In Defense of Guantanamo Bay and Enhanced Interrogation Techniques

The mainstream media and international human rights organizations have relentlessly portrayed the Guantanamo Bay detention facility as a depraved torture chamber operated by sadistic American military officials defiling Islam at every turn. It’s the “gulag of our time,” wails Amnesty International. It’s the “anti-Statue of Liberty,” bemoans New York Times columnist Tom Friedman.

Located at the southeastern end of Cuba, Guantanamo Bay is the site of a U.S. Naval base that covers approximately 45 square miles. This base was established in 1898 when the United States assumed control of Cuba from Spain following the Spanish-American War. Since early 2002, a portion of the base has housed a small group of detainment camps for militant al Qaeda and Taliban combatants captured by the American military during its post-9/11 wars in Afghanistan and Iraq. These camps are named Camp Delta, Camp Echo, and Camp Iguana. A fourth facility, Camp X-Ray, ceased operations in April 2002. At one time, the Guantanamo detention center housed as many as 780 prisoners, most of whom hailed from Saudi Arabia, Yemen, Pakistan, and Afghanistan.

As Gordon Cucullu writes in The American Enterprise:

“These ‘detainees’ are not innocent foot soldiers … They are Islamic fundamentalists from across the Middle East, rabid jihadists who have dedicated their lives to the destruction of America and Western civilization. Among the residents are al-Qaeda organizers, bomb makers, financial specialists, recruiters of suicide attackers, and just plain killers. Many of these men met frequently with Osama bin Laden. The terrorist Maad Al Qahtani, a Saudi who is a self-confessed collaborator with the September 11 hijackers, is one of many infamous captives….

Sometimes abbreviated as GTMO or “Gitmo,” the Guantanamo military prison camps have drawn the ire of many leftwing human rights organizations which allege that the prisoners are being mistreated or tortured. In late 2001, a campaign began in earnest to permanently shut down Guantanamo. The individual most responsible for launching this campaign was Michael Ratner, President of the Center for Constitutional Rights (CCR).

Other leftist organizations followed the lead of Ratner and CCR in condemning the Guantanamo detention center. These critics objected to America’s use of an offshore prison, and to the unclear legal status of its detainees (who are classified as “illegal combatants” not entitled to Geneva Convention protections, rather than as prisoners-of-war or common criminals). The critics also claimed that the detainees were entitled to the protection of the constitutionally guaranteed civil rights given to prisoners who are incarcerated within the United States.

On May 25, 2005, Amnesty International characterized Guantanamo as “the gulag our times,” lamenting that it evoked “images of Soviet repression” and the practices of “Latin American dictators in the past.”

Other organizations involved in the coordinated attack on the Guantanamo detention center include the Guantanamo Human Rights Commission; the American Civil Liberties Union; the National Lawyers Guild; the Bill of Rights Defense Committee; Human Rights Watch; Human Rights First; the National Association of Criminal Defense Lawyers; the National Council of Churches; Solidarity USA; Not In Our Name; Code Pink for Peace; United For Peace and Justice; Global Exchange; International ANSWER; and Refuse & Resist!

Prominent members of the Democratic Party have also been among the leading critics of Guantanamo. For example, in April 2007 Senator Hillary Clinton called for the closure of the detention center, stating:

“Guantanamo has become associated in the eyes of the world with a discredited administration policy of abuse, secrecy, and contempt for the rule of law. Rather than keeping us more secure, keeping Guantanamo open is harming our national interests.”

On June 14, 2005, Senator Richard Durbin went to the floor of the Senate and compared American interrogation techniques in Guantanamo to methods used by some of the most brutal totalitarian regimes in history. After reading an account which claimed that detainees were being held in rooms that were either too cold or too hot, and where loud rap music was being played, Durbin said:

“If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime — Pol Pot or others — that had no concern for human beings. Sadly, that is not the case. This was the action of Americans in the treatment of their prisoners.”

A number of the Guantanamo detainees alleging abuse have gone on hunger strikes. Their complaints include claims that they are kept in mesh-sided cells with little privacy; that lights are left on around the clock, making it difficult for them to sleep; that they are kept in isolation most of the time; that they are blindfolded when being relocated within the camps; that they are not permitted to talk in groups of more than three; that camp authorities disrespect Islam; and that they (the prisoners) are beaten, required to maintain uncomfortable postures for extended time periods, and forced to ingest so-called “truth drugs.”

In reality, all Guantanamo detainees are provided with Islamic religious items; certified halal (adhering to Islamic law) meals; regular opportunities to attend Islamic religious services; a 6,000-book library that is well-stocked with Islamic literature as well as books and DVDs on a wide range of subjects; an outdoor basketball court; a special classroom where various languages are taught; and state-of-the-art medical and dental facilities.

Critics of the Guantanamo Bay detention center have consistently charged that the prisoners in Guantanamo are routinely denied their basic human and civil rights, and that they are often abused and/or tortured by American authorities.

The major media have broadcast these claims widely. 60 Minutes, for instance, featured Sgt. Erik Saar’s allegations that interrogators had denied prisoners’ requests for water. The BBC repeated sordid tales from released detainees like Mamdouh Habib, who alleged that he had been subjected to a vicious beating, a gang-rape, and electro-shock treatment. BBC also gave air time to British detainee Jamal al-Harith’s claim that Americans had offered prisoners “filthy” water, fed them food that was ten years out of date, and performed gratuitous amputations. The Toronto Sun reported the fantastic claim of 15-year-old Omar Khadr, the son of a prime al-Qaeda financier, who said that Guantanamo guards had thrashed him and had used his body to mop up urine from a floor. And Newsweek magazine infamously reported an allegation that a G.I. had flushed a Koran down a Guantanamo toilet. (Before the Newsweek story was revealed to be completely false, 16 people had died as a result of Muslim riots protesting the alleged affront to their faith.)

Even more than the media, groups of the far Left and their allies in the Democratic Party led the way in disseminating anti-Guantanamo propaganda. Chief among these was the Center for Constitutional Rights(CCR), which published “Detention in Afghanistan and Guantanamo,” a 115-page report by former detainees Asef Iqbal, Ruhal Ahmed and Shafiq Rasul, who claimed that Guantanamo employees had sprayed detainees with mace, “forced” them to undergo “injections with unknown drugs,” and denied them medical treatment.

The International Committee of the Red Cross called the treatment which detainees received at Guantanamo “tantamount to torture.” Amnesty International referred to Guantanamo as “the gulag of our time.” Human Rights Watch (HRW) repeated the claims verbatim. HRW’s U.S. Advocacy Director Wendy Patten called Guantanamo “the Bermuda Triangle of human rights.” All these statements were publicized heavily to the Arab world by Al-Jazeera.

The propaganda of these groups and individuals fed off the ever-more-extremist rhetoric of the Democratic Party Left. Senator Richard Durbin, for one, compared the Guantanamo Bay interrogators to “Nazis, Soviets in their gulags or some mad regime — Pol Pot or others — who have no concern for human beings.” Former Presidents Jimmy Carter and Bill Clinton, along with 2008 presidential hopeful Joe Biden, called for shutting down Guantanamo. Clinton said, “It’s time that there are no more stories coming out of there about people being abused…. If we get a reputation for abusing people, it puts our own soldiers much more at risk.” Biden claimed Guantanamo “has become the greatest propaganda tool that exists for recruiting of terrorists.”

In response to these and many other allegations, the U.S. government conducted twelve separate probes in a fifteen-month period during 2004–05 and found no evidence of abuse beyond a handful of minor incidents that were rare aberrations. In 2004 Vice Admiral Albert Church concluded that the treatment of detainees at Guantanamo “is a model that should be considered for use in other interrogation operations in the global war on terror.” In a July 2005 appearance before the Senate Armed Services Committee, Lt. Gen. Randall “Mark” Schmidt and Brig. Gen. John Furlow reported that their own extensive research had uncovered only four unpunished abuses out of 24,000 interrogations which they conducted at Guantanamo. Those abuses included the following:

• A male interrogator once threatened to “go after” a terrorist suspect’s family;
• One terrorist had his mouth duct-taped shut after he refused to quit chanting; and
• Twice detainees were briefly chained to the floor.

Notably, Schmidt and Furlow found no substantiation for allegations that terror suspects had been chained for hours and forced to defecate on themselves, nor that Guantanamo interrogators had kept their prisoners in excessively hot or cold rooms — two claims that Senator Durbin had made on the Senate floor. Nor was there any evidence that the military had denied prisoners food or medical necessities.

The reality of Guantanamo Bay bears no resemblance to the dark picture painted by the critics. All the detainees are supplied with Islamic religious items including a Koran, prayer mat, and cap. Loudspeakers in the camps broadcast the Muslims’ call to prayer five times each day. All prisoners’ meals are certified halal (adhering to Islamic law) by Guantanamo’s Muslim chaplain. Religious services are held for the prisoners on a regular basis. The floor of every cell has a stenciled arrow pointing toward Mecca, so that prisoners may face the correct direction while saying their prayers. Guantanamo’s 6,000-book library is well stocked with Islamic literature as well as books and DVDs on a wide range of subjects. There is an outdoor basketball court, and a special classroom where detainees can learn English, Arabic, or Pashtu. Guantanamo’s medical facilities are staffed by dentists, internal medicine practitioners, psychiatrists, nurses, and even special translators who do not interact with guards. The detainee hospital provides top-level care 24 hours a day. That includes access to a pharmacy, which distributes some 400 medications daily, as well as a state-of-the-art radiology room, complete with CAT scan capabilities. It is also noteworthy that between April 2002 and March 2003, the detainees, rather than suffering from malnutrition, had gained an average of 13 pounds apiece.

There is a good reason these unlawful combatants are being confined. They are evil and dangerous individuals. Yet these thugs are treated with an amazing degree of compassion: They are given ice cream treats and recreational time. They live in clean facilities, and receive a full Muslim religious package of Koran, prayer rug, beads, and prayer oils. An arrow in every cell points to Mecca. The call to prayer is played five times daily. They are not abused, hanged, tortured, beheaded, raped, mutilated, or in any way treated the way that they once treated their own captives — or now treat their guards.

All of these assertions have been verified by independent observers.

The Nature of the Prisoners of Guantanamo Bay

In the first weeks of the war on terror, American forces took a large number of prisoners from the battlefield. Estimates are that more than 70,000 Taliban and al-Qaeda fighters were captured and screened. Of those, approximately 800 were deemed to be of such high value for intelligence purposes, or to pose such severe threats as individuals, that they needed to be interrogated and confined in a maximum-security locale. These were the men who were sent to Guantanamo.

Fully 92 percent of the Guantanamo detainees are known to have had connections to al Qaeda, the Taliban, and similar terrorist outfits prior to their incarceration. They are neither innocent foot soldiers nor confused Afghan farmers who were unwittingly drafted by the Taliban, as some critics of the prison have charged. They are Islamic fundamentalists from across the Middle East, rabid jihadists who have dedicated their lives to the destruction of America and Western civilization. Among them are al-Qaeda organizers, bomb makers, financial specialists, recruiters of suicide attackers, and cold-blooded killers. Many of these men met frequently with Osama bin Ladenprior to their capture. The terrorist Maad Al Qahtani, a Saudi who is a self-confessed collaborator with the 9/11 hijackers, is one of them.

All soldiers and sailors working “inside the wire” have blacked out their name tags so the detainees will not learn their identities. Before that step was taken, the terrorists were threatening to tell their al-Qaeda allies still at large who the guards were. “We will look you up on the Internet,” the prisoners said. “We will find you and slaughter you and your family in your homes at night. We will cut your throats like sheep. We will drink the blood of the infidel.”

On a daily basis, American soldiers carrying out their duties within Guantanamo’s maximum-security camp are barraged with feces, urine, semen, and spit hurled by the detainees. Secretly fashioned weapons intended for use in attacking guards or fellow detainees are confiscated regularly. When food or other items are passed through the “bean hole” — an opening approximately 4 inches by 24 inches in the cell doors — some detainees have grabbed at the wrists and arms of the Americans feeding them and tried to break their bones.

When guards enter the cells to remove detainees for interrogation sessions, medical visits, or any number of reasons, detainees sometimes climb on the metal bunks and leap on the guards. Others have crammed themselves under their bunks, requiring several guards to extract them. Some have attacked unsuspecting soldiers with steel chairs. Determined to inflict maximum damage, numerous detainees have groped under the protective face masks of the guards, clawing their faces and trying to gouge eyes and tear mouths.

In 2006, there were more than 3,000 recorded incidents of detainee misconduct. These included 432 assaults with bodily fluids, 227 physical assaults, and 99 efforts “to incite a disturbance or riot.”

American soldiers are strictly forbidden from responding in kind. They are constrained to maintain absolute discipline and to follow humane operating procedures at all times, at risk of serious punishment for failure to do so. Documents obtained by the Associated Press through a Freedom of Information Act lawsuit show, for instance, that when one U.S. soldier delivered two blows to an inmate’s head while trying to defend a guard who had been punched in the mouth by that inmate, the soldier was dropped in rank to private. In a different incident, an MP whom one inmate had doused with toilet water responded by spraying the offending inmate with a hose; for this, the MP was charged with assault. Another American soldier was disciplined for cursing at inmates. And in yet another case, a guard who punched a detainee after being struck and spit upon (while placing the man in restraints in the prison hospital in October 2004), was recommended for a reduction in rank, the loss of a month’s pay, and extra duty for 45 days.

It is noteworthy that the Guantanamo detainees, while exceedingly dangerous and even pathological in their desire to kill Westerners, are generally well-educated and broadly traveled. Several detainees have advanced degrees in law, engineering, and medicine from American and European schools like the University of London. Others are highly skilled technical experts with advanced training and knowledge of electronics and demolitions. Many of them came from middle-class or wealthy families.

Who gets released from Guantanamo?

The release of Guantanamo detainees has proven calamitous. As The Weekly Standard’s Stephen Hayes has reported, of 653 released detainees, 117 have returned to the fight against the U.S., and 79 more are suspected of doing so a recidivism rate of almost one-third. Meanwhile, the Obama administration is attempted to release another 35 detainees already approved for transfer.

At one point during its earliest years of operation, the Guantanamo Bay detention center housed as many as 780 prisoners who were suspected of helping to plan or carry out terrorist activities against the United States. By early 2010, just 198 of them remained in custody; the rest had been released by American authorities and repatriated to their home countries. According to a December 2010 assessment by the Director of National Intelligence, fully 25 percent of the detainees who had been freed were either known to have returned, or were suspected of having returned, to jihadist pursuits against the U.S. and its interests.

One of the more noteworthy prisoners released from Guantanamo was Abdullah Mehsud, a 28-year-old Pakistani who was freed in 2004 after 25 months in custody. Once he had been let go, he promptly resumed his alliance with al Qaeda and helped mastermind an October 9, 2004 kidnapping of two Chinese nationals who were involved in the building of Pakistan’s Gomal Zam Dam. Mehsud now holds the distinction of being Pakistan’s most wanted man, and is described in a report in the London Independent as a “growing legend” among rebel Pakistanis.

Another former Guantanamo detainee is Ali al-Shihri, a Saudi national who, despite having undergone urban warfare training in Afghanistan, was released in 2007 on the condition that he fulfill his pledge to return home, live a peaceful life, and work in his family’s furniture store. Instead, Al-Shihri and another Saudi who had already been released from Guantanamo, Ibrahim Suleiman al-Rubaish, collaborated to spearhead the expansion of an al Qaeda offshoot in Yemen. In January 2009, Al-Shihri mocked the United States for having released him, saying that his (and his comrades’) stay in Guantanamo had only “increased our persistence and adherence to our principles.” Al-Shihri is now deputy leader of al Qaeda in the Arabian Peninsula, a group that claimed responsibility for the attempted bomb attack on a Detroit-bound airliner on Christmas Day 2009.

In Defense of Enhanced Interrogation Techniques:

US Soldiers Escort German POW’s during World War 2

The post-9/11 era has featured a continuing, heated debate over the question of whether there can ever be justification for using “enhanced interrogation” measures to obtain strategic intelligence from captured terrorists or enemy combatants. The measures in question include, among others: depriving a suspect of sleep; forcing a suspect to stand in uncomfortable positions for many hours at a time; forcing an incarcerated suspect to stand naked for extended periods in 50-degree temperatures; forcefully grabbing the shirt of a suspect and shaking him; issuing an open-handed slap designed to cause pain (though not injury) and fear in a suspect; and, most famously, subjecting a suspect to the technique known as waterboarding, which has been used by CIA agents on a small number of high-level al Qaeda operatives. (Click hereand here for a detailed description of waterboarding and its effects.)

The George W. Bush administration assigned numerous lawyers to examine each of these enhanced interrogation procedures and determine whether any of them were so extreme or dangerous as to constitute torture. The attorneys concluded that none of the methods in question could be classified as torture. But critics of enhanced interrogation continue to contend that not only are such methods unacceptably cruel and inhumane, but that they are also unlikely to yield any information that can be considered reliable. After banning the practice of waterboarding in the first days of his presidency, for example, Barack Obama said:

“I am absolutely convinced [that this] was the right thing to do, not because there might not have been information that was yielded by these various detainees who were subjected to this treatment, but because we could have gotten this information in other ways, in ways that were consistent with our values, in ways that were consistent with who we are.”

The Former President’s perspective was echoed by members of his administration at every level. Attorney General Eric Holder, for instance, condemned the Bush administration for having “authorized torture” and “needlessly abusive and unlawful practices” that “have diminished our standing in the world community and made us less, rather than more, safe.” On another occasion, Holder characterized enhanced interrogation as “cruel, inhuman and degrading.”

In April 2009, against the protests of former CIA director Michael Hayden, President Obama, reiterating his contention that enhanced interrogation techniques “did not make us safer,” publicly released a number of the legal memos in which Bush administration attorneys had explained why such methods should be deemed lawful. According to Hayden, Obama’s action was a potentially disastrous move because it provided “our enemies in the midst of a war” with “very valuable information” about exactly what “are the outer limits that any American would ever go to in terms of interrogating an al Qaeda terrorist.”

Also in the early months of his presidency, Obama indicated that his Justice Department might in fact seek to prosecute the Bush attorneys who had written the aforementioned memos. “I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws,” said the President. Eventually the Obama administration announced that it would not pursue the Bush lawyers in court.

The CIA agents who had implemented the policies authorized in the legal memos, however, were not offered any such assurance. In August 2009, Attorney General Holder announced that “the information known to me warrants opening a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.” As of May 2011, the possibility of legal action against the agents still existed.

The question of the efficacy of enhanced interrogation techniques, however, has continued to be debated. There is strong evidence that such interrogations have been effective in eliciting valuable intelligence. For example, a May 30, 2005 Justice Department memo noted the following:

“[T]he CIA believes the intelligence acquired from these [enhanced] interrogations has been a key reason why al Qaeda has failed to launch a spectacular attack in the West since 11 September 2001…. In particular, the CIA believes that it would have been unable to obtain critical information from numerous detainees, including [Khalid Sheik Mohammed, a.k.a. ‘KSM’] and Abu Zubaydah, without these enhanced techniques…. Before the CIA used enhanced techniques … KSM resisted giving any answers to questions about future attacks, simply noting, ‘Soon you will find out.’ [Once the techniques were applied], interrogations have led to specific, actionable intelligence, as well as a general increase in the amount of intelligence regarding al Qaeda and its affiliates.”

“[…] Interrogations of [Abu] Zubaydah — again, once enhanced techniques were employed — furnished detailed information regarding al Qaeda’s organizational structure, key operatives, and modus operandi and identified KSM as the mastermind of the September 11 attacks…. Zubaydah and KSM also supplied important information about al-Zarqawi and his network [in Iraq].”

When Abu Zubaydeh began to reveal information as a result of the waterboarding, he explained that he and his fellow al Qaeda operatives were obligated to resist only until they could no longer do so, at which point it became permissible for them to cooperate with interrogators. Indeed he advised his interrogators: “Do this for all the brothers.”

Of the thousands of unlawful combatants captured by the U.S., fewer than 35were subjected to any enhanced techniques. Waterboarding in particular was used against an even smaller number of suspects. The amount of information yielded by such efforts, however, was immense. According to former CIA Director Michael Hayden, as of 2006, fully half of the government’s knowledge about the structure and activities of al Qaeda had been learned via enhanced interrogation.

The value of enhanced interrogation was demonstrated yet again in the sequence of events that ultimately enabled the U.S. to hunt down and kill Osama bin Laden. A key development in the search for the elusive terror leader occurred in 2007, when two Guantanamo Bay detainees — Khalid Shaikh Mohammed and Abu Faraj al-Libbi — were shipped to an “extraordinary rendition” site in Eastern Europe where they were waterboarded. As a direct result of that waterboarding, these men provided U.S. officials with the nom de guerre of one of bin Laden’s most trusted personal couriers. The informants indicated that the courier in question might be living with, and protecting, bin Laden. Proceeding from that tip, U.S. intelligence officials painstakingly set out to locate the courier. In August 2010 they finally succeeded in tracing him to a three-story residence in Abbottabad, Pakistan. Further surveillance suggested that bin Laden himself was also likely to be living there. Late on the night of May 1, 2011, forty U.S. Navy SEALS raided the house and indeed found bin Laden therein and killed him.

While taking credit for the terror leader’s death, President Obama remained steadfast in his opposition to waterboarding and other forms of enhanced interrogation. When CBS News reporter Mark Knoller asked White House Press Secretary Jay Carney whether, in the wake of bin Laden’s killing, “there has been any change in President Obama’s opposition to so-called enhanced interrogation techniques,” Carney replied: “No change whatsoever.”

American troops are lawful combatants. They wear uniforms or distinctive insignia, follow a clear chain of command, do not hide among innocent civilians, and do not target innocent men, women and children. Because they follow the laws of war, when captured they receive full privileges as Prisoners of War under the Geneva Conventions which means it would be illegal for their captors to coerce them in any way, much less waterboard them.

Terrorists, by contrast, are unlawful combatants. They do not wear uniforms or distinctive insignia, or follow a clear chain of command. Not only do they hide among innocent civilians, their primary means of attacking us is to target innocent men, women and children for death. Because they violate the laws of war, they do not receive the privileges that a lawful combatant receives as a POW under Geneva. As a result of their own choices, the United States may lawfully coerce them to provide information about imminent terrorist attacks.

A soldier captured on a battlefield wearing a uniform is a prisoner-of-war and is entitled to all of the rights of the Geneva Convention. His wears his uniform because it distinguishes him from innocent civilians. He’s identified himself as being a legitimate target and his uniform says “shoot me” not them. When he is captured his detention is primarily to prevent his return to combat.

The Jihadi captured in Afghanistan, Iraq and Pakistan is an unlawful combatant. Why? Because he cheated. He hid behind civilians, he targeted civilians and he eliminated the distinction between himself as a legitimate target and the innocent people around him. He’s also had the habit of waving the white flag of surrender or acting as if he’s dead before he shoots our guys. This entitles him to absolutely nothing under the Geneva Convention.

As Americans, though, we treat unlawful combatants as well if not better than any POWs in the history of warfare. In the case of Guantanamo, for example, terrorists who would otherwise be killing or plotting to kill are guaranteed three “culture friendly” meals a day, prayer rugs and Korans, five broadcasts of Muslim prayer each day, painted arrows pointing to Mecca in each cell, access to a Jihadi library and superb medical care. The Pentagon spends $12.68 a day to feed prisoners at Gitmo compared to $8.85 a day to feed U.S.soldiers deployed to the Middle East.

Their detention is not only based on preventing them from returning to combat but for interrogation purposes as well. Why? Because they have chosen to live and fight outside the laws of warfare.

Indicative of the Left’s moral relativism prisoners-of-war and detainees are one and the same. What they call “torture” is actually anything from cheap high school pranks to “coercive interrogation.”

The disgraceful incidents committed by the sadomasochists at Abu Ghraib were not interrogations nor were they torture. Humiliation, intimidation and uncomfortable environments don’t nearly rise to that level and neither does aggressive interrogation. They amount to nothing more than thousands of U.S. servicemen have experienced in their routine training over the years.

Water boarding influenced 11 of 12 senior Al Qaeda leaders to cooperate — with Khalid Sheikh Mohammad giving up actionable intelligence after only a few minutes. If we limit future interrogations which could provide timely intelligence we will no doubt be commissioning another 9/11-type investigative body who’ll be asking the same questions the last one did in the not too distant future.

Indeed, it is precisely because they target the innocent that we must coerce them. When an American soldier is captured and taken off the battlefield, he has been effectively disarmed and rendered unable to cause harm to the enemy. But when a terrorist like Khalid Sheikh Mohammed is captured, and he has set in motion a series of terrorist plots, he has not been disarmed. Even in captivity, he still holds the power to kill thousands simply by withholding information. We have a moral obligation to stop him.

The Post writes that waterboarding “has been considered torture since at least the Spanish Inquisition.” As I document meticulously in my book “Courting Disaster,” waterboarding as practiced by the CIA bears no resemblance whatsoever to the water torture employed during the Spanish Inquisition, or for that matter by Imperial Japan, the Khmer Rouge or Nazi Germany. I am certain The Post can make an effective case against waterboarding without comparing the men and women of our intelligence community to Medieval torturers.

The Post writes that supporters of enhanced interrogation “have asserted that waterboarding led to important intelligence gains. It is not clear this is true.” Yes it is. In response to a direct question about the role of enhanced interrogation in the bin Laden operation, then-CIA Director Leon Panetta confirmed that, “Obviously there was, there was some valuable intelligence that was derived through those kind of interrogations.” His immediate predecessor, Mike Hayden, was even more explicit, declaring, “Let the record show that when I was first briefed in 2007 about the brightening prospect of pursuing bin Laden through his courier network, a crucial component of the briefing was information provided by three CIA detainees, all of whom had been subjected to some form of enhanced interrogation.”

Indeed, Hayden compares those who deny the valuable intelligence obtained as a result of waterboarding and other enhanced interrogation techniques to “birthers” who insist that President Obama was not born in the United States and “9/11 ‘truthers’ who, lacking any evidence whatsoever, claim that 9/11 was a Bush administration plot.” And for those who cling to such notions, in the face of incontrovertible evidence, he has suggested a simple solution: If no valuable intelligence came from those interrogations, they should urge President Obama to destroy all the interrogation reports and never use them again. I doubt The Post would advocate doing so or that President Obama would heed such calls — because he knows his administration used and depended on that intelligence every day.

The Post writes that enhanced interrogation “leads to unreliable admissions by victims who are desperate to stop the mistreatment.” Again, this is incorrect. Enhanced techniques were never used to gain intelligence. They were used to gain cooperation. They were used to move terrorists like KSM from a state of resistance to a state of compliance. To gauge whether terrorists had made decision to stop resisting and start cooperating, interrogators asked the terrorists questions to which they already knew the answers. In other words, there is no way a terrorist can lie to get the techniques to stop. The only way to stop the techniques is to tell the truth. And once terrorists began telling the truth, the techniques stopped and traditional debriefing techniques were employed leading to an intelligence bonanza from which the Obama administration benefited from.

How Waterboarding got us Bin Laden

Osama bin Laden was killed by Americans, based on intelligence developed by Americans. That should bring great satisfaction to our citizens and elicit praise for our intelligence community. Seized along with bin Laden’s corpse was a trove of documents and electronic devices that should yield intelligence that could help us capture or kill other terrorists and further degrade the capabilities of those who remain at large.

But policies put in place by the very administration that presided over this splendid success promise fewer such successes in the future. Those policies make it unlikely that we’ll be able to get information from those whose identities are disclosed by the material seized from bin Laden. The administration also hounds our intelligence gatherers in ways that can only demoralize them.

Consider how the intelligence that led to bin Laden came to hand. It began with a disclosure from Khalid Sheikh Mohammed (KSM), who broke like a dam under the pressure of harsh interrogation techniques that included waterboarding. He loosed a torrent of information — including eventually the nickname of a trusted courier of bin Laden.

That regimen of harsh interrogation was used on KSM after another detainee, Abu Zubaydeh, was subjected to the same techniques. When he broke, he said that he and other members of al Qaeda were obligated to resist only until they could no longer do so, at which point it became permissible for them to yield. “Do this for all the brothers,” he advised his interrogators.

Abu Zubaydeh was coerced into disclosing information that led to the capture of Ramzi bin al Shibh, another of the planners of 9/11. Bin al Shibh disclosed information that, when combined with what was learned from Abu Zubaydeh, helped lead to the capture of KSM and other senior terrorists and the disruption of follow-on plots aimed at both Europe and the United States.

Another of those gathered up later in this harvest, Abu Faraj al-Libi, also was subjected to certain of these harsh techniques and disclosed further details about bin Laden’s couriers that helped in last weekend’s achievement.

The harsh techniques themselves were used selectively against only a small number of hard-core prisoners who successfully resisted other forms of interrogation, and then only with the explicit authorization of the director of the CIA. Of the thousands of unlawful combatants captured by the U.S., fewer than 100 were detained and questioned in the CIA program. Of those, fewer than one-third were subjected to any of these techniques.

Former CIA Director Michael Hayden has said that, as late as 2006, even with the growing success of other intelligence tools, fully half of the government’s knowledge about the structure and activities of al Qaeda came from those interrogations. The Bush administration put these techniques in place only after rigorous analysis by the Justice Department, which concluded that they were lawful. Regrettably, that same administration gave them a name — “enhanced interrogation techniques” — so absurdly antiseptic as to imply that it must conceal something unlawful.

The current president ran for election on the promise to do away with them even before he became aware, if he ever did, of what they were. Days after taking office he directed that the CIA interrogation program be done away with entirely, and that interrogation be limited to the techniques set forth in the Army Field Manual, a document designed for use by even the least experienced troops. It’s available on the Internet and used by terrorists as a training manual for resisting interrogation.

In April 2009, the administration made public the previously classified Justice Department memoranda analyzing the harsh techniques, thereby disclosing them to our enemies and assuring that they could never be used effectively again. Meanwhile, the administration announced its intentions to replace the CIA interrogation program with one administered by the FBI. In December 2009, Omar Faruq Abdulmutallab was caught in an airplane over Detroit trying to detonate a bomb concealed in his underwear. He was warned after apprehension of his Miranda rights, and it was later disclosed that no one had yet gotten around to implementing the new program.

Yet the Justice Department, revealing its priorities, had gotten around to reopening investigations into the conduct of a half-dozen CIA employees alleged to have used undue force against suspected terrorists. I say “reopening” advisedly because those investigations had all been formally closed by the end of 2007, with detailed memoranda prepared by career Justice Department prosecutors explaining why no charges were warranted. Attorney General Eric Holder conceded that he had ordered the investigations reopened in September 2009 without reading those memoranda. The investigations have now dragged on for years with prosecutors chasing allegations down rabbit holes, with the CIA along with the rest of the intelligence community left demoralized.

Immediately following the killing of bin Laden, the issue of interrogation techniques became in some quarters the “dirty little secret” of the event. But as disclosed in the declassified memos in 2009, the techniques are neither dirty nor, as noted by Director Hayden and others, were their results little. As the memoranda concluded — and as I concluded reading them at the beginning of my tenure as attorney general in 2007 — the techniques were entirely lawful as the law stood at the time the memos were written, and the disclosures they elicited were enormously important. That they are no longer secret is deeply regrettable.

It is debatable whether the same techniques would be lawful under statutes passed in 2005 and 2006 — phrased in highly abstract terms such as “cruel, inhuman and degrading” treatment — that some claimed were intended to ban waterboarding even though the Senate twice voted down proposals to ban the technique specifically. It is, however, certain that intelligence-gathering rather than prosecution must be the first priority, and that we need a classified interrogation program administered by the agency best equipped to administer it: the CIA.

We also need to put an end to the ongoing investigations of CIA operatives that continue to undermine intelligence community morale.

Acknowledging and meeting the need for an effective and lawful interrogation program, which we once had, and freeing CIA operatives and others to administer it under congressional oversight, would be a fitting way to mark the demise of Osama bin Laden.

Consider the Justice Department memo of May 30, 2005. It notes that “the CIA believes ‘the intelligence acquired from these interrogations has been a key reason why al Qaeda has failed to launch a spectacular attack in the West since 11 September 2001.’ . . . In particular, the CIA believes that it would have been unable to obtain critical information from numerous detainees, including [Khalid Sheik Mohammed] and Abu Zubaydah, without these enhanced techniques.” The memo continues: “Before the CIA used enhanced techniques . . . KSM resisted giving any answers to questions about future attacks, simply noting, ‘Soon you will find out.’ “ Once the techniques were applied, “interrogations have led to specific, actionable intelligence, as well as a general increase in the amount of intelligence regarding al Qaeda and its affiliates.”

Specifically, interrogation with enhanced techniques “led to the discovery of a KSM plot, the ‘Second Wave,’ ‘to use East Asian operatives to crash a hijacked airliner into’ a building in Los Angeles.” KSM later acknowledged before a military commission at Guantanamo Bay that the target was the Library Tower, the tallest building on the West Coast. The memo explains that “information obtained from KSM also led to the capture of Riduan bin Isomuddin, better known as Hambali, and the discovery of the Guraba Cell, a 17-member Jemmah Islamiyah cell tasked with executing the ‘Second Wave.’ “ In other words, without enhanced interrogations, there could be a hole in the ground in Los Angeles to match the one in New York.

The memo notes that “[i]nterrogations of [Abu] Zubaydah — again, once enhanced techniques were employed — furnished detailed information regarding al Qaeda’s ‘organizational structure, key operatives, and modus operandi’ and identified KSM as the mastermind of the September 11 attacks.” This information helped the intelligence community plan the operation that captured KSM. It went on: “Zubaydah and KSM also supplied important information about al-Zarqawi and his network” in Iraq, which helped our operations against al-Qaeda in that country.

All this confirms information that I and others have described publicly. But just as the memo begins to describe previously undisclosed details of what enhanced interrogations achieved, the page is almost entirely blacked out. The Obama administration released pages of unredacted classified information on the techniques used to question captured terrorist leaders but pulled out its black marker when it came to the details of what those interrogations achieved.

Yet there is more information confirming the program’s effectiveness. The Office of Legal Counsel memo states “we discuss only a small fraction of the important intelligence CIA interrogators have obtained from KSM” and notes that “intelligence derived from CIA detainees has resulted in more than 6,000 intelligence reports and, in 2004, accounted for approximately half of the [Counterterrorism Center’s] reporting on al Qaeda.” The memos refer to other classified documents — including an “Effectiveness Memo” and an “IG Report,” which explain how “the use of enhanced techniques in the interrogations of KSM, Zubaydah and others . . . has yielded critical information.” Why didn’t Obama officials release this information as well? Because they know that if the public could see the details of the techniques side by side with evidence that the program saved American lives, the vast majority would support continuing it.

Critics claim that enhanced techniques do not produce good intelligence because people will say anything to get the techniques to stop. But the memos note that, “as Abu Zubaydah himself explained with respect to enhanced techniques, ‘brothers who are captured and interrogated are permitted by Allah to provide information when they believe they have reached the limit of their ability to withhold it in the face of psychological and physical hardship.” In other words, the terrorists are called by their faith to resist as far as they can — and once they have done so, they are free to tell everything they know. This is because of their belief that “Islam will ultimately dominate the world and that this victory is inevitable.” The job of the interrogator is to safely help the terrorist do his duty to Allah, so he then feels liberated to speak freely.

This is the secret to the program’s success. And the Obama administration’s decision to share this secret with the terrorists threatens our national security. Al-Qaeda will use this information and other details in the memos to train its operatives to resist questioning and withhold information on planned attacks. CIA Director Leon Panetta said during his confirmation hearings that even the Obama administration might use some of the enhanced techniques in a “ticking time bomb” scenario. What will the administration do now that it has shared the limits of our interrogation techniques with the enemy? President Obama’s decision to release these documents is one of the most dangerous and irresponsible acts ever by an American president during a time of war — and Americans may die as a result.

U.S officials have acknowledged that the key piece of intelligence that led the CIA to bin Laden — information on the al-Qaeda leader’s principal courier — came from detainees in CIA custody. According to a senior administration official, “detainees in the post-9/11 period flagged for us individuals who may have been providing direct support to bin Laden and his deputy, [Ayman al-] Zawahiri, after their escape from Afghanistan. One courier in particular had our constant attention. Detainees gave us . . . his nickname and identified him as . . . a protege of Khalid Sheikh Mohammed.” The nickname was Abu Ahmed al-Kuwaiti. KSM was taken into CIA custody in 2003 and refused to talk. Only after undergoing enhanced interrogation techniques did he confirm knowing al-Kuwaiti.

The following year, another senior al-Qaeda operative named Hassan Ghul was captured. U.S. officials say he told the CIA that al-Kuwaiti was close to KSM’s successor, Abu Faraj al-Libi — a revelation officials described as the “linchpin.”In May 2005, al-Libi was finally taken into CIA custody. After being subjected to enhanced interrogation techniques, he provided credible information on al-Qaeda’s courier networks, how they chose and employed couriers, and specific individuals. But he became evasive when asked about al-Kuwaiti. Some have suggested this shows his interrogation did not work. Quite the opposite, this was a red flag that led the agency to recognize al-Kuwaiti’s importance and focus its attention on identifying and hunting him down. It took years to actually find al-Kuwaiti and follow him to bin Laden’s compound. But without the information the CIA elicited from these high-value terrorists, the agency would not have known to look for him in the first place.

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Already, critics are desperately trying to play down the CIA interrogation program’s role in the bin Laden operation. Many are pointing to an Associated Press report that KSM “did not discuss al-Kuwaiti while being subjected to the simulated drowning technique known as waterboarding, former officials said. He acknowledged knowing him many months later under standard interrogation, they said, leaving it once again up for debate as to whether the harsh technique was a valuable tool or an unnecessarily violent tactic.”

This statement demonstrates ignorance of how CIA interrogations worked. Interrogators would never have asked about the names of couriers during waterboarding. As I explain in my book, “Courting Disaster,” enhanced techniques were not used to gain intelligence; they were used to elicit cooperation. According to former CIA director Mike Hayden, as enhanced techniques were applied, CIA interrogators would ask detainees questions to which the interrogators already know the answers — allowing them to judge whether the detainees had reached a level of compliance. “They are designed to create a state of cooperation, not to get specific truthful answers to a specific question,” Hayden said.

Once interrogators determined a terrorist had become cooperative, the techniques stopped and traditional, non-coercive methods of questioning were used. Moreover, the use of enhanced techniques wasn’t needed for two-thirds of the detainees in CIA custody . Just the experience of being brought into CIA custody the “capture shock,” arrival at a sterile location, the isolation, the fact that they did not know where they were and that no one else knew they were there — was enough to persuade most of them to cooperate.

Thanks to President Obama, this program, which helped lead us to bin Laden, is no longer part of America’s counterterrorism arsenal. Indeed, outside of the war zones of Afghanistan and Iraq, there have been no reported U.S. detentions of high-value terrorists since Obama took office. A Few years Umar Patek, the highest-ranking terrorist captured alive at that point in the Obama administration, was taken into custody by Pakistani authorities. Patek had traveled from Southeast Asia to Abbottabad the same place where bin Laden was hiding. Coincidence? What was Patek doing in Abbottabad? With whom did he meet and what did they discuss? He should have been in CIA custody answering such questions.

In Response to the Senate Supposed Torture Report

The Senate Intelligence Committee released the 500-page executive summary of the report on the CIA’s enhanced interrogation of terrorist detainees. Democrats, the media and Republican Sen. John McCain (R-AZ) are using it as an opportunity to hammer the CIA and the Bush administration, while American embassies, military units and other U.S. interests are preparing for possible reprisals. But adding further threats to Americans already in harm’s way matters not. Beleaguered congressional Democrats are desperate for a political boon and have turned to an old standby: sabotaging national security and sacrificing American lives.

Since their betrayal of the Iraq war, Democrats, particularly in the Senate, have panned the techniques used by the CIA to garner critical information in the days following 9/11 as “torture,” and have claimed that they yielded no useful intel. Though the use of these techniques was long known to Democrats — with virtual indifference toward them at the outset — many Democrats have since claimed they were unaware of what was occurring, which explains their lack of opposition to their government supposedly engaging in “torture.”

Leading the way on the latter fabrication was then-House Majority Leader Nancy Pelosi (D-CA). Her ongoing denials regarding knowledge of the CIA’s waterboarding of terrorists were ultimately undone by Pelosi herself in 2009, when she finally admitted she had known about the program since 2003. Yet even as she admitted it, she continued to promote the “Bush lied, people died” lie, insisting that “the C.I.A. was misleading the Congress and at the same time the administration was misleading the Congress on weapons of mass destruction.”

Those would be the same weapons of mass destruction whose existence was acknowledged by the New York Times last October.

As for so-called torture, the report cited sleep deprivation, threatening subjects with death, “rectal feeding” or “rectal hydration” described by the CIA’s chief of interrogations as a way to exert “total control over detainees,” and waterboarding, as in simulating near drowning. The report further stated that former CIA directors George J. Tenet, Porter J. Goss and Michael V. Hayden hyped the value of those techniques in secret briefings with the White House and Congress.

Intelligence Committee Chairwoman Dianne Feinstein admitted that she “could understand the C.I.A.’s impulse to consider the use of every possible tool to gather intelligence and remove terrorists from the battlefield, and the C.I.A. was encouraged by political leaders and the public to do whatever it could to prevent another attack,” but that “such pressure, fear and expectation of further terrorist plots do not justify, temper or excuse improper actions taken by individuals or organizations in the name of national security. The major lesson of this report is that regardless of the pressures and the need to act, the intelligence community’s actions must always reflect who we are as a nation, and adhere to our laws and standards.”

The hypocrisy is breathtaking. While the Left wrings its collective hands about “torture,” they remain silent to Barack Obama’s drone program. One that has not only killed terrorists, but America citizens, Samir Khan, and Anwar al-Awlaki. Both men were traitors, but they were executed without the due process the Left supposedly reveres so much in the case of terrorist detainees. So was Awlaki’s 16-year-old son, as well as innocents who were victims of collateral damage. No one was reported to have been killed by the Bush administration’s enhanced interrogation techniques, yet somehow Bush and former Vice President Dick Cheney are routinely referred to as “war criminals” while Obama largely gets a pass.

The Washington Post’s Bill Gerson cuts right through the double-standard, noting intelligence personnel now being excoriated received the same “direction and protection,” consisting of presidential approval, congressional briefing, lawfulness determined by the U.S. Attorney General and target value determined by the CIA Director as those currently participating in the drone program. “Some may argue a subtle moral distinction between harshly interrogating a terrorist and blowing his limbs apart,” Gerson writes. “But international human rights groups and legal authorities generally look down on both. The main difference? One is Obama’s favorite program. A few years from now, a new president and new congressional leaders may take a different view.”

This double standard puts the lie to Democrats’ seriousness toward the claim that the Bush administration engaged in “torture,” illegality and human rights abuses in its mission to thwart terrorist attacks against the homeland. In truth, the campaign against tough interrogation is a political cudgel that Democrats have employed to bludgeon their political enemies, no matter the national security cost. It amounts to nothing less than a revisionist effort to turn those entrusted with protecting the country in the immediate aftermath of the worst domestic attack in American history into pariahs, even as the war remains ongoing. As Gerson so rightly notes, the report’s release is an act of “exceptional congressional recklessness” engineered by Feinstein, whose “legacy is a massive dump of intelligence details useful to the enemy in a time of war.”

Our allies are equally appalled. ”Foreign leaders have approached the government and said, ‘You do this, this will cause violence and deaths,’’’ warned Rep. Mike Rogers (R-MI), Chairman of the Permanent Select Committee on Intelligence. “Our own intelligence community has assessed that this will cause violence and deaths.”

White House Press Secretary Josh Earnest acknowledged such concerns, but insisted the administration “strongly supports the release of this declassified summary of the report.”

No doubt. The release neatly coincided with ObamaCare mega-consultant Jonathan Gruber’s Congressional testimony regarding his contempt for the American public, and the deception employed to get the ACA passed. Thus, the administration has once again employed a bait and switch effort to distract the public, despite the fact that distraction imperils Americans and our allies.

CIA veteran Jose A. Rodriguez Jr., who ran the enhanced interrogation program, destroys the contention that Democrats were out of the loop, and that the enhanced interrogation techniques yielded no useful information. “The leaders of the Senate and House Intelligence Committees and of both parties in Congress were briefed on the program more than 40 times between 2002 and 2009,” he reveals, noting those same lawmakers “urged us to do everything possible to prevent another attack on our soil.” He was equally forthright about the intel that was garnered. “After extraordinary CIA efforts, aided by information obtained through the enhanced-interrogation program, Khalid Sheik Mohammed, the self-proclaimed architect of the 9/11 attacks, was captured in Pakistan,” he explains.

He is especially critical of “hypocritical” Democrats. He cites Feinstein’s 2002 assertion that “we have to do some things that historically we have not wanted to do to protect ourselves,” as well as an interview between CNN’s Wolf Blitzer and Sen. John D. Rockefeller IV (D-WVA), then the ranking Democrat on the Senate Intelligence Committee. In response to Blitzer’s question about whether Khalid Sheik Mohammed might be turned over to friendly countries with no restrictions on torture, the Senator admitted it was possible. “I wouldn’t take anything off the table where he is concerned, because this is the man who has killed hundreds and hundreds of Americans over the last 10 years,” he replied.

Rodriguez then adds a dose of devastating perspective to the mix. “If Feinstein, Rockefeller and other politicians were saying such things in print and on national TV, imagine what they were saying to us in private….Our reward, a decade later, is to hear some of these same politicians expressing outrage for what was done and, even worse, mischaracterizing the actions taken and understating the successes achieved,” he states.

Current and former CIA leaders bitterly contested the report. Bush-era CIA Director George Tenet labeled it “biased, inaccurate, and destructive,” adding that it “does damage to U.S. national security, to the men and women of the Central Intelligence Agency, and most of all to the truth.” CIA Director John Brennan said the agency made mistakes, but insisted “the record does not support the study’s inference that the agency systematically and intentionally misled each of these audiences on the effectiveness of the program.” A website launched by a number of intelligence officials blasted the report:

The recently released Senate Select Committee on Intelligence (SSCI) Majority report on the CIA’s Rendition, Detention, and Interrogation Program is marred by errors of facts and interpretation and is completely at odds with the reality that the leaders and officers of the Central Intelligence Agency lived through. It represents the single worst example of Congressional oversight in our many years of government service.

Cheney also remains resolute about the necessity and legality of the program. “What I keep hearing out there is they portray this as a rogue operation, and the agency was way out of bounds and then they lied about it,” he said in a telephone interview with the New York Times. “I think that’s all a bunch of hooey. The program was authorized. The agency did not want to proceed without authorization, and it was also reviewed legally by the Justice Department before they undertook the program.” Cheney also had nothing but praise for those who participated. “As far as I’m concerned, they ought to be decorated, not criticized,” he added.

The alternative viewpoint? “Showing respect even for ones enemies. Trying to understand and in so far as psychologically possible, empathize with their perspective and point of view,” said Secretary of State and likely presidential candidate Hillary Clinton. Americans have a choice to make between competing worldviews. The wrong choice will have deadly consequences.

Torture is one of those topics that often overwhelm sober reason with lurid emotion. Even people who usually are clear-eyed and rational sink into sloppy thinking and incoherent argument when it comes to torture. Peggy Noonan’s recent Wall Street Journal column about the Senate report on the CIA’s interrogation techniques illustrates this phenomenon perfectly.

Noonan is usually an astute analyst, but her column on the report is riddled with received wisdom and unexamined assumptions. For Noonan, the “important lesson” of the report is not that progressives, as usual, are shameful hypocrites and partisan hacks who will damage their country’s interests for ideological or political advantage. It is not that when fighting a brutal enemy who obeys no laws of war, things are done we’d rather not do in order to save lives. No, her “lesson” is that the enhanced interrogation techniques, “torture” in her view, are “not like us” or “part of the American DNA,” and that, quoting John McCain, such techniques damage “our reputation as a force for good in the world.” These assertions, however, are based on simplistic psychology and flawed reasoning.

First, with very few isolated exceptions, none of the interrogation techniques meets the U.S. Code’s legal definition of torture, which requires the intent to cause severe suffering “other than pain or suffering incidental to lawful sanctions,” in the words of the statute. Noonan may think the EITs are “what I believe must honestly be called torture.” But what Noonan, or I, or anyone else “believes” does not trump what the law actually says, and it is the law (Title 18, Part I, Chapter 113C, § 2340) that our officials must follow, not subjective perception or even international laws that conflict with our own. As I said before, if people disagree with the law, then there is a political process for changing it.

The begged question that the EITs are torture undermines by itself the rest of Noonan’s argument. But it suffers from other problems as well. She also makes the fuzzy but simplistic statement that it “won’t help us fight it [war against jihadism] to become less like ourselves and more like those we oppose.” This is a version of the progressives’ mantra since 9/11 that the “terrorists win” if we do certain things that the critics believe are immoral or contrary to our “values” — as if our crisis of national identity is more important than destroying the enemy, the only way we “win.”

Noonan’s argument, however, falls to pieces on analysis. First, it ignores critical distinctions, such as intent: the reason why we do what we do, and the moral superiority of our reasons compared to those of the enemy. Again, with a few exceptions, the intent of the interrogators was not to inflict pain just to indulge their sadism, but to extract information to save American lives, which they did. Second, there are critical differences between the techniques used by the CIA — which were vetted by the Department of Justice, usually overseen by physicians, and subject to precise rules governing their application — and the horrific torture going on in countries like Iran. It is childish to fail to recognize that being slammed against a wall or deprived of sleep or confined in a coffin is nothing even close to the genuine torture going on all over the world. I haven’t heard any of the journalists who volunteered to be waterboarded asking to have their fingernails wrenched out with pliers, or electrodes attached to their genitals.

Third, ignoring the different purposes of what a country does in war leads to the facile moral equivalence of the naïve pacifist or the anti-American critic. During World War II the Allies’ strategic bombing campaigns destroyed almost all of Germany’s major cities and killed up to half a million people. Some historians today call the strategic bombing campaigns war crimes. The atomic bombs dropped on Hiroshima and Nagasaki, which probably saved a million American and Japanese lives that would have been lost with an invasion of Japan, remain popular bywords for American brutality.

But the noble purpose of all that destruction was to hasten the defeat of two of history’s most brutal regimes, whose triumph would have created a world deprived of freedom and human rights, a world of oppression and misery. Achieving that purpose required the “awful arithmetic,” as Lincoln called it, the tragic but necessary calculus that some must die now so that more don’t die later. Noonan needs to explain why incinerating and blowing up hundreds of thousands of people — including women, children, and the old — during the “good war” is “like ourselves,” while the CIA’s interrogation program — in which a grand total of two terrorists died — isn’t.

Finally, there is the obsession with our country’s “reputation,” and the implication that we should concern ourselves with “the world’s regard.” Just which country in the world has the moral authority and clean enough hands to sit in judgment on what our country does? Russia? Iran? China? The British, who in India strapped rebellious sepoys to cannon and blew them to pieces? The French, who killed a million and a half people during the Algerian War, and used torture to dismantle the National Liberation Front’s terrorist cells? And does Noonan really care what the thug regimes sitting on the U.N. Human Rights Council think? Or even our so-called allies in Europe, who carp and criticize our behavior even as they enjoy the free security ride we provide because we are willing to spend the money and do the dirty work they get to avoid?

As for the brutal men who run most of the world, our concern for their opinion is a sign not of strength, but of weakness. It is a marker of our cultural failure of nerve, and our doubt about the rightness of our motives and purposes, the reasons why we have to do what we’d rather not do. But the fact is, our rivals and enemies don’t hate us or oppose us because of what we do. That canard is psychologically reductive, as if other nations and peoples don’t have their own interests and beliefs and aims that they actively pursue, but just passively sit around until we provoke them to react to our bad behavior.

Of course, our enemies will use our actions as the camouflaging pretext for their own behavior, since they understand that too many Americans are predisposed to believe the worst of their own country and thus will counsel retreat and appeasement, or even damage their own country’s interests and security, as the release of the Senate report has done. Bin Laden was the master of such propaganda, employing a whole specious catalogue of American offenses against Islam as the pretext for terrorist attacks based on his religious beliefs about the divine right of Muslims to dominate the world. But in reality, as the world’s greatest military, economic, and cultural power, we will be envied, resented, and hated no matter what we do or how much we anxiously seek the rest of the world’s high “regard.” Rescuing millions of Muslims from violent oppression in Kuwait, Bosnia, Kosovo, Iraq, and Afghanistan has not cut any ice with the scores of jihadist gangs actively trying to kill us.

Contrary to Noonan and McCain, and despite the dishonest rhetoric from our resentful allies, rivals, and enemies, the Senate report does not diminish America as a “force for good in the world,” a beacon of freedom, tolerance, and opportunity. That is why the U.S. is the emigrant’s favorite destination, why the U.S. is the go-to power for those countries in need when stricken by natural disasters or violent aggressors, and why the basic attitude of most of the world’s peoples is “Yankee go home, and take me with you.” The United States is in fact the “city on the hill,” the only world power in history that has used its power more for good than for ill. To think that reports of interrogation techniques used to save lives challenge the reality of American exceptionalism bespeaks a lack of confidence and faith not in our perfection, but in the fundamental goodness of America and its aims despite our occasional imperfections.

The Senate’s misleadingly dubbed “torture report,” an executive summary of which was released by the Senate Intelligence Committee, is a shameless and dangerous act of political grandstanding and moral preening. The investigative report of the CIA’s long-suspended interrogation program reflects nothing more than just how firmly the progressive mind is stuck in the old Vietnam War paradigm, their master narrative of American crime and left-wing righteousness. Once more, we see how reactionary is the ideology of the left, their minds unable to accommodate historical change, new ideas, or even coherent thinking.

Jose Rodriguez, a 31-year veteran of the CIA who ran the interrogation program, has detailed the hypocrisy and untruths of the report. He reminds us that in the aftermath of 9/11, lawmakers demanded that the intelligence agencies do everything possible to stop another attack. Indeed, Feinstein in May 2002 told the New York Times that “we have to do some things that historically we have not wanted to do to protect ourselves.” In her comments on the Report’s release, however, Feinstein referred to the Geneva Convention and said, “No exceptional circumstances whatsoever, (including what I just read) whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Twelve years later, the political advantages of moral preening have trumped the recognition that hard choices have to be made sometimes to fulfill the federal government’s highest duty, which is to keep the citizens safe.

Rodriguez also explodes the report’s canard that the enhanced interrogation techniques were not legally sanctioned. They were in fact reviewed in 2002 and 2005 by the Justice Department’s Office of Legal Counsel, and in 2009 were investigated by Eric Holder’s DOJ, which did not file charges. Rodriguez also debunks the claim that the CIA withheld information concerning their use from government officials. Rodriguez should know, since he was there when the CIA briefed Senator Feinstein and House Representative Nancy Pelosi on the techniques. And he exposes the lie that EITs did not yield vital information, an assessment also contradicted by ex-CIA chief Michael Hayden, who said of the charge that it “is so untrue” that it “actually defies human comprehension. We detained about 100 people, we had a Home Depot-like warehouse of information from those people.” Former CIA chiefs James Woolsey, Porter Goss, George Tenet, and, with shrewd equivocation, Leon Panetta, along with ex-Attorney General Mike Mukasey and current CIA chief John Brennan, have confirmed that EITs did provide valuable intelligence.

Yet the central fallacy of the report is that the EITs “amount[ed] to torture,” as Feinstein announced on the report’s release. But government policy follows the law as written and established by Congress, not what “amounts” to the law in someone’s subjective estimation. Such sophistic language compromises the report’s description of EITs. The techniques cited — threats, sleep deprivation, “physical assault,” stripping detainees naked, putting them in “stress positions” — are all obviously frightening and painful. But they are not “torture” under U.S. law. Nor is waterboarding, Exhibit A in the left’s indictment of U.S. heinous behavior. That’s why Feinstein slyly says that EITs “amount” to torture rather than explicitly calling them torture, and why she cites international conventions on torture rather than the U.S. law.

Just consult the statute covering torture in the U.S. Code, which defines it as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control,” and further clarifies “severe mental pain or suffering” as “the prolonged mental harm caused by or resulting from . . . the intentional infliction or threatened infliction of severe physical pain or suffering.” The key words are “intended” and “severe.” As Marc Thiessen concluded in his analysis of the EITs and their legality, “The fact is, none of the techniques used by the CIA meet the standard of torture in U.S. law. This is for two reasons: because the CIA interrogators did not specifically intend to inflict severe pain and suffering; second, because they did not in factinflict severe pain and suffering.” And in 2009 Attorney General Eric Holder agreed, when he testified before Congress that waterboarding U.S. military personnel as part of their training was not torture: “It’s not torture in the legal sense because you’re not doing it with the intention of harming these people physically or mentally.”

This simple legal reality is why Feinstein in her statement depends on imprecise adjectives like “visceral,” “ugly,” “brutal,” and “harsh” — to create a cloud of emotion that hides the fact that EITs were not illegal and were not torture. Furthermore, if Feinstein and other critics think this point is a sophistic evasion and that these techniques are torture, then they should call on Congress to change the law rather than rewriting history to suggest that the CIA did something illegal.

But fact and reality are not as important as politics and the leftist melodrama of America’s historical crimes. Thus Feinstein said her report reveals behavior that is “a stain on our values and on our history,” and Senator John McCain said they are violations of our “ideals.” So just how is attempting to keep America safe by interrogating terrorists according to the law, with doctors and psychologists present to monitor the terrorist’s well being, a “stain”? In the real world beyond our borders, genuine torture is used daily without the sort of legal limits or oversight imposed on our interrogators. And most of the time, the torture is not used to gain life-saving information, but to punish political enemies, terrorize political opponents, or just indulge sadistic cruelty. That is a real “stain.”

As for our “ideals,” such a low bar for indictment as waterboarding — which killed no one, and which several journalists volunteered to undergo — means, as Max Boot has suggested, that the Allied strategic bombing of Germany and Japan, which killed 650,000 to a million civilians with high explosives, nuclear bombs, and incendiaries, was an even grosser and more heinous “stain” on our “ideals” than sleep deprivation and scary threats. Where was the investigation of strategic bombing after World War II, or the pontifications on the Senate floor of how we Americans were “better” than such practices? Are we now just morally superior to those Americans who accepted the “awful arithmetic” and defeated 2 racist, brutal, totalitarian regimes? Or how about Obama’s droning to death over 3600 terrorists, including nearly 500 civilians, actions not subject to the legal review the EITs were? Dead terrorists are bad sources of intelligence of the sort gleaned by using EITs. Will we see a future investigation that condemns these drone executions as a “stain on our values and history” and “ideals”? It seems that “values” and “history” are defined by which party is in control of the government and stands to benefit politically by pointing out how they’ve been defiled.

But apart from politics, this report and its rollout are just another act in the progressive melodrama of America’s sin and guilt for crimes committed when morally superior liberals aren’t running the show. And exhibit number 1 for progressives of a certain age is the Vietnam War. That’s why the conflict in Iraq was shoehorned into the Vietnam paradigm as soon as ambitious Democrats like Hillary Clinton, John Edwards, and John Kerry, who had all voted for the war, began noticing the traction Howard Dean was gaining from opposing the war.

Thus the 1964 Gulf of Tonkin resolution authorizing the escalation of the war in Vietnam found its parallel in Bush’s alleged “lies” and “false intelligence” about Hussein’s WMDs (“Bush lied, millions died!”). The charge that Vietnam was benefitting the “military-industrial complex” and its lust for profits and resources was duplicated in allegations that the Halliburton Corporation and Dick Cheney were really after Iraq’s oil (“No blood for oil!”). Anti-war critics like I.F. Stone and the Berrigan brothers were reincarnated as the buffoonish Michael Moore and Noam Chomsky. The anti-war movement of the Vietnam era reappeared as International ANSWER, Code Pink, and various other outfits protesting the war in Iraq. Clichés like “escalation” and “quagmire” resurfaced in media commentary, and atrocities like My Lai were searched for in Abu Ghraib and Guantanamo.

And don’t forget the investigative assault on the CIA by Senator Frank Church’s committee following the 1975 North Vietnamese victory in Vietnam, a report that weakened the CIA and compromised its effectiveness in ways that helped pave the way for the 9/11 attacks. Now it finds a new iteration in the Senate Intelligence Committee report and the dishonest media coverage besmirching the CIA. The immediate result has been to endanger our agents and intelligence assets abroad. It still waits to be seen how much damage will ensue to the morale and future practice of the brave men and women who try to keep us safe.

Why not Try Terrorists in Civilian Courts?

On November 13, 2001 — two months after 9/11 — President Bush signed an Executive Order authorizing the U.S. government to try accused terrorists in military tribunals (a.k.a. military commissions) rather than in civilian courts. The president’s decision was swiftly and widely condemned by the political Left, which accused him of trampling on the civil rights and liberties of defendants who, the critics said, should be entitled to all the rights and protections afforded by the American criminal court system — where the standards that govern the admissibility of evidence are considerably stricter than the counterpart standards in military tribunals. The indicted al-Qaeda operative and U.S. citizen Jose Padilla — who was initially accused of plotting to detonate a radioactive bomb and to blow up multiple high-rise apartment buildings in an American city — became a cause celebre for the anti-tribunal chorus.

Then in June 2006 the Supreme Court ruled, with a five-Justice majority, that President Bush’s military tribunals were not authorized by federal law. This did not mean that tribunal rules were flawed or unconstitutional in any way, but only that those rules needed to be formally voted into law — or formally rejected — by Congress. In response to this decision, five months later Congress passed the Military Commissions Act of 2006, formally authorizing the adjudication of war crimes and terrorism cases in military courts. The House of Representatives vote was 253 to 168 (Republicans voted 219 to 7 in favor, Democrats 160 to 34 against); the overall Senate margin was 65 to 34 in favor.

According to the Defense Department, military tribunals, where military officers serve as the judges and jurors, are designed to deal with offenses committed in the context of warfare — including pillaging; terrorism; wilfully killing or attacking civilians; taking hostages; employing poison or analogous weapons; using civilians as human shields; torture; mutilation or maiming; improperly using a flag of surrender; desecrating or abusing a dead body; rape; hijacking or hazarding a vessel or aircraft; aiding the enemy; spying; providing false testimony or perjury; soliciting others to commit offenses that are triable by military jurisprudence; and intending or conspiring to commit, or to aid in the commission of, such crimes.

The issue of whether it is appropriate to try someone accused of the aforementioned transgressions in a military court depends upon how one answers a single overriding question: Is terrorism a matter of war, or is it a legal issue where redress should be pursued via the criminal-justice system — like robbery, vandalism, or murder? To answer this question, it is useful to have an operational definition for the term “terrorism.” The FBI places terrorism in a category clearly distinct from the crimes traditionally handled by civilian courts, defining it as the “unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”

By sending American troops into Afghanistan to overthrow that nation’s al-Qaeda-sponsoring Taliban regime, President Bush signaled clearly that he considered the atrocities of 9/11 to be acts of war that merited a military response; that is, he did not view the hijackings as mere violations of criminal codes by a band of 19 outlaws, but as acts of terrorism. It would not be enough, he decided, to merely track down whoever may have personally conspired with the hijackers and try them in federal court. Fifteen years earlier, President Reagan had responded similarly to the deadly bombing of a Berlin discotheque frequented by American soldiers. Once U.S. intelligence authorities had gathered convincing evidence that Mu’ammar al-Qadhafi’s Libyan government had sponsored the attack, Reagan deemed it an act of war and, rather than standing pat until redress could be achieved in a court of law, he ordered carrier-based warplanes to strike targets in Tripoli.

The Left largely rejects the notion that the current War on Terror is a legitimate, or even an actual, war — characterizing it instead as a contrived pretext for American imperialism (and oil-grabbing) abroad, and for the erosion of civil liberties domestically. Attorneys Spencer J. Crona and Neal A. Richardson suggest that many Americans have accepted this perspective because metaphorical references to “war” abound in contemporary vernacular — references to such endeavors as the “war on poverty,” the “war on drugs,” the “war on AIDS,” and the “war on hunger.” As a result, say Crona and Richardson, people may be inclined to view the war on terror as yet another social-justice or law-enforcement undertaking that, while it might warrant some financing, certainly does not merit military action.

In addition, a significant proportion of Americans fail utterly to understand the nature of the enemy that has declared war on them. As the late Ayatollah Khomeini (a Shi’ite) of Iran announced in the wake of the 1979 hostage-taking at the U.S. Embassy in Tehran, “We are at war with infidels…I ask all Islamic nations…to join the holy war.” Today Osama bin Laden (a Sunni) preaches a similar doctrine of death. In 1996 he issued his Declaration of War Against the Americans Occupying the Land of the Two Holy Places, and two years later he set forth a Declaration of Jihad Against Jews and Crusaders. Whatever hatreds the Shi’ites and Sunnis feel toward one another, they are united by their shared commitment to wage war on America. Yet leftists choose to pretend that a state of war did not exist until President Bush deployed U.S. troops to Afghanistan and Iraq. Khomeini himself viewed such self-deceivers with the greatest contempt when he sneered: “Those who know nothing of Islam pretend that Islam counsels against war. Those who say this are witless. Islam says: Kill all the unbelievers just as they would kill you all! Kill them, put them to the sword and scatter their armies.”

But opponents of military tribunals argue that even if radical Islamists have in fact declared war on America, the U.S. Congress, which has sole authority to make formal declarations of war, has not done so in this case — and that the use of such tribunals is therefore logically unjustifiable. There is in fact considerable precedent, however, for trying accused war criminals in military courts even in the absence of a Congressional declaration of war: President Abraham Lincoln used military commissions extensively to sentence Confederate terrorists for such crimes as seizure, arson, and the destruction of transportation, communication or other systems of infrastructure during the American Civil War.

In all of American history, Congress has made formal declarations of war only five times: the War of 1812, the Mexican War, the Spanish-American War, World War I, and World War II. But as Henry Mark Holzer points out, presidents acting in their capacity as commanders-in-chief have sent troops into battle at least 130 times in the absence of such declarations. Sometimes those military conflicts, while not formally declared wars, were explicitly authorized by Congress. Among these were the Vietnam War (authorized by a vote of 88–2 in the Senate, and 418–0 in the House); the 1991 Persian Gulf War (52–47 in the Senate, 250–183 in the House); the 2001 invasion of Afghanistan (98–0 in the Senate, 420–1 in the House); and the 2003 invasion of Iraq (77–23 in the Senate, 296–133 in the House).

In other cases the U.S. has engaged in combat against a particular form of enemy aggression, even though our country was not officially at war with the nation from which the aggressors hailed. A good example of this was the 1801 Talbot v. Seeman Supreme Court case, which involved French privateers who were preying on American commercial shipping. In its decision, the Court affirmed Congress’s right to declare a “partial war” against the transgressors. Chief Justice John Marshall wrote at the time: “The whole powers of war being, by the Constitution of the United States, vested in Congress…Congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial war, in which case the laws of war, so far as they actually apply to our situation, must be noticed.” The parallel with the current war on terror, where intelligence and military forces seek to combat saboteurs and killers from a number of nations that are not formally at war with America, is obvious.

If we accept the premise that terrorism cases can rightfully be categorized under the heading of war, a secondary consideration in determining if military tribunals are the proper venue for their adjudication involves the question of whether a given defendant is a “lawful combatant” or an “unlawful combatant.” The former is entitled to prisoner-of-war status and its accompanying Geneva Convention protections; the latter is entitled to none of that. Article IV of the Geneva Convention defines lawful combatants as those whose military organization meets four very specific criteria: “(a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign [a uniform or emblem] recognizable at a distance; © that of carrying arms openly; [and] (d) that of conducting their operations in accordance with the laws and customs of war.” Al-Qaeda fails even to come close to satisfying these conditions. In the 1942 Ex parte Quirin case, the U.S. Supreme Court spelled out the implications of such failure:

[T]he law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

“Our government, the Court added, “by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, includingthose who, though combatants, do not wear ‘fixed and distinctive emblems.’”

If a terror suspect does not even qualify for designation as a lawful combatant, giving him access to the civil rights protections of the American jury system can properly be defined as an act of madness.

In recent years a Geneva Protocol relaxed the foregoing criteria in recognition of guerrilla fighters as legitimate combatants in what are nominally “wars of national liberation,” even though they neither wear uniforms nor bear arms openly at all times. But even under this lower standard, the designation of “lawful combatant” requires one to eschew indiscriminate attacks against civilians and to bear arms openly duringmilitary deployment and engagement — requirements that al-Qaeda operatives do not fulfill. As Crona and Richardson write, “A casually attired driver of a van carrying a concealed bomb does not fit anyone’s definition of a lawful combatant.”

Apart from the question of whether military tribunals are a good idea philosophically, trying terrorists and war criminals in civilian rather than military courts poses a number of serious problems from a practical standpoint. For one thing, the rules defining admissible and inadmissible evidence in each venue differ dramatically. In civilian trials, neither coerced testimony, nor confessions made in the absence of a Miranda warning, nor hearsay evidence can presented to the court; in military tribunals the opposite is true, provided that the court determines such evidence to have “probative value to a reasonable person.” Crona and Richardson explain the profound significance of this:

A relaxation of the hearsay rule might become critical in a prosecution for terrorism where it may be impossible to produce live witnesses to an event which occurred years earlier in a foreign country. For example, the indictment in the Pan Am Flight 103 case details the alleged purchase of clothing, by Libyan intelligence agent Abdel Bassett, for placement in the suitcase with the bomb. The clothing was used to disguise the contents of the suitcase containing the bomb, which was placed inside a radio-cassette player. Under the rules of evidence applicable in U.S. District Court, the prosecution would have to produce in person the Maltese shopkeeper to identify Abdel Bassett as the man who allegedly purchased the clothing back in 1988, as opposed to producing the investigator who tracked down the shopkeeper and showed him a photograph of Abdel Bassett. Even if we assume that the shopkeeper could be located six years or more after the fact, we recognize that it is nearly impossible to secure involuntary testimony from a witness who is a citizen of a foreign country, especially one that historically has been less than sympathetic to the United States. The reach of a federal court subpoena simply does not extend to Malta.

The rules governing the admissibility of coerced testimony and hearsay have a direct bearing on the case of Jose Padilla, who is now being tried in a civilian court. In June 2004 the Justice Department released a declassified document enumerating Padilla’s various terrorist plans and his al-Qaeda connections. The information therein came not only from Padilla’s own admissions, but also from a number of additional al-Qaeda detainees who independently confirmed (sometimes through coerced testimony) the details that Padilla gave, particularly about the plots to detonate a “dirty bomb” and to blow up apartment buildings. But none of this evidence will be admissible in Padilla’s current trial. Consequently, he is being formally charged with offenses of far less gravity than those detailed in the aforementioned Justice Department document. As The New York Times explains:

[C]onstrained by strict federal rules of evidence that would prohibit or limit the use of information obtained during [coercive] interrogations, the government will make a far more circumscribed case against Mr. Padilla in court, effectively demoting him from Al-Qaeda’s dirty bomber to foot soldier in a somewhat nebulous conspiracy. … Senior government officials have said publicly that Mr. Padilla provided self-incriminating information during interrogations, admitting, they said, to undergoing basic terrorist training, to accepting an assignment to blow up apartment buildings in the United States, and to attending a farewell dinner with Khaled Sheikh Mohammed, the suspected master planner of the Sept. 11 attacks, before he flew to Chicago in 2002. But any confessions by Mr. Padilla while he was detained without charges and denied access to counsel — whether or not he was mistreated, as his lawyers claim — would not be admissible in court. And it is unlikely that information obtained during the harsh questioning of Al-Qaeda detainees would be admissible, either….

Trials of terrorists in civilian courts are beset by further practical limitations as well. Consider, for example, a hypothetical instance where U.S. military personnel capture a foreign terrorist overseas and transport him to the United States, against his will, for trial. Explains attorney Mitchell Lathrop: “Immediately apparent are the issues of the legitimacy of the exercise of criminal jurisdiction over him by the United States, i.e., his arrest in the first instance, and his involuntary transportation to the United States. Then come the issues of the selection of the proper jurisdiction for the trial, the application of the laws of his own country, the selection of a jury, and even personal and subject matter jurisdiction of U.S. courts. Any qualified defense lawyer would certainly challenge jurisdiction and a series of complicated appeals would inevitably result. In the final analysis, a plea bargain could well result just to avoid the interminable delays.” Dealing with terrorists under such a set of rules is analogous to participating in a shootout where only the enemy’s weapon is loaded. Moreover, it signals to the watching world that Americans have become consumed by guilt vis a vis the allegedly irredeemable flaws of their own culture and, as a consequence, do not possess the requisite courage for dealing aggressively with those who would seek to destroy their country.

Another exceedingly significant weakness inherent in civilian trials for terrorists is the fact that in such proceedings, there exists a high likelihood that classified intelligence sources will be compromised. If the government wishes to present certain incriminating evidence in a civilian trial, which is open to the public, it must disclose its sources as well as the techniques it used for obtaining the information from them. This obviously would place those sources in grave danger and would quickly lead to the non-cooperation or disappearance of many of them — to say nothing of the future potential informants who would undoubtedly choose to avoid placing themselves in similar peril. Moreover, the effectiveness of any publicly disclosed information-gathering techniques would thereafter be permanently compromised. As John Dean writes, “Many cases have never been prosecuted against criminals because to do so would force disclosure of a valued intelligence source — be it an informant, an enemy code that had been broken, or an illegal electronic intelligence source.” By contrast, military tribunals permit incriminating evidence to be presented to the judge and jury, while being kept secret from the public as well as from the defendant and his attorney.

Critics commonly suggest that, given the foregoing ground rules, military tribunals are little more than kangaroo courts where defendants have no chance of receiving a fair hearing. This may well have been true in Stalin’s Russia, but by no means has it been the case where Western democracies are concerned. Considerthe post-World War II Nuremberg trials of the most important captured leaders of Nazi Germany, architects of the Holocaust. The International Military Tribunal at Nuremberg acquitted three of the twenty-two major defendants; sentenced four others to twenty years in prison or less; and sentenced three to life in prison. In other words, nearly half of those accused were spared the death penalty. Similarly, United States military tribunals, which were composed solely of American judges, tried 177 other Nazi officials and members of the SS, convicting 142 and executing only 12. It can be reasonably argued that military jurors are less likelythan their civilian counterparts to render decisions rooted in “inflamed passions” rather than in solid evidence. Finally, we must acknowledge that those who serve as jurors in the civilian trials of accused terrorists may, if they render “guilty” verdicts, be extremely vulnerable to violent retribution from affiliated terrorist and militia groups — another argument against civilian trials for terrorists.

For those who are concerned about legal precedent, it must be understood that the use of military tribunals for the adjudication of war crimes is in no way a departure from past practices. As noted earlier, military commissions were used commonly during the Civil War. Prior to that, General George Washington employed such tribunals during the American Revolution in the late 18th century. In the era following the ratification of the U.S. Constitution, military tribunals were first convened by Major General Winfield Scott during the Mexican-American War of 1846–48, to adjudicate the alleged war crimes of American troops and Mexican guerrilla fighters alike. World War II also saw the use of military courts, the most famous case involving eight marines of the Third Reich (one of whom was an American citizen named Herbert Haupt) who rode a Nazi U-boat to the east coast of the United States, where, laden with explosives, they disembarked and set off toward various locations with the intent of bombing railroads, hydroelectric plants, factories, department stores, and defense facilities across the country. The saboteurs were wearing no military uniforms or identifying emblems when they were captured, meaning that they were, in the eyes of the law (as defined by the Supreme Court in Ex parte Quirin, quoted earlier in this article), “unlawful combatants.” Refusing to grant the perpetrators civilian jury trials, President Franklin D. Roosevelt quickly created a secret military commission to hear their cases. All eight were convicted and sentenced to death, though two turncoats later had their sentences commuted to life in prison.

Notwithstanding (or perhaps because of) the indisputable fact that trials by military commissions would permit the United States to prosecute terrorism cases much more quickly and effectively than would civilian trials, the political Left overwhelmingly condemns such tribunals, calling instead for greater civil liberties safeguards for suspected terrorists. Columbia University historian Alan Brinkley calls the use of military tribunals “one of the most extraordinary assaults on civil liberties” in American history. Senator Harry Reid, D-NV, complains, remarkably, that the Military Commissions Act of 2006 “does not provide the terror suspects with enough of the civil rights granted to Americans facing trials in U.S. courts.” And Senator Chris Dodd, D-CT, a presidential candidate for 2008, has introduced legislation that would give habeas corpus protections to military detainees; prohibit the introduction of evidence that was gained through coercive methods; authorize military judges to exclude hearsay evidence they deem to be unreliable; and narrow the definition of “unlawful enemy combatant.”

Such is the mindset of the Left ever prepared to defend the supposed rights and liberties of every last terrorist, as if the Constitution of the United States were nothing more than a suicide pact for the American people.

Is Torture Ever Justified?

“Torture” — commonly defined as “the inflicting of severe pain to force information or confession” — comes principally in two varieties: physical (e.g., the “third degree”) and psychological (e.g., sleep deprivation). The literature on torture is voluminous, most commentators concluding that torture is odious and unacceptable at all times and under all circumstances, especially in a democracy.

But is it?

Some of the commentators, in their analysis and discussion of the phenomenon of torture, admit being deeply troubled by how a democracy deals with the question of torture generally, let alone in the extreme example of the so-called “ticking time bomb” situation.

Until recently the question was hypothetical. It no longer is.

There are variations on the ticking time bomb situation, but the essence is in this plausible scenario: A known terrorist in FBI custody, whose information is credible, won’t disclose where in Washington, DC, he has secreted a “weapon of mass destruction” — a nuclear bomb — set to detonate in two hours. The Bureau is certain that the terrorist will never voluntarily reveal the bomb’s location. In two hours our nation’s capital could be wiped from the face of the earth, our government decimated, surrounding areas irredeemably contaminated, and the United States laid defenseless to unimaginable predation by our enemies.

What to do?

Accepting these facts for the sake of argument, we have only two choices. Do nothing, and suffer the unimaginable consequences, or torture the information out of the terrorist.

There are those among us — Jimmy Carter-like pacifists and Ramsey Clark-type America haters come to mind — who would probably stand by idly and endure an atomic holocaust. But most people would doubtless opt for torture, albeit reluctantly.

These realists would be correct. They would be entitled to be free of even a scintilla of moral guilt, because torture — of whatever kind, and no matter how brutal — in defense of legitimate self-preservation is not onlynot immoral, it is a moral imperative.

Unknown to most Americans, one case in two different courts in the United States — a state appellate court in Florida, and a federal Court of Appeals — have, albeit implicitly, endorsed such a use of physical force, and thus of torture, if necessary to save lives.

Jean Leon kidnapped one Louis Gachelin, who was held at gunpoint by Leon’s accomplice. A ransom was arranged, a trap was sprung, and Leon was arrested.

Fearing that the accomplice would kill Gachelin if Leon didn’t return promptly with the ransom money, the police demanded to know where the victim was being held. Leon wouldn’t talk.

According to the Third District Court of Appeal of the State of Florida, when Leon “refused, he was set upon by several of the officers. They threatened and physically abused him by twisting his arm behind his back and choking him [and, allegedly, threatened to kill him] until he revealed where . . . [Gachelin] was being held. The officers went to the designated apartment, rescued . . . [Gachelin] and arrested . . . [the accomplice].”

While this was happening, Leon was taken “downtown,” questioned by a different team of detectives, and informed of his Miranda rights. He signed a waiver and confessed to the kidnapping. But before Leon’s trial, he sought to exclude his police station confession, arguing that it was the tainted product of the cops’ literal arm twisting, choking, and threats. (No self-incrimination issue arose from Leon having revealed the victim’s location because that information was not sought to be used against him at his trial).

The trial judge denied Leon’s motion to suppress his confession on the ground that the force and threats used on him at the time of arrest were not the reason for his confession. In other words, the conceded coercion at the time of Leon’s arrest had dissipated by the time of his confession, which the trial judge ruled had been given voluntarily.

Leon appealed. The Florida appeals court affirmed, reaching the same conclusion as the trial judge: Whatever had happened at Leon’s arrest, the coercion had dissipated by the time he’d confessed. Thus, it was proper to use Leon’s confession against him at trial.

That ruling should have been the end of Leon’s first appeal because the only question in the case was the admissibility of Leon’s confession. Yet the appeal court’s opinion went further than the facts of the case required. In language lawyers call dicta — judicial reflections in no way necessary for a decision — the appellate judge added, gratuitously, that “the force and threats asserted upon Leon in the parking lot were understandably motivated by the immediate necessity to find the victim and save his life.”

Consider the implications. Even though the motive for using force, and the police’s use of it, were irrelevant to the decision, the appellate court’s 2–1 majority saw fit to give its express approval of physical and psychological coercion in this situation, so long as the product of that coercion (the confession) was not used against defendant Leon at his trial.

Lest anyone think that the dicta in this decision was an aberration, we need look only at the unanimousthree-judge decision in Leon’s further appeal to the United States Court of Appeals for the Eleventh Circuit.

The facts were not in dispute. Once again, the only issue on appeal was whether the physical and psychological coercion at the time of arrest tainted the confession, or whether the coercion had, by then, sufficiently dissipated to make Leon’s confession voluntary.

First, the federal appeals court dealt with self-incrimination. As to Leon’s arrest statement concerning where his accomplice was holding Gachelin, there was no issue since the prosecution, properly, had never tried to introduce that statement at the trial. Next, whatever coercion had been used, it did not taint Leon’s later confession because, according to the court, “the totality of the circumstances . . . clearly confirms . . . that the second statement was voluntary.” Therefore, that statement was both voluntary and admissible.

The federal appeal court’s ruling concerning the voluntariness of Leon’s confession completely disposed of the case. But, as with the earlier appeal, this court took the unnecessary step of including dicta to the effect that the use of coercion at Leon’s arrest was “motivated by the immediate necessity of finding the victim and saving his life,” and that “[t]his was a group of concerned officers acting in a reasonable manner to obtain information they needed in order to protect another individual from bodily harm or death.”

All true. But, again, irrelevant to the sole question before the court as to whether the coercion used at the arrest had dissipated by the time of the confession.

Since the appellate courts, both state and federal, went out of their way to express their approval of coercion in a life-threatening situation, their dicta is noteworthy because it signals their acceptance of coercion in principle — a legitimization, as it were.

It is but a short step from arm-twisting, choking, and death threats to the use of torture.

If, without objection from a state and a federal appeals court (indeed, with their apparent approval), the Florida police could employ a relatively benign form of coercion to save the life of a kidnap victim, it follows that the same rationale would support actual torture (physical and/or psychological) in a ticking time bomb situation.

Once that threshold is crossed — once the principle is accepted that torture legitimately can be employed to save lives — all that remains is the application of that principle to concrete cases. While that application could be difficult — requiring some form of probable cause, judicial oversight, and the like — the need to create such important procedural safeguards does not negate the argument that, in this country, where killers are routinely put to death for the commission of a single murder, it is neither immoral nor illegal in principle to employ non-lethal torture in the name of saving thousands of innocent American lives.

Is GITMO a Terrorist Recruiting Tool?

The 1983 marine barracks bombing, the 1993 WTC bombing, the 1996 Khobar Towers bombing, the 1998 U.S. embassy bombings in Africa and the 9–11 attacks, among many other outrages, all preceded Guantanamo. Islamic extremists don’t need an excuse to attack America. The only provocation that is needed is that we exist.

Does the United States Use Torture?

The testimony military investigators offered before the Senate Armed Services Committeeshould have permanently dispelled every pretext the far-Left used to charge American troops at Guantanamo Bay, Cuba, with abuse. Lt. Gen. Randall “Mark” Schmidt and Brig. Gen. John Furlow’s terse summary — “No torture occurred” — could not more curtly refute the lurid charges contained in years of their hate-filled screeds denouncing the terrorist detention center. The stunning disconnect it exposes between reality and leftist fantasy should make the “antiwar” coalition ashamed of demonizing the American military during a time of war. And endless media headlines spreading every baseless rumor of “misconduct” by our soldiers, a Democratic Party Left keeping the spotlight trained on Abu Ghraib and Gitmo, and scores of leftists chanting the enemy’s talking points all lead to one conclusion: The (once) mainstream Left has joined with left-wing extremists and Islamist radicals to form a united front against the United States’ war effort.

Although the two officers found the cumulative effect of the GIs’ more “creative” tactics “degrading,” they concluded: “As the bottom line, though, we found no torture. Detention and interrogation operations were safe, secure, and humane.”

This probe — the twelfth in 15 months — mirrored the conclusions of a previous investigation last year, in which Vice Admiral Albert Church wrote that Gitmo “does not lead to detainee abuse” and “is a model that should be considered for use in other interrogation operations in the global war on terror.”

Schmidt and Furlow’s study uncovered four unpunished abuses out of 24,000 interviews at Gitmo, or 0.000167 percent of all interrogations. Their testimony revealed:

• A woman who wiped fake menstrual blood on a prisoner had already been disciplined at the time of the investigation. She was not included in the total;
• A male interrogator once threatened to “go after” a terrorist suspect’s family;
• One terrorist had his mouth duct-taped shut after he refused to quit chanting; and
• Twice detainees were briefly chained to the floor.

It is worth noting only three of the four were physical in nature, none of meaningful severity. Although nothing can justify a soldier’s violations of established protocol, it would be helpful to understand the environment in which these mild “abuses” occurred. The female officer pretended red ink she on the “20thHijacker” was menstrual blood…after he spat in her face. According to FrontPage columnist Lt. Col. Gordon Cucullu, who traveled to Gitmo with a Congressional delegation last month, detainees regularly spit or hurl bodily fluids at guards — if they stop short of physical brutality. The interrogator’s vow to pursue the terrorists’ family inverted the usual situation: Again, Cucullu recorded one detainee’s vow to “cut the throats of [all his guards] and their families like sheep.” Another said, “One day I will enjoy sucking American blood.” Finally, perpetual chanting is a prime way jihadists sustain their religious hatred (more below).Although these soldiers’ actions were over the line, human nature occasionally entertains its baser instincts, especially after enduring months of abuse from people who are supposed to one’s captives. That there were not many times more retaliations reflects the high character of the American military. Even with this outstanding record, Gen. Schmidt prescribed a reprimand for Maj. Gen. Geoffrey Miller, but Southern Command Commander Gen. Bantz J. Craddock demurred.

Leftists also complain that interrogators kept one detainee awake 20 hours, four full hours longer than an average day. They also blared loud music — the same treatment Janet Reno accorded to 17 innocent American children in Waco, Texas.

More interesting is what is not in the report. Schmidt and Furlow found no substantiation for Sen. Richard Durbin’s allegation that terror suspects were chained for hours and forced to defecate on themselves, nor that Gitmo interrogators kept their prisoners in hot or cold rooms, two claims he made on the Senate floor. They also found no verification that the military denied prisoners food or medical necessities, a favorite charge of the Left. In fact, federal prosecutors recorded convicted terrorist attorney Lynne Stewart advising 1993 World Trade Center bomber Sheikh Rahman it would be “safe” to refuse his diabetic medication and tell the world America had withheld it from him, because no one on the “outside” would know any better. Such charges about Gitmo are equally mythical.

In addition to the four grave offenses cited above, other reports confirm that on a handful of occasions, American soldiers mishandled the Korans the military provides to every detainee. This, plus some high school pranks, constitutes the entire wrongdoing of American troops in dealing with the lowest form of terrorist murderers in Guantanamo Bay, Cuba, over the course of nearly four years.

Instead of rejoicing, the Left and the media have focused on the minor hazing, equating it with “torture.” Most headlines center on the case of the most extreme case, the “20th Hijacker.”

According to the probe’s conclusive findings, interrogators called the would-be mass murderer gay, subjected him to harassing strip searches, and forced him to wear a bra and dance with another man. (Homoerotica? My gosh, maybe they were Nazis!) These are said to be shameful deeds that bring reproach upon a devout Muslim’s entire clan. This Saudi detainee — whose name, for the benefit of his fundamentalist Islamic family, is Mohamed al-Qahtani — also had to bark like a dog and hear GIs impugn the virtue of his female relatives.

Donald Rumsfeld authorized these more “extreme” tactics — which one would be passé at a fraternity initiation — specifically for al-Qahtani, after he resisted all other methods of interrogation. And it worked. Schmidt testified that these methods caused al-Qahtani to crack, he “proved to have intimate knowledge of [terrorists’] future plans,” and provided “extremely valuable intelligence.”

Fmr. Detainees

The Washington Post greeted the news that our soldiers had gathered important information without committing any of the atrocities ascribed to it by the Left with the headline, “Abu Ghraib Tactics Were First Used at Guantanamo.” This response is typical of a media that reported every word of the former detainees as if it were revelation.

60 Minutes featured Sgt. Erik Saar’s leering allegations that interrogators denied prisoners water. An FBI document claimed an interrogator grabbed a detainee’s thumbs and “bent them backwards,” then “grabbed his genitalia.” (Dan Rather’s network did not report Saar’s observation that all Muslims received religious goods, including access to jihadist books in their library.)

The BBC repeated sordid tales from released detainees like Mamdouh Habib, who alleged he was beaten by 12 men, who then gang-raped him and made him wear diapers. He says he also regularly endured electro-shock treatment. 37-year-old British detainee Jamal al-Harith claimed Americans offered prisoners “filthy” water, fed them food ten-years out of date, and performed gratuitous amputations.

The Toronto Sun reported the fantastic claim of 15-year-old Omar Khadr, the son of a prime al-Qaeda financier. Forces captured the younger Khadr after a gunfight at an al-Qaeda compound. Khadr claimed guards thrashed him and used his body to mop up urine.

During the last Gitmo media feeding frenzy, which cost the lives of 16 Muslims, Newsweek fallaciously reported a GI flushes a Koran down the toilet, a story it believed to be plausible because of the stories of former detainees.

Leftist Hysteria

However, at the center of spreading terrorists’ talking points were the groups of the far-Left and their allies in the Democratic Party mainstream. Chief among these is the Center for Constitutional Rights. CCR published Detention in Afghanistan and Guantanamo, a 115-page report by former detainees Asef Iqbal, Ruhal Ahmed and Shafiq Rasul, who claimed Gitmo employees sprayed detainees with mace, “forced injections with unknown drugs,” and denied them drugs and medical treatment. In a fit of tortured syntax, CCR President Michael Ratner — who wrote Che Gurvara “has remained my hero” since boyhood — said Alberto Gonzalez “has his hands deep in the blood of the conspiracy of torture in this country.”

International Committee of the Red Cross called the treatment terrorists receive at Gitmo “tantamount to torture.” Amnesty International referred to it as “the gulag of our time.” Human Rights Watch repeated the claims verbatim. U.S. Advocacy Director Wendy Patten of HRW called Gitmo “the Bermuda Triangle of human rights.” All these statements were breathlessly repeated to the Arab world by al-Jazeera.

This encouraged the Hard Left to step up its demands. Medea Benjamin, whose avowed purpose is to get the United States to withdraw its army from as many nations as possible, led the way. Code Pink, which she founded, celebrated Independence Day with a rally for the closure of the Guantanamo Bay detention center, at which it distributed an American flag emblazoned with the phrase, “Torture is immoral and unpatriotic!” Several former detainees were present to “tell their stories” (shepherded by their lawyers, of course). Also present were Not in Our Name, the Center for Constitutional Rights, and feminist idols Gloria Steinem and Eve Ensler.

These organizations’ poison agenda fed off the ever-more-extremist rhetoric of the Democratic Party Left. Sen. Richard Durbin, D-IL, compared these very Guantanamo Bay interrogators to “Nazis, Soviets in their gulags or some mad regime — Pol Pot or others — who have no concern for human beings.” Ted Kennedy called the even-less-representative actions at Abu Ghraib “George Bush’s gulag,” vicious “torture chambers” that had been “reopened under new management.” Former Presidents Jimmy Carter and Bill Clinton, and 2008 presidential hopeful Sen. Joe Biden called for shutting down Gitmo. Clinton whined, “It’s time that there are no more stories coming out of there about people being abused…If we get a reputation for abusing people, it puts our own soldiers much more at risk.” Biden claimed Guantanamo Bay “has become the greatest propaganda tool that exists for recruiting of terrorists.” Shutting down Guantanamo Bay would only validate the darkest, basest fantasies of the Islamists and the Left as true. That’s a certain recipe for decimating troop morale, lowering our prestige, and assuring we “get a reputation for abusing people.”

As these examples show, it is not just the fringe Left that engages in bashing our troops in harm’s way; increasingly elected officials are parroting their party line.

At least one senator gets this. On Wednesday, Sen. James Inhofe, R-OK, asked, “What damage are we doing to our war effort by parading these relatively minor infractions before the press and the world again and again and again while our soldiers risk their lives daily and are given no mercy by the enemy?”

The answer is: We’re doing tremendous damage to our war effort by running a non-stop media campaign spotlighting our every foible, no matter how inconsequential. It harms our credibility, needlessly inflames burgeoning jihadists with new objects of hatred, and makes the United States appear like a moral leper. And that is exactly how the Left wants it.

In 2004, a report by Albert T. Church III concluded, “We can confidentially state that based upon our investigation, we found nothing that would in any way substantiate detainees’ allegations of torture or violent physical abuse at GTMO.” Almost all the interrogations at Gitmo were conducted according to the Army Field Manual approved by Obama himself. Conditions for the prisoners at Gitmo far outstrip those in most prisons, including in the United States. Jihadists involved in planning, aiding, and participating in the murders of Americans can play sports, work out on gym equipment, hang out with their comrades, learn English, take art lessons, peruse a library of 14,000 Arab-language books, and view satellite television, including Al Jazeera. They get first-class health care and nutrition, and their food is prepared according to halal standards of ritual purity — all that good grub has led to the “Gitmo gut.” Islamic holidays are respected, Korans handled by guards with delicate care, magazines censored to remove images disturbing to pious Muslims, and arrows painted on the floors pointing to Mecca to guide the prisoners in their daily prayers. Rush Limbaugh is justified in calling Guantánamo “Club Gitmo.”

Yet despite these facts, the myth has arisen that the existence of Gitmo, as the Wall Street Journal summarized liberal thinking, “symbolizes prisoner abuse, serving as a propaganda tool for extremists and complicating counterterrorism efforts with allies.” The incoherence of this argument points to the larger problems of American foreign policy in dealing with jihadism.

First, our tendency to take seriously the malignant propaganda of our enemies bespeaks our civilizational failure of nerve. Since there has not been any “prisoner abuse” at Gitmo, why should we legitimize blatant lies the purpose of which is to erode our morale and serve the interests of disaffected Westerners? And given the horrific conditions and routine use of torture in most prisons in the Muslim Middle East, why should we for one second listen to any government or group in that region criticizing Gitmo? Our acceptance of this double standard does not confirm our superior virtues and principles, not when such acceptance emboldens the enemy and convinces him that we are too weak and decadent to do what it takes to defend ourselves.

Then there is the assumption that Muslims who practice jihadist terror are merely reacting to affronts perpetrated by Americans, rather than acting on their own motives. Bin Laden was the master of attributing his violence to an ever-shifting catalog of American sins — support for Israel, stationing troops in Saudi Arabia, participating in the 1983 Lebanon war, neo-colonial machinations to secure oil supplies, even failing to sign the Kyoto accords all appeared as pretexts for terrorism. But of course, this was propaganda for consumption by self-loathing Americans. In reality, as Ray Ibrahim’s Al Qaeda Reader documents, al Qaeda’s jihadism is driven by the venerable Islamic doctrines that for 14 centuries have spurred Islamic violence, and that are epitomized in Mohammed’s “great commission”: “I was ordered to fight all men until they say, ‘There is no god but Allah.’” Jihadists don’t need Gitmo, or Israel, or globalism, or any other material reason to attack infidels. Like the Hydra, every grievance we appease will be replaced by two more. Jihadists have plenty of religious motives for trying to destroy the culture that once trembled at Allah’s armies but that now dominates a world that Islam teaches is destined to be ruled by Muslims, the “best of nations raised up for the benefit of men,” as Koran 3.110 has it. But like our tendency to blame poverty or lack of political freedom for creating terrorists, this focus on material causes ignores the powerful role of spiritual motives for jihadist terror.

As for “complicating counterterrorism efforts with allies,” this again bespeaks our curious arrogance that reduces every nation’s behavior to reactions to our own. Our allies friendly or otherwise do not calculate their foreign policy on the basis of lofty moral principles we allegedly violate. They figure out where their own interests lie and act accordingly, taking into account their evaluations of our strengths and weaknesses. As Thucydides taught us long ago, nations that cannot achieve their aims by force often call on principle and “take up the cry of justice, a consideration that no one has ever yet brought forward to hinder his ambition when he had a chance of gaining anything by might.” When we credit the specious pretexts of our allies, who are pursuing national interests that very often conflict with our own, we make our policies hostage to the self-interested aims of others.

Finally, the idea that somehow we gain an advantage in our fight with jihadism by upholding standards of exquisite constitutional delicacy in our treatment of vicious terrorists is equally delusional. Giving terrorists Geneva Convention protections, for example, or constitutional rights reserved for citizens is not to our enemies a sign of strength. Quite the opposite. As the gleeful victory celebrations by the Taliban over the recovery of 5 of their top commanders show, it is perceived as weakness, failure of nerve, and lack of confidence in the rightness of our cause. A people who behead their enemies or eat their hearts are not going to be impressed with our generous provisions of constitutional rights and pro bono legal counsel.

Does Enhanced Interrogation Violate the Geneva Convention?

The Geneva Conventions loom large over U.S. terrorist detainee policy — even when the conventions may not strictly, as a matter of law, apply. In addition to their legal force, the conventions carry the weight of moral authority. It is no small matter, then, to question whether U.S. detention efforts fall short of the standards of Article 3 — an article that is common to all four Geneva Conventions (hence its designation as “Common Article 3,” or CA3). But that was the implication when President Barack Obama ordered the secretary of defense to conduct an immediate 30-day review of the conditions of detention in Guantanamo to “ensure full compliance” with CA3.

What exactly such compliance requires is open to debate.

CA3: Already in Force

From the military’s point of view, Common Article 3 has been in full force for over two and a half years at Guantanamo. In June 2006, the United States Supreme Court ruled in the case of Hamdan v. Rumsfeld that America’s armed conflict with al-Qaeda was non-international in character and, as such, was governed by CA3.[1] Within a week of that ruling, Deputy Secretary of Defense Gordon England issued a department-wide memorandum requiring all Department of Defense components to comply with CA3. Shortly thereafter, all components of the Department of Defense reported that they were in full compliance; this included the Joint Task Force in charge of detention operations at Guantanamo Bay, Cuba.

On September 6, 2006, the Department of Defense issued a department-wide directive applicable to all detainees in DOD custody or effective control. That directive incorporated verbatim CA3 of the Geneva Conventions and required the entire Department of Defense, including Guantanamo, to comply with CA3.

Whether this September 2006 directive marks the end of the story depends on what the text of CA3 means. And that is not so straightforward an inquiry.

Defining CA3

Common Article 3 is the third article common to each of the four Geneva Conventions. The Geneva Conventions codify much, albeit not all, of the law regulating armed conflict and the humane treatment of persons detained during armed conflict. The four conventions, as most recently revised and expanded in 1949, comprise a system of safeguards that attempt to regulate the ways wars are fought and to provide protections for individuals during wartime. The conventions themselves were a response to the horrific atrocities of World War II. The first convention covers soldiers wounded on the battlefield, the second covers sailors wounded and shipwrecked at sea, the third covers prisoners of war, and the fourth covers civilians taken by an enemy military or otherwise impacted.

What CA3 precisely requires and what it forbids is subject to debate. According to the actual language of CA 3, detainees “shall in all circumstances be treated humanely,” but the term humanely is never defined. “[O]utrages upon personal dignity, in particular humiliating and degrading treatment,” are strictly prohibited, whatever they may be. Also prohibited are “cruel treatment and torture,” but again, there is no definition of these terms. CA3 is a good statement of principles, but aside from banning murder and hostage-taking, it provides no concrete guidance to anyone actually holding detainees.

Nonetheless, CA3 is a part of U.S. treaty and criminal law. Congress, in the 1999 amendments to the War Crimes Act, made it a crime to violate CA3. For certain acts, such as murder, taking hostages, and obvious acts of torture, the prohibited conduct should be clear, since Congress has defined the elements necessary to prove these crimes in statutory law.

But what exactly constitutes “outrages upon personal dignity, in particular humiliating and degrading treatment”? No universal or even national consensus as to the definition of these terms exists. There is, however, no doubt that what constitutes humiliation or degradation, as distinct from acceptable treatment, is highly context-specific and culture-dependent. For example, any custodial interrogation or incarceration entails elements of humiliation that would be unacceptable in other contexts. Likewise, some societies find placing women in a position of authority, as guards or interrogators, over detained individuals unacceptable; for other cultures that believe in basic gender equality, these practices are not even remotely humiliating. Even Jean Pictet, the world-renowned human rights attorney who helped draft the Geneva Conventions and led the International Committee of the Red Cross, noted that with respect to CA3, the drafters wanted to target those acts that “world public opinion finds particularly revolting.” This is a highly uncertain guide.

Pictet also stated that the outrages upon personal dignity referenced by the treaty were of a sort “committed frequently during the Second World War.” This too gives little guidance. Presumably, the prohibition would include forcing ethnic or religious minorities to wear insignia for purposes of identification, such as the infamous yellow star imposed by the Nazi regime on the Jewish population of Germany and occupied Europe. What else it may include is very much open to debate; the Axis Powers were ingenious in the area of humiliating and degrading treatment.

Principles of CA3

In interpreting this important provision, the United States would be justified in following some basic principles inferred from CA3.

First, CA3 imposes obligations on the parties to a conflict. This suggests that to violate the provision, the conduct must be both of a sort that world opinion finds “particularly revolting” and systemic, undertaken as a matter of policy rather than simply the actions of individual miscreants or criminals. Thus, although the treatment of some detainees by a few guards may have been outrageous, humiliating and degrading — and perhaps criminal — it would not violate CA3 unless it was ordered as a matter of policy or the responsible authorities failed to suppress and punish the conduct once it became known to them. All allegations of mistreatment are required to be investigated as a matter of written order.

Likewise, the use of the law of war paradigm cannot, by definition, be a violation of CA3, even if its specific application produces a less than ideal result. For example, detaining individuals believed to be enemy combatants is no violation of CA3, even if subsequent review concludes that their status classification was erroneous and they were not, in fact, enemy combatants. Under the same logic, and despite some oft-invoked but misguided criticisms of the U.S. detention policy, detaining captured enemy combatants for the duration of hostilities and not charging them with specific criminal offenses does not violate CA3.

Second, the purpose of CA3 was to compel compliance with the most basic requirements in the context of a civil war or other internal conflict, where it was acknowledged that the other provisions of the four conventions would not apply. Thus, it is a fair assumption that CA3 should not be interpreted as simply incorporating those other Geneva Convention provisions into the conflicts to which CA3 is applicable. Outrages upon personal dignity would not, therefore, include simply denying captives the rights and privileges of honorable prisoners of war under the third convention or of civilian persons under the fourth.

Third, CA3, like any other specific treaty provision, should be construed in the context of the overall treaty regime of which it is a part. In this regard, the overarching purpose of the 1949 Conventions (and all of the other laws of war-related treaty norms) has been to ensure that the popular passions aroused by war and even the consideration of military necessity do not vitiate the fundamental requirements of humane treatment. To suggest that, for example, the wartime standards of treatment should be fundamentally superior to the peacetime standards would turn this logic upside down and is untenable. Accordingly, such incarceration-related practices as single-cell confinement and involuntary-feeding — which, subject of course to appropriate safeguards, are used in civilian penal institutions of many Western democracies — cannot, by definition, infringe CA3.

There is no doubt that the intentions reflected in CA3 are laudable, but it is a less than perfect standard for the law of war, which must provide real and precise answers to an entire range of specific questions. Indeed, CA3’s language is ambiguous, capacious, and difficult to apply in some circumstances. Fortunately, U.S. detention operations in general, and post-2006 in particular, have featured conditions for detainees that — structured in ways that provide more than sufficient compliance with CA3 — compare favorably with any detention facilities in the history of warfare.

Conclusion/Summary

It is right to worry about inhumane treatment taking place at GITMO. But the concern should be for the dedicated, well-trained, highly professional American men and women who are subjected to a daily barrage of feces, urine, semen, and spit hurled at them along with vile invective as they implement a humane, enlightened system of confinement on men who want nothing more than to kill Americans. These quiet professional Americans, who live under the motto “Honor Bound for Defense of Freedom,” deserve our utmost respect and concern. Shame on anyone who slanders or disrespects them for short-term and short-sighted political advantage.

The demonization of Gitmo driving Obama’s rush to close the facility and release more of our enemies is one more example of the “kick me” sign the left has pinned on America’s back for decades. It does not demonstrate strength in the eyes of our enemies, but merely confirms their conviction that we are weak and destined for defeat.

The only part of Guantanamo Bay that should be closed is the exit.

Sources:

Ignore Obama's Grandstanding and Keep Gitmo Open

Closing Guantanamo Bay Will Only Empower Our Enemies

Why Closing Gitmo Is Still a Terrible Idea

http://www.nationalreview.com/article/426541/keep-guantanamo-open-arguments-closing-it-dont-add-tim-scott

Guantanamo Bay - Discover the Networks

Inside Gitmo: The True Story Behind the Myths of Guantanamo Bay

Clear and Present Danger

http://www.discoverthenetworks.org/Articles/Gitmo%20Guards%20Often%20Attacked.html

* Spencer J. Crona and Neal A. Richardson, “Justice For War Criminals of Invisible Armies: A New Legal and Military Approach to Terrorism” (Summer/Fall 1996)

* John Dean, “The Critics Are Wrong” (November 23, 2001)

* John Dean, “Appropriate Justice for Terrorists” (September 28, 2001)

* John Dean, “Military Tribunals: A Long And Mostly Honorable History” (December 7, 2001)

* Michael C. Dorf, “What Is an ‘Unlawful Combatant,’ and Why it Matters” (January 23, 2002)

* Henry Mark Holzer, “Who’s Who Among American Terrorists” (October 17, 2002)
* Henry Mark Holzer, “The Fifth Column’s Legal Team” (June 18, 2002)

* Mitchell L. Lathrop, “A Realistic Look at Terrorism Trials” (November 2001)
* Michelle Malkin, “No More Jury Trials for Terrorists” (October 24, 2001)

• Deborah Sontag, “In Padilla Wiretaps, Murky View of ‘Jihad’ Case” (January 4, 2007)
  * Jonathan Weisman, “Battle Looms in Congress over Military Tribunals” (July 13, 2006)
  * “U.S. Supreme Court: Holtzman v. Schlesinger, 414 U.S. 1304” (1973)
• http://archive.frontpagemag.com/readArticle.aspx?ARTID=7919

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