To Prosecute or Not To Prosecute

Most of you have by now heard at least cursory details about alleged torture of detainees held at Guantanamo Bay and other CIA "Black Sites" (detention facilities run by the CIA whose locations are unknown). The Red Cross released a report indicating their belief that the detainees had indeed been tortured, as defined by The Geneva Conventions. The Geneva Conventions "consist of four treaties formulated in Geneva, Switzerland, that set the standards for international law for humanitarian concerns. These four treaties are the basis for humanitarian law across the world." It's not necessarily a compelling read, but I urge you to at least familiarize yourself with it.

Most recently, President Obama released previously confidential CIA memos regarding the authorization and basis under which "questionable" interrogation techniques could be employed as a means to get information from senior Al Qaeda operatives, specifically Abu Zubaydah and Kahlid Shaykh Muhammad. Following are some of the "Interrogation Techniques" that were discussed and, ultimately, utilized;

1. Attention Grasp - Grasping the individual with both hands, one hand on each side of the collar opening in a quick, controlled motion. In the same motion as the grasp, the individual is drawn toward the interrogator.

2. Walling - The detainee wears a thick collar, or rolled towel, which the interrogator uses to throw him against a "flexible wall." This "false wall" is meant to be constructed in such a way that impact creates a loud sound. The Red Cross report indicates that detainees were actually "walled" against concrete walls.

3. Facial Hold - The facial hold is used to hold the head immobile. One open palm is placed on either side of the individual's face. The fingertips are kept well away from the individual's eyes.

4. Facial Slap (Insult Slap) - The interrogator slaps the individual's face with fingers slightly spread. ... The purpose of the facial slap is to induce shock, surprise, and/or humiliation.

5. Cramped Confinement - Involves the placement of the individual in a confined space, the dimensions of which restrict the individual’s movement. The confined space is usually dark.

6. Wall Standing - Used to induce muscle fatigue. The individual stands about four to five feet from a wall. ... His arms are stretched out in front of him, with his fingers resting on the wall.

7. Stress Positions - These positions are not designed to produce the pain associated with contortions or twisting of the body. ... They are designed to produce the physical discomfort associated with muscle fatigue.

8. Sleep Deprivation - Generally, a detainee undergoing this technique is shackled in a standing position with his hands in front of his body, which prevents him from falling asleep but also allows him to move around within a two- to three-foot diameter.

9. Confinement With Insects - This one uses the Cramped Confinement technique and introduces a foreign element. Zubaydah was apparently phobic of insects, so he was told they were placing "stinging" insects in the confined space, but allegedly placed caterpillars instead.

10. Waterboarding - The detainee is bound securely to an inclined bench, which is approximately four feet by seven feet. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As the water is applied, the cloth is lowered over the nose and mouth. This effort plus the cloth produces the perception of ‘suffocation and incipient panic,’ i.e., the perception of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a height of 12 to 24 inches. ... The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated.

The details of these techniques were taken from the CIA memos regarding the "increased pressure phase" of interrogation. These memos indicate that "Zubaydah was waterboarded 83 times in August 2002 and Mohammed was waterboarded 183 times in March 2003, the month he was captured. Additionally, a May 30, 2005 memo says waterboarding was conducted "with far greater frequency" and with larger quantities of water than authorized." 83 times in 31 days means 2.68 times a day, and 183 times in 31 days equals an amazing 5.91 times A DAY. This raises the question, how many times do you have to be waterboarded before it is effective? I haven't seen that in the guidelines.

It is pretty clear at this point that these events took place, not just with these two individuals, but it is suspected that "enhanced interrogation" techniques were used on as many as 33 detainees. The question now has shifted to what to do about those who authorized this, who ordered it, and even those who carried it out. Despite the appalling realization that, by torturing prisoners of war, we became what we are fighting, the answer is just not that simple.

A violation of the Geneva Conventions is equal to a War Crime. When we think of war crimes, the most common reference point are the Nuremberg Trials involving the Nazi regime after World War II. These trials lasted over 4 years at the time, but the impact of the decisions and the contoversy went on for years. Prosecution of American officials for War Crimes would likely stretch out over the better part of a decade with today's slowed justice system. It would send a strong message to our allies and our enemies that we do not take War Crimes lightly, regardless of who is accused. It would also be a major distraction during a time when our country does not need additional major distractions. Republicans would see it as a personal attack on their party, and would certainly begin looking for ways to prosecute prominent Democrats for actions in the past. Democrats would find it a just opportunity to further pile on Republicans and their "moral high ground". It's easy to see how this can be a lose lose scenario.

Not prosecuting war criminals can easily be viewed as condoning the behavior, or giving preferential treatment due to the political damage or for those who have influence. It could have the effect of galvanizing in our enemies' minds the view of us as "the devil" or "the true terrorists". It also sends a message to people in our government that they are "above the law". President Obama has released this information, in part, to "pull back the veil" on these issues, so the public can no longer be deceived by what has gone on in the past. If we know the names, the odds of them getting back into power and having the opportunity to repeat these crimes is eliminated, right?

As with most of these issues, the truth, or in this case, the right answer, lies somewhere in the middle. The Rule Of Law calls for accountability when a law is broken, but it does not dictate how that accountability has to be carried out. I believe these individuals should be banned from ever holding any position in public office at any level that allows them to even have the slightest influence on policy. I believe they should be made to answer for their action before a congressional committee, to come clean on the crimes committed. This has the effect of ending any possible politcal career as well as forever tarnishing their legacy. I would also stipulate that none of these individuals be able to profit in any way from the stories or opinions of these events via books, movies, interviews, etc.

Of the 24 people charged in the original Nuremberg Trial 12 were sentenced to death for their roles. In subsequent trials, 142 of 185 tried were convicted, with 24 given life imprisonment or the death penalty. There is no comparison at all between what occurred during those times and what has happened in these issues, so I don't think Dick Cheney should fear the death penalty. Not having to hear him, on any network that will listen, defend these techniques, or spew about how our nation is less safe now because we have strictly forbidden these things to continue would be a good start for me.

President Obama summed it up when he spoke recently at CIA headquarters in Langley, VA and said "I believe our nation is stronger and more secure when we deploy the full measure of both our power and the power of our values, including the rule of law".