Michael Hayden: Talk of torture and black sites is political theater, not substance

As someone who has actually authorized enhanced interrogation techniques (EITs), I’d like to take a shot at clarifying some of the confusion surrounding last week’s kerfuffle over EITs or what President Trump labels “torture”.

Interestingly, President Obama also called this “torture.” Mr. Trump uses the label to argue in favor. Mr. Obama used it to argue against. Both miss the mark.

The recent episode started with a draft executive order that seemed to call for a return to black sites and EITs. On its face the document felt more like political theater than a serious attempt to change operational procedures, more like checking the box on a campaign promise than responding to any requests from the operational community. In short, it was political push rather than operational pull.

{mosads}Indeed, new CIA Director Mike Pompeo was reportedly unaware of the draft and, I suspect, thought that he had put this issue behind him in his confirmation hearing. When asked about EITs, he simply said that the agency would follow the law. And the law right now is that no agency of the United States government can use any techniques not contained in the Army Field Manual.

In his written responses to Congress, Pompeo said that if his professionals believed that current limits were preventing the United States from acquiring life-saving intelligence, he would tell the president and Congress and suggest that new guidance and law could be in order. After all, no one can reasonably argue that the current Army Field Manual exhausts the universe of all legal interrogation techniques; it is, in fact, more conservative than its predecessor that had served us for decades.

Pompeo told Congress he would ‘absolutely not’ comply if asked to restart torture program. https://t.co/hATzD3rV0d pic.twitter.com/wj1cey79Q3

— Laura Rozen (@lrozen) January 25, 2017

Before the agency ever gets to this question, though, the United States will have to resume capturing enemy combatants and especially senior Al Qaeda and ISIS leadership. Although there have been exceptions, the Obama administration largely confined capture operations to those it intended to prosecute. Questioning was ultimately controlled by American criminal law rather than the laws of armed conflict which would have permitted interrogations without the protections appropriate to the criminal justice system.

So the first step should be to exercise our rights as a belligerent, capture people, interrogate them and then measure whether or not current procedures are adequate.

The draft EO’s suggestion that Guantanamo should stay open and be available for future detainees reflects a reality that President Trump and his two predecessors agree on: we are in a state of armed conflict with Al Qaeda, ISIS and like organizations. That means we can lawfully kill our enemies. It should also mean we can detain and interrogate them.

But where? And how?

There are more than legal issues involved here. Agency officers, acting in good faith, with the support of the executive branch and congressional leadership, opened black sites and conducted interrogations using EITs for several years. Their reward, beyond a safer America, was investigations, grand juries, legal expenses and condemnation by some members of Congress. Given the sense of betrayal that permeates the agency, it’s hard for me to imagine any director asking his officers to go back to that place.

And that situation is made even worse by the president’s poor choice of words, like “we need to fight fire with fire” and “torture works”.

Torture is like murder and rape. It’s always wrong. The debate is not about that; it’s about what constitutes torture. At what point does increased coercion, threat, pressure, discomfort and even pain cross a legal line. The president’s words ignore that important and difficult debate and equate what CIA officers have done in the past to an objective felony.

The president’s language is also devoid of operational context. CIA black sites and enhanced interrogations were an extreme response to extreme conditions in the aftermath of 9-11. There were genuine concerns about more mass casualty attacks, weapons of mass destruction and even threats to the continuity of government.

Mattis and Pompeo “blindsided” by a draft executive order that wld allow CIA to restart torture program, by @abwrig https://t.co/tiIE3aeRqF

— Paul Volpe (@pvolpe) January 25, 2017

Despite the apocalyptic picture of ISIS painted during the recent campaign, no reasonable person could believe that to be an accurate picture of today’s world … or that our intelligence on today’s threat is as incomplete as it was in 2002-2003.

And even then black site detentions and enhanced interrogations were limited and targeted. A little more than a hundred terrorists were held by CIA, only a third endured any EITs and only three were waterboarded, the last one fourteen years ago. And it was President Bush — not President Obama — who took the technique off the table.

I suspect that he did that because the level of threat and our understanding of it had changed and because we told him that our most effective technique was actually our growing knowledge of al Qaeda, which was far more than our detainees expected, that we used to keep them off balance. And when we had to get tougher, we told the president that it was sleep deprivation that proved most effective.

But waterboarding was the red meat language on the campaign trail, so here we are heatedly debating it again.

That’s one more clue that this is theater and politics rather than serious policy and operational discussion. It is about the appearance of being tougher, without the hard legal, ethical and political slog that getting tougher would really require.

Not to mention the serious operational judgement as to whether or not it is even needed.