What we know: In January 2002, prisoners captured in the war in Afghanistan began arriving at Guantánamo Bay, and the Bush administration had to figure out what to do with them. On counsel Alberto Gonzales’s advice, President Bush declared that al-Qaeda and Taliban prisoners were not protected by the Geneva Conventions. In the following months, military interrogators began reverse-engineering the Survival, Evasion, Resistance, and Escape (SERE) methods—which were intended to help Army Special Operations soldiers avoid cracking under torture—into interrogation techniques to be applied to the prisoners from Afghanistan, effectively mimicking the tactics that had been employed by America’s enemies in past wars. In spring and summer of 2002, the Justice Department’s Office of Legal Counsel issued opinions arguing that any interrogation technique not resulting in impairment of bodily function, pain comparable to organ failure, or death did not constitute torture, and then laying out precisely what techniques met this definition.
The new guidelines were quickly put to use by the Defense Department (though not other agencies like the Federal Bureau of Investigation), leading to a now depressingly familiar litany of prisoner abuses that were either officially approved or quietly tolerated. But the agency that most vigorously embraced the expanded latitude was the Central Intelligence Agency, which by 2002 was running a secret program of interrogating high-value detainees in prisons in Afghanistan, the Middle East, and eastern Europe—"black sites," in intelligence parlance. Among the black site alumni are Abu Zubaydah, an alleged high-level al-Qaeda operative, and Khalid Sheik Mohammed, who has claimed responsibility, under interrogation, for the 9/11 plot and the murder of journalist Daniel Pearl (he has also told interrogators that he plotted the assassinations of Bill Clinton and Pope John Paul II, which casts some doubt on the rest of his admissions).
The New Yorker’s Jane Mayer, who has reported extensively on the black sites, writes that there is an important difference between the military interrogations and what the CIA did: while the Bush administration has blamed—and in some cases prosecuted—individual soldiers for the military’s prisoner abuses, "the [CIA’s] treatment of high-value detainees has been directly, and repeatedly, approved by President Bush."
What we don’t know: How detainees are being interrogated now. In 2004 the Bush administration rescinded the original torture definition—which has since been made public—but the following year the OLC drafted three new memos authorizing specific techniques, which remain classified (the original 2002 techniques list has been released, but only in overwhelmingly redacted form). Jameel Jaffer, director of the National Security Program at the American Civil Liberties Union—which has successfully sued for more than a hundred thousand pages of interrogation-related documents—says there is good reason to believe that the 2005 opinions probably just redefined the same old techniques as permissible under the Geneva Conventions. In 2006, after the Supreme Court ruled in Hamdan v. Rumsfeld that detainees had to be treated according to the Geneva Conventions, Bush announced that all detainees in the CIA’s overseas prisons would be transferred to Guantánamo. In a July 2007 executive order, he ordered the CIA to adjust its interrogation methods to meet the Geneva standards, but in a vague way that leaves the door open to techniques that still run afoul of U.S. law, such as sleep deprivation, and possibly whatever was allowed under the 2005 opinion.
How we can find out: President Obama can order the DOJ to declassify the second set of torture memos, and retract and amend Bush’s July 2007 executive order. Either Obama or Congress can call for a review of the classification decisions that have led to heavy redactions of government documents pertaining to officially sanctioned torture that have been released so far.
Records of run-of-the-mill military prisoner abuse, much of which was not explicitly sanctioned, will be the easiest to declassify—many of them have been already. Getting an official public accounting of how prisoners have been interrogated by the CIA will be far trickier. The next administration is likely to adhere to arguments that disclosing too much in the way of actual interrogation tactics would endanger the lives of intelligence agents, or reduce the methods’ effectiveness by allowing terrorists to prepare for them. From the outset, CIA interrogators have reportedly expected to be criminally prosecuted on torture cases as soon as it becomes politically expedient for the president or Congress to do so. In 2007, anonymous agency officials told the New York Times that the CIA had destroyed videotapes of interrogations of Zubaydah and another detainee, "in part because officers were concerned that video showing harsh interrogation methods could expose agency officials to legal risks." We don’t know who exactly destroyed the tapes or what else may have been or is in danger of being destroyed, but Congress or an investigatory commission might be able to guard against losing what’s still intact by granting immunity to interrogators. Establishing the responsibility of officials higher up in the Bush administration is far more important than prosecuting those who carried out their actions in the field.
Even if techniques can’t be disclosed, Congress or a commission could usefully address the scope and results of the interrogations, something that would be far harder to block on national security grounds: how many detainees were subjected to extreme techniques, how many of them were ultimately cleared of wrongdoing, and whether any useful information was extracted from those who weren’t. Most of the techniques that interrogators are believed to have derived from the SERE methods originated with the KGB, which used them to extract false confessions; ethics and legality notwithstanding, many intelligence veterans have questioned their usefulness for obtaining accurate information. As president, Obama should reiterate his campaign statement that "Torture is how you create enemies, not how you defeat them. Torture is how you get bad information, not good intelligence." And if the evidence suggests the latter is true, it should be made public to preempt the next Dick Cheney who suggests otherwise.
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