[tdaxp note: My thanks to Eddie of Hidden Unities for accepting an opportunity to guest blog on this site. Eddie’s introduction immediately follows this note. Below the fold you will find his 10 Questions on Torture.]
Due to my past writings on the subject, I canâ€™t and wouldnâ€™t want to hide the fact that I view waterboarding as torture. Further, Pres. Bush and those in his administration, the military and the intelligence community who engaged in the illegal authorization and implementation of enhanced interrogation techniques, torture, whatever you want to call it, are clearly war criminals. No official is above and beyond the Constitution, no one can claim the law does not apply to them and in particular, the American government has no business ever denying the most basic of Constitutional rights to American citizens (Jose Padilla), no matter how heinous their supposed crimes. Such actions weaken the strongest asset we have as a nation and civilization; namely our superior legal system and traditions. Thatâ€™s the real reason why weâ€™re so successful as a society in business, education and the opportunity to pursue and achieve a better life.
Nevertheless, unlike the President and his advisers, I can place my personal feelings aside for the good of the nation and suggest a course of action that can resolve much of this contentious issue.
The debate over enhanced interrogation techniques has continued in a variety of forums, of which the Small Wars Journal is certainly not a latecomer to. Malcolm Nance, a highly experienced SERE school master instructor, weighed in with a powerfully descriptive yet overly emotional and sentimental post on the SWJ blog. The sheer gravitas of his professional experience made certain that his opinion would be widely read and discussed in the blogosphere, with everyone from Dan of TDAXP to Abu Muqawama commenting.
Yet emotions, opinions and feelings must stay out of this debate. Nothing less than the future of our rule of law rests on our ability to view this dangerous world we live in as dispassionately and factually as possible. That means the information must be made available to make the hard calls on the issue and not be based on ideological rants from a minuscule minority of lawyers (John Yoo, David Addington) or the Pollyannaish views of another minority who believe that terrorists are little different from enemy soldiers in their tactics and grand strategy.
Educated and informed members of our civil society must ask a momentous series of questions of our lead practitioners and experts with vast experience in counter-terrorism, Constitutional law, law enforcement, intelligence-gathering, interrogation and warfare.
Such a gathering of the minds could occur under a commission brought to order by the President-elect in November 2008. They would be tasked with surveying all the evidence, facts and informed testimony available about the usage of enhanced interrogation techniques throughout modern history to include the post 9/11 era.
My suggestions for the co-chairs of the commission are none other than Presidents George H.W. Bush and Bill Clinton, to include additional representation from Sen. John Warner and Sen. Bob Kerrey, two retired four-star military officers, two retired senior intelligence officials, two former heads of the NCIS and Army CID as well as former FBI director Louis Freeh and two highly respected Constitutional scholars.
They would first need to answer a qualifying question that would prevent needless research and wasted time:
Until the past presidential term, were any of the enhanced interrogation tactics currently utilized by the USG considered torture by a serious majority of criminal prosecutors, lawmakers and historians?
After disqualifying any tactics that are clearly legal though perhaps counterproductive or just politically incorrect, they would need to determine the answers to the 10 pressing questions the use of enhanced interrogation techniques has brought to the fore:
1. Given the historical record available, does the use of enhanced interrogation tactics utilizing methods currently utilized by the US government work?
(Care will be taken to classify those tactics that have not yet been publicized, unless of course they are found to be â€œtortureâ€ and thus denounced in the final report.)
2. What do you do with the detainees who we utilize the enhanced interrogation tactics on?
(Can we afford to release them if they turn out to be low-level players or innocent and allow them to spread their knowledge of US interrogation tactics, or worse, publicize them to the national and global media, as has already happened?)
3. If the US has failed to keep secret its use of such tactics over the past six years, how does it plan on doing so in an age of global media, independent journalists and skillful activists who often combine observations on the ground, investigative daring and open source government statements and testimony to identify black interrogation sites and apprehended persons of interest?
4. What is the negative cost of using enhanced interrogation tactics to US relations with other countries?
(Has/will the use of such tactics proven detrimental to joint efforts? Are foreign intelligence, military and police agencies increasingly forbidden by law or edict to share information and individuals of interest with us because of such usage? How harmful has it proven to be, if at all, with public diplomacy efforts? Are foreign leaders and elites less likely or politically disinclined to assist America now because of domestic opposition made worse because of usage? Does such usage drag on coalition building or isolate America in international forums and agreements? )
5. In the event of suspected/potential terror attacks on America, what will be the effect on the American Muslim community if American Muslim citizens are interrogated by such methods?
(Will it be a galvanizing force or have a limited effect? Where does the usage fall under the Constitution?)
6. What safeguards are in place to prevent the unnecessary abuse of these tactics? Who and how are detainees selected for enhanced interrogation tactics?
7. Most important, what effects on good order, discipline and morale will the authorization of these tactics have on military, intelligence and law enforcement units?
8. What is the difference in the interpretation of the Constitution between the use of such tactics (for example) on an American citizen who is suspected of plotting the detonation of a crowded bus terminal in Dallas versus an American citizen suspected of killing 31 young women over the last 15 years?
9. Can the United States afford to support the use of enhanced interrogation tactics in the global spotlight for itself and its allies (Ethiopia, Thailand, Egypt, India, etc.) while still retaining the authority to identify and protest the use of such tactics (and worse) against people in Russia, Cuba, China, Syria, Iran, Burma, Nigeria, Venezuela, etc.?
Any illusions that the global activist community (who we depend upon and share serious interests with in areas like Eastern Europe, Central Asia, Southeast Asia and sub-Saharan Africa) will not rein contempt and doubt on American efforts as hypocritical and useless should be dispelled now.
10.Lastly, and admittedly, a lesser matter because it still remains a relatively theoretical event; what will happen to American officials traveling abroad if such tactics are authorized while much of the rest of our allies denounce their usage? What are the chances of the arrest of a former Secretary of Defense or a current CIA chief by prosecutors in Europe or Latin America?
Let us all have a serious, informed debate about the use of enhanced interrogation techniques. Are they torture? Are they legal with regards to our Constitution, our federal laws and the UCMJ? Are Americans supportive of the use of such tactics? Are Americans prepared to be branded a nation of torture by the majority of the rest of the world?
The President, the intelligence community and the military should not have the authority to engage in such actions unless they are approved by the American electorate in an informed manner. The issue at hand is far too important to be decided for the long term in a â€œlong warâ€ by so few, particularly in the (thus far) overwhelming opposition of former intelligence, military and law enforcement officials who know nearly as well as their contemporaries today the problems at hand and the options available.