Preciently, Slate Magazine said of torture immediately in the wake of Abu Ghraib:
The very word "torture" encompasses too many possibilities. Is scaring a prisoner with a dog really torture in the first place or just a modified fraternity prank? Is hooding a terrorist all that bad? Without a larger context, it's impossible to know how to frame these issues. Which explains why the American public finds itself either "for" or "against" torturing alleged terrorists, without having developed nuanced ideas of what such positions mean. We are debating in black and white instead of recognizing shades of gray. And much of the official thinking has taken place behind closed doors, preventing public understanding of where the relevant government actors have drawn the lines and why.
Slate's Taxonomy does a very good job in demonstrating the legal ambiguity which is inherent in dealing with international law and American military procedures. Although I have not secured (and apparently nobody can) any details about exactly which procedures are up for debate, this article in the WaPo does a good job of explaining what is in play.
What most impresses me about Bush's position is that he demands to have legal clarity to instruct professionals at CIA and elsewhere to conduct the kinds of interrogations they must. These professionals have every right to demand that.
..A memo sent by CIA Director Michael V. Hayden to the agency's employees Thursday approvingly quoted Bush's endorsement of the CIA interrogations for "defending the homeland, attacking [al-Qaeda] . . . and saving thousands of American and allied lives." Hayden said in the memo that the clarifying language of the administration's bill would give him confidence that what he "asked an Agency officer to do under the program is lawful."
The rival Senate bill on interrogations -- approved by the Armed Services Committee on Thursday and sharply criticized by Bush yesterday -- is silent on how the CIA should comply with the Geneva Conventions. Its intent, according to several government officials, is not only to avoid sending a signal to other nations that Washington is reinterpreting its treaty obligations, but to leave in place a historic understanding of international law, which would render unlawful many of the extreme interrogation techniques the CIA has been using.
Bush and other senior officials have not discussed what those methods include, but the president described them as an "alternative set of procedures," emphasizing that they differ from those used elsewhere in the government.
At a news conference yesterday, Bush alluded to these special methods when he said the new legislation was needed to provide "intelligence professionals with the tools they need." One well-informed source said the techniques include prolonged sleep deprivation and forced standing or other stress positions. Another source said they match the techniques used by the agency in the past, but with a notable exception: The CIA no longer seeks to use a notorious technique called "waterboarding," which is meant to simulate drowning.
Despite the fact that we are dealing with, this time around, a sort of perfidious enemy that beheads journalists, it does make sense that we not signal to the world that we are upping the ante of torture in the clash of armies. But I would still reserve the right to employ more severe procedures in the CIA, and monitor rendition between the Army and CIA. In the current context, there have been 17, I believe is the number, high value prisoners which were specifically under CIA custody in safehouses to whom this might apply. Now that they are transferred to Gitmo, I think it is reasonably safe to presume that their treatment will change. But I will say that I don't see this as gracious but expedient. The cover of the 'secret prisons' has been blown. So they've been flushed and new ones have to be built. Still, Bush implies these facilities where the head of the CIA has said the borderline techniques have been effective are now the houses of ill repute and none like them will be opened if the law is not clarified. Again, I think the way to understand this is that there's a separate standard for POWs and high value individuals, so the guidelines like FM-34-52 apply to regular Army, whereas the CIA in dealing with the few like Ramzi Yusef would have more severe tools at their disposal.
So what we have, apparently is a situation in which if we were to capture Zawahiri, we couldn't use anything special on him even though he knows where Osama Bin Laden is. This period of time before this bill is passed is what I would call The Hamdan Gap. Let's call the place where we would want to send him 'The Shed'. The people who run the Shed have to know in advance what they can do. So what is the absolute limit of tools for the highest value prisoners? The CIA has been working in a gray legal area under the presumptions of presidential war powers, but now it is clear that the president's mandate is politically challenged and the changing of the guard is just two years away. This needs to be settled.
What's curious is how it wasn't settled by The Detainee Treatment Act of 2005. Oh nevermind. Even a non-lawyer like me can see that's talking about the DOD and not the CIA. So McCain's excuse doesn't quite wash.
While I'm on the subject, I should also state what I believe to be obvious about Abu Ghraib, having read Fiasco. I am convinced that the provocative nature of pictures circulated fanned the fire and that higher ups did not properly staff or maintain the facility. What happened there was a huge mistake and almost inevitable given the circumstances of an overcrowded prison run by the wrong people who in any case were not given the resources they needed. It is also clear to me that the way that Odierno in particular was sending questionably valuable prisoners from the battlefield that the prison did contribute to their radicalization.
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