So the debate battle has resurfaced again on the issue over the use of Enhanced Interrogation against terrorists. Underneath all of the intrigue of past years, the heart of the debate continues across multi-government bodies, as well as outside of government, at odds about whether using enhanced interrogations against terrorist constitutes detainees constitutes torture, and whether it’s an effective method to obtain information critical intelligence, primarily to stop future attacks.
The argument against Enhanced Interrogation. Some will argue that a carve-out for Enhanced Interrogations will allow the CIA to continue enhanced interrogation techniques and an admission that even liberals are prepared to accept enhanced interrogations under extreme circumstances – similar to Israel’s current law. Likewise the U.S. Supreme Court never officially banned torture and certainly not enhanced interrogations and declined to take a clear stance when it had a chance in 2004, but the US has prosecuted and condemned torture at times in the past.
Ultimately, the loophole continues to be “what if” — will the government use an enhanced interrogation program if it helps stop another catastrophic attack(s) in this post-9/11 environment and era? Especially if used against such arch-terrorists groups like al-Qaeda and ISIS. Would it result, in the CIA from trying to defend the U.S., because it is unauthorized? Can terrorists be stopped using other intelligence gathering techniques, if so what is it, is it effective?
The main argument by critics against using Enhanced Interrogation is that it is torture, and that using it against terrorists is inhumane because they are human beings too. Secondly, they also say that because it is in fact torture, it causes or will cause terrorists to lie and make up plots that do not exist, knowing they cannot be disproved or determined false, just to end the torture.
Finally, they say that torture by the U.S. leads to torture against U.S. personnel by others over time, and more importantly, undermines the huge intangible asset of the U.S. being a moral authority. Perhaps, just like Guantanamo provoked terrorist to carry-out attacks against the during the first World Trade Center attack in 1993, or the U.S. Embassy attacks in Africa, the USS Cole in Yemen or on September 11th.
At this point, although briefly, let me step aside to offer an important point of reference and clarification with regard to Enhanced Interrogation and the term “torture” as it applies to President Donald Trump’s personal position. In his effort to quantify his policy, today he sought the advice of General Mattis. In the coming days he will seek further advice as well from his named CIA Director Mike Pompeo (who is awaiting confirmation by the Senate is approved) again on Enhanced Interrogation and Enhanced Interrogation Techniques.
First, I need to correct the President’s reference, again to the term and use of the term “torture.” We the United States, as a nation – “do not conduct torture,” period. So we need to end the reference of torture, and further, to any reference, or referring to the term, or comparing it to Enhanced Interrogation. Note: Any reference is essentially apples and oranges, and is deliberately, persistently and intentionally put forth by the political Left, liberal pundits for political propaganda, and by those politically opposed to Enhanced Interrogation and its associated techniques. They know who they are … and so do we.
Second, it is not General Mattis’ place to or to be referred to as a subject matter expert on Enhanced interrogation. He should not be as Secretary of Defense required to provide his professional or personal opinion or to provide advice. That responsibility resides with the CIA and will be under the review and advisement of Director Pompeo.
Third, General Mattis’ actions on Enhanced Interrogation with regard to a recommendation to the President will be that solely as the Secretary of Defense which (he) is a principle member of the National Security Council (NSC). His recommendation should not be based on that of a former General Officer and former member of the U.S. Armed Forces. The reason being is that the U.S. military does not conduct Enhanced Interrogation, nor is it authorized to in accordance with the Uniformed Code of Military Justice (UCMJ), the Laws of Armed Conflict, and the Geneva Conventions) — as it pertains to interrogation of captured enemy combatants, unlawful combatants (terrorists, insurgents, guerrilla, etc.,), or unprivileged belligerents. (See further explanation below.)
Fourth, General Mattis’ responsibilities, as a former General Officer and as the Secretary of Defense fall under of the purview of the U.S. Army Field Manual on Interrogations (FM 34-52). The U.S. military is authorized to conduct interrogations ONLY in accordance with the Field Manual FM 34-52, and only that manual. Note: FM 34-52, is a 177-page manual describing to military interrogators how to conduct effective interrogations while conforming with U.S. and international law. It is essentially based primarily on the types, uses, and techniques to be employed on captured uniformed combatants, enemy nations at war with the U.S. For unlawful combatants, it restricts the U.S. military from only using those same techniques authorized in U.S. Army Field Manual on Interrogations to extract information from terrorists and insurgents and other belligerents. I will note here that the techniques used in FM 34-52 are less harsh and effect than those used by the CIA’s Enhanced Interrogation Techniques. Reason being, such techniques are more in-line with U.S. tradition and the Geneva Convention on the treatment of prisoners, and toward military members of the armed forces under flagged nations to be treated with dignity and respect.
Fifth, in the case of interrogations of Unlawful Combatants, those responsibilities must be transferred and relegated to the CIA. The CIA is responsible for making the case for the use of Enhanced Interrogation to the President through the NSC. Congress, via the Senate and House Permanent Select Committees on Intelligence will not doubt debate and vote on its recommendations to the President who can make the final call/decision, most likely via an Intelligence Finding, aka a Presidential Intelligence Finding, justifying the need.
Let me offer, one other imperative note with regard to Enhanced Interrogation. For the most part, most of the U.S. aircrews, special operators and select intelligence officers dealing in highly compartmented special mission intelligence, undergo Enhanced Interrogations as a requirement and or as part of the SERE (Survival, Evasion, Resistance and Escape) training. The training provides the awareness and actual experience of such forms of Enhanced Interrogations, undergoing such ordeals in attempt to provide the ability to resist and counter the physical and psychological effects and the detrimental conditions dealing with; water-boarding, sleep deprivation and other traumatic forms of interrogation by a uniformed enemy, terrorist groups or other unlawful or belligerent groups. Again, further explanation on the types of combatants is listed in the Index of the Definition of Types of Combatants at the end of this article.
Those that have implemented Enhanced Interrogation say that in real-time, culling intelligence to respond to the attacks and preventing new ones is equivalent to jigsaw puzzle with millions of pieces. And since it will be unclear how to solve the puzzle in the necessary and timely manner, you reach the point where any and all means needed to be used.
Israel’s High Court of Justice banned torture in 1999, but created a single “ticking bomb” exception: Using Harsh Interrogation Techniques on terrorists to get information of an imminent attack.
That decision was a massive shift from Israel’s prior position that using torture against terrorists is acceptable, since the ends – especially against morally indefensible terrorists – justify the means – saving civilians from imminent death.
In that vein, others might also argue that the U.S.’ position worldwide is not just undermined by not using an enhanced interrogation program, but is also undermined when it is viewed as being too weak either in dealing with terror or in confronting international aggression (such as in Syria or Ukraine). President Trump is a realist and as it appears he is merely asking and looking to keep all options open, in an effort to swing the pendulum back to an across the board position of strength – economically, diplomatically, militarily and an effective intelligence capability with all capabilities at it ready.
With the debate again resurfacing over the both the past and future use of Enhanced Interrogations, the real answer on where the debate is in the U.S. will probably only be provided the next time there is a ticking bomb, or after the next major attack. It should be assured that President Trump does not want to be on the wrong side of such a catastrophe, either politically, philosophically, legally, and morally, and more than anything, he does not want Americans to again be the victims of any time of terrorist attack of any size and magnitude. Nor do I.
Colonel Jim Waurishuk is a retired USAF Colonel, serving nearly 30-years as a career senior intelligence and political-military affairs officer with expertise in strategic intelligence, international strategic studies and policy, and asymmetric warfare. He served combat and combat-support tours in Grenada, Panama, Bosnia, Iraq and Afghanistan, as well as on numerous special operations and intelligence contingencies in Central America, Eastern Europe, the Middle East, and Africa. He has undergone and endured Enhance Interrogation Techniques during Survival, Evasion, Resistance, and Escape training as part of his service as a special mission Intelligence Officer. He served as a special mission intelligence officer assigned to Joint Special Operations units and the CIA’s Asymmetric Warfare Task Force, as Deputy Director for Intelligence for U.S. Central Command (USCENTCOM) during the peak years of the wars in Afghanistan, Iraq, and the War on Terrorism. He is a former White House National Security Council staffer and former Distinguished Senior Fellow with the Atlantic Council, Washington, D.C.
Index of Types of Combatants
In most cases combatants are military personnel in an armed conflict and are lawful targets unless considered “out of combat” meaning wounded, sick or shipwrecked and no longer resisting, or captured. A LAWFUL combatant is entitled to carry out attacks on enemy military personnel and equipment. They can be lawfully attacked by enemy military personnel. They bear no criminal responsibility for killing or injuring enemy military personnel or civilians taking an active part in hostilities, or for causing damage or destruction to property, provided they have acted in compliance with the law of war. They can be tried for violations of the law of war. They can only be punished for violating the law of war after a fair trial. If captured, they must be treated humanely and are entitled to prisoner of war status.
Combatants: Includes but is not strictly limited to: regular armed forces nation in the conflict; militia, volunteer corps, and organized resistance movements belonging to a country in the conflict under responsible command, wearing a defined, fixed and distinctive uniform or marking visible from a distance, they must openly carry arms and act in accordance with the laws of war.
Unlawful Combatants, Illegal Combatant or Unprivileged Combatant/ Belligerent: is a person who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action, subject of course to international treaties on justice and human rights Terrorist, terrorist groups, insurgents, guerrillas, independent militias and all and any groups not under the flag of a nation. Further, Unprivileged Belligerents can include but is not strictly limited to: spies, saboteurs, or civilians participating in combat or hostilities or similarly in unauthorized attacks. They are not entitled to prisoner of war status, and may be prosecuted under the domestic law of the captor.
Prohibitions, Unlawful, and Unauthorized Acts:
• No flying the black flag, in other words declaring no quarter be given.
• No killing or injuring surrendered enemy personnel.
• No making a person take part in hostilities against their own country.
• No intentional attacks on civilians (civilians are protected unless they join the hostilities, and then only while engaged in hostilities.)
• No intentional attacks on non-combatants (non-combatants include, military medical personnel, chaplains, and any out of combat – including prisoners of war and the wounded, sick and shipwrecked.
• No direct attack upon civilians (such as reporters) accompanying combatants in the field during armed conflict, unless they join the hostilities and then only while engaged in hostilities,
• By the way engaged in hostilities or taking a direct part in hostilities hasn’t really been defined by anyone, if anyone is tagging along with an armed force they can pretty much expect it’s an at your own risk situation.