The controversy over interrogation tapes destroyed by the CIA is a farce rich in high-dudgeon hypocrisy. It is the latest act in our square-peg, round-hole experiment in judicializing warfare — in intruding the non-political branch into the quintessentially political realm of national defense.
WAR FOOTING
Al-Qaeda’s air raid on 9/11 eclipsed Pearl Harbor in devastation and shock value. It exceeded anything ever accomplished by Nazi Germany or the Soviet Union. It was a domestic military strike, wiping out thousands of American civilians. The enemy, in previous attacks, had already bombed a U.S. naval destroyer and two U.S. embassies.
As it happened, the suicide hijackings also violated several American criminal laws because the jihadist attackers were not privileged combatants — i.e., honorable enemy soldiers who conduct their operations within the laws and customs of war and who are therefore permitted to use lethal force. The civilian penal law, however, was a side issue. This was war, not law enforcement.
As a consequence, the nation assumed its war footing. For political reasons, the revisionist Left has referred to this effort as “the War on Terror of this administration” — to borrow the obnoxious phrase of Judge Anna Diggs Taylor, the Jimmy Carter appointee who tried to invalidate the NSA’s terrorist-surveillance program. But this was never just President Bush’s war. It was — it is — our war. The country’s war. This may seem like ancient history, but in the months after 9/11, we were not in Iraq. We were in the “good” War on Terror — the one Democrats supported, in word and deed, because they damn well knew Americans would tolerate nothing less.
We no longer wanted the Trial on Terror. After eight years of that approach, the mass casualties, the hundreds of billions in wreckage, the smoldering Pentagon, the stunning canyon where twin towers once stretched to the sky, all of it convinced us that a different kind of response was in order. That nation made a political decision to go to war.
This wasn’t just George W. Bush. On September 14, 2001, the House of Representatives approved a sweeping authorization for the use of military force by a vote of 420-1 (Rep. Barbara Lee (D., Calif.) was the lone naysayer). The vote in the Senate that day was 98-0. Six weeks later, the Patriot Act’s overhaul of intelligence tools for hunting down international terrorists was enacted in the upper and lower chambers by lop-sided margins of 98-1 and 357-66. America’s representatives were behind the war because the American people were behind the war. Even by 2004, when passions had cooled somewhat, John Kerry, the Democrats’ presidential nominee, promised Americans he would fight the war smarter than Bush, not that he wouldn’t fight it. Saying he wouldn’t fight it would have resulted in a walloping of McGovernite proportions.
The atmosphere of 2002 was one of forcible action. The American people demanded it. Our representatives in Congress were insistent that we would get it. Their own jobs hung in the balance. It was in that atmosphere that this military response, this war, began to result, as all wars do, in the capture of enemy operatives.
ARE YOU SURE YOU’RE BEING TOUGH ENOUGH?
Good intelligence is a premium in all wars but it was to be especially crucial in this one. Radical Islam does not have a territory to defend — we can’t bomb it into submission. It does not have a treasury we can seize to starve it out of existence. It is abetted by nation-states, but as a movement it is an illegitimate, non-state actor catalyzed by a supremacist ideology, meaning it is not the kind of enemy with which we could ever sign a treaty. There is no obvious scenario for when and how this war ends. The major asset we can acquire — the only one that will protect American lives — is intelligence: who the terrorists are, where they are hiding, and what they are planning to hit next.
Only by knowing and acting on such information can we hope to degrade radical Islam’s capacity to project the power of a belligerent rather than a criminal gang. A criminal gang, however fierce, can be brought to heel by prosecution. An incorrigible belligerent has to be vanquished, in war. And it is worth remembering, again, that we made the national decision to go to war, the object of which is to defeat the enemy by suppressing its capacity — not to convert the planet to our enlightened way of thinking.
Given the intelligence imperative, the CIA aptly commenced a special interrogation program. Here, I should stress which CIA we are talking about. This was not Langley’s secret-leaking, Plame-loving, analytical side — the one that seeks to control policy and throw presidential elections. This was the operations directorate: intelligence officers stationed in some of the planet’s worst hell-holes who, in courageous anonymity, put their lives on the line, day in and day out, to protect the United States.
The interrogation program was strictly for high-value al-Qaeda detainees, not the hundreds of other prisoners captured in the war, most of whom are low-level foot soldiers. The program was (and, one hopes, still is) aimed at the enemy’s top strategists, the jihadists who actually know about ongoing plots, secret cells, and efforts to use or acquire weapons of mass destruction — i.e., the features that enable radical Islam to project war-scale force.
The program pushed to the margins of the law. Regardless of what the revisionist Left is now saying, the only bright-line limit on the treatment of alien enemy combatants held outside the United States in 2002 was the federal law against torture. The United States did not outlaw cruel, inhuman and degrading treatment when it ratified the international anti-torture treaty in 1994 — it was not until 2005 that such treatment overseas was outlawed, and even then only ambiguously, no matter what Senators John McCain, Patrick Leahy, and others now claim. Congress could easily (and accountably) have made simulated drowning — waterboarding — unlawful. But it didn’t. It wouldn’t have dared done so in 2002; it didn’t do so in 2005 or 2006 despite specifically addressing war crimes; and it hasn’t done so to this day.
So the CIA used waterboarding. Not often (probably on only three top terrorists) and not frequently (it probably has not used the tactic since 2003). But agency interrogators used it — and other forcible methods too, methods that were even further removed than waterboarding from the heinous cruelty that is true torture.
The tactics worked. They resulted in the apprehension of other top jihadists, the mapping of terror cells, and the thwarting of plots. They saved lives. They degraded the enemy’s capacity.
The drivel that passes for argument about how forcible questioning doesn’t work wouldn’t pass the laugh test if we didn’t allow thought to be paralyzed by the demagogic invocation of “torture.” Think for a moment. The United States is not Saddam Hussein’s Iraq, the mullahs’ Iran, Putin’s Russia, Red China, or one of several other thuggish regimes in that gorgeous mosaic known as the “international community” — the purported loss of whose esteem is, according to today’s Left, supposed to keep us awake at night. (Personally, I would sleep quite well even if I actually believed Hosni Mubarak and Saudi Wahhabists were fretting over America’s regard for human rights.)
The United States doesn’t do show-trials; we collect intelligence. We don’t want lies; we need the truth. We are not using torture to coerce phony confessions or intimidate dissenters; we are a besieged people using forcible methods — not torture — to cull from hardened terrorists, trained to resist interrogation, information that can be corroborated and used to defeat the enemy. We do it to protect American lives. We are not sadists. If forcible methods didn’t work, it would be pointless to use them, and we wouldn’t. Further, if there hadn’t been an imminent threat of more 9/11s — and recall that bin Laden, Zawahiri and their cohort have been promising a repeat performance ever since the first one — we’d have contented ourselves with more anodyne methods, for however many months it took, fully aware that these hardest cases would probably never talk.
We weren’t violating any treaty obligations, and we weren’t laying the groundwork for any other nation that actually cares about its obligations to violate theirs. Al-Qaeda is not going to reciprocate humane treatment; you haven’t heard of any jihadist Gitmo because this enemy tortures and kills its captives — believe it or not, they don’t even let the International Red Cross come visit. But if we were fighting a nation-state entitled to Geneva Convention prisoner-of-war provisions, we would honor those provisions, demand nothing beyond name, rank and serial number, and expect our foes to honor them as well. The Left’s charge that we are international outlaws is as vapid as it is slanderous.
And in 2002, when it was vigorously supporting a war — not an indictment — against radical Islam, Congress understood that perfectly.
Beginning in 2002, top lawmakers from both parties, started getting briefings on the CIA program: its tough tactics, like waterboarding; its use of prison facilities outside the United States — quite consciously outside the jurisdiction of the federal courts and the procedural mandates of the criminal-justice system. These congressional heavyweights included Nancy Pelosi, then the Democrats’ Minority Leader, now the Speaker of the House of Representatives. As the years went by and the war ensued, there may have been as many as 30 such briefings.
Far from indignation, the Washington Post reports that the reaction was one of encouragement. Consistent with their overwhelming authorization of both the use of force and the Patriot Act measures, congressional leadership’s only apparent question of the CIA was whether it was being tough enough on the jihadists — whether the agency was being sufficiently coercive to get whatever life-saving intelligence there was to get.
OBSTRUCTION OF JUSTICE … OR THE WAR EFFORT?
The CIA goofed. Back in 2002, at the apex of public and congressional support for its efforts, it foolishly tape-recorded some of the interrogations of two top terrorists, Abu Zubaydah (al-Abideen Mohamed Hussein) and Abd al-Rahim al-Nashiri — respectively, a top bin Laden confidant (whose information led, among other things, to the capture of Khalid Sheikh Mohammed, the mastermind of 9/11), and the commander responsible for the murder of seventeen American sailors in the bombing of the U.S.S. Cole.
There was no legal requirement to make these tapes. The government generally does not tape-record interrogations. Even if that were not so, these jihadist leaders were not being interrogated to obtain confessions that could be used at trial. Coerced confessions are not admissible in American trials, and vainly trying to admit them would publicly expose classified tactics, allowing the enemy to train against them. We were not interested in trials. The nation had gone to war. We were interested in accurate, actionable intelligence that would help us win.
Once that information was preserved in reports or transcripts, the tapes were of no intelligence value. To the contrary, they were a liability because their exposure could have helped the enemy. Defeating the enemy being its priority, and the nation’s, the CIA destroyed the tapes in 2005.
When a nation goes to war — with the full-throated support of the public and a lopsided, authorization from the public’s representatives that is in every meaningful way a constitutional declaration of war — that war, that political act in furtherance of sovereign self-preservation, is paramount. It is more important than any criminal trial. It is more important than any investigation. It is more important than any civil litigation.
That is why, for example, the Supreme Court has repeatedly and recently reaffirmed the state secrets privilege, which grinds court cases to a halt when invoked. It is why an act of Congress, the Classified Information Procedures law, empowers the Attorney General to order federal judges not to disclose classified information, no matter how relevant it may be to the case at hand. The law has long recognized that the national defense trumps other considerations, no matter how significant. That is why the legendary Justice Oliver Wendell Holmes Jr. wrote for the Supreme Court, in 1909, that in matters concerning the life of the State, “Public danger warrants the substitution of executive process for judicial process.” The law, like common sense, says that if we can’t safeguard the nation, the right to seek relief in the nation’s courts is an illusion.
In 2005, the CIA’s operations directorate saw what happened with the Abu Ghraib photos. It saw how the mindless cruelty of a miscreant handful of soldiers was used by the jihadists and their supporters to libel the entire U.S. Defense Department — a libel from which the war effort in Iraq has never recovered. Unlike Abu Ghraib, the CIA’s interrogation program was a vital intelligence initiative — an unmatched asset according to George Tenet, the CIA director at the program’s inception (a Democrat holdover, initially installed by President Clinton, who clearly appreciated the qualitative difference between pre- and post-9/11 collection methods). Not only the interrogation program but the entire war effort — not just in Iraq but in the “good” War on Terror that everyone claims to support — would have been threatened by the leak of the interrogation tapes.
And the tapes would certainly have leaked. No one knows the CIA as well as the CIA’s operations directorate. They know anti-Bush, antiwar ideologues in their organization have strategically leaked national defense secrets for years. That, undoubtedly, is why these interrogation tapes were maintained outside the United States — they were safer there than at Langley.
But safer isn’t safe. The government had plenty of legal authority to deny disclosure of the tapes to courts and other investigations — just as it declined, for example, to make the high-level detainees themselves available for questioning by the 9/11 Commission and in the trial of 9/11 plotter Zacarias Moussaoui. But this government has shown itself impotent when it comes to leaks. It doesn’t do anything meaningful to investigate and punish them when they happen, so they keep happening. The only way of ensuring that the tapes were not lawlessly leaked was to destroy them. So that’s what the operations directorate did.
When an agency of government even contemplates doing such a thing, concerns about obstruction accusations are only natural. It should thus come as no surprise that lawyers in the Justice Department, the White House, and the CIA itself would counsel the operations directorate against spoliation. Same for members of Congress. Same even for CIA directors like Tenet and Porter Goss. None of them wanted the tapes to harm the war effort, and none of them wanted the tapes to be disclosed. But none of them wanted to be on the hook for a decision to destroy the tapes either — especially when there were other legal means to keep them under wraps.
The CIA operations officials, on the other hand, are the guys actually fighting the war. No one of them is going to come out and say, “Well, there are people in our own agency who are opposed to this war policy, whom we can’t trust to keep our secrets, and who would leak the existence of these tapes to the New York Times” — just like, in the same 2005, they leaked the NSA’s Terrorist Surveillance Program, and later leaked other top secrets, like overseas holding facilities and the program to track terrorist funds. Nevertheless, even if they can’t say it, it is the blunt, undeniable truth.
Better than anyone else, the CIA’s war fighters knew what to expect from its antiwar fighters. By 2005, the risks became intolerable. Here was the Abu Ghraib debacle. There was the hypocrisy of grandstanding lawmakers suddenly decrying the same interrogation methods over which they’d once swooned. The handwriting was on the wall: The tapes could be used to hang the war fighters out to dry in the mendacious “torture” circus. That hanging would be a propaganda coup for the enemy. So they destroyed the tapes.
And now, of course, the obstruction chorus is in crescendo: the 9/11 Commission, the Moussaoui trial, the Gitmo detainee cases, all supposedly tainted. In truth, the high likelihood is that justice in none of these proceedings has actually been obstructed. The 9/11 Commission investigation had nothing to do with interrogation tactics; the two jihadists in the tapes had nothing to add to the Moussaoui case; and the detainee litigation is about prisoners held by the military in Gitmo, not high-value detainees held by the CIA in secret locations. Yet, the destruction raises the specter of a government in the habit of making discomfiting evidence disappear. Such suspicions, however overblown, cast a pall on all the Justice Department’s antiterror efforts. And if government officials who knew about the existence of the tapes are shown to have lied to tribunals, that would be a grave matter. Thus, from a strict legal standpoint the destruction of the tapes is a galactic blunder — if we pretend, as we increasingly seem to do, that there isn’t a war going on.
But, you see, there is. And a war can’t be fought under the peacetime protocols of the civilian-justice system, where lawyers — just to be on the safe side — routinely tell clients not to purge any records that might conceivably be relevant to some pending or likely proceeding. If winning the war is more vital to the country than the outcome of any particular litigation or investigation — and that is what a real war-footing means — then tape recordings which would harm the war effort should certainly be destroyed if they merely depict forcible interrogation methods everyone already knows about. We don’t need pictures to debate tactics.
Committing the first grievous error, the decision to record the tapes, does not bind us to commit the next ruinous error: preserving them for propaganda use by the enemy. If it does, that’s not the rule of law; it’s suicide.
We ask our CIA operatives to protect us, and we tell them it’s now a war not an investigation. Congressional leaders admonish them to make certain they’re being tough enough on the enemy, and the Justice Department certifies their methods as within the bounds of the permissible. And now we’re going to stop the music, pull the chair out from under them, and tell them we’re in law-enforcement mode after all? That’s duplicity of a very high order.
Few in Congress and the commentariat complained when the mainstream media, reluctant to stoke public anger against Islamic radicals, made the video of the 9/11 attacks disappear. (When was the last time you saw it?) Why do so many insist on rousing anger against the people fighting to save our lives?
– Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.