Mark Danner is a writer, journalist and professor who has written for more than two decades on foreign affairs and international conflict.  He has covered Central America, Haiti, the Balkans and Iraq, among other stories, and has written extensively about the development of American foreign policy during the late Cold War and afterward, and about violations of human rights during that time.  His books include Torture and Truth: America, Abu Ghraib and the War on Terror, The Road to Illegitimacy: One Reporter’s Travels Through the 2000 Florida Vote Recount, and The Massacre at El Mozote: a Parable of the Cold War.  The New Yorker has only twice in its history devoted one issue to an entire article.  One was in the case of John Hershey’s article on Hiroshima written after the dropping of the bomb and the other was Mark’s piece on the massacre at El Mozote.   

Mark is a longtime staff writer for The New Yorker and a regular contributor to The New York Review of Books.  He is also a professor of journalism at the University of California at Berkeley, where he directs the Goldman Forum, and Henry R. Luce Professor of Human Rights, Democracy and Journalism at Bard College.  He is a recipient of numerous honors and awards, including a MacArthur Fellowship, Overseas Press Club awards, and national magazine awards.  In brief, Mark is a witness who writes beautifully about what he has seen, and clears the air.  Mark.  [Applause.] 

Mr. Mark Danner:  Thank you, Harry.  My goodness, clear the air.  This is a very serious charge I’ve been given, not least of which the implication that the air is now dirty.  And I certainly would not imply that myself.  As Harry said, and as you’ll have noticed in his very generous introduction, I am not a lawyer.  I have covered the story of Iraq – I’ve covered a lot of wars – and have written a book on torture, most of which consists, actually, of documents that the government lawyers, including Professor Yoo, have drafted, and other documents that have come out of Abu Ghraib.  It seems to me that perhaps the best thing I can do – I know Harry gave me a charge in his letter to me inviting me in which he said, “Ideally you will lay out the theory behind the policy, Farer will talk about what history tells us, and you the implications of the policy.”  You meaning me, not you meaning Yoo.   

Mr. Yoo:  Yeah, yeah. 

Mr. Danner:  There’s a lot of Abbott and Costello, which I’m sure he’s tired of.   

Mr. Yoo:  But it doesn’t stop people from– 

Mr. Danner:  It doesn’t.  You know, the problem is you think you’ll never get the chance again, so you take the opportunity.   I will talk about the implications.  Today Lynndie England was sentenced.  She is the woman you all know from the photograph of her holding the leash around the neck of the naked Iraqi man, he’s actually a politician, a mayor of a small town, lying on the floor.  It’s a very famous image throughout the Middle East, and indeed, if Osama bin Laden had come to Madison Avenue and asked for a poster to be made advertising his case in the Muslim world, I think our advertising agencies could scarcely have done better than that particular image in its strong political effect.  

The implications of many of these documents – and I’m glad to be here in Boalt Law School to say this – can be seen in the photographs that were broadcast a year ago last Thursday on 60 Minutes II on CBS and that were published a few days later by my colleagues in The New Yorker.  The implications of these policies are torture, which has been systematically applied to prisoners not just in the war on terror, but in Iraq.  And I would remind you – and I don’t want to argue like a lawyer, but I would remind you that Iraq is a nation-state, the Geneva Conventions supposedly do apply in Iraq.  So the case, as laid out just now by Professor Yoo, is a very limited one.  It does not include the main problems, if we’re talking about human rights problems, and how human rights have changed after 9/11.  That case doesn’t include most of the serious cases that we would want to discuss. 

I’d like to make a simple argument to you today, which is that torture, coercive methods of interrogation, cruel, inhuman treatment and other things have become systematic in the interrogation of prisoners in the war on terror, and in particular in Iraq.  Now, I use the word systematic advisedly.  A few weeks ago Secretary Rumsfeld stood up in the Pentagon press briefing room, that center of world humor, and he was asked a question by a reporter,  

“I wonder if you would just respond to the suggestion that there is a systematic problem rather than the kinds of individual abuses we’ve heard of before?”  Secretary Rumsfeld replied, “I don’t believe there’s been a single one of the investigations that have been conducted, which has got to be six, seven, eight or nine.”  General Pace, the Marine General, Vice Chairman, standing next to him, put in, “Ten major reviews and a hundred individual investigations of one kind or another, sir.”  Secretary Rumsfeld: “And have you seen one that characterized it as systemic or systematic?”  General Pace, sounding like a man about to be promoted, which he was, “No, sir.”  Secretary Rumsfeld: “I haven’t either.”  Reporter: “What about…?”  Secretary Rumsfeld: “Next question.” 

I’m glad you all laughed, because that’s precisely what the reporters did, which meant that the reporter couldn’t point out a number of very obvious things, which is that if you look at any of these reports, none of which are complete, none of which are adequate, but if you look at any one, the word systemic leaps out at you.   

Taguba Report.  “Unfortunately, many of the systemic problems that surfaced during Major General Rider’s team’s assessment are the same issues subject to this investigation.”  In the conclusion from Taguba, who was a Major General, “Between October and December 2003, at the Abu Ghraib Confinement Center, numerous instances of sadistic, blatant and wanton criminal abuses were inflicted on several detainees.  This systemic and illegal abuse of detainees was intentionally perpetrated.”   

Or we can go back to the Red Cross report, which is the only contemporaneous report in which the investigators were actually looking at what was going on, this quote,  

“The ill treatment by coalition personnel during interrogation was not systematic except with regard to persons arrested in connection with suspected security offenses or deemed to have intelligence value.  In these cases, persons deprived of their liberty supervised by the military intelligence were subject to a variety of ill treatments, ranging from insults and humiliation to both physical and psychological coercion that, in some cases, might amount to torture.  In order to force them to cooperate with their interrogators, in certain cases, such as in Abu Ghraib military intelligence sections, methods of physical and psychological coercion used by the interrogators appeared to be part of the standard operating procedures by military intelligence personnel to obtain confessions and extract information.”   

Then they list them: hooding, handcuffing, beatings, boots on the head, longtime hooding for days in a row.   

“These methods of physical and psychological coercion were used by the military intelligence in a systematic way” – they’re talking about American forces – “to gain confessions and extract information or other forms of cooperation from persons who had been arrested in connection with suspected security offenses or deemed to have an intelligence value.”   

These are people in Iraq who are protected by the Geneva Conventions.  That is only two reports.  You could go through the ten of them and find many, many uses of the words “systemic” and “systematic.” 

Now, obviously I’ve made my point.  Why am I going on about it?  I’m going on about it because the issue of systemic, systematic is absolutely critical.  On the day when Lynndie England is sentenced, we should be very aware that the government in the last year, for those photographs were made public a year ago, has followed a very clear strategy.  That strategy is to sever the connection between what was done on the ground in Abu Ghraib, Guantánamo, Bagram and many other places, and what is, so far as we know, still being done, to sever the connection between that and between what policymakers did in their offices.   

And I’m talking about policymakers in the Department of Justice, including Professor Yoo, policymakers in the Department of Defense, policymakers in the White House.  Now, there is a very clear chain of evidence, chain of policy linking these behaviors to decisions and policies made in those offices.  And it is my contention, and it is not just mine – all you have to do is, as the phrase is, look at the documents – that that can be shown and demonstrated.  You just have to follow it.   

One of the reasons I published this book, which is 80 percent of it written by government employees like Professor Yoo and others, is to show that if you actually read them, if you actually look at them, and Secretary Rumsfeld is counting on the fact that you will not, that this chain of evidence is absolutely clear.  And that you’re sitting in a law school, you should realize, it seems to me – and forgive me for hectoring you – that what you do, what you write, the policies you set, the ways you interpret international and other laws like the convention against torture, like the Geneva Conventions, will have a very real effect on what people are doing in the interrogation rooms. 

Now, forgive me for hectoring you, as I say, but what I would like to do is read you something, an account.  It’s a deposition of what happened in an interrogation room in Abu Ghraib, in the fall of 2003.  Now, these things have been public for a year.  They were taken by the Criminal Investigation Division of the Army.  They are legal documents.  And they have been confirmed in a way I’ll tell you in a moment.  This is Detainee 7. 

“The first day they put me in a dark room and started hitting me in the head and stomach and legs.  They made me raise my hands and sit on my knees.  I was like that for four hours.  Then the interrogator came and he was looking at me while they were beating me.”  It’s a very important sentence.  “The interrogator came and he was looking at me while they were beating me.  Then I stayed in this room for five days naked with no clothes.  They put handcuffs on my hand and they cuffed me high for seven or eight hours, and that caused a rupture to my right hand, and I had a cut that was bleeding and had pus coming from it.”   

High cuffing is a stress position.  The idea is to keep the prisoner on his toes, or indeed, dangling from the bars, and to dislocate the shoulder.   

“They kept me this way on 24, 25 and 26 October,” three days hanging there.  “And in the following days they also put a bag over my head.”  This is hooding.  The euphemistic term for it is “sensory deprivation,” approved explicitly by Secretary Rumsfeld.  “And of course this whole time I was without clothes and without anything to sleep on.  And one day in November they started a different type of punishment where an American police came in my room, put a bag over my head, and cuffed my hands and took me out of the room into the hallway.  He started beating me, him and five other American police.  I could see their feet only from under the bag.”   

The hood is used to increase the effectiveness of a beating, because you cannot see the blow coming.   

“A couple of those police, they were female, because I heard their voices, and I saw two of the police that were hitting me before they put the bag over my head.  One of them was wearing glasses.  I couldn’t read his name because he put tape over his name.  Some of the things they did was make me sit down like a dog.  They would hold the string from the bag and make me bark like a dog, and they were laughing at me.  One of the police was telling me to crawl in Arabic, so I crawled on my stomach, and the police were spitting on me when I was crawling and hitting me.  Then the police started beating me on my kidneys.  They hit me on my right ear.  It started bleeding and I lost consciousness.”   

And I won’t inflict all of this on you, but he lost consciousness several times during the course of this, beaten into unconsciousness.   

“A few days before they hit me on my ear” – the ear was mostly torn off and had to be sewn back on – “the guy who wears glasses put red women’s underwear over my head and then he tied me to the window that is in the cell with my hands behind my back until I lost consciousness.”  A stress position again.  “When I was in Room No. 1, they told me to lie down on my stomach.  They were jumping from the bed onto my back and legs.  The other two were spitting on me.  After the guy with glasses got tired, the American soldiers brought me to the ground, and tied my hands to the door while laying down on my stomach.”  Remember, he’s naked all of this time.   

“One of the police was pissing on me and laughing at me.  The soldier and his friend told me to lie down in a loud voice and so I did.  The policeman was opening my legs with a bag over my head and he sat down between my legs on his knees and I was looking at him from under the bag, and they wanted to do me because I saw him and he was opening his pants, so I started screaming loudly.  The other police started hitting me with his feet on my neck and put his feet on my head so I couldn’t scream.  Then they put the loudspeaker inside the room and they closed the door and he was yelling into the microphone.”  That is called use of noise to induce stress, also explicitly approved.   

“They took me to the room and they signaled me to get on the floor.  One of the police put a stick that he always carried with him inside my ass.  I felt it going inside me about two centimeters.  I started screaming.  He pulled it out.  He washed it with water inside the room.  Then two American girls that were there when they were beating me, they were hitting me with a ball made of sponge on my dick.  When I was tied up in the room, one of the girls with blonde hair, she’s white, she was playing with my dick, and they were taking pictures of me during all these instances.” 

Now, this is very long.  I’m giving you some excerpts.  This has been public for a year.  There are many other depositions.  The Fay-Jones Report which went through this confirmed it explicitly, those details.  And then it said something interesting.  It said that “military intelligence officers should have been aware of what was being done to this detainee.”  Now, leaving aside the fact, whether you’re interrogating everybody – someone every day, the idea that you might not notice the fact that his hand is bleeding or that he’s abused in this very systematic way, we can just go back to the statement in which he says, again, that the interrogator came into the room and was watching, okay?   

Now, Generals Fay and Jones did not contradict that.  Indeed, they don’t mention it.  They simply leave it out.  Why?  First of all because it was true, and secondly because to confirm it confirms the connection between what’s happening on the ground, the interrogators, that is, military intelligence.  Once you get to military intelligence, you get to policy.  Once you get to policy, you get to policymakers.  Once you get to policymakers, you are dealing in the realm of power, where people are sitting in their offices. 

Now, let’s trace it back from what you just heard.  Well, we can begin with the decisions about the Geneva Conventions, if you’d like, the Bush memo on February 7th, 2002, in which the decision was made to withhold Geneva Convention protection from prisoners in Afghanistan.  Now, I’ll begin there for a particular reason.  We’re talking about Iraq.  Then we have the so-called Bybee memo or torture memo, as it’s known, which is dated August 1^st, 2002.  Torture notably is redefined in that memo.  Torture, as you know, is illegal.  The United States signed the Convention Against Torture in 1994.  It has domestic statutes prohibiting it.   

The Bybee memo gets around this by redefining the word.  What is torture?  Well, it has to be something that causes pain equivalent to major organ failure or death.  Now, I ask you to think about that phrase for a moment because you can do a lot to somebody, in fact you can probably do everything that I just recounted to you, the excerpted version, without going beyond that standard.  Along with that document, of course, is a letter by Professor Yoo stating the torture of Al Qaeda and Taliban would not be a war crime because they are illegal combatants.  We can talk about that, perhaps, in the discussion period. 

Now, where can we go from there?  Well, we can go to the DOD, Department of Justice Working Group Report dated April 4^th, 2003 in which the Department of Defense approves 35 interrogation methods explicitly.  The include: forced nudity, use of dogs, sleep deprivation – that is, use of dogs to induce stress – sleep deprivation, forced grooming – that’s shaving beards, shaving hair – and now that particular document from the Department of Defense excerpts, in very large part, the memo, the so-called torture memo which Professor Yoo worked on and came out of the Office of Legal Counsel in the Department of Justice. 

Now, two weeks later Secretary Rumsfeld authorized 24 interrogation techniques, including sleep deprivation, dietary manipulation, isolation, exposure to severe temperatures, and we could cite a number of others, but I do not have enough time, alas.  There is a way by which – and it’s somewhat complicated – that these methods, which were reserved for prisoners who were in Guantánamo, and those prisoners, as Professor Yoo has talked about, had from them withheld protection of the Geneva Convention.   

And I should add here that his discussion of the Geneva Convention, and I’m not a lawyer, but still, those of you who have read the document will know that it is deeply misleading, because he focused on POW status, and in fact what is at issue here is Article 3 protection, which prohibits torture, prohibits cruel treatment, and allows coercive interrogation.  So the entire statement of that was, it seemed to me, completely misleading.  But alas, I’m not a lawyer.  Perhaps I would not have been misled if I was a lawyer. 

We could go through a lot of these steps, but the fact is that these procedures were used in Guantánamo.  They were then brought to Iraq in the fall of 2003 by General Miller, General Jeffrey Miller, who was running Guantánamo, who brought selected interrogation techniques.  He was sent to Iraq to “Gitmo-ize” it, in the phrase used by Janis Karpinski, the Brigadier General nominally in control of Abu Ghraib.  He gave his policies to Lieutenant General Sanchez, who was then in control of the Iraqi theatre.  Lieutenant General Sanchez wrote a new policy on September the 14th, 2003.   

And those – we know very specifically that Colonel Mark Warren, who was his lawyer, his JAG, that is, Lieutenant Sanchez, used these documents, used the working group report which drew very extensively on Professor Yoo’s and other writers in the Department of Justice August, 2002 torture memo, Bybee memo, I should call it.  We know that those documents were used in setting policy, very specifically, at the level of captains.   Captain [Bolz] and others cited these policies, cited “unlawful combatant” and other phrases which did not legally apply to Iraq, but which, according to the Schlesinger Commission, migrated to Iraq. 

I’m being hauled offstage, so let me make a couple of final points, if my dear host and friend Harry – really dear friend Harry – will let me.  The major point I want to make– 

Mr. Kreisler:  Brief, brief. 

Mr. Danner:  Briefly, briefly.  We are not talking about history here, and we are not talking about theory here.  We are talking about people setting policies that have the result of those things being done to other human beings.  We have every indication that those things, many of them, are still being done to other human beings.  I have a document from Guantánamo.  It’s very brief.  It comes from an FBI counterterrorism official.  Not a human rights journalist, not a liberal reporter.  This guy is counterterrorism.  He wrote,  

“On a couple of occasions” – this is four months after the Abu Ghraib photographs were broadcast, last summer, okay?  “On a couple of occasions I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor with no chair, food or water.  Most times they had urinated or defecated on themselves and had been left there for 18 to 24 hours or more.  On one occasion” – this is Cuba during the summer – “on one occasion the air conditioning had been turned up so far, the temperature was so cold in the room that the bare footed detainee was shaking with cold.   

When I asked the MPs what was going on, I was told that the interrogators from the day prior had ordered this treatment, and the detainee was not to be moved.  On another occasion the air conditioning had been turned off, making the temperature in the unventilated room well over a hundred degrees.  The detainee was almost unconscious on the floor with a pile of hair next to him.  He had apparently been literally pulling his own hair out throughout the night.  On another occasion, not only was the temperature unbearably hot, but extremely loud rap music was being played in the room and had been since the day before, with the detainee chained hand and foot in the fetal position on the tile floor,”  

which you will recognize as stress positions, use of noise to induce stress, and temperature adjustment, all of them approved explicitly by the Secretary of Defense.  All of them coming out of the memos that we’ve discussed. 

So Harry’s asked me to talk about consequences.  I wish I could have given you a more theoretical discussion, but I hope I’ve given you an indication of some of the consequences.  And I’m very glad to engage in whatever discussion.  Thank you.  [Applause.] 

Mr. Kreisler:  We’ll take some more questions.  We’ll pass out the cards again and pick up the cards.  I’m going to ask each of our panelists to comment on what his co-panelists have said.  Tom, you want to go first?  I’ll give you, at the most, five minutes. 

Mr. Farer:  Is this on?  Yeah.  First, on the question of responsibility for the acts of torture which were enumerated by Mark, in a way it’s an open and shut case because why would the Justice Department – in circumstantial evidence, as a lawyer, I know circumstantial evidence is usually the most persuasive evidence, the most powerful evidence.  Most prosecutors recognize circumstantial evidence is more effective than eyewitness testimony when people are identifying other people at moments of high stress.  Circumstantial evidence is the core of effective prosecution.  

What’s the circumstantial evidence here?  The office of the President or the Vice President or the Secretary of Defense, I’m not sure just where, seeks at an early stage after 9/11, at the beginning of the struggle against terrorism, an opinion from the Department of Justice about terrorism – I mean, about torture, about the use of torture.  Why?  Why would the highest officials of the United States government seek such an opinion from the principal legal officer of the United States unless they intended to employ these methods, but hope to do it in a way which would not engage them in individual delinquency, violation of American criminal law.  The circumstantial evidence seems to me absolutely overwhelming.  It merely supports the point that Mark made.  I don’t think that’s an interesting question.   

The more interesting, or at least debatable question, perhaps, is whether torture is justified under these circumstances.  But to pretend – if anyone is pretending – that there have been random acts of torture or that torture is an anomaly is…you’d have to be a fool or a liar.  That would be my first point.  It’s kind of an obvious point, but I thought I’d make it because Mark made every other point but that one. 

The second point has to do with the sense of crisis which has been used to justify many of the measures that have been employed – not just terror, but incarceration, detention, the effort to prevent judicial review, the initial decisions about the military commissions that would try persons who were declared to be enemy combatants.  As someone who spent eight years investigating every hellhole in Latin America, those were cases of state terror, as opposed to NGO terror, I was really intrigued by the initial set of rules for these military commissions.  And one of the items that I found most striking is that the only persons who would be allowed to serve as defense lawyers were serving members of the military, that is, people who are subject to military discipline.   

Now, the last time I had encountered that happened to be when I and my colleagues in the Inter-American Human Rights Commission were investigating the disappearances in Argentina.  The Argentine military, the lucky few who lived through the experience of encounter with marshal law in Argentina – most of the people who were swept up didn’t.  They were tortured mercilessly and then blown to bits, eviscerated, drugged and dropped into the South Atlantic.  But some people actually survived.  Most of them were arrested before the disappearance policy was introduced.  And they were brought before military commissions.   

And one of the things that struck me about the Argentine military commissions, that struck my colleagues, who I can assure you are not liberals.  Some of them barely believed in democracy with a small “d,” and yet our report was unanimous.  And one of the striking things was that even a retired Argentine general could not serve as a defense counsel under the Argentine system; only serving officers could.  And here we were adopting the very same method.  Of course my colleagues concluded that there was a total violation of due process, even though they accepted the idea of trial by military tribunal, which I questioned at the time, but they said it’s allowed in every Latin American constitution.   

So I said, then let’s just look at the due process.  Due process really means an opportunity to make a fair defense, to demonstrate that you are not the person or you didn’t commit the act.  That’s ultimately what due process is about.  And if you’re going to be tried by serving officers and you’re going to be defended by serving officers, and you don’t have access to evidence, I have seen military tribunals that probably complied with minimal due process.  But I’ve also seen some that didn’t.  And what struck me, and which I think is so revealing about the way we have gone about the struggle against terrorism, is that we were willing to adopt some of the worst methods of state terror regimes in Latin America in order to do so. 

Mr. Kreisler:  John.  [Applause.] 

Mr. Yoo:  Well, it probably won’t be surprising that I’m going to spend most of my comments responding to what Professor Danner had to say.  First, I certainly agree that the conduct which he described was illegal, deplorable, immoral, and so on, whatever words you want to use.  And certainly to read out those kind of descriptions should not be taken as an attempt to try to persuade you that I agree with it.  Just as if I could sit here and in a very colorful way read you descriptions about the death and destruction on September 11^th and claim that people who are critics of the Administration’s policies have no problems with allowing that to happen or are not willing to undertake measures to stop it.  I mean, I think it’s a nice rhetorical trick, but I don’t think it should be used in any way to suggest that the Administration or military commanders or people who worked in the government agreed with that kind of conduct. 

Second, let me say that the conduct that was described in Abu Ghraib was never ordered.  It clearly violated the Geneva Conventions.  The military and the Administration was very clear that the Geneva Conventions applied in Iraq.  And I don’t think anyone would doubt that the conduct he described violated the Geneva Conventions and violated the orders about the conduct that was supposed to occur in the military. 

Third, there have been a lot of reports and studies and commissions now into what happened in Abu Ghraib.  None of them say that the conduct that occurred in Abu Ghraib was ordered by people in Washington or in the Pentagon.  In fact – and yeah, let’s talk about facts – I mean, in fact the Schlesinger-Brown Commission Report – and of course you could always say it’s a whitewash, I suppose, but they’re both Democrats and Republicans.   

Democratic and Republican Secretaries of Defense and former members of Congress have found that the rate of detainee abuse in the Iraq war has been lower than any previous conflict since World War II waged by the United States.  And I think – Senator Lieberman, in hearings before the Armed Services Committee, said that the rate of detainee abuse was .10 percent of all detainees captured.  And the Schlesinger Report found that 50 percent of those claims – those aren’t even investigated and found to have occurred, but claims – occurred at the point of capture.   

Now, I suppose you can criticize all these reports and say they’re all people who have a purpose in hiding the facts, or they’re not going to have any interest in the truth, but I think if you’re going to discount all these reports, then you’re proposing conspiracy of a massive kind and, well, I can’t convince you otherwise if that’s what you believe. 

I think the real problem in Abu Ghraib is that we had sent in insufficient resources and we did not train people sufficiently because we did not anticipate that there would be large-scale detention operations in Iraq and that there would be a large insurgency of the kind we’ve seen.  So I think one of the points that’s raised is that in Guantánamo Bay, the ratio of guards to prisoners, I think, is something like one to one, whereas the ratio of guards to prisoners in Abu Ghraib was one to 75.  And I think it’s unfortunate, but when you have large institutions which have jobs like that to carry out, there are going to be people who violate the rules.   

We have, for example, in this country, police who have the job of stopping crime.  Cases of police abuse and prisoner abuse occur in our own country.  That doesn’t mean there’s a massive conspiracy in the United States to encourage and sanction that kind of conduct.  What it does mean is that there are people who violate the rules, and we have an investigatory and criminal justice system to hold them responsible. 

Fifth, I think that Mark and other members of the media have constructed what I would think of as a torture narrative, where they claim that – and you heard it many times.  So, for example, he said Secretary Rumsfeld approved this interrogation method, and Secretary Rumsfeld approved that interrogation method.  And all the cases he was talking about were descriptions of Abu Ghraib.  Secretary Rumsfeld did not approve any of those interrogation methods for the Iraq war.  It’s quite clear he approved certain interrogation methods, which were not to be applied in any way as he described, for Guantánamo Bay, and they were only to be used in situations where he personally approved – he, the Secretary of Defense personally approved their use as to an exact individual.   

And I think what you have amongst people in the media is an effort to blur the lines between the war on terrorism and the war and Iraq and to claim that all of these decisions that had to do with the war on terrorism apply to the war in Iraq without any proof.  And if you have examples where there are memos that say that the Geneva Conventions do not apply in Iraq, or that the rules that were developed by this working group which were to apply to Guantánamo Bay are to be used in Iraq, then point them out to me.   

Male Voice:  What about the _? 

Mr. Kreisler:  We’re not going to – please, let’s let him finish and then we’ll have Mark respond.  Please. 

Mr. Yoo:  Now, the last thing I’d say about the Common Article 3 and the prisoners of war.  Now, under the Geneva Conventions, as they existed in 1949, there are two basic categories.  There are enemy combatants who are prisoners of war under the Geneva Conventions and there are civilians.  Enemy combatants can be targeted, they can be shot, they can be captured and detained.  Now if members of Al Qaeda are not prisoners of war and are subject to Common Article 3, then is it the case that they are civilians?  And if it’s the case that they are civilians, is it the case that the United States and other countries cannot use preventative military force against them?  So, for example, if they are civilians, does the United States have to wait until terrorists are actually about to launch an imminent attack before force can be used to stop them?  If they’re enemy combatants, then the United States can use force much earlier.  But if they are civilians subject to Common Article 3, then I think the implication is that they are civilians.   

And let me end by raising the actual case, because as Mark said, the memos that he’s talking about, whether the Geneva Conventions apply toward terrorism, had nothing to do with Iraq.  That decision occurs in February of 2002, long before there’s any consideration of any conflict in Iraq.  And I can tell you as someone…  [Laughter..]  I can tell you as someone in the government, there was no thought that there was a war in Iraq that was going to occur.  Well. 

The second thing is…well. 

Mr. Danner:  I’m sorry.  No, go ahead.  I thought you’d finished.  I apologize. 

Mr. Kreisler:  Please, go ahead. 

Mr. Yoo:  The second thing is the question of interrogations.  So what happened is the United States captured Abu Zubaida and other high ranking Al Qaeda members who were directly responsible for operational planning of attacks on the United States by Al Qaeda.  And these people were trained to resist normal interrogation methods that are applied by the United States.  Now, the question I’d ask is what do the other members of the panel think can be done to interrogate these people who have, if anyone does, have information about attacks that are planned on the United States to occur in the future?  Is it the case, if they are prisoners of war or if they’re subject to Common Article 3 that the only thing the United States can do is shout at them, given the possible benefits that occur from interrogation? 

Mr. Kreisler:  Mark. 

Mr. Danner:  Well, thank you.  Tom Farer began by essentially saying, in his response, by saying that, well, who could really doubt that this is systemic?  Nobody really doubts that.  It’s kind of obvious.  It’s a given point.  And I would point out that Mr. Yoo doubts it, and that most of the – it’s the policy of the American government that a few bad apples carried out these activities.  I use that phrase advisedly, not only because it’s been used, actually, by Administration officials, who have also used other variations like “Animal House on the night shift” to suggest these were isolated acts of sadism, but also because, as I discovered, it’s actually a legal term of art, and the usual way that governments respond.   

A notable case is Britain in the mid-seventies, the early to mid-seventies in the five techniques case.  When governments are accused of torture, this is very often their response.  It was a few bad apples.  We will punish them.  And as I say, today was the trial, or at least the sentencing, excuse me, of Lynndie England.  So we’ve had these seven people, or six of them, I believe, now tried as a few bad apples.  So the notion that everybody agrees that this is systematic, that that’s a given point and everybody knows it is not true.  People don’t know it.   

People, in large part, believe – and this is one of the reasons why these people were brought back.  They were being tried in Baghdad, which would be customary.  Many of them were brought back to Fort Hood essentially because the military believed that these trials were not getting enough publicity and it needed to be shown to Americans that the people who had done these things were being punished. 

Well, there are a lot of points that Mr. Yoo just made.  First of all, I read that document.  I thought a lot about it before I read it.  There wasn’t much time.  I didn’t want to use all my time reading this.  But I thought it was very important to show people what actually had happened.  And there are a lot of documents like that.  And the fact is that this wasn’t simply “Animal House on the night shift.”  This happened during interrogation.  Much of it happened during interrogation.  The Schlesinger Report itself suggests that more than a third of “the incidents,” quote, unquote, happened during interrogation sessions, so this was not simply military policemen acting out.   

And, you know, you have to, I mean, at a certain point you have to plead with an audience such as you to read the documents.  You know, just read the reports.  Read them, because it’s in there.  They describe, Fay-Jones describes, at great length, what happened.  And this image on the cover of this book, this so famous image, which is on murals all over Iraq – American troops paint over is, but you see it throughout the Middle East now.  Supposedly this was some military police people just getting up to high jinx at night.   

Well, people who know anything about interrogation know that this is a technique developed by the Brazilian autocracy, authoritarian regime in the ‘60s.  And Tom probably knows this.  It’s called the Vietnam.  It combines stress position, that is, standing up and not moving, with electrocution.  And, you know, one doesn’t just kind of fall onto this and say, hey, let’s put some wires on and put him on a box.  I mean, this is a recognizable form of interrogation.  And again, I don’t know what else to day except you should read these reports.   

Now, Professor Yoo essentially told you to do the same thing, and said, well, you know, the reports show that this wasn’t systematic behavior and nobody ordered it, it was illegal, deplorable, etc.  I tried to suggest, in going back along these memos, and talking about how the decisions made for the war on terror migrated – that word is not mine, that word is former Secretary of Defense Schlesinger’s in the report –  migrated to Iraq.  This is not – I didn’t make that up.  I mean, this is what the report found.   

Now, so the question of the fact that these activities, these permissible interrogation techniques that were approved for Guantánamo, first of all, the question of whether they migrated and were then used in Iraq is a closed question, you know?  This is – I mean, the reports that he is citing show that.  So the only thing I can do, rather than wave the book around is – or, you know, you don’t have to buy the book.  I mean, get it on the Internet, wherever.  The reports are all over the place.  But that question has been decided.  That is not a question in doubt.   

If you want to do some more reporting, you know, Colonel Warren, other people who were close to Sanchez – Colonel Warren is his lawyer, and he has said that he used these guidelines to develop the guidelines for interrogation in Iraq.  That is a matter of fact.  It’s also a matter of fact that you get on levels, on operational levels like Captain Bolz, who was the staff S2 in the task force in Iraq who stressed, you know, the reason we can do this stuff to these people is they’re unlawful combatants.  I mean, he was essentially quoting these documents.  So the notion that this is still arguable is just wrong. 

Now, the reports.  Let’s talk about the reports for a minute that, what was it that Secretary Rumsfeld said?  “I don’t believe there’s been a single one of these investigations that’s been conducted, which has got to be six, seven, eight, or nine.”  Ten major reviews.  You know, you’ll learn, I think, as lawyers that when people start telling you there have been ten major reviews, that means there’s been less than one major review.  That is, the Administration took up a particular strategy here.  It’s been very clever.   

Essentially you have this chain of command, beginning in those rooms in Abu Ghraib and in Guantánamo and in Bagram and elsewhere, and it goes up through military police, military intelligence, officer level, command level in those theatres, back to command level in the United States, back to the Secretary of Defense, on up Justice Department, White House.  Think of it as a long chain.  Each of those investigations has taken up a couple links in those chains.  So you have Taguba doing military police.  You have Fay-Jones doing military intelligence.  None of them has done all of it.  And military officers, as anyone familiar with the military knows, have the power to look down the chain of command, not up it.  That’s explicit policy.  You cannot investigate your superiors.  You certainly cannot investigate the Secretary of Defense, the counsel to the President or the President.   

So are all these reports a conspiracy?  No, I would not argue that.  I urge you to read them.  Some of them are very short.  I urge you to read them if you’re interested in this question.  Go to the documents.  Read what Professor Yoo wrote, read these other documents, and judge for yourself.  I don’t say they’re all conspiracy theories at all.  I say there’s a lot of extremely valuable information in them.  But read them aggressively.  Read them like attorneys.  And that means read the body of the report, go to the executive summary, go to the conclusion, and decide for yourself whether the executive summaries and the conclusions agree with what’s in the reports themselves.  Find out what happened to Detainee 7.  You know his story already.  Find out his story.  You can look him up in the reports. 

Well, Professor Yoo said a lot about the rate of detention is lower than any other war, bla-bla-bla.  You know, excuse me.  I don’t mean to be disrespectful.  It’s just the fact is– 

Mr. Yoo:  I’m sure.  Bla-bla-bla? 

Mr. Danner:  Well, I apologize.  But I say bla-bla-bla because these arguments, again, as you know, how many detainees were in Iraq?  Fifty thousand.  Well, you know, there’s no actual record of that.  If you want to take…you know, these numbers are incredibly fungible and manipulatable.  If you want to take a town that you’ve moved into as suddenly under detention and pump up the numbers, which the U.S. military has done for those purposes, you can do that.   

The fact is that, you know, there has been extreme, systematic, continuing abuse.  The fact is that the U.S. government, at the policy level, has in essence approved that abuse insofar as it’s in their power to approve that abuse.  And that is why, to go to the final point – I know we want to have questions here – that is why in talking and describing what happened to this detainee I tried to show you the meaning of the euphemisms, because those euphemisms – and again, you can look at what was approved – those euphemisms, when they have content, when you say sensory deprivation, it has content.   

What is the content?  The content is putting a hood on the guy’s head for 72 hours.  When you say stress position, it has content.  You’re handcuffing someone, you’re making them – I mean, I could go into a lot of things that were done and that are being done in Guantánamo and before in Abu Ghraib, but I was trying to show you what exactly these activities are.  An I assure you, it is not an exaggeration.  I’ve been in Iraq.  I’ve interviewed a lot of interrogators.  I’ve spent a lot of time doing it.  And this is – I wish it was an exaggeration, I really do.  It is not, and it is approved government policy.  And I urge you to read the documents.  Thank you.  [Applause.] 

Mr. Kreisler:  I want to address some of the questions which come from some of the students.  One of the themes that we’ve playing with with the course, and we’ve looked at this through interviews that I have done, this question of the label “war on terrorism.”  I showed the students an interview that I had done with David Frum, who was a speech writer, and he thought it was very important that this distinction was made, and he thought it was a critical moment of recognition after 9/11 by President Bush.   

And another question that comes up related to this deals with another interview that I showed the class with Michael Mann, the historian at UCLA, that that label blurs the distinction between international terrorism and national liberation movements that use terrorism.   

And I have an anecdote here that I have to tell very briefly.  I saw Martin Maley about a year before he died.  Martin Maley was a distinguished Russian historian here who was very, very conservative in the Cold War.  And he came up to me at a party and he said, “What is this business about terrorism?  What does it mean a war on terrorism?  Terrorism is a tactic.”   

What I’m hearing here is that this is a very important assumption, that we are now in a war on terrorism, and that what follows from that is a number of efforts to write rules, but they all get distorted somehow, because suddenly you’re in Iraq with the war there, and ideas that are flowing in the bureaucracy, that have come down in legal memos, there’s just a lot of confusion.  So I want to ask our panelists, is it correct to say that it’s a war on terrorism or is this a war against Al Qaeda and a war against particular nation-states that sponsor terrorism?  Any comment on that from our..? 

Mr. Farer:  Well, it’s a question of choice how you describe what we’re trying to do to counter terrorism.  The danger of calling it a war is obvious.  In a time of real war between states, a war like the Second War, a war where you feel your very national existence is threatened, a war where you feel the balance of power in the entire world is at stake, you are going to be able, as a psychological matter and as a political matter, to be able to do things which you could not conceivably do in any other time.   

So in the case of the Second World War, one of the things we did, of course, was to round up all the Japanese Americans and Japanese residents, as you all know, and put them in concentration camps.  And confiscate their property, I might add, which was never returned.  Long after the war.  And we kept them in those camps even after it was clear that there was no longer any threat to the Pacific Coast of the United States, which was the original justification for rounding them up.  After the Battle of Midway in 1942, assuming there was every a threat to the West Coast, but after the Battle of Midway in 1942, there was no longer any threat to the West Coast.  But these people were kept in the concentration camps until the end of the war, and their property was never returned.  Terrible things can be done in the name of fighting a war, including torture or summary execution.   

So one of – I think it’s a profound political policy question, it’s a moral question.  It is a legal question too, but I think it needs to be considered in all of these respects.  And if you’re fighting a war which has no likely end, that is, we’re going to be dealing with some kinds of terrorism as far as the mind can stretch.  And indeed, the President of the United States himself has said that.  It’s not even clear that we will ever extinguish the Al Qaeda network because it’s not an organization with some hierarchical structure, it’s – almost any group that wants to call itself affiliated with or informed or inspired by Osama bin Laden is now reckoned as part of the network.  The word network almost has no meaning here.  It’s a lot of groups that are hostile to the United States. 

Do they individually – well, first of all, the point is that we’re going to have to live with this.  We’ll eliminate some groups, other groups will arise.  Changes in our policies may diminish the recruits for some groups.  But there is going to be a threat in perpetuity.  And if we treat this threat in perpetuity as a war, then the constitutional system of the United States will be transformed.  Not all at once, but over time.  And that is why I think it is unwise to call it a war.  I call it a struggle. 

The British lived with the IRA for what, three decades.  And not only were many people – in fact, several thousand people killed in Northern Ireland, but bombs were placed in Britain.  Britain lived with that.  The Spaniards have been fighting the Basque terrorists for about 30 years.  They killed a head of state.  They have killed several hundred local government officials, police.  It’s a serious problem.  And they’re willing to kill large numbers of people.   

John’s point – this is my last point about this.  This is a point I wanted to make earlier.  John says this is an unparalleled, an unparalleled threat, and the main element that made it unparalleled is the scale of destruction.  But I think that’s simply inaccurate.  First of all, the particular destruction, the 9/11 case could have been averted in a dozen different ways if we had not been negligent, number one.  Number two, just think of the Neo-Fascist movement in Italy which, with one bomb, killed hundreds of people in the Bologna Railroad Station.   

Or think of the Mafia.  This nice distinction between international – or crime and between people who are motivated by commercial concerns and people motivated by political concerns, the Mafia killed leading members of the judiciary, leading prosecutors, and even bombed one of the main cultural centers, cultural artifacts of Italy, the Borghese Museum in Florence.  Other countries have lived with very serious attacks on them, whether from organized crime or from terrorists, but they have not declared war, and I think it’s largely because of the implications for the very basic liberties of your society if you do. 

Mr. Kreisler:  Anybody else want to comment on that?  Yeah, John. 

Mr. Yoo:  First I think it’s important to distinguish between the political rhetoric that the Administration uses and the legal concept of war.  So it’s certainly the case that the Administration is using the political rhetoric that we’re at war with terrorism.  And it does have problems, because we have used the metaphor of war with other persistent social problems like drugs.  We have a war on drugs, we have a war on crime, we’ve had a war on poverty.  And those are persistent social problems.  Terrorism is a tactic.  So I’d be the first to admit where the United States is not at war with anyone who might use terrorism as a method, we’re certainly not at war with every terrorist group in the world. 

The second thing is I think legally there are two conflicts.  There’s a war against Al Qaeda.  And I think Tom and I think other people have very good arguments why, as a matter of policy, we might not want to use the war metaphor with all its attributed powers to fight Al Qaeda.  I don’t think the law compels that the conflict with Al Qaeda be treated as something other than what it has to be treated as, a crime.  I think that our policymakers have the discretion to treat it as war, and certainly, it seems to me, all three branches of the federal government consider the war with Al Qaeda to be a war.   

So the President announced and Congress passed an authorization to use force against anyone connected with the 9/11 attacks.  And the Supreme Court last summer found that people who were captured in the conflict as enemy combatants can be detained without trial.  And we have a war against Iraq, which is a separate war, and is not a war against terrorism.  It may have strategic goals that people in the Administration think will assist in defeating radical extremis Islamicists in the Middle East or so on, but it’s a different conflict.  Just as the way I would say the Cold War could be seen as an exceptionally long conflict that had many different dimensions, where we had individual wars in Korea, Vietnam, all around the world.  They were all individual different wars, part of a larger strategy and a longer struggle.   

The third thing I’d say, and I think Tom at the end really hits on the most difficult legal and policy question of the war, which is when is it over?  Because one can sometimes justify or expand the federal government powers or national powers in war time because they are an emergency, but they will have an end.  And we don’t want to live in a permanent state of emergency.  And the problem with the war on terrorism is precisely because we are not fighting a nation-state with which we could sign a peace treaty where we could end a state of war. 

And we have been fortunate, in American history, to have fought very short wars.  Countries in Europe, however, have fought some very long wars.  Just because a war might be long doesn’t mean it’s not a war.  I think the harder thing to figure out is how do you define when a conflict with a non-state terrorist organization is over, and when there’s no peace treaty, there’s no likelihood that the other side will force a peace treaty on its own members?   

And so there I would say, you know, I think one way you would figure it out is if you have sufficiently destroyed or degraded the resources and capabilities of Al Qaeda, which is the specific enemy in the war on terrorism, whether you have done that sufficiently that they cannot pose a serious threat of attack on the United States.  But I don’t know if that’s the right answer.  I think we certainly could use a lot of work on trying to figure that out.  Maybe we don’t need to figure it out just yet, because I happen to think, unfortunately, that we have made good progress in the war against Al Qaeda, but it’s nowhere near over.  But that, I think, really is the thing that we need to figure out in order to know when the period of emergency would be over. 

Mr. Kreisler:  Mark. 

Mr. Danner:  Well, I agree, actually, with a lot of what Professor Yoo just said.  I think it’s true that the distinction here is whether we’re asking a question about – a rhetorical question or an ontological one.  It seems to me, you know, I have a friend who’s a military strategist who said declaring war on terror is like declaring war on air power.  You know, it’s basically nonsensical.  So why do you do it?  Well, it’s very helpful in setting forth a very clear rhetorical strategy, as far as public diplomacy goes, political diplomacy, that is.   

I mean, when it comes to setting very clearly before the American people what the government intends to do to mobilize their support, which I think the government has done, you know, did at least in the first few years after the 9/11 attacks, the government did extraordinarily well.  And it did it along trails that were well established in American history.  If you look at George W. Bush’s rhetoric, beginning with the September 20th speech, September 20th, 2001, and going right up to the second inaugural, you see echoes of the Truman Doctrine, very clearly, in which the world is divided into two separate spheres, good and evil.  The United States is the good, obviously, and must be the victor.  And you see this rhetoric, which is very powerful and strikes very deep into the American heart, it’s politically very effective.  You see that rhetoric being added to and elaborated in a very systematic way.  So it’s very worth reading George Bush’s speeches.   

The problem comes when, in Professor Yoo’s remarks about the ending of the war, and as Tom Farer, I think, pointed out, there is a certain sense in which the government does not have an interest, at a certain point, in ending the war.  First of all, declaring it over has political risks of its own, as George Bush discovered after his flight to the USS Lincoln, what, two years ago yesterday, I believe.  You know, to go out there and say the war on terror is over is a politically risky thing to do.  Secondly, it means giving up those powers that you have accrued on the basis of the declared war.   

So to me these attacks – I mean, Professor Yoo said, at the end of his opening remarks, that this kind of attack could not have been possible before September 11^th, and I thought of that and thought, well, you know, we had airliners for what,50 years.  It could have been – you know, despite all of the discussion about weapons of mass destructions, in fact this attack could have been possible before.  Nobody attempted it, that’s quite true, and it did kill a huge number of people, many more than Al Qaeda expected, if we’re to believe the videotape in which Osama bin Laden expresses his surprise that the buildings collapsed.   

But my view is that this rhetorical strategy and the legal strategy that flowed from it has been much more harmful than useful.  And we’ll see, I think, in the later stages of the war on terror, when those powers given to the Executive Branch presumably have to be wrested from it, the costs of the decisions to respond in this particular way, because it was not the only decision the government could have made. 

Mr. Kreisler:  Our time is just about up.  We’ve actually covered a lot of the questions.  Not some of the speeches that were in the cards, but the questions, definitely.  And so what I want to do is take the last – we have about nine minutes left – and I want to give each panelist two minutes, which I will enforce, and really say what is the main point that comes out of this dialogue, because we’ve actually had a very rational, reasonable discussion.  There are two different views here.  I think a lot of ideas have been put on the table.  So let’s address this to the students, and in two minutes, tell me what you think is the main point, not necessarily of this discussion, but the national discussion about the war on terrorism and its implications for international law and for human rights. 

Mr. Farer:  Let someone else go first.  I always go first. 

Mr. Kreisler:  Anybody want to volunteer?  I’ll have to impose– 

Mr. Yoo:  Let’s go in reverse order. 

Mr. Kreisler:  Huh? 

Mr. Danner:  I’ll just as soon keep the order that we have. 

Mr. Kreisler:  Okay.  Tom, who lectured me on the enforcement rules before the event, I will now enforce– 

Mr. Farer:  In other words, I don’t get a chance to think. 

Mr. Kreisler:  Yeah, well, that’s right.  We’re always good at that, but you especially. 

Mr. Yoo:  I think that’s called a backhanded compliment. 

Mr. Farer:  At speaking without thinking, yes. 

Mr. Kreisler:  I meant to say as he thinks on his feet.  It’s very clear.  I did not mean… 

Mr. Farer:  Don’t worry, I– 

Mr. Kreisler:  It’s been a long evening. 

Mr. Farer:  –I always make favorable interpretations of all comments.   

Mr. Kreisler:  Two minutes. 

Mr. Farer:  One minute would be this.  That these may be extraordinary circumstances.  I don’t think they’re war.  And it may be that some measures which we wouldn’t apply to dealing with conventional crimes, with common crimes are needed.  And I could devise them, and I could find the constitutional explanation and justification for them.  There are certain things that I think we ought not to do.  One of them is to torture people.   

Now, John was a little inconsistent there, because after saying that he really was opposed to torture, as defined by the various methods that were described by Mark in the affidavit he read, he then went on to ask what would you do if you had captured the leading figures associated with Al Qaeda?  Would you just shout at them?  And I could feel in him that tension that he didn’t want to endorse all the methods that were described by Mark, but it is tempting.  And in a way he was saying, but there are those exceptional cases. 

But in my experience of investigating terrible violations of human rights in many countries, what I find is that the exceptional case quickly becomes the ordinary case.  And perhaps this view is summed up by General Saint-Jean, one of the Argentine generals who, as the war against subversion – and they had real subversive movements in Argentina – as the war progressed, he finally said, first we will kill all the subversives, and then we will kill all those who supported the subversives, and then we will kill all those who didn’t support us.  Now, he was regarded as a little extreme in the Argentine context, but there is this powerful tendency.   

Because who are the people who actually do the torturing?  They’re not people like John or even like myself, for that matter.  It’s the psychopaths, it’s the sadists.  But people who would normally be in the prisons are now in your security services.  And if you do this over a period of time – no, this is serious – if you do this over a period of time, you will find yourself enmeshed, drawn, and I feel irreversibly into a constant expansion of these methods.  Just think – one, could I make one final point which– 

Mr. Kreisler:  We’re really out of time, so let’s let Mr.– 

Mr. Yoo:  I’ll cede a minute. 

Mr. Farer:  John cedes a minute.  John is a mensch.  Terrorism is a method, correct?  It’s an indiscriminate attack on civilians.  That’s what terrorism is.  And one of the most effective measures we can employ against terrorism is to intensify the delegitimation of these barbarous means, that is, attacks on civilians.  If we ourselves employ those means, we are defeating one of our main, or we are frustrating one of our main tactics, which is to intensify the delegitimation of certain means.  If all means are legitimate for us, all means are legitimate. 

Mr. Kreisler:  John.  [Applause.] 

Mr. Yoo:  Since I only have one minute, I’ll make my points really quick.  One, I do think it’s a choice between war and crime, and I will press another question, which is, if you are not going to use war – and I think both of the other panelists don’t think that this either is or should be treated as a war – what is the alternative?  We did use the criminal justice system in the most aggressive fashion possible, I think, up through, till September 10^th, to stop Al Qaeda, and it didn’t work.   

It did not stop the September 11^th attacks, and I don’t think we seriously degraded their efforts or their ability to attack the United States, because the rules for crime and war are quite different, to the point where the National Security Advisor, under the Clinton Administration – and I don’t think any decision would have been different under a previous Republican Administration – refused to authorize the use of force against Osama bin Laden, or refused to allow his capture because, as he put it, we did not have sufficient evidence to prove probable cause in a Federal District Court that he was involved in a criminal activity.  That is the criminal justice mindset, and I don’t think that that worked.   

And then the second point I’ll make, and then I’ll end, is we do have laws of war.  The Geneva Conventions are clear.  But they were drafted for nation-state to nation-state conflict.  And so what I would sum is why should or do you think that those rules must automatically apply to a kind of conflict – and I do think it is different, not – I do think it’s different in terms of scale – against an enemy that is not a nation-state, is not subject to the kind of deterrents, not subject to the kind of expectations of reciprocal treatment that we have applied traditionally with other nation-states?  Why should those rules apply automatically to such an unprecedented type of enemy which marries a non-state terrorist organization with the ability to inflict violence on the level that only nation-states used to possess and were interested in inflicting? 

Mr. Kreisler:  Mark.  Final two minutes. 

Mr. Danner:  Thank you.  Thank you, Harry.  Thanks for inviting me, and I’d like to thank the other panelists, and particularly Professor Yoo for being willing to come out and defend his views publicly in a true spirit of academic debate.  I appreciate that very much.   

A quick point on what he just said, however, which is that – [laughs] – I can’t resist – which is that, you know, the failure to prevent 9/11 was not a failure in mindset or a stressing of legality over war.  If some of those people had been picked up who the CIA knew were in the country, 9/11 could have been prevented.  So that does not necessarily prove anything.  Nor does it prove that the alternative to a legal treatment of terrorism is the system that we have now and is the methods that I’ve tried to describe today. 

You know, I began writing about foreign affairs mostly writing about Central America and some of the issues that Tom knows so well, and I remember writing about waterboarding.  And it’s quite extraordinary to come back 20 years later and find that the American government has apparently explicitly justified its use.  This is so-called feigned drowning, in which you strip someone down and submerge their head backward in water until they lose consciousness, and this apparently has been used Abu Zubaida and was explicitly approved by the Department of Justice.   

And it strikes me that torture, in the end, is a strategy of weakness.  That is, and this is a point similar to the one Tom just made, it has been explicitly recognized by this Administration, partly by declaring a war on terror, but also by invading Iraq, that the answer to this war must, in the end, be a political one.  That is that we have to, as it were, drain the swamp from whence terrorism comes.  In the words of Condi Rice, you have to convince young Muslims that they no longer need to drive airplanes into buildings in Manhattan and Washington.  So this is a political idea.   

And the fact is that when you resort to terror, when you produce images like this one, you’re admitting that your methods, the political methods, the spreading of democracy, cannot work, and you are essentially doing the enemy’s work for them, which is giving the lie to pretensions of democratic freedom, of democratic development, and all the things that the Administration is holding out politically to the Middle East and to Muslims as an alternative to following Osama bin Laden.   

And we see that in microcosm in Iraq where the United States has resorted to torture partly because of the failure to obtain intelligence from Iraqis on the ground, that is, the failure to get enough trust among Iraqis, which has to be the strategy of counterinsurgency, to get them to provide information that will allow you to successfully prosecute a war.  Instead you pick them up and you torture them.   

It is a strategy of weakness.  It will lead to not only moral defeat, as Tom so eloquently put it, but it will lead to a practical defeat as well.  And we have seen the damage, and I’ve talked to people in Iraq who were led to join the insurgency because of these images and because of what they represent.  So I would say to me the great final thought here is that the United States should work towards its strengths, both moral and political, and not succumb to its weakest, darkest urges, which is what the resort to torture, in the end, represents.  Thank you.  [Applause.]