Was it or wasn’t it; and does it matter?

Susan Crawford, who is in charge of determining whether to bring Guantanamo Bay detainees to trial, has decided that Mohammed al-Qahtani will not be tried. Qahtani is a Saudi national who, says Crawford, planned to participate in the 9/11 hijackings. Calling Qahtani a “muscle hijacker” and a “very dangerous man,” Crawford nonetheless ruled that he cannot be tried because he was “tortured” during a series of interrogations.

Crawford says “the techniques. . .used were all authorized but the manner in which they applied them was overly aggressive and too persistent.” These techniques included sustained isolation, sleep deprivation, nudity, and “prolonged exposure to cold.” Interrogators also insulted Qahtani’s mother and sister, forced him to wear a bra, placed a thong on his head, and made him perform “dog tricks.”

Crawford acknowledged that torture is normally thought to entail “some horrendous physical act.” However, in this case “it was not one particular act [but] just a combination of things that had a mental impact on him, that hurt his health.” In fact, the “medical impact” is what “put her over the edge” in concluding that Qahtani was tortured. Apparently, the terrorist had to be hospitalized when his heart beat dropped to well below 60 beats per minute.

Crawford’s application of the “torture” label, then, is based on her subjective view of when a combination of techniques becomes too aggressive and too persistent. Suppose this particular combination had not caused the terrorist’s heart beat rate to fall below 60 per minute. In that event, Crawford apparently would not have concluded he was “tortured.”

Unfortunately, those charged with obtaining vital information from terrorists cannot know in advance what will put Crawford, or some other bureaucrat, “over the edge.” Nor can they know in advance what heart beat rate will be associated with a given method of interrogation. A better approach to these cases would conclude that the techniques were (or were not) appropriate ones regardless of heart beat rates, and eschew the “torture” label in either event.

This is not to suggest that one should sympathize with Qahtani’s interrogators. Could they possibly have believed that making him wear a bra would help them obtain information? More likely, they were just getting some strange kick, like the low-lifes at Abu Ghraib. If there was a good basis for believing that Qahtani had high value information, he should have been waterboarded instead of being put through 54 consecutive days of 18 to 20 hour interrogations, including antics having no apparent value as an inducement to “talk.”

Crawford has declined to comment on whether she considers waterboarding to be torture (maybe, for her, it depends on the medical impact). Her reticence on the subject compares favorably to her general willingness to spout cliches about Bush administration detainee interrogation policy. Her “takeaway,” for example, is that “we learn as children that it is easier to ask for forgiveness than it is for permission.”

Fortunately, the administration did not need Crawford’s permission then and does not her forgiveness now. Presumably Qahtami will be held without trial (even Crawford says she “would be reluctant to say ‘let him go'”). If he is released, Crawford will be among those who should ask for forgiveness.

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