Michael raises a number of questions that deserve further investigation. On the question of legality, the immediate follow-up question is one of context. Are we talking about law within the state, or international law? International law only has as much force behind it as any nation-state is willing to give it. But still, it seems from the public record of what actually happened that the American focus on legality was motivated by a desire to ensure interrogation techniques fell within the realm of legality, both domestic and internationally.
The question then became which international laws applied.
The United States under the Bush administration consistently defined the struggle as a war against terrorism. Using the norms of war rather than (or, perhaps, in addition to) the norms of criminal justice has important implications for how people are treated and what rights they have. The United States put forward as its guiding policy the idea that the war against terrorism was a new kind of war, very unlike conventional wars of the past. The United States argued that the world changed on September 11, 2001, but nevertheless sought to continue to use the existing international legal code, but applied in new circumstances. This is one way of interpreting the role of the Bush Justice Department (beyond and in contrast to the public caricature of these people as rhetorical enablers, which I am sure is too simplistic).
The 2002 National Security Strategy also discussed this, in a passage often interpreted as justifying preemptive war but perhaps also applicable to interrogation situations:
For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat…We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. (Page 15 of the 2002 NSS)
The United States took care to appeal to historical and legal precedent in its discussion of a changed world. There can be no doubt that modern terrorists present unique challenges, and after September 11, particularly after the Dragonfire intelligence report, the top national security officials in the country considered every day to be September 12 and worried deeply about the possibility of an event of even greater magnitude, a nuclear terrorist attack. Considering how many nuclear weapons remain unaccounted for after the end of the Cold War even today, this was not an unfounded fear, and remains a serious threat to this country today.
The United States and the American people historically have desired to portray themselves as and identify with the forces of good and justice. I believe there was actually a sincere desire on the part of the Bush Administration to balance longstanding and deeply rooted American concerns about human rights and justice with the incredibly difficult intelligence and security challenge presented by modern terrorism. No one likes a compromise, but the fact is almost all of the people detained are not American citizens, and every American citizen accused of plotting or conspiring in favor of terrorism has ultimately found himself in a court of law. For those who are not citizens of the United States, the U.S., in line with the norms of a war against terrorism, applied the international laws of war.
For Michael’s question about whether conservatives are concerned about the state arrogating to itself powers it should not have, I think most conservatives are not overly worried because the American system of separation of powers has shown itself perfectly capable of protecting the rights of Americans, and the executive does have the power to wage war. The Constitution has not been overthrown or subverted, and the Congress and the Supreme Court have successfully asserted their constitutional powers. There were several times when conservatives sympathetic to libertarian concerns were worried, but from what I can see there are few, if any, clear cases of illegality when it comes to interrogation.
This last comment asks for some more elaboration. The most that can be said, I think, is that some Bush administration officials bent the law, but did not break it. This is one way of assessing the classification of terrorists as enemy combatants, which I have long interpreted as a way to bend the laws of the Third 1949 Geneva Convention.
The strangest thing, though, is that I have also long thought that Geneva Convention III presented a clear solution for the terrorism problem, one that did not require the resort to the creation of a new, amorphous category of person about whom it was unclear which laws applied. There are valid reasons for finding terrorists to fall outside the protection of the Convention, as terrorists are not confined to states and do not themselves observe international law. The argument could easily be made that the 1949 Geneva Convention III Relative to the Treatment of Prisoners of War does not apply to members of al-Qaeda or other terrorists because terrorists such as Qaeda fighters do not wear uniforms and do not carry their weapons out in the open, and thus violate Article 4 of the Convention. Also, as the Convention states in Article 2:
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
In other words, while the United States is at war with al-Qaeda (for all intents and purposes a virtual state), the United States is still obligated to abide by Convention III in its relations with other signatories; but it is only obligated to abide by Convention III with respect to al-Qaeda if al-Qaeda follows the same international law, which it most certainly does not. Nevertheless, it is an obligation of a signatory to determine the status of prisoners:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
What I do not understand is why we did not have a standing tribunal to quickly determine the status of terrorists as part of their processing in places like Guantanamo. Perhaps the U.S. chose to eschew judicial determination because it believed it would be too slow; if a tribunal needed to be convened every time a suspected terrorist or enemy combatant were detained, crucial time might be lost, which could prove costly in the event of a time-sensitive security situation. But I believe such tribunals could have made determinations swiftly. These people do not wear uniforms, and, like pirates, they are international outlaws, enemies of humanity.
There was some effort to define the interrogation techniques as actually sanctioned and allowed under the Convention by citing them as falling under the categories of Army Field Manual 34-52, which was written to be consistent with the Convention on POWs (the Schmidt-Furlow Report discussed this at length, although it made few comments about its own legal determination). As continuing debate evidences, it remains questionable whether techniques such as waterboarding are sanctioned under the Uniform Code of Military Justice, or in line with the norms of the 1978 Red Cross Fundamental Rules, or the 1987 U.N. Convention Against Torture. But the determination of the Bush administration lawyers was that these techniques were in fact lawful.
It’s not hard to see why. The UN Convention Against Torture, to which the U.S. is a signatory, has a broad (and somewhat vague) definition of torture (its lack of clarity arises from a lack of definition of “severe pain or suffering”), and the Convention rules torture out categorically in exceptional cases: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification for torture” (Article 2, sec. 2). In conceiving of the struggle against modern terrorists as a war, and comprehending the incredible challenge modern terrorists pose to abstract theorizing, it is easy to see why there was an effort to see how far interrogation could go in the event of extreme circumstances (such as the so-called “ticking time bomb” scenarios, the number of which that have actually obtained we still do not know).
I think the crux of the matter is we simply do not have a clear consensus definition of what torture is. This is true of us as a society, and this is true of the people of the world. The evidence for this is the clear and constant disagreement and argument that continues to arise about whether certain interrogation techniques constitute torture. I once visited a torture museum in Italy, and techniques such as breaking on the wheel, applying thumbscrews, and testicle crushing strike me as chilling and obviously torture. Today, when I read about the terrorist detention facilities, where interrogation techniques go from slapping the face to “walling” to waterboarding, my intuitions are much less sure. Leaving aside for a moment the philosophical strengths and weaknesses of moral intuitionism, slapping does not by any means strike me as an a priori category of torture. Waterboarding makes many people uneasy, including me, but it does not strike me as as obvious a case of torture, as, say electrocution, or pulling teeth from a conscious subject, does. Perhaps it is, perhaps it isn’t; but I do not think we have by any means come to a clear, principled consensus yet about what torture is. This is what needs to be done, and once it is policymakers can use that standard definition to clearly and uncontroversially categorize some techniques as torture and some as simply harsh.
Returning to Michael’s point about conservative worries about the state’s arrogation of powers: what also needs to happen now is the Obama administration needs to describe the kind of intelligence that was actually obtained using the questionable interrogation techniques, so that we can evaluate whether the security benefits outweighed the worries over the presumed international human rights of terrorists (in contrast to American civil rights, which I think, looking at the record, we have far less to worry about when it comes to the terrorism question, as they have remained quite secure).
Theory has its uses, but the complexity of reality will always demand difficult decisions, and it is good that Dr. Rice is making this point. Judging the Bush administration according to abstract ideas, divorced from the context of the case, strikes me as inadequate. Policy is far more complex and difficult than philosophy. What we now need is as much information as possible to make a full assessment of the context of each case. Until then, I doubt this debate will move much in one direction or another.