Don’t Pretend This is A Debate About Torture

At his press conference Wednesday, President Barack Obama accused his own country of practicing torture: “Water-boarding violates our ideals and our values. I do believe that it is torture.”

These words are no mere expression of opinion. They have important legal and political consequences. Just one example: On Thursday, ABC News reported the names (and revealed the faces) of two contractors who had advised the CIA on its water-boarding program. During the Valerie Plame case, it was thought to be a very big deal that Bush administration officials had divulged the name of a former undercover CIA agent. ABC sourced their news leak to government officials, too. Did Obama’s words embolden these officials to name names — and possibly endanger the lives of two men who acted to defend the nation?

Critics depict the Bush administration as a revival of the Spanish Inquisition: racks, thumb screws, and other horrors. I wonder how many of these critics realize — as Cliff May of the Foundation for the Defense of the Democracies pointed out in a brilliant appearance on the Daily Show this week — that only three terrorists were ever subjected to water-boarding? Or that this technique was last used in 2003?

The terrorist most frequently water-boarded was Khalid Sheikh Muhammed, the architect of the 9/11 plan. When captured by U.S. and Pakistani agents in Karachi, he was immediately asked whether al Qaeda had any more acts of mass murder planned. He answered: “You’ll find out.”

The Bush administration decided not to wait to discover what the arch-terrorist had in mind. Under harsh interrogation, Muhammed revealed information that saved American lives, according to every serving intelligence chief — including President Obama’s own director of national intelligence, Admiral Dennis Blair.

Maybe it was wrong of the Bush administration to do so. Maybe they should have run more risks with American lives. That would be an interesting debate, but for obvious reasons it’s not a debate that critics of the Bush administration want to engage.

What they are doing instead is using a debate over interrogation methods to shift the United States to a radical new concept of international law, in which terrorists gain all the rights of soldiers — without any of the responsibilities.

Human rights groups like Amnesty International have condemned detentions at Guantanamo Bay or other sites as inherently abusive, arguing that governments must accord noncitizen terrorists hold the same rights to speedy trial under domestic law as they would to their own citizens when accused of ordinary crimes. The American Civil Liberties Union argues against any kind of specialized courts or military jurisdiction for noncitizen terrorists.

Here’s a quote from an April 29 op-ed by David Kaye, formerly a lawyer at the US Department of State: “In the year following 9/11, I handled Geneva Convention issues for the State Department; I was a principal drafter of memos arguing that the international law of war applied in Afghanistan and thus to the detainees held at Guantanamo Bay.”

Kaye’s op-ed implies that this advice was rejected, but not so: The Bush administration did apply the Geneva conventions to captured Taliban fighters — that is, to the equivalent of soldiers of the Afghan army. What the Bush administration rejected was the claim that al-Qaeda terrorists should get Geneva treatment.

To qualify for Geneva treatment, fighters must meet some basic moral tests: They must wear uniforms or some other identifying sign. They must carry arms openly. They must follow the command of a superior officer. To engage in violent conflict without meeting these tests is itself a war crime. Lawless fighters like al-Qaeda terrorists fall into the same legal category as pirates or bandits: “common enemies of all mankind.”

At the United Nations in the 1970s and 1980s, some Arab, African and communist governments pushed to revise the Geneva conventions to obtain protection for guerillas and other irregular fighters. These efforts were rejected by the United States on the grounds that they would “afford legal protections to terrorists and “national liberation movements’ at the expense of noncombatants” (to quote the 1987 memo rejecting the proposal to amend the Geneva protocols).

Under international law, as it was understood in all Western countries before 9/11, captured terrorists possess none of the rights of soldiers. That does not mean that they can be tortured or abused — they cannot. But unlike soldiers, they can be questioned. Unlike soldiers, they can be tried. Unlike soldiers, they can be executed for their acts of violence.

Maybe water-boarding was wrong even in 2002-2003. The Bush administration itself has acted on the understanding that it was unnecessary after 2003. But make no mistake: What is going on in this so-called “torture” debate is an attempt to hijack humanitarian feeling to smuggle into international law new claims on behalf of the world’s most conscienceless criminals.

Human rights groups like Amnesty International have condemned detentions at Guantanamo Bay or other sites as inherently abusive, arguing that governments must accord noncitizen terrorists hold the same rights to speedy trial under domestic law as they would to their own citizens when accused of ordinary crimes. The American Civil Liberties Union argues against any kind of specialized courts or military jurisdiction for noncitizen terrorists.

Ronald Reagan was the president who signed the international convention against torture. He was also the president who rejected attempts to broaden Geneva to protect terrorists. Today, many American liberals praise Reagan’s one legacy to international law. They would be more convincing if they accepted the legacy in its entirety.

Originally published in the National Post.