One distinction somewhat blurred in Heather Mac Donald’s limited defense of torture in City Journal is the distinction between what might be allowed for the CIA in “black box” interrogations of high-level Qaeda detainees, and the military’s general strict prohibition of inhumane treatment of detainees. This is an important distinction; but it was blurred almost immediately by the Bush administration itself. Marty Lederman has a must-read on all this. Here’s one important point:
I agree with MacDonald that the 2002 OLC Memo likely was not intended to affect interrogation policies in the military. But she is wrong to insinuate that the Pentagon was unaware of the OLC Memo, and to argue that the Memo had no effect on Pentagon policies and practices. Although I assume the Memo was originally intended for use by the CIA, the White House soon forwarded it to the Department of Defense, where huge portions of it were incorporated virtually verbatim in the DoD Working Group Report on Guantanamo interrogation techniques in early 2003 (even though the statute discussed in the OLC Memo did not even apply at Guantanamo during the period in question). Most notably, the Pentagon adopted wholesale the most indefensible and most dangerous portions of the OLC Memo-where OLC concocted unlikely criminal defenses of ‘necessity,’ ‘defense of nation,’ and ‘presidential authority,’ and where OLC argued that criminal laws restricting methods of interrogation are unconstitutional to the extent they impinge upon the President’s decisions of “what methods to use to best prevail against the enemy.’
Armed with these OLC assurances of virtually no legal exposure, the DoD Working Group itself concluded that these techniques were among those that are lawful under the restrictive laws governing military interrogations: placing a hood over detainees during questioning; 20-hour interrogations; four days of sleep deprivation; forced nudity to create a ‘feeling of helplessness and dependence’; increasing ‘anxiety’ through the use of dogs; quick, glancing slaps to the face or stomach; and the threat of transfer to another nation that might subject the detainee to torture or death.
These relaxed strictures can also swiftly evolve in chaotic or badly organized wars into something much worse. Which is what happened. When regular soldiers see prisoners dehumanized in this way as a legitimate policy, it is unsurprising that further improvisation occurs. Moreover, all of this is almost certainly illegal for the regular military. I’m sorry but there is a clear link between decisions made by Bush and what happened at Abu Ghraib. I don’t fully understand why Mac Donald ignores this, because, in some ways, what the administration did makes even the selective use of a few, strict coercive techniques in a handful of cases much less likely, as we go through what I hope is a backlash against this cruelty and chaos.
THE MIGRATION OF TORTURE: Moreover, whatever the intent of the White House, the Fay/Jones and Schlesinger reports specifically argue that the relaxed rules for the CIA “migrated” to Iraq, where the Geneva Conventions indubitably apply. Money Lederman quote on this latter point:
The reports explain in detail that the interrogators at Guantanamo, and the conflicting and confusing set of directives from the Pentagon for GTMO, ‘circulated’ freely to Afghanistan and then to Iraq (Schlesinger 9). Lieutenant General Sanchez, the commander of the Combined Joint Task Force in Iraq, approved techniques going beyond those approved for GTMO, ‘using reasoning’ from the President’s February 7, 2002 directive on unlawful combatants (id. at 10). The ‘existence of confusing and inconsistent interrogation technique policies,’ including a ‘proliferation of guidance and information from other theatres of operation,’ and the fact that personnel involved in interrogation in GTMO and Afghanistan ‘were called upon to establish and conduct interrogation operations in Abu Ghraib,’ all contributed ‘to the belief that additional interrogation techniques were condoned in order to gain intelligence’ (Jones 15-16; Fay 8, 10, 22). ‘The lines of authority and the prior legal opinions blurred’ (Fay 10), and ‘DoD’s development of multiple policies on interrogation operations for use in different theatres or operations confused Army and civilian Interrogators at Abu Ghraib’ (Fay Finding No. 7).
There is, then, a direct link between the memos approved by Bybee, Gonzales, Bush, Rumsfeld and others and what eventually took place (and is still taking place, so far as we know) in the war in Iraq. We don’t know the intent or motives of the original decisions. But we do know the consequences.
The Dish 