The Ethics of Interrogation:
Professional Responsibility in an Age of Terror
by Paul Lauritzen
Georgetown, 208 pages, $26.95
During the thousands of years that human beings have made war on one another, many have struggled to devise standards to limit how far combatants may go to vanquish their enemies. Certain kinds of weapons”poison gas, dum-dum bullets, biological agents”have been forsworn by most states. Most have voluntarily adopted codes of conduct that require combatants to wear uniforms and carry their arms openly so that their combatant status is apparent, not to target civilians, and to follow an accepted chain of command so that superiors can be held accountable for failure to ensure acceptable behavior.
If combatants follow those rules, they have a right to expect humane treatment if captured by the enemy. It used to be the rule in international law that those who violated those rules could be dealt with, as one old international-law text put it with delicate understatement, “summarily,” which usually meant, “Stand against this wall; we will be with you shortly.”
Even that skimpy consensus among nation-states remains precarious. So when new combatants claim that a combination of the holiness of their cause and their relative weakness in waging conventional war excuses them from adhering to any rules, we have to ask: How should the civilized world deal with them?
It is hard to look for an answer in the codes of conduct mentioned above because their applicability generally rests on voluntary and mutual adherence. If even those who refuse to adhere to the rules get the benefit of the rules, who would voluntarily adhere to the rules?
That is part of what seems to have befogged Paul Lauritzen, a professor of theology at John Carroll University and occasional contributor to Commonweal , when he wrote this book, in which he looks with horror on what he believes to have been and to be the practices of the United States government in dealing with prisoners taken in the euphemistically named War on Terror.
His way out of the confusion is to urge that decisions about the detention and interrogation of such prisoners be made according to the codes of those professionals involved in the process: psychologists, lawyers, physicians, and members of the military (although not civilian intelligence agents at the CIA)”rather than, say, according to the law of the United States. They would be subject to being drummed out of their chosen profession if they authorized or helped in any way to conduct an interrogation that violated these codes.
Opinions on the general topic of what is and what isn’t permissible when interrogating terrorism suspects are not exactly in short supply. Therefore, if you try to advance an opinion, and to condemn or prescribe”and this book does plenty of both”it helps at least to get your underlying facts straight. It helps also not to do the rhetorical card tricks in slow motion, lest the audience figure it all out and get bored. This relatively brief book fails on both counts.
The slow-motion rhetorical card tricks give the game away on virtually every page. A task force of psychologists that concluded that a proper goal of psychologists was “gathering information that can be used in our nation’s . . . defense” is criticized for “eroding society’s trust in the discipline by allowing its use for narrow political ends””the saving of lives being, apparently, a narrow political end.
It is no small surprise that the book eventually rumbles from the fuzzy premise that professionals must uphold a standard of “correctness or excellence” to the conclusion that the way to identify an interrogation technique with which professionals must not cooperate is to ask, “Does the technique target the physical or psychological integrity of the detainee in a way intended to break his or her will?” In other words, to use a technique that makes a prisoner disclose something he would rather not disclose because of some discomfort to his body or mind is ipso facto improper. By that measure, withholding dessert and television may actually test the limits of any professional code.
Factual errors also abound. For example, in his discussion of what he sees as the proper application of the standards of the American Psychological Association to the activities of psychologists who helped devise interrogation techniques that would elicit information, Lauritzen refers repeatedly to “psychologists at Abu Ghraib and Guantanamo.”
In fact, there were no interrogations at Abu Ghraib and no psychologists. A poorly trained and supervised detachment of Army Reserve troops subjected prisoners to humiliation simply for their own amusement”and for no purpose related to the gathering of intelligence. The role of the psychologists at Guantanamo, which was run by the military, not by the CIA, was distinctly subordinate. Anyone who lumps all these facilities together either doesn’t know what happened at each or doesn’t care.
The same holds true for Lauritzen’s casual conflation of the most severe interrogation techniques applied by the CIA to a few high-value detainees who had resisted milder measures”the so-called enhanced interrogation techniques”and torture. Torture is defined in the criminal law of this country as an act with the intention to cause “severe physical or mental pain or suffering.”
The law does not define severe physical pain or suffering, but it does say that severe mental pain or suffering must be “prolonged,” caused by or resulting from” any of the following: physical pain or suffering or the threat thereof, administration of mind-altering drugs or other substances, the threat of imminent death, or the threat that another person will suffer any of the preceding.
Although Lauritzen uses the phrase “torture memos” repeatedly to refer to memoranda drafted by the Justice Department and condemns their authors, John Yoo and Jay Bybee, as having sanctioned torture, nowhere does he set forth the reasoning of those memoranda, which as finally put in place demonstrated in precise detail why the techniques in question were not torture as defined by law.
He simply assumes from the outset that the CIA’s interrogation techniques constituted torture. The book’s central goal, to reclaim “professional responsibility” as it relates to interrogation, also overlooks that standards of professional discipline were enforced. In fact, the whole issue of detainee treatment was, from the outset, lawyered to death.
When I became attorney general in the fall of 2007, for example, I learned that an investigation into the drafting of these memos was one of the ongoing projects of the Justice Department’s Office of Professional Responsibility (OPR). After more than five years of investigation, that office, on the eve of a transition to a new administration, issued a report recommending that both Yoo and Bybee be referred for professional discipline for their failure to render “thorough, objective, and candid legal advice.” That report contained not a word suggesting that they had followed their own views rather than those they thought were embodied in whatever law could be brought to bear on the problem, or did not themselves believe the conclusions they reached.
Rather, the report accused them of misconduct based on its authors’ own conclusions about what the law was and what result the memos should have reached. This was a conclusion the OPR’s lawyers were not competent either institutionally or personally to reach, and one they reached by consulting such authorities as a professor who never practiced law a day in his life; a law review article by the lawyer who had represented John Walker Lindh, the American convicted on his own plea for fighting for the Afghan Taliban against American troops; and unreported cases whose citation was forbidden by the courts that decided them. I directed that the report not be published until the lawyers for Yoo and Bybee, as had been promised, got a chance to comment on it. The report was eventually rejected even by the Obama administration.
Lauritzen also relies heavily on correspondence from former Navy general counsel Alberto Mora to an unnamed inspector general who looked into Mora’s allegations of abusive treatment at Guantanamo, but he does not tell us what that unnamed inspector general concluded. That unnamed man was Admiral Church, cousin of the late Democratic senator Frank Church of Idaho.
Admiral Church concluded that “at GTMO, where there have been over 24,000 interrogation sessions since the beginning of interrogation operations, there are only three cases of closed, substantiated interrogation-related abuse, all consisting of minor assaults in which . . . interrogators exceeded the bounds of interrogation policy.” All three resulted in reprimands.
The admiral’s report concluded that “detainees were more likely to suffer injury from playing soccer or volleyball during recreational periods than they were from interactions with interrogators or guards.” He found that the “extremely low rate of abuse at GTMO is due to strong command oversight, effective leadership, and adequate training on detainee treatment and handling.” Of course, that leadership and training, acquired through experience, will be lost if, as the current administration intends, Guantanamo is closed and those detainees not freed are folded into the existing civilian penal system in the United States.
I visited Guantanamo in February 2008 and saw nothing that conflicted with those findings. It isn’t that there is no physical violence at Guantanamo. There is plenty of it”directed by the prisoners against the guards, who routinely wear plastic face shields when they are on patrol to deflect the mixtures of urine, feces, spittle, and any other noxious liquid the prisoners regularly throw at them.
Although the library available to the prisoners contained a large trove of Arabic and other literature in the native languages of the prisoners, not to mention the obligatory Qur’an delivered to each prisoner in a plastic bag to prevent its contamination through handling by an infidel, the most popular library items when I was there were DVDs of the television program Walker, Texas Ranger .
There is no shortage of challenging moral issues relating to the War on Terror. Beyond the issues of whom we must detain for our own safety and well-being, and how we may obtain information that can save lives, there are vexing situations that actually arose and were confronted but are still worth debating and discussing.
On 9/11, after two planes had hit the World Trade Center and one had hit the Pentagon, those in the White House were confronted with the decision of whether the order should be given to shoot down the fourth plane, even though the crew and all passengers, except the hijackers, were innocent. That order in fact was given. Was that the right decision? Why?
During the war in Afghanistan, a Navy SEAL team, hunting a wanted terrorist, came upon a group of Afghan villagers who seemed hostile. The SEALs, concerned that the villagers would betray their whereabouts to local Taliban forces, did not have the time or the manpower to capture the villagers. They felt duty-bound not to kill them and had no choice but to let the villagers go. They did, and soon came under fire from Taliban forces who had been alerted by those villagers. All save one, Marcus Luttrell, were killed. Was that the right decision? Why?
There are many serious books that bear on these issues. For a grounding in what actually happened in the CIA interrogation program and at Guantanamo, consult Courting Disaster by Marc Thiessen, and for a thoughtful academic discussion of the topic, see Detention and Denial by Benjamin Wittes and Terror and Consent by Professor Philip Bobbitt.
As to Lauritzen’s book, it seems principally useful as a cautionary lesson of what will happen if we are not careful about whom we entrust with protecting our safety. He is not satisfied with the view that what has been put into law by a duly elected government should provide the standard for those who are part of a government of laws.
He endorses the view that the whole enterprise of having interrogators look to the limits of what the law permits is illegitimate: “Claiming that the interrogator has a legitimate interest in having a precise legal definition of torture is like a husband saying he has an interest in pushing his wife around and therefore needs to know precisely how much he can push her before it counts as domestic violence.”
Here the interest in getting life-saving intelligence is presented as the moral equivalent of a taste for spousal abuse. Lauritzen dismisses evaluations of interrogation techniques to obtain vital information with reference to the limits of what the law permits as “only pragmatic, consequentialist assessments of counterterrorist practices.”
If my family and I had three lives to lead, I guess we could agree to lead one of them as a social experiment supervised by Lauritzen. We don’t, and to protect the one life we do have I’ll take “pragmatic, consequentialist assessments.”
Michael B. Mukasey was a United States District Judge from 1988 to 2006 and Attorney General of the United States from 2007 to 2009 .