The Gotcha Crowd

The ACLU's tortured logic on Gitmo
Bush critics won't accept that detainee abuse is the exception, not the rule.
By David B. Rivkin Jr. and Lee A. Casey, DAVID B. RIVKIN JR. and LEE A. CASEY are partners in a Washington law firm and served in the Justice Department under presidents Reagan and George H.W. Bush.

THE "GOTCHA" crowd has fallen on its face again.

In an effort to show that on the Bush administration's evil watch the U.S. military has been systematically mistreating prisoners in Iraq and Afghanistan with tacit approval or even outright encouragement from its civilian superiors, the American Civil Liberties Union has been demanding the release of dozens of internal military investigative reports. But the two reports on U.S. detainee policy just released in response to an ACLU lawsuit paint a picture quite the opposite of what the ACLU expected.

Though heavily redacted to remove operational details, the reports (by Brig. Gens. Richard Formica and Charles Jacoby) show a Pentagon open to criticism and change, and determined to guarantee detainees the humane treatment promised by President Bush when the war on terror began.

Genuine instances of abuse are noted, but these are very much the exception and not the rule. The reports indicate that many allegations of abuse simply are unsubstantiated — or that the "victim's" story changes once carefully examined. The most serious criticism is that the administration's detainee policies were not adequately communicated down the chain of command, resulting in confusion on the ground about what treatment was permissible. In addition, there was a lack of training on detainee handling. These points have been corrected.

Predictably, the ACLU has cried "whitewash." But what we are seeing is the refusal by administration critics to see anything other than the "torture narrative" they have constructed.

That "narrative" goes like this: Bush and his war Cabinet opened the door to detainee abuse, first by refusing to accord captured Al Qaeda and Taliban members Geneva Convention rights, and second, by permitting the use of aggressive interrogation techniques. Therefore, says the human rights crowd, Bush and other senior officials are morally — and some say legally — responsible for all of the abuses that have taken place since Sept. 11, 2001. Although this story has become holy writ in liberal circles, it is legally preposterous and logically flawed.

As a matter of law, guilt for war crimes can be imposed up the chain of command only when superiors have ordered the offending conduct or have failed to take appropriate disciplinary measures once they become aware that abusive conduct is taking place. But as these reports demonstrate, allegations of wrongdoing by U.S. forces have been thoroughly investigated and punished when called for. There simply is no rule of "strict liability" that would support the punishment of either military or civilian superior officers or officials without evidence that they ordered or condoned abuses.

The narrative is also flawed because Bush has from the beginning made clear that all individuals captured in the war on terror must be treated humanely. This is the case regardless of their legal status or where they were captured. To the extent that abuses have taken place, there is no reason to believe that granting the detainees prisoner-of-war status would have made a difference. The abuse of inmates at Abu Ghraib occurred because the prison was dysfunctional, not because the inmates were denied classification as POWs.

The same is true with respect to interrogation methods — clearly the most controversial aspect of the administration's detainee policy. None of the methods authorized by administration officials over time — including standing for long periods, dietary manipulation and sleep interruption — are inherently torture or inhumane treatment. All could, if taken to a sufficient extreme, cross the line. The only way to guarantee that the line is never crossed would be to eschew any method of interrogation that could, in the wrong hands, be taken too far.

However, the only way to protect civilians against a terrorist attack is to obtain intelligence about the enemy's capabilities and plans, so that U.S. forces can act first. Although many experts believe that noncoercive interrogation methods do work (and that harsher methods do not), these experts tend to be vague when it comes to timelines — and it's the timing that matters. This is why U.S. officials turned to stressful interrogation methods in the first place.

To avoid future excesses, the Pentagon has considered scores of recommendations, and most of them have been implemented. All of this compares favorably with actions taken in past conflicts. Americans can justly take pride in their fighting men and women and in the Pentagon's civilian leadership. If the ACLU was hoping to prove otherwise, it failed.

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The ACLU's point of view

ACLU Hosts "Road to Guantánamo" Screening and Discussion with Filmmaker

The American Civil Liberties Union tonight will host an advance screening of Michael Winterbottom's critically acclaimed "Road to Guantánamo" at the IFC Center in downtown Manhattan. The screening will be followed by a panel discussion with the film's director, ACLU Executive Director, human rights experts and three innocent men who were wrongly detained at Guantánamo.

"American values are about justice and democracy, not keeping people in detention camps for years without any charges against them, or any legal process for determining their future," said ACLU Executive Director Anthony D. Romero. "The injustices so powerfully portrayed in 'The Road to Guantánamo' help put a human face to the lawlessness and abuse of power that are rampant in our detention centers. We hope this film will stir the American public to call for an end to the torture and abuse of detainees and restore faith in America's commitment to human rights."

"The Road to Guantánamo" tells the story of three British citizens who were held for more than two years without charges at the Guantánamo detention center. The three men, Rhuhel Ahmed, 22, Asif Iqbal, 22, and Shafiq Rasul, 26, set off from Tipton, England on a journey to Pakistan for Iqbal's wedding shortly after September 11, 2001. They were captured by the Northern Alliance during a stop in Afghanistan and turned over to American forces. Part documentary, part dramatization, "The Road to Guantánamo" chronicles the abuse and mistreatment the men experienced while in U.S. custody. The men, known as the "Tipton Three," were eventually released with no formal charges ever made against them at any time during their ordeal.

The ACLU is screening the film at 7:00 p.m. tonight for an invited audience of leaders in politics, law, academia, media and entertainment. The screening will be followed by a panel discussion and Q&A on the film and the issues of torture and detention it addresses with director Michael Winterbottom, ACLU Executive Director Anthony D. Romero, Steven Watt of the ACLU, Gitanjali Gutierrez of the Center for Constitutional Rights and the "Tipton Three," who will appear via live interactive video.

The post-screening panel is presented through IFC Center's iQ&A program, a series of discussions that brings international filmmakers and New York audiences together through the Internet and Apple iChat AV videoconferencing software. Roadside Attractions will release the film in select U.S. cities on June 23 and roll it out nationally over the summer.

The ACLU screening comes as the Supreme Court is poised to rule in Hamdan v. Rumsfeld, which challenges the legality of military commissions established by President Bush to try detainees. The commissions have been challenged as inconsistent with the Geneva Conventions and unauthorized by Congress. The ACLU filed a legal brief with the Court arguing that the commission rules do not guarantee an independent trial court, do not provide for impartial appellate review and do not prohibit the use of coerced testimony despite extensive evidence that coercive interrogation techniques have been used at Guantánamo Bay and elsewhere.

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The government needs to stop playing footsy with these people (the ACLU) and put them back in their place.