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.

A 1982 federal law makes it a felony to knowingly disclose "any information that identifies an individual as a covert agent to any individual not authorized to receive classified information," if done as part of "a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign-intelligence activities of the United States." Other laws and military-commission rules ban disclosure of classified information generally, including covert agents’ identities.

I doubt that any lawyer will or should be prosecuted based on what has been reported so far. But whether this was admirable conduct, and whether we should want defense lawyers using such tactics in terrorism cases, are different questions.

I say this as someone who has denounced the efforts of hard-right conservatives to smear as disloyal several other lawyers now working in the Obama administration’s Justice Department (including a friend of mine) who previously represented Guantanamo detainees.

The investigation now headed by Fitzgerald appears focused on the activities of the John Adams Project, a joint effort of the ACLU and the National Association of Criminal Defense Lawyers. The project reportedly spent $4 million between April 2008 and the fall of 2009, when it was disbanded, to assist military lawyers in defending against military-commission prosecutions of terrorism suspects.

(Holder announced last November that the administration would transfer the 9/11 case from the military commission to a civilian federal court in New York City, a decision that now — according to multiple news reports — seems likely to be reversed.)

Anthony Romero, executive director of the ACLU, told Newsweek last week (as he had hinted to The Post last August) that the John Adams Project hired private investigators to track down and identify CIA operatives involved in "torture."

"It would be an essential part of any defense to cross-examine the perpetrators of torture," Newsweek quoted Romero as saying. He added that "to our knowledge," the 9/11 conspiracy suspects "were not told the identities of the CIA officers."

ACLU spokesman John Kennedy told me that "John Adams Project attorneys at all times adhered to the law and fulfilled their ethical obligations."

Does this mean that a lawyer for a terrorism suspect accused of mass murder has a right — or even an ethical duty — to secretly procure and show his client photos of covert CIA agents who may have interrogated the client?

Maybe so, if such defendants are to be prosecuted under the conventional criminal-justice rules — rules that prevail, by the way, in military commissions as well as in civilian federal courts.

Two leading legal-ethics experts — Monroe Freedman of Hofstra Law School and Stephen Gillers of New York University Law School — told me that (in Freedman’s words) "both ethical rules and Supreme Court precedents require criminal defense lawyers to do everything within reason that is ethically and legally possible on behalf of the client."

Were the photos shared with any of the left-leaning lawyers campaigning for foreign prosecutions of Bush administration officials?

Similarly, a criminal defense lawyer whom I hold in high regard (and who would not speak for attribution because of his relationship with the ACLU) asserts that it would be entirely appropriate for any 9/11 defendant’s lawyer to investigate his client’s CIA interrogators and show their photos to his client. (He added that leaving photos with the client might tempt a prosecutor to bring charges based on the remote chance that they might be smuggled to other terrorists, putting the agents at risk.)

But Kenneth Anderson, an American University law professor who has written widely on terrorism issues, said that the defense lawyers’ reported use of CIA agents’ photos "sickens and disgusts me." Me, too.

Anderson does not claim (nor do I) that anyone violated any law or ethical rule. But he does say that the defense lawyers’ reported conduct "unintentionally supports the position of some conservatives that such cases should treated as matters of war, not criminal law."

The Justice Department investigation began last year after about 20 color photos of CIA officials (according to Newsweek) were discovered in the Guantanamo cell of Mustafa Ahmed al-Hawsawi, one of the five 9/11 defendants.

The August 21 Post article reported that FBI agents had questioned military defense lawyers about whether they had shown their clients photos of covert CIA officials that had been "in some cases surreptitiously taken outside their homes." The Justice Department cleared the military lawyers of any wrongdoing months ago, according to the March 19 Newsweek report by Michael Isikoff and Mark Hosenball. (I am an occasional contributor to Newsweek.)

But the investigation of the John Adams Project lawyers "was given new urgency after the discovery last month of additional photographs of interrogators at Guantanamo," Bill Gertz reported in The Washington Times on March 15.

CIA officials have told the Justice Department that the defense lawyers’ use of the photos could expose agents and their families to terrorist hit squads.

This concern might seem far-fetched if — as the ACLU has suggested — the 9/11 defendants were shown the photos but were given no other information that could lead to exposure of the agents’ names or whereabouts. But Romero’s statement that the 9/11 conspirators were not told the agents’ names "to our knowledge" is not entirely reassuring. Nor is the fact that some of the photos were apparently left with — rather than just shown to — a detainee.

One also wonders: How widely were the photos and names of covert agents disseminated within the defense camp? Were they also shared with any of the left-leaning lawyers who have been campaigning for foreign prosecutions of Bush administration officials for "torture" if the U.S. will not prosecute them? Or shared with the European investigators, human-rights groups, news organizations, and others who have made lists of CIA interrogators, station chiefs, and associates who may have been involved in interrogations?

At least one senior Justice Department official, Donald Vieira, was skeptical of CIA complaints that showing covert agents’ photos to terrorism suspects could jeopardize the agents and their families or amount to a crime, according to Gertz’s March 15 article. But Vieira later recused himself from the case, and now Holder has brought in Fitzgerald to run the investigation.

Fitzgerald did not charge anyone with a crime for leaking the identity of Plame, whose husband, Joseph Wilson, was a vocal critic of Bush. But the special prosecutor did win a conviction of I. Lewis (Scooter) Libby, Vice President Cheney’s former chief of staff, on charges of grand jury perjury, false statements to the FBI, and obstruction of justice.

Holder’s choice of Fitzgerald to lead the current investigation seems wise, because if he ends up deciding that no crime was committed, as I suspect he will (and should), it will be hard for conservative critics to accuse Holder of favoritism toward left-leaning Guantanamo defense lawyers.

But if the lawyers’ conduct becomes widely publicized, "ordinary people will" — and should — "recoil from the idea of sharing CIA agents’ photos with alleged terrorists," in Anderson’s words.

And that may lend plausibility to the view of Benjamin Wittes of the Brookings Institution and Jack Goldsmith of Harvard Law School, in a closely argued March 19 Washington Post op-ed, that the best resolution of the bruising debate over where to try the 9/11 defendants — who can be detained indefinitely as enemy combatants — may be: "Don’t bother trying them at all."

This article appeared in the Saturday, March 27, 2010 edition of National Journal.

The post Gitmo Lawyers And CIA Photos appeared first on Stuart Taylor, Jr..

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 protégés 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.)

But Margolis did criticize Bybee and (especially) Yoo for "poor judgment" in portions of their memos. He also asserted that his decision "should not be viewed as an endorsement of the legal work that underlies" the torture memos.

The media have lavished attention on the "poor judgment" part but rushed right past the report’s implicit contradiction of both Holder’s waterboarding analysis and others’ assertions that the CIA-proposed techniques were clearly illegal. Reporters also paid little attention to Margolis’s expert evisceration of the OPR lawyers’ sometimes shoddy legal analysis, disregard for their office’s own rules, and shifting rationales in attacking Bybee and Yoo.

These aspects of the Margolis report — written by a widely respected career lawyer who has heard appeals from OPR targets for 17 years — are consequential.

They should shake the near-consensus in many circles that the entire Bush interrogation program was not only brutal and excessive, as I believe, but also illegal torture. And they pose a test for Holder and the congressional Democrats who have so fervently denounced the Bush team for employing waterboarding and other brutal methods.

If anybody violated an ethical standard, it would be whoever leaked a draft memo attacking Jay Bybee and John Yoo.

If these Democrats really want to make it clear that any future U.S. interrogators who use brutal techniques should be prosecuted, then they should propose tough, clear new legislative language — and take the political heat for it. Failure to do that will suggest that their attacks on Bush "torture" are driven more by political opportunism than by fidelity to law or human rights.

Let’s compare Holder’s January 15, 2009, Senate confirmation testimony and subsequent answers to written questions about waterboarding with relevant portions of the Margolis memo.

Holder: "If you look at the history of the use of that technique, used by the Khmer Rouge, used in the [Spanish] Inquisition, used by the Japanese, and prosecuted by us as war crimes — we prosecuted our own soldiers for using it in Vietnam… waterboarding is torture…. It is clear, and has historically been uncontroversial, that waterboarding is a form of torture."

Margolis: The "historical examples of ‘water torture’ " used by the OPR to condemn Bybee and Yoo, including those cited by Holder, "are distinguishable from the [CIA’s] proposed technique and were not analyzed under language similar to the torture statute."

In other words, Holder’s historical examples prove nothing. They cited tortures far more brutal than the technique that the CIA proposed in 2002. They also involved laws that predated the 1994 legislation and imposed broader criminal prohibitions.

And, as Margolis could have added, those not-very-relevant examples have been almost the only scrap of legal analysis that Holder has ever offered to support his condemnations of the CIA’s waterboarding.

Holder also dismissed, in May 2009 House testimony, the fact that thousands of military trainees have been waterboarded without suffering the "severe physical pain" or "prolonged mental harm" that would violate the anti-torture law. The training experience was "fundamentally different" from waterboarding a prisoner, he said.

Margolis, however, found the training experience "directly relevant" to the Bybee-Yoo determination "that the waterboard did not cause severe physical pain or suffering" (Margolis’s emphasis). He also found that despite the difference in the likely psychological effects on prisoners, the training experience would also "be relevant to the threshold question of whether everyone subjected to the waterboard suffers severe mental pain or suffering."

Margolis’s only criticism of Bybee and Yoo’s analysis of waterboarding was that its phrasing at one point could be read as erroneously suggesting that the absence of severe effects on trainees "alone virtually eliminated the need for an individual assessment" of how Abu Zubaydah, the first prisoner whom the CIA wanted to waterboard, might be affected. But this "was not critical to the approval of the techniques on Zubaydah," Margolis added, because another portion of the same memo noted that a CIA psychological assessment had already found that Zubaydah "would not experience any mental harm."

More broadly, nothing in the Margolis report says or implies that waterboarding or any other technique, with the limitations that the CIA proposed to Bybee and Yoo, was illegal. It must be noted that CIA operatives in the field later went far beyond those limitations — so far as to veer into illegal torture, in my view. (See "CIA Torture — and a Spanish Inquisition," NJ, 4/4/09, p. 12.)

Margolis arguably implied that the CIA’s policy on waterboarding may have been legal, when he wrote that "colloquial uses of the term ‘torture’ have little relevance to determining whether a particular technique violates the torture statute."

Then there is the striking, widely ignored fact that even the OPR found no ethical violation or poor judgment when it assessed the subsequent approval of techniques that included waterboarding by Steven Bradbury as head of the Office of Legal Counsel years after Bybee had taken a federal Appeals Court seat. This exoneration refutes Holder’s assertion that waterboarding is clearly illegal torture.

Indeed, no fewer than 14 other senior Bush administration lawyers eventually concurred in the Bybee-Yoo conclusion that the CIA-proposed waterboarding did not violate the torture law. The available evidence suggests that most of them did a more careful legal analysis than Holder has given any indication of doing.

It’s important to understand that there were two Bybee-Yoo torture memos that were dated August 1, 2002. The first, a general discussion of the torture ban, executive power, and possible defenses to prosecutions, was so flawed as to be repudiated by the Bush Justice Department in 2004. Not so the second memo, which was more important because it detailed the 10 CIA-proposed interrogation techniques and the reasons for approving them.

Margolis’s criticisms of this second memo were relatively minor: the above-noted point about needing an individualized psychological assessment, and a comment that the memo "would have been more complete" had it discussed how the CIA would keep detainees awake when using sleep deprivation.

Margolis’s only tough criticisms of Bybee and Yoo were aimed at their more general, less important memo.

He wrote — much as I did in June 2004 — that this first memo took an extraordinarily aggressive, "expansive view of executive authority and narrowly construed the torture statute while often failing to expose (much less refute) countervailing arguments and overstating the certainty of its conclusions." (See "The Torture Memos: Putting the President Above the Law," NJ, 6/12/04, p. 1835.)

Bybee and Yoo thus showed "poor judgment," Margolis wrote, and Yoo’s work "reflected his own extreme, albeit sincerely held, views of executive power."

At the same time, Margolis explained that the first memo’s flaws "were not likely to cause prejudice because the [more restrictive second] memo… approved specified techniques against a specific individual and advised that the advice would not necessarily apply if the facts changed."

Again, no hint that Margolis considered any of these techniques illegal.

His bottom line was that Bybee and Yoo did not "knowingly or recklessly provide incorrect legal advice or [act] in bad faith" and thus violated no ethical standard.

But somebody else did violate an ethical standard. That would be whoever leaked last year the conclusions of the confidential, now-overruled OPR draft attacking Bybee and Yoo. When will the attorney general order an internal investigation of that?

This article appeared in the Saturday, February 27, 2010 edition of National Journal.

The post Brutal, Yes ‘Torture,’ Probably Not appeared first on Stuart Taylor, Jr..

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.

Nor does the sometimes sloppy reasoning in the two memos prove incompetence. These were highly capable lawyers working under severe time pressure with little guidance from case law, amid pervasive fears that another mass-murder attack might be imminent unless the CIA could force captured terrorists to talk.

I was among many critics who denounced the first of the Bybee-Yoo "torture memos," a general analysis of the anti-torture law and related issues, as deeply flawed when it was leaked in 2004. Soon thereafter, Jack Goldsmith, a Bybee successor as head of the Office of Legal Counsel, repudiated that memo on behalf of the Bush Justice Department, thereby infuriating the White House.

It makes no sense to seek to atone for the nation’s sins by singling out individuals for bar discipline or other punishment.

The most troubling aspect of that first memo was its sweeping and poorly supported claim that the Constitution empowered a wartime president to, in effect, nullify the 1994 law by ordering wholesale use of torture.

Although the White House had requested such an analysis, President Bush never purported to invoke it. For this reason, the second Bybee-Yoo memo was the more important one. Released by President Obama in April, amid widespread denunciations, it approved the legality of 10 specified CIA interrogation techniques. While also somewhat flawed, in my view, this "techniques memo" was more carefully reasoned and more plausible in its legal analysis than most critics and the media have suggested.

Indeed, at least a dozen high-ranking Bush administration lawyers implicitly or explicitly accepted the techniques memo as a correct legal analysis. These included Goldsmith and former Deputy Attorney General James Comey — widely respected figures who repeatedly proved their independence from White House pressure to toe the line.

The record is also clear that leading members of Congress, including Nancy Pelosi (before she became House speaker), raised no legal objections after being briefed in detail about waterboarding and the other interrogation methods that Bybee and Yoo approved.

This is not to deny that these techniques — waterboarding, slamming detainees against walls, confining them in dark boxes, depriving them of sleep for as long as 11 days, and more — are so viscerally horrifying that many of us would call them torture.

But that does not make the memo’s legal analysis indefensible.

First, in passing the anti-torture law, Congress chose quite deliberately not to outlaw all of the "cruel, inhuman, and degrading" treatment that international law forbids and that I (for one) see as torture. Instead, it outlawed as "torture" only the subset of brutalities that are "specifically intended" to cause "severe" physical pain, or mental pain so extreme as to cause "prolonged mental harm."

Bybee and Yoo interpreted these vague terms quite narrowly. But at least two federal Appeals Courts have adopted similarly narrow interpretations of international treaties against torture.

Take the much-criticized Bybee-Yoo argument that physical pain is "severe" only if "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Although "organ failure" was an execrable word choice, the heart of the Bybee-Yoo definition was not so different from the one in a Senate report quoted by the U.S. Court of Appeals for the District of Columbia Circuit in 2002: "A deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering."

Critics including Holder have also assailed Bybee and Yoo for claiming that an interrogator lacks "specific intent" to torture if he has a "good faith belief" that his actions will not inflict severe physical pain or prolonged mental harm — even if they will.

But the U.S. Court of Appeals for the 3rd Circuit adopted something close to this interpretation in a 10-3 decision in June 2008, saying that an official would have "specific intent" to torture only if he knew that severe pain was certain and he also had "the additional deliberate and conscious purpose" of inflicting it.

Second, Bybee and Yoo were entitled to rely on the information provided by the CIA about how it would use the specified techniques and the impact that similar techniques had had on military trainees being taught how to resist interrogation.

Take waterboarding, the most traumatic (and apparently most effective) technique approved by Bybee and Yoo. It is widely seen as a form of torture, and the U.S. prosecuted people for water tortures used by U.S. troops in the Philippines and by the Japanese during World War II.

But those water tortures — such as pouring large amounts of water down a prisoner’s throat and then stomping on his stomach — appear to have been far more painful and harmful than what Bybee and Yoo approved. The CIA had presented detailed evidence that its use of waterboarding would not cause severe physical pain or prolonged mental harm.

A simpler approach would be to offer the nation’s apology to the innocent victims of torture and urge Congress to pay them compensation.

The Bybee-Yoo techniques memo said that the CIA had described "the waterboard" as repeatedly pouring water "in a controlled manner" onto a cloth over the nose and mouth of a bound detainee to produce "the perception of drowning" and panic. The memo said that trained medical personnel would be standing by and that although waterboarding and other techniques could be repeated, the repetition "will not be substantial."

This still seems excruciating. But Bybee and Yoo relied heavily on assurances by their client (the CIA) that in thousands of waterboarding sessions designed to teach military trainees how to resist brutal interrogation, the trainees did not experience substantial physical pain and only a handful had mental health problems attributable to waterboarding.

We now know that some CIA interrogators — especially before 2003 — used waterboarding and other techniques in ways considerably more harsh and prolonged than the limited uses that Bybee and Yoo had approved. The lawyers probably should have warned more firmly against such excesses, but their failure to do so hardly proves bad faith.

Of course, when all is said and done, there is little doubt that some CIA detainees were tortured. This is a stain on our nation’s honor that should never be repeated. But the responsibility was so widely diffused, across such a large number of honorably motivated officials who tried (and sometimes failed) to stay within the law, that it makes no sense to seek to atone for the nation’s sins by singling out individuals for bar discipline or other punishment.

This is especially true when those individuals have already suffered greatly from being trashed as "war criminals," picketed at public appearances, stalked by grandstanding Spanish judges, and otherwise harassed across the country and around the globe.

There are better ways to account for and remedy our sins of torture. The sort of fact-finding "truth commission" that many have advocated could report on what was done and the lessons learned — although it could do more harm than good if such a panel conducted the sort of adversarial hearings that would become a public circus.

A simpler and risk-free approach would be for the president to offer the nation’s apology to the innocent victims of American torture and urge Congress to pay them compensation. Why hasn’t Obama done that?

This article appeared in the Saturday, September 12, 2009 edition of National Journal.

The post Torture: Stop Harassing The Lawyers appeared first on Stuart Taylor, Jr..

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.

But it would be an abdication for the president to proceed on the facile assumption that his no-coercion executive order is cost-free. Instead, he should commission an expert review of what interrogators learned from the high-value detainees both before and after using brutal methods and whether those methods appear to have saved lives. He should also foster a better-informed public debate by declassifying as much of the relevant evidence as possible, as former Vice President Cheney and other Republicans have urged.

The CIA’s post-9/11 records are probably the most instructive body of empirical evidence in existence as to the relative effectiveness of gentle and harsh interrogation methods. The Senate Intelligence Committee is looking into this data. But its review could be skewed by the committee’s own prior role and its current incentives to reach politically palatable conclusions. We need the person responsible for protecting us to direct an unblinking, unbiased review of whether lives were saved.

The review should start by taking seriously the views of the people with the most-detailed knowledge. They say that the coercive interrogation program was highly effective.

Michael Hayden, Bush’s last CIA director, and former Attorney General Michael Mukasey recently wrote, "As late as 2006, fully half of the government’s knowledge about the structure and activities of Al Qaeda came from those interrogations." Former CIA Director George Tenet has said, "I know that this program has saved lives. I know we’ve disrupted plots. I know this program alone is worth more than [what] the FBI, the [CIA], and the National Security Agency put together have been able to tell us." Former National Intelligence Director Mike McConnell has said, "We have people walking around in this country that are alive today because this process happened."

Of course, those four have a stake in defending the actions of themselves and other Bush appointees by magnifying the benefits. But I see little reason to doubt their sincerity, or that of the former senior CIA official who told my colleague Shane Harris anonymously that he was "certain" that the CIA "prevented multiple attacks" thanks to the coercive interrogations. (See "Reading a Torture Memo.")

I see no reason at all to doubt the sincerity of Dennis Blair, Obama’s own national intelligence director, who said in an April 16 memo to his staff that "high value information came from interrogations in which those methods were used and provided a deeper understanding" of Al Qaeda.

Blair later qualified this by adding, "There is no way of knowing whether the same information could have been obtained through other means." But a reasonable person might imagine that it would take more than sweet talk, mind games, and lollipops to get hardened terrorists to sing.

"I like to think I would not have approved those methods in the past," Blair added, "but I do not fault those who made the decisions at that time." His honesty is commendable. In this fevered town, in this bitter time, Blair’s empathy for former officials who went to extremes to protect the country could bring a mob to his door carrying "war criminal" signs.

One of the most specific CIA claims that the brutalizing of detainees averted a planned attack, as described in speeches by then-President Bush and in one of the recently released Justice Department documents, goes like this:

After being subjected to waterboarding and other brutal methods in 2002, Abu Zubaydah explained that he and his "brothers" were permitted by Allah to yield when interrogators pushed them to the limit of their endurance. At that point, he provided information that helped the CIA capture Ramzi Binalshibh. The two captives then gave up details that led to the capture of Khalid Shaikh Mohammed (KSM, in official shorthand), whom Zubaydah had identified as the mastermind of the 9/11 attacks. KSM, in turn, was initially defiant but — after being tormented and waterboarded more than 100 times — gave up information leading to the capture of a terrorist named Zubair, and then to the capture of Hambali, leader of Al Qaeda’s Southeast Asian affiliate Jemaah Islamiyah, and then to his brother "Gun Gun" in Pakistan, whose information led to a cell of 17 Southeast Asian terrorists.

Did tough interrogations prevent terrorists from crashing a hijacked airliner into the tallest building in Los Angeles?

This chain of events, the CIA insists, unraveled the dangerous "Second Wave" plot, planned by KSM and Hambali, that called for the Southeast Asian terrorists to crash a hijacked airliner into the tallest building in Los Angeles, the Library Tower.

There is also evidence cutting against the CIA’s claims. A.B. Krongard, who was the agency’s executive director when the coercive interrogations began, told author Ron Suskind that KSM and other Qaeda captives "went through hell and gave up very, very little." Former FBI agents have claimed that their conventional, non-coercive interrogation got better information out of Zubaydah than the CIA did with its tough stuff.

Many experienced military and FBI interrogators say they’ve never used coercion, contending that it doesn’t work because prisoners will say anything to stop the pain. (But how would they know it doesn’t work, not having tried it? And if you were a terrorist desperate to stop the pain, would you fabricate a story that your interrogators would likely consider suspect — or tell them where to find other terrorists?)

There are also reports of disagreement within the intelligence community as to the seriousness of the Second Wave plot. Maybe it would have fizzled even without coercive interrogations.

But maybe not. As former Bush speechwriter Marc Thiessen has written, if the 9/11 plot had been thwarted, Bush’s critics "would be telling us how it was never really close to execution and [that] men armed with nothing more than box cutters [could never] hijack four airplanes simultaneously and fly them into buildings."

The bottom line about the effectiveness of brutal interrogations, Blair has asserted, is that "these techniques have hurt our image around the world" so much that "the damage they have done to our interests far outweighed whatever benefit they gave us, and they are not essential to our national security."

He may be right (or wrong) about that. But even if he is right, does it make sense not only to ban the brutal Bush-Cheney brand of interrogation but also to lurch to the opposite extreme by ordering the CIA not to "threaten or coerce" any detainee in any way?

No yelling? No restricting a detainee to nutritious but unappetizing cold food until he talks? No threats of long-term incarceration, even though such are used routinely and quite legally by police all over America? Should people suspected of plotting mass death really be treated more punctiliously than people suspected of burglary?

Not in the view of a veteran prosecutor who suggested somewhat ambiguously in 2002 that terrorists are not "entitled to the protection of the Geneva Convention" and that we need to "find out what their future plans might be, where other cells are located."

That was Eric Holder, whose policy now, as Obama’s attorney general, is to give full Geneva Convention protection to terrorists who may be plotting mass murders while considering whether to prosecute Bush appointees for going too far in their desperate zeal to save lives.

This article appeared in the Saturday, April 25, 2009 edition of National Journal.

The post Did Torture Save Lives? appeared first on Stuart Taylor, Jr..

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.

Why am I inclined to believe what terrorists, trained by Al Qaeda to fabricate torture claims, told the Red Cross? One reason is that these men were held in strict isolation and "the striking similarity in their stories, even down to small details, would seem to make fabrication extremely unlikely," as Danner writes. Another reason is that their stories are substantially corroborated by multiple media interviews of U.S. officials and by a source who has no motive to mislead me.

All of this makes it hard for me to avoid the conclusion that the CIA — with Justice Department assurances of legality and high-level White House approvals — repeatedly crossed the line from harsh treatment into what was, by any reasonable definition, illegal torture.

It also argues strongly that President Obama and Congress, understandably preoccupied with averting another Great Depression, must also focus harder on the need to come to terms with the abuses done in America’s name by a Bush team that was understandably preoccupied with averting a nuclear or biological 9/11.

But first, the Obama administration needs to slap down an insult to U.S. sovereignty now brewing in the Spanish courts.

It began with a complaint by "human-rights" lawyers, including one Gonzalo Boye — who served time for his role in a left-wing terrorist group’s 1988 abduction of a Spanish businessman for ransom — against former Attorney General Alberto Gonzales and five other Bush administration lawyers who vouched for the legality of various harsh interrogation practices.

Last week it was reported that Baltasar Garzon, a much-lionized but flamboyantly biased Spanish judge with a grandiose vision of his own "universal jurisdiction," had sent the matter to prosecutors for review. This was a step toward embarking on an inquisition into America’s sins. Garzon’s ultimate objective may well be to charge officials up to and including President Bush and Vice President Cheney with war crimes and thus to embarrass the United States — which, he knows, would never extradite any of his targets to face his kangaroo court.

"For Garzon to second-guess U.S. decisions in this area amounts to a violation of international law and an affront to U.S. sovereignty by Spain," David Rivkin, a conservative expert on the universal jurisdiction doctrine, asserts.

By Garzon’s tortured logic, isn’t Obama also committing war crimes by ordering Predator strikes against suspected terrorists in Pakistan?

Garzon’s record invites the inference that he may also see Obama as a war criminal, if one whose rock-star status across Europe may immunize him for now. Soon after 9/11, Garzon published in El Pais and the Financial Times a commentary denouncing "the bellicose plans proclaimed repeatedly by U.S. leaders." He suggested that "justice … should be brought to bear" on Bush, among others, for spreading "panic among the Afghan people" and setting the stage for "a human catastrophe" in their country by planning to attack suspected terrorists there. By that tortured logic, isn’t Obama also committing war crimes by ordering Predator strikes against suspected terrorists in Pakistan?

It’s noteworthy that Garzon’s past targets have included such people as Augusto Pinochet, Henry Kissinger, Silvio Berlusconi — and not, say, Vladimir Putin, who has presided over massive war crimes in Chechnya, or Syrian leaders who have done the same there and in Lebanon.

But Garzon’s affront may serve as a reminder that the U.S. needs to take serious steps to show reasonable critics at home and abroad that we are not going to sweep the evidence of Bush administration torture under the rug.

This is not necessarily to suggest that Bush, his appointees, or other U.S. officials should be prosecuted. Most or all would have a valid defense of good-faith reliance on then-authoritative — although erroneous and now-repudiated — legal advice from the Justice Department. And the lawyers who gave the advice were writing memos, not supervising interrogations.

But the Obama administration’s prosecutors should nonetheless conduct a serious investigation into whether any officials knew that anything they did or approved was illegal, and, if so, whether prosecuting them for trying too hard to save innocent lives is warranted and likely to be successful.

We also need a thorough, credible public accounting of the ugly details of the "enhanced" interrogations; of exactly who approved what; and of the plausibility of the Bush-Cheney-CIA claims that the information obtained saved innocent lives. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., aptly identified what the objective should be: "I don’t want to embarrass anybody. I don’t want to punish anybody. I just want the truth to come out so this never happens again."

But the sort of "truth commission" that Leahy and many others (including me, at one point) have proposed could degenerate into a bitter partisan brawl, as could any investigation conducted by politically appointed commissioners in the glare of nationally televised hearings.

Avenging human-rights groups would push commissioners to tee up witnesses for prosecution. Most or all witnesses would incur burdensome legal fees and take the Fifth. Grants of immunity to force them to testify would be bitterly resisted by the avengers and, coming from a committee outside the legislative and executive branches, constitutionally problematic. The CIA’s institutional reflex would be to resist declassifying critical documents. And so on.

What we need is not a public circus but rather a definitive public report documenting and drawing lessons from the Bush interrogation abuses.

The best approach might be for the Senate Select Intelligence Committee to beef up the review of the CIA’s detention and interrogation program that it announced on March 5. Among the advantages: The committee, like its House counterpart, has unparalleled access to the classified CIA documents that tell much of the story. Congress’s Democratic majority has no reason to cover up for the Bush team and has ample reason to avoid exposing career CIA public servants to public vilification that could chill their zeal to pursue terrorists.

But the investigation as constituted at present has problems: The committee has not yet decided to produce a public report at all, let alone one thorough and unvarnished enough to command respect at home and abroad. The panel does not speak for Obama, and it has a reputation for coziness with the CIA. Committee members who were briefed on brutal interrogation practices would, to some extent, be investigating themselves. And the Democrats might be tempted to score partisan points.

A single decisive step could solve all five problems: The committee should bring in an outsider of unquestioned stature, with Obama’s public blessing, and with a mandate to assemble a special investigative staff, push for declassification of key documents, grant witnesses immunity in exchange for cooperation, and produce a public report accepted as definitive by the legislative and executive branches alike. The ideal person would also be a Republican known for courage and for independence from both Bush and Obama — and for personal knowledge of the horrors of torture.

His name is John McCain.

This article appeared in the Saturday, April 4, 2009 edition of National Journal.

The post CIA Torture – And A Spanish Inquisition appeared first on Stuart Taylor, Jr..

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.

Asked to explain, a staffer said that someone had contacted the committee on Fredman’s behalf in July and that the response was "we wanted to talk to him." However, the committee heard nothing further until Fredman’s memo arrived on November 18, three days before members voted on the report. (The CIA does not usually allow employees to talk to the Levin committee.) The report then went to classification review — most of it is still classified — and only technical edits could be made, the staffer said. The staffer added that Fredman’s memo did not make entirely clear which of the statements attributed to him in the document he denied making.

But the fact remains that the committee had Fredman’s memo in hand 23 days before it issued its public "Executive Summary" without mentioning the denial. If a newspaper did that, it might be on the losing end of a libel suit.

The Levin committee’s shabby treatment of Fredman is illustrative of a pattern. To be sure, the report makes a valid case that the military’s abuse of numerous detainees between 2001 and 2004 "cannot simply be attributed to the actions of a few ‘bad apples’ acting on their own," as Bush apologists have sought to do with diminishing credibility; the abuse was, to some extent, spurred by high-level decisions.

But Levin undermines his own credibility by overstating the evidence of high-level complicity in the most shocking abuses at Iraq’s Abu Ghraib prison and in Afghanistan, and by depicting so many officials as villainous.

One wonders how many other inconvenient facts the drafters of the report chose to omit. And one begins to notice other tendentious passages. Most are accurate as far as they go. But their wording misleadingly intimates that the undoubted approval by top-level Bush administration officials of near-torture (if not torture) of a relatively small number of high-value detainees, and the undoubtedly widespread abuses of a great many more low-level suspects and wrongly detained innocents, were part of a grand and broad conspiracy to inflict sadistic torture and commit other illegal abuses.

Take the report’s conclusion that Defense Secretary Donald Rumsfeld’s December 2, 2002, authorization of aggressive interrogation techniques for use at Guantanamo, on the recommendation of then-Pentagon General Counsel William J. Haynes II, "influenced and contributed to the use of abusive techniques, including military working dogs, forced nudity, and stress positions, in Afghanistan and Iraq."

This is true to a point. And some criticism of Rumsfeld and Haynes is warranted. But the report’s language might also foster an impression, unsupported by the evidence, that Rumsfeld, Haynes, and other top officials intended to encourage the widespread, wanton abuse of prisoners that Abu Ghraib came to symbolize.

And although the report mentions waterboarding — the most notorious interrogation method used by the CIA — it glides past the fact that no military detainee was waterboarded because, on Haynes’s advice, Rumsfeld denied an October 2002 request from Guantanamo’s commander to authorize waterboarding by military interrogators.

Nor does the report mention the fact that in September 2002 and thereafter, leading congressional Democrats including Rep. Nancy Pelosi of California, now House speaker, raised no objection when briefed on waterboarding and other interrogation methods.

The report dismisses with scorn the Bush team’s view that terrorists were unprotected by the Geneva Conventions, while ignoring the fact that this view had deep historical roots and was defended by highly respected scholars.(The Supreme Court rejected this position in 2006.)

The overall effect of such selective reporting by many critics — including human-rights activists, authors, and commentators far less judicious than Levin — has been to paint honorable former and current officials as a bunch of sadistic war criminals. All of this feeds the deeply destructive clamor for "bringing criminal charges" — in the reckless words of a New York Times editorial — against Rumsfeld, Haynes, and perhaps others.

To the contrary, these were public servants seeking to protect the country from terrifying threats, who sometimes went to extremes that seem unwise to people (including me) who have the luxury of judging from the sidelines, with benefit of hindsight.

A closer look at the Levin committee’s treatment of Jonathan Fredman provides a window into the kind of unfairness to which many officials have been subjected.

Fredman’s supposed statements came during a discussion of aggressive interrogation techniques including sleep deprivation, death threats, and waterboarding at an October 2, 2002, Guantanamo staff meeting. During a brief visit to the prison camp, Fredman, then chief counsel of the CIA’s Counterterrorist Center, had been asked to advise about legal restraints on tough interrogations.

Levin’s much-publicized quotation, at a June 17 hearing, of the statement that "if the detainee dies you’re doing it wrong" came months before Fredman’s denial. But how hard did Levin and his staff try to check the accuracy of the allegation before the chairman condemned him?

Fredman’s denial was known to Levin’s staff, and presumably the chairman himself, when they issued the committee’s December 11 report. And there had been reason all along to wonder about the reliability of the document on which the panel relied, headed "Counter Resistance Strategy Meeting Minutes." One of the statements that the "minutes" attributed to Fredman, for example, was absurd on its face and obviously garbled: "In Turkey, they say that interrogation at all, or anything you do to that results in the subject betraying his comrades is torture."

But instead of acknowledging the shakiness of the "minutes" — and despite the fact that the first page states in bold type that "all questions and comments have been paraphrased" — the Levin committee’s report put Fredman’s supposed statements in quotation marks.

"I did not say the obscene things that were falsely attributed to me [by Levin] at the Senate hearing," Fredman told the committee in his November 17 memo. To the contrary, "I … emphasized that all interrogation practices and legal guidance must not be based upon anyone’s subjective perception; rather they must be based upon definitive and binding legal analysis from the Department of Justice; that DOD must ensure that its treatment of detainees is fully lawful and authorized by the military chain of command; … and that comprehensive investigations must be conducted should a detainee pass away."

(The memo was shown to me by a source outside the executive branch. When I called Fredman, he said that under CIA rules, he is not at liberty to comment.)

This is not to suggest that Fredman denies making all of the controversial statements attributed to him in the committee’s report. The report (and the "minutes") may well be accurate in stating that he had described the vaguely written criminal law against torture as banning only physical pain so severe as to cause permanent damage to major organs or body parts and mental pain so severe as to lead to permanent, profound damage to the senses or personality.

These statements — which might reflect badly on Fredman had he come up with them on his own — in fact came almost verbatim from the Justice Department’s advice to the CIA in an August 1, 2002, memo. That memo was widely attacked as extreme and shoddily reasoned (by me, among others) after it leaked in June 2004. But until it was repudiated by Justice in 2004, the memo was binding on CIA lawyers such as Fredman.

As for Fredman’s supposed statement that "if the detainee dies you’re doing it wrong," maybe Levin or his staff did not believe Fredman’s denial or decided that his exact words in 2002 were less relevant than his memo’s admission that he had raised the possibility of a detainee’s dying during interrogation.

That would be a fair point. But it was far from fair to attribute a horrifying statement to a career CIA professional without mentioning his denial that he had ever made it.

This article appeared in the Saturday, January 10, 2009 edition of National Journal.

The post Inconvenient Facts And Detainee Abuse appeared first on Stuart Taylor, Jr..

• 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.

The flawed legal premise is the view that waterboarding — pouring water over a bound prisoner’s nose and mouth to induce a desperate sensation of drowning — was so obviously illegal torture that those responsible for the practice should be held legally accountable.

I have previously suggested that waterboarding was probably torture. But I am less confident of that opinion now than I was then. It can at the very least be plausibly argued (as detailed below) that if waterboarding is limited in duration and carefully controlled, it does not meet the 1994 law’s narrow definition of torture.

If I’m right about that, then it would be quite wrong, as Mukasey has said, to prosecute any of those involved. Not only were they trying to save innocent lives by gaining vital intelligence, they were also acting in reliance on the Justice Department’s advice that waterboarding was legal.

It would also be wrong, in my view, to subject the lawyers who gave that advice to professional discipline or disbarment, as critics — including my friend Harvey Silverglate, a distinguished Boston civil-liberties lawyer — have suggested, absent evidence not only of excessive zeal but also of deliberate dishonesty.

To be sure, the Justice Department’s original, now-infamous August 1, 2002, "torture memo," which maintained that the president had illimitable power to authorize even the most egregious forms of torture, was so widely, and properly, denounced as extreme and indefensible that the administration declared it inoperative soon after it leaked in June 2004.

But the authors of that memo were far from alone in concluding that waterboarding was legal. A substantial number of other, more respected lawyers in the Justice Department, in the CIA, and on the National Security Council also endorsed that conclusion, as did the December 2004 memo that superseded the original torture memo’s interpretation of the 1994 law. The later memo, written by acting Assistant Attorney General Daniel Levin, was welcomed fairly extensively as a sound legal analysis. At the time, few objected to Levin’s crucial footnote endorsing the legality of the coercive interrogation techniques (without identifying them) that the CIA had previously used. News reports had identified waterboarding as one of those techniques. The White House and the CIA reportedly insisted that Levin add the crucial footnote. He agreed after he had himself subjected to waterboarding as part of his research.

Meanwhile, several members of the congressional Intelligence committees, including Democratic Reps. Nancy Pelosi, now the House Speaker, and Jane Harman, raised no legal objection when they were briefed on the CIA’s use of harsh techniques, including waterboarding. (Harman did raise a policy objection.)

How could so many lawyers and other officials fail to appreciate the commonsense view — embraced in decades and centuries past by authorities in the U.S. and elsewhere — that simulated drowning is torture? Because interpreting a criminal law requires close attention to exactly what it says, not what it should say.

The 1994 law’s extraordinarily narrow definition of "torture" is critical to understanding why a reasonable lawyer could declare waterboarding personally "repugnant," as did Mukasey during his confirmation hearing, while at the same time believing that if it is short in duration and carefully controlled, it is not necessarily "torture."

The 1994 law, which Congress adopted to enforce a United Nations convention, defined torture as an act "specifically intended to inflict severe physical or mental pain or suffering" on a prisoner.

Does waterboarding inflict severe physical pain or suffering? That depends on the inherently elastic meaning of "severe." Waterboarding is clearly more severe than (say) a single face slap. But it is clearly less severe than (say) yanking out a prisoner’s fingernails. The fact that the military has long waterboarded its own soldiers in training to teach interrogation-resistance techniques cuts against the idea that it inflicts severe physical suffering.

I also suspect that many a lawyer’s interpretation of "severe" might turn on how close in time his decision was to a terrorist mass murder that he fears could soon be repeated. Just as gravity bends light, the need to prevent a catastrophe bends judgment on such subjective questions. And it should.

Waterboarding surely inflicts "severe mental pain or suffering," as most people understand those terms. But Congress further narrowed the usual meaning of "severe" in this context to include only "the prolonged mental harm caused by or resulting from … the threat of imminent death" or mind-altering substances.

This definition probably does not include waterboarding, for two reasons. First, a hardened terrorist such as Khalid Shaikh Mohammed was presumably aware that his interrogators wanted to get him to talk, not kill him. Second, while a dozen near-death waterboarding sessions in the space of a day might cause "prolonged mental harm," the CIA’s waterboarding of the three Qaeda leaders was reportedly quite limited in duration. Nor was prolonged mental harm what the interrogators "specifically intended."

Am I resorting to minute legalisms to bless repugnant conduct? No. I am interpreting a criminal law whose drafters deliberately defined torture very narrowly. The point is that we should not prosecute (or disbar) people for relying on the law as it is written — especially when their underlying motivations were to obtain intelligence that might save innocent lives.

Looking to the future, the question is whether Congress should clearly specify that waterboarding and similarly brutal interrogation techniques are crimes. My answer is yes, subject to the special presidential waiver for emergencies outlined in my December 15, 2007, column.

Currently the law in this area is a mess: The 1994 statute’s definition of torture is too vague, as illustrated above. So is the McCain amendment to the December 2005 Detainee Treatment Act; when read together with the relevant case law, it prohibits only interrogation techniques that "shock the conscience." And it includes no criminal penalties. The interrogation provisions of the Military Commissions Act of 2006 do provide criminal penalties but are also quite vague.

Congress lurched to the opposite extreme by adopting a rider to the pending intelligence authorization bill (again, without criminal penalties) that would bar the CIA from using any interrogation technique not authorized in the Army field manual’s rules for military interrogators. The media have suggested — and most members of Congress may mistakenly assume — that this would ban only waterboarding and other extreme techniques. But in fact, as explained in my December 15 column, it would also ban any and all techniques that "threaten or coerce" prisoners in any way, such as angry shouting or bluffing to scare a prisoner into thinking that he might be physically abused.

President Bush has vowed to use his veto to block this provision. And it appears that the interrogation rules will remain a mess until the next administration, which should push Congress to clarify the rules.

More important than the details is that new legislation come as close as possible to embodying a national consensus on what the rules should be. To that end, the presidential candidates should move beyond rhetorical posturing about torture and specify what (if any) legislation they will propose if elected.

The post Opening Argument – What to Do About Waterboarding appeared first on Stuart Taylor, Jr..

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.

In a 2004 book titled The Interrogators, for example, co-author Chris Mackey, who conducted Army interrogations in Afghanistan, condemned torture but detailed how "the harsher the methods we used — though they never contravened the [Geneva] Conventions, let alone crossed over into torture — the better the information we got and the sooner we got it."

To be sure, the Bush administration has shown that it cannot be trusted to respect the current legal prohibitions on torture and near-torture. And it is past time for Congress to adopt more-specific restrictions. It is also understandable that many in Congress — now in an uproar over the CIA’s destruction of videotapes of earlier torturous interrogations — are tempted to prevent evasion of the law by simply banning coercion.

But it would be irresponsible in the extreme for Congress to do this. And Bush is right to threaten a veto.

It does make a great deal of sense to prohibit military interrogators from using even those coercive methods that are clearly allowed by criminal and international law. But it makes little sense to impose the same restrictions on the CIA.

The military holds tens of thousands of prisoners in occupied Iraq and in Afghanistan. Most are small-fry with little or no useful information. Most also qualify for the kid-glove treatment required by the Geneva Conventions for citizens of occupied countries as well as for uniformed POWs. In addition, low-ranking personnel, who have much less professional training and supervision than CIA interrogators, are often the ones who conduct military interrogations. This helps explain the catastrophic breakdown of discipline exposed by the Abu Ghraib torture photos.

These are among the reasons why the military has traditionally imposed elaborate restraints on its interrogators and why, after intense internal debate, Pentagon General Counsel William Haynes approved amendments to the Army field manual in September 2006 that made these restraints more exacting than ever before.

The CIA, on the other hand, has a small cadre of highly trained professional interrogators operating far from combat zones and under close supervision. These attributes provide some insurance against the admittedly grave danger that individual interrogators will get carried away and, for example, freeze a detainee nearly to death when they had been authorized only to keep him uncomfortably cold during a two-hour session.

That’s why the CIA gets custody of only the relatively small number of terrorist leaders, none of them POWs, who seem most likely to have potentially lifesaving information. Since 9/11, for example, the CIA has used "enhanced" interrogation techniques on only about 30 detainees.

The expectation that the CIA would handle tough interrogations of high-value captives informed both the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, in which Congress codified the Army field manual’s restrictions on military interrogations while imposing much looser, and vaguer, restrictions on the CIA.

The current push to subject the CIA to the same restraints as the military may reflect congressional unawareness of just how restrictive the new Army field manual is. It not only prohibits practices that violate international or criminal law, such as waterboarding, mock executions, inducing hypothermia, electric shock, and burns. It also prohibits any technique other than those on a list of 19 that allows various forms of trickery but excludes threats, intimidation, an unfriendly poke in the chest, and much more.

Consider Section 8-35. The heading, "Emotional Fear-Up Approach," sounds ominous. But the section specifies that an interrogator "must be extremely careful that he does not threaten or coerce" a detainee or "act as if he is out of control or set himself up as the object or focal point of the [detainee’s] fear."

If Congress binds the CIA to provisions such as this, it will not only be prohibiting a light slap in a Qaeda leader’s face; it will also be prohibiting a threat to slap him. This, even though threats clearly fall outside the legal definition of torture, with the exception of threats specifically intended to cause fear of "imminent" death and "prolonged" mental harm.

Does Congress really want to make it unlawful for the CIA to threaten to slap Osama bin Laden (if he is captured) in the face? Or to put him through the indignity of being served MREs until he cooperates?

This is not to say that the CIA should be free to subject all its detainees to any and all interrogation methods short of torture, and of the "humiliating and degrading treatment" prohibited by Common Article 3 of the Geneva Conventions. But the CIA should be able to come a lot closer to that line than the military.

So instead of binding the CIA to the Army field manual, Congress should require it to make public its own list of permitted and prohibited interrogation techniques, perhaps with a classified appendix to avoid giving terrorists a road map for resisting. Congress should then codify the CIA manual as law, with any changes that Congress may consider necessary.

This CIA manual should allow yelling, threats, and other intimidation techniques that clearly do not rise to the level of torture or violate Geneva’s Common Article 3.

Leading experts on the laws of war have also suggested persuasively that Congress should make a special provision for emergencies, allowing the president to authorize specified interrogation techniques for specified detainees that may violate Geneva — but not the torture ban. To ensure political accountability, the president should be required to give the Intelligence committees a written finding detailing both his justifications and the authorized techniques.

What about the hypothetical "ticking bomb" scenario, or other dire circumstances in which illegal torture appears to be the only chance of averting catastrophe? Consider former CIA interrogator John Kiriakou’s astonishing account in interviews aired by ABC News on December 10 and published in the next day’s Washington Post.

Captured Qaeda lieutenant Abu Zubaydah successfully resisted various high-pressure interrogation tactics for weeks in 2002. Then the CIA waterboarded him. He broke after about 35 seconds, and soon was sharing information that, Kiriakou claimed, may have disrupted dozens of attacks and saved many lives.

But as Kiriakou added, the waterboarding also probably amounted to torture. So unless we choose to disregard Kiriakou’s account, we have five choices in cases such as this: 1) We should evade the law by pretending that this was not torture, as Bush has done; 2) We should make torture legal in such cases; 3) We should imprison the interrogators (or the superiors who gave them orders) for crimes, on the ground that they should have stood by and waited for the possibly preventable mass-murder attacks that they expected; 4) We should imprison them for crimes even if we think they did the right thing; 5) The president should pardon them.

I would choose Option 5. But the question now before Congress is much, much easier: Should it be illegal for CIA interrogators even to threaten the likes of Zubaydah with waterboarding, or with any unpleasantness at all?

The post Opening Argument – Interrogation: Anti-Bush Overreaction appeared first on Stuart Taylor, Jr..

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.

The administration (which plans to appeal) says yes, citing the Military Commissions Act of 2006. The Richmond-based U.S. Court of Appeals for the 4th Circuit correctly said no, for reasons well explained in the unanimous portion of Judge Diana Gribbon Motz’s 77-page opinion.

The hard issue is whether suspected Qaeda members who are arrested after legally entering this country—such as al-Marri and (had they been caught) most of the 9/11 hijackers—can be detained for more than a week at all, without the full protections of the criminal process.

Judge Motz (joined by Judge Roger Gregory) makes a plausible (although debatable) legal argument that a never-used, largely forgotten provision of the October 2001 USA PATRIOT Act, as well as judicial precedents and the international law of war, forbids detention of Qaeda suspects in the U.S. without criminal charges for more than seven days, or until they can be deported.

The Motz opinion also provides a chilling explanation of how any decision upholding the administration’s due-process-free detention of al-Marri "would effectively undermine all of the freedoms guaranteed by the Constitution," by putting all foreign visitors at risk of being militarily seized and indefinitely imprisoned on weak or nonexistent evidence, and by going some distance toward exposing all U.S. citizens to the same risk.

On the other hand, Motz’s suggestion that the criminal-justice system can safely deal with such people is unconvincing. In fact, that system is ill-equipped to handle any future waves of Qaeda attacks on American soil.

To be sure, Americans have become a lot less worried about such attacks during the nearly six years since 9/11. And it’s true that the administration has found the criminal process adequate to deal with other Qaeda suspects; al-Marri is the only one arrested in the United States who is now known to be militarily imprisoned.

But how will the Motz ruling look in hindsight if and when Americans are mass-murdered by the thousands again, or if—as seems all too possible—Islamist terrorists get their hands on a nuclear device or lethal germs?

Suppose, for example, that after a series of bombings in Chicago, Washington, and Los Angeles, an anonymous tipster tells the FBI that five Saudi biology students have assembled a large supply of lethal anthrax in two New York City apartments and are planning a massive attack on that city’s subway system. The informant also gives the address of one apartment. With no time to get a warrant, FBI agents break into the apartment, arrest two Saudis, and find lots of anthrax and Qaeda literature.

Under Judge Motz’s logic, both men would have to be released or deported unless criminally charged within a week—but they could not be criminally charged because the warrantless search would clearly have been illegal. And if (as Motz implies) the captured suspects must immediately be given Miranda warnings and lawyers, that would torpedo any hope of using aggressive interrogation to find their co-conspirators before they launch an anthrax attack.

And consider al-Marri himself. He arrived in this country the day before the 9/11 attacks. The government claims to have evidence that he trained under Osama bin Laden in Afghanistan; sent e-mails to Khalid Shaikh Mohammed, the mastermind of the 9/11 attacks; volunteered for a "martyr mission"; received funds from a Qaeda financier; did research on chemical weapons; frequented jihadist Web sites; and was sent to the U.S. to explore computer-hacking methods to disrupt financial institutions.

If al-Marri had been arrested on, say, September 15, 2001, and seen as part of a wave of possibly imminent follow-on attacks, wouldn’t we have wanted the government to hold and interrogate him for at least a couple of weeks without requiring that defense attorneys—whose customary tactic is to zip their clients’ lips—be in the room?

Judge Motz specifically asserts that it is illegal for the government to detain a suspect such as al-Marri indefinitely "in order to interrogate him without the strictures of the criminal process." This was an understandable response to the Bush administration’s incommunicado interrogation of al-Marri in a South Carolina Navy brig for 16 months, with no contact with his wife, children, or lawyers. Al-Marri has plausibly alleged that he was subjected to extreme sensory deprivation and threatened with being sent to Egypt or Saudi Arabia to be tortured, sodomized, and forced to watch his wife being raped.

But to the extent that the Motz opinion would forbid, say, two weeks of incommunicado interrogation—using methods that are aggressive but stop short of torture and near-torture—Congress should explicitly authorize such detention and interrogation, as part of a comprehensive rethinking of how to handle captured terrorism suspects.

The Motz opinion also implies a legal equivalence between Qaeda terrorists and domestic terrorists "like the Unabomber or the perpetrators of the Oklahoma City bombing" in 1995 that killed 168 people. But Al Qaeda, which murdered 3,000 Americans on 9/11 and openly seeks to murder millions more with nuclear and biological weapons, has both the intention and the capability to inflict harm dwarfing the threat from any domestic group, and from most foreign nations as well.

The logic of the Motz ruling that "military detention of al-Marri must cease" applies, she specified, only to suspects who have substantial ties to the United States and are seized within its borders, not to those now detained at Guantanamo and elsewhere overseas. She stressed that the government has never alleged that al-Marri "is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world." This, Motz stressed, made him an ordinary civilian—not an enemy combatant—under Supreme Court case law and the international law of war.

Dissenting Judge Henry Hudson, who usually sits on a U.S. District Court in Virginia, countered that al-Marri "is the type of stealth warrior used by Al Qaeda to perpetrate terrorist acts against the United States," and thus was a target of Congress’s September 2001 authorization for the president to "use all necessary and appropriate force" against "nations, organizations, and persons" involved in the 9/11 attacks.

The majority and dissenting opinions are both reasonable interpretations of ambiguous laws and precedents. Other judges will also disagree. The best resolution would be for Congress to create a new national security court for such cases and equip it with detailed, congressionally adopted due process rules on all aspects of detention and interrogation. (See my February 24 column.)

Congress ducked these hard issues when it passed the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006. As a result, neither law came close to devising a process that is fair in the eyes of world opinion. This helps explain why world opinion is now so hostile to America—and why it may be getting harder for us to get our hands on bad guys in the first place.

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These are among the reasons that Congress and the Supreme Court are moving toward reining in the Bush administration’s gratuitously harsh and arbitrary treatment of suspected enemy combatants. Better late than never.

Bush and his people — especially Vice President Cheney and David Addington, who is Cheney’s powerful legal counsel and (now) chief of staff — have insisted on wielding dictatorial powers, without due process, over possibly innocent detainees around the world. They have sought to prosecute some before "military commissions" that have, so far, made a mockery of fairness. They have helped cause the unwarranted abuse of thousands, and the torture of many, by belittling the Geneva Conventions and other long-standing legal limits on interrogation; by resisting proposals for preventing abuse from military lawyers and members of Congress; by sowing confusion among our troops about how to treat detainees; and by suggesting that all of them are terrorists despite ample evidence that many are not.

Bush and Cheney have thereby done vast damage to our nation’s ideals and also to our national security. By driving countless new recruits into the arms of the jihadists, their policies on "enemy combatants" have, in my view, increased the likelihood that one or more major American cities will be obliterated by a nuclear truck bomb or boat bomb.

It’s past time to put these White House loose cannons under adult supervision. This should be supplied mainly by Congress, not the courts. And Congress should proceed with care, because broad executive power over detainees — perhaps including the recently publicized imprisonment of Qaeda leaders in secret locations abroad — is sometimes essential to defend against the grave threats that we face.

But Bush, Cheney, and company have shown that they cannot be trusted to make responsible use of the vast war powers that they claim. One result is, "America is the only country in the world that asserts a legal right to engage in cruel and inhumane treatment," in the devastating words of Sen. John McCain, R-Ariz., who was tortured as a prisoner in North Vietnam.

To be sure, the administration does acknowledge (contrary to many news reports) that it is bound by the flat ban on "torture" in the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which defines torture as intentional infliction of "severe" pain or suffering.

But Addington and then-White-House Counsel Alberto Gonzales helped inspire an August 2002 Justice Department memo redefining "torture" so narrowly, and presidential power so broadly, as to legalize all forms of brutal interrogation. The leaking of that memo last year shamed Gonzales into backing away from it.

The administration has not backed away from its claim that it has the legal right to use interrogation techniques just short of torture — including what the U.N. Convention calls "cruel, inhuman, or degrading treatment" — on any and all foreign prisoners held overseas.

This widely disputed interpretation may be technically defensible. But past presidents have taken care to honor the spirit as well as the letter of treaty obligations regarding treatment of prisoners. This president has insisted on the narrowest possible interpretations.

One result of all this has been to spawn "so many differing legal standards and loopholes that our lawyers and generals are confused," in McCain’s words. Another has been to invite — or, at least, create the appearance of inviting — the seemingly endless stream of prisoner-abuse scandals since the repugnant Abu Ghraib photos hit the front pages 18 months ago.

Thus has Bush thrown gasoline onto the flames of anti-Americanism worldwide and alienated many who want to be America’s friends.

It was welcome news, therefore, when on November 7 the Supreme Court announced over strenuous Bush administration objections that it will review a challenge to the legality of Bush’s military commissions. This review is arguably premature, since the military commissions have not yet convicted, or acquitted, anyone. And the case does not involve interrogation practices. But the justices seem to have figured out that Bush and Cheney need to be whacked with a two-by-four at every opportunity to remind them that they are not above the law.

This is not necessarily to suggest that the Court should strike down the military commissions; independent experts disagree about that. But the Court should at least require fair procedures.

Still more welcome has been the drive by McCain and his allies — including Sens. Lindsey Graham, R-S.C., and John Warner, R-Va., who is chairman of the Armed Services Committee — for congressionally imposed rules against mistreating detainees. One provision would limit the military, but not the CIA, to the interrogation techniques spelled out in the Army Field Manual. The other would bar "cruel, inhuman, or degrading treatment," by either the CIA or the military, of detainees anywhere in the world.

The Senate attached these provisions to a Pentagon spending bill by a resounding 90-9 vote, over a rare Bush veto threat and over the impassioned opposition of Cheney, who is now lobbying to exempt the CIA. These provisions, endorsed by retired military leaders including Colin Powell and Gen. John Shalikashvili, and by some widely respected former CIA officials, would not and should not ban all aggressive interrogation.

The Army Field Manual, for example, allows techniques such as "fear up harsh," including "a loud and threatening voice" and "throw[ing] objects across the room to heighten the source’s implanted feelings of fear."

The CIA’s carefully trained interrogators would retain still greater latitude, but with firmer guidance than they appear to have received so far from the White House or the Justice Department. While torture is always illegal, a reservation specified by the Senate when it ratified the Torture Convention in 1994 defines "cruel, inhuman, or degrading treatment" as barring only interrogation techniques so brutal as to violate the U.S. Supreme Court’s constitutional rulings against doing things to prisoners that "shock the conscience."

This standard, though vague, is said by experts to codify as law for the first time the commonsense principle that the toughness of interrogation techniques should be calibrated to the importance and urgency of the information likely to be obtained.

Some very aggressive techniques would not "shock the conscience" if used on that small percentage of detainees who seem especially likely to have potentially life-saving information. But those same techniques would shock the conscience if used to squeeze less-valuable information out of less-important detainees, such as all or most of those in the Abu Ghraib photos.

Even if, as some claim, the McCain proposal would not ban any interrogation techniques currently in use, it would send a much-needed symbolic message to our troops, our CIA interrogators, our citizens, our allies, and our enemies: Congress will no longer allow this president to stain our national honor by morally bankrupt leadership on treatment of detainees.

It is Congress, after all — not the president — that the Constitution empowers "to define and punish … offenses against the law of nations [and] make rules concerning captures on land and water [and] for the government and regulation of the land and naval forces."

Yes, the president, as commander-in-chief, should not be unduly hobbled by legal rules. But does Bush really want to stand before the world and insist that he needs a license to do things to detainees that "shock the conscience"?

If he does, then let Bush seek an emergency exception to the McCain proposal, authorizing the president to approve, in writing, specified techniques for interrogating any individual whom he certifies to be highly likely to have information that could be used to prevent a planned attack. And let him stop passing the buck to low-level interrogators and guards.

In McCain’s words, "We placed extraordinary pressure on them to extract intelligence from detainees, but then we threw out the rules that our soldiers had trained on and replaced them with a confusing and constantly changing array of standards…. And when things went wrong, we blamed them, and we punished them. I believe we have to do better than that." 

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