Waterboarding: Is it torture and does it work?

This article appeared on MSNBC.com

Waterboarding: Is it torture and does it work?
Interrogation methods may be essential to the survival of Americans

COMMENTARY
By Lt. Col. Rick Francona
Military analyst
MSNBC

There is an ongoing debate about CIA use of the interrogation technique known as “waterboarding” and other so-called “enhanced interrogation techniques.” Waterboarding simulates drowning though forced inhalation of water into the lungs and nasal passages. Many believe this, or any form of physical coercion, amounts to torture.

Some of the enhanced techniques in question are sleep deprivation, sensory manipulation, isolation, open-handed blows and, of course, waterboarding. While undergoing training for intelligence operations, many officers in the armed forces intelligence services and the CIA were subjected to these techniques, albeit in a controlled training environment. Why? Because in almost every conflict in which the United States has been involved, our military personnel have been subjected to these interrogation methods.

The argument that use of aggressive interrogation techniques by CIA interrogators will place our military personnel at greater risk in the future should they be captured does not stand up to scrutiny. American prisoners of war have never been treated in accordance with the Geneva Conventions – the only countries that adhere to the protocols seem to be the United States and its allies. In virtually every conflict, our captured personnel have been brutally treated and abused.

Do these enhanced techniques rise to the level of torture? This becomes a matter of semantics and interpretation. After Sept. 11, 2001, the U.S. government defined as torture methods that cause “permanent physical harm or severe pain.” In August 2002, the Justice Department defined “severe torture” as “a high level of intensity that the pain is difficult for the subject to endure.”

Using this standard, none of the above techniques is considered to be torture. That, however, does not make them acceptable under various international protocols. For example, some human rights organizations consider even blindfolding and handcuffing to be torture, as well as isolation and sleep deprivation.

Many, including Sen. John McCain and my colleague Bob Baer, believe that torture does not work. In most instances, it does not. Certainly, the preferred method and the most effective method is to establish some sort of relationship with a prisoner and convince him or her to talk to you. Many intelligence services have very effective strategic interrogation programs. The key word here is strategic and it takes time for that relationship between interrogator and subject to develop.

Time is not always available. In these instances, when it is believed that the subject has vital information on impending events that put your unit, organization, citizens or country at risk, it is imperative to obtain the information as quickly as possible. This is when enhanced or aggressive techniques may become necessary and should be considered as a tool to save lives.

When you employ these techniques, as pointed out by McCain and Baer, the risk that the subject will tell you whatever he thinks will stop the interrogation. The argument is that this information, obtained under physical or mental duress, is unreliable. That can be true, and the reason why these techniques must be used only by properly trained personnel in specific circumstances. It is also imperative that the obtained information must be verifiable or corroborated through independent information.

In most cases, that means you must have more than one source or more than one subject. Constant corroboration between various sources or subjects will eventually lead to the truth. You play one source against the other and soon you arrive at an accurate understanding of the information they have. According to former Director of Central Intelligence George Tenet and CIA operations Officer Michael Scheuer, enhanced interrogation was effective in obtaining useful information.

Use of these enhanced techniques is the sole domain of specially trained CIA officers, following extensive legal reviews. Military personnel are specifically forbidden from using them. Army Field Manual 2-22.3, Human Intelligence Collector Operations (September 2006) details exactly what DOD and military interrogators can do: It is now the Department of Defense’s standard guide to interrogations.

This may be a moot discussion. Congress is considering a bill that would force all government agencies to adhere to the interrogation guidelines in the Army manual. Enacting such legislation would eliminate the water boarding option for any future high-value detainees, regardless of the threat posed to the country.

While I am not advocating the use of these techniques, I would caution outlawing them. There may be a time when the need to obtain information is essential to the survival of hundreds, possibly thousands of Americans.

Rick Francona is a retired USAF intelligence officer with over 25 years of operational assignments with the National Security Agency, the Defense Intelligence Agency and the Central Intelligence Agency in the Middle East. He is an MSNBC military analyst. See http://www.rickfrancona.com/.

What part of "illegal immigration" don't we get?

We fret over a wide variety of problems associated with illegal immigration problems and continue to tie ourselves into legal and emotional knots while disregarding the fundamental issues: the "illegal" aspect of most of these issues. Without regarding every problem, and thus every solution, from the basic perspective of "legal versus illegal"we will never reach any real solutions. No matter how compassionate we may feel about a poor illegal immigrant's plight, the bottom line remains that he is ILLEGAL. Any proposed solution must start from that premise.

Any real solutions must also involve as active partners any law enforcement entity: municipal, county, state and federal. Protecting citizens and upholding the law should be the only consideration here, no matter which law enforcement entity encounters illegals. I simply don't see any circumstance under which a law officer can justify not checking into the status of a suspect engaged in any violation. Not upholding the law in any and all cases violates a law enforcement professional's oath - something that cannot be dictated by local policies.

Self-declared sanctuary communities are part of the problem, certainly not the solution: by keeping their law enforcement officials from participating in solving illegal activities, by saddling their citizens with funding of benefits for illegals, and by denying the enforcement of federal immigration laws in their jurisdictions while continuing to accept federal funding.

Legislators have shown little ability or willingness to tackle these problem in a comprehensive way, nor has the judiciary been particularly effective. Let's all become part of the solution rather than adding to the problem!

The Dual-Hatted Syndrome

Haven't we learned anything from past intelligence reorganizations?

Just two years ago intelligence reform efforts created the Director of National Intelligence and finally broke up the dual responsibilities of the Director of Central Intelligence (DCI)/Director, Central Intelligence Agency (CIA). This long-standing position raised frequent issues due to the built-in conflict of interest, managed better or worse by successive incumbents. The DNI, currently retired admiral Mike McConnell, is expected to function as the actual head of our intelligence community, independent of potential conflicts of interest or loyalties to any of the intelligence agencies - THE intelligence czar. Meanwhile the Director of the CIA should be able to focus on optimizing the heavily-criticized performance of that agency, unhampered by other responsibilities. We'll see if all this works out as intended.

Last month the Department of Defense created, and congressional oversight committees approved, another dual-hatted intelligence position begging for conflicts of interest and chain-of-command confusion: designating the under secretary of defense for intelligence, currently retired general Jim Clapper, also as the Director of Defense Intelligence within the Office of the DNI. If anything, this seems to deepen the divide between the Department of Defense and the intelligence community. It begs the question of who will actually determine tasking priorities for defense agencies (DIA, NSA, NRO, etc) - the DNI or the Secretary of Defense? Based on the DoD press release announcing this new position, SecDef Bob Gates appears to envision this as an equal, not subordinate function to overall U.S. intelligence activities, supposedly directed and coordinated by the DNI. And Gates has experienced the pros and cons of a dual-hatted DCI and CIA director himself. So much for ONE intelligence Czar!

Perhaps more details will emerge soon and make this all appear more logical.

This initial perspective is based on the DoD news release of 24 May 2007 and intentionally without the benefits of any media "wisdom" on this issue.

SUV Bashing -- Enough Already!

We are all affected by rising gas prices and the current media feeding frenzy on this issue only confirms that. But could we be just a little more accurate? It has been fashionable to bash SUVs as gas-guzzling environmental fiends ever since they first became available to the public. The real issue is gas-guzzling vehicles, including trucks, vans, sedans, and SUVs. Why not refer to gas-guzzlers, instead of singling out only SUVs?

As an SUV driver, I am fed up with these ignorant tirades. Our 2002 Ford Escape actually manages 28 mpg for highway driving - hardly an "offensive" gas-guzzling performance. Since we do primarily highway and little city driving (the nearest Safeway store is 56 miles away), this vehicle serves our all-round transportation needs adequately. I use my 49 cc Honda Metropolitan scooter (105 mpg) for local errands.

Fuel efficiency statistics available from the April 2007 issue of Consumer Reports list a number of non-SUV gas-guzzlers not usually mentioned in the media (from family and luxury sedans to pick-up trucks and mini vans). Just some examples: Subaru Legacy (18 mpg), Buick Lacrosse (18 mpg), Chrysler 300 (16 mpg), Dodge Charger (17 mpg), Infinity G35 (18 mpg), Cadillac CTS (19 mpg), Audi A8 (17 mpg), BMW 745 (18 mpg), Chevrolet Montecarlo (17 mpg), Dodge Viper (15 mpg), Nissan Frontier (15 mpg), Honda Ridgeline (15 mpg), Dodge Ram (11 mpg), Kia Sedona (17 mpg, Dodge Grand Caravan (17 mpg), etc.

A thoughtful part of this debate should include holding vehicle manufacturers responsible for not applying existing fuel efficiency technologies to today's vehicles. While hybrids can serve many consumers, they are most beneficial for city drivers. More useful would be an industry-wide improvement of all vehicle fuel efficiencies. I owned a 1982 Honda 1300 FE ("fuel efficient") which achieved a respectable 50 mpg with highway driving. Clearly fuel efficiency technologies existed then and, if anything, should be even more advanced now.

Let's encourage manufacturers to apply these technologies to start producing more fuel-efficient vehicles for the good of all consumers and the country NOW!

La Migra

Recent ICE raids against illegal aliens have been reported by various media outlets, but most reporting I have seen seems to focus on the "fears" of the targeted group and sympathy for their plight. While it is human decency to feel sympathetic with the plight of other human beings, this focus is misguided.

The debate, preferably lead by the media, should be about how to enforce existing laws in a nation based on laws. It seems to have become fashionable to expect enforcement of some laws, but not others, depending on political correctness or individual preferences. As citizens in a free society we always have the option of having our elected officials change these laws. Meanwhile, it is our responsibility as citizens to obey our laws and demand of our law enforcement organizations that they be enforced, equally and uniformly.

Rather than focusing primarily on the fact that illegal aliens are subject to law enforcement, I would like to see a number of relevant issues reported on and debated as well: since many illegals affected are from Mexico, how do we convince the Mexican government to start creating a society and economy conducive to keeping its citizens happily at home, with their families? What services to tax-paying citizens, such as our seniors, are suffering as a result of services extended to those not entitled to them? How are local governments' budgets affected by the presence of illegals? And can we really afford not to enforce our laws against illegal immigration in this era of budget constraints?

A related argument occasionally debated in this context is the issue of cultural identity and language. As a LEGAL immigrant I feel particularly strongly about this. There should be no question that someone choosing to come to the USA should be prepared to become functional in the language of the country. Being competent in English is one of the prerequisites for success in a capitalist society; without good English skills an immigrant will never be competitive in the job market. This is a reality and if that is not acceptable, nobody is forced to come here. And causing citizens in some states to have to function in Spanish just to be able to communicate with some public employees is unacceptable.

Same goes for cultural identity. This country does not force anyone to abandon their cultural heritage, but rightly expects its immigrants to become part of society, rather than remaining separate, and in some cases, hostile. Again, if that is not acceptable, nobody is forced to come here.

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NSA Intercepts and the FISA Court

Below is the best legal explanation I have heard yet on the much-debated question about why President Bush by-passed the FISA Court for this program. Undoubtedly this will be examined and debated in upcoming Senate Judiciary Committee hearings and possibly in court.

Meanwhile, this perspective from a former counsel to the Senate Select Committee on Intelligence is worth reading carefully:



Wall Street Journal
January 19, 2006

Terrorists On Tap
By Victoria Toensing

In a speech this week, former vice president Al Gore took another swing at the National Security Agency's electronic surveillance program, which monitors international communications when one party is affiliated with terrorists. Specifically, Mr. Gore argued that George Bush "has been breaking the law repeatedly and persistently," and that such actions might constitute an impeachable offense. The question he raises is whether the president illegally bypassed the Foreign Intelligence Surveillance Act(FISA). But the real issue is national security: FISA is as adept at detecting -- and, thus, preventing -- a terrorist attack as a horse-and-buggy is at getting us from New York to Paris.

I have extensive experience with the consequences of government bungling due to over-strict interpretations of FISA. As chief counsel for the Senate Intelligence Committee from 1981 to 1984, I participated in oversight of FISA in the first years after its passage. When I subsequently became deputy assistant attorney general in the Reagan administration, one of my responsibilities was the terrorism portfolio, which included working with FISA.

In 1985, I experienced the pain of terminating a FISA wiretap when to do so defied common sense and thwarted the possibility of gaining information about American hostages. During the TWA 847 hijacking, American serviceman Robert Stethem was murdered and the remaining American male passengers taken hostage. We had a previously placed tap in the U.S. and thought there was a possibility we could learn the hostages' location. But Justice Department career lawyers told me that the FISA statute defined its "primary purpose"as foreign intelligence gathering. Because crimes were taking place, the FBI had to shut down the wire.

FISA's "primary purpose" became the basis for the "wall" in 1995, when the Clinton-Gore Justice Department prohibited those on the intelligence side from even communicating with those doing law enforcement (The author was Jamie Gorelick - a Dem that also sat on the 911 commission and asked why more wasn't done - she should have been on the other side of the table -J.). The Patriot Act corrected this problem and the FISA appeals court upheld the constitutionality of that amendment, characterizing the rigid interpretation as "puzzling." The court cited an FBI agent's testimony that efforts to investigate two of the Sept. 11 hijackers were blocked by senior FBI officials, concerned about the FISA rule requiring separation.

Today, FISA remains ill-equipped to deal with ever-changing terrorist threats. It was never envisioned to be a speedy collector of information to prevent an imminent attack on our soil. And the reasons the president might decide to bypass FISA courts are readily understandable, as it is easy to conjure up scenarios like the TWA hijacking, where strict adherence to FISA would jeopardize American lives. The overarching problem is that FISA, written in 1978, is technologically antediluvian. It was drafted by legislators who had no concept of how terrorists could communicate in the 21st century or the technology that would be invented to intercept those communications. The rules regulating the acquisition of foreign intelligence communications were drafted when the targets to be monitored had one telephone number per residence and all the phones were plugged into the wall. Critics like Al Gore and especially critics in Congress, rather than carp, should address the gaps created by a law that governs peacetime communications-monitoring but does not address computers, cell phones or fiber optics in the midst of war.

The NSA undoubtedly has identified many foreign phone numbers associated with al Qaeda. If these numbers are monitored only from outside the U.S., as consistent with FISA requirements, the agency cannot determine with certainty the location of the persons who are calling them, including whether they are in the U.S. New technology enables the president, via NSA, to establish an early-warning system to alert us immediately when any person located in the U.S. places a call to, or receives a call from, one of the al Qaeda numbers. Do Mr. Gore and congressional critics want the NSA to be unable to locate a secret al Qaeda operative in the U.S.?

If we had used this ability before 9/11, as the vice president has noted, we could have detected the presence of Khalid al-Mihdhar and Nawaf al-Hazmi in San Diego, more than a year before they crashed AA Flight 77 into the Pentagon.

And to correct an oft-cited misconception, there are no five-minute "emergency" taps. FISA still requires extensive time-consuming procedures. To prepare the two-to-three-inch thick applications for non-emergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA.

For example, al Qaeda agent X, having a phone under FISA foreign surveillance, travels from Pakistan to New York. The FBI checks airline records and determines he is returning to Pakistan in three hours. Background information must be prepared and the document delivered to the attorney general. By that time, agent X has done his business and is back on the plane to Pakistan, where NSA can resume its warrantless foreign surveillance. Because of the antiquated requirements of FISA, the surveillance of agent X has to cease only during the critical hours he is on U.S. soil, presumably planning the next attack.

Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda agent A is captured in Afghanistan and has agent B's number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring agent C just because he landed on U.S. soil?

Why did the president not ask Congress in 2001 to amend FISA to address these problems? My experience is instructive. After the TWA incident, I suggested asking the Hill to change the law. A career Justice Department official responded, "Congress will make it a political issue and we may come away with less ability to monitor." The political posturing by Democrats who suddenly found problems with the NSA program after four years of supporting it during classified briefings only confirms that concern.

It took 9/11 for Congress to pass the amendment breaking down the "wall,"which had been on the Justice Department's wish list for 16 years. And that was just the simple tweak of changing two words. The issues are vastly more complicated now, requiring an entirely new technical paradigm, which could itself become obsolete with the next communications innovation.

There are other valid reasons for the president not to ask Congress for a legislative fix. To have public debate informs terrorists how we monitor them, harming our intelligence-gathering to an even greater extent than the New York Times revelation about the NSA program. Asking Congress for legislation would also weaken the legal argument, cited by every administration since 1978, that the president has constitutional authority beyond FISA to conduct warrantless wiretaps to acquire foreign intelligence information.

The courts may ultimately decide the legality of the NSA program. Meanwhile, the public should decide whether it wants NSA to monitor terrorists, or wait while congressional critics and Al Gore fiddle.

Ms. Toensing, a Washington lawyer, was chief counsel for the Senate Intelligence Committee and deputy assistant attorney general in the Reagan administration.

© 2006 The Wall Street Journal

Justice Probe of NSA Leak

Prominent news readers on major news networks called the fact that the Department of Justice is investigating the source of the recent leak about NSA's intercept program a "Stunning development!" Even the most cursory research would have served as a reminder that the DoJ is required to investigate national-level breaches of law and such an investigation should come as no surprise to anyone.

The National Security Act of 1947, which governs these matters, tasks the President with the establishment of procedures to govern access to classified information. This act also defines classified information as "information that has been determined pursuant to Executive Order 12356 (or successor orders) to require protection against unauthorized disclosure." Although technically the President is the official U.S. classification authority, this authority is delegated to the Director of National Intelligence (formerly the Director of Central Intelligence). The act makes this official "responsible for protecting intelligence sources and methods from unauthorized disclosure." It also requires him to notify congressional oversight committees of any violation and to refer violations to DoJ for investigation.

"The government has no legal right to pursue the whistleblower [or] whistleblowers who disclosed what's been publicly aired to date," cried a lawyer representing whistleblowers.

I could not disagree more: it is illegal for anyone to violate their secrecy oath, a legally binding condition of access to classified information, and all violators of our laws must be held accountable. To deal with real or perceived abuses by any government agency is precisely why there is a well-established complaint process within the each agency of the executive branch, as well as legislative oversight by appropriate congressional committees with properly cleared members of Congress and staff. The leaker signed an oath - going to the New York Times violates that oath - no matter what the intent.

The National Security Act has specific provisions for the Inspector General to " ensure operations are conducted efficiently and in accordance with applicable law and regulations" and to report to the DNI and oversight committees violations, abuses, fraud and other serious problems and deficiencies, as well as corrective actions. The act further offers specific protection for whistle blowers: the IG may not disclose their identity without their consent and there may be no reprisal (or threat thereof).

As an intelligence professional I can tell you with absolute certainty that only authorized government personnel (or government contractors) with appropriate clearances, who have a specific need to know because of the position they hold, have legal access to classified information. There are no circumstances under which citizens or media reps have the right to this access, although access is sometimes granted on a limited basis during certain judicial proceedings.

The fact that there are abuses of this trust within the government or in the intelligence community (just like law enforcement members, politicians, teachers, clergy, lawyers, etc. sometimes violate the trust placed in them), in no way justifies the unauthorized release of classified information to anyone and it remains illegal to do so. To deal with violations of this trust is precisely why we have a rigorous system of congressional oversight since the mid-1970s: the oversight committees' (intelligence, judiciary, armed services, etc) members and staff are specifically cleared for classified access and well-equipped to deal with this type of problem. I did just this during several years on the staff of the U.S. Senate Select Committee on Intelligence.

The law provides for punishment of those with legal access to classified information who release it to unauthorized recipients, not those who receive it this way and make it public. Thus the media can make anything public they want, but that does not mean they have the right to classified information. The leakers are violating the law, not the media.