- - Tuesday, December 9, 2014

ANALYSIS/OPINION:

The “torture” report released Tuesday by California Democratic Sen. Dianne Feinstein’s Senate Select Committee on Intelligence is the latest attempt to prove that the George W. Bush administration’s “enhanced interrogation techniques” used on a small number of terrorist prisoners amounted to torture and that the CIA lied to congress about them. It is a political condemnation of CIA conduct meant to erect another barrier to effective interrogation of terrorists, and it is wrong in its statement of the law.

The Democrats — at least those who were among the congressional leadership, including the leaders of the House and Senate Intelligence committees in the years immediately after Sept. 11, 2001 — were all knowledgeable of the “enhanced interrogation techniques” used by the CIA to interrogate terrorist prisoners. Some involved rough handling — slaps to the face, bodies thrown against a wall, sleep deprivation — and some very few interrogations — notably of Khalid Sheik Mohammed and Abu Zubaydah — involved waterboarding. Since then, the Democrats have alternately denied that they knew what was done and sought to condemn the use of the “EITs” as torture.

On Tuesday, two actions sought to propel that false narrative. First was a New York Times op-ed by ACLU executive director Anthony Romero suggesting that President Obama pardon President George W. Bush, former Defense Secretary Donald Rumsfeld and others ” because it may be the only way to establish, once and for all, that torture is illegal.” The second was the release of the 500-page report authored by Mrs. Feinstein’s Democratic members and staff after an investigation that began in 2009. Both are wrong because according to a CIA inspector general report and Justice Department legal opinions at the time the EITs they employed — even waterboarding — weren’t torture under U.S. law.

Any condemnation of the CIA’s interrogation of terrorist detainees cannot be justified if it was lawful and if it resulted in gathering of intelligence that proved useful in capturing or killing active terrorists. Of the Feinstein report’s 20 conclusions only the first three are relevant to those questions. They state that the enhanced interrogation techniques were ineffective in acquiring intelligence, that the CIA’s justification for using them rested on inaccurate claims of effectiveness and that the CIA’s interrogations of detainees were “brutal and far worse than the CIA represented to policymakers and others.”

In his memoir, “At the Center of the Storm,” former CIA Director George Tenet wrote, “What the detainees gave us was worth more than the CIA, NSA, the FBI and our military operations achieved collectively.” Mr. Tenet was on the spot, supervising the intelligence gathering in which the EITs were used. Mrs. Feinstein’s report contains a long list of extracts from intelligence memoranda purporting to prove that the EITs were unnecessary because the intelligence was obtained by other methods. It’s Monday morning quarterbacking at its worst.

In her introduction to the report, Mrs. Feinstein writes that her “personal conclusion” is that the enhanced interrogation techniques amounted to torture, violated U.S. law, our treaty obligations and our values. In that, she is comprehensively wrong.

In 1994, the Senate ratified the U.N. Convention Against Torture, but its ratification was made conditional on implementing legislation because much of the U.N.’s language was too vague. Two years later Congress enacted Title 18 US Code Section 2340 which made torture committed outside the United States by a U.S. soldier or civilian government employee a federal felony.

That law defined torture in clear terMrs. It said that torture was, ” … an act committed by a person under color of law specifically intended to inflict severe physical or mental pain or suffering (other than incident to lawful sanctions) upon another person within his custody or physical control.” To avoid being struck down as unconstitutionally vague, the law went on to define terms undefined in UNCAT including “severe mental pain or suffering.” U.S. law defined that as, ” … the prolonged mental harm caused by or resulting from …” (1) intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or threatened administration of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; (3) threat of imminent death; or (4) a threat to do those things to a third person.

An August 1, 2002 Justice Department legal opinion for the CIA listed the EITs and advised correctly that they were legal. It stressed that, under the law, one of the criteria defining torture was whether the act caused lasting mental harm. Crucial to its conclusion that waterboarding was legal was the fact that thousands of American pilots had been waterboarded in Survival, Escape, Resistance and Evasion training without lasting mental harm. (The CIA reportedly varied its waterboarding techniques from the one used in SERE school and thus may have violated the law. The judgment in Mr. Tenet’s memoir cannot absolve CIA employees from going beyond the SERE school method but is otherwise unimpugned.)

In 2005, Sen. John McCain, Arizona Republican, wrote and obtained passage of an amendment to the law which the media advertised as a new, bold step to outlaw torture. Mr. McCain’s amendment did two things. It befogged the law on torture by adding that, “No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman or degrading treatment or punishment.” Instead of defining those impossibly vague terms, the McCain amendment punted, saying they should be defined in accordance with the U.S. Constitution, and the U.S. reservations in ratifying UNCAT. As the post-McCain amendment law stands, waterboarding and every other enhanced interrogation technique is now probably illegal.

About 39 detainees were interrogated using the enhanced interrogation techniques and only three were subjected to waterboarding, a practice that was ended in 2003. Does George Tenet’s memoir lie? Did the CIA go far beyond the EIT protocols? No one can learn the answers to those questions by reading Mrs. Feinstein’s politically-purposed report. Nor can they learn how much invaluable intelligence we haven’t been able to gather since Mr. McCain’s amendment was enacted, or how many lives have been lost as a result.

Jed Babbin is a former deputy undersecretary of defense in the George H.W. Bush administration and co-author of “The Sunni Vanguard” (London Center for Public Policy, 2014).


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