August 28, 2009

August 28, 2009 | Commentary on Legal Issues, Terrorism

Dust-Up: Torture and the CIA: Investigate White House Higher-Ups?

Policymakers must be held accountable
Point: David Kaye

intelligence officers were merely the tip of the spear in the Bush administration's interrogation program. If the CIA inspector general's report accurately reflects events, some of these officers likely violated the criminal statutes prohibiting torture. Even those who acted "in good faith reliance" on guidance from the U.S. Department of Justice took actions -- such as waterboarding and other cruel, inhuman techniques -- that are inconsistent with U.S. and international law.

Still, someone held that spear; interrogators acted neither alone nor seemingly at their own initiative. The CIA report shows that agency officers continually sought guidance from above. Agency lawyers "consulted extensively with Department of Justice (DOJ) and National Security Council (NSC) legal and policy staff." One heavily redacted CIA "business plan" from 2003, released earlier this week, notes that "U.S. Government decision makers have a positive view of the program, and there is pressure to increase [high-value targets] Interrogation Program capabilities in the shortest time possible."

A Senate Armed Services Committee report made this point last year: "The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees."

Think of it this way: Weren't it for the policies and legal decisions that resulted from the White House's demand for aggressive measures against detainees, illegal interrogations as a matter of policy would not have occurred. Given all that we have learned over the last several years, does anyone seriously doubt that senior officials in the Bush administration "owned" the program? Or that the program was authorized by the White House, probably by President Bush and Vice President Dick Cheney? Or that the program involved violations of practically peremptory norms of international and domestic law?

Some argue that reviewing the decisions of those who held and manipulated the spear -- and not just those at its tip -- would be to criminalize policy differences. I reject that, although I do recognize that prosecutions of senior Bush administration officials could be disruptive politically and very difficult practically. Though criminal investigation would be the ideal approach, there are options other than prosecutions, such as the kind of "truth commission" proposed by Sen. Patrick Leahy (D-Vt.).

It's immaterial to me whether Justice Department prosecutor John Durham is granted authority to investigate senior officials as his "preliminary review" unfolds, Atty. Gen. Eric J. Holder Jr. appoints a special counsel to do the same thing, or some other mechanism is identified for that purpose. What is important is that senior policymakers account for their actions and, if they violated the law, be held accountable, demonstrating America's rejection of torture.

We are, after all, still a nation of laws.

David Kaye, a former State Department lawyer, is executive director of the International Human Rights Program at the UCLA School of Law.


Enhanced interrogation has worked
Counterpoint: Robert Alt

First, David, I need to address your claim from Wednesday, "Nothing in any of the reports released over the last several years ... demonstrates that unlawful interrogation techniques (such as waterboarding, the use of which Dick Cheney calls a 'no-brainer') have made us safe." Your debatable conclusion about the unlawfulness of the techniques aside, this statement is plainly false. Reports issued to date repeatedly note the success of the interrogation techniques at procuring intelligence that prevented attacks.

Indeed, the sentences immediately preceding the part of the CIA "business plan" you quote refute your claim:

"Results from the first Al Qaeda [high value target] interrogated using the aforementioned enhanced techniques [including waterboarding], Abu Zubaydah, have been outstanding. ... The interrogation team has produced [redacted] actionable intelligence disseminations from Abu Zubaydah. This has ultimately led to some instances of the U.S. Government being able to neutralize Al Qaeda capabilities worldwide before there was an opportunity for those capabilities to engage in operations harmful to the United States."

The inspector general's report likewise states that "the Agency's detention and interrogation of terrorists has provided intelligence that has enabled the identification and apprehension of other terrorists and warned of terrorist plots planned for the United States and around the world." And footnotes in the 9/11 Commission Report contain more than 100 references to information obtained from Khalid Shaikh Mohammed following his waterboarding -- information credited with thwarting an attack on the tallest building in Los Angeles.

We can have a serious debate about the prudence or legality of using enhanced interrogation techniques. But claims that the interrogation techniques didn't work, or didn't produce information that kept America safe are sufficiently refuted at this point as to fall outside the boundaries of that debate.

And -- shifting to today's topic -- we should have a serious debate.

That means dispensing with claims that Bush administration decision-makers clearly committed crimes. Indeed, David, you concede some measure of this in hedging your claim that the interrogation methods violated, as you put it, "practically" peremptory norms of international and domestic law.

Even if one assumes that peremptory norms are in some way self-executing, and even if torture is a peremptory norm, you no doubt recognize, as I stated Wednesday, that what constitutes torture is subject to differing interpretations. This is why we have lawyers at the Department of Justice to offer their interpretations of which acts fall on what side of the line. You may disagree with their conclusions, but reputable criminal law professors and ethics professors agree that even if their legal judgment was erroneous, they didn't commit any crimes. We should not be criminalizing differences of opinion.

As for the prospect of a "truth commission," even leaving aside the risk that it would devolve into show trials, the probability of Congress convening one is somewhere around nil. After all, any examination into the interrogation practices would necessarily shed light on the roughly 30 briefings that members of Congress (including House Speaker Nancy Pelosi) received on waterboarding and other interrogations techniques in 2002 and 2003 -- in which the question asked by the members was whether the tactics were tough enough, not whether they went too far.

If we begin criminalizing disagreements, I am sure that there will be more than enough blame to go around in the previous administration -- and for future administrations as well.

Robert Alt is a senior legal fellow and deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation.

About the Author

Robert Alt Visiting Fellow
Edwin Meese III Center for Legal and Judicial Studies

Related Issues: Legal Issues, Terrorism

First Appeared on the Los Angeles Times