terrorists, as distinguished from the much larger mass of detainees, be handled?
Last year, Philip Heymann of Harvard Law School and I proposed legislation to regulate interrogation in this situation, recognizing that not everyone should be afforded the same protections and providing some procedures, standards and oversight for interrogations. Our premise was that we cannot just turn our backs on the possibility of obtaining useful information, so a system of regulated interrogation tactics (short of torture) may be the most practical way -- under this, or future, administrations -- to reduce the likelihood and frequency of abuse.
Our proposal received more than its share of criticism. Many on the left viewed it as justifying "torture lite." The left's response was not just a statement of principle. They rightly wondered why they should be asked to endorse or condemn specific tactics when the administration wouldn't admit that the tactics were actually occurring and wouldn't appoint (as has been demanded) an independent commission to get to the bottom of all the disclosures.
But even if such a commission did exist, the question the administration initially faced would still remain: How should we deal with detainees who don't fit the categories of the Geneva Conventions and who are suspected of posing a threat to our security? Those who ask that question -- as many Americans likely have, and as any commission surely would -- may not find a clear answer in existing law. That's the problem that our proposal sought to solve.