The New York Times’ front-page story Sunday reporting the unanimous agreement among Justice Department lawyers that the “harsh” interrogation techniques approved by the Office of Legal Counsel for use by the CIA were legal relies on the classic journalistic “battle of the experts”: one “outside” expert says the CIA interrogation techniques like slamming, sleep and food deprivation and stress positions were clearly lawful; another says that “at least waterboarding” was not.
The approach is disingenuous and misleading for a number of reasons I’ll get into below. And the effect is to offer an excuse for those officials who approved what many real experts on the international and domestic laws against torture and cruel treatment have been saying for years are clearly illegal.
After discussing the recently-obtained e-mails, apparently revealed during the much-anticipated investigation by the Justice Department’s Office of Professional Counsel, here’s The Times’ attempt at stepping back and putting the situation in context:
Some outside experts agree that the language of the 1994 [anti-torture] law is strikingly narrow. “There’s no doubt whatsoever that a great deal of coercive treatment that most people would call torture is not prohibited by the federal antitorture statute,” said Benjamin Wittes, a Brookings Institution scholar who has studied interrogation policy.
But many believe that even under that law, the Justice Department should have recognized that waterboarding, at least, was torture. To argue otherwise, said Brian Z. Tamanaha, a St. John’s University law professor who has studied the interrogation memorandums, required “extraordinary contortions in language and legal analysis.”
Setting aside the obvious problem of approaching such a serious issue by just cherry-picking one expert from each side, this sets up the legal issue incorrectly, and relies on an outside “expert” on legal compliance who doesn’t even have a law degree.
Sure, Benjamin Wittes, a Washington Post editorial writer before moving to Brookings, has written about law as a journalist and opinion writer; but Wittes is neither a lawyer nor a law professor — usually the bare minimum required to qualify someone as an expert on the laws of war, interrogation and torture. Shouldn’t the one expert cited by the so-called paper of record as saying the manipulative abuse of prisoners by the CIA was undoubtedly legal at least have the requisite educational background to offer the opinion?
Maybe Wittes is a brilliant autodidact. But there’s an obvious problem with his whole analysis. The law is not nearly so narrow as Wittes and The Times’ article portray it.
As anyone who’s read either the Convention Against Torture or the 1994 U.S. law implementing it knows, interrogation techniques don’t have to rise to the level of “torture” to be unlawful.
Human Rights First – a collection of actual legal experts on international human rights law – explains on its Website: “Even if the practices alleged in the recent press reports do not constitute ‘torture,’ article 16 of the Torture Convention obliges states not to commit “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.”
When the U.S. Senate ratified the treaty in 1994 and adopted a parallel domestic law, it included this reservation:
“[T]he United States considers itself bound by the obligation under article 16 to prevent
cruel, inhuman or degrading treatment or punishment’, only insofar as the term cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”
In other words, it prohibits the sorts of things that the U.S. Constitution would prohibit doing to prisoners here in the United States.
Can one really say that “there’s no doubt whatsoever” that the interrogation techniques used by the CIA would not violate that ban? Is it even conceivable that U.S. courts would allow federal officials to use those techniques on U.S. prisoners held in the United States? Didn’t the Bush administration create the prison at Guantanamo Bay precisely because it wanted to avoid constitutional obligations?
If The Times is going to take up this serious issue on its front page, then it should take the topic seriously enough not to act as an apologist for Justice Department lawyers, but to present it honestly, accurately, and with real expertise.
2nd UPDATE: I’d like to make a clarification. Upon reflection, I think I was too hard on Wittes here. I read his quote, in the context in which it was presented in The Times’ story, as saying that the harsh but less-than-torture techniques discussed in the article were undoubtedly lawful, which is, of course, a matter in much dispute. After re-reading his statement, it seems that he was saying only that many interrogation techniques that Americans would ordinarily think of as torture don’t rise to the level of being defined as “torture” as set out in the 1994 federal anti-torture statute, 18 U.S.C. 2340. And that’s correct.
My point was a larger one, and was directed at The Times, not at Wittes. The article sets him up as an expert to make the point that the Bush administration lawyers reportedly made (though that in itself is a matter of some contention), which is that, as Times reporters Scott Shane and David Johnston put it, “the methods themselves were legal.”
But as I point out above, saying that they don’t rise to the legal definition of “torture” does not mean that they’re legal. Even if Bush administration lawyers thought they were, there are many very learned, respected and legitimate experts who disagree. And The New York Times should have noted that, instead of using a quote that makes a very narrow point to suggest a far broader conclusion.
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