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Abusing the Evidence By: Jacob Laksin
FrontPageMagazine.com | Wednesday, December 17, 2008


A new report by the Senate Armed Services Committee on the treatment of terrorist detainees has the Bush administration’s critics claiming vindication. According to the New York Times, the report, orchestrated by Michigan’s Democratic Senator Carl Levin, gives the lie to “the Bush administration’s contention that tough interrogation methods have helped keep the country and its troops safe.” Meanwhile, Andrew Sullivan, among the more hysterical foes of the administration’s detention policies, insists that the report conclusively proves that Bush administration officials are directly responsible for the “abuse, torture, rape and murder of prisoners in American custody in the war on terror, most indelibly captured by the photographic images of Abu Ghraib.” Considering that several high-profile investigations have already exonerated the administration, these charges are more than a little suspect. And, indeed, a review of the report reveals them to be utterly without merit.

The Levin report’s main contention is that the “abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own.” Rather, it was the result of specific policies put in place by “senior officials in the United States government.” This is a serious charge. But in the course of 29 tendentious pages, the report fails to prove it. To the extent that the report proves anything at all it is only the regrettable fact that, amid a serious economic downturn and a war on two fronts, certain Congressional Democrats have made a priority of pursuing partisan vendettas against the outgoing administration.

Prominent among the report’s flaws is its selective account of history. For example, it notes that on February 7, 2002, “President Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with al-Qaeda and concluding that Taliban detainees were not entitled to prisoner of war status or the legal protections afforded by the Third Geneva Convention.” Readers are then informed that this was a break with “well established military doctrine,” one that “impacted the treatment of detainees in U.S. custody.” The implicit charge is that by failing to abide by the Third Geneva Convention, the administration cleared the way for torture.

The reality is altogether different. As Jack Goldsmith, a former assistant attorney general in the Bush administration’s Office of Legal Counsel, points out in his 2007 book The Terror Presidency, the administration was actually acting in accordance “with a long-held U.S. position that terrorists and other enemy fighters who did not wear uniforms or carry their arms openly would be denied POW status” under the Third Geneva Convention. So far from a radical departure from established precedent, this was “a principled view that many…had embraced since the 1980s, long before al-Qaeda and the Taliban were even born.” Goldsmith’s view is particularly relevant because the Levin report casts him, misleadingly, as a brave whistleblower who vainly sought to thwart the administration’s detention policies.

Equally misleading are the Levin report’s strained attempts to depict Donald Rumsfeld as the chief architect of “torture.” Unfortunately for this thesis, the report finds no evidence whatsoever that the former defense secretary approved anything remotely resembling torture. The closest the report comes is to single out Rumsfeld’s approval in 2002 of “aggressive interrogation techniques” such as “stress positions, removal of clothing, use of phobias (such as fear of dogs), and deprivation of light and auditory stimuli.” No doubt these measures made life unpleasant for Guantanamo Bay’s detainees, many of them fresh from fighting American troops in Afghanistan. This was, to be sure, the idea. But to suggest that they amount to “torture” – let alone that they inevitably paved the way for the more scandalous abuses of Abu Ghraib – is both absurd and insulting to the vast majority of military servicemen who have treated terrorist suspects humanely.

The Levin report lacks this broader perspective, but it does dwell at length on the supposed victims of aggressive interrogation. Thus, it lingers on the case on Mohammed al-Khatani, who is identified only as a “high value detainee.” What this means, exactly, the report never makes clear. Instead, it emphasizes that during his interrogation al-Khatani was “deprived of adequate sleep for weeks on end, stripped naked, subjected to loud music, and made to wear a leash and perform dog tricks.”

While such measures were not quite torture, they were undeniably harsh. But it’s impossible to judge al-Khatani’s interrogation fairly without knowing all the facts. According to the U.S. military, the Saudi-born al-Khatani, an al-Qaeda operative, was intended to be the 20th hijacker in the September 11 attacks. His 2002 capture came against the backdrop of the worst terrorist attack on U.S. soil in history. His interrogation, moreover, yielded valuable intelligence about al-Qaeda’s organizational structure and movements: among other details, al-Khatani told interrogators how al-Qaida crossed borders undetected; revealed “dirty bomber” Jose Padilla and “shoe bomber” Richard Reid as al-Qaeda operatives; and provided intelligence about Osama Bin Laden’s bodyguards at Guantanamo Bay.

Not only does the report omit this crucial context, but it darkly records that on August 13, 2003, Rumsfeld approved additional interrogation techniques to use against the likes of al-Khatani. Unmentioned is that the techniques were never used. Al-Khatani began to cooperate with interrogators prior to their approval.

In one sense, to focus on the trumped-up charges of the Levin report is to miss the point. Notwithstanding the authors’ professed, high-minded concern for the “methods by which we elicit intelligence information,” the report is at bottom an exercise in political score settling. It brings no new evidence to light, while its conclusions about the complicity in “torture” of Bush administration higher-ups have been discredited by a multitude of previous investigations. To cite just a few, a 2004 report on Abu Ghraib by Army Gen. Paul Kern found 44 incidents of abuse at the Iraqi prison, but absolved Rumsfeld and other administration officials from responsibility. An August 2004 investigation by former Secretary James Schlesinger concluded that Rumsfeld and other Pentagon officials bore some indirect responsibility for the Abu Ghraib abuses, but also underscored that “there is no evidence of a policy of abuse promulgated by senior officials or military authorities.” In Guantanamo Bay, a 2005 Army Regulation report examining 24,000 interrogations conducted over a three-year period “found no evidence of torture or inhumane treatment” at Gitmo. One may reasonably take these investigations as proof that the Bush administration, whatever its mistakes, had no systematic policy to “torture” detainees.

Or one can take Carl Levin’s word for it to the contrary.

Flawed as it is, the Levin report is not entirely worthless. Beneath its blame-game veneer is a revealing portrait of the vigorous high-stakes debate among legal experts, administration officials, and the branches of the military as they have tried to devise a policy for detaining terrorist suspects that both honors American values and protects national security. In making it available to the public, the Senate Armed Services Committee, almost despite itself, has performed a valuable service.


Jacob Laksin is managing editor of Front Page Magazine. His email is jlaksin -at- gmail.com


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