Apr 24 2009

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Enhanced Interrogation & National Security

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Peter Smithhisler should be calling his lawyer.

You see, fraternities were not a big part of campus life where I attended college, but I was always intrigued by the rites and rituals that bonded Brothers in the Greek society. About 20 years ago, I accidentally broke in on the code of silence in one instance and listened, spellbound, as a friend of the time talked about his initiation rites.

Apparently there was much screaming and taunts from Frat Brothers, and public denigration and humiliation for the Pledges. Pledges were pelted with eggs for the slightest infraction of arbitrary rules and sometimes for no reason at all.  There was much forced drinking, purposelessness and sleep deprivation.

At the end of Hell Week, Pledges were driven blindfolded, into a deserted area. They were lined up on what they were told was a cliff. If they trusted their Brothers, they would jump.

For production value, the first “Pledge” actually a Brother, let out a scream, making it seem as if the fall was long and hard. In actuality, it was only a few feet, with Pledges landing in sand, where Brothers quickly and safely took them back to the vehicle and home to their new House, the last test having been passed.

Obviously, the Pledges lining up didn’t know that, causing a fair amount of mental anguish, anxiety and uncertainty as they made their choice to jump or not.  Not everyone did.

I mention this, and Mr. Smithhisler, as he is the President & CEO of the North American Inter-Fraternity Conference (NIC), the umbrella organization for college fraternities nation-wide.

You see, if my peek into Hell Week is even generically applicable to the practices of other fraternities in his membership, then Greek system is now at odds with the Obama administration’s torture policy.

Last week, in a boldly pernicious action for our national security, the Obama administration released a series of highly classified Justice Department opinion letters, drafted during the Bush administration, which analyzed national and international understandings concerning the practice of torture and the relevance of those understandings to the use of proposed CIA interrogation techniques against terrorists.

The release of the horrendously misnamed “Bush Torture Memos” (3.5 million hits on Google) caps a series of actions over the last 90 days where the Obama administration has invalidated those memos by Executive Order, banned interrogation procedures that are credited with creating actionable intelligence to protect the American people, provided non-state terrorists with the POW protections of the Geneva Convention, and set a course to try terrorists as common criminals in domestic US courts with American legal rights.

That Obama and the Democrats believe the Bush administration sanctioned and supported torture is, sadly, not in doubt. The Obama administration has done all that it could over the last three months to leave this impression. Indeed, release of the memos was to be wooden stick in the heart of “evil” that the Bush administration had perpetrated.

But the reality is something different.  These were not documents of a cavalier “release the hounds” genre, intended to run roughshod over national and international convention and provide cover for the CIA to beat the living daylights out of detainees, but rather a sober, detailed and thoughtful review of essentially untested legal waters that, as Rich Lowry stated in National Journal, exists beyond the interrogation techniques of the Army Field Manual and the illegality of torture

The authors of the Bush memos understood several things.

First, as noted in the Supreme Court majority opinion in Haig vs. Agee, “It is obvious and unarguable that no government interest is more compelling than the security of the nation.”1 After September 11th, it was clear that the nation faced a clear and present danger from an enemy that practiced asymmetrical and unconventional warfare, where interrogation would be a crucial tool to prevent future attacks.

Second, the authors understood and noted that “torture is abhorrent both to American law and values and international norms. The repudiation of torture is reflected not only in our criminal law, but…international agreements.”2 Indeed it was “…the President’s clear directive that the US does not condone or engage in torture.”3

Third, the authors also understood that the lack of pre-9-11 case law and thus the inherent imprecision in defining key terms in relevant US and international statutes, but particularly Title 18 USC S2340-2340A, required “great care in applying the statute to specific conduct.”4

Thus the memos engaged in a most rigorous review of all laws and treaties governing torture, including international agreements, US law, as well as congressional report language accompanying bills and what case law there was with regard to the interpretation of word meanings.  They also completed extensive research on the impact of the proposed procedures based on evidence provided by multiple sources to determine a threshold.

All totaled, the CIA requested Justice Department Guidance on twelve enhanced interrogation techniques.  The procedures are listed here to give specific detail to what the Obama administration, Democrats and Bush critics call torture:

Attention Grasp: consists of grasping the individual with both hands, one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the individual is drawn toward the interrogator.

Walling: a flexible false wall is constructed. The individual is placed with his heels touching the wall. The interrogator pulls the individual forward and then quickly and firmly pushes the individual into the wall. It is the individual’s shoulder blades that hit the wall. During this motion, the head and neck are supported with a rolled hood or towel that provides a collar effect to help prevent whiplash. To further reduce the probability of injury, the individual is allowed to rebound from the flexible wall. The wall is constructed to make a loud sound that will shock or surprise the individual.

Facial Hold:  hold the individual’s head immobile. One open palm is placed on either side of the individual’s face. The fingertips are kept well away from the individuals eyes.

Facial Slap or Insult Slap: the interrogator slaps the individual’s face with fingers slightly spread. The hand rnakes contact with the area directly between the tip of the individuals chin and the bottom of the corresponding earlobe.  The goal of the facial is to induce shock and surprise.

Abdomen Slap: interrogator uses an open hand, with fingers held tightly together to strike the individuals abdomen to maintain attention.  No rings or other hand held devices are allowed in this exercise.

Cramped Confinement: involves the placement of the individual in a confined space, the dimensions of which restrict the individual’s movement. The confined space is usually dark and the duration of confinement varies based on the size of the space

Wall Standing: designed to induce muscle fatigue. The individual stands about four to five feet from a wall with his feet spread approximately to shoulder width.  His arms are stretched out in front of him, with his fingers resting on the wall.  His fingers support all of his bodyweight. The individual is not permitted to move or reposition his hands or feet.

Stress Positions: not designed to produce the pain associated with contortions or twisting of the body. Rather, somewhat like walling, they are designed to produce the physical discomfort associated with muscle fatigue. Two particular stress positions:  (1) individual sitting on the floor with legs extended straight out in front of him with his arms raised above his head; and (2) kneeling on the floor while leaning back at a 45 degree angle.

Sleep Deprivation to reduce the individual’s ability to think on his feet and, through the discomfort associated with lack of sleep to motivate him to cooperate.

Insects: interrogator declares that a “stinging” insect will be placed in the same closed space as the individual.  However, the insect placed inside is harmless.

Dietary Manipulation: substituting commercial, liquid meal replacement for regular food on a calorie to calorie basis making a different, but nutritionally complete meal.

Nudity:  to create psychological discomfort for individuals where cultural considerations tend toward physical modesty.

Waterboard: To use a cloth and water to create the perception of drowning for the individual for between 20-40 seconds.

The procedures are harsh and distasteful. This is not what an American would expect in an unfortunate trip to the police station.  But the United States is not fighting a global war against the Mormon Tabernacle Choir either.

In this consequential time, we as a society have become sadly fast and loose with our terminology. Despite the increasingly obscene hardscrabble of the public square of ideas and opinions we share, to accuse someone of planning, justifying or conducting something as horrendous as torture is still no small matter, and here it deserves context.

Fraternities practice sleep deprivation. Gym teachers enforce embarrassing nudity in middle school showers. And what of the trainers of our high performance warriors in the Navy SEALs program? The Survival, Evasion, Resistance and Escape (SERE) training specifically uses techniques such as cramped confinement, slapping, stress positions and yes, water boarding, to prepare our soldiers for captivity. Are all these people liable under the Obama standard for enforcing a no-torture policy?

What about anyone who drinks Ensure or SlimFast as a meal replacement?  Are we torturing ourselves?

Television fans with a casual knowledge of today’s interrogation debates would probably be surprised to find that Jack Bauer’s heavy-handed interrogations on “24” far exceeds anything that the CIA would or could contemplate under the Justice Department guidance.

In fact, unlike our fictional Jack Bauer, the enhanced procedures could only be used on those designated as High Value Detainees who had been identified by previous interrogation – from experienced interrogators – to be withholding vital information that related to the planning or execution of terror attacks against the US or its allies.

Moreover, those procedures would not be exercised until such time as the detainee had been medically examined and deemed fit physically and psychologically for the procedures, and authority had been received in writing to proceed. During the enhanced interrogations, medical personnel were to be on hand with authority to stop the sessions if there was cause to believe that the detainee was in any kind of danger.

The instructive, and occasionally humorous examples listed here intentionally mask an otherwise deeply consequential and necessarily complex issue that has been unleashed – again – by Obama administration in its actions on Gitmo, the memos and the US War on Terror.

The cursory, shallow and perfunctory manner that the Obama administration has approached its anti-terror policies, dominated as they have been by symbolism over substance and a lack of an overall strategic framework, is causing more problems than it solves.

Politically the release of the memos – and the deeply embedded torture narrative – have restored visions of Bush indictments dancing in liberal heads, even as Democratic leaders meekly admit or preposterously deny  their knowledge of the program dates back to 2002.

In this case, it is ironic that for enhanced interrogation, Democrats want to send senior Republicans to jail. Few seem to remember that it was FDR who put 150,000 American citizens in “detention facilities“for no better reason than their race, in the name of national security.  There never was a Truman or Eisenhower enquiry for one of the worst civil rights violations in American history.

And release of the memos stir a legitimate caldron of national security problems. That credibility that Obama is always talking about restoring with other nations applies to intelligence and terror too. Our premature outing of the memos is likely not only to cool our alliances as a reliable partner, but lead to an exodus from the CIA where somehow it seems, only the bad comes out.

You see, in releasing the memos, the Obama people failed to note the results of the enhanced interrogation practices, an error of commission no doubt.  Citizens only have one side of the story. You get a clear implication of Bush blood-lust, but no discernable idea of success, which is exactly what opponents of the interrogation methods want – an unchallenged verdict that these methods don’t work.

But that simply is not true.  From Admiral Blair on down, the usefulness of the program in gathering actionable intelligence has been proven.

Finally, and most damaging, the Obama administration has given Al Qaeda our playbook.

Bad enough that Al Qaeda already knows about wiretaps and bank transfer monitoring, courtesy of that paragon of virtue, The New York Times.

Not only do terrorists now know about fake walls, confinement times, harmless bugs, SlimFast and sleep deprivation, they are also aware of the lengths that the United States goes to, to prevent enhanced interrogation from leading to any kind of permanent injury to the detainees.

To some none of that matters now, since the procedures have been abolished.

But what do Al Qaeda prisoners have to be afraid of now once in detention?  Obama has already laid out what was done and prematurely disowned it as he made it public. Nothing more consequential is in the offing. If you were Al Qaeda, what deduction about Obama and his resolve would you make about that?

In this journal’s opinion, the Obama administration has made a breathtakingly naive and shortsighted mistake with potentially epic consequences for American national security.

The DC Court of Appeals stated: “The severity requirement is crucial to ensuring the conduct proscribed is sufficiently extreme to warrant condemnation. Only acts of a certain gravity shall be considered torture.”5

In the final analysis, the Bush administration’s enhanced interrogation techniques do not meet that standard, no matter how many times it is repeated and the president and ACLU say it is so. But it did achieve results.

Under attack in a new kind of war, legal scholars sifted all available resources to defend our country and our honor. The memos aren’t the convenient cover so favored by the tabloids; they are a testament to the efforts of civilized societies to fight unrestrained barbarism without losing their ideals. They are imperfect symbols, fighting an ugly truth with harsh methods that are unpleasant to contemplate but sadly necessary for defense.

Maybe there was a better way; to reform the Geneva Conventions, codify interrogation techniques earlier with Congress beyond briefings.  The fact is that all of those prescriptions are Monday morning quarter backing.

We are here.

I hear that if the US does not take action against the Bush administration, the Europeans will. Now there’s a laugh; the Germans standing as moral arbiters to our alleged sins.  Not since Libya Chaired the UN Human Rights Commission has there been such pitiable, laughable irony.

On September 11, 2001, terrorists killed 3000 Americans on our soil, ostensibly, because the US government, as Democrats of the time loved to say, did not connect all the dots. President Bush left office in 2009 without one additional terror strike on American soil. Our ability to understand, detect and deter attacks was all a part of greater capabilities including enhanced interrogation that played a hither to unsung role in that success.

If, G-d forbid, a terrorist strike takes place on American soil during Barack Obama’s presidency, and there was actionable intelligence we would not access due to his specific change in policy, I genuinely pity the person that has to come out and explain why to the American people.

You shouldn’t have to lose a city to uphold a principle. The Bush administration worked very hard to understand and apply that.

The verdict is still out on Obama.

1. Haig v. Agee 453 US 280 (1981)

2. OLC Memo to CIA May 2005

3. Ibid

4. Ibid

5. OLC Memo May 2005


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