Torture of detainees? No. 'Coercion'? It depends.
New detainee law gives the White House and the CIA most – but not all – of the authority they wanted for interrogations.
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In his book, Yoo draws a distinction between torture, which is outlawed, and coercive interrogation, which is not.Skip to next paragraph
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The import of the new law is that while torture continues to be unlawful in every instance, coercive interrogation may also sometimes rise to the level of illegality.
Yoo's main point is that in a world where a handful of terrorists can wield weapons capable of destroying an entire city, the commander in chief must have the flexibility to respond effectively to such threats.
Coercive interrogations have yielded actionable intelligence from Al Qaeda leaders and operatives, Yoo says, including alleged 9/11 mastermind Khalid Sheikh Mohammed and suspected 20th hijacker Mohammed Al-Kahtani.
Other analysts say such tactics are not necessary. "In my experience this kind of torture-like behavior on the part of the interrogator is counterproductive and any professional interrogator will tell you this," says Arthur Hulnick, who served as an Air Force intelligence officer and interrogator in South Korea and later worked for 28 years at the CIA.
"This notion that the only way you get information is by putting people in a life-threatening situation violates everything I know about how this stuff is done," says Mr. Hulnick, now a professor of international relations at Boston University. "Patience and careful questions is what does it."
Fred Hitz, a former CIA inspector general, says the White House should embrace the approach taken in the newly authorized US Army Field Manual. It includes a so-called Golden Rule test easily understood by any 18-year-old soldier, he says.
The test: If the proposed interrogation method was used by the enemy against one of your fellow soldiers, would you believe the soldier had been abused?
"That same approach has to be taken for CIA officers," says Mr. Hitz, now a professor at the University of Virginia School of Law. "Agency people don't sign up to do intelligence work so they can engage in abusive interrogations. The notion that there is a cadre of fire-breathers (at the CIA) wanting to be turned loose is just plain wrong," he said in a teleconference with reporters. "It is going to be a long time before a CIA operator steps into this gray area," he added.
Rivkin says it is unrealistic to ban coercive interrogations. He says by his reading the new law authorizes modest use of several controversial interrogation techniques, including modest use of sleep deprivation, temperature extremes, and stress positions.
•Establishes special rules for military-commission trials for Al Qaeda suspects accused of committing war crimes. The rules permit the exclusion of a defendant from his trial if classified evidence is being presented, and the admission of hearsay and coerced statements as evidence.
•Authorizes a three-officer military panel to determine a detainee's status as an enemy combatant eligible for indefinite detention in US custody. This is in lieu of the ability to file a habeas corpus petition challenging the legality of the detention in federal court.
•Creates a retroactive legal defense for US personnel who engaged in harsh interrogation tactics from September 2001 to December 2005. Also narrows the range of activities that might constitute a violation of Common Article 3 of the Geneva Conventions outlawing torture and cruel treatment.
•Expands the definition of an unlawful enemy combatant to provide that anyone who offers "material support" to someone engaged in hostilities against the US can be held indefinitely in military detention, regardless of whether he or she actually engaged in hostilities. Also provides that only noncitizens held as unlawful enemy combatants may be tried by a military commission.