Bureaucratic Battle Over Torture

It looks like the adults are trying to take control in the battle over whether Americans can legally torture detainees.

The voices of morality, sanity and just plain operational effectiveness have joined Sen. John McCain's lonely battle against the torture fetishists led by Dick Cheney and Porter Goss. McCain's amendment to the 2006 Defense Appropriations Act, which attempts to make the U.S. comply with its obligations as a signatory to the Geneva Conventions, has been fought tooth and nail by the administration. See also my earlier Cheney, The Loose Cannon and A Kook By Any Other Name for specifics of the dispute.

The advocates of torture are now seeking to exempt the CIA from McCain's Amendment.

The tell-tale sign that reason is rearing its head comes in the form of two pieces in the dominant establishment mouthpieces.

The New York Times has an article by Douglas Jehl on a report by the CIA's Inspector General from early 2004 which warned that some of the authorized techniques used in interrogations of detainees veered into prohibited territory vis a vis the U.N. Convention Against Torture and the 1949 Geneva Conventions:

"The previously undisclosed findings from the report, which was completed in the spring of 2004, reflected deep unease within the C.I.A. about the interrogation procedures, the officials said. A list of 10 techniques authorized early in 2002 for use against terror suspects included one known as waterboarding, and went well beyond those authorized by the military for use on prisoners of war.

The convention, which was drafted by the United Nations, bans torture, which is defined as the infliction of "severe" physical or mental pain or suffering, and prohibits lesser abuses that fall short of torture if they are "cruel, inhuman or degrading." The United States is a signatory, but with some reservations set when it was ratified by the Senate in 1994.

The report, by John L. Helgerson, the C.I.A.'s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

The agency said in a written statement in March that "all approved interrogation techniques, both past and present, are lawful and do not constitute torture." It reaffirmed that statement on Tuesday, but would not comment on any classified report issued by Mr. Helgerson. The statement in March did not specifically address techniques that could be labeled cruel, inhuman or degrading, and which are not explicitly prohibited in American law. "

That last bit about all this crap being legal is CIA legalese asserting that they were not breaking the law, although the IG seems to think otherwise:

"In his report, Mr. Helgerson also raised concern about whether the use of the techniques could expose agency officers to legal liability, the officials said. They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhuman and degrading treatment under the treaty does not apply to C.I.A. interrogations because they take place overseas on people who are not citizens of the United States.

..."The ambiguity in the law must cause nightmares for intelligence officers who are engaged in aggressive interrogations of Al Qaeda suspects and other terrorism suspects," said John Radsan, a former assistant general counsel at the agency who left in 2004. Mr. Radsan, now an associate professor at William Mitchell College of Law in St. Paul, would not comment on Mr. Helgerson's report.

...The agency issued its earlier statement on the legality of approved interrogation techniques after Mr. Goss, in testimony before Congress on March 17, said that all interrogation techniques used "at this time" were legal but declined, when asked, to make the same broad assertion about practices used over the past few years.

On March 18, Jennifer Millerwise Dyck, the agency's director of public affairs, said that "C.I.A. policies on interrogation have always followed legal guidance from the Department of Justice."

Her reference to the DOJ hints at the scope of this bureaucratic battle.

The second revealing piece is an op-ed in the Washington Post by ex-CIA General Counsel Jeffrey H. Smith, who as a State Department officer was instrumental in the negotiations that freed Natan Sharansky from Soviet imprisonment. Smith details inter alia the reasons that a policy allowing the torture of detainees is counterproductive. One is the quid pro quo expected to be extended to Americans who may happen to be captured in the future. Another is the simple question of morality. Smith concludes with my exact point from last week:

"There may be an argument for exempting the CIA from the McCain amendment. If so, the president and vice president should publicly make the case. They should say why they believe treatment of prisoners outside the Geneva Conventions would provide vital intelligence to protect us. They should give examples of how such treatment has produced valuable intelligence. If the choice is between the McCain amendment as modified by Cheney and nothing, we are better off with doing nothing and leaving the law where it is. Sooner or later this nation will come to its senses and remember how important international law and the Geneva Conventions are to our standing in the world and the protection of our citizens."

The outlines of important battles in Washington can often be glimpsed in articles full of leaked classified info and on the op-ed pages.