Torture Conservatives?

On the morning of Alberto Gonzales' hearing to become the Attorney General of the United States, the editors of The Wall Street Journal urged him to turn away from the "awful job" the administration had been doing to "appease" its critics on the use of coercive methods to interrogate terrorist prisoners that opponents were characterizing as torture. He was urged to go on the offensive to defend the Justice Department's August 2002 memo on acceptable "stress positions" that he had participated in preparing.

These journalistic spokesmen for the right even suggested Gonzales defend the extreme stress position of "water-boarding" that simulates drowning so effectively victims normally break down immediately thereafter, as a technique merely "pushing the boundary of tolerable behavior" rather than being "immoral or unjustified." In an editorial following the hearing, the Journal toned down its defense of these methods by claiming "nobody outside of academia is proposing torture" but it still defended "stress positions such as kneeling for a long time and the like" and did not repudiate water-boarding and the like.

Mr. Gonzales would have none of this. Speaking for President George W. Bush, the nominee was unambiguous and pledged: "Torture and abuse will not be tolerated by this administration."

While saying, "It is appropriate to revisit" the provisions of the Geneva Conventions to assure they are still appropriate and that "preliminary discussion" had been held on them, Gonzales insisted there was no "systematic project or effort' to redefine the Conventions. While also properly refusing to define the outer limits of presidential power in an extreme emergency as "hypothetical," the nominee said he believed the president did and should have adhered to all provisions of the U.S. 1995 anti-torture law and the Geneva Conventions, which were binding American policy and could only be amended by a formal change in law.

The Journal was by no means alone on the right defending so-called "stress positions." Two former Department of Justice lawyers wrote in National Review's edition preceding the hearing that characterizing " 'stress' methods of interrogation such as isolation, exposure to noise and standing up for up to four hours," recognized as appropriate in an August 2002 Department of Justice interpretation by Assistant Attorney General Jay Bybee, as inappropriate was "deliberately defining down the concept of 'torture'."

Again, Gonzales was clear. The August 2002 Bybee memo was misguided and was superceded by the recent formal interpretation of Mr. Bybee's successor Daniel Levin, who was even blunter in saying, "Torture is abhorrent both to American law and values and international norms." He rejected the earlier interpretation's requirement that "severe" pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death" would be required to define torture.

Writing in the Manhattan Institute for Policy Research's "City Journal" (and reprinted on the Wall Street Journal's op-ed page the day of the hearing), a contributing editor claimed: "To succeed in the war on terror, interrogators must be allowed to use carefully controlled stress techniques against unlawful combatants." While reporting that the military did not use extreme stress techniques, she did defend the "final" list (ignoring the initial one) of acceptable stress positions approved for the Department of Defense--specified as large ranges of temperature control, very loud noises, sleep deprivation and saying interrogators are from a country that does use torture. The author defends these because "Stress works, say interrogators."

The Department of Defense, thankfully, did not agree. Some not-yet-known military officer and others courageously complained up the chain of command that the August memo had been interpreted in a Defense Department instruction regarding the treatment of detainees in a manner threatening the security of present and future U.S. military prisoners. When Defense Secretary Donald Rumsfeld learned his department's memo was being questioned internally, he ordered a review that led to a formal change in Defense policy. Mr. Levin later extended similar restrictions to the whole government. He specifically rejected restricting torture to "excruciating and agonizing pain" and defined torture as the "intentional infliction of 'severe pain or suffering, whether physical or mental'" and included threats of pain or death for "any reason." Torture can exist even without severe pain if it involves severe suffering. Even lesser forms of cruel punishment that do not reach torture "are to be deplored and prevented."

Many experts even doubt that torture does work. Reporter Anne Applebaum quotes U.S. Army military intelligence officer, Col. Stewart Herrington, saying torture simply is "not a good way to get information." The French in Algeria are often mentioned as using it successfully but recent research can find no examples where it helped--and they lost the war anyway. Israel is often said to manage it successfully but there is no proof torture works there either-–and a situation where one mistake could determine survival is very different from the U.S. in any event. As Herrignton states the problem, if you torture the 40 percent (at the most) who will not give information under normal interrogation, "they'll just tell you anything to get you to stop," whether it is true or not. Worse, "it endangers our soldiers on the battlefield by encouraging reciprocity" against them.

As Air Force Reserve judge advocate and Republican Sen. Lindsey Graham stated at the hearing, "when you look at ways around the spirit of the law," as did the August 2002 interpretation, "it is very hard to come back." The strength of the U.S. system and the Bush administration in particular is that they did come back. Mistakes are inevitable in government, especially under the stress of a catastrophe such as September 11, 2001. The mettle of a nation is how it reacts when faced with error. It is unrealistic to expect the commander in chief to spend his leadership capital constantly apologizing. It makes him look weak and leadership demands strength. Yet, mistakes must be acknowledged and corrected. That was the invaluable mission performed by Mr. Gonzales.

Fortunately, Assistant Attorney General Levin's interpretation now is the law of the land, putting back into operation what he characterized as "the centuries of Anglo-American law and the longstanding policy of the United States" forbidding torture and restricting interrogation techniques. Can a conservatism that defines itself on the basis of this tradition be less opposed to torture--and stress positions that push the boundaries of torture--than the Bush Administration and still consider itself conservative?

Donald Devine, Editor

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