Eaton !1 "Matthew Eaton "Mr. Elwood "Senior Project "24 April 2015 " The Debate Over Interrogation" Post 9/11 What would you do to save the lives of those you love? How far would you go to fight for justice for those who have died? In the wake of the events of September 11th, just days after terrorists had claimed the lives of 2,958 innocent Americans, George W. Bush answered these questions with resounding conviction. In his address to congress on September 20th, the President firmly stated, "Tonight, we are a country awakened to danger and called to defend freedom. Our grief has turned to anger and anger to resolution. Whether we bring our enemies to justice or bring justice to our enemies, justice will be done" (Text: President Bush Addresses the Nation). He went on to say, "We will direct every resource at our command -- every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence, and every necessary weapon of war -- to the destruction and to the defeat of the global terror network" (Text: President Bush Addresses the Nation). Bush was met with resounding praise and support. Following Bush's strong stance against terrorism his national approval rating soared to the highest rating ever for any president at 90 percent (Presidential Approval Ratings -- George W. Bush). Americans wanted justice, and rightfully so. When George Bush introduced the Enhanced Interrogation Program as a way to satiate this longing for justice, the response was again approval. Porter Goss, former House intelligence chairman and director of Central Eaton !2 Intelligence from 2004 to 2006, confirms this by stating that, "Among those being briefed, there was a pretty full understanding of what the CIA was doing, and the reaction in the room was not just approval, but encouragement" (Murdock). According to Jose Rodriguez, the CIA's then- director of clandestine services, congressional leaders from both the Republican and Democratic parties were briefed on the Program at least 40 times between 2002 and 2009 (Murdock). Even Dianne Feinstein, the orchestrator of a recent report condemning U.S. interrogation tactics following 9/11, said in May 2002 in regards to defeating al Qaeda that, "We have to do some things that historically we have not wanted to do to protect ourselves" (Murdock). Given the apparent support of justice and Enhanced Interrogation directly following 9/11, what could have prompted Feinstein and others to vehemently oppose the program today? The critics of the Enhanced Interrogation Program have seemingly forgotten the context of the policies that were put in place. They have forgotten the hundreds of people leaping from the World Trade Center on September 11th to avoid being burned alive. They have forgotten the loved ones of 1,114 people killed at the World Trade Center who never received remains or anything else from those they mourn. They have forgotten those for whom we pursued justice. The Enhanced Interrogation Program put in place following 9/11 was necessary to ensure the safety of the American people in the face of immediate danger. It complied with National and International law, it was effective in extracting vital information, and it operated within the confines of morality. Most important, implementing the program carried out George Bush's promise to pursue justice and it paid respect to all of those who lost their lives on September 11, 2001. Eaton !3 In order to properly analyze the decision to implement harsher interrogation techniques following 9/11, the first order of business is to determine whether the program put in place followed the letter of the law nationally and internationally. The best way to do this is to address the arguments of those questioning the program's legality. Before beginning, it is necessary to understand exactly what the Enhanced Interrogation Program was. The program was an interrogation program that expanded the interrogation techniques available to use on prisoners. It was implemented after 9/11 as a means of quickly and effectively extracting information in order to prevent subsequent attacks on America. The new techniques allowed, according to an official U.S. Justice Department memo, were the "abdominal slap" where the interrogator would slap the detainees abdominals with the back of his hand, the "attention grasp" where the interrogator would grab the detainee by the collar and pull him closer, "cramped confinement", "dietary manipulation", "the facial hold" where the interrogator would hold the detainee's head between his or her hands so it can't move , "the facial slap/insult slap", "nudity", "stress positions" , "sleep deprivation", "wall standing", "walling" where detainees where thrown against walls, "water boarding", and "water dousing" (Justice Department Memos on Interrogation Techniques). Keep these techniques in mind when the term Enhanced Interrogation is used. These techniques will be explored in greater depth later on in this paper, especially waterboarding. A common argument critics of the program use is that the EIP violated the Geneva Conventions. The Geneva Conventions are "a series of treaties on the treatment of civilians, prisoners of war (POWs) and soldiers who are otherwise rendered hors de combat, or incapable of fighting" (Legal Information Institute). The primary point of concern is whether or not Eaton !4 members of terrorists groups such as Al-Qaida qualify as POWs. POWs are given the greatest protections among all combatants by the Geneva Conventions. Specifically, prisoners of war "must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity" (The Geneva Conventions of 12 August 1949). Of course, this makes it clear that if terrorists are in fact POWs, the use of Enhanced Interrogation would certainly fall under the category of at least intimidation, rendering it illegal. However, there are a few discrepancies that disqualify terrorists from being considered prisoners of war. John Woo, deputy assistant attorney general in the Office of Legal Counsel of the Justice Department from 2001 to 2003 brings these issues to light when he states: The Justice Department's Office of Legal Counsel - where I worked at the time - determined that the Geneva Conventions legally do not apply to the war on terrorism because Al-Qaida is not a nation-state and has not signed the treaties. Al-Qaida members also do not qualify as legal combatants because they hide among peaceful populations and launch surprise attacks on civilians, violating the fundamental principle that war is waged only against combatants (Yoo, Commentary). In this case, Yoo’s rationale is very persuasive and clearly shows that Al Qaeda members do not receive POW status due to the fact that they belong to no state that has signed the treaty, and they violate the laws of war. However, it is also important to consider the Taliban, another faction in the Middle East that counted among its members those subjected to Enhanced Interrogation techniques. Many argue that the Taliban did in fact qualify as prisoners of war because the Taliban operated as its Eaton !5 own government. However, this is also incorrect. The Taliban "did not meet the conventions' requirements that lawful combatants operate under responsible command, wear distinctive insignia, and obey the laws of war" (Yoo, Commentary). Given this analysis of both Al-Qaida and the Taliban terrorist factions, it is clear that members of these organizations did not qualify as prisoners of war because they did not meet the requirements for POW status laid out in the Geneva Conventions. However, this still leaves some questions unanswered. Chiefly, don't unlawful combatants who are not considered prisoners of war still receive some provisions under the Geneva Conventions? Yes, they do. The Geneva Conventions lay out 4 basic rights that are granted to any prisoner during a time of conflict. The document prohibits, Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; Taking of hostages; Outrages upon personal dignity, in particular, humiliating and degrading treatment; The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples (The Geneva Conventions of 12 August 1949). These rights are granted to members of Al-Qaida and the Taliban even though they are not considered POWs and are deemed unlawful combatants. However, the interrogation policies put in place did not violate any of the aforementioned rights. To illustrate this fact it is important to understand the role that Congress has played in these affairs. In 1984, the Senate approved the U.N. Convention Against Torture. As part of this process, Congress conducted an investigation of sorts, in hopes of providing a working definition of torture as well as unpacking some of the vague statements made in the Geneva Conventions. Eaton !6 First, Congress tried to make sense of phrases in the Geneva Conventions such as "humiliating and degrading treatment." They eventually came to a conclusion. According to John Yoo, "The Senate also made clear that it believed the treaty's requirement that nations undertake to prevent 'cruel, inhuman or degrading treatment or punishment' was too vague. The Senate declared its understanding that the United States would follow only the Constitution's prohibition of cruel and unusual punishment" (Yoo, Commentary). Clearly, Congress was unable to make sense of some of the imprecise language used in the Geneva Conventions. However, sticking to the U.S. Constitution's prohibition of cruel and unusual punishment still leaves room for interpretation, especially when considering that the Constitution was written to apply to common criminals on U.S. soil, not international war criminals. It seems that it is still too difficult to use the term "cruel and unusual punishment" as a means of determining if certain interrogation techniques violated legal code; it is simply too vague.