UNCONVENTIONAL WISDOM: Torture and the War on Terror

Wednesday, July 28, 2004

Before September 11, we took it for granted that only nations or states could wage war on the United States. After 9/11 it became obvious that war could also be waged by terrorists operating anonymously and in the shadows. Are the laws of war—the Geneva Conventions, the International Convention on Torture—suited to this new reality of war? Whom may we detain? How may we interrogate those we detain? In the war on terror, do the laws of war permit us to be as tough as we need to be? Peter Robinson speaks with Peter Berkowitz and Jenny Martinez.

Recorded on Wednesday, July 28, 2004

Peter Robinson: Today on Uncommon Knowledge: a tortured debate.

Announcer: Funding for this program is provided by the John M. Olin Foundation.


Peter Robinson: Welcome to Uncommon Knowledge. Our show today: how should we treat the bad guys? Before 9/11, we took it for granted that the only entity capable of waging war on the United States was a nation or state. After 9/11, it was clear that war could also be waged by small groups of anonymous people operating in the shadows. But is the law of war, the Geneva Convention, the International Convention on Torture, suited to this new reality of war? Whom may we detain? How may we interrogate those we detain? To put it briefly, does the law of war permit us to be as tough as we need to be?

Joining us, two guests. Jenny Martinez is a professor of law at Stanford University. Peter Berkowitz is a professor of law at George Mason University and a fellow at the Hoover Institution.

Title: Bad Boys, Bad Boys, Whatcha Gonna Do?

Peter Robinson: State Department Counterterrorism Coordinator, Cofer Black, "There was a before 9/11 and an after 9/11. After 9/11, the gloves came off." Gloves off. Is that a legitimate attitude toward the detention and interrogation of our enemies in the war on terror? Jenny?

Jenny Martinez: I think the important thing on the war on terror is for America to remain true to its ideals. And so while certainly it's different than past conflicts in some ways, the rules are still important.

Peter Robinson: Peter? Gloves off?

Peter Berkowitz: I think that's right. Gloves should be off but gloves need to be off within bounds. The boundaries are our ideals.

Peter Robinson: All right. Legal scholar, John Yoo, writing in the Wall Street Journal about this past spring's Supreme Court rulings on the Bush Administration's treatment of detainees. I'm quoting John Yoo: "Despite the pleas of legal and media elites, the justices did not turn the clock back to September 10th, 2001. The Court agreed that the United States is at war against the al-Qaeda terrorist network and the Taliban militia that supports them." You both agree that the Court was correct in maintaining or presuming that we are at war.

Jenny Martinez: The only thing the Court really said was that we were at war in Afghanistan. And it's hard to deny that. I mean, we had troops on the ground. We were fighting there. I don't think they said much at all about whether the war on terror as an entirety is itself a war in some sense of the word.

Peter Robinson: Well, help me think a little bit about war versus criminal activity. Obvious enough, I suppose when we send troops into Afghanistan that that's a war. But is it an act of war when terrorists fly airplanes into the World Trade Towers? How does that differ from, for example, from blowing up a bank in order to get into the vault? Peter?

Peter Berkowitz: I think it's quite different. When a bank robber blows up a vault or commits armed robbery, it does damage to the individuals, it does damage to the bank but it doesn't threaten either the territorial integrity or the political sovereignty of the country. This is a traditional understanding of what it means to be at war. But terrorists using our airplanes as armed missiles, killing 3,000 innocent civilians, bringing New York City life to a standstill, attacking the Pentagon--these are acts that have the potential actually to bring the country to its knees. So I myself, would regard those activities as clearly acts of war although it's in a very nontraditional sense because until September 11th, 2001, the easy conventional understanding was that only a state could commit an act of war against another state because only the state had the power to bring another state to its knees.

Peter Robinson: So is that settled that in the war on terror--this is a war and we should treat them according to the rules of war?

Jenny Martinez: I think there are different phases to the war on terror. There's certainly September 11th when you have the planes hitting the twin towers, the Pentagon. That looked like war. And when you're in Afghanistan, you have a recognized theater of combat, that also looked like war. But to say that the war on terror is everywhere all the time--so we're sitting here in Palo Alto in the studio--we're at war. There's a war in Chicago. It's very different to extend those battlefield rules to the entire United States and the entire world.

Peter Robinson: But if he FBI picked somebody up in Chicago--picked somebody up someplace and says we suspect this guy of terrorist activity or being part of a terrorist community--can't demonstrate that he actually blew anything up yet. What should be the presumptive way he's treated, as a combatant in a war or as a criminal?

Jenny Martinez: We have a lot of criminal laws to deal with people who haven't actually blown anything up yet. There's conspiracy, there's attempt, there's all kinds of--providing material support to terrorism. In fact, after September 11th, Congress passed a whole raft of new criminal laws and the Justice Department has been using them. There have been a number of criminal prosecutions. So criminal law is still part of the toolbox and one of the problems is trying…

Peter Robinson: Who gets to decide which set of legal tools you want to use in a particular case, whether it's criminal or law of war?

Jenny Martinez: I think ultimately it has to be the courts. And there are certain situations in which the laws of war simply can't be applied. And that's what the U.S. courts have said going back to the Civil War. And I think it's a role for courts.

Peter Berkowitz: Every act of terrorism, I agree, should not be considered an act of war. I prefer that we not speak about the war on terror but call it by its true name. It's a war against the kind of extremism, Islamic extremism, and terrorism is the means that's used here to further this activity. It seems to me that much terrorism that's connected to this war, Islamic extremism whose avowed goal is to destroy the United States. In those cases, these figures are committing acts of war.

Peter Robinson: Let's move onto what we've been doing and what we should be doing with the bad guys we've already captured.

Title: Before Night Falls

Peter Robinson: We go into Afghanistan. We capture several hundred people. They don't fit the criteria laid down in the Geneva Convention. They're not wearing a uniform and so forth. And so the Department of Defense, as far as I can tell is Donald Rumsfeld, he concludes we can put these people--they fall under the category of enemy combatants--we can put them at Guantanamo Bay and the tradition is that you're allowed to hold them for the duration. At the same time that they're putting people away for the duration of the conflict, they're also telling us that this is a conflict that can go on for our lifetime, our children's lifetime, and so the question is "A"--two questions. One is "A", strictly speaking, and I mean being very strict about it, was the action of the Department of Defense, sticking these guys in Guantanamo Bay for the duration, legal according to international law? And "B", was it wise? Did it conform with an underlying American sense of justice? Jenny?

Jenny Martinez: I think it was neither legal nor wise. And I think that the reaction of the world community to what we did was far more harmful to U.S. interests than any benefits we gained from, for example, not having the hearings that the Geneva Conventions say we were supposed to have to determine whether the people were entitled to POW status or not. The cost of having those hearings which the U.S. has had thousands of in the first Gulf War, in Vietnam, which we have established military procedures for, the cost of doing that would have been trivial to the United States.

Peter Robinson: Legal, strictly speaking?

Peter Berkowitz: Strictly speaking, I'm going to have to say it was a close call but on the question of wisdom, I do agree. I must say I think the administration shot itself in the foot. It would not have been a high cost.

Peter Robinson: They shot themselves in the foot. They were doing something that's kind of patently foolish. But Rumsfeld is not a stupid man. We know that. Put the best construction on it that you can. Why do you suppose they did what they did?

Peter Berkowitz: The best construction is that they wanted to, as emphatically as they could, establish the principle that these are unlawful combatants, that they are…

Peter Robinson: And they're sending a signal to terrorists around the world that we can throw you in the clink…

Peter Berkowitz: That you don't get the benefits that attach to being a soldier in a regular army. Again I think with minimal procedural safeguards, they could have sent that message as well but that's a guess.

Jenny Martinez: I also think it was really important to draw a distinction between the Taliban fighters and the al-Qaeda fighters in Afghanistan. The Taliban was the army of the national government that is a party to the Geneva Conventions. And the sort of blanket ruling that no one who is in the Taliban is entitled to POW status really runs contrary to both the letter and the spirit of these conventions…

Peter Robinson: Now without going into these cases in great detail but is it understood within the legal community that now things have to change, that the administration now does have to give people hearings? You can't just put somebody in the clink and keep them there for the duration. They have to establish procedures that bring to bear some semblance of due process and hearings. Is that right?

Jenny Martinez: They're still fighting it tooth and nail.

Peter Robinson: They are?

Jenny Martinez: Mr. al-Mari who's one of the other enemy combatants who was arrested in the United States…

Peter Robinson: He's in Guantanamo as well? No separate place.

Jenny Martinez: No, he's in a brig in South Carolina, a man named Mr. al-Mari who is a lawful immigrant to the United States and was first placed in criminal proceedings and then was deemed an enemy combatant and has been held in the naval brig. His lawyers can't get in to see him. They've been filing papers with the Court. The Supreme Court's decisions, I think, make pretty clear that the detainees, particularly those in the United States, are entitled to access to counsel. And the government won't let his lawyers in.

Peter Robinson: Now to the heart of this debate. What is torture and where should we draw the line?

Title: No Pain, No Gain?

Peter Robinson: Let me quote you another memorandum prepared in 2002 by the Justice Department in this case for the White House Counsel. I quote, "You have asked for our office's views regarding standards of conduct under the Convention Against Torture. We conclude that acts must be of an extreme nature to rise to the level of torture. We further conclude that certain acts may be cruel, inhuman or degrading but still not produce pain and suffering of the requisite intensity to fall within the proscription against torture." In other words, you can be pretty rough with people without violating the Convention Against Torture to which the United States is, of course, a signatory. Legally speaking, is that conclusion correct?

Peter Berkowitz: Look, this is a very narrow or strict reading that the lawyers who wrote that was very careful about the definition. He quotes the legal definition that is intentional infliction of severe harm or pain. All of the debate that's going to revolve around what constitutes severe harm or pain--intentional infliction of severe harm or pain. Seems to me reasonable people can disagree about whether the Office of Legal Counsel has gone too far there but what I would emphasize is, even if they've gone too far, there is this effort to be law abiding. There is an effort to respect the legal definition there.

Peter Robinson: And also an effort in a war on terror in which you've got an enemy that resides in the shadows by his own design and is willing to strike against thousands of innocents at once to carve out some legal space in which the United States can reserve as a tool roughing people up.

Jenny Martinez: You know, I think it's…

Peter Robinson: Is that not reasonable to attempt to do it? If you're charged with sorting out the legal questions?

Jenny Martinez: I don't think it's any attempt to comply with the law. I think it's an attempt to distort and manipulate the law to justify actions. And they're actions that the government won't even justify in public. I'd like to see President Bush come on TV and say we've decided we're going to engage in cruel, inhumane and degrading treatment of our prisoners. I mean, that's a policy statement that you can't imagine a U.S. government official making affirmatively. And so trying to draw distinctions between the sort of severe punishment that might actually meet the definition of torture and cruel, inhumane and degrading treatment which we will deem as something we want to do, I just find appalling.

Peter Robinson: Now let's apply the legal expertise of our guests to a couple of hypothetical cases.

Title: Bright Lights, Brig City

Peter Robinson: Case One. The United States captures a terrorist and we have good reason to believe, presume, it's stipulated here that he has wide knowledge of a terrorist organization, identities, locations and so forth. If he'll tell us what he knows, he'll enable us to round up ten, twenty, thirty additional terrorists. Some bright young spark on the FBI or CIA or the military branch involved suggests binding him in a hood, keeping him isolated, naked and cold and awake for a period of days and then interrogating him for hours at a time under blindingly bright lights. Now here's what we know about those techniques. They're widely used and in particular, it's a matter of public record that they're used in Israel. And we know that they quite often work and that they cause no lasting harm. Are we justified in using those techniques? Peter?

Peter Berkowitz: The Israelis make a distinction between the use of torture which is strictly prohibited as it is in this country, as the President has affirmed, as the Pentagon has affirmed--strictly prohibited. And the use of physical coercion which doesn't reach the point of the legal definition of torture…

Peter Robinson: That's exactly the distinction that that Justice Department memo is reaching for.

Peter Berkowitz: The calculation is always this. How severe is the threat? How likely is it that the use of greater and greater forms of physical coercion which don't reach what everybody agrees upon as legally prohibited torture…

Peter Robinson: In Israel, you're talking about because they've actually got their regime sorted out in Israel. They've got the lines drawn.

Peter Berkowitz: That's right.

Peter Robinson: This you may do and this you may not.

Peter Berkowitz: So in other words, you balance the goods that are likely to come through the use of physical coercion versus its closeness to this forbidden thing, torture. And so it seems to me necessary and proper in fighting this war against Islamic extremism when a small number of people can do massive damage that occasionally we're going to be forced to use techniques of interrogation that involve physical coercion and…

Peter Robinson: And in this case--this hypothetical--we're stipulating that they do no lasting harm to the suspect.

Peter Berkowitz: That's right. In other words, you're stipulating that they don't meet the legal definition of torture.

Peter Robinson: Jenny?

Jenny Martinez: First of all, I think it's wrong to say that Israel sort of has no holds barred on physical coercion techniques. The Israeli Supreme Court has come in and has outlawed a number of stress and duress techniques.

Peter Robinson: That's precisely the point. That is precisely the point. They have drawn lines very closely.

Jenny Martinez: But also a number of stress and duress techniques that fall short of torture, that are cruel, inhumane or degrading treatment are also illegal in Israel. It's not just torture. It's also things…

Peter Robinson: Fine. But they have very explicitly carved out a space where interrogators are allowed to use coercion.

Jenny Martinez: And I don't believe that the tactics you've described there would, in fact, be lawful in Israel now.

Peter Robinson: Well, this all comes from--I'll just give you the source. I'll give the audience the source. It comes from a long article in the Atlantic Monthly by Mark Bowden. All right.

Jenny Martinez: But I think under some of the Israeli Supreme Court decisions, that would be questionable whether those would qualify or not.

Peter Robinson: You grant however, that in the reality that Israel faces, it is perfectly reasonable and indeed perhaps commendable that they actually faced up to it and have drawn lines, that the legal and political process has addressed the question of what you may and may not use and have come down on the side that physical coercion is, in some circumstances, justified.

Jenny Martinez: I think the story of Israel…

Peter Robinson: And you'd like to see us do the same.

Jenny Martinez: I think the story of--no, I'm not sure that I agree with your characterization of what has happened in Israel. I think the story is a little more nuanced than that which is that over time, they went through a period where they allowed more physical coercion than they do now. And they experimented with that and discovered that it was bad for their political system. It was bad for their country. And, over time, they've begun restricting more and more the techniques that are used there.

Peter Robinson: Okay. From the same article by Mark Bowden. He put a hypothetical case very similar to the one I just put to you to two representatives of Amnesty International and got this reply. This is quoting the representative of Amnesty. "We are opposed to torture under any and all circumstances and even threatening torture is inflicting mental pain. So we would be against it." Do you wish to subscribe to that view?

Jenny Martinez: I would agree with that. The U.S. has signed on…

Peter Robinson: You get the guy in jail. You know that the information he has could help you round up other terrorists and you won't touch him?

Jenny Martinez: The experience of other countries like Israel and the United Kingdom has been once you start down that slippery slope, it ends up being bad for the nation to head in that direction. So U.S. has signed…

Peter Robinson: That has been the experience of Israel?

Jenny Martinez: The U.S. has signed onto treaties saying that we're not going to engage in torture even in wartime, even in cases of national emergency.

Peter Robinson: That has been the experience in Israel? They've started down a slippery slope?

Peter Berkowitz: First of all, you cannot draw the line at the infliction of mental pain--any kind of mental pain as the Amnesty spokesmen say because imprisoning a person is mental pain, depriving a person of his or her freedom is mental pain. That's why the definition of torture says intentional infliction of severe physical or mental pain. We have to draw distinctions. It's painful to be locked up. It's painful not to be with your buddies fighting against the enemy. So it seems to me that's to begin with an absurd standard.

Peter Robinson: Onto the second hypothetical.

Title: Dirty Bomb, Dirty Harry?

Peter Robinson: Again we capture a terrorist. This time though we have reason to believe that the terrorist has knowledge of a plan to detonate a dirty bomb in name the city. For some reason, we've used Chicago as an example. So let's talk about Chicago. It'll kill thousands of people and it'll make ten square blocks uninhabitable for a century. Query, in this case you still are unwilling to use physical coercion to get the terrorist to talk?

Jenny Martinez: First of all, everyone loves the ticking time bomb scenario. And the number of actual situations…

Peter Robinson: The ticking time bomb scen--all right go right ahead.

Jenny Martinez: …in the history of the world, the number of situations in which you've actually had the guy who knows where the ticking time bomb is, I don't know of any real world situations. It happens on TV all the time but in the real world--and so to construct an entire legal system…

Peter Robinson: That happens to be a huge over-construction. We know that these people have cells in the country--in this country that the ticking time bomb if I had said to you that the bomb is about to explode in 90 minutes, all right. But we know that dirty bombs have been considered by these people. This is not implausible at all and the question to you is should the government of the United States reserve itself the right should such an extreme case arise of using physical coercion?

Jenny Martinez: There's a big question of line drawing there. Are you going to say that well in that situation torture would be okay? We can just string them up and attach electrodes to their genitals and that's going to be worth it. I think that it's a matter of where you draw the lines in terms of…

Peter Robinson: That's what I'm asking you…

Jenny Martinez: …how much coercion would be there.

Peter Robinson: That's exactly what I'm asking you.

Jenny Martinez: And there's certainly a lot of law in that. And I think if you look at the Israeli Supreme Court, what they've said is they're not going to say that any kind of inhuman treatment in advance ex ante, they're not going to say beforehand that that's going to be okay. If it happens and it, you know, there may be a criminal prosecution. The individual who did it may be able to raise a defense of look, I knew there was a bomb. I knew I had to stop it. But they're not going to say beforehand that it's okay.

Peter Berkowitz: On the one hand, I want to agree with Jenny's hesitation. Famously extreme or hard cases make bad law.

Peter Robinson: But wonderful television…

Peter Berkowitz: But wonderful television. They make bad law but then I sort of want to agree with you that the ticking time bomb scenario is not nearly the extreme or hard case that it once was, not after September 11th, not after however many tons of non-weapons grade uranium has gone lost from the former Soviet Union. These are scenarios to our great misfortune which alas are no longer really extreme. So we do have to grapple with that.

Peter Robinson: Here's the other…

Jenny Martinez: We should be so lucky to catch the person that actually has the knowledge at the right time.

Peter Berkowitz: Well yes we should. Exactly. We should be so lucky…

Peter Robinson: Last topic, how should our governing institutions resolve all these questions about the legal status of physical coercion?

Title: There Oughta Be a Law

Peter Robinson: For highly skilled lawyers, what is your position right now? We're in the war on terror and on the one hand, you can say ah well, we're going to poo-poo. We're going to make sure that the government doesn't know what it can and can't do. The other would be let's address this situation and let's think the matter through and sort the law out and establish lines that can be crossed and lines that can't be crossed. Right? I mean, ought there not to be some impulse on the part of lawyers who think these things through to be helpful. Peter?

Peter Berkowitz: We're doing it in a way. In a way, the system is working. Look, the Bush Administration in my view went to an excess with Hamdi, with Padilla in Guantanamo Bay. But that's what I would expect an executive branch to do in a time of war, especially facing a new kind of enemy. The Court--a couple years as the process worked its way out--is pulling the executive branch back. In my view in the Guantanamo Bay case, the Court went too far but that's what I expect the Court to be especially vigilant about civil liberties. Lawyers are now going to fight this out in the courts. We're going to have a battle in the courts, those representing the government, those representing Hamdi and other detainees. And this is how the system is designed. The thing is happening before our eyes.

Peter Robinson: You're content with the pace of it, that things will continue to be…

Peter Berkowitz: Content is a little too strong…

Peter Robinson: …fleshed out…

Peter Berkowitz: …but it's happening.

Peter Robinson: Go ahead, Jenny.

Jenny Martinez: The thing I think is missing from this whole story that's really troubling is Congress. Where is Congress in all of this? You know, you have the Court stepping in to make up procedures for these detainees. When the Executive has said we're going to hold them forever with no process at all. In our constitutional system, if we have a new problem of terrorism where the old laws of war don't work and the criminal laws don't always work exactly well, why not have some legislation?

Peter Robinson: Has any legislation even been drafted? Are things moving through--presumably the two of you would have been called to testify.

Jenny Martinez: Any legislation about detainees has gone exactly nowhere in Congress. And there has really been a total abdication of its constitutional responsibility I think to step in and have the democratic debate and try to set some policies in here.

Peter Robinson: Should the Executive be proposing new legislation?

Jenny Martinez: I think the Executive certainly could have proposed new legislation about Guantanamo, about the enemy combatants it's holding here. And if it hadn't, there's no rule that says that Congress can't start legislation on its own.

Peter Robinson: So it would have been perfectly reasonable for the President or for the Attorney General--maybe it would have been more fitting for him--to say look, we're in a new situation. We need new law. This is the debate we must enter into. And here's our proposal. Now let's begin the debate. That would have been perfectly reasonable?

Peter Berkowitz: It seems to me. I'm in agreement here. Yes.

Peter Robinson: All right. Last question. Let me quote this fine piece by Mark Bowden once again. This is Bowden's own view now quoting from him. "Why not lift the fig leaf covering the use of coercion? Why not eschew hypocrisy and amend bans on torture to allow interrogators to coerce information from would-be terrorists?" Question: a decade from now, will the United States indeed have lifted the fig leaf from the use of coercion? That is to say, will we have moved toward a position in which the Executive knows pretty clearly what it may and may not do even in extreme cases? Jenny, what do you think?

Jenny Martinez: I don't think we'll have allowed torture. I think that the story of human progress is away from that sort of thing and it's important at some point…

Peter Robinson: Will it ever have been reserved in an explicit way to the Executive to use physical coercion, cold showers, keeping people wide awake, that sort of thing?

Jenny Martinez: I think there are things that are short of cruel, inhumane and degrading treatment that might involve mild physical pressure that we might find legal. But what we're defending here is American values, and American values include respect for individual human beings and individual human dignity. And I think if we lose that, we've lost this war.

Peter Berkowitz: The Israeli model is instructive here. Israel swears to the same ideals but they face a threat of terrorist infiltration on a daily basis, many, many attempts. And so they've had to reckon in a way that is more open than we have up to this point with the methods that are appropriate, consistent with their own ideals, to get the information that's necessary to protect your people from catastrophic terrorism.

Peter Robinson: A decade from now, what will be the situation here?

Peter Berkowitz: Peter, it depends upon events. If we become subject to either daily and routine terror as they do in Israel or there are more massive catastrophic attacks, then not withstanding the fact that I think Jenny's right about the 20th century, with all its horrors, has witnessed in the West, the growth of the humanitarian ethic, the growth of the humanitarian ethic inhibits us but the humanitarian ethic could be checked if, God forbid, terrorism becomes either a daily threat or we become subject again and again to catastrophic terrorism.

Peter Robinson: So the more successful we are in preventing an attack in this country, the less likely that the law will actually be fleshed out in detail?

Peter Berkowitz: I think that's fair to say actually.

Jenny Martinez: I think that's right.

Peter Robinson: All right. Jenny Martinez, Peter Berkowitz, thank you very much.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge, thanks for joining us.