No issue has generated more misguided commentary than that of the treatment of terrorist detainees. I think the confusion stems, in part, from the false assumption that terrorist detainees, like Americans who are suspected of a crime and are in the custody of law enforcement authorities, have a right to remain silent. They have no such right. On the contrary, security agencies have the right and duty to try to extract information from them–information that in many cases, will save Americans’ lives.
Yesterday, House subcommittee chairman Jerrold Nadler held a hearing on “executive branch war powers,” which was the usual festival of Bush-bashing, centered on legal opinions on detainee treatment that have been given by the Department of Justice. What was notable about the hearing was the opening statement by ranking Republican Trent Franks of Arizona. Franks delivered as sensible (and legally accurate) discussion as I’ve seen; here it is, in its entirety:
FRANKS: Well, thank you, Mr. Chairman. Mr. Chairman, the subject of detainee treatment was the subject of over 60 hearings, markups and briefings during the last Congress in the House Armed Services Committee alone, of which I am a member.
The subject of this hearing is a memorandum that has long since been withdrawn. That memorandum regarded an interrogation program on which Speaker Pelosi was fully briefed in 2002. And at that briefing, no objections were made by Speaker Pelosi or anyone else.
According to the Washington Post, in September 2002, four members of the Congress met for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody.
For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi, was given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk. Among the techniques described, said two officials present, was water boarding. On that day, no objections were raised.
Mr. Chairman, let me be clear as I have done so in the past by saying that torture is already, and should be, illegal. I am against torture. Torture is banned by various provisions of the law, including the 2005 Senate Amendment prohibiting the cruel, inhuman or degrading treatment of anyone in U.S. custody.
But what of severe interrogations? Mr. Chairman, were we not to engage in severe interrogations which could save thousands or even millions of lives, we would have to ask ourselves if we were facilitating the maiming and torture of innocent Americans by letting terrorist suspects conceal their evil plans.
Severe interrogations are rarely used. CIA Director Michael Hayden has confirmed that despite the incessant hysteria by a few, the water boarding technique, for example, has only been used on three high-level captured terrorists, the very worst of the worst of our terrorist enemies.
Director Hayden suspended the practice of water boarding by CIA agents in 2006. Before the suspension, he confirmed that his agency water boarded 9/11 mastermind Khalid Sheikh Mohammed, Abu Zubaida and Abdullah Hem Nashiri (ph), and each for approximately one minute.
But who are these people, Mr. Chairman? When the terrorist Zubaida, a logistics chief of Al Qaida, was captured, he and two other men were caught building a bomb. A soldering gun that was used to make the bomb was still hot on the table, along with the building plans for a school.
John Kiriaku, a former CIA official involved Zubaida’s interrogation, said during a recent interview, quote, “These guys hate us more than they love life. And so you’re not going to convince them that because you’re a nice guy and they can trust you, and that they have rapport with you that they’re going to confess and give you their operations,” he said.
The interrogation of Zubaida was a great success, and that it led to the discovery of information that led to the capture of terrorists, thwarted terrorist plans and saved innocent American lives.
When a former colleague of Mr. Kiriaku asked Zubaida what he would do if he was released, he responded, quote, “I would kill every American and Jew I could get my hands on,” close quote.
The results of a total of three minutes of severe interrogations of three of the worst of the worst terrorists were of immeasurable benefit to the American people. CIA Director Hayden said that Mohammed and Zubaida provided roughly 25 percent of the information that the CIA had on Al Qaida from all human sources. Now we just need to kind of back up and thought about that. A full 25 percent of the human intelligence we’ve received on Al Qaida from just three minutes worth of a rarely used interrogation tactic.
Mr. Chairman, I just want to repeat again, as I previously said, torture is banned under federal law that prohibits the cruel, inhuman or degrading treatment of anyone in U.S. custody. The non-partisan Congressional Research Service has concluded that, quote, “The types of acts that fall within cruel, inhuman or degrading treatment or punishment contained in the McCain Amendment may change over time and may not always be clear. Courts have recognized that circumstances often determine whether conduct, quote, ‘shocks the conscience and violates a person’s due process rights,’ unquote.”
Even ultra-liberal Harvard Law School Professor Alan Dershowitz agrees, as he wrote recently in the Wall Street Journal. Quote, “Attorney General Mukasey is absolutely correct that the issue of water boarding cannot be decided in the abstract. A court must examine the nature of the governmental interest at stake and then decide on a case by case basis. In several cases involving actions at least as severe as water boarding, the courts have found no violations of due process.”
Much will be made today of a memorandum regarding severe interrogations authored by John Yoo, a former lawyer at the Office of Legal Counsel. But as Mr. Yoo himself said during a recent interview, quote, “I didn’t want the opinion to be vague so that the people who actually have to carry out these things don’t have a clear line, because I think that that would be very damaging and unfair to the people who are actually asked to do these things,” close quote.
These things, Mr. Chairman, are efforts to save thousands of innocent American lives. Now I expect Mr. Yoo’s name will be mentioned many times today, but the name of Senator Charles Schumer probably not so many times.
But let us remind ourselves what Senator Schumer of New York said at an extended Judiciary Committee hearing on terror policy on June 8, 2004. And I wonder if they have the — can we start again?
(BEGIN VIDEO CLIP)
SCHUMER: We ought to be reasonable about this. I think there are probably very few people in this room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake.
Take the hypothetical, if we knew that there was a nuclear bomb hidden in an American city, and we believed that some kind of torture, fairly severe, maybe, would give us a chance of finding that bomb before it went off, my guess is most Americans and most senators, maybe all, would say do what you have to do.
So it’s easy to sit back in the armchair and say that torture can never be used. But when you’re in the foxhole, it’s a very different deal. And I respect, I think we all respect the fact that the president’s in the foxhole every day.
(END VIDEO CLIP)
FRANKS: Mr. Chairman, I wish so much that this was all just an academic discussion. But unfortunately, we now live in a post-9/11 world with an enemy whose leader, Osama bin-Laden, has said, quote, “It is our duty to gain nuclear weapons.”
Mr. Chairman, I’m afraid that one such tragedy will transform this debate in the worst kind of way. Two airplanes hitting two buildings took 3,000 lives and cost this nation $2 trillion.
If an atomic blast or some other weapon of mass destruction should ever be unleashed on this nation, it would change our concept of freedom forever. And I just hope that we can transcend the partisanship and maintain our focus on that because there’s still hours on the table left when we can prevent such a tragedy, I believe, if we realize that there are ways that we can combine human decency and a vigilant foreign policy in an interrogation technique process to protect this country and the concept of freedom for future generations.