Torture is back! Press reports of secret memos in the Gonzalez Justice Department have rekindled the debate, which, as usual, continues to miss the point. That point being that in the end, it will be the Central Intelligence Agency that will be hung out to dry for torture allegations, both real or manufactured. Everybody else in the government will walk, or so they think.
Much has been written about the Bush administration and torture, to the point of stultifying repetitiveness. Torture doesn't work, most who know about these things, including myself, say -- and they're right, it doesn't. Torture demeans and irreparably damages the prestige and soft power of the world's oldest democracy, the editorial pages declare -- yep, they're right, it does. The Justice Department's secret memos allegedly supporting the use of tactics the civilized world calls torture are probably illegal, or at least immoral, congressional Democrats whine -- they probably are, but who listens to them? The administration continues to stonewall -- "this government does not torture people" is the message, and everybody stays on message.
The public yawns and the Democrats cower.
But below the noise level of the politics of torture and attacks on a discredited Justice Department, a new and important reality is working its way through the legal communities of the "civilized" world. It is this: the Bush administration, in its effort to immunize itself against future prosecution by changing the definition of war crimes for which U.S. government defendants may be prosecuted, has opened the door for such prosecutions outside the United States. Like a hacker at golf who blasts from fairway sand traps to knee-high rough, the administration is getting farther and farther "out of bounds."
The Military Commissions Act of 2006, railroaded through a rubber stamp Congress in September, 2006, and signed into law by the president in October, in effect, establishes that several categories of what were war crimes in the past, under Common Article 3 of the Geneva Conventions, can no longer be punished under U.S. law. This may have given some comfort to those who felt exposed to prosecution under existing U.S. law, but they should be wary of getting too complacent, particularly if they ever travel beyond the 12-mile limit of America's continental shelf.
The politicians may be marginally protected, as usual. But the men and women of the C.I.A. will be dangerously exposed and will have once again been left holding the bag.
The Defense Department has properly opted out of the torture business -- the military has declared it will operate under the Geneva Conventions, and the discussion ended there. But the CIA, according to press reports, has been exempted from such "quaint" rulings as Common Article 3 by a series of secret memos and judgments promulgated by the Department of Justice under Alberto Gonzales.
Under the current rules, according to press reports, the CIA may use "enhanced interrogation techniques" against detainees in the War on Terror. (This is a term, itself obviously tortured, that sounds only marginally better in the original 1940s German, "Verschärfte Vernehmung".) Reportedly, enhanced interrogation techniques include many measures forbidden under the War Crimes Act of 1996 and Common Article 3.
The administration denies this, but will not say what the enhanced techniques are. Against that opaque backdrop, it does not really matter whether CIA is torturing detainees at this point (or even if it has at any point); most of the member governments of such bodies as the International Court of Justice believe CIA engages in torture and there will be no lack of former detainees of the CIA making claims fueling those suspicions. Whether such claims are real or embellished will not matter.
Here is the crunch for the CIA: as eminent British lawyer Philippe Sands writes in his coming book, The Torture Team, "the simple fact of establishing immunity under the 2006 (Military Commissions) Act opens the door to investigations and possible prosecutions abroad. So long as the U.S. is able to investigate and prosecute grave breaches of Geneva (Conventions, Common Article 3), the courts of other countries would be likely to decline to exercise jurisdiction. With that possibility gone, the prospects for foreign investigation increase considerably, as Senator Pinochet found to his cost in 1999."
There are already more than two dozen CIA officers under indictment by an Italian court for the extraordinary rendition of Osama Mustafa Hassan Nasr (known as Abu Omar). Though the trial has been stayed, pending a ruling on Italian secrecy issues, this is still a very big deal. Just imagine the historical irony of the en masse indictment of 26 U.S. Government employees by a NATO ally!
Regardless of how the Italian court case plays out, it is only the beginning. One can expect a torrent of cases to be filed against the men and women of the CIA in the coming months and years. They'll have to get used to either staying pretty close to home, or taking their ski holidays in North Korea. Stepping off a plane anywhere in Europe will become a little dicey.
The CIA's men and women are putting themselves at enough risk already. They deserve better and we owe them more than this. The sway of feckless leadership at CIA has gone on long enough. It's time that the CIA takes the Defense Department lead and play by the rules again.
Milt Bearden retired from the Central Intelligence Agency in 1994, after thirty years in the CIA's clandestine services.