The Crossed Pond

On ABC News the other night, John Kiriakou, a now-retired CIA interrogator who “interviewed” Abu Zubaydah, says that he was indeed waterboarded, that Kiriakou thinks that procedure does indeed amount to torture, but under the circumstances, his conscience is clean. Surprisingly, I can respect much of that.

A leader of the CIA team that captured the first major al Qaeda figure, Abu Zubaydah, says subjecting him to waterboarding was torture but necessary.

In the first public comment by any CIA officer involved in handling high-value al Qaeda targets, John Kiriakou, now retired, said the technique broke Zubaydah in less than 35 seconds.

“The next day, he told his interrogator that Allah had visited him in his cell during the night and told him to cooperate,” said Kiriakou in an interview to be broadcast tonight on ABC News’ “World News With Charles Gibson” and “Nightline.”

“From that day on, he answered every question,” Kiriakou said. “The threat information he prov
dided disrupted a number of attacks, maybe dozens of attacks.”

Of course, it’s convenient to take that last bit on face value, but most evidence suggests that Zubaydah just sputtered nonsense that led intelligence agencies on wild goose chases rather than providing actionable intelligence. It turns out that Zubaydah was in fact mentally ill, and new nothing of any value. He was, essentially, a small-time bagman, chosen, probably, because he was dumb and crazy enough to be particularly zealous. The actual picture on him is a pretty far cry from the characterization of Kiriakou (as some kind of nefarious tough-as-nails mastermind), or the massive overinflated importance attached to him internally (mostly by the administration, who desperately wanted to believe he was going to be a key to unlock everything). In any case, Kiriakou, who obviously understood the gravity of what he was doing, would have a pretty vested interest, emotionally, in convincing himself that what he did was right.

We also know, and Kiriakou more or less confirms it, that President Bush was personally involved in the decision. And, that the tapes were destroyed, so somebody somewhere decided that it wasn’t quite as “legal” as the DOJ repeatedly internally asserted (and told to interrogators).

But what I can respect in Kiriakou coming out in this way is that at least he has the balls to come out and defend the use of torture explicitly (it’s telling that for so many years, and even today, the administration has not, instead preferring mind-bogglingly NewSpeak parsing), and he also believes that the national conversation on this method and others is necessary and right.

But even here, there is a critical premise that needs reasserted. From CQ (as one of the more intelligent defenders of the procedure):

Kiriakou also believes that the national dialogue on the technique has been good and necessary. The decision to use this technique should come as part of policy, not as a violation of it. Congress had attached language to the omnibus spending bill outlawing it for the CIA (it already is outlawed for the Department of Defense), but the revelation that Nancy Pelosi and other critics failed to object after being briefed on the use of the waterboard has slowed the push to forbid the procedure.

Bottom line: if we outlaw the procedure, it should not be with the understanding that someone can order its use and that Congress will forgive it later, depending on the circumstances. If those who propose that as a solution believe that certain circumstances warrant its use, then they should write laws that allow it — and keep men like Kiriakou from having to determine whether to follow what amounts to an illegal order. If this Congress outlaws waterboarding, they will have the responsibility for the potential intel loss that it creates, and the damage that loss eventually does.

I agree with much of the gist of that, and respect Morrissey for at least making the rule of law case here, which is a desperately needed facet that has been entirely ignored by the right. But he undercuts that case by missing the boat, and the salient premise that needs to be challenged there, of course, is that waterboarding IS outlawed, by any reasonable definition of it or any reading of the laws of the land. That is also, of course, the de facto recognition of Kiriakou in calling it torture (and why, as a CIA interrogator who knows well the legal connotations of that label, it’s pretty gutsy for him to have come out and made those statements, knowing full well that he’ll be Exhibit A in any case against the government on this matter, and flagrantly liable himself). He didn’t use that phrase accidentally, or without full awareness that in so doing, he places it as an event that was illegal and objectionable according to U.S. and international standards (to which the U.S. is an author and prime signatory).

But what needs to be front and center here is that Kiriakou, Bush, and everybody else involved in these actions weren’t operating in some grey area where they had no way of knowing if what they were doing was patently against the law or not. They were, at best, engaging in acts of uncivil disobedience (as appears to be the case with Kiriakou) or, at worst, were deliberately obfuscating the fact of the flagrant illegality of it (as appears to be the case with Tenet, Cheney et al). To put that latter case in a bit more perspective, these were not people righteously challenging the laws of the land and making the case for those laws to be changed. These were people who KNEW they were acting in violation of the law, but believed it was their right to do so. People, in other words, who internally argued and set policy revolving around the central idea that they were de facto above the law. Which is hardly the fight for the rule of law that Morrissey characterizes this as. It is, in fact, as fundamental a challenge to the foundation of all rule of law thinking as you can get.

And of course adding the not-minor point that generally, when you believe what you’re doing is legal, or should be retroactively declared as legal, you don’t hide, withhold, then destroy the evidence. The people who destroy evidence are, by and large, criminals, interested in erasing the proof of their crimes, which is exactly the case here (I can think of no other reading of the situation). That some key Democrats waffled on holding anyone’s feet to the fire, or if internally the people related to this case wanted to shut their eyes and really really believe that what they were doing ought to be legal, that still doesn’t get past the fact that any JAG in the armed forces could have, in a single consultation, told them with no lack of confidence that yes, Virginia, they were breaking the law.

So I agree with Morrissey when he says “If those who propose that as a solution believe that certain circumstances warrant its use, then they should write laws that allow it”. But the flipside of that, just as central to any notion of rule of law as anything in this conversation, is that BARRING writing laws to allow it, people that VIOLATE the laws disallowing it are criminals. This central fact is glossed over in all these right-wing apologetics on the matter (in the case of the smart ones like Ed, I have to assume deliberately), but is central to the entire debate.

TORTURE, IN THE UNITED STATES OF AMERICA, IS ILLEGAL.

And whether we choose to change that (and I hope to God we don’t), that doesn’t give us a free pass to forget it.