Coauthored with Stuart S. Taylor, Jr. Part of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution, May 10, 2009
The worldwide scandal spurred by the abuse of prisoners in Abu Ghraib, Guantánamo, Afghanistan and secret CIA prisons during the Bush Administration has been a stain on America’s honor and a catastrophe for our national image. Understandably eager to save innocent lives by breaking the resistance of a few Al Qaeda leaders, Bush and his aides went way overboard. Instead of crafting special rules to allow for exceptionally tough interrogations of those few leaders and maintaining strict limits to ensure that those interrogations stopped short of torture, the Bush team chose to gut the laws, rules and customs restraining coercive interrogations. They did this with a public bravado and an ostentatious disregard for international law that both scandalized world opinion and sent dangerous signals down through the ranks. These signals contributed to lawlessness and to confusion about what the rules were supposed to be. They helped open the floodgates both to CIA excesses widely seen as torture and to brutal treatment by the military of hundreds of small-fry and mistakenly-arrested innocents in Iraq and Afghanistan and of an unknown number of prisoners at Guantánamo. All this inspired widespread international and domestic revulsion and gravely undermined America’s political and moral standing and ability to work with some allied governments.
The policies that led to this scandal were long ago largely abandoned by the Bush Administration itself. Years before President Obama took power, the former president’s lawyers stopped claiming for Bush the power in effect to nullify the federal law that makes torture a crime. While the administration did not concede that highly coercive methods including waterboarding, an infamous form of simulated drowning, are banned under current law, the CIA had discontinued that method after using it to help break three Al Qaeda figures in 2002 and 2003. And Congress adopted new restrictions on interrogation in the Detainee Treatment Act in 2005 and in the Military Commissions Act of 2006. The military, with sharp prods from Congress and the Supreme Court, got out of the coercive interrogation business entirely in 2006.
But Congress, the media, and other critics have continued to focus so intensely on the sins of the past, particularly in light of President Obama’s release of the prior administration’s formal legal opinions on coercive interrogation, as to neglect serious analysis of what is at this stage a far more important question: What rules should govern future interrogations? In particular, what should our government do the next time it captures known terrorist leaders who likely possess information that could save lives yet who are fiercely determined not to divulge that information? Should the law prohibit CIA interrogators from using any coercion at all, as the Democratic-led Congress voted to do in 2008, and thereby reclaim some international good will by disavowing what may prove an important safeguard against terrorist mass murders? If not, then exactly how much coercion should Congress allow, using what interrogation methods, on what kinds of prisoners, and with what high-level approvals and congressional oversight?
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