REVIEW & OUTLOOK
A Self-Inflicted Defeat
Why we might not break the next Khalid Sheikh Mohammad.
President Bush did a public service last week by finally explaining the importance of interrogation as an intelligence tool against terrorists. But we also wish he would have been more candid with Americans about the restrictions that have been put on interrogating even the very worst terrorists.
A major reason is an amendment pushed through Congress last year by John McCain. The Senator's amendment, which Mr. Bush agreed to over Vice President Dick Cheney's objections, established the Army Field Manual as the first and last word on Defense Department interrogations; it also banned "cruel, inhuman and degrading treatment." We appreciate Mr. McCain's moral authority on the subject, and this policy may sound innocuous.
But it was based on false premises amid the firestorm over Abu Ghraib, and it may well harm our ability to break the next Khalid Sheikh Mohammed. The central falsehood was the assertion that detainee abuses at Abu Ghraib resulted from "confusion" about the rules of interrogation--never mind that nine courts-martial and multiple investigations found the abuses weren't related to interrogations at all.
Equally erroneous was the suggestion that internal Administration debates on handling high-level al Qaeda detainees like KSM contributed to the alleged confusion. The idea, apparently, was that U.S. officials and commanders were too dense to distinguish--as the Geneva Conventions do--between legitimate prisoners of war (who may not be aggressively interrogated) and unlawful combatants (who can be). So the only way to prevent "torture" was to establish uniform rules for all.
A year later we're sorry to report that the McCain Amendment is creating obstacles to getting actionable intelligence via interrogation. The Army has released a new version of its Field Manual, which is available on the Internet for all to see. And the Manual makes it plain that Iraqi and Afghan insurgents can expect gentler treatment than common criminals get from American police.
In only one respect does the Field Manual recognize any difference between lawful and unlawful combatants: The latter may be separated from their compatriots. Otherwise, terrorists who have violated the rules of war by targeting civilians and fighting out of uniform are to be treated exactly like POWs and considered honorable fighters who have a right to keep their secrets.
So Iraqi and Afghan insurgents won't even face the prospect of your average good cop/bad cop routine. The manual allows for a watered down version called "Mutt and Jeff" in which interrogators can affect different personalities. But the Manual admonishes strongly that the intelligence "collector must be extremely careful that he does not threaten or coerce a source. Conveying a threat may be a violation of the UCMJ [Uniform Code of Military Justice]." We kid you not. "Mutt and Jeff" is the worst that Abu Musab al Zarqawi could have expected from the Pentagon had he been captured alive.
And what if he had been turned over to the CIA? The permissible methods for the spy agency remain classified, and on a visit to our offices last week Attorney General Alberto Gonzales would say only that the CIA would engage in no conduct that "shocks the conscience." He added that this concept was context-dependent, since the "shock" threshold may be higher with the likes of KSM--who planned 9/11--than for ordinary detainees. At least we hope it is.
In theory, this means there's still room to employ some of the aggressive techniques--such as stress positions, sleep deprivation, temperature extremes--that have been used successfully against al Qaeda bigwigs. But in practice we fear those approaches are a thing of the past. Reports that CIA interrogators have been buying legal insurance in the expectation of future prosecution are another way of saying that they will no longer use aggressive methods that could be second-guessed on Capitol Hill. (See John Kerry's revealing letter.)
Like any careful bureaucracy, the CIA will also now be asking for constant legal guidance from the Justice Department. Few Justice attorneys will be eager to offer robust advice after watching a fine lawyer like John Yoo run out of polite society for authoring the so-called torture memos that allowed us to break KSM.
All of this has to be counted a severe setback for the war effort if Mr. Bush is right that interrogations have played a key role in the antiterror fight and that "tough" methods are sometimes necessary. Last year ABC news reported that 11 top al Qaeda figures broke only after "waterboarding," which induces a feeling of suffocation and is the most controversial of the known techniques employed.
There's a legitimate debate to be had over waterboarding and other tactics. But part of our problem with the McCain Amendment was that Congressmen refused to engage in an honest debate lest they be accused of approving "torture," which no one sanctions but is a word used to slur anyone who wants aggressive interrogation.
The result was legislation that may have made everyone feel better after Abu Ghraib, but that also probably undermines our ability to get vital information from the next KSM we capture. That ability will be further damaged if the Administration's interrogation flexibility is again limited during current negotiations on Capitol Hill over the treatment of detainees. We hope the next "9/11" commission doesn't have to explain why the U.S. stopped employing interrogation methods that were both lawful and successful.
