Archive for the 'Torture' Category

The McCain Amendment and the “Torture Narrative”

Belmont Club has had an open post since 10 Nov inviting comment on the McCain Amendment (118 comments as of this writing).

The McCain Amendment is a bad idea for several reasons. One of the most important is that it announces to the terrorists that they have nothing to fear during interrogation. Military interrogators have had this problem since Afghanistan. But since the Abu Ghraib scandal the problem has become acute due to even more stringent restrictions on interrogators - much more stringent than the Army Field Manual on Intelligence Interrogation.

Thus the second objection: the amendment has no operational effect, while it has significant negative propaganda consequences.

Todays Wall Street Journal editorial is a good, short summary of the problem - excerpt:

. . . The McCain Amendment is driven by the so-called torture narrative: the proposition that CIA techniques for questioning high-level al Qaeda detainees somehow “migrated” to Iraq and caused the Abu Ghraib abuses. But the irony is that Congress is proposing this remedial overreaction at the very moment the evidence has become overwhelming that the torture narrative is false.

Former Defense Secretary Jim Schlesinger headed one of more than a dozen major inquiries into detainee abuse, and he explained last year that the Abu Ghraib abuses were simply sadistic behavior by poorly trained reservists on the “night shift.” The victims weren’t even intelligence targets. If that evidence wasn’t conclusive enough, we now have the verdicts of the nine courts-martial that punished the Abu Ghraib offenders, none of which found evidence to support the proposition that the abuses had anything to do with interrogations.

We aren’t saying that there haven’t been abuses–probably hundreds of them–of detainees in the war on terror. But there have also been more than 70,000 detainees. In other words, the rate of prisoner abuse compares favorably with the U.S. civilian detention system, and it is better than the rate in earlier conflicts such as Vietnam and even World War II. Alleged abuses have been routinely investigated, and punished when warranted in courts-martial that have revealed a military willing and able to police its own.

Unfortunately, the Bush Administration has done a perfectly awful job of defending its policy with such facts. And its reaction to the McCain Amendment has been to propose an unsatisfactory compromise whereby the CIA would be exempted from prohibitions on aggressive interrogation while many Defense Department methods would be barred. But U.S. tactics should be morally defensible based on who the detainee is, not which department is doing the interrogating.

The McCain Amendment would hamstring U.S. interrogators

An excellent Wall Street Journal editorial provides more true history on “prisoner abuse”

The proposition that the Pentagon threw out any rules is simply false. Regarding Abu Ghraib, no fewer than nine courts-martial were confident enough of the rules to hand out sentences of up to 10 years to soldiers who violated those rules. The same courts martial proved that the abuses had nothing to do with interrogations. As former Defense Secretary James Schlesinger, who headed last year’s independent panel on detention operations put it, Abu Ghraib was the result of sick and sadistic behavior on the “night shift.”

If Mr. McCain has any point here, it’s that before 9/11 the U.S. had developed little guidance for interrogating prisoners whom the Geneva Conventions designate as “unlawful combatants”–i.e., terrorists, and guerrillas who fight out of uniform. But since 9/11 the Bush Administration has developed such guidance, and the allowable techniques are both specific and legally vetted. Abuses have occurred, and dozens have been punished. Overall, rates of reported detainee abuse by U.S. soldiers today are historically low compared with other conflicts, such as World War II.

and raises a critical point that is rarely discussed

The danger is that the McCain Amendment would only solidify what’s already been a military overreaction to the Abu Ghraib scandal. In Iraq, that overreaction has meant that terror suspects cannot be aggressively interrogated at all. They cannot be held for more than several weeks after capture without charge. The insurgents know this, and thus know that they have little to fear if they fall into U.S. hands….

Far more impressive is the near-unanimous opposition to the McCain effort from commanders currently fighting the war on terror. They understand that the amendment will be interpreted as an unnecessary rebuke, and as a huge disincentive to push detainees hard when seeking information on “ticking bombs.”

Or as Senator Pat Roberts explained his opposition in the Washington Post: “I know as chairman of the Senate Intelligence Committee that the information we get from interrogating terrorists is some of the most valuable information we get. It saves lives. . . . Passing a law that effectively telegraphs to the entire terrorist world what they can expect if they are caught is not only counterproductive, but could be downright dangerous.”

The ‘Torture Narrative’ Unravels

This Wall Street Journal piece on last week’s sentencing of Pfc. Lynndie England is an excellent summary of the true history of Abu Ghraib:

It’s worth remembering too that these prosecutions were based on investigations conducted with dispatch that did the Army nothing but credit: A criminal probe was begun within a day of the abuse reports traveling up the chain of command on Jan. 13, 2004; two days after that, Central Command issued a press release about the investigation; on March 20 it was announced that charges had been brought against six of those involved. Meanwhile, Maj. Gen. Antonio Taguba had completed an investigation whose conclusions have now stood the test of nine courts martial. And this all more than a month before the photos were leaked to the press.

Have detainee abuses occurred elsewhere in the war on terror? Of course. But they were “widespread” only if you define that term geographically instead of by frequency. The adjective “systematic” has been similarly misused. Overall, more than 70,000 detainees have passed through U.S. military custody since late 2001. About 500 criminal investigations have been conducted into allegations of related misconduct, many of which were found to be unsubstantiated. But more than 200 people have already been disciplined for actions ranging from failure to report to prisoner abuse itself.

There have also now been 12 major inquiries–including investigations led by Maj. Gen. George Fay and Vice Adm. Albert Church–into detainee treatment in Iraq, Afghanistan and Guantanamo Bay. More than 2,800 interviews have been conducted and 16,000 pages of documents produced. And there have been 31 congressional hearings and 45 staff briefings. Given that track record, we can be quite sure that the latest abuse allegations to surface (from an officer of the 82nd Airborne) will get the thorough hearing they deserve.

In short, all the evidence suggests a low rate of detainee mistreatment, one that compares favorably with U.S. civilian prisons, never mind that of other and earlier militaries. “The behavior of our troops is so much better than it was in World War II,” Mr. Schlesinger told me last year. I called him this week to ask what we’ve learned since. “That the press exaggerated,” he replied. The suggestion that Mr. Schlesinger and countless others–from decorated officers to military juries–have lent their good names to some kind of whitewash only reveals the remaining accusers for the crackpots they are.

More on the DOJ “torture memo”

In this Tech Central Station essay What Academic Freedom? Pejman Yousefzadeh quotes the invaluable legal blog Volokh Conspiracy on the DOJ memo and the Berkeley law students petition demanding that the University of California fire memo author, now professor, Yoo:

These charges just don’t square with the facts. As pseudonymous legal blogger Juan Non-Volokh points out, Yoo’s memo

“did not advocate torture; it did not even advocate forgoing Geneva Convention protections for Al Qaeda and Taliban detainees. To the contrary, it explicitly took no position on the matter and made clear that the President could, pursuant to his authority as commander-in-chief could impose the Geneva Convention’s requirements on military personnel. It was a legal memorandum written on behalf of a client, not a policy recommendation.”

For lawyers, an interoffice memo — such as Yoo’s — is not meant to advocate a particular argument. Advocacy comes only in briefs or memos of points and authority that are presented to a court. The writer of a brief or a memo of points and authorities will take a certain side, and will zealously argue it in an effort to persuade the reader (the judge) of the rightness of the position taken in the brief or memo.

Interoffice memos, on the other hand, are designed to explore and give both sides of an issue. Any conclusions will be tentative so as to allow readers of the memo the maximum possible flexibility to question or disagree with the conclusions of the memo. Even if the lawyer does not like what he/she finds in the course of researching an issue, even if the findings are not favorable for the lawyer’s client, the lawyer’s duty is to fairly and accurately report the law in the memo.

In writing his memo, Yoo did not editorialize on what the law should be. Instead, he found out what the law is on the issue of the Geneva Convention’s applicability. His conclusions may be debatable — it should surprise no one that legal issues become the subject of fierce debate — but that does not mean that Yoo’s findings should be renounced or that he should be dismissed from his teaching position.

Gordon Cucullu reports on inspection tour of Gitmo

Former Special Forces lieutenant colonel Gordon Cucullu wrote Gitmo Jive based upon a June, 2005 inspection tour by ten former military and intelligence analysts. I believe this is the real story of Gitmo:

Who are these men?

While we observed absolutely no evidence of torture of prisoners at Gitmo, it is clear that the daily atmosphere is rife with harsh abuse: The prisoners are constantly assaulting the guards.

Our young military men and women routinely endure the vilest invective imaginable, including death threats that spill over to guards’ families. All soldiers and sailors working “inside the wire” have blacked out their name tags so that the detainees will not learn their identities. Before that step was taken the terrorists were threatening to tell their al-Qaeda pals 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.”

That is bad enough, but the terrorist prisoners throw more than words at the guards. On a daily basis, American soldiers carrying out their duties within the 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, the 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. They have crammed themselves under the bunks, requiring several guards to extract them. Some have attacked unsuspecting soldiers with steel chairs. Determined to inflict maximum damage, detainees have groped under the protective face masks of the guards, clawing their faces and trying to gouge eyes and tear mouths.

Keep in mind that our soldiers—young men and young women—are absolutely forbidden from responding in kind. They are constrained to maintain absolute discipline and follow humane operating procedures at all times, at risk of serious punishment. Documents recently obtained by the Associated Press through a Freedom of Information Act lawsuit show that one detainee punched a guard in the mouth, knocking out his tooth, then began to bite the MP. Several guards were required to repel the prisoner’s attack; one soldier who came to the rescue delivered two blows to the inmate’s head with a handheld radio. For this he was dropped in rank to private.


Too hard? Or too soft?

We asked Hood if he was possibly being too lenient with these men. “This system of rapport-building works,” Hood assures us. In support of the soft-handed approach, he cites an extraordinary amount of actionable intelligence that continues to flow out of the interrogation rooms of Gitmo.

His revelation was a surprise to me. During my own career in the U.S. Army Special Forces, I had been taught that intelligence, like bread, gets stale quickly. That may be true for tactical intelligence of the sort I used in the field. Strategic intelligence, the kind that we continue to collect at Gitmo, however, seems to have a much longer shelf life. Today’s interrogators are succeeding at mapping out the complex organizational and financial structure of al-Qaeda in increasing detail, thereby uncovering networks that need to be attacked and dismantled. They are uncovering new “sleeper” cells. They are learning of temporarily shelved plans for new terrorist attacks, some of which have subsequently been thwarted by law enforcement authorities in America and Europe.

Another surprise for me was learning that many of the U.S. interrogators are women. We have all heard the salacious stories about using women to tease or embarrass the detainees. I saw a different reality. The camp behavioral expert, a female Ph.D. who has more than two years of experience at Gitmo, informed me that female interrogators have been very effective.

“We assume the role of sister or mother,” she explained, “something that is quite acceptable and natural in their culture.” She dresses demurely for her sessions. “I wear long sleeves, an ankle-length dress, and little makeup.” The interrogation room she enters is sparsely furnished with leg cuffs to secure the prisoner, a one-way mirror, cameras, and a distress button to summon help if needed.

“We review what we know of their backgrounds, try lots of approaches, and work on them to find something that they can relate to. Once we can get them to relate on a common item, even something irrelevant and mundane, then we can begin to probe.” It is a long, complex process requiring great patience, and more than a little human empathy. It categorically rejects the use of drugs, coercion, or duress.

Intelligence gleaned from Gitmo is blended with information from other sources to connect dots. We learned that one non-cooperative detainee had his cover penetrated just last month by having his photo identified by a freshly captured fighter in Afghanistan. Once confronted with his real identity, he began to talk.

It is important to keep in mind that these men, 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. (Some of these are contributing to our knowledge of al-Qaeda bombs found in Iraq.) Many of these men occupied the top al-Qaeda echelons, and met frequently with bin Laden.

A lot of these men came from middle-class or wealthy families. They come from 17 different countries, but a great many are Saudi Arabian. They are not driven by poverty, unemployment, or class deprivation. They are motivated by a virulent form of Islam that promotes jihad and death to Western civilization. They will kill Americans—including women and children—without conscience, for they are convinced that restoration of the Islamic caliphate is their sole mission on this Earth…

UPDATE: I just found a quote by Michael Barone that I’ve been looking for - on the old media’s obsession with “prisoner abuse”. This is a fragment of Barone’s review of Barnett’s The Pentagon’s New Map:

Barnett’s strategic analysis is a good antidote to old media’s focus on the behavior of seven prison guards in one shift in one cellblock in one prison and on old media’s frenzied attempt to bring Rumsfeld and Bush down by the absurd charge that somehow the declaration that some prisoners, who are in fact not entitled to Geneva Conventions protections, will not be held to be entitled to Geneva Conventions protections is directly responsible for the abuses in Abu Ghraib. Isolated prison abuses are less important than whether we, in Barnett’s terms, shrink the gap or, in Bush’s terms, bring democracy to the Middle East.

UPDATE: I am still searching my archives for the 2002 Bush directive ordering that Taliban detainees are to be treated as though they are entitled to Geneva Convention protections even though they clearly are not so entitled. So far I have found not the complete memo, though I have found a summary of the key points in this WSJ op-ed by Douglas Feith(subscribers only):

[In February 2002, President Bush determined] that the Conventions apply by law (and not just by policy) to our conflict with the Taliban regime. But Taliban detainees are entitled only to basic humane treatment, for the Taliban failed to meet the Convention’s conditions for POW status — e.g., wearing uniforms and complying with the laws of war. The Conventions do not apply to the conflict with al Qaeda. But al Qaeda detainees are entitled anyway to the same basic humane treatment, consistent with the Conventions’ principles.

As to Iraq, the U.S. government has recognized from the outset that the Geneva Conventions apply by law and all Iraqi detainees are covered by them. All Iraqi military detainees have had POW status. As we all know from the horrible photos, some detainees in Iraq have been abused, but that mistreatment violated the Defense Department’s policy as promulgated by the secretary.

UPDATE: I found my archived copy of the 2/7/2002 Bush directive “Humane treatment of al Qaeda and Taliban detainees”. It is a PDF scanned image of the declassified memo.

For more informed legal comment on the DOJ memo and the Bush directive, see this post.

Phil Carter: A Guantanamo Exit Strategy

The very word Guantanamo carries a negative connotation throughout much of the world, one that is antithetical to American values and America’s strategy of spreading freedom and democracy. It’s time for the United States to cut its losses there, while salvaging what it can.

Attorney Phil Carter (government contracts and international law for the LA firm of McKenna Long & Aldridge) and Intel Dump blogger, wrote these suggestions for the July Foreign Policy.

His analysis deserves some objective debate. The outline headings are:

  1. Get Congress off the Sidelines
  2. Clarify the President’s War Power
  3. Determine Who’s Who
  4. Embed Reporters at Guantánamo
  5. Retain the Most Dangerous
  6. Send the Rest Home

For those of us without both access and “need to know” it is a challenge to assess the overall interrogation policy. My working hypothesis, from all the sources I’ve been able to access, is that administration and military policy has been carefully designed but extraordinarily poorly explained. From my research I am quite confident it is not as flawed as trumpeted in the press. The just released independent report on Gitmo is clear: Only Three Violations Of Rules At Gitmo - No Torture

E.g., if challenged in the Comments, I’ll search up my source on the original Bush directive that states that illegal combatant Afghanistan detainees, while not entitled, are to be treated as if they are entitled
to Geneva Convention protocols.

Phil’s thesis, which I believe is accurate, is that the public relations have been such a disaster that the Guantanamo operation is a net-net liability. In addition to the headlined six themes, his conclusion is that the function of Guantanamo should be relocated to new facilities, perhaps Diego Garcia and separate conflict-specific facilities in secure areas of Iraq or Afghanistan.

A confidently-held speculation: had the U.S. sponsored Phil’s #4 “Embed Reporters
at Guantanamo” the media frenzy might not have developed - and if it did, would certainly
have been far more factually founded.






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