Wall Street Journal Editorial Report

My thanks to Paul Gigot, Daniel Henninger, and Robert Pollack for inviting me to join them tonight on the Wall Street Journal Editorial Report on PBS, to talk about torture, torture memos, interrogation, and the Gonzales hearings. I'm not very experienced or comfortable with television, don't speak easily in soundbites, and am afraid I took way more than my allotment of time - so my apologies to the panelists.

The point I most wanted to make is one that goes in conjunction with my posts below on Gonzales's confirmation hearings. I support Gonzales, and firmly resist many of the allegations made against him and against the Administration, particularly in the NYT and Washington Post editorials today, for all the reasons I stated below. I particularly reject Mark Danner's quite slippery op-ed piece in the NYT of yesterday, Thursday, January 6, titled "We are all torturers now." Cute, but sorry: we're not. What Danner does, quite inexcusably, is mingle the undeniable abuses of Abu Ghraib with the fact that the White House counsel sought, in the context of the interrogation of a known senior Al Qaeda chief, the outer limits of what could permissibly done in the way of questioning. I don't know, quite frankly, why one has a lawyer if not to ask what the outer limits of legal behavior are. To mingle those two - under these always and necessarily vague "bridging" rubrics of "creating an environment conducive to torture and abuse" simply by virtue of having discussed where the lines are - is specious. Likewise Danner's assertions that the techniques under discussion were all quite obviously torture. Loud Barry Manilow? Please.

But then consider Heather MacDonald's discussion of the fact that none of these techniques actually have much effect on Al Qaeda operatives because, at bottom, they know that, unless we decide to do outsource them to Egypt or Saudi Arabia or somewhere, we are not really going to torture them, Saddam style, or even make them very uncomfortable - well, we don't get anywhere with them. But that's precisely because none of this stuff is torture. Water boarding is the closest it gets, and once the threat element is gone - "I know they won't actually drown me" - then it too loses much of its effectiveness.

Granted, that is an important argument for not bothering to do it - we won't do it to the point of it being effective, so it might not be worth doing at all. "Why bother?" does not seem like such a good answer, however, if it turns out that another batch of aid workers are kidnapped and decapitated, or another terrorist attack takes place in the US, because we didn't think even a little pressure was worth putting a known terrorist, someone unquestionably in possession of crucial information, such as, say, Zarqawi.

But the problem with Mark Danner, and for that matter, the ICRC, and all the rest of the rights groups in arguing their case to the public is not this. They never get to this level of argument, because they start from the unshakeable - but untrue - premise that all these folks are entitled to be treated as POWs, and that any questioning is, therefore, by its very nature "torture" or anyway "tatamount" to it or a massive violation of the Geneva Conventions and international law or anyway gross wickedness by the United States. How a group such as the ICRC, however, expects to be taken seriously as an interlocutor and moral arbiter of matters such as torture when it announces, as it did a year ago, that merely the fact of not knowing how long you might be held in custody in Guantanamo was mental anguish tatamount to torture is beyond me. If that's what you (are not quite willing to own up to and) call "torture," then you can pretty much write off any serious consideration of your views except by the NYT editorial board and, more to the point, your main public audience in Europe.

So it is clear that I have zero sympathy with the Mark Danner-NYT endless elisions that aim at putting it all together in what MacDonald called the "torture narrative."

That said, however, I still stand by the criticisms I made in the posts below about clear errors made by Administration lawyers. My problem with the so-called "torture memo" was not that it attempted to explore the contours, including the outer limits, of what legally constitutes torture. Given that the Torture Convention does not come with a conveniently attached annex operationalizing it to particular behaviors, that's what having lawyers is for. My problem is with certain of the conclusions reached in that memo, and in particular that doing something that you think actually is torture doesn't violate international law or US law prohibiting torture if the President decided there was a really, really good reason to do it. It does.

More importantly, however - and this was the criticism I was seeking to put in front of the WSJ editors, but I wasn't very effective with television time (which, I've decided, exists in a separate Einsteinean framework from ordinary time) - it is simply a whitewash and untruth to suggest that the abuses are just limited to what we have already heard about in Abu Ghraib. To suggest that at this point in time is simply contrary to the facts as we know them. The FOIA documents provided to the ACLU cannot be ignored, and what they indicate is a far more widespread pattern of abuse.

Sure, it doesn't reach Danneresque levels - asking anything beyond name rank and serial number is torture, and if this is a bad day for you, we'll come back later - but then, Danner's lack of standards shouldn't eliminate the obligation to come up with genuine standards for the responsible rest of us, either. Clearly the abuse goes far beyond what is taken as its extent as charactrerized in, for example, the Wall Street Journal editorial of Thursday, January 6, 2004. I am greatly disturbed that one could read the Wall Street Journal editorial in conjunction with the Heather MacDonald op-ed of the same day and come away with no suggestion or intimation that the widespread abuses indicated by the FOIA documents even existed - it's just some discussions in the White House, a set of officially sanctioned but mild "pressures," and then those horrible, out of the chain of command abuses in Abu Ghraib.

This is not what I expect from the Journal - when I read the NYT, I expect as a matter of course that there will be artful elisions and delicate phrasings designed to be (usually) literally true while misconveying (usually by leaving out certain of) the facts. It all has to be read with one's lawyer's glasses on to see what's not being said. I don't expect the Journal to stoop to that, but instead to be blunt and abrasive, and put on the table the stuff that is helpful for its case and the stuff that isn't, comfortable or uncomfortable, and then call it as it sees it. I value the Journal editorials precisely for their lack of lawyerly artfulness, but Thursday was not a good day in that regard.

What the Journal editorial, together with MacDonald's op-ed, presented as what we might called the "untorture narrative" might have been plausible a few months ago, but in light of the facts as currently understood, it is flatly untenable. There is a lot more to unravel about the extent to which, indeed, the desire to find ways to put pressure on detainees in interrogation allowed a wink and a nod on the use of techniques not on the officially approved list. If those accounts are accurate, then government actors were doing stuff that would count as serious, actionable abuse and possibly, in some cases, torture. It's a very live possibility, and one that can't be written off merely by pointing out that the broad-brush claims from the Dannerites are off-the-wall. It's way more serious than that, and it is very wrong of the WSJ editorials not to acknowledge that.

Maybe that list of interrogation techniques is simply too restrictive - some of the people writing in Sanford Levinson's Torture: A Collection would seem to think so. I might come to agree in at least some cases of known terrorists. But it is as much a disingenuity as one unfortunately simply comes to expect from the NYT for the WSJ never even to mention the FOIA documents and what they tell us about the apparently widespread extent to which such activities were taking place.

(Update, Wednesday, January 12, 2005. Here is the link to the full length Heather MacDonald article on interrogation at Guantanamo from City Journal (a condensed version appeared in the WSJ).)

(Update, Sunday, January 16, 2005: Here is the link to a response to MacDonald by Marty Lederman at Balkanization. I have a number of serious disagreements with Lederman, but it is important reading.)