Torturing the Evidence


In September 2002, senior leaders on the Senate and House intelligence committees — Democrats and Republicans — began receiving briefings on the CIA’s “enhanced interrogation program,” including the use of waterboarding on top al-Qaeda operatives. Among the leaders briefed was Nancy Pelosi, now speaker of the House.

The lawmakers raised no objections. According to Porter Goss, a congressman at that time and later head of the CIA, their chief concern was whether “the methods were tough enough.” But Carl Levin, the Democrat who runs the Senate Armed Services Committee, managed to suppress any mention of Speaker Pelosi and her congressional colleagues last week when his committee released its misleading and relentlessly partisan report, titled “Inquiry into the Treatment of Detainees in U.S. Custody.”  

This document is the latest chapter in the Democrats’ torture narrative — a warped tale that trivializes true torture by confounding it with less extreme forms of interrogation. The committee thoroughly misrepresents the legal standards that govern detainee treatment and ignores non-partisan investigations that have found no evidence of a systematic program of abuse. Perhaps most significant, the Democrats ignore the fact that those rare episodes of abuse that have been uncovered have resulted in prosecutions. 

According to the Levin report, the Bush administration reacted to 9/11 by “redefining” the law to permit aggressive interrogation tactics. Thus, the fable goes, in early 2002 the president determined that neither al-Qaeda nor Taliban fighters were entitled to prisoner-of-war treatment, in effect blocking application of Common Article 3 of the Geneva Conventions and the “well established military doctrine” of “legal compliance with the Geneva Conventions.” The administration then covertly set about having its Justice Department alter the legal definition of torture, the story goes, while its interrogators were schooled in illegal tactics by experts at the Defense Department. These techniques were employed by the CIA on important captives and became elements of a new warfare culture that spread to military interrogators at Gitmo and led, eventually, to the Abu Ghraib scandal. 

That narrative is flawed in its fundamental assumptions and fictional in its sweeping conclusions. The Bush administration did not “redefine” detainee treatment law; it undertook to determine what the law says and whom it covers. The intent of the Geneva Conventions, the principal law on the subject, is to civilize warfare by affording benefits, including an absolute bar against abusive treatment, to eligible prisoners of war — i.e., to captured soldiers who adhere to the laws of armed conflict, meaning, among other things, that they forgo intentionally endangering civilians. By definition, al-Qaeda is not qualified for Geneva protections because it is a terrorist organization: It is not one of the sovereign nations that signed the 1949 pacts, and it specifically targets civilians. Though the Taliban was the de facto government of Afghanistan, its fighters also target civilians and hide among them, and consequently they do not qualify for Geneva protections.