American Interrogation Policy in the War Against Terrorism.

Sempa, Francis P.

American Interrogation Policy in the War Against Terrorism

www.brookings.edu/testimony/2008/0717_rules_wittes.aspx

By Benjamin Wittes, Fellow, Brookings Institution

Reviewed by Francis P. Sempa, Contributing Editor

Brookings Institution fellow and Atlantic Monthly editor Benjamin Wittes, the author of Law and the Long War: The Future of Justice in the Age of Terror, recently attempted to outline for the House Judiciary Committee the broad contours for U.S. interrogation laws. His stated goal was to establish a legal framework that will enable the government to prosecute the war on terror effectively and in a manner consistent with American values.

To that end, he offered a legal framework divided into three parts: military interrogations, CIA interrogations, and the interrogation of special "high value" detainees.

Wittes believes that the proper legal framework for military interrogations already exists by virtue of the McCain Amendment and the Army Field Manual, which are in compliance with the Geneva Conventions and specify what tactics are authorized and which are forbidden.

CIA interrogation rules, according to Wittes, are currently inadequate. They proscribe torture and cruel, inhuman, and degrading treatment but are so vague as to provide little or no guidance to agency interrogators. There is a fine line between aggressive interrogations and unlawful interrogations, and current law does not properly delineate it. Wittes believes that CIA interrogators should be permitted to use more aggressive tactics than military interrogators, though he fails to adequately explain why civilian agents should be given more leeway than soldiers in a combat setting. He couples his proposal for more aggressive CIA tactics with mechanisms for Congressional oversight by intelligence committees.

The interrogation of special "high value" detainees is the third and most interesting part of Wittes' framework. These are situations where the normal rules for interrogation will likely be breached in an effort to avert catastrophe. Under his proposed framework, the President could authorize more aggressive interrogations than the law allows (but, not torture) when he makes a written finding to Congressional intelligence committees identifying the need for "enhanced tactics" and specifying the authorized techniques. This will effectively immunize the interrogators from any legal consequences resulting from their implementation of a Presidential order. Ultimately, the President will be accountable, although Wittes does not specify how that might be achieved.

This all looks good on paper, but abstract legal frameworks are unlikely to limit the actions of Presidents, policymakers, and civilian or military field interrogators needing to make quick decisions about interrogation tactics (including the use of torture) in order to save lives and avert catastrophe. After all, American presidents (including Lincoln and FDR) and their subordinates have breached our most cherished abstract legal framework - the U.S. Constitution - when necessary to protect national security.

Wittes' legal framework may also prove unworkable in practice. For example, if a soldier captures a "high value" terrorist believed to have information about imminent attacks on U.S. interests, there may be no time to contact the President (or even an official further up the chain of command) to determine what interrogation tactics may be used. In any event, do we really want Presidents making those kinds of decisions?

Ultimately, a great power defeats its enemies in war not with legal frameworks but with good intelligence and superior power. In the end, it will profit us nothing to wage war according to a strict, inflexible legal framework if the result is another 9/11 that could have been averted.