Anderson [American U.]: Does it matter who you are interrogating? Commentary
Anderson [American U.]: Does it matter who you are interrogating?

Kenneth Anderson, Washington College of Law American University:

"One thing that is missing in the whole torture-interrogation debate is the question of who you are interrogating. Can you use a different level of interrogation on Zarqawi, for example – knowing it is Zarqawi – than you could on someone who might indeed turn out to be the peasant shepherd? In my view, the answer must plainly be yes. But this would require a regime that assigned different levels of possible roughness of interrogation – while remaining above an agreed-upon standard of torture – depending upon what is known about levels of involvement in terrorism. That, in turn, would really require a separate legal and intelligence regime for dealing with terrorists. Many countries have exactly such laws, and they are found extensively in Europe. I have reluctantly come to believe that the United States should enact such a regime for dealing with non-US citizens believed involved with terrorism. For the same reasons that many European states have enacted such special regimes, I believe that the United States needs such a special regime as well – although, among other limitations, I would confine it to non-US citizens. One finding in such a system would be probable level of involvement, which would fall within a protocol for acceptable levels of pressure in interrogation.

First and foremost, however, I think the United States needs a thorough public debate on the issue – it cannot languish buried within the Justice Department, intelligence community, Department of Defense, and so on. Those who must deal with these questions with real detainees must have guidance, so that it is both clear what they may do and what it is that crosses the line – otherwise they will tempted to do whatever they feel like or, alternatively, do nothing for fear of prosecution. It is entirely insufficient simply to refer to the Torture Convention or its homologous US legislation; the phrases provide certain standards, but that cannot substitute for judgments about particular, concrete practices.

With respect to Gonzalez – all said and done, I support his confirmation. This despite the fact that his office made very important mistakes, both procedurally and substantively.

Procedurally, it was wrong for the Administration to have cut its own professional military lawyers out of the loop, having a group of Administration lawyers without experience in the laws of war leafing through the Geneva Conventions for the first time. I understand the procedural problem – it only grows plainer and plainer the extent to which large swaths of the State Department and CIA believe that if they are not precisely a government unto themselves, they are at least a policy unto themselves – but there had never been an indication of that kind with respect to DOD. Those lawyers could have saved Gonzalez's office much grief by ackowledging that of course the Geneva Conventions applied to detainees – but that under those Geneva Conventions, Al Qaeda and the Taliban are unprivileged combatants – and that detainees would receive the informal, unappealable three officer hearing per 1997 DOD regulations to determine their status, but nothing more.

Instead, it seems to me, Administration bet the farm with a far fetched theory of the so-called unitary power of the executive in matters of war – essentially telling the Supreme Court, when it came to it, that the Court had to butt out on Constitutional grounds, not on the grounds that the Administration's view of international law was legally defensible. When the constitutional law theory crashed and burned – it did not even garner support from Justice Scalia – it took down with it the quite defensible view of international law and applicability of the Geneva Conventions. This was one substantive mistake that is shared by the Justice Department and the White House counsel.

A second, of course, was the first torture memo. It held, quite obviously wrongly, that behavior was not torture if, in effect, the Executive said it had good reasons to do it. The Torture Convention does not tell how to draw lines about much interrogation behavior – one entirely obvious point, however, is that the purpose of even having a Torture Convention is to say that if behavior is torture, however, defined, then you can't do it even if you have good reasons to do it. This was an extraordinarily serious error; it has been reversed, of course, by the new memo just out in recent days.

That said, it is far too easy to forget the situation in the months after 9-11. It is also far too easy to forget that the first torture memo was a response to questions about a detainee whose identity was only too well known; no goatherd or shepherd, he. It is ever easy for civil liberties groups and human rights NGOs, with no responsibility for the common security and, indeed, scant regard for it, to shove all those issues to one side. In the name of protecting the human rights of someone whose status as a terrorist is entirely established, they cannot be shoved to one side, however, which is one reason I favor having a formal legal regime of terrorist status as essentially a state of exception (as is amply permitted in international law).

It also bears noting how we got into a situation in which standards and acceptable/unacceptable behavior were being defined for the first time. The evisceration of clandestine services and the more than clean hands policies from the 1970s forward left the United States in a position, first, in which it had no experience in dealing with interrogations, standards, procedures, limits, permissions, nothing. This is a fault arising from the desuetude of the past twenty years in intelligence matters – it is not a virtue to walk around in the easy times holding your hands high, Carter-like, and saying, they're clean, they're clean! if it means that in times when gathering intelligence for the protection of lives in your political community you have no idea how to do it, and are starting from scratch – including from moral scratch. You will make mistakes in doing that – serious moral mistakes – and the Administration did so. But its mistakes, as with so much of what led up to 9-11 and its aftermath, are at the door of previous administrations stretching back several decades.

If I were Gonzalez, I would respond to charges of having authorized torture by retorting that there were no precedents, no best practices, no experience, nothing to go by in what should be considered acceptable and what not, because previous adminstrations and Congresses, naively believing that days requiring actionable intelligence for the protection of the American people ended with the Church hearings, had deliberately erased any institutional memory – either for what might permissibly be done and for what, at the level of actual practices, violate the law and morality. Following the admonitions of the ICRC, Human Rights Watch, or Amnesty International to do nothing that might go beyond the POW standard of "name, rank and serial number," was (is) not an option – but there was no institutional memory of what was – and if another major terrorist attack occurred, the watchdogs of human rights and civil liberties would – and will – shrug their shoulders and say, not our problem.

(One might usefully think back to the first experiences of Attorney General Janet Reno. A new, inexperienced Attorney General, tested three months into office by Waco. She ordered the use of CS gas against unprotected infants, deliberately targeting the infants, because, as she said to the press, they could not fit into the gas masks that the adults had. Her party fell over itself to excuse the first female attorney general; all those infant deaths conveniently forgotten. If that is the standard, then Gonzalez's hearings should be quite short.)" [January 5, 2005; Law of War and Just War Theory Blog has the post]

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