Thugs With Lawyers

I know it’s terribly naive to suggest such a thing, but you might have thought that if even a secondary purpose of the vaunted war on terrorism and the sidetrack into Iraq had something to do with demonstrating the superiority of democracy and the rule of law, that the administration would have taken steps to make sure that U.S. efforts were conducted in scrupulous accordance with our deepest and most liberal (in the best old-fashioned sense of the word) traditions. A country’s true nature – and the value of the ideals by which it claims to live and which it seeks to spread to others who would benefit from employing them – is shown by whether it sticks to its principles when things get tough rather than only when things are going well.

I won’t accept blame on the part of the country, but the Bush administration has certainly failed this test. The more we discover about the sources of tolerance for torture in Abu Ghraib (and almost certainly in other Iraqi prisons), the more it looks as if high officials in this administration were from the very outset looking for ways to justify departing not only from the better aspects of our principles and traditions, but from solemn promises embodied in international treaties.

The administration seems to have been partially spared, by the death of Ronald Reagan, from the full force of embarrassing publicity and increasing concern over this pattern of evasion of rules of decency and humaneness. But the concern is almost certain to grow. What we are discovering is profoundly shocking.

A CASE FOR TORTURE?

As it turns out, it wasn’t just Alan Dershowitz who, shortly after the 9/11 attacks, began justifying the idea of torture. The shocking thing is that the actions of administration officials suggest that they at least contemplated the possibility not of using torture in rare and extraordinary cases, but on a systematic and repeated basis. Otherwise their elaborate efforts to create justifications for ignoring long-standing formal and informal prohibitions on the use of torture make little or no sense.

The justification for occasional torture is fairly well known, and we might as well give it whatever respect it is due. If you knew for certain that a leader of a terrorist cell had information about a pending attack on Americans that for sure would lead to the deaths of thousands, or tens of thousands of Americans, could you justify torturing him to get the information that would allow you to prevent the attack? Might you use a threat of death, for example, to get the tongue unleashed? Would you stuff him full of sodium pentathol? Would you use sleep and food deprivation, or techniques designed to mix up his sense of night and day and thus feel more vulnerable and possibly forthcoming?

You would have to be a pretty hard-core opponent of any torture in any form to say you wouldn’t even consider such techniques.

There are several problems with this hypothetical, however. The first is that in interrogation situations (I rely on reading and lengthy conversations with several retired law enforcement and military people who specialized in interrogation rather than personal experience) this precise scenario is highly unlikely. Interrogators might suspect a prisoner had detailed information about a planned attack, but it’s unlikely they would be sure. If they knew for sure about a planned attack, it’s quite unlikely that a single prisoner would know everything, and that knowing what he knew would for certain allow you to neutralize a planned attack.

Operating with that degree of certainty almost never happens. There are instances when the purpose of an interrogation is to confirm or flesh out information that you know, or think you know, from another source or sources. But in most interrogation situations the interrogator is probing for information, often very much in the dark, and using the questioning and the answers to the questions to frame where the interrogation goes next.

Even sticking with the hypothetical, however, the additional problem is that torture seldom gives you really reliable information. In a situation where extreme pain or discomfort is being endured, the interrogated will say almost anything to get the pain to stop. He is as likely, or more likely, to tell the interrogator what he thinks he wants to hear as to spill the actual truth.

"I would get a subject naked, because for some reason most people find that extremely embarrassing and shameful," a former interrogator told me. "Most people will start talking, giving you reasonably reliable information – if you know what you’re doing – when they’re naked. Anything further, however, is more likely to give you convenient lies than any semblance of the truth. And if there are not extreme time constraints, even stripping a prisoner is seldom necessary. Good interrogation doesn’t require torture, and in most cases it is counterproductive – if you know what you’re doing, which unfortunately all too few people, even professionals, do."

Bottom line? Torture is more likely to bring out whatever sadism lurks deep in the interrogator than the information that will save thousands of lives.

EARLY JUSTIFICATION

It seems at least possible, then, that the attitude of higher-ups in the Bush administration toward the possibility of using torture was conceived more in dilettantism than experience, by people whose knowledge of military operations and espionage was derived more from theoretical discussions and novels than from actually doing any of it. There’s a pose of faux toughness that some intellectuals and paper-pushers often like to strike. You know, if this is a real war we can’t shrink from doing some distasteful things, especially if we’re relying on recruits or reserves to do our actual dirty work for us.

What is becoming increasingly clear, however, is that various upper-level bureaucrats virtually lusted after the idea of condoning or justifying torture almost from the moment the planes hit the World Trade Center towers. This is not only a profound betrayal of the best in American ideals, it suggests a certain barbarity that is profoundly sick.

I’ve read the Working Group Report of March 6, 2003, or at least those portions of it that have been declassified and leaked. It reads like the kind of report a Mafia lawyer tasked with making sure the godfather stayed just this side of the law might have written. It is essentially a prospective defense lawyer’s brief for grinding the interstices of the law that might prevent a conviction in case somebody who was clearly doing wrong happened to get caught and accused.

For example, in discussing domestic U.S. laws against torture (18 U.S.C. 2340), the memo not only notes that conviction requires that the alleged torture be done under color of law and while the victim was under defendant’s custody or physical control, it goes into a lengthy explanation of the "specific intent" part of the statute.

Citing various Supreme Court decisions and Black’s Law Dictionary, it carefully explains that "to have acted with specific intent, he must have expressly intended to achieve the forbidden act." It goes on, "If the statute had required only general intent, it would be sufficient to establish guilt by showing that the defendant ‘possessed knowledge with respect to the actus reus of the crime" (Carter, 530U.S. at 268). If the defendant acted knowing that severe pain or suffering was reasonably likely to result from his actions, but no more, he would have acted only with general intent … As a theoretical matter, therefore, knowledge alone that a particular result is certain to occur does not constitute specific intent."

The memo goes on to contend "a showing that an individual acted with a good faith belief that his conduct would not produce the result that the law prohibits negates specific intent." It goes on to note that under the law, "A good faith belief need not be a reasonable one."

If that doesn’t sound like a set of guidelines for some Johnnie Cochran getting a defendant off should one actually be accused, I don’t know how to explain it better. The memo goes on to discuss at length the angels-on-a-pin meanings of "severe mental pain or suffering" and how it requires proof of "prolonged mental harm" before somebody can be nailed.

AUTOCRAT IN CHIEF

The most breathtaking aspect of the memo, however, is its endorsement of presidential power almost completely unrestrained by any notion of law, let alone common decency. "In light of the President’s [note the upper case, as if discussing a royal personage at least] complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President’s ultimate authority in these areas."

It goes on, more specifically: "In order to respect the president’s inherent constitutional authority to manage a military campaign, 18 U.S.C. 2340A (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war … Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

So if the president wants to do it and wants to order somebody else to do it, U.S. laws and international treaties don’t matter a whit. This is a formula for unrestrained, arbitrary dictatorial unaccountable power to act on a whim. That’s the very obverse of the idea of the rule of law, whose cardinal principle is that it binds the ruler as well as the ruled. And note that the memo doesn’t even consider whether such power requires a Declaration of War (pardon me for invoking such a quaint concept) to be triggered. Apparently the president’s arbitrary power is complete and unrestrained if he simply declares that it’s a matter of national security.

The memo goes on to discuss other ways officials could weasel their way out of accountability for deciding to set aside or ignore existing laws and treaties. There’s a lengthy discussion of the necessity defense for breaking a law to avoid a greater harm or evil to oneself or others. There’s a section on how the doctrine of self-defense might be used to get a torturer off the legal hook, how the use of force, including deadly force, is justified in law enforcement situations, and whether orders from a superior will justify an acquittal – it "will generally be available for U.S. Armed Forces personnel engaged in exceptional [don’t you love that weasel-word?] interrogations except where the conduct goes so far as to be patently unlawful."

NOT THE FIRST

The memo also makes clear that March 6, 2003 was not the first time the concept of justifying torture – or slithering around various statutory or treaty prohibitions against it – was discussed. There are footnote references to a January 22, 2002 memo called "Re: Application of Treaties and Laws to al-Qaeda and Taliban Detainees." There’s also reference to a "Military Order – Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism," promulgated by the president November 13, 2001.

To be sure, we’ve had hints before Abu Ghraib that the United States did not intend to be particularly bound by norms and conventions when it came to conducting the war on terrorism.

The LA Times ran an article that reminds us of how the "American Taliban," John Walker Lindh, was treated, and refers to "instructions from Rumsfeld’s legal counsel in late 2001, contained in previously undisclosed government documents." As the story reminds us, "Lindh was being questioned while he was propped up naked and tied to a stretcher in interrogation sessions that went on for days, according to court papers. In the early stages, his responses were cabled to Washington hourly, the new documents show."

Incidentally, there’s a video showing CIA Johnny "Mike" Spann (who was later killed in a prison uprising) trying to interrogate Lindh just after Lindh was captured. "You believe in what you’re doing here that much, you’re willing to be killed here?" Spann asked. Another CIA officer mentioned the likelihood Lindh would be killed if he didn’t cooperate. Among the tactics prohibited by the 1994 Convention Against Torture (according to the March 6 2003 memo) are "3) the threat of imminent death; or 4) the threat that another person will imminently be subjected to death …"

The Times story goes on:

"In a series of memos from late 2001 to early 2002, top legal officials in the administration identified the U.S. naval base at Guantanamo Bay, Cuba, as a safe haven offshore that would shield the secret interrogation process from intervention by the U.S. judicial system.

"The memos show that top government lawyers believed the administration was not bound by the Geneva Convention governing treatment of prisoners because ‘Al Qaeda is merely a violent political movement or organization and not a nation-state’ that had signed the international treaty.

"However, the memos also show that Secretary of State Colin L. Powell warned the White House that a tougher approach toward interrogation ‘will reverse over a century of U.S. policy and practices in supporting Geneva Conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.’"

But the administration’s idea of how to support our troops seems to have been to deprive them of whatever real or theoretical protections a half century’s worth of law and precedent on the treatment of prisoners might have furnished. Is it unfair to mention putting them in harm’s way on the basis of (let’s be unduly generous) faulty or insufficiently vetted intelligence for purposes that were improvised once the main military action was completed?

GUANTANAMO PRECURSORS

We should have known, and a lot of people suspected something, in the wake of the way prisoners were classified and treated at Guantanamo Bay. Remember, the government adamantly refused to classify those held at Guantanamo as "prisoners of war" because to do so would have subjected the captors to the Geneva Convention, under which such prisoners can only legitimately be required to answer name, rank and serial number. Instead the administrations legal eagles came up with the term "unlawful combatants," who presumably can be held forever without hearings or charges.

As I took note of more than two years ago, however, the Geneva Convention itself has a provision stating, "Should any doubt arise as to whether persons … belong to any of the categories in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." As I wrote back then, "In 1997 the Pentagon promulgated a broad set of military regulations concerning the treatment of prisoners and other detainees. You would think a country devoted to the rule of law would have applied its own law" – which just happens also to provide that captives will be treated as called for under the Geneva Protocols until their status is determined by a screening tribunal of three officers.

So the United States government not only used Guantanamo to evade international treaties, it used the place to evade U.S. law as well.

Should we be surprised, then, that when the commanding general from Guantanamo was sent to Iraq to study the way prisons were run, and to "Gitmoize" the interrogation procedures – even though Gen. Antonio Taguba, the Army investigator who looked into alleged abuses found at least 60 percent of those detained were simply picked up and not likely guilty of anything, and none were al-Qaeda members, and the Red Cross said the percentage of innocents was higher and the abuse continued even after it began to be investigated – that "extraordinary" interrogation procedures quickly followed.

The United States has been shamed – but more by the lawyers and top officials whose immediate response to 9/11 was to find ways to wiggle out of having to abide by humane interrogation and detention procedures required both by international treaties and U.S. law, thereby setting a tone of evasion, than by the lower-rank soldiers who actually carried out the activities at Abu Ghraib.

Author: Alan Bock

Get Alan Bock's Waiting to Inhale: The Politics of Medical Marijuana (Seven Locks Press, 2000).

Alan Bock is senior essayist at the Orange County Register. He is the author of Ambush at Ruby Ridge (Putnam-Berkley, 1995).