Almost 60 House liberals, along with prominent lawyers, journalists, and retired officials and military officers, are lobbing an inflammatory charge--"war crimes"--toward a large number of the Bush administration's most senior current and former officials and lawyers. These critics accuse them of approving torture and other illegal interrogation methods.
We are likely to hear a growing clamor for appointment of a special prosecutor, presumably by the next administration. And human-rights activists are already suggesting that their friends abroad should snatch and prosecute any former members of what they call the Bush "torture team" who dare visit Europe.
These critics are right to denounce waterboarding and some other interrogation methods that were approved at the administration's highest levels as abusive, deeply damaging to the nation's traditions and international standing, arguably torture, and profoundly unwise. Critics also make a strong case that under the Supreme Court's broad interpretation of the Geneva Conventions two years ago in Hamdan v. Rumsfeld, the harsher methods violated international law.
But the critics are deeply misguided to call for criminal investigations of people who did their best to protect the country in dire times. The process would ruin lives and tear the country apart. And there is no evidence that any high-level official or lawyer acted with criminal intent.
Among those calling explicitly or implicitly for criminal investigations are 56 House Democrats; retired Maj. Gen. Anthony Taguba, who headed the Army's investigation into the Abu Ghraib torture scandal; liberal groups including Human Rights Watch, Amnesty International, and the ACLU; human-rights lawyers including Scott Horton of New York and Philippe Sands of London; and the New York Times editorial page. Retired Col. Lawrence Wilkerson, who was chief of staff to then-Secretary of State Colin Powell, has raised the possibility of prosecuting current and former administration lawyers "in a foreign court, or in an international court."
Is Wilkerson aware that his friend Powell is also among the targets of those hurling accusations of war crimes? So are Vice President Cheney; David Addington, Cheney's powerful legal counsel; Condoleezza Rice, Powell's successor; former Defense Secretary Donald Rumsfeld; former CIA Director George Tenet; and former Attorney General John Ashcroft. With the approbation of Bush, they all discussed in detail and approved specific interrogation methods, including simulated drowning ("waterboarding"), according to an April 9 ABC News report.
The most immediate target appears to be former Pentagon General Counsel William J. (Jim) Haynes II, whom Sands indicts at length in a recent book, Torture Team, and whom Senate Armed Services Committee Chairman Carl Levin, D-Mich., grilled with palpable hostility at a June 17 hearing.
Why single out Haynes? Perhaps in part because targeting Bush, Cheney, or Rumsfeld at this point might seem too radical. Perhaps in part because the top officials would (and Haynes might not) have a solid defense of good-faith reliance on authoritative Justice Department advice that the methods they approved were legal. And perhaps in part because a detailed paper trail shows that Haynes--along with Rumsfeld--approved a list of 15 coercive methods for use against an identified detainee and other "uncooperative" prisoners at Guantanamo.
(Disclosure: At Haynes's invitation, I joined a group of journalists and others in a one-day tour of the Guantanamo Bay prison facility last summer, at Pentagon expense. I also met him several times for lunch at his Pentagon office at his invitation, usually in the wake of columns assailing administration policies on Guantanamo. He has always struck me as thoughtful, patriotic, and extraordinarily interested in dialogue with critics.)
Haynes has another distinction that his attackers ignore or play down: He is the only former official whose paper trail also shows that he blocked a request to use waterboarding and two other harsh methods that administration lawyers had advised were legal and that the CIA had already employed.
In the same November 27, 2002, memo to Rumsfeld that recommended approval of 15 of the 18 methods proposed by officers at Guantanamo, Haynes also wrote that the three other methods--waterboarding, threats of severe pain or imminent death, and exposure to cold weather or water--"might be legally available" but were not warranted "as a matter of policy ... at this time," because "our armed forces are trained to a standard of interrogation that reflects a tradition of restraint."
Haynes wrote that memo under excruciatingly difficult circumstances. In the wake of deadly Qaeda bombings in Bali, Pakistan, and Tunisia, and amid urgent intelligence warnings of a possible attack even more catastrophic than 9/11, the administration was desperate for clues.
Meanwhile, the military had learned that a Guantanamo detainee named Mohammed al-Kahtani had probably been the "20th hijacker," slated to help four others seize United Flight 93, which ended up crashing in rural Pennsylvania on 9/11. Kahtani had flown from London to Orlando in August 2001 to meet Mohamed Atta, who was waiting at the airport. But an alert immigration agent turned Kahtani back. He ended up being captured in Afghanistan three months later.
Might Kahtani have information that could save lives? After months of gentle questioning, he was mocking his interrogators with obvious lies. So officers at Guantanamo sent their list of 18 coercive methods up the chain of command. The attacks on Haynes center on some of the 15 that he and Rumsfeld approved as legal, with the concurrence of Gen. Richard Myers, then chairman of the Joint Chiefs, and then-Undersecretary of Defense for Policy Douglas Feith:
Isolation for up to 30 days; "use of 20-hour interrogations"; "removal of clothing"; forced grooming and shaving of beards; depriving detainees of light and sound; hooding them (without restricting breathing); withholding hot rations; "grabbing, poking in the chest with the finger, and light pushing"; using "individual phobias (such as fear of dogs) to induce stress"; and "the use of stress positions (like standing) for a maximum of four hours."
Human-rights activists view some of these methods as torture. But as a legal matter, Haynes's advice was reasonable. None of the approved methods comes close to violating the 1994 U.S. law that makes torture a crime. That law defines torture quite narrowly, as the intentional infliction of "severe physical or mental pain or suffering." The law further specifies that mental suffering qualifies as "severe" only if it involves "the prolonged mental harm" caused by use of mind-altering substances or the threat of severe physical suffering or imminent death.
Some of the Pentagon-approved methods do appear to violate the 1949 Geneva Conventions' ban on "humiliating or degrading treatment." And as of 2002, the War Crimes Act of 1996 provided criminal penalties for violations of that Geneva provision.
But until the unprecedented June 2006 Hamdan decision, administration officials reasonably believed--as did a federal Appeals Court and four of the Supreme Court's nine justices--that the Geneva Conventions were not intended to protect stateless terrorists such as Al Qaeda. The president had so determined, based on a plausible (if debatable) Justice Department reading of the treaties' language and history. That determination was binding on all executive branch officials. In Hamdan, however, a bare majority of five justices held that Geneva did protect Al Qaeda.
It would be a grave injustice to prosecute any official who had relied before Hamdan on the executive branch interpretation of Geneva. And in the Military Commissions Act of October 2006, Congress effectively barred any such prosecutions.
Critics such as Levin claim that pressure for harsh interrogations originated from high-level political appointees including Haynes, rather than from Guantanamo. The evidence suggests some of both. But the important question is not which people took the lead in pushing coercive methods. It is whether they acted with criminal intent. The answer is no.
Haynes's attackers also fault him for disregarding the concerns of some senior military lawyers about the methods he approved; for failing to set limits on simultaneous use of several harsh methods for long periods of time; for failing to prevent Kahtani's interrogators from tormenting him to extremes by overdoing the approved methods--with 18-to-20-hour interrogations almost daily for seven weeks, for example--and for using unauthorized methods such as repeatedly pouring water over his head. More broadly (and more debatably), critics accuse Haynes, Rumsfeld, and others of allowing a culture of prisoner abuse to infect the military in Afghanistan and Iraq as well as at Guantanamo in late 2002 and 2003--while giving them no credit for later adopting a ban on coercive methods.
It's fair game to accuse these people of tragic failures of judgment and leadership. But such failures do not make them war criminals.
Legalities aside, we should all have some empathy for those who had to make the hard decisions about interrogation methods in the dark aftermath of 9/11, and who had to weigh what might be the cost in American lives of failing to learn the secrets of the man whose apparent mission had been to help crash United Flight 93 into the Capitol.
This article appears in the June 28, 2008 edition of National Journal Magazine Contents.