You've got to hand it to them. Torture aficionados at the White House and CIA have conned key congressional leaders into insisting not only that torture-lite would be a swell idea, but advocating also that the overseers of torture be kept on.
From change-you-can-believe-in we seem to be slipping back to fear-you-can-trade-on. Silvestre Reyes, D-Texas, chair of the House Intelligence Committee, has publicly warned those in charge of the administration transition that "continuity is going to be pivotal in keeping us safe and secure." Thus, he argues, National Intelligence Director Mike McConnell and CIA Director Michael Hayden should stay in their posts.
If that were not enough, Reyes told Congress Daily's Chris Strohm, that he (Reyes) had advised the Obama team that some parts of what Strohm referred to as "CIA's controversial alternative interrogation program" should be allowed to continue. Using some of the same euphemisms and circumlocutions employed by the ersatz-lawyers hired by President George W. Bush and Vice President Dick Cheney, Reyes fired this shot across the bow of Barack Obama's transition ship:
"It gets back to a world that is very dangerous...there are some options that need to be available...We don't want to be known for torturing people. At the same time, we don't want to limit our ability to get information that's vital and critical to our national security. That's where the new administration is going to have to decide what those parameters are, what those limitations are."
Someone needs to tell Reyes what those parameters, what those limitations should be. They are set by the Geneva accords and the U.S. War Crimes Act of 1996. Those are the laws that President George W. Bush's overly clever lawyers told him he could safely-well, pretty safely-disregard, because of the "new paradigm" post 9/11.
Pretty safely? Even those Mafia-type lawyers felt it necessary to warn their clients that Section 2441 of the U.S. War Crimes Act, passed by a Republican-led Congress in 1996, could conceivably come back to haunt the president and others who approved or took part in torture. This is the best they could do by way of offering reassurance:
"It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination [that Geneva does not apply to al-Qaeda and Taliban] would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution."
If that sounds like the kind of advice one would expect to get from lawyers for the Mob, that's because it is. The casuistry virtually drips from a Jan. 25, 2002 memorandum for the president drafted by then-counsel to the Vice President, David Addington and signed by then-counsel to the president, Alberto Gonzales. Former Secretary of State Colin Powell objected for a day or so but then saluted sharply, as is his wont.
As will be seen below, the lawyers' advice did come back to haunt the president, putting him in a cold sweat until he got Congress to grant him retroactive immunity.
To say President Bush was dumb to take their dubious advice is not the half of it. Really dumb was his decision to put it in writing. You see, the goons uncovered by CIA Director George Tenet and Defense Secretary Donald Rumsfeld were not about to torture without a signed authorization from the president. So Bush decided to go ahead on the basis of the Addington/Gonzales opinion and signed a presidential memorandum on Feb. 7, 2002 incorporating that advice.
The opinion is written verbatim, twice, into that short executive memorandum. Over the president's large felt-tip signature appears convoluted text depicting, despite itself, a circle that refuses to be squared. Bush orders that detainees be treated "humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."
That was the official start of post-9/11 torture authorized from the top, although an American, John Walker Lindh, was the first to be actually tortured after his capture in Afghanistan in late Nov. 2001, when senior Justice Department officials deliberately chose not to prevent his mistreatment. In the wake of the smoking-gun presidential memorandum of Feb. 7, 2002, subsequent memos by the administration's Mob lawyers were mostly ex post facto attempts at CYA.
What incalculable shame this has brought on the U.S. Army and the Central Intelligence Agency, in both of which I was privileged to serve. I am hardly the first to use a Mafia analogy.
Consider the case of Army Maj. Gen. Antonio M. Taguba, who was the first to investigate the Abu Ghraib prison abuse-the most glaring result of the president's memo and Rumsfeld's implementing instructions. "Make sure this happens!" in Rumsfeld's handwriting appeared on a memo over Rumsfeld's signature that was prominently posted at Abu Ghraib.
Taguba issued a tough report, which was then leaked to the press-and thus was largely responsible for preventing the scandal from being swept entirely under the rug. Rather than thank Taguba for upholding the honor of the U.S. military, the Bush administration singled him out for ridicule, retribution, and forced retirement.
Taguba told Seymour Hersh of a chilling conversation he had with Gen. John Abizaid, then head of Central Command, a few weeks after Taguba's report became public in 2004. Sitting in the back of Abizaid's Mercedes sedan in Kuwait, Abizaid quietly told Taguba, "You and your report will be investigated."
"I'd been in the Army 32 years by then," Taguba told Hersh, "and it was the first time that I thought I was in the Mafia."
Getting Squared Away
The Army, to its credit, was able to push brownnoses like Abizaid off to the margins and, more important, to keep Mafia-type lawyers out of the process of updating the Army Field Manual for interrogation. Such was not the case at CIA, where Mob lawyers continued to prosper-including the one who offered interrogators the following basic guidance: "If the detainee dies, you're doing it wrong."
I like to think that our nation's decisions are not totally bereft of moral considerations, and that a majority of Americans would agree that torture-like rape or slavery-is intrinsically evil.
But it is also intrinsically dumb. And an Army general with guts said precisely that on the very day President Bush was extolling the merits of "alternative sets of procedures" for interrogation.
Lt. Gen. John Kimmons, a career intelligence officer and expert in interrogations, minced no words in describing the new Army Field Manual (FM 2-22.3, Human Intelligence Collection Operations). He stressed that it is "consistent with the requirements of law, the Detainee Treatment Act, and the Geneva Conventions, and that it was endorsed by the Director of the Defense Intelligence Agency (DIA) and the Director of National Intelligence. The DNI, Kimmons said "coordinated laterally with the CIA."
Doesn't take a crackerjack intelligence analyst to figure out why the CIA would not "endorse" it.
As a former Army intelligence officer who had to commit the previous interrogation field manual virtually to memory, I was particularly proud that Kimmons had the guts to seize the bull by the horns:
Conceding past "transgressions and mistakes," Kimmons insisted: "No good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tells us that.
"Moreover, any piece of intelligence which is obtained under duress through the use of abusive techniques would be of questionable credibility. And additionally, it would do more harm than good when it inevitably became known that abusive practices were used. And we can't go there.
"Some of our most significant successes on the battlefield have been-in fact, I would say all of them, almost categorically all of them have accrued from expert interrogators using mixtures of authorized, humane interrogation practices in clever ways that you would hope Americans would use them, to push the envelope within the bookends of the legal, moral, and ethical-now as further defined by this field manual. So we don't need abusive practices in there. Nothing good will come from them."
Kimmons emphasized that the new manual is written in "straightforward language for use by soldiers, sailors, airmen, and marines; it is not written for lawyers." He explained that the field manual explicitly prohibits torture or cruel, inhumane, and degrading treatment or punishment.
Among the specific prohibitions mentioned by Kimmons were:
"-Interrogators may not force a detainee to be naked, perform sexual acts or pose in a sexual manner;
-They cannot use hoods or place sacks over a detainee's head or use duct tape over his eyes;
-They cannot beat or electrically shock or burn them or inflict other forms of physical pain-any form of physical pain;
-They may not use water boarding, hypothermia, or treatment which will lead to heat injury;
-They will not perform mock executions;
-They may not deprive detainees of the necessary food, water, and medical care; and
-They may not use dogs in any aspect of interrogation."
Meanwhile, just across the Potomac at the White House an hour later that same day (Sept. 6, 2006), President Bush devoted half of a long speech to cops-and-robbers examples, none of them confirmed or persuasive, showing how "tough" interrogation techniques-he called them "an alternative set of procedures"-had yielded information preventing all manner of catastrophe.
He made clear that his government had "changed its policies," giving intelligence personnel "the tools they need" to fight terrorists, and that he wanted the "CIA program" to continue. Bush appealed for and, just before Congress changed hands in Nov. 2006, succeeded in getting legislation granting retroactive immunity to him and other practitioners of "alternative" procedures.
It had been sweaty-palms time for the president. Two months earlier, on June 29, 2006, in Hamdan v. Rumsfeld, the Supreme Court had ruled that Geneva DOES apply to al-Qaeda and Taliban detainees, and rejected the artifice of "unitary executive power" used by the Bush administration to "justify" practices like torture.
One senior Bush official is reported to have gone quite pale when Justice Anthony M. Kennedy raised the ante, warning that "violations of Common Article 3 [of Geneva] are considered 'war crimes.'" That threw a scare into a whole bunch of what one might call "unitary executives," prompting the president on Sept. 6 to plead with Congress to give "top priority" to new legislation holding them harmless for violation of Geneva. This they got in the "Military Commissions Act" passed by Congress and signed into law just before the mid-term elections in 2006.
Back to the Future, Mr. Chairman
Chairman Reyes, you may have been told that when fellow Texan Rep. Charlie Wilson took the reins of a House oversight panel, he immediately wrote to the operations people at CIA, saying, "Well, gentlemen, the fox is in the hen house. Do whatever you like." Your predecessor as House Intelligence Committee chair, Pete Hoekstra, R-Michigan, also gave the CIA free rein as long as then-Director George Tenet did the White House's bidding-whatever that bidding happened to be.
Is that how you see your role, Mr. Congressman? Is that why you have been running interference for the Bush/Cheney administration? Specifically, why did you stiff-arm those of your colleagues who wanted to put language into the FY09 Intelligence Authorization Bill ordering CIA interrogators to adhere to the Army Field Manual for interrogation?
Have a look at the above list of practices expressly forbidden by the manual. Have the folks in the hen house told you that some are absolutely necessary? Which ones strike your fancy?
You served in Vietnam. Did you see "alternative techniques" in use there? Could you visualize them being used on you-or your grandsons?
Do you think former Air Force General and now CIA Director Michael Hayden or former Navy Admiral Mike McConnell know more about effective interrogation techniques than the head of Army intelligence? Do you really think they are being candid with you?
Are you not aware that many of those on the operations side of CIA ply their trade as con men? Such activities are supposed to be directed abroad. But all too often they are applied with consummate, smirking skill to the Hill.
Don't believe the tales they tell you about the "successes" of torture techniques. They are normally told by folks with zero experience or folks simply snowing you. Take former Deputy Director John McLaughlin, for example. I have known John for 40 years; he would not recognize an interrogation if he tripped over one.
And he and his boss Tenet were so duplicitous that the former head of State Department intelligence permitted himself the undiplomatic comment that the two should have been shot for their role in deliberately falsifying intelligence-especially the bogus reporting about those non-existent "mobile biological weapons laboratories" in Iraq.
Not long ago, McLaughlin made the mistake of purveying the myth about how effective harsh interrogation techniques have been, with the usual "If you saw the intelligence I have seen..." Trouble was, the senior intelligence officer he was talking to had seen it all, and more, and answered, "I have seen all of it John. Either you are hopelessly naïve, incredibly credulous, or you are lying."
How McLaughlin and John Brennan, both eager accomplices of George Tenet, got picked for the intelligence transition team boggles the minds of those of us who are familiar with their role in the saddest and most unconscionable chapters of U.S. intelligence-regarding both analysis and operations.
But there they are, whispering into the credulous ears of people like Silvestre Reyes.
Chairman Reyes, go talk to Gen. Kimmons.