America's abuse of the law handed victory to terrorists

America's abuse of the law handed victory to terrorists
By Philip Stephens
Copyright The Financial Times Limited 2009
Published: April 24 2009 03:00 | Last updated: April 24 2009 03:00
http://www.ft.com/cms/s/0/a08ee81a-3068-11de-88e3-00144feabdc0.html


Here is a chilling thought. Barack Obama has gifted a dangerous advantage to America's enemies. How? By assuring terrorists they will not be tortured in US custody. The president, this argument runs, should have kept al-Qaeda guessing as to what fate detainees might suffer at the hands of CIA interrogators.

Mr Obama has sparked considerable controversy by declassifying secret memorandums detailing the interrogation methods used by the CIA in the wake of the terrorist attacks of September 2001. The practices included near-drowning, confining detainees in small boxes, slamming them into walls, sleep deprivation and enforced nakedness. Some of the techniques were borrowed from the harrowing experiences of US soldiers held captive in Hanoi during the Vietnam war.

Yet those who authorised these "enhanced interrogation techniques" still deny they amounted to torture. The memorandums explain why. The lengthy justifications set out by Bush administration lawyers remind us how legal bureaucratese can empty the law of any real meaning.

For all that, some of Mr Obama's advisers opposed publication. He had now banned such practices. What purpose would be served in laying out the legal sophistry that said the repeated "water-boarding" of detainees was not cruel, inhuman or degrading? Such sins were best left undisturbed.

From another direction, there has been criticism of Mr Obama's subsequent attempts to draw a line under the affair. This week the president visited CIA headquarters. He suggested that, whatever the manifest flaws of the legal opinions, they should absolve interrogators of blame. He seemed disinclined also to see the authors of the memorandums called to account.

Predictably, though, the harshest criticisms of the president came from those who worked for George W. Bush. Few were as revealing as that of General Michael Hayden, who served as CIA director during the twilight months of his presidency.

General Hayden asserted that by publishing a list of the now-banned methods, the administration had given succour to al-Qaeda. Knowledge of the limits imposed on US interrogators would be "very useful" to the followers of Osama bin Laden.

To follow the logic here is to understand what went so horribly wrong during Mr Bush's time. By the general's account Mr Obama is abetting terrorists by affirming that the US will uphold its guiding laws and values. Yet the defence of those same laws and values is the core purpose of the fight against violent extremism in all its guises.

The moral repugnance of the techniques seems to play no part in the calculations of their apologists. Nor do the legal prohibitions on such treatment under domestic and international law. Lawyers had been found to say it was OK to simulate suffocation. So it was OK.

Almost as disturbing as the ethical agnosticism is the wanton stupidity. To read the memorandums is to understand just how much needless damage was done to America's security by the way the so-called "war on terrorism" was conducted.

Abu Ghraib, the secret CIA prisons, the rendition of prisoners to places of torture elsewhere, and, of course, Guantánamo did more than shatter America's moral authority. They served as a recruiting sergeant for al-Qaeda. What better way could there have been to persuade disaffected young men that the US was waging a brutal war against Islam?

Unsurprisingly, Dick Cheney, the former vice-president, is unmoved by such arguments. Mr Cheney contends that "these programmes", as he calls them, kept the US safe from a further terrorist outrage. Without them, "We would have been attacked again." This week he asserted there was documentary evidence to support his case, and he called for publication of secret CIA assessments.

It would be surprising if among those who subjected so-called "high-value" al-Qaeda operatives to such treatment, some CIA agents did not claim it yielded results. How else could they justify continuing? The problem for Mr Cheney is that others in the front line have consistently said otherwise.

When the US army published its latest manual for intelligence staff in 2006, General John Kimmons, the deputy chief of staff for intelligence, flatly denied torture worked: "No good intelligence is going to come from abusive practices. I think history tells us that . . . the empirical evidence of the last five years tells us that."

General Kimmons made two obvious but important points. The credibility of intelligence obtained under duress is always doubtful: tortured terrorists will say anything. And: "It would do more harm than good when it inevitably became known that abusive practices were used."

The very fact that CIA interrogators thought they needed to water-board two prisoners a total of 260 times says all that needs to be said about efficacy. Meanwhile, the evidence that the US was willing to abandon its own civilised standards wrote the recruitment poster for al-Qaeda.

Mr Cheney's strategy is clear enough. He wants to plant the idea that Mr Obama is somehow "soft" on terrorism. Were the US to suffer another attack, the president could be blamed for not allowing the CIA to torture those who might have provided advance information.

The former vice-president does not allow facts or evidence to get in the way of partisan politics. I have often wondered, though, just how far he would go with his ethically abhorrent and intellectually flawed "ticking bomb" scenario. Would interrogators be justified in, say, torturing or killing the children of a suspected terrorist to persuade him to give up information they considered vital to save American lives? Presumably, Yes.

Mr Obama has understood where the twisted logic of torture takes you. It concedes to the enemy the very thing you are fighting to preserve. By banning abuse, allowing detainees access to US justice and publishing the memorandums, the president has re-asserted the rule of law as the central pillar of America's authority.

He should now follow the logic of that course. It is not for the president to decide whether anyone - interrogator or lawyer - should be held to judicial account for what happened under the previous administration. If the laws framed under the constitution are his starting point, Mr Obama must leave to the proper authorities the question of whether there should now be prosecutions. The Bush administration overturned the scales of justice to the advantage of terrorists. Mr Obama must set them right.

philip.stephens@ft.com