By David Luban
Sunday, November 27, 2005
There are two torture debates going on in America today: One is about fantasy, and the other is about reality.
For viewers of TV shows such as "Commander in Chief" and "24," the question is about ticking bombs. To find the ticking bomb, should a conscientious public servant toss the rulebook out the window and torture the terrorist who knows where the lethal device is? Many people think the answer is yes: Supreme emergencies demand exceptions to even the best rules. Others answer no: A law is a law, and a moral absolute is a moral absolute. Period. Still others try to split the difference: We won't change the rule, but we will cross our fingers and hope that Jack Bauer, the daring counterterrorism agent on "24," will break it. Then we will figure out whether to punish Bauer, give him a medal, or both. Finally, some insist that since torture doesn't work -- that it doesn't actually unearth vital information -- the whole hypothetical rests on a false premise. Respectable arguments can be made on all sides of this debate.
Real intelligence gathering is not a made-for-TV melodrama. It consists of acquiring countless bits of information and piecing together a mosaic. So the most urgent question has nothing to do with torture and ticking bombs. It has to do with brutal tactics that fall short -- but not far short -- of torture employed on a fishing expedition for morsels of information that might prove useful but usually don't, according to people who have worked in military intelligence. After Time magazine revealed the harsh methods used at the Guantanamo Bay detention facility to interrogate Mohamed Qatani, the so-called "20th hijacker," the Pentagon replied with a memo describing the "valuable intelligence information" he had revealed. Most of it had to do with Qatani's own past and his role in the attacks of Sept. 11, 2001. Other parts concerned al Qaeda's modus operandi. But, conspicuously, the Pentagon has never claimed that anything Qatani revealed helped it prevent terrorist attacks, imminent or otherwise.
The real torture debate, therefore, isn't about whether to throw out the rulebook in the exceptional emergencies. Rather, it's about what the rulebook says about the ordinary interrogation -- about whether you can shoot up Qatani with saline solution to make him urinate on himself, or threaten him with dogs in order to find out whether he ever met Osama bin Laden. And the trouble is that this second debate is so wrapped up in legalisms, jargon and half-truths that it is truly hard to unravel.
The most recent issue is Arizona Sen. John McCain's amendment to a defense appropriations bill, designed to plug loopholes in current anti-torture law. It has passed the Senate, and the House is scheduled to vote on it sometime next month. President Bush has responded that we do not torture, we treat prisoners humanely, and we follow our legal obligations. But what, exactly, are the politicians arguing about?
The starting point is the U.N. Convention Against Torture, a treaty that the United States ratified in 1994. Under the convention, we agreed to criminalize overseas torture -- official torture was already a crime within the United States -- and to "undertake to prevent . . . other acts of cruel, inhuman or degrading treatment or punishment" (CID, for short) that "do not amount to torture." Many of the controversial U.S. methods are CID, sometimes called "torture lite." CID includes techniques used in Guantanamo: 18- to 20-hour-a-day questioning for 48 out of 54 days, blasting prisoners with strobe lights and ear-splitting rock music, menacing them with snarling dogs, threatening to hurt their mothers, and humiliations such as leading them around on leashes Pfc. Lynndie England-style, stripping them naked in front of women, or holding them down while a female interrogator straddles them and whispers that we've killed their comrades.
All of these methods were used on Qatani, and documented in the Army's Schmidt report (PDF), which was commissioned in response to FBI allegations of abuses at Guantanamo. (Most of the report, co-authored by Lt. Gen. Randall M. Schmidt, remains classified, so we do not know whether the classified portions contain worse.)
Methods like these were banned in U.S. criminal investigations years ago, because, in the Supreme Court's language, they "shock the conscience." Assaults on human dignity are not who we are or what we stand for. Given the U.S. commitment under the torture convention to "undertake to prevent" CID, why are we using it abroad in cases that have nothing to do with ticking time bombs? Why does the president still insist that we're following our legal obligations, and that we treat detainees humanely?
It depends what you mean by "legal obligations" and "humanely." A quick glossary of the unique Bush administration definitions might help.
Cruel, inhuman or degrading. In the Bush lexicon, these words have no meaning outside U.S. territory because we have no obligation to prevent such methods from being used in interrogations performed outside the United States and its possessions. That was Attorney General Alberto Gonzales's startling argument at his confirmation hearing, and it goes like this: Before the Senate ratified the torture convention, it added the reservation that CID means the cruel, inhuman or degrading treatment forbidden by our Constitution. But the Supreme Court has held, in other unrelated contexts, that the Constitution does not apply outside U.S. territory. Therefore, the administration maintains, outside U.S. territory (including the U.S. military base in Guantanamo, on the island of Cuba) anything goes except outright torture.
This was not at all what the Senate meant, according to Abraham Sofaer, the State Department's legal adviser when the Reagan administration signed the Convention Against Torture in 1988. In a letter this past January to Sen. Patrick Leahy, the Vermont Democrat, Sofaer explained that the purpose of the Senate's reservation was to ensure that the same standards for CID would apply outside the United States as apply inside -- just the opposite of Attorney General Gonzales's conclusion. The point was to define CID, not to create a gaping geographical loophole.
This is the loophole that McCain, a Republican, is trying to close. His amendment requires that the ban on CID not be "construed to impose any geographical limitation."
Humane. This month, the Pentagon issued a new directive on interrogation, requiring "humane" treatment of subjects. It came up with that terminology to replace more specific language in an early draft of its directive that had been modeled on the Geneva Conventions' ban on cruel or humiliating treatment. The reason for the change: Vice President Cheney's office vehemently objected to the initial Geneva-like phrasing.
But what does "humane" mean? Not much, it seems. Amazingly, the Army's Schmidt report declared that none of the tactics used in Guantanamo were "inhumane." Along similarly minimalist lines, Gonzales defined "humane treatment" as requiring nothing more than providing food, clothing, shelter and medical care. In the Bush lexicon, therefore, sexual humiliation, acute sleep deprivation and threats to have a detainee's mother kidnapped and imprisoned are humane.
Oddly enough, the Schmidt report also concluded that most of the Guantanamo tactics were already authorized by U.S. Army doctrine -- a conclusion that the Army never previously accepted. The basic Army doctrine on interrogations is the Golden Rule: Before using a tactic, interrogators should ask themselves whether they think it would be permitted if used by an enemy against American prisoners of war. Given our protests at the public display of downed American fliers in Iraq during the first Gulf War, it is obvious that the answer would be "no" to the sexual humiliations at Guantanamo.
The Army's manual does discuss so-called "futility" tactics -- making the prisoner believe that further resistance is futile by presenting "factual information . . . in a persuasive, logical manner." Schmidt, however, twisted this doctrine to justify blasting detainees with high-volume "futility music" (the report's phrase) by Metallica and Britney Spears, dressing a detainee in a bra, and making him do dog tricks. McCain's amendment would restrict interrogations to those authorized by the Army's manual -- but the way the Schmidt report reads the manual, this limitation amounts to very little. (In any case, the Army is rewriting the manual.)
Legal obligations. Bush declared that al Qaeda members have no Geneva Conventions rights -- not even the minimum rights against cruel and humiliating treatment that the Geneva accords guarantee to detainees who don't qualify as POWs. Although in February 2002 the president ordered the military to treat detainees according to the Geneva standards, his order conspicuously omitted any mention of non-military agencies such as the CIA. It also left a large loophole for "military necessity."
In the law of war, military necessity encompasses anything that contributes to victory, so the president's directive really forbids nothing but pointless sadism. Cheney and his new chief of staff, David Addington, have fought the McCain amendment precisely because it would prohibit CID treatment. In short, we comply with our legal obligations because, in the Bush lexicon, we hardly have any.
We don't torture. "We don't torture" means that we don't use worse tactics than CID -- except when we do. Waterboarding (in which a prisoner is made to believe he is drowning) and withholding pain medication for bullet wounds cross the line into torture -- and both have allegedly been used. So does "Palestinian hanging," where a prisoner's arms are twisted behind his back and his wrists are chained five feet above the floor.
A Nov. 18 ABC News report quoted former and current intelligence officers and supervisors as saying that the CIA has a list of acceptable interrogation methods, including soaking naked prisoners with water in 50-degree rooms and making them stand for 40 hours handcuffed and shackled to an eyebolt in the floor. ABC reported that these methods had been used on at least a dozen captured al Qaeda members. All these techniques undoubtedly inflict the "severe suffering" that our law defines as torture.
Consider the cases of Abed Hamed Mowhoush and Manadel Jamadi. Mowhoush, an Iraqi general in Saddam Hussein's army, was smothered to death in a sleeping bag by U.S. interrogators in western Iraq. Jamadi, a suspected bombmaker, whose ice-packed body was photographed at Abu Ghraib, was seized and roughed up by Navy SEALS in Iraq, then turned over to the CIA for questioning. At some point during this process, according to an account in the New Yorker magazine, someone broke his ribs; then he was hooded and underwent "Palestinian hanging" until he died. The CIA operative implicated has still not been charged, two years after Jamadi's death. And the SEAL leader was acquitted, exulting afterward that "what makes this country great is that there is a system in place and it works."
He got that right. Shamefully, it is a system that permits cruel, inhuman and degrading treatment, smudges long-standing lines about what is and is not permitted in routine interrogations -- and then expresses hypocritical horror when soldiers and interrogators cross the blurry line into torture and murder.
McCain has said that ultimately the debate is over who we are. We will never figure that out until we stop talking about ticking bombs, and stop playing games with words.
David Luban is a professor at Georgetown University Law Center and a visiting professor this year at Stanford University Law School. He writes frequently about legal ethics and contributed a chapter to the forthcoming book "The Torture Debate" (Cambridge University Press).