Coercive Interrogation: Can Anyone Straighten Out This Mess?

There is more than enough blame to go around for the disastrous damage done to our international standing and national security by the uproar over the use of coercive interrogation methods—all of them "torture," in the parlance of many critics—to squeeze potentially life-saving information out of suspected terrorists.

Can anyone straighten out this mess? The best hopes seem to be Sen. John McCain, R-Ariz., and perhaps, Secretary of State Condoleezza Rice. Both understand the cost of losing the moral high ground that America has proudly claimed in past wars. Both seem eager to reclaim it. But they face formidable obstacles.

The biggest is the pigheaded, we-are-the-law approach of President Bush and Vice President Cheney. They have ostentatiously deprecated our international obligations and bypassed Congress, while working "the dark side" (in Cheney's words) by tacitly encouraging American soldiers to break large numbers of prisoners—including many mistakenly detained innocents—to see what information might spill out.

But the passive acquiescence of Congress (until recently) has been a big part of the problem by allowing administration abuses to fester while critics unwisely agitate to stigmatize all coercive interrogation.

And as usual, the main contribution from Europe—an incubator of terrorist plots to murder Americans (and Europeans)—has been hypocritical moral preening. The latest America-bashing fad centers on the CIA's not-so-secret "secret prisons" in Eastern Europe. Rice did well to remind Europeans, "We share intelligence that has helped protect European countries from attack, helping save European lives," and to hint that unless the Europeans "work with us to prevent terrorist attacks against their own and other countries," they might find a deaf ear the next time they beg us to rescue them.

Major newspapers in this country and in Europe exude a "we-are-shocked—shocked!" attitude about the idea that any prisoner should be pressured to talk merely because he may have information that could help thwart mass-murder attacks. Meanwhile, some conservative journalists wrongly attack McCain's sensible proposals to rein in the administration as a virtual ban on any and all coercive interrogation.

Many reporters have been simplistic to the point of inaccuracy in covering the irreducibly complex legal, moral, and practical issues raised by coercive interrogation.

It is not true, for example, that the McCain amendment now moving through Congress as part of the Pentagon's authorization bill would "ban torture of terror detainees," as The New York Times reported on December 12. Congress made torture a crime in 1994. The McCain amendment would add a ban on "cruel, inhuman, or degrading" treatment (with no criminal penalties). But contrary to the conservative Wall Street Journal editorial page, I doubt that this amendment would "effectively forbid some interrogation methods now being used ... by the CIA."

So a primer on the law of coercive interrogation may be in order. Readers uninterested in what Bush has called "the legalisms" may want to skip the next six paragraphs.

The 1949 Geneva Convention relative to the treatment of prisoners of war specifies that POWs "may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment" or "any other form of coercion" to force them to talk. But while Bush has been overly dismissive of the Geneva Conventions, he has been right to stress that terrorists who plot to murder civilians while hiding among them are "unlawful combatants" with no right to be treated as legitimate POWs.

Even terrorists are protected, on the other hand, by the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. It protects everyone in the world, with no exceptions.

The Convention defines "torture" narrowly, as deliberate infliction of "severe pain or suffering, whether physical or mental." And when the Senate ratified the treaty in 1994, the United States specified that torture included only such "universally condemned" methods as "sustained systematic beating, application of electric currents to sensitive parts of the body, and ... hanging positions that cause extreme pain."

The Senate was still more cautious in committing the United States to prevent "cruel, inhuman, or degrading" treatment (CID, in expert parlance) short of torture. It specified in a "reservation" that the U.S. promised only to prevent treatment that would violate constitutional due process rules against undue coercion or abuse of domestic criminal suspects.

Unlike the Constitution's rule against prosecuting a defendant based on evidence obtained through compelled self-incrimination, the due process rules do allow some coercive interrogation. How much? According to the most relevant Supreme Court precedent, Rochin v. California (1952), the test is whether the methods "shock the conscience," considering all the circumstances, including the importance of the information sought.

The Bush administration has secretly determined (according to news reports) that "waterboarding" (simulated drowning) and some other extremely coercive interrogation methods that the CIA has reportedly used against suspected Qaeda leaders are not "severe" enough to violate the torture ban. The administration has also made a virtual nullity of the CID ban by claiming that it does not protect non-Americans outside the U.S.

So it is that the president and his people reserve the legal right to use all interrogation methods short of torture on all suspected terrorists held outside the U.S. Against the background of U.S. forces' brutal treatment of thousands of prisoners—many of them innocent of involvement in terrorism—this position is understandably infuriating even to Europeans who are not reflexively anti-American.

Enter John McCain and Condoleezza Rice—not in alliance, but with the common objective of cleaning up the mess that the Bush administration has made.

Rice has become the highest-level Bush confidant to stress with any real conviction the importance of respecting international law and the decent opinions of mankind.

She is stuck with the narrow Justice Department-White House interpretation of the U.N. Convention. And she is in no position to discuss or renounce waterboarding or other CIA interrogation techniques, as her own interrogators in Europe and the media demand.

But Rice did pledge that, "as a matter of U.S. policy," (emphasis mine), all provisions of the U.N. Convention (including CID) are binding on U.S. personnel "wherever they are" in the world. Less prominent officials had said the same. But Rice committed the administration in bold letters.

Rice has also found important allies in her push for more defensible interrogation policies. They include Gordon England, who replaced Paul Wolfowitz as deputy Defense secretary, and Stephen Hadley, who succeeded Rice as Bush's national security adviser. For this administration, that's an epidemic of common sense.

But with Cheney and other powerful officials continuing to fight all meaningful restraints on brutal interrogation, McCain and his allies are correct to insist on legislative restrictions. The McCain amendment would make the U.N. Convention's ban on CID binding on CIA personnel around the world as a matter of law, subject to the 1994 Senate reservation. It would also provide clearer, and stricter, rules for the military by banning interrogation methods not listed in the Army field manual.

Are Rice and McCain overdoing it, as some conservatives warn? Are they making it too difficult for interrogators to get critically important information?

I don't think so. First, McCain seems to acknowledge that in an extreme (and highly improbable) scenario, such as the capture of a suspect who is known to have a nuclear bomb hidden in New York City, the power of the commander-in-chief would trump any congressional ban. "You do what you have to do," McCain told Newsweek. "But you take responsibility for it."

More important for real-world purposes, the McCain amendment and the 1994 Senate reservation allow for fairly rough interrogation of suspected high-level terrorists. As noted in my November 12 column, the "shock-the-conscience" test codifies the sensible principle that—short of torture—the law permits more-coercive interrogation methods as the importance and urgency of the information sought increases.

Take waterboarding, which ABC News reports has been effective in getting suspected Qaeda leaders to talk. It would surely shock my conscience if used on teenage Taliban foot soldiers. But the reported use of waterboarding to break captured 9/11 mastermind Khalid Shaikh Mohammed—who was as likely as anyone to know of other planned mass-murder attacks—strikes me as ugly but acceptable.

How does it strike you?