Torturous Explanations

By Leonard Fein

Published December 16, 2005, issue of December 16, 2005.
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There’s a sometime sense that Condoleezza Rice is, well, different from the others. She’s not as malignant as Dick Cheney nor as arrogant as Donald Rumsfeld, not as mendacious as Alberto Gonzales nor as sinister as Karl Rove. Her patron, the cheerleader-in-chief, gives her room to run and she runs hard; she is a respectable and by-and-large respected secretary of state. So she is in a better position than her colleagues to lecture the Russians on the impropriety of imposing stifling controls on nongovernmental organizations.

Her lecture to that effect was duly reported last week. But her pestering of Vladimir Putin had to compete for headlines with her latest tortured effort to explain away America’s involvement with torture. It is well to ask whether a person so caught up, day after day, in allegedly clarifying American policy on torture is in a position to lecture others about the moral and legal standards to which democratic governments are and ought to be held.

It all began December 5, as Rice was about to depart for Europe, when she addressed in considerable detail our need to “adapt” our “traditional systems of criminal or military justice” to meet the conditions of “the new kind of conflict” that the war on terrorism entails. “The United States,” she said, “does not permit, tolerate or condone torture under any circumstances.”

But what of all the recent reports of secret CIA facilities in undisclosed countries where torture is routinely practiced? What of our transfer, euphemistically referred to as “rendition,” of suspected terrorists to countries that are not so scrupulous as we claim to be in adhering to the Convention Against Torture?”

Ah: “The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture.”

Noticing — who could not? — the giant loophole allowed by such a statement, reporters clamored for clarification. Rice: “The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred persons will not be tortured.”

Please. When we believe? Where appropriate? Such a tortured formulation, so obviously and so carefully chosen, begs for amplification.

Accordingly, en route to Germany, she amplified: “The president made very clear from the beginning that he doesn’t condone torture, he doesn’t intend for Americans to practice torture, and that we’re going to live up to both U.S. law and to our international obligations.”

Those obligations, she said in plain English, arise from the Convention Against Torture — “as interpreted by our Justice Department.” Sensibly, she also discussed at some length the “difficult choices” we face in gathering intelligence, yet again and again emphasized that “the president would never ask American citizens to behave unlawfully.”

But that was plainly inadequate: Ask? American citizens? Too much wiggle room, by far. And even if the CIA itself is not engaged in torture — that, say, it outsources the actual torture and merely supervises it — is that covered by Rice’s denials? Is that legitimate in a country of laws?

Nor does any of Rice’s convoluted language adequately explain just why, if this nation abides by all the relevant laws, it objects, and strenuously, to Senator John McCain’s proposal, adopted by a vote of 91- 9 in the Senate, that torture — including cruel, inhumane or degrading treatment — is expressly forbidden.

While still in Berlin, Rice was pointedly asked whether she agrees “with Vice President Cheney that the CIA should be exempt from Senator McCain’s proposals.” To that, the secretary replied, “Well, I think it is absolutely healthy that in a democratic society we are debating this.” Notice an evasion, anyone?

This being the same government that in August 2002 issued a legal opinion, since disavowed, that any interrogation methods short of those that might cause pain comparable to “organ failure, impairment of bodily function or even death” could be allowed without being considered torture, what “lawful” means hardly can be taken for granted.

And so Rice is caught up in and soiled by the web of intrigue that marks this administration. Of course there is, as she observes, a real dilemma here, described more graphically by Stephen Hadley, who directs the National Security Council: “The president has said that we are going to do whatever we do in accordance with the law. But you see the dilemma. What happens if on September 7, 2001, we had gotten one of the hijackers and, based on information associated with that arrest, believed that within four days there’s going to be a devastating attack on the United States?”

Hadley evidently believes the answer to his question is self-evident: If you need to torture, then torture, the law be damned.

The Israeli Supreme Court, as I understand its ruling of 1999, expressly forbade any form of torture — with the understanding that in the Hadley scenario, where an interrogator genuinely believes there’s a “ticking bomb,” he would do what he felt was required to save lives, and would after the fact plead necessity and most likely either not be indicted or be exonerated by a jury.

Messy, yes — but not quite as tortured as the policy that Rice has yet adequately to explain, let alone persuasively to defend. Accordingly, she faces a rather different dilemma: How be taken seriously, how be regarded as credible, when you willingly make your home where daily deception is the norm and smugness the attitude?

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