The Achilles Heel of Torture

What the JAG Memos Tell us

| Fri Aug. 26, 2005 3:00 AM EDT

Last month, Americans were given a new and persuasive reason for objecting to the use of torture as a tool in administration policy; namely, its potentially harmful impact on any viable counterterrorism strategy that values information as essential in combating Islamic fundamentalist terror. This strategic concern was raised in a set of memos released by the government in its latest "dump" of documents into the public arena.

Since the spring of 2004, the government has been making public previously classified documents nearly weekly, often in response to Freedom of Information Act law suits (though the numbers of newly classified documents are increasing at a rate that more than nullifies any sense of transparency such releases might suggest). Many of these memos have been about torture -- whether to use it; how to use it; and, most of all, how to protect government agents and agencies against prosecution for using it. Among these documents have been memos from the Judge Advocate General's Corps (or JAG), written by military lawyers from the Army, Air Force, Navy, and Marines, and these constitute a welcome oasis of sanity in a desert of compliance with the government's decision to use torture as a weapon in its "war on terror."

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First brought to public attention in Senate debate on July 25, 2005, these JAG memos have seen the light thanks to a request from Republican Senator Lindsey Graham. They were written in February 2003 as recommendations to a Pentagon working group on "interrogation policy." Collectively, they express a clear opposition to the use of the sorts of harsh interrogation techniques that White House lawyers had not only recommended but declared legally viable. Indeed, by August of 2002, lawyers for the administration had infamously suggested, as a basis for reducing legal culpability for the mistreatment of detainees, that the definition of torture itself be narrowed to include only ""[p]hysical pain ?equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

The JAG memos, on the other hand, warned that abusive interrogation techniques -- contrary to the advice administration lawyers were generating ? might well be found illegal in courts of law: As one put it, "Our domestic courts may well disagree with [the administration's lawyers'] interpretation of the law." The courts, the JAG memos warned, might find that the use of torture, however redefined by the administration, violated not just international law, but domestic criminal law and the laws of the Uniform Code of Military Justice as well.

These memos have earned praise from critics of the Bush administration and its war on terror, who have been pleased to discover strong organizational resistance to administration policy within the military. But the terms of the disagreement have been little explored. It's not just the fact of the dissent that is noteworthy, but its nature; for these documents provide us with something other than the usual notes of protest against torture that critics of the administration are wont to express. The JAG criticism is not so much moral as strategic. What the JAG lawyers suggest -- and it is a position no less significant today than when it was shaped in 2003 -- is that a policy of torture is sure to constitute a fatal flaw in any war against jihadi terror.

Prior to the release of these JAG memos, what opposition to torture we knew about within the administration almost invariably stood upon a concern for rights and legality. Secretary of State Colin Powell, William Taft IV, the Legal Advisor to the Department of State, and others reasoned, without much success, against policies which could lay the groundwork for abusive treatment. They cited the possible illegality of such acts under domestic law; the importance of maintaining the high moral ground as a mark of American national identity; the protection of human rights worldwide; the potentially dangerous repercussions that might come from alienating our allies; and the endangerment of our citizens and our troops in a world in which reciprocity in the decent treatment of prisoners might no longer be honored.

The JAG memos restate these arguments, but they also plunge into new critical territory. In a February 27, 2003 memo summarizing the problems the JAG lawyers had with the Pentagon's working group proposal, for instance, Kevin M. Sandkuhler, Brigadier General for the Marine Corps, wrote the following: "The authorization of aggressive counter-resistance techniques by service members will adversely impact ?Human Intelligence Exploitation and Surrender of Foreign Enemy Forces, and Cooperation and Support of Friendly Nations." Put simply, Sandkuhler was saying that the systematic practice of torture threatened to impede the collection of useful information and so had the potential to deliver a harmful blow to the U.S. war against jihadi terrorism.

If, as both administration officials and their critics agree, information is crucial in preventing terrorist attacks, then the practice of torture needs rethinking on purely strategic grounds. There are two reasons for this. The first, cited commonly by critics as well as in the JAG memos, is simply that, on an individual level, torture is "of questionable practical value in obtaining reliable information." The "ticking bomb" scenario -- you have two hours to foil a plot to blow up part of New York City and a single man with crucial information in your hands -- has yet to find its way into reality (though Fox Broadcasting's show "24" may have convinced the television-watching population otherwise); nor has the government ever made the claim that they have gathered crucial or even valuable, otherwise unknown or unattainable evidence, from the detainees at Guantanamo and Abu Ghraib by such methods. And information obtained through torture is notorious for its unreliability.

Prior to the release of these memos, the second reason has been absent from official documents and most public consideration of the use of torture as policy. As the JAG memos make clear, sooner or later torture seems invariably to become a matter of the public record and, when it does, as with the release of the photos from Abu Ghraib or accounts of torture at Guantanamo, it understandably alienates a rich and unsurpassable source of information -- Muslim communities around the world. As the police in Great Britain and various other European countries will tell you, the apprehension of jihadi terrorists relies heavily not on coercion, but on informants who willingly provide information either for political, ideological, or personal reasons.

Connections to Muslim communities must be based on trust, and such trust is obviously less likely to exist if the threat of detention with torture and without trial is a cornerstone of U.S. policy. It is not a question of Muslims around the world hating Americans, but of Muslims wanting to work with an administration whose policies are built on torture and detention without end or recourse. Underlying any policy of torture in present circumstances, as the writers of the JAG memos recognized even in 2003, is the assumption that it is not worth our while to build real bridges to Muslims (rather than the cosmetic ones envisioned by Karen Hughes, the President's favorite advisor and new undersecretary of state for public diplomacy). As the military lawyers realized two years ago, the Bush administration's recourse to torture policies was a sign that its officials neither trusted, nor put much faith in what once would have been considered basic American values; nor believed our policies to be attractive when compared to the hatred that bonds Islamic fundamentalists together. Just as the JAGs sensed it would, this has proved a losing assumption -- and torture the Achilles heel of administration policy -- based on an exceedingly short-sighted concept of national security.

The inverse relationship between success in fighting terrorist enemies and the practice of torture has yet to be sufficiently appreciated either by critics of the administration's torture policy or by counterterrorist policymakers. Those who defend torture policies insist that opposition to torture, the preference for human rights instead of what they see as realpolitik, is but another example of weak-kneed liberals clinging to straws as compatriots are beheaded, of amnesia over the almost 3,000 who died on September 11th, 2001, and of an overall lack of respect for fighting an effective war against enemies who refuse to play by civilized rules. But they are mistaken, as the Sandkuhler memo -- which opposed torture as much on strategic grounds as moral or constitutional ones --- made clear two years ago.

After the bloody, cruel and dehumanizing events of World War Two, General Dwight D. Eisenhower surveyed the plusses and minuses of America's engagement with evil. According to Eisenhower, the fact that the US military was known not to abuse prisoners contributed greatly to hastening the end of the war in the European theater; Nazis were willing to turn themselves in to the Allied forces and brought with them information that played an important role in ending the war.

Washington should take note. If their "war on terror" will indeed last decades, as many administration members and supporters claim, then wouldn't it be better not to shut the door on those Muslims who know that terrorism in the hands of Islamic fundamentalists will harm us all?

Karen J. Greenberg is the Executive Director of the Center on Law and Security at the NYU School of Law and the co-editor of The Torture Papers: The Road to Abu Ghraib as well as editor of two forthcoming books, Al Qaeda Now, Understanding Today's Terrorists and The Torture Debate in America.

Copyright 2005 Karen J. Greenberg

This piece first appeared at Tomdispatch.com.

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