Tortured logic on torture

DAVID B. RIVKIN JR. and LEE A. CASEY are partners in a Washington law firm and served in the Justice Department under presidents Reagan and George H.W. Bush.

THE “GOTCHA” crowd has fallen on its face again.

In an effort to show that on the Bush administration’s evil watch the U.S. military has been systematically mistreating prisoners in Iraq and Afghanistan with tacit approval or even outright encouragement from its civilian superiors, the American Civil Liberties Union has been demanding the release of dozens of internal military investigative reports. But the two reports on U.S. detainee policy just released in response to an ACLU lawsuit paint a picture quite the opposite of what the ACLU expected.

Though heavily redacted to remove operational details, the reports (by Brig. Gens. Richard Formica and Charles Jacoby) show a Pentagon open to criticism and change, and determined to guarantee detainees the humane treatment promised by President Bush when the war on terror began.

Genuine instances of abuse are noted, but these are very much the exception and not the rule. The reports indicate that many allegations of abuse simply are unsubstantiated -- or that the “victim’s” story changes once carefully examined. The most serious criticism is that the administration’s detainee policies were not adequately communicated down the chain of command, resulting in confusion on the ground about what treatment was permissible. In addition, there was a lack of training on detainee handling. These points have been corrected.


Predictably, the ACLU has cried “whitewash.” But what we are seeing is the refusal by administration critics to see anything other than the “torture narrative” they have constructed.

That “narrative” goes like this: Bush and his war Cabinet opened the door to detainee abuse, first by refusing to accord captured Al Qaeda and Taliban members Geneva Convention rights, and second, by permitting the use of aggressive interrogation techniques. Therefore, says the human rights crowd, Bush and other senior officials are morally -- and some say legally -- responsible for all of the abuses that have taken place since Sept. 11, 2001. Although this story has become holy writ in liberal circles, it is legally preposterous and logically flawed.

As a matter of law, guilt for war crimes can be imposed up the chain of command only when superiors have ordered the offending conduct or have failed to take appropriate disciplinary measures once they become aware that abusive conduct is taking place. But as these reports demonstrate, allegations of wrongdoing by U.S. forces have been thoroughly investigated and punished when called for. There simply is no rule of “strict liability” that would support the punishment of either military or civilian superior officers or officials without evidence that they ordered or condoned abuses.

The narrative is also flawed because Bush has from the beginning made clear that all individuals captured in the war on terror must be treated humanely. This is the case regardless of their legal status or where they were captured. To the extent that abuses have taken place, there is no reason to believe that granting the detainees prisoner-of-war status would have made a difference. The abuse of inmates at Abu Ghraib occurred because the prison was dysfunctional, not because the inmates were denied classification as POWs.

The same is true with respect to interrogation methods -- clearly the most controversial aspect of the administration’s detainee policy. None of the methods authorized by administration officials over time -- including standing for long periods, dietary manipulation and sleep interruption -- are inherently torture or inhumane treatment. All could, if taken to a sufficient extreme, cross the line. The only way to guarantee that the line is never crossed would be to eschew any method of interrogation that could, in the wrong hands, be taken too far.

However, the only way to protect civilians against a terrorist attack is to obtain intelligence about the enemy’s capabilities and plans, so that U.S. forces can act first. Although many experts believe that noncoercive interrogation methods do work (and that harsher methods do not), these experts tend to be vague when it comes to timelines -- and it’s the timing that matters. This is why U.S. officials turned to stressful interrogation methods in the first place.


To avoid future excesses, the Pentagon has considered scores of recommendations, and most of them have been implemented. All of this compares favorably with actions taken in past conflicts. Americans can justly take pride in their fighting men and women and in the Pentagon’s civilian leadership. If the ACLU was hoping to prove otherwise, it failed.