REVIEW & OUTLOOK
The Torture Canard
Treating terrorists with kid gloves won't protect American soldiers.
It was a when-did-you-stop-beating-your-wife moment. Attorney General John Ashcroft went before the Senate Judiciary Committee last week and declared, "This Administration rejects torture."
Given the circumstances, it's hard to blame Mr. Ashcroft for being so defensive. But it sure would be helpful if someone in the Administration would take the initiative to challenge this latest Beltway uproar. At the very least, officials might muster some outrage over Democratic and media implications that U.S. officials have been in the business of justifying the use of torture.
They could start by noting that no one has come up with a single instance of torture by American soldiers or with any policy directive advocating its use. The Abu Ghraib abuses were disgusting and are being duly punished, but the court martial charges do not include any incidents of torture.
The latest hubbub concerns a December 2002 list of interrogation techniques approved by Defense Secretary Donald Rumsfeld for prisoners at Guantanamo Bay and similar to those used at Abu Ghraib. They include forcing prisoners to stand for a maximum of four hours, the use of hoods, and quizzing them in 20-hour stretches. These "stress positions," as they're called, aren't torture either.
The subject of Wednesday's Senate hearing was the "torture" memos produced by the Justice Department early in 2002 and used as the basis for a Defense Department report a year later. The government hasn't released these private communications, but they have been leaking out in dribs and drabs in a kind of Beltway political torture.
The memos make the legal case for why the President is not bound by international treaties or federal law regarding the treatment of certain detainees in the war on terror. Several--by John Yoo, then at Justice, and White House Counsel Alberto Gonzales--explain why captured al Qaeda and Taliban fighters do not qualify for the same legal status as captured soldiers. One thing the memos do not do--though you'd never know it from way they're being characterized--is make the case for torture.
These are legal, not policy, documents. As such, their authors do what good lawyers do: analyze the law for the purpose of explaining the options available to their clients. In government, as in business, attorneys would be derelict if they did not advance the arguments that give their clients the maximum policy discretion. All the more so given that international courts and human-rights groups are only too eager to allege war crimes against Americans.
Consider, too, the context in which the memos were written. It was a few months after the September 11 attacks; the U.S. was in the early days of a new kind of conflict in which the old rules were being thrown out the window by our attackers. Faced with a threat from terrorists who have access to weapons of mass destruction and who deliberately target civilians, it would have been irresponsible for American policy makers not to have tried to sort through their legal options.
At the same time, by the way, prominent liberals were also raising the subject of torture. In a November 5, 2001, column titled "Time to Think About Torture," Newsweek columnist Jonathan Alter urged readers to have an "open mind" on the subject. Harvard law professor Alan Dershowitz weighed in with a proposal for judge-issued "torture warrants" and he's reasserted the point since Abu Ghraib. But apparently if a U.S. official merely raises the subject in an internal document, this is beyond the pale.
Wednesday's hearing included an emotional exchange on the Geneva Conventions between Democratic Senator Joseph Biden and Mr. Ashcroft, both of whom have sons in the military. "There's a reason we sign these treaties," Mr. Biden said. "To protect my son in the military. That's why we have these treaties, so when Americans are captured they are not tortured."
Mr. Biden is right--though for the wrong reason. He apparently buys the argument promoted by the international human-rights community that a captured terrorist who blends into the civilian population with the express intention of killing civilians deserves the same legal status as captured U.S. soldiers who abide by the rules of war. This would not help U.S. soldiers; it would hurt them while making a mockery of the Geneva Conventions, whose fundamental purpose is to make a distinction between civilians and war fighters.
As the Yoo and Gonzales memos explain, U.S. soldiers are better protected by preserving the distinction between legal and illegal combatants. This is the reason President Bush decided not to give POW status to captured Taliban and al Qaeda fighters. Far from sanctioning torture, Mr. Bush also ordered that they receive the same humane treatment required under the Conventions.
None of these are simple issues, and the rules of interrogation and prisoner treatment deserve debate. But we sure wish the moralizing critics would keep in mind that this is also a debate over how to protect the United States.
