Were they legal, moral, useful?....
Marc Theissen's WaPo column shows how waterboarding led over a decade of investigative convolutions to bin Laden.
And Danielle Pletka's analysis shows how tainted Sen. Dianne Feinstein's report is. Further on this, Stephen Hayes & Thomas Joscelyn document how Feinstein's staff minions doctored their evidence to "prove" their claim that harsh techniques did not work. Their full 3-pager merits a close read. Charles Krauthammer calls Feinstein's report "a travesty" and asks as to alternative means of interrogation after 9/11:
So what was the Bush administration to do? Amid the smoking ruins of Ground Zero, conduct a controlled experiment in gentle interrogation and wait to see if we’d be hit again?
A nation attacked is not a laboratory for exquisite moral experiments. It’s a trust to be protected, by whatever means meet and fit the threat.
The first Navy SEAL Team 6 member elected to Congress says the Feinstein report will cost American lives. Senior ex-CIA leaders defend harsh interrogation methods in a WSJ op-ed, noting the context post-9/11:
The detention and interrogation program was formulated in the aftermath of the murders of close to 3,000 people on 9/11. This was a time when:
• We had evidence that al Qaeda was planning a second wave of attacks on the U.S.
• We had certain knowledge that bin Laden had met with Pakistani nuclear scientists and wanted nuclear weapons.
• We had reports that nuclear weapons were being smuggled into New York City.
• We had hard evidence that al Qaeda was trying to manufacture anthrax.
It felt like the classic “ticking time bomb” scenario—every single day.
In this atmosphere, time was of the essence and the CIA felt a deep responsibility to ensure that an attack like 9/11 would never happen again. We designed the detention and interrogation programs at a time when “relationship building” was not working with brutal killers who did not hesitate to behead innocents. These detainees had received highly effective counter-interrogation training while in al Qaeda training camps. And yet it was clear they possessed information that could disrupt plots and save American lives.
The CIA saved lives website posted the entire 3-part Megyn Kelly Dec. 16 interview with the "architect" of the harsh interrogations program--I use "harsh" rather than the buzzword "enhanced" because the latter is bureaucratic euphemism for nasty (however necessary) stuff. It is well worth full viewing, especially as to waterboarding. Here is The Kelly File's Dec. 17 single follow-up with Dr. James Mitchell, who addressed the legal issue:
If it was torture, I would be in jail. This thing was investigated over and over. I was told by the highest law enforcement agency in the land that we were going to walk right up to the edge of the law, and that all of the things we had included in that list were legal.
Mitchell said that he & other questioners were subjected to "tremendous pressure" to use harsh techniques, even in cases he thought did not warrant their use. Detainees break not during a session, but before the next one, having been told that they would be asked specific questions that they must either answer or be subjected to another harsh session. He added that KSM told him the liberal media and America would turn on him & his fellow interrogators.
Justice Scalia says that the Constitution is silent on "torture." Bush 43 A-g Michael Mukasey defends the CIA's program. He notes that law is a "technical business"; its definitions, not cocktail party or punditry chatter, define what constitutes "torture" in the area. He notes this of KSM, re not having suffered lasting injury, as law defines torture:
. . . 9/11 mastermind Khalid Sheikh Mohammed, perhaps the worst of the three waterboarded terrorists, eventually came to know the precise limits of the procedure and was seen to count the seconds by tapping his fingers until it was over. Some torture. Arguably, what broke him was sleep deprivation, but in any event he disclosed reams of valuable information. At last report, he is doing just fine.
Judge Mukasey notes that Sen. Feinstein confuses personal belief with legal definition:
Which is to say, Sen. Feinstein wins the argument only by defining herself as both the standard setter and the winner. Also, if she is looking for a “common meaning” of torture, how about something like a procedure to which no rational person would submit voluntarily? More journalists have tried the experience of being waterboarded than terrorists were subjected to it. That wouldn’t be the case if, for example, we were talking about needles under the fingernails.
Mukasey counters the John McCain "values' trump card, noting that a pair of Medal Of Honor recipients among Vietnam POWs came down on the opposite side of the debate. Finally, he separates personal view from actual law:
Moreover, and particularly at a time like this, I think it is important that we resist the New Age conceit of seeing each act of our government as an expression of who we are, and each act by its officials as an expression of who they are.
Brave and serious men and women, faced with the most terrifying attack in American history, and—along with the rest of us—fearful of more, devised and executed a program to get intelligence from captured terrorists who refused to cooperate. Former CIA directors and deputy directors have recently described in these pages how that program succeeded. Theirs was an act of national self-preservation, not of national self-expression.
As for the views of Sens. Feinstein and McCain and others about what is legal or illegal, this nation of laws is governed by what is in those laws, not by what at any given moment is in the minds and mouths of those who enact them.
John Yoo, the Justice Dept. lawyer who wrote the legal memos on interrogation during the first Bush term, explains that they were indeed legal, moral & useful. His money paragraphs:
Three reasons persuaded us to approve waterboarding. First, Al Qaeda terrorists were not POWs under the Geneva Conventions, because they fought for no nation and flouted the laws of war by killing civilians and beheading prisoners (such as Daniel Pearl). Second, the U.S. armed forces had used it in training tens of thousands of officers and soldiers, without any physical injury or long-term mental harm. Finally, the United States had suffered the deaths of 3,000 civilians and billions of dollars in damage; we knew little about Al Qaeda, and intelligence indicated that more attacks were coming, perhaps using weapons of mass destruction....
Feinstein implies that the CIA should have chosen standard interrogation methods, which depend on developing a relationship with the detainee. This may work for law enforcement, but not for any reasonable American president in 2001 and 2002. Building rapport with Al Qaeda leaders could take weeks, months, years — or never. Our prisons still hold convicted terrorists, such as those tied to the 1993 World Trade Center bombing, who have never cooperated with authorities....
Feinstein and other Senate Democrats can only attack this record by arguing that the interrogations yielded nothing new. But a central element of the CIA's success — killing Osama bin Laden and destroying Al Qaeda's leadership — belies her claim. The U.S. found Bin Laden by tracking a courier to his location. Feinstein's staff discovered the courier's name in CIA files before interrogations began, and so claims that they added nothing to the effort. This ignores the fact that the names of hundreds, if not thousands, of Al Qaeda suspects sat in CIA files. Only the interrogation of Al Qaeda leaders singled out that individual as the courier.
Yoo notes that two Justice Dept. inquiries cleared CIA actions. To which I'd add that even if every piece of data was also found elsewhere, corroboration is crucial in pursuing leads.
Now, my own assessment:
(4) In order to constitute torture, mental pain or suffering must be prolonged mental harm caused by or resulting from:
(i) The intentional infliction or threatened infliction of severe physical pain or suffering;
(ii) The administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(iii) The threat of imminent death; or
(iv) The threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the sense or personality.
5. From a legal perspective, if you assume (as I do) that the Bush people applied the pre-2005 principles in good faith, CIA interrogators and directors--who are not lawyers--had a right to expect that they could rely on legal opinions to guide their applications of harsh techniques. Staying within them should thus confer immunity from prosecution and full protection from domestic & international legal proceedings.
Bottom Line. Changing the rules in midstream benefits no one but our enemies.
Letter from the Capitol, LFTC, National Security, Homeland Security, Foreign Policy, Conservative Politics