Recent months have seen a spate of media reporting about the CIA’s involvement with the torture of individuals captured during the war on terror and the resulting secret detention of these individuals in undisclosed locations.  This drumbeat cumulated with questions being posed to President Bush about the United States’ policy on torture during his recent Latin American tour and Dana Priest’s front-page article in the Washington Post on Nov. 2, “CIA Holds Terror Suspects in Secret Prisons. 

The media may find it convenient to use the CIA as a catchy handle to identify the subject of their news report, and I suppose it is easier to say “CIA prison” than “a prison built and operated as part of the national security policy of the U.S.”  It is however, a little misleading. The reader should know that the CIA would not blow its nose concerning torture or secret detention without written instructions from the President through the National Security Council. 

Before I go any farther, I should declare my own position on the torture and detention of terrorists.  I personally do not care whether we take captured terrorists apart at the molecular level if it helps save U.S. lives.  Were I in the terrorist hands, I would receive no mercy from them, and I am inclined to return the favor. 

That said; I disagree with the current U.S. policy towards the “interrogation of detainees” and the manner of their subsequent detention.  I do not believe the policy has been well thought out, nor have the longer-term effects been well judged. 

At this point, we need to define the terms. I would submit that the following standard applies:  Any interrogation technique that would be unlawful in a U.S. police station will be considered torture, and any detention of a prisoner outside the United States, i.e., not subject to review by U.S. courts, can be considered secret detention.

This very restrictive standard arises from two different causes.  Ever since the Carter administration, we have bludgeoned both our friends and our foes with a “holier-than-thou” position on human rights.  The world is going to delight in holding us to that restrictive standard, no matter what we may perceive as changed circumstances.  Frankly, they have a point.  American politicians have shown little sensitivity or maturity in demanding worldwide human rights postures that had no connection to circumstances or truth on the ground.  (By accidents of history and geography, both the U.S. political elite and the population at large poorly understand that the most basic of all human rights is the right not to be murdered.  Until that right is secured, all other human rights are meaningless.)  Any change from the treatment we afford our own criminal defendants will be seen for the hypocrisy that it is.

The second reason for this restrictive standard is that while the deployed elements of the U.S. military and intelligence forces are at war, the Congress and the American people are not.  After 9/11, U.S. military, intelligence, and law enforcement professionals were told to go to war; the population at large was told to go shopping.  Is there any wonder there is a policy disconnect on such a sensitive issue?  Among the population at large and the political leadership there is no longer any real sense of danger from terrorism.  The troops in Afghanistan and Iraq and the intelligence officers around the world are worried about being shot; the U.S. public is far more concerned with rising gas prices. 

The partisan leadership on both sides has failed to explain to the American people that there is a dangerous and lethal struggle going on in the world and that preserving our safety will entail doing some hard, ugly things.  Instead, congressional leadership has largely attempted to benefit politically from the very modest steps that have been taken to enhance U.S. security while doing its best to make sure no one is inconvenienced.  I fully expect that when there is a change of administration or when power is realigned in Congress, any individual who has engaged in a more aggressive interrogation or detention policy with terrorist detainees should expect to be the object of both Congressional and possibly criminal investigations. 

The U.S. Congress has a long history of changing the rules after the fact on controversial subjects.  Were I still working at the CIA and became involved in interrogating detainees or with their imprisonment, I would not feel comfortable with less than a written order carefully outlining what I was and was not to do.  I would also want a written legal opinion from a competent authority telling me that the person who gave me that order was entitled to do so.

I have not changed my position in the last few paragraphs: a captured terrorist with good information can save many lives if he can be made to talk.  I might well be tempted to go beyond the standards I have outlined above if I believed I could save the lives of the men and women working with me in the field.  (I was fortunate never to have been forced to make that decision.)  I am not, however, going to delude myself that in such a situation, my motives or any vague guidelines from Washington would be enough to save me from a headline-hungry Congressional chairman with political points to score.  We are putting our deployed military and intelligence personnel in this impossible situation.  They deserve far better from us.

I believe the above description of circumstances is a fair appreciation of the current political situation in the United States.  As such, to continue with attempts to implement the current hostile interrogation policy is simply a waste of everyone’s time and resources.  War is a political decision, and so is the treatment of prisoners captured in that war, no matter what the legal reasoning involved in arguments to the contrary. 

Two additional points that will never be satisfactorily addressed for critics of the current policy are ensuring that the wrong person is not subjected to “hostile interrogation” and that no other method would work in the time available.  Complete assurance on these two points can never be given in advance, and asking for such a guarantee is childlike in its naiveté.

As a result, at this time, Congress is not going to approve a recorded vote to sanction torture.  Unfortunately, because of upcoming midterm elections and reluctance to be perceived as soft on terrorism, it is equally unlikely that Congress will vote to forbid torture. (And you wonder why the people in the field are a little puzzled.)

A reasoned argument can be made that in rare and extraordinary situations, interrogations harsher than would normally be allowed by U.S. law may be justified.  The president should have the power to designate by presidential finding one or two senior members of his administration who could authorize such measures against non-U.S. citizens located outside the U.S.:  the Secretary of Defense and/or the Director of the CIA, in consultation with, or with notification to, the Attorney General. 

This begs the question of how far the interrogators can go, but perhaps legal scholars and ethicists can haggle out the details.  (Ethicists have a place in this discussion if only to dismiss the canard that abusing one person to save the lives of hundreds or thousands of other people is never ethically justified.)  I believe such a narrowly drawn authority might pass muster in Congress.  It certainly has a better chance than the policy the Administration is pursuing now.

If such a narrow application of “hostile interrogation” is adopted, than the need for the CIA to maintain more than one or two “secret prisons” as geographically convenient transit points becomes moot.  On a philosophical basis, if you have a war, then you need to set up prisoner of war camps to hold the people you capture.  The Defense Department is organized to do this, not the CIA.  If you want to call them illegal combatants instead of POWs and continue to interrogate them after imprisonment, I believe settled international law already provides for such leeway, without trying to reinvent the wheel. The CIA has enough to do with its own duties without expanding them into an area the military can probably do better anyway.

As long as we are on the subject of terrorist detainees, a couple of associated issues merit comment.  The first is the practice of the rendition of detainees to other countries.  If a friendly liaison service is seeking an individual for terrorist crimes committed in their country and the CIA can assist in bringing that individual to book, then such a rendition would be operationally justified.  If subsequent interrogation by the liaison service then provided useful information on terrorist activity in which we are interested, that is all the better.  What the U.S. should never do is render a detainee to a liaison service who is going to interrogate a detainee solely at our request, using harsher measures than would be legal for the Agency.  This puts the CIA in debt to the liaison service for performing a potentially embarrassing act at the bidding of the U.S.  It also calls in to question how seriously both the U.S. government and the CIA are taking the war on terror.  It is almost a question of whether CIA is now too squeamish to do its own work.  In the end, this sort thing always comes back to haunt you.

Relatedly, media reports indicate that the CIA is using retired contractors to perform some of the interrogations of detainees. This is a very unwise practice.  The command and control of a contract employee is never as effective that with a staff employee.  These policies are controversial enough without injecting uncertainty into the command-and-control process.  This sort of thing should be done exclusively by staff employees. 

Finally, someone needs to address in a very serious manner the cumulative effect on the CIA employees who are tasked to carry out any interrogation policy.  If we as a nation decide such actions are necessary, we need to be prepared to support the people we ask to carry out the policy.  We may well have physiological or medical casualties among our own people and we must understand this up-front and be ready to take care of them.