The Foreign Service Journal, September 2007

interrogation methods, such as water- boarding, beating, hooding, causing physical pain, inducing hypothermia or heat injury, or depriving the detainee of necessary food, water or medical care. This past July, however, the administration adopted new rules for the CIA that fail to discontinue its practice of “disappearing” detainees. The rules purport to prohibit torture and cruel, inhuman or degrading treatment, but their purpose is to per- mit some coercive interrogation tech- niques beyond those authorized by the Army Field Manual, the details of which remain secret. Given the lack of any independent oversight of the treatment of “disappeared” detainees, the potential for abuse remains high. A Radical Approach to Detention The resort to torture and other coercive interrogation has led to additional transgressions. The desire to inter- rogate suspects without regard to the consequences for later criminal prosecution motivated the administration to adopt dangerous theories for detention without trial. It has long been accepted that a combatant captured on a battlefield can be held without charge or trial until the end of the armed conflict. But the administration expanded that concept radically. In its view, because there is a “global war on terrorism,” the entire world is a battlefield, meaning that anyone can be picked up anywhere, labeled an “enemy combatant” without any judicial oversight, and held without charge or trial until the end of the “war against terrorism,” which may never come. At best, detainees are brought before a “combatant status review tribunal,” where they have no legal representation and military personnel review secret evidence to which the suspects have no access. Moreover, the government can overcome adverse rulings by simply insisting on a do-over, again and again, until it secures the “enemy combatant” classification it seeks. This radical approach blows an enormous hole in the most basic due-process rights. It means that fundamental criminal justice principles can be dispensed with upon the mere say-so of an administration official, with no indepen- dent oversight or legal recourse. And then, to ensure that there is no judicial scrutiny, the administration convinced Congress to abolish the writ of habeas corpus for most of these cases. Still, there have been times when, following coercive interroga- tion, the administration has wanted to pursue prosecutions. However, because any respectable court would suppress any evidence secured by coercion (known as “fruit of the poi- sonous tree”), the administration created a brand-new criminal jus- tice system — the military commis- sions — the main purpose of which is to admit evidence obtained coercively. The only requirements to do so are that the coercion occurred before the December 2005 Detainee Treat- ment Act and that a judge find the evidence so obtained “reliable.” As established, the military commissions allow the government to classify — and thus protect from dis- closure — the sources and methods by which evidence is obtained, making it difficult, if not impossible, for the defense to challenge the reliability of evidence. Moreover, they allow evidence from interrogations to be presented through hearsay (by a supervisor, for example, rather than the interrogator), thus frustrating cross-exam- ination as to precisely how the evidence was obtained. A Faulty Premise But what if the entire premise of this approach to fighting terrorism — this single-minded focus on forcing information from a suspect under interrogation — is mis- conceived? To begin with, it is widely understood that, to stop torture, people will say whatever they think the interrogator wants, whether true or not. A case in point is Ibn al-Sheikh al-Libi’s assertion under torture that Saddam Hussein maintained pre-invasion ties with al- Qaida to provide chemical and biological warfare train- ing. Al-Libi later retracted the claim, but the administra- tion used it to help justify invading Iraq — one of this nation’s worst intelligence failures ever. And we will never know how many innocent people were detained and, in turn, subjected to further harsh methods because interrogators were beguiled by the false sureties of coer- cion. (Experienced interrogators say that it’s much easi- er to distinguish truth from falsehood by using tradition- al psychological tools rather than coercion.) However, people under torture will occasionally blurt F O C U S 28 F O R E I G N S E R V I C E J O U R N A L / S E P T E M B E R 2 0 0 7 Pres. Bush routinely reassures us that the United States does not use torture, but those pronouncements are of limited value.