Aziz Huq is director of the liberty and national security project at the Brennan Center for Justice at NYU School of Law.
In September 2005, Captain Ian Fishback of the 82nd Airborne Division wrote to Senator John McCain complaining of the rampant prisoner abuse he had seen in Iraq. “Do we sacrifice our ideals in order to preserve security?” asked Fishback. He gave a simple answer: “’I would rather die fighting than give up even the smallest part of the idea that is ‘America.’” Fishback is not alone in seeking to defend “the idea that is ‘America.’” Other courageous members of the armed forces, such Albert Mora and Charlie Swift have fought for the rule-of-law—often at great personal cost. As we enter the longest presidential campaign season perhaps ever, the need to ask whether their efforts have been in vain must be asked with increasing intensity.
Two developments in particular call into question the path of America’s torture policy. Since the Military Commissions Act of 2006—which curtailed habeas rights and “redefined” both torture and cruel, inhuman and degrading treatment in ways that foster dangerous ambiguity—the CIA has been waiting for new marching orders on coercive interrogations. Now, the administration appears to be on the cusp of issuing new interrogation instructionsfortheCIA.
These instructions are not an academic experience. As a superlative new report from a consortium of human rights organizations demonstrates, the United States is still directly or indirectly detaining a score of people without any formal recognition of the fact. In all likelihood, it is the CIA that has takes the lead in organizing the ongoing detention and interrogation of these individuals. This means that the Agency is still in the business of seizing people off the streets and keeping them locked up beyond a shadow of the law.
Second, the Democratic-controlled Congress is in the process of tightening the screws on the administration. Senators Sheldon Whitehouse, D-R.I., and Dianne Feinstein, D-Cal., for example, recently introduced an amendment to this year’s Intelligence Authorization Act that would have barred the use of appropriated funds for interrogation methods by the CIA or other U.S. agencies that are not explicitly authorized by the U.S. Army Field Manual. (This would have had special bite because the Army recently updated its field manual to prohibit all forms of coercive interrogation. The amendment, however, was defeated 8-7 with, with Senator Bill Nelson, D-Fla., breaking ranks to vote with the Republicans.
In both cases, what has made the difference is politics—and the callow calculation of whose attack ads would hurt more come election night. The question is no longer whether torture and its ugly lesser cousins cruel, inhuman and degrading treatment are illegal: They are. The question is not whether the tactics akin to torture used by the CIA they work. As a recent Defense Department report that canvassed almost all the available evidence demonstrates, they don’t, because it is simply impossible to know when what the torture victim says is true, and when it’s just what he thinks his torturer wants to hear.
The tactics of torture don’t work at getting information, that is—but they are still a way of rounding up the votes.
Unfortunately, the imminent campaign season will only increase the pressure—on politicians from both sides of the aisle—to race to the bottom in the effort to outflank their opposition on their toughness to torture. The race, unfortunately, has started early—with last month’s Republican debate in Columbia, S.C., proving a testing ground for a “maximum security” rhetoric. Both Mitt Romney and Duncan Hunter almost fell over themselves to endorse coercion, while Rudy Giuliani tottered on a semantic tightrope (” Shouldn't be torture, but every method they can think of," including water-boarding, which, sorry Rudy, is torture under international and domestic law). Only John McCain, the only candidate to have first-hand experience of torture, held the line: “We do not torture people,” he said, simply and plainly.
Again, it bears repeating that this is not an issue confined to one side of the aisle: When the Democrats act on security issues, they too are prone to err on the side of granting too much discretion to the executive. The Whitehouse-Feinstein Amendment, for example, was far from perfect. It would have permitted the use of illegal, and even torturous, interrogation tactics, when the president declared that there was “a national exigency and that an individual has information about a specific and imminent threat.” In the present climate, this is an open door to abuse. The president has claimed “national exigency” since 9/11, and the administration repeatedly claims that its detainees have specific information. The problem is not only that officials repeatedly get it wrong (as the case of Khaled El Masri graphically illustrates).
It is more than unfortunate that politicians feel they can still score points by “getting tough” on torture. It is counter-productive to national security, which is harmed immeasurably by the impression that the United States sees itself standing above the law—and above human decency.
And one need only look at the “war on crime” to see where the downward spiral of “getting tough” ends up. Starting with Barry Goldwater, politicians have taken to the ramparts to proclaim the importance of dealing ruthlessly with crime. What they have left us with is a viciously unjust and deeply racially divided justice system that serves mainly to incarcerate minorities and to breed hopelessness.
In the context of national security, we can do better. To begin to do so, we must answer the eloquent question that Ian Fishback posed: “Will we confront danger and adversity in order to preserve our ideals, or will our courage and commitment to individual rights wither at the prospect of sacrifice?” Some of the presidential candidates have given their answers. Others will doubtless do so in the coming months. It is unlikely that the “wrong” answer will come from one side of the aisle.
But until national security ceases to be a pawn in the partisan chessboard of electoral calculations, and until politicians stop cultivating fear as a way of capturing votes, we will not have the debate—and the resolution on America’s torture policy that we still desperately need.