The "scenic route" to torture
Despite all the legalistic obscurities surrounding the torture "compromise" between President Bush and Republican senators there is one critical fact of overarching significance that is now crystal clear. This entire controversy arose because the U.S. has been using "interrogation techniques" -- such as induced hypothermia, "long standing," threats directed at detainees' families and waterboarding -- that are widely considered to be torture, and therefore in violation of the Geneva Conventions. The only thing the president wanted was to ensure that the CIA could continue to use these techniques, and that, unquestionably, is precisely the outcome of this "compromise."
If anything, these torture techniques will enjoy greater legal protection under the "compromise" legislation reached by the leaders of America's ruling party because a) authorization of these interrogation techniques will now be grounded in a statutory scheme duly enacted by Congress (rather than in the shadowy, secretive "interpretations" of the Geneva Conventions promulgated by the executive branch) and b) judicial review of any type (i.e., the ability to have courts adjudicate the compatibility of these practices with the mandates of the Conventions) will be barred entirely.
Unlike most news accounts this morning, ABC News' Brian Ross, reporting on the Blotter blog, illustrates just how clear the resolution is (emphasis added): "The CIA director, General Michael Hayden, praised the deal reached in Congress today that, in effect, would permit CIA interrogators to use harsh techniques critics call torture ...
"As reported on the Blotter on ABCNews.com, in questioning certain high-value terror suspects, the CIA has used a series of six increasingly harsh interrogation techniques that begin with a slap to the face and end with a procedure called water boarding, in which a prisoner is made to feel he is drowning ... Today's congressional deal, if signed into law, would allow the CIA to continue the six techniques and to continue to run secret prisons overseas for select terror suspects."
From the beginning, the president made clear that the only objective he had with these "negotiations" -- the only outcome he cared about -- was ensuring that the CIA could continue to use these "aggressive interrogation techniques." As President Bush said in his Sept. 15 press conference: "I have one test for this legislation. I'm going to ask one question, as this legislation proceeds, and it's this: The intelligence community must be able to tell me that the bill Congress sends to my desk will allow this vital program to continue. That's what I'm going to ask."
The president got everything he wanted. What he calls the "program" -- and which much of the world calls "torture" -- will continue unabated, arguably even stronger, as a result of this legislative "compromise." In his celebratory statement Thursday night, the president was absolutely right when he said: "I had a single test for the pending legislation, and that's this: Would the CIA operators tell me whether they could go forward with the program, that is a program to question detainees to be able to get information to protect the American people. I'm pleased to say that this agreement preserves the most single -- most potent tool we have in protecting America and foiling terrorist attacks, and that is the CIA program to question the world's most dangerous terrorists and to get their secrets."
The White House's Dan Bartlett put it best, and most accurately, when he said: "We proposed a more direct approach to bringing clarification. This one is more of the scenic route, but it gets us there." Only the Bush administration could speak of taking a "scenic route" to torture. But Bartlett's description, creepy and chilling though it may be, is not mere spin designed to make a compromising president look triumphant. Bush, in fact, did triumph and did not compromise in any meaningful sense, because the only goal he had -- to ensure that his "alternative interrogation program" would continue -- was fulfilled in its entirety as a result of this "compromise" (with the added bonus that it will even be strengthened by legal authorization from Congress).
Marty Lederman, both here and here, provides the legal and statutory analysis as to why and how the "compromise" legislation legalizes the president's torture program, and I will have more on that later. But the bottom line should not be clouded. This debate was never about legalistic disputes concerning the wording of amendments to the War Crimes Act or what phrases would be used to statutorily define "torture." What was implicated by this controversy was something much more profound and fundamental: namely, what kind of country we choose to be, and whether we will adhere to or repudiate our defining national principles and values.
If this "compromise" legislation is enacted -- and it can now be stopped only by the invisible, impotent congressional Democrats -- the United States will be a country that has formally legalized torture, and the president's "interrogation program" will continue unimpeded, with firmer legal authorization than ever before. And the American people, through our representatives in Congress, will have embraced and approved of the use of torture. Far and away, it is the impact on our national character that will be the most significant and enduring result from this "compromise."
