Torture Becomes a Matter of Definition

Bush nominees refuse to say what's prohibited. U.S. dilemma is that it wants to disavow abuse but retain leeway in pressuring suspects.

By Sonni Efron

Los Angeles Times

January 23, 2005

WASHINGTON — The question Democratic senators put to Condoleezza Rice last week seemed easy enough to answer: Did the secretary of State nominee consider interrogation practices such as "water-boarding," in which a prisoner is made to believe he will drown, to be torture?

She declined to answer.

"I'm not going to speak to any specific interrogation techniques," Rice said, adding that it was up to the Justice Department to define torture.

About the same time, senators on another committee were asking nearly identical questions and getting nearly identical answers from Alberto R. Gonzales, President Bush's choice for attorney general.

The back-to-back confirmation flare-ups spotlight a problem the Bush administration faces in its policies for detaining and interrogating terrorism suspects.

In the months since the Abu Ghraib prison scandal, the administration has insisted that America does not and will not use torture. At the same time, the government has tried to preserve maximum leeway in the interrogation of terrorism suspects by not drawing a clear line between where rough treatment ends and torture begins.

"What the administration is saying is we're not going to torture people," said John C. Yoo, a UC Berkeley law professor who, as a deputy assistant attorney general during Bush's first term, worked on torture policies.

"What the administration does not want to say, and I think for good reasons too, is what methods the United States might or might not use short of torture."

Opponents say it is a moral, political and tactical mistake for the United States to blur that line. They charge that the administration, while condemning outright torture, deliberately has sought loopholes in laws and treaties that would allow U.S. intelligence officers to use extreme interrogation methods on terrorism suspects held abroad.

To protest the administration's Iraq and anti-terrorism policies — and what they charged was the evasiveness of Rice and Gonzales under questioning — Democratic senators have delayed both confirmation votes until this week.

As a result, the full Senate likely will debate the definition of torture in a session that could embarrass the administration and provide fodder for its international critics.

Ambiguity on prisoner treatment is causing discomfort among some of the administration's allies. Current and former military officers in particular fear it will result in the mistreatment of captured American soldiers.

"We've dramatically undermined the war effort by getting on the slippery slope in terms of playing cute with the law, because it's come back to bite us," Sen. Lindsey Graham (R-S.C.), a former military judge, told Gonzales during a hearing earlier this month.

Graham said he was an "ardent" Iraq war supporter and agreed with the controversial administration view that the Geneva Convention — which bans not only torture but also cruel treatment — should not apply to terrorists. However, Graham said, "humane treatment is the way to go, the only way we can win this war."

Others say the Bush administration is right to preserve some secrecy about its methods for interrogating prisoners, lest terrorists learn how to thwart them.

"The only way we can stop future attacks by Al Qaeda is by learning from [captured suspects] what their plans are," Yoo said. "It doesn't make sense to take options off the table at this time."

Others have questioned the effectiveness of harsh interrogation methods. The FBI has said that the aggressive techniques its agents witnessed at Guantanamo Bay, Cuba, and elsewhere were not effective in producing usable information.

The United States has recovered Al Qaeda training manuals that tell members what to expect if captured and instruct how not to crack under pressure — just as the U.S. military trains its members on how to withstand questioning if captured.

"The last thing you'd want to do is publicly disclose how you interrogate people, because it would allow them to prepare their people to resist interrogations," Yoo said.

Gonzales made the same argument in a written response to senators' questions after he was faulted for dodging the question during his oral testimony.

A web of laws and treaties governs how prisoners are dealt with at home and abroad. The torture convention bans both torture and "cruel, inhumane or degrading" treatment. The U.S. military code bans cruel treatment of prisoners, and CIA officials can be prosecuted for crimes such as assault when they are abroad. The Constitution prohibits cruel and unusual punishment within the United States.

Congress has defined torture as conduct intended to cause severe pain or suffering, according to the Justice Department, which noted in its latest memo that "there is no clear, objective, consistent measurement" of pain.

But legal experts differed last week over whether cruel treatment that fell short of torture was prohibited in the case of foreigners held abroad.

In an effort to clarify American standards on torture and interrogation, Sen. John McCain (R-Ariz.) — who was tortured as a POW in North Vietnam — and Sen. Joe Lieberman (D-Conn.) wrote an unambiguous definition last fall: "No prisoner shall be subject to torture or cruel, inhumane or degrading treatment or punishment that is prohibited by the Constitution, laws or treaties of the United States."

But the language, included in an intelligence bill, was dropped after Rice wrote a letter saying it "provides legal protections to foreign prisoners to which they are not now entitled."

Under fierce confirmation questioning from Sen. Barbara Boxer (D-Calif.), Rice offered a different justification for removing the provision: She said it was unnecessary because similar language was already included in a defense spending bill that the president had signed.

But Boxer said that provision had eliminated a specific prohibition on cruelty committed by intelligence officers, who had been implicated in abuses in Iraq, Afghanistan and elsewhere.

Human Rights First, a New York group, said more than 30 detainees had died in U.S. custody in Iraq and Afghanistan, although not all under the control of intelligence officers or as a result of interrogation.

"Nobody condones or excuses what happened at Abu Ghraib," Rice said. "The problem of how to deal with unlawful combatants, though, in a different kind of war, is frankly a very difficult problem."

Rice appears to have had little input on U.S. torture policies.

Moreover, said Kenneth Roth, executive director of Human Rights Watch in New York, it was Rice who pushed the Pentagon's general counsel in 2003 to reaffirm its ban not only on torture but also on cruelty.

Rice and Gonzales are expected to win Senate approval. But the battle over what constitutes "cruel, inhumane or degrading treatment" — and whether it is ever allowed — will continue.

When the United States ratified the Convention Against Torture in 1994, Congress criminalized torture by U.S. agents overseas.

But it "consciously chose not to make 'cruel, inhumane or degrading treatment' a crime," Yoo said. "They were very concerned that this was an open-ended, vague phrase."

Congress worried then, as the administration does now, about whether various foreign courts might interpret "degrading treatment" in such a way as to hamstring or embarrass the United States.

Roth said the Senate, in ratifying the torture convention, adopted U.S. constitutional standards of cruel punishment, and those standards are what must be applied abroad.

"If you can't do it in a jail in L.A., you can't do it in Guantanamo," Roth said.

But Yoo said, "The only thing abroad that's prohibited against aliens is torture."

Gonzales, in a complex written answer to Sen. Dianne Feinstein (D-Calif.), said the Justice Department's interpretation was that "there is no legal prohibition under the CAT [Convention Against Torture] on cruel, inhuman or degrading treatment with respect to aliens overseas."

Harold Hongju Koh, dean of Yale Law School, said Gonzales was wrong.

"The law is clear — there's no exceptions, and it is universal," said Koh, who served in the Reagan and Clinton administrations. "What appears to be going on is an effort to say … the CIA is exempt, or action that is merely cruel is exempt, or if you do it outside the U.S. it's exempt, or if you do it to aliens it's exempt, or some combination of the above," Koh said.

After two lengthy confirmation hearings and hundreds of pages of written testimony, senators have not succeeded in confirming or refuting news reports that administration officials have approved water-boarding and used it on prisoners in Guantanamo Bay.

In written and oral testimony, Gonzales declined to say whether water-boarding or forced nudity should be banned.

Human Rights Watch defines water-boarding as a torture technique in which "the victim is made to believe he will drown, and in practice sometimes does."

"It's a legal no-brainer," Roth said. "Of course water-boarding is torture, but [Rice] didn't want to say it…. They want to use coercive interrogation against these detainees, and they are going through legal gymnastics in order to preserve that latitude."

Yoo, who helped write key memos declaring that the Geneva Convention did not apply to accused terrorists, said he did not know whether water-boarding constituted torture.

"It depends on the circumstances," he said, including the details of what was done, the condition of the detainee and what other interrogation methods had been used, Yoo said. The same could be said for sleep deprivation, he said. "I'd probably say that depriving someone of sleep for one day might not be torture — depriving someone for five days would be."