How we got hoodwinked into tolerating abusive interrogations.

The law, lawyers, and the court.
Feb. 21 2008 6:54 PM

The Harm Initiative

How we got hoodwinked into tolerating abusive interrogations.

Detainees at Guantanamo Bay
Detainees at Guantanamo Bay

A few years ago I wrote about the connection between the torture photos taken at Abu Ghraib and the congressional debate over detainee treatment rules. I argued that the leaked photos, along with memos from the Justice Department's Office of Legal Counsel that redefined torture in appalling new ways, were not in fact a public relations blow to the Bush administration, but a sort of foot in the door for looser torture standards—a way to begin desensitizing the American people to the kinds of abuse that had been going on in secret. Two years after the images surfaced, Congress enacted a law essentially permitting the acts depicted. And just as those images paved the way to our broader torture policy, the CIA torture tapes now stand to do the same thing for water-boarding in particular.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

An investigation is currently underway to determine who authorized the destruction of those CIA interrogation tapes. But as Attorney General Michael Mukasey announced this month, there will be no investigation into the water-boarding depicted in the tapes, because it's not illegal, or it wasn't at the time of the interrogations. Our views on water-boarding seem to be on the same trajectory as our views on sexual humiliation and stress positions—it looked sort of awful at first, but after a few months it seemed more like a fraternity prank. That's the road we're headed down with water-boarding. We've gone from banning it to trivializing it to justifying it. We are becoming inured to torture at approximately the same rate that it's becoming legal. How convenient.

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Last week, a team of faculty and students from Seton Hall Law School—the folks who've worked tirelessly for years to document the government's best evidence  (PDF) against the Guantanamo prisoners—released a new report suggesting that the government has recorded all of the interrogations at Guantanamo. Using documents prepared by the government and obtained through Freedom of Information Act requests, the team established that all of the 24,000 interrogations conducted at the camp since 2002 were taped. This jibes with reports from the detainees themselves, who came forward to dispute CIA Director Michael Hayden's claim last winter that the videotaping had been halted in 2002.

It also makes perfect sense. If the government was making tapes to protect interrogators in the event of future legal action, there was no reason to stop. Hayden's claim last December that officials "determined that its documentary reporting was full and exacting, removing any need for tapes" defies logic. No matter how good reporting is, video would have been better. That's why the Army Field Manual for Human Intelligence Collection states a preference for videotaping interrogations: "[V]ideo recording is possibly the most accurate method of recording a questioning session since it records not only the voices but also can be examined for details of body language and source and collector interaction."

What has changed several times since 9/11 was the secret legal line on torture. And with the withdrawal of one torture memo and its replacement with another, tapes made to prove the innocence of interrogators morphed into evidence of their guilt. The tapes are a problem because the secret legal line did not yet match up with the official line or with the public consensus. But that may be changing

According to the Seton Hall report (PDF), many of these interrogations were clearly abusive. One government document reports that tapes would reflect detainee treatment so violent as to "shake the camera in the interrogation room" and "cause severe internal injury." Another report depicts an interrogator "positioning herself between a detainee and the camera in order to block her actions from view."

It's not clear anymore that the Bush administration has a uniform definition of torture. The new view seems to be that torture is what the president says it is, at the moment he must decide whether to torture. But if Americans could see the tapes of water-boarding and abusive interrogations while they still have the ability to be horrified, they may feel differently. The Seton Hall report quotes a former senior CIA official saying: "[I]t's a qualitatively different thing—seeing it versus reading about it." That qualitative difference seems to have a brief shelf life.

That's why last Thursday's congressional testimony by Steven Bradbury—head of the Justice Department's Office of Legal Counsel—was so chilling. Bradbury finally came out and said that according to the administration's view, water-boarding as it's practiced today is "legal" because it's subject to controls and brief in duration. As Bradbury sees it, water-boarding is not torture if "it doesn't involve severe physical pain and it doesn't last very long." Marty Lederman was quick to point out that since nobody can endure being water-boarded for much longer than 14 seconds, its very effectiveness now precludes it from being torture under this definition. That standard is absurd on its face, but one can almost imagine the day when it seems to make sense.

Now President Bush is promising to veto anti-torture legislation that Congress just passed. John McCain—who has surfed the public opinion waves on torture more deftly than anyone—says he supports the president. A few more months of government mincing and parsing on the subject will leave us confused at best and more apathetic at worst. If there really are thousands of hours of videotaped interrogations at Guantanamo, we should be clamoring to see them now, while they might still be able to horrify us. John Yoo and Steven Bradbury think that an interrogation method is torture only if it produces irrevocable damage. But long after the torture tapes are forgotten, what may be irrevocably damaged is our capacity for outrage.

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