Have you heard that Attorney General Eric Holder has appointed tough federal prosecutor Patrick Fitzgerald to take over a months-old investigation into whether defense lawyers associated with the American Civil Liberties Union illegally compromised CIA interrogators’ identities?
The Fitzgerald appointment, mentioned in passing by The Washington Times on March 15 and more fully reported by Newsweek on March 19, has at this writing been virtually ignored by almost all other news organizations. But it raises interesting questions.
The lawyers reportedly had private investigators surreptitiously take photos of men thought to be CIA interrogators, and then showed them to at least one of the four men accused along with Khalid Shaikh Mohammed of conspiring to launch the 9/11 attacks. In at least one instance, photos were said to have been found in a detainee’s Guantanamo Bay cell.
The tapping of Fitzgerald, the U.S. attorney in Chicago, may suggest that the Justice Department is taking very seriously an inquiry into the photo situation that was first reported last August by The Washington Post. Fitzgerald is an exceptionally aggressive prosecutor who is known for his investigation of Bush administration leaks of then-CIA agent Valerie Plame’s identity and his corruption indictment of former Illinois Gov. Rod Blagojevich.
The use of CIA operatives’ photos by ACLU-funded defense lawyers reinforces my concern that conventional rules of criminal justice and legal ethics — which tend to support what the lawyers reportedly did — may not be the best way to deal with mass-murder terrorists who wage war against the United States.
Is waterboarding torture? Of course it is, say Attorney General Eric Holder and many others who have confidently declared that the Bush administration’s lawyers were clearly wrong to approve as legal the CIA’s proposed use of waterboarding and nine other brutal interrogation methods.
I agree that waterboarding is torture as colloquially understood by many of us and that it should be banned.
But that does not mean that the CIA’s proposal — eventually endorsed by officials up to and including Present Bush — was illegal under the extremely narrow definition of "torture" that Congress wrote in 1994 when it made the practice a federal crime.
Indeed, the recently released report by Associate Deputy Attorney General David Margolis, the senior Justice Department expert on legal ethics, implicitly contradicts the strikingly superficial analysis underlying Holder’s assertions that waterboarding is illegal torture.
And while Margolis did not directly rule on the legality of the CIA’s interrogation methods, his 69-page analysis more strongly supports the view that the kind of waterboarding that the agency proposed in 2002 was not illegal torture.
You would hardly guess this from the media coverage after Justice released the Margolis report and related documents on February 19.
The report’s central conclusion absolved Jay Bybee and John Yoo — the Bush-appointed Justice Department lawyers who prepared two key "torture memos," both dated August 1, 2002 — of unethical conduct. Margolis firmly rejected a pervasively slanted, and unethically leaked, effort by Holder protÃ©gÃ©s in the Justice Department’s Office of Professional Responsibility to subject Bybee and Yoo to discipline from the bar. (The OPR is not to be confused with the Office of Legal Counsel, known as the OLC, which Bybee headed in 2002 with Yoo as a deputy.)
The legions of left-liberal avengers demanding prosecutions of CIA grunts and the entire Bush national security team on charges of illegal torture are likely to be disappointed, for reasons discussed in my September 5 column.
But many still hope to drive from the legal profession the Bush administration lawyers who advised that waterboarding and other brutal interrogation methods were legal.
And Attorney General Eric Holder is endlessly mulling a 200-plus-page draft report recommending (according to news leaks) referral of former Justice Department lawyers Jay Bybee and John Yoo to state bar authorities for disciplinary proceedings.
The Justice Department’s Office of Professional Responsibility presented the draft to Holder’s predecessor, Michael Mukasey, in December after a five-year investigation. It focuses on two lengthy, August 1, 2002, memos that Bybee and Yoo, then his deputy, co-authored. They helped open the door for the CIA to use brutal interrogation techniques by construing very narrowly the 1994 law that makes "torture" a federal crime.
Holder should unambiguously reject this recommendation, as Mukasey reportedly did in a still-unreleased memo before leaving office. Even if these "torture memos" were wrong, the relevant rules clearly provide that the only grounds for the OPR or state bar officials to discipline Bybee or Yoo would be proof that they acted in bad faith by knowingly misstating the law, or were incompetent.
There is nothing remotely like such proof. Nobody who knows Bybee, now a federal Appeals Court judge, or Yoo, a leading scholarly advocate of sweeping presidential war powers who teaches law at the University of California (Berkeley), doubts that they believed in their own interpretation of the anti-torture law.
"A democracy as resilient as ours must reject the false choice between our security and our ideals," President Obama said on April 16, "and that is why these methods of interrogation are already a thing of the past."
But is it really a false choice? It’s certainly tempting to think so. The fashionable assumption that coercive interrogation (up to and including torture) never saved a single life makes it easy to resolve what otherwise would be an agonizing moral quandary.
The same assumption makes it even easier for congressional Democrats, human-rights activists, and George W. Bush-hating avengers to call for prosecuting and imprisoning the former president and his entire national security team, including their lawyers. The charge: approving brutal methods — seen by many as illegal torture — that were also blessed, at least implicitly, by Nancy Pelosi, now the House speaker, and other Intelligence Committee members in and after 2002.
But there is a body of evidence suggesting that brutal interrogation methods may indeed have saved lives, perhaps a great many lives — and that renouncing those methods may someday end up costing many, many more.
To be sure, the evidence in the public record is not conclusive. It comes mainly from Bush appointees and Central Intelligence Agency officials with records to defend and axes to grind. There is plenty of countervailing evidence coming from critics who have less access to the classified information that tells much of the story and have their own axes to grind. There are also plausible arguments for renouncing coercive interrogation even if it does save some lives.
"The cell and room were air-conditioned and were very cold. Very loud, shouting-type music was constantly playing…. One of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face…. I was then put into the tall black box for what I think was about one and a half to two hours…. It was difficult to breathe…. I had to crouch down…. The wound on my leg began to open and started to bleed…. I may have slept or maybe fainted. I was then dragged from the small box … and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators [poured] water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position…. I vomited. The same torture [was] carried out again…. I thought I was going to die."
These chilling excerpts only begin to sketch the horrors described in a leaked copy of a report to the CIA by the International Committee of the Red Cross, detailing its interviews with Abu Zubaydah (who is quoted above) and 13 other Qaeda terrorists at Guantanamo Bay in late 2006 about their interrogations in secret CIA prisons starting in 2002.
Laid out last month by journalist Mark Danner in a 13,000-word New York Review of Books article, the interviews paint an even uglier picture than I had imagined of the months of multiple, unrelenting torments that the CIA used to break "high-value" Qaeda detainees. Some of these CIA practices have become familiar. Others are detailed for the first time in the Red Cross report: smashing defenseless men against hard walls over and over again; forcing them to stand naked and cold with arms shackled over their heads for days at a time while urinating and defecating on themselves; and more.
"It is basically subject to perception. If the detainee dies you’re doing it wrong."
This was perhaps the most chillingly outrageous, widely quoted statement by a government official to be aired by Senate Armed Services Committee Chairman Carl Levin, D-Mich., at hearings last summer and in the committee’s December 11 report on abuse of detainees by U.S. forces.
But the quoted official, CIA lawyer Jonathan Fredman, told the committee on November 18 that he had made no such statement. In fact, Fredman added in a heretofore confidential, five-page memo, he had stressed at the 2002 meeting with interrogators at the Guantanamo Bay detention facility described in the Levin committee’s report, "Interrogation practices and legal guidance must not be based upon anyone’s subjective perception" (emphasis added) but rather upon "definitive and binding legal analysis."
The overall effect of selective reporting by many critics has been to paint honorable former and current officials as a bunch of sadistic war criminals.
Remarkably, the 18-page report issued by the committee (headed "Executive Summary") does not mention Fredman’s vehement — and, in my view, quite plausible — denial of the horrifying words attributed to him in a document of debatable reliability that the report, and Levin, have treated as established fact.
A lot of Democrats, editorialists, and others have said not only that waterboarding is torture (as Sen. John McCain has) but also that the CIA’s use of that practice on three Qaeda leaders in 2002 and 2003 obviously violated a 1994 law making torture a crime. From that premise, some have said or implied that:
• The administration lawyers who have come to the opposite conclusion — now including Attorney General Michael Mukasey, as well as those who approved the use of waterboarding in advance — were acting in bad faith.
• These lawyers (or at least some of them) should be subject to professional discipline both by the Justice Department’s Office of Professional Responsibility, which is investigating the matter, and by state disciplinary authorities with power to disbar unethical lawyers.
Some have also called for criminal prosecution of the CIA interrogators who used harsh techniques, including waterboarding, and/or of the higher-level officials who approved the techniques, in reliance on Justice Department legal opinions.
It’s hard to see where the logic of the more passionate critics stops, short of suggesting what few have so far said overtly: that President Bush, former CIA Director George Tenet, and other top officials and former officials should be prosecuted as war criminals, presumably by the next administration.
This is a dangerous line of argument based on a flawed legal premise.
It is dangerous because the last thing this bitterly divided country needs is years — indeed, decades — of recriminations over whether the Bush administration’s war on terrorism has been a criminal enterprise whose leaders belong in prison. We should focus on amending the law to prevent future abuse of waterboarding and other repugnant techniques, not on hounding those responsible for past interrogations of questionable legality.
Imagine that U.S. forces capture Osama bin Laden or a high-level lieutenant in Pakistan next month and hand him over to the CIA, amid intelligence reports that a massive new Qaeda attack on America may be imminent.
Should it be illegal for CIA interrogators to try to scare the man into talking by yelling at him? By threatening to slap him? By pretending to be from Egypt’s brutal intelligence service? What about turning up the air conditioner to make him uncomfortably cold? Or denying him hot food until he talks, while giving him all the cold food he can eat?
These methods would all apparently be illegal under a rider that the House-Senate conference committee added to the annual intelligence authorization bill. It would bar the CIA from using any interrogation practice not authorized in the Army field manual’s rules for military interrogators. This would mean prohibiting almost all forms of coercive interrogation, including many potentially effective techniques that come nowhere near torture and are now clearly legal.
We’ve come a long way since September 2002, when Nancy Pelosi, then a House Intelligence Committee member and now the speaker, listened without a peep of protest while being briefed about the CIA’s use of waterboarding and other harsh interrogation methods on Qaeda leaders.
Now almost all Democrats (and some Republicans) denounce waterboarding as illegal torture. They are probably right — although you can bet that after the next 9/11 they will backtrack faster than you can say "unprincipled."
The mostly Democratic sponsors of the proposed legislation unpersuasively suggest that it is necessary to prevent torture. They also hide behind the fantasy that coercion never leads to good information. But there is substantial (if anecdotal) evidence that in some cases, at least, coercive interrogation methods far short of torture may well extract information that could save lives.
A Federal Appeals Court’s unanimous rejection on June 11 of President Bush’s effort to deny judicial review and due process to a legal alien who has been militarily incarcerated for four years—because Bush says he is a Qaeda agent—was a ringing and welcome defense of our constitutional freedoms.
But I worry that two of the three judges may have gone too far, or exposed a gap in our laws that Congress needs to fill, in their additional, broader holding. It was that Ali Saleh Kahlah al-Marri and other suspected Qaeda terrorists arrested in the United States cannot be detained at all, no matter how dangerous, unless the government brings criminal charges against them within a week of arrest or is unable to deport them.
Whether or not correct as a matter of law, this majority opinion points, in my view, to the need for explicit congressional authorization of prolonged (although not indefinite) detention and aggressive (although not abusive) interrogation of suspected Qaeda agents who cannot be criminally prosecuted. Congress should also require muscular due process safeguards and exacting judicial review, which the Bush administration has furiously opposed, to prevent erroneous detentions of innocent people.
More broadly, the chasm between the views of the president and these two judges on how such cases should be handled illustrates yet again the need for Congress to end its shameful abdication of its duty to rethink the war-on-terrorism’s detention and interrogation policy from the ground up.
The easy issue in the al-Marri case is whether foreigners living legally in this country who are suspected of being Qaeda sleeper agents—such as al-Marri, a Qatari graduate student at Bradley University who lived in Peoria, Ill., with his wife and five children—can be subjected to long-term military detention based solely on the president’s say-so, with no right to due process or judicial review.
"We do not torture," President Bush declared on November 7. But hardly anybody outside America believes him. And fewer and fewer Americans believe that he has given much more than lip service to his ostensible policy of treating suspected enemy combatants humanely.