Written by Winston P. Nagan   

The release of an executive summary of the findings of the Senate Intelligence Committee’s study of the use of enhanced interrogation methods by operatives acting under the ostensible authority of the CIA has raised a firestorm of controversy in the United States. Its international effects are still to be understood. Among the concerns expressed about the report, it does not challenge the essential accuracy of what is represented. However, it is suggested that the picture it presents is somewhat distorted because it does not adequately account for the context within which these interrogation practices emerged. Unfortunately, even the context may be somewhat difficult to delineate within manageable limits.

Let us begin with the historical context of our nation’s experience. The father of our nation, George Washington, set an early example when he forbade the mistreatment of British prisoners of War during the Revolutionary War. During the Civil War, President Lincoln engaged a Columbia professor to draft a code of humanitarian principles to guide the conduct of war. This was the Lieber Code, one of the earliest examples in the modern era to codify the ius in bello. In a broader vain, Woodrow Wilson ended the First World War with the ambitious objective of promoting American Values and ideals as the basis of a new global order. The Roosevelt’s brought us the four freedoms and modern international human rights. During the Cold War, the fundamental pillar for contesting the spread of totalitarianism was the nation’s commitment to the fundamental values of freedom and human dignity.

In 2001, the United States was attacked by a terrorist group largely based in Afghanistan. The attack represented the most serious breach of the security of the United States since the Japanese attack on Pearl Harbor in 1941. While the terrorists were responsible for the attack, the breach of US security lay with the administration of George W. Bush. That was their failure. Within the administration, the attack represented a failure of US intelligence and the prime responsibility for that failure was the CIA. In the context of security preparedness, representations were made to the Bush administration from a holdover of the Clinton administration. The Bush administration showed absolutely no interest in this. We can only speculate on their reasons. Perhaps, the fact that the Afghan-based terrorists were a creature of Saudi Intelligence, Pakistani Intelligence, as well as US Intelligence, implied that these terrorists were essentially our terrorists and we therefore did not consider that they would target us. In this situation, the attack on the US mainland was a devastating case of blowback. The administration and its key intelligence agency simply took their eyes off the ball.

The administration’s response initially was certainly a matter of shock without awe. It was obvious that the administration, from George Bush down, was in a state of acute panic and had obviously demonstrated a very un-republican trait: security weakness. Initial reactions represented elements of irrationality because how to structure a response was not immediately apparent. The administration, considering the problem of a war against a non-state, confronted the uncomfortable idea of a legal vacuum realizing that in a unipolar world the US was the major power. They asserted that in a context of no rules, they could make up their own rules in terms of a response. At least our British allies saw this as quite undesirable and floated the ideas that the international law of self-defense was sufficiently flexible to fashion an appropriate response. Nevertheless, these considerations were happening in an atmosphere of fear that there may be further imminent attacks. From these flimsy beginnings, there emerged a new Bush Doctrine based on an indefinite “War on Terror.”

Lawyers facilitating the content of the doctrine emerged with a definition of the problem that was realistic. The terrorist enemy represented an enemy in the context of an asymmetrical war. Additionally, in this asymmetrical war, the enemy’s conduct remained unpredictable and therefore the security values it compromised required serious responses that would implicate a much more enlarged intelligence role. The immediate problem was the terrorist infused State of Afghanistan. Here the administration emerged with a radically expanded and contested idea of self-defense: pre-emptive self-defense. Self-defense has been construed in terms of a very narrow exception, the concept of anticipatory self-defense. Pre-emptive self-defense had larger implications; the implications of a regime change. This required a further innovation, the notion that a state mired in terrorist operatives would be regarded as a rogue state and a candidate for preemptive, unilateral regime change. This is what happened in Afghanistan as the Taliban were routed largely by intervention led by the CIA. There was little international outcry about the removal of the Taliban and the terrorists. The temptations of success led the administration to search for new candidates for rogue state status. Iraq, with a notorious dictator and an alleged stockpile of nuclear weapons, became the next candidate for pre-emptive action. There were no nuclear weapons in Iraq and the entire framework that served to justify the intervention, based on the CIA’s slam-dunk justification, proved factually wrong. This raised the question that without the administration’s own justification for the intervention, whether the Iraqi invasion constituted a crime against the peace. This meant that Bush, Cheney, Rumsfeld, and others in the administration might be guilty, minimally, of a conspiracy to wager war of aggression.

The “ius in bello” and the “War on Terror”
The conduct on the War on Terror generated captives, terrorist combatants. This raised the question of how these enemy combatants were to be treated. The administration took the position that these enemy combatants were not covered by the Geneva Conventions related to the treatment of prisoners of war. The terrorist groups were not states and therefore could not have adopted the treaty-based Geneva Conventions. Alberto Gonzales, then a lawyer in the Office of Legal Counsel, derided the Geneva Conventions as quaint legal artifacts completely irrelevant to the War on Terror. Captured terrorists had no rights under these treaties; nonetheless, the administration indicated that these unlawful combatants would be treated within the spirit of the conventions.

The administration also floated the idea that because intelligence information was critical to the security of the American people, the detainees would be subject, in the discretion of their interrogators, to enhanced levels of interrogation treatment. Rumsfeld approved of “enhanced interrogation methods.” These methods found support in a series of memoranda emerging from the Office of Legal Counsel authored by Bybee and Yoo. According to Bybee, there was some flexibility in how torture was legally defined. Bybee stressed that torture essentially would result in organ failure, which could include the impairment of bodily functions or death. This opened up a vast domain of coercive techniques that would not be covered by the Bybee definition: water boarding would be an obvious example. However, when Alberto Mora requested from Yoo whether under their view the president could lawfully order the torture of a detainee, Yoo affirmed that he could. The views of Yoo and Bybee were supplemented by the unitary theory of the presidency when serving as Commander in Chief. In this role, the president’s exercise of these powers could not be tested juridically because these powers were beyond judicial reach. They were essentially political/military powers. The sum total of these memos was meant to provide a “golden shield” that could provide protection from trying to hold anyone accountable in the treatment of detainees under the law.

These constructions of the law were highly contested within the framework of the institution of the military. I have seen no evidence that they were contested by lawyers working for the CIA. One military lawyer said, “There are lawful and effective ways to get intelligence. When you cross the line into unlawful and immoral behavior, it is no longer patriotic, it is criminal.” The General Counsel of the navy fought a courageous battle within the military establishment, insisting that enhanced interrogation practices, implicating cruelty and torture were unlawful, immoral, ultimately destructive of American values, and clearly depreciated the fundamental valued upon which our nation is founded. According to Mora, “the character of our country must be measured by what we did when things are hard. The use of torture violated our laws, principles, and values.”

To the credit of Gonzales, he repudiated his repudiation of the Geneva Conventions prior to the hearings relating to his appointment as Attorney General. The legal issues left open are the currency of the golden shield defenses constructed by Bybee and Yoo. With regard to the Bybee definition of torture, his memo cited, “my testimony before the Senate” as authority for this narrow definition of torture. At this time, I was testifying as Chair of the Board of Amnesty International. My testimony did not attempt to define torture at all. It simply provided some narrative illustrations of some very bad cases of torture. I am at a loss to see how this could have created an authoritative definition of torture.

With regard to CIA culpability in torture, clearly, the CIA could have relied on the golden shield defenses, and while these are reasonable defenses, they are not conclusions of law, which in our legal system would have to be authoritatively determined by the courts. In any event, a reliance on these legal positions by CIA operatives, untrained in law, would nonetheless influence the mental state of the operators. In short, they could rely on their mental state, which lacked an intention (mens rea) to commit a crime. Therefore, the memos would appear to have provided a golden shield to protect the CIA operators. However, I am uncertain whether the self-generated position by the administration, would shield the administration from a conspiracy to commit the crime of torture. It would therefore seem quite appropriate for the Department of Justice to formulate indictments against the key administrative players in this context, and these would include the President, Vice-President, and the Secretary of Defense. For the lawyers who designed these positions, I think it would be difficult to establish that they, themselves, did not believe in the integrity of the arguments that they were making. It is possible that the only sanctions that might possibly lie against them would be in the context of a possible breach of legal ethics.

When the Obama Administration considered the issues to be addressed in the context of transition, they specifically ruled out prosecuting administrative officials for fear there might be a reaction in the intelligence and military establishments, which could lead to political disruption. I do not believe that this is a realistic possibility now. If indictments were issued by the Department of Justice, there are still two options available. The Republican controlled congress could enact an amnesty for the administration officials before any action is taken under indictment. It will certainly have the political majority to do so. If they fail to act, the democratic president can pardon them all. However, we should keep in mind that these practices have severely damaged our national reputation. The kind of action recommended here would do much to redeem us.