Tortured Arguments
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REVIEW & OUTLOOK
Friday, June 25, 2004 12:01 a.m.
The good, if under-reported, news is that the pile of documents released by the Bush Administration this week effectively rebuts the charges of "torture" that have been flying around. While White House and Justice Department lawyers did explore the legal limits of permissible interrogation techniques--something it would have been irresponsible not to do after 9/11--it turns out that none of the practices actually authorized even comes close to the abuses depicted in the photos from Abu Ghraib prison.The bad, and entirely ignored, news is that our most deadly enemies now know where the U.S. will draw the line should they fall into American hands. Worse, in disavowing an August 2002 memo from the Justice Department's Office of Legal Counsel that wrestles with the definition of "torture," the White House has hung a few very fine lawyers out to dry and ensured a hypercautious approach to advice that could very well hamstring future antiterror efforts.
The incentive from now on will be for lawyers to provide internal counsel along the lines of former Deputy Attorney General Jamie Gorelick's infamous 1995 memo instructing FBI agents and federal prosecutors to go "beyond what the law requires" in limiting their collaboration against al Qaeda. We trust the folks who've forced this retreat stand ready to offer their mea culpas to the commission investigating the next major terrorist attack on the United States.
Some of our media colleagues are painting the document release as insufficient, perhaps because they've been given nothing to support their innuendo that there was some kind of connection between the Geneva Convention status of prisoners at Guantanamo Bay, Cuba, and the incidents at Abu Ghraib.
It was always unlikely of course that the likes of alleged abuse ringleader Charles Graner and Private Lynndie England were even aware of the Guantanamo detainees' legal status. And the idea that a classified legal debate to which only a handful were privy could have "set the tone" or "created the climate" for anything at all defies logic. True, Major-General Geoffrey Miller visited Iraq from Guantanamo last summer to advise on interrogations. But if he's the missing link in the alleged "culture of permissiveness," why didn't abuses happen in his own jail too?
What matters are the actual policies authorized by Secretary Rumsfeld and his commanders, and the memos show that the Defense Department has been as consistent privately as it has been in public that Afghanistan and Iraq were different conflicts to be fought according to different sets of rules. Captives from the former were denied prisoner of war status for the solid legal reasons that neither al Qaeda nor Taliban detainees met such Geneva criteria as fighting in uniform and belonging to an army that was itself committed to upholding the laws of war. In Iraq, Defense said from the start that Geneva protections for POWs and civilians did indeed apply to most detainees.
We realize that making any distinction at all between legitimate POWs and unlawful combatants is controversial in some quarters--which unfortunately seems to include the International Committee of the Red Cross. But this is a policy dispute and the media should treat it as such, rather than go along with attempts to conflate unrelated issues such as whether a detainee is being accorded POW status and whether he is in fact subject to overly coercive interrogation.
Far from fostering an anything-goes culture at Guantanamo, it turns out that in December 2002 Mr. Rumsfeld actually rejected a number of proposed techniques as too harsh. They included suggestions of imminent death or severe pain, and actions "to induce the misperception of suffocation." He did approve the removal of prisoners' clothing, only to rescind the approval the following month. That's a long way from authorizing the piles of naked prisoners photographed by one unit at Abu Ghraib.
The bottom line is that everything we've learned over the past month supports the assessment that the Abu Ghraib abuses were an aberration caused by a few bad apples and enabled by poor command leadership. And many of the appropriate lessons seem already to have been drawn.
Major-General Antonio Taguba is probably right that military police should never have been involved in the interrogation of such detainees. Brigadier-General Janis Karpinski may also have a point that there were simply too many prisoners at Abu Ghraib for the number of MPs she had to handle. But there remains no evidence that anyone told Specialist Graner to do what he allegedly did, and there is no doubt that what he is accused of violated stated DOD policy. Should this picture change during the courts martial to come, we'll be among the first to take note. Reports yesterday that two military intelligence officers may face charges in the suffocation death of an Iraqi general also bear watching.
A further word on that August 2002 Justice memo is order, since it complicates the argument of those who want to locate blame for a "culture of permissiveness" in the office of the Secretary of Defense. In fact, the lawyers at the Office of Legal Counsel went as far as they did in the memo--including questioning the constitutionality of a U.S. anti-torture statute--because they were asked to do so by Attorney General Ashcroft.
And we are told by reliable sources that Mr. Ashcroft in turn was responding to a direct request from the CIA, whose officers wanted absolute immunity with respect to their own interrogations. We are further told that the National Security Council was also aware of and sanctioned this request. No doubt everyone can now claim that the arguments in the memo were at the least politically tone deaf. But blaming them on rogue Justice lawyers or the Defense Department is rewriting history.
Instead of repudiating its own lawyers, Bush officials would be better off explaining that what they are trying to do is the very difficult and complicated business of protecting a free society that believes in the rule of law from terrorists who believe in neither.
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