The Senate Intelligence Committee last week grilled Obama’s pick to head the CIA, John Brennan, on all sorts of issues. Democrats worked him over about the CIA’s interrogation, detention, and droning of terrorist suspects, while Republicans were concerned about leaks of classified information. But the real story was not just Brennan’s answers––which were in fact problematic, and perhaps duplicitous––but also the Senators’ choice of topics, some of which reflect the delusional thinking that for over a decade has hampered the war against jihadism. One of the most harmful has been the proscribing of “enhanced interrogation techniques,” especially waterboarding, from which the CIA learned valuable intelligence, because it is “torture.”
Liberals are put out with Brennan because of his involvement in those interrogation techniques, and so have made it an issue in the Committee hearings. The emotion and angst over waterboarding, at a fever pitch during the Bush years, have been roused again by the movie about killing Bin Laden, Zero Dark Thirty, which suggested that useful intelligence was gleaned by waterboarding a terrorist. In 2009 Senate opponents of waterboarding commissioned a “study” that takes 6000 pages to reach the pre-ordained conclusion that waterboarding is immoral and ineffective. An executive summary was released in time for Brennan’s hearing, which became another opportunity to perpetuate the misinformation and hysteria that surround this topic by parsing his words and actions on the subject.
Since Democrats (and Republican John McCain) continue to insist that waterboarding is “torture” and “doesn’t work,” then, they couldn’t have been happy with Brennan’s 2007 interview in which he said,
“There [has] been a lot of information that has come out from these interrogation procedures that the agency has in fact used against the real hardcore terrorists. It has saved lives. And let’s not forget, these are hardened terrorists who have been responsible for 9⁄11, who have shown no remorse at all for the deaths of 3,000 innocents.”
Yet Brennan also said that waterboarding should be “prohibited” because it was “inconsistent with American values.” Ever the bureaucratic operator, Brennan was covering both flanks. But while the first statement was true, the second was mere pandering to the incoherent thinking on waterboarding that put Brennan on the hot seat.
But the real issue ignored in all this renewed handwringing over waterboarding is that it is not torture under American law. The statute covering torture in the U.S. Code defines it as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control,” and further clarifies “severe mental pain or suffering” as “the prolonged mental harm caused by or resulting from … the intentional infliction or threatened infliction of severe physical pain or suffering.” The key words are “intended,” “severe,” and “prolonged.” As John Yoo writes in his indispensable book on the subject, in passing this legislation “Congress unquestionably intended its prohibition on torture to be narrow, much narrower than many popular understandings of the word. The alleged torturer must have acted with ‘specific intent,’ the highest level of criminal intent known to the law … . If severe physical or mental pain or suffering results, but was unintentional, or unanticipated, it would not be torture.”
However, the law left vague what “severe” means. So in 2002, the Office of Legal Counsel in the Department of Justice clarified the meaning by looking at other uses of similar language in U.S. law. “The only other place” Yoo writes, “where similar words appear is in a law defining health benefits for emergency medical conditions, which are defined as severe symptoms, including ‘severe pain’ where an individual’s health is placed ‘in serious jeopardy,’ ‘serious impairment to bodily functions,’ or ‘serious dysfunction of any bodily organ or part.’” So too with the use of the word “prolonged” in regards to “mental harm.” By including this language, “Congress prohibited the causing of posttraumatic stress disorder or chronic depression,” but not the “temporary strain” of a tough interrogation.
This analysis led to the definition of torture in the 2002 legal opinion smeared as “torture memos”: “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.” By this analysis of the law, the enhanced interrogation techniques, including waterboarding, are neither “torture” nor “illegal.”
And Attorney General Eric Holder agreed in testimony before the House Judiciary Committee in May 2009. Since tens of thousand of American service members were waterboarded during their SERE (Survive, Evade, Resist, Extract) training, Holder was asked why this training wasn’t torture and hence illegal. Holder correctly replied, “It’s not torture in the legal sense because you’re not doing it with the intention of harming these people physically or mentally.” This same logic perforce applies to the CIA interrogators, whose intent was to gather intelligence in order to defend us from terrorist attacks. The lack of intent to harm permanently on the part of the interrogators is confirmed by the carefully calibrated limitations imposed on the techniques, as well as the presence of physicians and psychologists to monitor the proceedings and insure that the subject didn’t suffer permanent physical or mental damage. As national security analyst Marc Thiessen writes in Courting Disaster, “none of the techniques used by the CIA meet the standard of torture in U.S. law. This is for two reasons: first, because the CIA’s interrogators did not specifically intend to inflict severe pain and suffering; and second because they did not in fact inflict severe pain and suffering.”
As for the effectiveness of waterboarding in generating intelligence, former CIA directors Michael Hayden, George Tenet, and Leon Panetta, along with the CIA Inspector General’s report on enhanced interrogation techniques, have said waterboarding and other now proscribed techniques produced valuable information. In his memoirs George Tenet wrote about the interrogation of Khalid Sheikh Mohammed––the mastermind of 9⁄11 who claims to have personally decapitated Wall Street Journal reporter Daniel Pearl. According to Tenet, “From our interrogation of KSM and other senior al-Qa’ida members and our examination of documents found on them, we learned many things––not just tactical information leading to the next capture. For example, more than twenty plots had been put in motion by al-Qa’ida against U.S. infrastructure targets … . All these plots were in various stages of planning when we captured or killed the pre-9⁄11 al-Qa’ida leaders behind them.”
Despite that success, on coming into office Obama issued Executive Order 13491, forbidding the use of enhanced interrogation techniques. A few months later he ordered––over the protests of 6 CIA directors, including Leon Panetta, and 8 field operatives––the Department of Justice to release the internal memos that in the process of establishing the legality of the techniques described them in detail, thus providing valuable information to the enemy on how to overcome them. Having neutralized proven interrogation techniques, now Obama simply drones terrorists to death rather than trying to capture them in order to gather information with all those other techniques that critics of waterboarding claim are equally effective.
That’s the real story behind the Committee’s interrogation of Brennan: partisan self-interest, emotional delusion, and sloppy thinking have taken from the hands of those charged with keeping us safe a tool that proved its usefulness in acquiring information critical for preventing attacks. That mistake is more important than whether John Brennan can flip-flop his way to getting himself confirmed as CIA director.
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