Habeas Corpses

Torturing people to death is not a serious way to wage war on terrorism

The man with graying hair had "blunt force injuries complicated by compromised respiration," the result of a synthetic hood placed over his head during interrogation by Navy Seals and "Other Government Agency," which typically means the CIA. The obese 56-year-old died of "asphyxia due to smothering and chest compression"; the circumstances surrounding his death are classified. The 47-year-old died gagged and shackled to a door frame; his autopsy revealed numerous rib fractures and lung contusions.

These are a few of the findings from 44 reports of autopsies on U.S. detainees in Iraq and Afghanistan, obtained by the American Civil Liberties Union (ACLU) last month under a Freedom of Information Act lawsuit. Eight of the 21 deaths classed as homicides, the ACLU concluded, appeared to have resulted from abusive interrogation tactics, with strangulation, asphyxiation, and blunt force injuries listed as causes of death. Because the documents sought by the ACLU are trickling out slowly, month by month, it is unclear how many more such reports remain to be uncovered.

This much we know about interrogations at the government's acknowledged prisons. But not even Congress, let alone the ACLU, seems to know a great deal about what sort of tactics are deployed at the Central Intelligence Agency's numerous black sites, secret prisons that, the Washington Post revealed earlier this month, are used to house "high level" terror suspects in Afghanistan and Eastern Europe.

We have at least a hint of the unholy provenance of the tactics that might be deployed there, however. Sen. Dick Durbin (D-Ill.) prompted howls of outrage last summer when, after reading reports detainee treatment at the government's Guantanamo Bay facility, he suggested that one would think they were accounts from some Soviet gulag. Durbin was finally pressured to apologize for the unconscionable comparison, but it turned out he'd been more accurate than he realized. As The New York Times revealed earlier this month, Gitmo interrogators had mined the classified "Survival, Evasion, Resistance, Escape" (SERE) program for techniques. Originally designed to teach soldiers how to resist the kind of spirit-breaking tactics used on prisoners of war by such countries as Vietnam and North Korea, SERE was turned into a manual on those very methods.

All this is worth bearing in mind when reflecting on the Bush Administration's claim that an amendment proposed by Sen. John McCain (R-Ariz.) to ban "inhuman and degrading treatment of persons in the detention of the US government," which passed the Senate this month by an overwhelming margin, is somehow both a crippling hindrance to the War on Terror and wholly superfluous because, as Bush insists, "We do not torture."

Here's a handy rule of thumb: If you are beating detainees to death, there's a fair chance that what you're doing counts as torture.

In order to persuade the White House to swallow limitations on interrogations, the Senate plans to link McCain's amendment to "compromise legislation" by Sens. Lindsey Graham (R-S.C.) and Carl Levin (D-Mich.) that would strip detainees of many of the very limited rights to habeas corpus review in U.S. courts that they were afforded by Supreme Court rulings last year.

The White House's position has been most vocally taken up by National Review writers Andrew McCarthy and Rich Lowry, who have been leading the charge against the McCain legislation and in favor of still more drastic limits on habeas rights.

The defenders of wide—and unreviewed—latitude for military interrogators appear to be united in an effort to do Nietzsche one better: Those who grapple with monsters, they argue, had best hurry up and become a bit monstrous themselves. "Coercive" interrogation tactics—not torture, mind you, which intelligence officials will scrupulously avoid even in a total oversight vacuum—will be used only sparingly against Very Bad People, presumably on those surprisingly frequent occasions when Jack Bauer must be called in to discover the location of a suitcase nuke due to explode in mere hours.

Even if we believe torture—or, if you prefer, "aggressive interrogation" that occasionally leaves the suspect a habeas corpse—is likely to produce useful intelligence rather than whatever story the questioner wants to hear; even if we believe that it is only ever used against the most vile; there is something odd about the rhetorical frame in which torture apologists operate. Implicit in many of their arguments is the notion that there's something contemptibly fainthearted about those who want to hew to the principles of basic decency fit for a nation that styles itself primus inter pares of the world's liberal democracies, even if foreswearing the most brutal tactics means accepting some additional risks. The apex of resolute manliness, on the other hand, consists in begging the government to dilute traditional liberties at home and ape our enemies' barbarism abroad, if only we might feel a bit safer.

Of course, the presumption that such tactics will only be used against the most vile would be more tenable if detainees were assured of the sort of judicial oversight that the White House is so eager to eliminate. And the arguments for removing that oversight are characterized by a truly bizarre circularity. National Review's McCarthy is less than sanguine about the Senate deal, arguing that supporters of the habeas compromise, which preserves a right of review for those who are sentenced by military tribunals to death or longer than ten years' imprisonment, "favor treating the people trying to annihilate us as if they were ordinary criminal defendants." Even this narrow concession, McCarthy avers, constitutes "snatching defeat from the jaws of victory." Robert Novak describes the habeas petitions as "suits on behalf of terrorist detainees." Sen. Graham question-beggingly wonders why we should afford legal protections to those who "choose to become part of a terrorist organization in an irregular force that blows up people at a wedding."

Of course, in the absence of any judicial review, not only will we remain in the dark about how well interrogators are sticking to the rulebook; we also can't know how many of our detainees are hardened al-Qaeda killers and how many are Afghan farmers who'd been conscripted by the Taliban, or targeted at random by bounty hunters eager to reap a reward for catching terrorists, or singled out by informers who happened to be personal or political enemies, or simply caught in the wrong place at the wrong time. We do know that the Guantanamo prison continues to hold detainees who the government itself has determined are innocent—in one case prompting a reviewing judge to complain that the military had waited months before bothering to inform him of that determination. Under the habeas rules approved by the Senate, that judge wouldn't be involved at all. We also know that's not the only time military tribunals have ignored evidence exculpating detainees. But, as Secretary of Defense Donald Rumsfeld is fond of saying, we don't know what we don't know—and we'll know still less if habeas review is choked off. In the absence of oversight, the military will face a powerful temptation to keep ten innocent men secretly incarcerated rather than risk the embarassment of releasing one genuine enemy.

Even those eager to abandon the rule of law in America should pause at the burgeoning international discomfort with our tactics. Several European governments have launched inquiries into reports of secret CIA flights, used to transport terror suspects, passing through their countries—and the Danish Foreign Ministry has asked the agency to stay out of its airspace henceforth. This trend, if it accelerates, will be more crippling to the terror war than any restrictions we might impose on interrogation tactics. Many who fancy themselves most serious about the War on Terror seem disposed to regard international cooperation as a kind of frivolous gold star for passing a "global test," a pat on the back sought with a simpering s'il vous plait. But in a struggle against a decentralized, globalized enemy, the active cooperation of other governments is not optional; it is vital. We cannot afford policies that risk compromising our access to persons and intelligence held abroad.

But the Pentagon seems no more interested in transparency to international observers than to domestic judges: It has refused to allow special investigators appointed by the U.N. Human Rights Commission to interview detainees privately. Perhaps it's time to ask a question that, while pernicious in its usual context, is all too apt when it comes to indefinite secret detentions without trial: If you're not guilty, what do you have to hide?

Julian Sanchez is an assistant editor of Reason. He lives in Washington, D.C.