I have been struggling with the issue of harsh interrogation of terrorists for some time, and doing a little reading, and I have come to some conclusions. First of all here are some initial stipulations:
- We are not talking about rounded up terrorism suspects, who may or may not be terrorists. We are talking about known committed leaders, who almost certainly have information that we need.
- We are not talking about what we would like to do, but what we need to do.
- The issue is to differentiate between harsh interrogation methods, which are useful and acceptable, and torture.
There are those who believe harsh interrogation methods should never be used, and for those people, this discussion will have little significance.
The Geneva Convention is an agreement among nations, and al Qaeda and the Taliban are not nations or parties to the treaty. Also, the treaty is intended to apply to nations at war in a more conventional sense. Terrorists do not fall into that category. Therefore the subjects are not “prisoners of war”. So the primary issue is which techniques are permissible under U.S. Law, rather than the Convention.
On August 1, 2002, Jay S. Bybee, Assistant Attorney General in the Office of Legal Counsel, wrote a memo to Alberto R. Gonzales, Counsel to the President. It has been widely criticized, but it bears reading. The question is what sorts of harsh interrogation methods would violate Section 2340A of the United States Code, which prohibits torture. He discusses the issue from the following standpoints:
- US Criminal Law
- The UN Convention Against Torture
- US Civil Case Decisions
- International Decisions
- Constitutionality issues
- Other defenses, or justifications, such as self-defense
Bybee analyzes a variety of sources, including the law itself, dictionary definitions, U.S. and international case law, and our Constitution . The documents support the conclusion that certain methods or acts may be “cruel, inhuman, or degrading”, but not all such acts fall within the definition of torture. He documents the position that “… torture is not the mere infliction of pain or suffering on another, but is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in significant body function will likely result. If that pain or suffering is psychological, that suffering must … cause long-term mental harm.”
In other words, torture must be extreme cruel, inhuman, or degrading treatment. Anything less falls outside the definition.
Jay Bybee wrote or signed another memo on the same day. In this case he was advising John Rizzo, Acting General Counsel of the CIA on how to proceed in the interrogation of Abu Zubaydah, a high-ranking al Qaeda operative. Specifically, the memo addresses whether any of the methods proposed would violate Section 2340A.
The actions proposed by the CIA were:
- Attention grasp
- Facial hold
- Facial slap (insult slap)
- Cramped confinement
- Wall standing
- Stress positions
- Sleep deprivation
- Insects placed in a confinement box (non-biting)
- The waterboard
The memo restates detailed descriptions provided by the CIA for each of procedures. There is no beating, shocking, burning, wounding, threat of death, or similar activity in the list. Methods for assuring the safety of the subject are described. The memo also states that over 10,000 of our own people have gone through SERE (Survival, Evasion, Resistance, Escape) training, which includes all of these techniques, including waterboarding , except #9, the insect. Only two people have dropped out, and none have had any lasting physical or psychological effects. The memo goes on to describe various avenues of investigation that showed that none of these techniques produce lasting effects.
The memo concludes than none of the techniques proposed would violate Section 2340A, which prohibits torture.
So what does all of this mean? It certainly means different things to different people. From what I have observed on television, the “extreme” part of the distinction has been lost by the press. As a compassionate, civilized person, one might automatically be against cruel, inhuman, or degrading treatment of anyone. However, when you consider that not using such methods may result in the death and injury of many others, the decision is not so easy.
Based on what I initially heard about the infamous Bybee memos on television, I was regretting that the statute of limitations had run out on him, and angry that he is now a judge. After actually reading them, I think he gives us a pathway to successful, legal harsh, interrogations.
Perhaps waterboarding deserves special mention. From the very beginning I was never convinced that waterboarding is torture, in spite of the statements of some noted and respected people. Although you “feel” like you are drowning, you “know” you are not, and there is no particular pain, as I understand it, and there are no lasting effects. It seems like an ideal high stress interrogation method to me.
One is tempted to say that because these terrorists know no limits, and obey no rules as we know them, they deserve whatever they get. One might say that people who are willing to blow themselves up, or even worse, convince others to do so, in order to kill as many civilians as possible, deserve no limitations on their treatment. But, as despicable as their actions are in our eyes, we cannot measure our own behavior against theirs.
The bottom line is that we are dealing with highly motivated people determined not to give up the information we need to protect lives. Although we must not use torture, we need to have available every legal interrogation method that will work. I believe Bybee’s memos define those methods.