"Torture" in the Dock
A tough interrogation in Germany
By John Rosenthal
http://www.hoover.org/publications/policyreview/35426189.html

— Scene 1: Frankfurt, Germany, 1 October 2002, early morning
In the frankfurt police headquarters, the atmosphere is tense. Deputy Police Chief Wolfgang Daschner is losing patience. On the previous day, his officers arrested one Magnus Gäfgen, a 27-year-old law student. Gäfgen is suspected of having kidnapped 11-year-old Jakob von Metzler, son of the banker Friedrich von Metzler. Two days earlier, Gäfgen had personally collected a 1-million-euro ransom payment. But there is no sign of the boy and Gäfgen has refused to give police interrogators accurate information about his whereabouts. A police psychologist, observing the questioning, describes Gäfgen’s responses as a “pack of lies” [Lügengebäude]. Deputy Police Chief Daschner fears that Jakob’s life may be in danger. In a memorandum, he writes: “We need to ascertain without delay where the boy is being held. While respecting the principle of proportionality, the police have an obligation to take all measures in their power to save the child’s life.”

Daschner decides to act. He dispatches police inspector Ortwin Ennigkeit to the office in which Gäfgen is being held for interrogation. Ennigkeit’s assignment: to make Gäfgen talk — if necessary by threat of torture. Indeed, Daschner has resolved not only to threaten Gäfgen with pain, but to carry out the threat if his prisoner is not otherwise forthcoming. A doctor has been found to supervise the proceedings.

In the interrogation room, Ennigkeit tells Gäfgen that a “special officer” is on his way.  If Gäfgen does not tell Ennigkeit where the boy is, the “special officer” will “make him feel pain that he will not forget.” On Gäfgen’s own account, the formula is still more menacing: the officer “will make you feel pain like you have never felt before.” “Nobody can help you here,” Ennigkeit tells him, according to Gäfgen’s testimony. “We can do whatever we want with you.” On Gäfgen’s account, moreover, Ennigkeit already begins to rough him up: shaking him so violently that his head bangs against the wall and hitting him in the chest hard enough to leave a bruise over his collarbone. Gäfgen’s testimony is consistent with the tenor of Daschner’s instructions, which, on Daschner’s own admission, called for the “use of direct force” [ Anwendung unmittelbaren Zwangs].

In any case, whether the mere threat of pain has been sufficient or the latter has had to be supplemented by the “use of direct force,” within minutes of Ennigkeit’s entering the interrogation room Gäfgen talks. He tells Ennigkeit where Jakob is to be found. Police rush to the location and find the boy dead, his corpse wrapped in plastic and submerged under a wooden jetty in a pond.1

— Scene 2:Guantánamo Bay Prison Camp, Cuba, ten days later

The atmosphere in Joint Task Force 170 is tense. The task force has been set up to obtain intelligence from detainees, but the effort is lagging and army interrogators are losing patience. They have discovered that one of the detainees appears to have been directly involved in the 9/11 plot. Mohammed al-Qahtani attempted to enter the United States in early August 2001, but was turned back by immigration officers in Orlando, Florida. Telephone intercepts of conversations of 9/11 facilitator Mustafa al-Hawsawi indicate that al-Qahtani was slated to serve as the missing “twentieth hijacker” on September 11. Plot leader Mohammed Atta is known to have been at Orlando International Airport on the day of al-Qahtani’s arrival, presumably to meet him. Al-Qahtani was sent back to his native Saudi Arabia and then traveled to Afghanistan. In mid-December, two months after the start of Operation Enduring Freedom, he was taken prisoner on the Pakistani border along with 29 other suspected al Qaeda members apparently fleeing the Battle of Tora Bora. 

In early October 2002, the questioning of al-Qahtani has been going nowhere. Interrogators and staff psychologists are convinced that he is lying: repeating prefabricated cover stories, no matter how implausible, as required by al Qaeda security protocols. He insists, for example, that he traveled to the United States to import used cars and that he was in Afghanistan merely to purchase falcons.

The first anniversary of the 9/11 attacks has only just passed. A spike in intelligence has American officials on high alert. On October 8, Bin Laden deputy Ayman al-Zawahiri releases an audio statement threatening new attacks against America and American allies. The commanders of jtf 170 decide they need to act. On October 11, Major General Michael E. Dunlavey sends a memo to U.S. Army Southern Command requesting authorization to use more aggressive interrogation techniques with the detainees. The request gains still greater urgency on the very next day as al Qaeda makes good on its threats, killing over 200 people in multiple bombings on the Indonesian resort island of Bali. Dunlavey’s request will be endorsed by southcom and sent up the line to Secretary of Defense Donald Rumsfeld.

The request and the Department of Defense’s response to it have pride of place in the media-driven mythology of what have come to be known as the “torture memos.” The techniques proposed by jtf 170 include several milder “Category I” and “Category II” techniques, such as yelling at a detainee (Category I), requiring a detainee to stand for a maximum of four hours (Category II), and “forced grooming” (i.e. shaving a detainee’s beard against his will — likewise Category II). All these techniques will be approved. Included among the harshest “Category III” techniques, however, jtf 170 requests authorization to threaten detainees with “painful consequences” if they fail to cooperate. As it so happens, this is precisely the method used by German police inspector Ortwin Ennigkeit a mere ten days earlier to obtain the cooperation of Magnus Gäfgen. Following the advice of Department of Defense general counsel William J. Haynes, the request for authorization of this method is . . . refused.2

The Gäfgen torture complaint

In june 2005, the child-murderer and law student Magnus Gäfgen lodged a complaint against Germany with the European Court of Human Rights (echr). In his complaint, Gäfgen accused Germany of having violated his rights under the European Convention on Human Rights and, more specifically, of having violated the prohibition on torture contained in Article 3 of the Convention.

On June 30, 2008, the European Court of Human Rights rejected Gäfgen’s complaint and cleared Germany of the charge of tolerating torture.3 The Court found that the treatment to which Daschner and Ennigkeit subjected Gäfgen did not reach the threshold required to be considered as torture (§69). On the Court’s assessment, it did, however, constitute “inhuman treatment” (§70), which is likewise prohibited by Article 3. Nonetheless, the Court found that German judicial institutions had acted in such a way as to provide Gäfgen sufficient “redress” for the offense suffered and thereby, in effect, to nullify any violation of the Convention. According to the somewhat surreal reasoning of the Court, Gäfgen had been, but was no longer, a victim of “inhuman treatment” (§82). He had “lost” his “victim status.”

The “redress” consists of two elements. In the first place, Gäfgen’s “confession” to Ennigkeit was not allowed into evidence in the German courts. By virtue of this exclusion, the Court was likewise able to find that Gäfgen’s right to a fair trial, as laid out in Article 6 of the Convention, had not been violated.

But the notion that the exclusion of the “confession” isolates the rest of the court proceedings from the effects of the torture threat — the “fruit of the poisonous tree,” as it is called in legal discussions — is patently absurd. In fact, strictly speaking, Gäfgen did not even “confess” to Ennigkeit. Rather, under threat of torture he was compelled to divulge the location of Jakob von Metzler’s body, thus leading the police to what is obviously the single most important piece of evidence underpinning the murder charge against him. Indeed, as the Bulgarian judge Zdravka Kalaydjieva pointed out in the sole dissenting opinion to the Court’s ruling, without the boy’s body it is doubtful that Gäfgen could even have been charged with murder.

The second element of “redress” identified by the Court is equally spurious and equally obviously so: The majority of the court found that Gäfgen had been afforded redress by virtue of the fact that a German court tried and convicted Daschner and Ennigkeit for their acts (§80). In December 2004, the District Court of Frankfurt am Main found Ennigkeit guilty of having “coerced” Gäfgen (i.e., by threat of violence) and Daschner of having incited his subordinate to do so.

But the verdict was purely theoretical: for while the court did indeed find the two men guilty, it refused to apply sanction. Daschner and Ennigkeit were merely “warned” and given “suspended” fines: or, in plainer language, they were not even fined. The European Court of Human Rights gingerly describes this as a “comparatively lenient” sentence (§78). If words are not to be abused, it is, more precisely, no sentence at all. Making a mockery of the principle that there is no law without enforcement, the German court itself observed: “The upholding of the legal order required a guilty verdict, but not punishment.”4 As further evidence of the practical nullity of the court’s verdict, neither man has a criminal record as a result of it. In effect, Daschner und Ennigkeit were found guilty, but not convicted. Barely one year after the judgment, Daschner was promoted to Chief of the Police Directorate for Technology, Logistics, and Management of the German state of Hesse.

The German court’s guilty verdict in the Daschner case amounts to nothing more than an alibi for Germany and the German legal order as a whole. By theoretically acknowledging the wrong committed, it permits Germany to appear to respect Article 3 of the Human Rights Convention — not to mention its obligations under the un Convention against Torture — while in practice ignoring them. It is remarkable that the European Court of Human Rights should find such an obviously bogus construction to be consistent with the requirements of the Convention. And it is both ironic and revealing that the only judge to insist on truly upholding the prohibition on torture and inhuman treatment — that is, in practice and not merely “in theory” — should hail precisely from Bulgaria, a new eu member state the European Commission has recently seen fit to chastise for alleged insufficiencies in the rule of law. Judges from Denmark, Germany, and Estonia — all eu member states in good standing — had no such scruples.

The Article 3 prohibition is one of the few legal protections laid out in the European Human Rights Convention that is not burdened with all sorts of exceptions or subject to possible derogation in a “public emergency.” The Court majority itself recognized that the prohibition on torture and inhuman treatment is unusual in this respect (§63): Unlike the highly “relative” guarantees provided elsewhere in the Convention, the prohibition on torture and inhuman treatment is “absolute.” By, nonetheless, citing “mitigating factors” in its ruling (§69), the Court, in effect, jettisoned the absolute character of this supposedly “absolute” prohibition. In so doing, it adopted the perspective of the Frankfurt District Court, which, in its nominal ruling against Daschner and Ennigkeit, cited “massively extenuating circumstances” (massive mildernde Umstände) in order to justify its refusal to apply sanction.5  These “extenuating circumstances” included both the presumptive “good intentions” of the police officials —saving the life of Jakob von Metzler — and the stressful circumstances under which the infraction took place.

The Strasbourg court somewhat “hid” this relativizing of the prohibition by bizarrely including its own discussion of “mitigating factors” in its assessment of whether torture could be said to have occurred at all (§69) and not, for example, in the discussion of appropriate “redress.” But the result is the same. By finding that the prohibition could be violated without real consequence, the Court has, in effect, transformed the supposed legal protection provided by Article 3 into a discretionary matter. Moreover, as Judge Kalaydjieva notes in her dissenting opinion, in light of the “mildness” — in fact, the nonexistence — of the sanctions held to provide adequate redress, the Court’s ruling will give positive incentive for police officials to torture or threaten torture in the future.6  It thereby undermines the very raison d’être of the Human Rights Convention.

The Gäfgen ruling and the American “torture” debate

The decision of the European Court of Human Rights in the Gäfgen case was eagerly anticipated and widely discussed in the German media. In keeping with the importance attached to the case in Europe, the Court took the unusual step of broadcasting the announcement of its judgment on the Council of Europe website. But the ruling went almost entirely ignored by the American news media.7  In light of the spectacular nature of the case and, above all, the raging American debate on torture in connection with the Guantánamo Bay prison camp and the war on terror, on first glance this might seem odd.

But on further reflection, it is perhaps precisely its obvious relevance to the American “torture” debate that explains the American media’s indifference to the echr ruling. The ruling was announced just as a campaign to charge senior Bush administration officials with “war crimes” was reaching fever pitch this past summer.8 With leading news organizations like the New York Times openly abetting that campaign, it would hardly have been opportune for those same news organizations to call attention to a European precedent that puts the actions of the American officials in a more favorable light — and all the less so as the editorial boards that have been most adamant in denouncing alleged American “torture” practices typically regard Europe as a paragon of virtue in the matter of respecting international law.

In mid-June, only two weeks before the announcement of the echr ruling in the Gäfgen case, the ngo Physicians for Human Rights released a widely-publicized report titled “Broken Laws, Broken Lives,” which purports to provide evidence of torture suffered by detainees held by the United States at Guantánamo Bay and elsewhere. Almost concurrently, British lawyer Philippe Sands published his book Torture Team: Rumsfeld’s Memo and the Betrayal of American Values (Palgrave Macmillan, 2008). The memo in question is the December 2002 Department of Defense memorandum that authorized jtf 170 to use aggressive interrogation techniques. (The memo was in fact authored by Pentagon General Counsel William Haynes, but it was approved by Rumsfeld.)

The cover of Torture Team features a close-up of Donald Rumsfeld’s signature on the document, darkly juxtaposed with a photo of barbed-wire. Somewhat comically, in light of the gravity of the context, the signature is accompanied by the following handwritten marginal comment: “However, I stand for 8–10 hours a day. Why is standing limited to 4 hours?” The remark highlights the relative mildness of the techniques actually approved by Rumsfeld and reveals, furthermore, its author’s reference to, so to say, “normal” intuitive standards of human durability in assessing their acceptability. This did not, however, prevent Sands’s publisher from splashing it over the cover of a book whose very premise involves abandoning such normal, intuitive standards in order to stylize those techniques into “torture.”

Two points are particularly notable about the echr’s Gäfgen ruling in light of the accusations against Rumsfeld and other Pentagon officials. The first is that the echr explicitly found that one of the techniques Rumsfeld and Haynes rejected as too severe does not meet the threshold for being regarded as torture. Citing the Army’s “tradition of restraint,” Rumsfeld and Haynes refused to authorize threats of physical violence, as well as two other “Category III” techniques, “exposure to cold weather or water” and what has come to be known as “waterboarding.” (The only “Category III” technique that was approved was the “use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing.”) The Court, however, found that mere threats of violence, if they are not carried out, do not as such constitute torture. It came to this conclusion even while recognizing that Ennigkeit’s threats must have caused Gäfgen “considerable mental suffering” (§69). By the standards of the European Court of Human Rights, then, all less harsh measures should not be regarded as torture either.

The Court’s finding in this regard ought not, of course, to have any direct legal relevance. The United States is not a party to the European Convention on Human Rights and it is not represented in the Council of Europe to which the echr is attached. Nonetheless, the finding is especially awkward for Physicians for Human Rights and kindred ngos, since such groups tend precisely to regard echr jurisprudence as authoritative even for countries like the United States that are not part of the Council of Europe. In this respect, the ngos are following the lead of the un special rapporteur on torture, the Austrian professor Manfred Nowak, who, in accusing the U.S. of torture in a highly-publicized 2006 un report, likewise cited echr jurisprudence.9

The fact that the echr acknowledged Gäfgen’s “considerable mental suffering” renders its finding even more awkward for Physicians for Human Rights, since the latter makes ample use of the notion of “psychological torture” in order to elevate physically nonaggressive interrogation practices into the torture category. The group has indeed previously devoted a 135-page report to the subject.10 As it so happens, Ennigkeit appears to have expressly aimed to maximize Gäfgen’s psychological torment, not only by invoking the imminent arrival of the “special officer,” but also, if Gäfgen is to be believed, by threatening to allow him to be sexually abused by fellow prisoners.11

Of course, even if the interrogation methods approved by the Pentagon do not rise to the level of torture, they could well be considered “inhuman treatment,” which is likewise prohibited under the un Convention against Torture (more fully, the un “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”). No one reading the transcript of Mohammed al-Qahtani’s interrogations that was leaked to the press in2005 could doubt that the treatment to which he was subject by his interrogators was, by ordinary standards of human interaction, crude and abusive.

But this is where the second salient aspect of the echr Gäfgen ruling is especially relevant. For while the echr found that the Frankfurt police’s treatment of Gäfgen did constitute “inhuman treatment,” it accepted the Frankfurt District Court’s judgment that under the circumstances this treatment did not warrant punishment.

The compassion shown for the perpetrators in the Frankfurt court’s judgment is striking. In adumbrating the “massively extenuating circumstances” that on its view militated against the application of sanction, it notes that “for both of the accused, it was exclusively and urgently a matter of saving the child’s life.” It is “also to be taken into account,” the Court adds a bit further on, “that g’s [Gäfgen’s] provocative and unscrupulous manner of answering questions had strained the nerves of the investigators to the breaking point (aufs äußerste strapazierte). Trained in law, he knew how to formulate and present his responses, so that they constantly produced doubts, hopes, and disappointments and provided no certainty.” “Moreover,” the Court continues, “the situation was extraordinarily chaotic. The police personnel had been on duty overtime. They were worn out and tired. The accused E. [Ennigkeit] had worked through the night and the accused D. [Daschner] had only slept for a few hours. The overwrought sensibilities of the accused substantially reduces their guilt, since they lowered their inhibitions to acting. Neither man could take any more. Furthermore, both of them had led irreproachable lives up to that point.” And so on.12

One may well wonder whether the accusers of Donald Rumsfeld and other Pentagon officials would be prepared to acknowledge “massively extenuating circumstances” in their cases. But if the desire to save the life of an eleven-year-old boy is an extenuating circumstance, how can the desire to prevent a follow-on attack to 9/11 and to save potentially thousands of innocent lives not be one? And if the difficulty involved in questioning a wily and arrogant 27-year-old student who has been “trained in law” is an extenuating circumstance, how can the difficulty involved in questioning an evasive and potentially dangerous al Qaeda operative who has been trained in operational security measures not be one?

To deny the same degree of forbearance to American officials and personnel involved in the war on terror is to imply that irregular combatants forming part of terrorist organizations deserve greater legal protections not only than ordinary prisoners of war, but indeed than ordinary citizens. Such an absurd — and for the United States suicidal — logic could only be embraced by persons who are fundamentally committed to seeing American counter-terrorism efforts fail.


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John Rosenthal writes on European politics, with a special focus on Germany and France. His work has appeared in the Claremont Review of Books, Opinion Journal, Les Temps Modernes, and Merkur. He is a contributing editor for World Politics Review.
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1 Schriftliche Urteilsgründe in der Strafsache gegen Wolfgang Daschner [Written Judgment in the Case against Wolfgang Daschner], Landgericht Frankfurt am Main (February 15, 2005); Judgment in Case of Gäfgen v. Germany, European Court of Human Rights, Strasbourg (June 30, 2008); ,,Ein Mörder im Zeugenstand, “ Frankfurter Allgemeine Zeitung (November 26, 2004).

2 Summary of Administrative Review Board Proceeding for isn 063, Department of Defense (2006); Summary of Evidence – Mohammad Al-Qahtani, Combatant Status Review Board, Department of Defense (October 2004); Press Briefing by White House Counsel Judge Alberto Gonzales, dod General Counsel William Haynes, et al (June 22, 2004); Stuart Taylor, “Our Leaders Are Not War Criminals,” National Journal (June 28, 2008); Memorandum on “Counter-Resistance Strategies” from Major General Michael E. Dunlavey (October 11, 2002); Memorandum on “Counter-Resistance Techniques” from dod General Counsel William J. Haynes (November 27, 2002).

3 Judgment in Case of Gäfgen v. Germany, European Court of Human Rights, (Strasbourg, June 30, 2008). All paragraph references in the text refer to this document.

4 Schriftliche Urteilsgründe in der Strafsache gegen Wolfgang Daschner, 33. Author’s translation.

5 Schriftliche Urteilsgründe in der Strafsache gegen Wolfgang Daschner, 30.

6 Thus Judge Kalaydjieva writes: “The Court has never accepted that a mere payment of compensation could remove the victim status of a person subjected to ill-treatment, because that would encourage a ‘pay-and-torture’ policy in cases ‘of importance.’ I believe that the approach of the national courts in the present case is dangerous for a similar reason: the authorities may be tempted to extract evidence in violation of Article 3, where the price of punishing an officer and paying compensation is judged to be acceptable compared to the benefit to be reaped, namely securing the suspect’s conviction in a difficult case.” italics that the “price” paid by German authorities for violating Article 3 in the Gäfgen case was, in effect, zero. The police officials were not punished and Gäfgen has not been paid compensation. Indeed, by ruling as it did, the echr pre-empted a pending compensation claim.

7 Despite having devoted an article to Gäfgen’s trial in 2003, the New York Times, for example, provided no coverage of the echr ruling. The only exception to the general blackout appears to be a meager 400 word ap dispatch that reads for the most part like an echr press release.

8 See Taylor, “Our Leaders Are Not War Criminals.”

9 More generally on Nowak’s accusations, see my “The Road to Condemning Guantanamo,” Claremont Review of Books, (Fall 2006).

10 Physicians for Human Rights, Break Them Down: Systematic Use of Psychological Torture by U.S. Forces (May 2005).

11 According to Gäfgen’s sworn testimony, Ennigkeit threatened, more precisely, to lock him in a cell with “two big fat niggers” [zwei großen, fetten Negern] who would sexually abuse him. “Folter-Prozeß: ‘Ich wollte meine Ruhe haben,’” Frankfurter Allgemeine Zeitung (November 26, 2004). Physicians for Human Rights might call the outrageously racist inflection of Ennigkeit’s alleged threat the “exploitation of a cultural fear” (see Broken Laws, Broken Lives, 80). Of course, perhaps Ennigkeit never made the threat. He has denied it and all we have to go on otherwise is Gäfgen’s declarations. But for a group like Physicians for Human Rights this could hardly be a reason for dismissing the allegation. After all, the bulk of its own allegations concerning American prisoner abuse are based on the “first-hand accounts” of freed former detainees — or, in other words, on the unverified declarations of the latter.

12 All citations from Schriftliche Urteilsgründe in der Strafsache gegen Wolfgang Daschner, 31. Author’s translations.


Now for an Honest Debate on Gitmo
http://online.wsj.com/article/SB122878164013889699.html?mod=djemBestOfTheWeb

A funny thing happened on the road to Barack Obama's inaugural: America became open to rational debate on Guantanamo.

Not all that long ago, Guantanamo was simply one more manifestation of the wickedness of George W. Bush. Back then, the operating assumption appeared to be that the only people being held at Guantanamo were innocent goat herders whose only crime was to be in the wrong place at the wrong time. As a result, the focus was on detainee abuse and their lack of rights, as witness an Associated Press headline from last December: "Lawyers complain iguanas at Guantanamo get more legal protection than detainees."

One year later, we now have Khalid Sheikh Mohammed and four other 9/11 plotters at Gitmo saying they want to plead guilty. And the headlines have begun to concede that closing the detention center will not be as easy as the critics suggested. "Closing detainee camp a minefield of critical steps," notes the Miami Herald. "Closing it may be the easy part; With Guantanamo, the issue for Obama will be deciding what to do with the 250 prisoners, experts say" reports the L.A. Times. "Close Guantanamo prison? Sure. But that's the easy part," says USA Today.

What unites all these stories is the acknowledgment of the basic fact of Guantanamo: The problem is the people, not the place.

As evidence of this new openness, the New York Times recently ran a piece reporting that "even some liberals are arguing that to deal realistically with terrorism, the new administration should seek Congressional authority for preventive detention of terrorism suspects deemed too dangerous to release even if they cannot be successfully prosecuted."

Exactly. The real issue isn't even so much the idea of trying these men in federal courts, which has already been done with Zacarias Moussaoui. The real issues for the president-elect are as follows: Where in America would you put these men? Would you release them on American soil if they are found not guilty? What about those whose home countries will not take them back? And what do you do with the toughest cases: those for whom the evidence is insufficient for a trial, but sufficient to tell us they are far too dangerous to release?

During the campaign, of course, both John McCain and Barack Obama vowed to close Gitmo down. But a President Obama will likely find it easier to do the prudent thing. As a Republican hawk charged by his opponent with representing a third Bush term, Mr. McCain would have been under immense pressure to prove that he wasn't George W. Bush. And a hasty closing of Guantanamo would have been a high-profile way to do it.

Fortunately, Mr. Obama is under no such pressure. For one thing, his opposition to the war gives him better credentials to do the wise thing here. For another, at least during his "honeymoon" period, the press is likely to give him a pass for whatever he comes up with -- even if the substance of what he decides seems to echo his predecessor.

Yes, it's a double standard. But it could turn out to be a good thing for the nation. What the American people need today is a sensible policy that recognizes three facts: that terrorists present a unique challenge to our rules of war; that capturing and holding terrorists is different from capturing and holding criminals or prisoners of war; and that the men and women who set up Guantanamo did so not because they were out to shred the Constitution but because, faced with some very imperfect choices, this was thought to be the best way to protect the American people.

It's true that Mr. Obama repeated his pledge to close Guantanamo during his recent "60 Minutes" interview. But he also declined to set a date. No doubt he is now realizing a hard truth. While senators can say what they please and go to sleep untroubled, presidents cannot escape the consequences of their decisions.

Jack Goldsmith, a Harvard law professor who served as assistant attorney general in the Justice Department's Office of Legal Counsel, hopes we might finally be getting a real debate. Though he has criticized some of the legal reasoning behind the Bush administration's terror policies, he says the animus against President Bush has corrupted our public discourse by making the issue the character of the good men and women trying to protect us rather than the enemy they were trying to stop.

Mr. Goldsmith notes that Mr. Obama is in a position to end the acrimony and strike a prudent way forward. "The single best thing about the election of Obama," he says, "may be that we now have a chance to view the terror threat without the distorting lens of Bush hatred."


Out of Sight
By Reuel Marc Gerecht
http://www.nytimes.com/2008/12/14/opinion/14gerecht.html?_r=3&pagewanted=1&adxnnlx=1229230463-4Zi26HtppNdqrsgBXhxgOg

FEW post-9/11 issues have produced more anxiety and revulsion than the Central Intelligence Agency’s use of “aggressive interrogation” and the extrajudicial rendition of terrorist suspects to countries that practice torture. President-elect Barack Obama has promised to ban waterboarding and other pain-inflicting soliciting techniques, as well as rendition. He has also promised to close the Guantánamo Bay prison.

More broadly, liberal Democrats in Congress intend to deploy a more moral counterterrorism, where the ends — stopping the slaughter of civilians by Islamic holy warriors — no longer justifies reprehensible means. Winning the hearts and minds of foreigners by remaining true to our nobler virtues is now seen as the way to defeat our enemies while preserving our essential goodness.

Sounds uplifting. Don’t bet on it happening.

Mr. Obama will soon face the same awful choices that confronted George W. Bush and Bill Clinton, and he could well be forced to accept a central feature of their anti-terrorist methods: extraordinary rendition. If the choice is between non-deniable aggressive questioning conducted by Americans and deniable torturous interrogations by foreigners acting on behalf of the United States, it is almost certain that as president Mr. Obama will choose the latter.

Of course, he and his senior officials seem to believe now that they don’t have to make this choice. For them there is a better way to combat terrorism, by using physically non-coercive questioning of suspects and civilian courts or military courts-martial to try and punish jihadists.

But this third way, which is essentially where America was before the Clinton administration embraced rendition, is plausible only if Mr. Obama is lucky. He might be. If there is no “ticking time bomb” situation — say, where waterboarding a future Khalid Shaikh Mohammed (the 9/11 mastermind) could save thousands of civilians — then there is neither need for the C.I.A.’s exceptional methods, nor the harsh services of Jordan’s General Intelligence Department.

And there are signs that Mr. Obama won’t have to confront such a situation. Through American and allied efforts, Al Qaeda has sustained enormous damage since 9/11. Osama bin Laden’s decisive battle in Iraq, where Al Qaeda intended to re-energize its holy war against the Americans among the Arabs, has turned into a military and moral disaster. Arab Muslim fundamentalists have finally started the great debate as to whether it is, in fact, unacceptable to kill believers and nonbelievers in jihad.

And the internal-security services of our allies in Europe are, on the whole, vastly better today than they were in 2001. Thanks to intrusive surveillance methods (many of which are outlawed in the United States), they are much more efficient in pre-empting the plots of holy warriors traversing their borders.

However, troubles in Pakistan may well reverse Mr. Obama’s luck. He has said he intends to be hawkish about fighting Al Qaeda and the Taliban in Central Asia. So, let us suppose that he increases the number of Special Forces raids into Pakistan, and those soldiers capture members of Al Qaeda and their computers, and learn that the group has advanced plans for striking American and European targets, but we don’t know specifically where or when.

What would Mr. Obama do? After all, if we’d gotten our hands on a senior member of Al Qaeda before 9/11, and knew that an attack likely to kill thousands of Americans was imminent, wouldn’t waterboarding, or taking advantage of the skills of our Jordanian friends, have been the sensible, moral thing to do with a holy warrior who didn’t fear death but might have feared pain?

Mr. Obama will probably not have the option of ordering the C.I.A. to aggressively interrogate another member of Al Qaeda — not after running a campaign that highlighted the moral failings of President Bush. To get the C.I.A. back in the interrogation business would probably require a liberal Democratic Congress to pass laws guaranteeing case officers’ immunity from criminal and civil prosecution. This seems unlikely — unless, of course, the United States is again devastated by a terrorist strike.

And because of Mr. Obama’s plan to close Guantánamo, the Justice Department is already going to have to figure out how to move, try, punish and release its detainees. Thus the last thing in the world the Obama administration will want is to bring in more “enemy combatants” from the Central Asian battlefield.

Which brings us back to rendition, which, properly understood, is what Americans do when they realize that active counterterrorism against jihadists prepared to use mass-casualty weapons is an ethical, juridical and operational tar pit. It isn’t an ideal solution — American intelligence officers have no control of the questioning, and Washington can become beholden to foreign security services — but it’s a satisfactory compromise. Just ask Samuel R. Berger, the national-security adviser for President Bill Clinton, who no doubt worked through all the pitfalls when he first approved extrajudicial rendition.

In addition, the C.I.A. is able to guard the secrecy of foreign-liaison operations more effectively, especially from Congressional prying, than it can its own activities. It has also certainly paid close attention to how the press tracked some of its clandestine international flights carrying terrorism suspects after 9/11, and will in the future undoubtedly make it much harder to sleuth out who is going where.

A dense bipartisan moral fog surrounds rendition. Former senior Clinton officials can still deny that they sent anyone away in order that he be tortured. Few are as honest and frank as Walt Slocombe, a Clinton undersecretary of defense who once remarked that the difference between Democratic and Republican rendition was that Democrats “drilled air holes in the boxes.”

If Mr. Obama’s Democrats get blown back into the ugly world that we live in, and resume rendition (and, of course, fib about it), then President Bush and Vice President Dick Cheney, who have been vilified for besmirching America’s honor, may at least take some consolation in knowing that hypocrisy is always the homage vice pays to virtue.

Reuel Marc Gerecht, a former Central Intelligence Agency officer, is a fellow at the Foundation for Defense of Democracies.