slate on torture

By Emily Bazelon, Phillip Carter, and Dahlia Lithwick

The first foreign detainees began to arrive at Guantanamo Bay in January 2002, during the war in Afghanistan. For about 10 months, as their numbers grew to about 750, they yielded little useful intelligence. Many of them probably didn't know much. The U.S. interrogators who'd questioned them in Afghanistan generally didn't speak the requisite languages, had 16 weeks of training, and worked with lousy contract translators. In the urgent months that followed Sept. 11, they were far more concerned about releasing a potential bad guy than about shipping off dozens or hundreds of innocent ones. So, at least, says Anthony Christino III, former Army lieutenant colonel and senior watch officer for the Joint Intelligence Task Force-Combating Terrorism, in David Rose's book Guantanamo. Christino retired from the Army last June after 20 years of military intelligence work, and he speaks about the military's intelligence operations after 9/11 with the bristling indignation of a professional forced to watch the botching of a job he knows how to do well.

Christino argues that the best interrogators wrest good information from their captives by building trust. Maj. Gen. Geoffrey Miller, who took over as commander of Guantanamo in November 2002, didn't opt to go that route. Charged explicitly with increasing the intelligence yield coming out of the base, Miller stepped up the pressure. He rewarded detainees who provided information and punished those who didn't. According to FBI agents, those punishments caused great suffering, as we have detailed here. Miller's push toward harsher tactics relied on the foundation established by lawyers in President Bush's Justice Department and his Department of Defense. These lawyers crafted arguments that approved the use of interrogation tacticsincluding the use of stress positions and dogswhich had formerly been out of bounds.

These policies were deliberately designed to carve out exceptions to international rules regarding prisoners of war that the United States had once championed and led the world to embrace. The rules would remain in place for everyone except the detainees in Guantanamo and Afghanistan purported to possess valuable information that they would not otherwise divulge. "These are the worst of a very bad lot," Vice President Dick Cheney said of the Guantanamo prisoners, according to Rose. "They are very dangerous. They are devoted to killing millions of Americans, innocent Americans, if they can." It is difficult to challenge such a consequentialist argument, for few Americans would rather follow the rules than prevent another terror attack. The exceptions to the standard military doctrine of interrogation, however, did not remain exceptions. They swallowed the rules, as exceptions are prone to do.

The real legacy of American interrogation practices, post-9/11, is that practices and justifications that should have been reserved for the worst of the worst (assuming we could know who they are) began to be used indiscriminately. In the eyes of the government, they began to seem almost normal. The effect has been to turn America from the world's leader on many issues of international human-rights law into the world's tyrant.

Absolute rules are favored in wartime because they work. There are few slopes more slippery than that the one from small war crimes to large ones; any wartime action, however heinous, can always be justified by some perceived necessity. As one of usPhillip Carterwrites in a longer piece on the topic in the Washington Monthly, "Once discipline is lost, it is nearly impossible to restore." Assuming that harsher interrogations can produce valuable intelligencean open questionCongress and the president must weigh that benefit against the enormous strategic cost of operating a facility like Guantanamo.

Yet the elected branches of government have exercised almost a total lack of oversight. Nearly all the important decision-making that has led to torture took place in secret: in conversations and exchanges of documents that involved only a few civilian and military officials. Congress has not pushed to know more in any sustained or meaningful way. Lawmakers have not taken any steps to ensure, for example, that if extreme measures are to be taken, this step occurs only after the White House and the Pentagon have directly authorized it and Congress has been notified, as it is about other forms of clandestine activity. Nor has Congress asked for more transparency at the detention facilities. But for a few leaks to the press, we would never know there was a torture memo, let alone know about the links between the policies hatched in Washington and the abuses photographed in Iraq. The story of extreme interrogation practices is a story of a Congress asleep at the switch, in spite of its constitutional mandate to "define and punish Offences against the Law of Nations," "make Rules concerning Captures on Land and Water," and "make Rules for the Government and Regulation of the land and naval Forces."

The role of the courts is to determine the extent of the detainees' constitutional rights. Last summer, in Rasul v. Bush, the Supreme Court said that the detainees in Guantanamo are entitled to petition for their release in federal court but didn't delineate any of the detailsin particular, whether they have a right to counsel or to see the evidence against them. The Bush administration has exploited this ambiguity to delay the day when a judge might actually decide a detainee's fate. Further, the courts have not yet faced the question of when extreme interrogation violates the Constitution. Battles over whether evidence against a defendant has been tainted by torture have been called off, thanks to plea bargains by John Walker Lindh and Zacarias Moussaoui. And the military commissions, set up by the Bush administration, which allow the introduction of evidence even if it's procured by means that "shock the conscience," are still being challenged.

In response to Abu Ghraib, the military has made some efforts to learn from the disaster and install controls of its own. In a draft field manual posted to a public Pentagon severand then withdrawn after the press reported itthe Pentagon restated its policy that military police "shall not be involved in the interrogation process nor set conditions for interrogations." That is a damning indictment of Miller's use of MPs in Iraq and Guantanamo. The manual also reaffirms the longstanding U.S. policy of granting Geneva Convention protections to detainees, even where doubt exists as to their status, until a "competent tribunal" can judge them to be enemy combatants rather than protected prisoners of war. At Fort Leonard Wood, Mo., which trains military police, and Fort Huachuca, Ariz., which trains interrogators, there are signs that the lessons of Abu Ghraib have slowly, informally started to make their way into the curriculum, much as the My Lai incident eventually became part of the Army's field manual on leadership.

It is not true, as many in the Arab world believe, that the United States has embarked on a reckless campaign of torture and abuse of its Arab prisoners of war. But what has happeneda slow slide from coherent, consistent standards for interrogation and treatment of prisoners to a sometimes ad-hoc, occasionally brutal search for information at all costsshould warrant public outcry. That it has not suggests either that this shift doesn't interest us because it affects outsiders, or that we no longer consider torture or near-torture to be beyond the bounds of civil conduct.

Photograph of interrogation room in Camp Delta, Guantanamo Bay by Joe Raedle/Getty Images. Photograph of detained Iraqis by Ahmad Al-Rubaye/AFP.