Torture's Achilles Heel

By Karen J. Greenberg, Tomdispatch.com. Posted August 26, 2005.

Last month, Americans were given a new and persuasive reason for objecting to the use of torture as a tool in administration policy; namely, its potentially harmful impact on any viable counterterrorism strategy that values information as essential in combating Islamic fundamentalist terror. This strategic concern was raised in a set of memos released by the government in its latest "dump" of documents into the public arena.

Since the spring of 2004, the government has been making public previously classified documents nearly weekly, often in response to Freedom of Information Act law suits (though the numbers of newly classified documents are increasing at a rate that more than nullifies any sense of transparency such releases might suggest). Many of these memos have been about torture -- whether to use it; how to use it; and, most of all, how to protect government agents and agencies against prosecution for using it. Among these documents have been memos from the Judge Advocate General's Corps (or JAG), written by military lawyers from the Army, Air Force, Navy, and Marines, and these constitute a welcome oasis of sanity in a desert of compliance with the government's decision to use torture as a weapon in its "war on terror."

First brought to public attention in Senate debate on July 25, 2005, these JAG memos have seen the light thanks to a request from Republican Senator Lindsey Graham. They were written in February 2003 as recommendations to a Pentagon working group on "interrogation policy." Collectively, they express a clear opposition to the use of the sorts of harsh interrogation techniques that White House lawyers had not only recommended but declared legally viable. Indeed, by August of 2002, lawyers for the administration had infamously suggested, as a basis for reducing legal culpability for the mistreatment of detainees, that the definition of torture itself be narrowed to include only ""[p]hysical pain ...equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

The JAG memos, on the other hand, warned that abusive interrogation techniques -- contrary to the advice administration lawyers were generating - might well be found illegal in courts of law: As one put it, "Our domestic courts may well disagree with [the administration's lawyers'] interpretation of the law." The courts, the JAG memos warned, might find that the use of torture, however redefined by the administration, violated not just international law, but domestic criminal law and the laws of the Uniform Code of Military Justice as well.

These memos have earned praise from critics of the Bush administration and its war on terror, who have been pleased to discover strong organizational resistance to administration policy within the military. But the terms of the disagreement have been little explored. It's not just the fact of the dissent that is noteworthy, but its nature; for these documents provide us with something other than the usual notes of protest against torture that critics of the administration are wont to express. The JAG criticism is not so much moral as strategic. What the JAG lawyers suggest -- and it is a position no less significant today than when it was shaped in 2003 -- is that a policy of torture is sure to constitute a fatal flaw in any war against jihadi terror.

Prior to the release of these JAG memos, what opposition to torture we knew about within the administration almost invariably stood upon a concern for rights and legality. Secretary of State Colin Powell, William Taft IV, the Legal Advisor to the Department of State, and others reasoned, without much success, against policies which could lay the groundwork for abusive treatment. They cited the possible illegality of such acts under domestic law; the importance of maintaining the high moral ground as a mark of American national identity; the protection of human rights worldwide; the potentially dangerous repercussions that might come from alienating our allies; and the endangerment of our citizens and our troops in a world in which reciprocity in the decent treatment of prisoners might no longer be honored.

The JAG memos restate these arguments, but they also plunge into new critical territory. In a February 27, 2003 memo summarizing the problems the JAG lawyers had with the Pentagon's working group proposal, for instance, Kevin M. Sandkuhler, Brigadier General for the Marine Corps, wrote the following: "The authorization of aggressive counter-resistance techniques by service members will adversely impact ...Human Intelligence Exploitation and Surrender of Foreign Enemy Forces, and Cooperation and Support of Friendly Nations." Put simply, Sandkuhler was saying that the systematic practice of torture threatened to impede the collection of useful information and so had the potential to deliver a harmful blow to the U.S. war against jihadi terrorism.

Karen J. Greenberg is the Executive Director of the Center on Law and Security at the NYU School of Law and the co-editor of "The Torture Papers: The Road to Abu Ghraib."

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