The controversy over interrogation tapes destroyed by the CIA is a farce rich in high-dudgeon hypocrisy. It is the latest act in our square-peg, round-hole experiment in judicializing warfare — in intruding the non-political branch into the quintessentially political realm of national defense.
WAR FOOTING Al-Qaeda’s air raid on 9/11 eclipsed Pearl Harbor in devastation and shock value. It exceeded anything ever accomplished by Nazi Germany or the Soviet Union. It was a domestic military strike, wiping out thousands of American civilians. The enemy, in previous attacks, had already bombed a U.S. naval destroyer and two U.S. embassies.
As it happened, the suicide hijackings also violated several American criminal laws because the jihadist attackers were not privileged combatants — i.e., honorable enemy soldiers who conduct their operations within the laws and customs of war and who are therefore permitted to use lethal force. The civilian penal law, however, was a side issue. This was war, not law enforcement.
As a consequence, the nation assumed its war footing. For political reasons, the revisionist Left has referred to this effort as “the War on Terror of this administration” — to borrow the obnoxious phrase of Judge Anna Diggs Taylor, the Jimmy Carter appointee who tried to invalidate the NSA’s terrorist-surveillance program. But this was never just President Bush’s war. It was — it is — our war. The country’s war. This may seem like ancient history, but in the months after 9/11, we were not in Iraq. We were in the “good” War on Terror — the one Democrats supported, in word and deed, because they damn well knew Americans would tolerate nothing less.
We no longer wanted the Trial on Terror. After eight years of that approach, the mass casualties, the hundreds of billions in wreckage, the smoldering Pentagon, the stunning canyon where twin towers once stretched to the sky, all of it convinced us that a different kind of response was in order. That nation made a political decision to go to war.
This wasn’t just George W. Bush. On September 14, 2001, the House of Representatives approved a sweeping authorization for the use of military force by a vote of 420-1 (Rep. Barbara Lee (D., Calif.) was the lone naysayer). The vote in the Senate that day was 98-0. Six weeks later, the Patriot Act’s overhaul of intelligence tools for hunting down international terrorists was enacted in the upper and lower chambers by lop-sided margins of 98-1 and 357-66. America’s representatives were behind the war because the American people were behind the war. Even by 2004, when passions had cooled somewhat, John Kerry, the Democrats’ presidential nominee, promised Americans he would fight the war smarter than Bush, not that he wouldn’t fight it. Saying he wouldn’t fight it would have resulted in a walloping of McGovernite proportions.
The atmosphere of 2002 was one of forcible action. The American people demanded it. Our representatives in Congress were insistent that we would get it. Their own jobs hung in the balance. It was in that atmosphere that this military response, this war, began to result, as all wars do, in the capture of enemy operatives. ARE YOU SURE YOU’RE BEING TOUGH ENOUGH? Good intelligence is a premium in all wars but it was to be especially crucial in this one. Radical Islam does not have a territory to defend — we can’t bomb it into submission. It does not have a treasury we can seize to starve it out of existence. It is abetted by nation-states, but as a movement it is an illegitimate, non-state actor catalyzed by a supremacist ideology, meaning it is not the kind of enemy with which we could ever sign a treaty. There is no obvious scenario for when and how this war ends. The major asset we can acquire — the only one that will protect American lives — is intelligence: who the terrorists are, where they are hiding, and what they are planning to hit next.
Only by knowing and acting on such information can we hope to degrade radical Islam’s capacity to project the power of a belligerent rather than a criminal gang. A criminal gang, however fierce, can be brought to heel by prosecution. An incorrigible belligerent has to be vanquished, in war. And it is worth remembering, again, that we made the national decision to go to war, the object of which is to defeat the enemy by suppressing its capacity — not to convert the planet to our enlightened way of thinking.
Given the intelligence imperative, the CIA aptly commenced a special interrogation program. Here, I should stress which CIA we are talking about. This was not Langley’s secret-leaking, Plame-loving, analytical side — the one that seeks to control policy and throw presidential elections. This was the operations directorate: intelligence officers stationed in some of the planet’s worst hell-holes who, in courageous anonymity, put their lives on the line, day in and day out, to protect the United States.
The interrogation program was strictly for high-value al-Qaeda detainees, not the hundreds of other prisoners captured in the war, most of whom are low-level foot soldiers. The program was (and, one hopes, still is) aimed at the enemy’s top strategists, the jihadists who actually know about ongoing plots, secret cells, and efforts to use or acquire weapons of mass destruction — i.e., the features that enable radical Islam to project war-scale force.
The program pushed to the margins of the law. Regardless of what the revisionist Left is now saying, the only bright-line limit on the treatment of alien enemy combatants held outside the United States in 2002 was the federal law against torture. The United States did not outlaw cruel, inhuman and degrading treatment when it ratified the international anti-torture treaty in 1994 — it was not until 2005 that such treatment overseas was outlawed, and even then only ambiguously, no matter what Senators John McCain, Patrick Leahy, and others now claim. Congress could easily (and accountably) have made simulated drowning — waterboarding — unlawful. But it didn’t. It wouldn’t have dared done so in 2002; it didn’t do so in 2005 or 2006 despite specifically addressing war crimes; and it hasn’t done so to this day.