According to the Levin report, the Bush administration reacted to 9/11 by "redefining" the law to permit aggressive interrogation tactics. Thus, the fable goes, in early 2002 the president determined that neither al-Qaeda nor Taliban fighters were entitled to prisoner-of-war treatment, in effect blocking application of Common Article 3 of the Geneva Conventions and the "well established military doctrine" of "legal compliance with the Geneva Conventions." The administration then covertly set about having its Justice Department alter the legal definition of torture, the story goes, while its interrogators were schooled in illegal tactics by experts at the Defense Department. These techniques were employed by the CIA on important captives and became elements of a new warfare culture that spread to military interrogators at Gitmo and led, eventually, to the Abu Ghraib scandal.
That narrative is flawed in its fundamental assumptions and fictional in its sweeping conclusions. The Bush administration did not "redefine" detainee treatment law; it undertook to determine what the law says and whom it covers. The intent of the Geneva Conventions, the principal law on the subject, is to civilize warfare by affording benefits, including an absolute bar against abusive treatment, to eligible prisoners of war — i.e., to captured soldiers who adhere to the laws of armed conflict, meaning, among other things, that they forgo intentionally endangering civilians. By definition, al-Qaeda is not qualified for Geneva protections because it is a terrorist organization: It is not one of the sovereign nations that signed the 1949 pacts, and it specifically targets civilians. Though the Taliban was the de facto government of Afghanistan, its fighters also target civilians and hide among them, and consequently they do not qualify for Geneva protections.
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Prisoner abuse should not be taken lightly. There have been nearly two dozen detainee deaths reported, five of which are believed to have occurred during interrogations. But these episodes are endemic to warfare, not peculiar to the Bush era or a result of the president's policies. Abuse is not to be tolerated — and it isn't: dozens of U.S. military personnel have been disciplined and a number tried in courts-martial. There is a world of difference between relatively rare wrongdoing at the hands of a miniscule number of soldiers and a government program of torture.
The torture narrative is at odds with the facts. The U.S. does not have a policy of torturing captives, nor does it fail to abide by its obligations under the Geneva Conventions. When abuse has occurred, steps have been taken to punish the wrongdoers and rectify military practices. Those efforts will continue. A sober study would have made that clear. Congressional Democrats have instead found it expedient to smear the administration, the military, and the intelligence community for political purposes.
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