Conservative

By Nick Jacob

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Before I delve into the details of the Department of Justice memos that were released in April by President Obama, I want to ask a simple question: How many of you can honestly say that you care about what happened to Khalid Sheik Mohammed (KSM), the mastermind behind 9/11? Abandon your political predispositions, and think about it for a minute.

This is a man who not only constructed a plot that led to the annihilation of 3,000 of our fellow citizens, but also admitted to beheading U.S. journalist Daniel Pearl. This is a man who deserved the worst kind of torture imaginable. Instead, KSM got off easy. The harshest punishment he was subjected to in U.S. custody was waterboarding, a practice that simulates drowning and instills fear but inflicts no real damage. It is also a practice that our own military uses on Navy Seals during training.

When KSM was first captured back in 2003, the CIA held off on using any enhanced interrogation techniques (EITs). When they would ask him if al-Qaida was planning any future attacks, he would simply reply, “Soon you will find out.” It quickly became clear that the use of EITs would be necessary in order to gain any information from him.

In 2002, the CIA requested legal advice from the Bush administration on how far they could legally go to extract information from high-level members of al-Qaida. Their goal was to gain as much intelligence as possible without violating the Convention Against Torture, which was ratified by the United States in 1994. To implement the convention, Congress added two sections to U.S. Criminal Code. These sections criminalized acts of torture occurring outside the United States. “Torture” was defined, according to the code, as the intent to “inflict severe physical or mental pain or suffering” upon a person in custody. What exactly constituted “severe physical or mental pain or suffering” was the question that the Bush administration needed to answer.

This task was left to three lawyers within the administration. In a memo that came to be known as the “Bybee memo,” the lawyers wrote that, to constitute torture, physical pain must be “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.” In addition, they wrote that for mental pain or suffering to amount to torture, “it must result in significant psychological harm of significant duration.” They also wrote that threats of death or physical torture and the use of mind-altering drugs would constitute torture.

At issue today is their interpretation, which the Bush administration used to justify their use of EITs. While the code defines “severe mental pain or suffering,” it does not define what constitutes “severe physical pain.” Even with this constraint, the three lawyers still came up with a reasonable definition that allowed CIA interrogators to effectively do their jobs, while still respecting and working inside the law.

From this came another memo detailing 10 EITs deemed legal for the CIA to use on high-level al-Qaida operatives. Among them were techniques such as stress positions, sleep deprivation and waterboarding. While all have received extensive coverage, no technique has received more coverage than waterboarding.

Waterboarding received such extensive coverage that you might think its use by the CIA was routine. However, it was revealed in 2007 by the CIA that waterboarding had been used just three times, each time against high-level al-Qaida operatives. The CIA later said the technique yielded valuable information from the operatives that likely saved American lives. This is what makes liberals’ outrage so comical. They know waterboarding worked, but they’ve decided not to acknowledge that. Instead, they’re choosing to go after the Bush administration for “torturing” our enemies. This is highly irresponsible — and to pretend to have the moral high ground on this issue is disingenuous.

Speaker of the House Nancy Pelosi is the guiltiest of all in regards to this. While publicly deriding Bush for the EIT program, she’d actually known about it since 2002 — as was revealed by the Washington Post — when she was the top Democrat on the House Intelligence Committee. I would like to applaud Ms. Pelosi for not blocking the EIT program, even though she’s now backtracking on her support. Well done, Madam Speaker.

Along with waterboarding, we know that the use of the nine other EITs yielded valuable information as well. On April 16, Dennis Blair, the president’s director of national intelligence, wrote a letter to members of the intelligence community stating, “High value information came from interrogations in which those methods were used.” Even so, Obama recently decided to shut down the program.

The president’s number-one goal is to protect and defend the country and its citizens. Whether or not Mr. Obama will be able to do this as effectively without the use of the EIT program remains to be seen. If he is, then congratulations are in order. If not, then the next series of questions on harsh interrogation methods will be pointed at him, and not at former President Bush.

Reach columnist Nick Jacob at opinion@dailyuw.com.

Liberal

By Chris Jordan

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The torture memos released by the U.S. Justice Department revealed deeply troubling techniques used in CIA interrogations of “enemy combatants” during the Bush years. According to the memos, these techniques included keeping detainees awake for 11 days straight and placing them in dark, cramped boxes with insects. It was also revealed that waterboarding was used on several detainees, including 183 times on Khalid Sheikh Mohammad.

Releasing these memos was a critical step toward bringing transparency to an illegal operation that had been undermining the United States’ image and moral leadership abroad. Admitting that mistakes were made and bringing the conduct into the light is essential for preventing mistakes from recurring in the future.

The release of the memos sparking debate about what implications these documents may have regarding prosecution of Bush administration officials. The first step lies in answering some of the most fundamental questions of the debate: Is torture illegal? Is waterboarding torture?

The answer to the first question is clear. There’s no getting around it: Torture is illegal. The Eighth Amendment prohibits cruel and unusual punishment. The Geneva Conventions also prohibit the use of torture on prisoners of war.

Many have argued that the detainees in question are not entitled to Constitutional or Geneva protections because they are classified as “enemy combatants” instead of “prisoners of war.” Even so, the United States has signed the Convention Against Torture (CAT), which legally compels all signatories to refrain from using torture on any person. The United States also signed the International Covenant on Civil and Political Rights and passed the Torture Act and War Crimes Act. All of these laws, covenants and treaties make the use of torture by Americans unquestionably illegal, whether torture is used on Americans or non-U.S. victims.

Waterboarding is considered torture by governments, legal experts, military judges, intelligence officials and political figures from all over the spectrum. During the Republican primary, Republican Sen. John McCain said, “Anyone who knows what waterboarding is could not be unsure. It is a horrible torture technique. … We are a better nation than that.”

The widely used definition of torture articulated in CAT is: “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.”

It seems clear that waterboarding does inflict “severe mental pain or suffering” for the purpose of obtaining information. Hence, it fits the definition of torture laid out in the convention.

If torture is illegal, and waterboarding is torture, then there are likely senior U.S. officials from the Bush administration who authorized illegal acts.

Many on the left have clamored for President Bush and others to be tried as war criminals for these actions. After all, the United States tried Japanese soldiers as war criminals for using waterboarding against Americans during WWII.

While I see the wisdom in going ahead with prosecutions, we must consider the consequences. Trying an American president as a war criminal would be incredibly divisive and exacerbate existing partisan divisions. Americans want to move forward, not look back.

At the same time, allowing those who authorized illegal torture techniques to get away with no accountability would set a dangerous precedent for the future.

The United States should take Sen. Patrick Leahy’s recommendation and authorize a Truth Commission to investigate the alleged abuses of the Bush administration. This way, the American people could get the answers they deserve without the divisiveness and dangers posed by prosecution.

We should never cease to recognize the many great achievements of the United States throughout history, but we should also strive to hold ourselves to highest standards and speak up when something is wrong and needs to change. The United States is better than torture, and we can defeat terrorism without it. We cannot let this issue fade away without holding our government in some way accountable.

Reach columnist Chris Jordan at opinion@dailyuw.com.

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