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A Project of The Annenberg Public Policy Center

The Bad Apples Theory

CBS’ "Face the Nation" on May 17 featured the divergent views of Anthony Romero, executive director of the American Civil Liberties Union, and Republican Rep. Peter King of New York. Host Harry Smith asked about President Obama’s decision to block the court-ordered release of photos allegedly showing harsh treatment of detainees during interrogations in Iraq and Afghanistan. That led King to say that top government officials didn’t know about the abuse of prisoners, while Romero said the "highest levels" authorized it:

Romero, "Face the Nation," May 17: It’s the policies that authorize torture and abuse that was authorized at the highest levels and that went down the chain of command across the theaters of war. When we’re talking about two thousand photos that talk about abuse or torture under American custody, we’re not talking about a few rogue apples. We’re not talking about a few rogue soldiers. We’re talking about decisions made at the highest levels of our government. …

King: … [I]t is absolutely wrong to say this was approved at the highest levels of government. Not just President Bush but President Obama–President Obama has said that those who were guilty of this have been punished. There was a few people. … They should be punished to the fullest extent of the law. But to somehow think that by floating all these pictures out here somehow we’re going to find that somebody at a high level was involved, this is absolutely wrong. …

We can’t say what exactly these photos, gathered during investigations in 2003 to 2006, depict. But the idea that abusive interrogation techniques were not authorized by higher-ups has been contradicted by the Senate Armed Services Committee and memos from President Bush’s Justice Department.

Last December, the Senate Armed Services Committee released the summary of its bipartisan investigation into the treatment of detainees: "The abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own," the committee said. "The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees."

Republican Sen. John McCain, the ranking minority member on the committee, endorsed the report, but six of the committee’s 12 Republican members issued a statement disagreeing with the "implication" that abuse "was the direct … result of policy decisions made by senior administration officials."

The full report, released in April, also said that "[i]t is particularly troubling that senior officials approved the use of interrogation techniques that were originally designed to simulate abusive tactics used by our enemies against our own soldiers and that were modeled, in part, on tactics used by the Communist Chinese to elicit false confessions from U.S. military personnel."

The report includes details on memos written in August 2002 by the Department of Justice’s Office of Legal Counsel and sent to then-White House Counsel Alberto Gonzales. The report says the DOJ "redefined torture." The Geneva Convention defines "torture" as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." One of the DOJ memos said that "for an act to constitute torture … it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying severe physical injury, such as organ failure, impairment of bodily function, or even death." The memo also said that U.S. anti-torture law didn’t apply to interrogations of "enemy combatants" if they were ordered by the president during war.

When the DOJ memo became public in 2004, the department withdrew it, and Gonzales said it explored "legal theories."

The Senate committee also quoted former military personnel who said that the White House pressured interrogators in Guantanamo Bay to use harsher techniques with detainees to get information that would show a link between al Qaeda and Iraq.

Recently, President Obama’s Justice Department released memos that show the Bush administration authorized the Central Intelligence Agency to use harsh techniques, including waterboarding and sleep deprivation, in secret prisons. These memos, too, aim to lay out what’s legal and what’s not in interrogations.

And the argument between Romero and King may well rest on what exactly constitutes "torture." King said earlier in the program that "[a]s far as accusing the military of sanctioning torture, that’s just the same libel that’s been perpetrated by the ACLU continually here." To be sure, the DOJ memos authorize certain interrogation techniques by saying that they do not constitute torture — not in the Bush-era DOJ’s opinion. For instance, on waterboarding, an Aug. 1, 2002, memo says: "The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view inflict ‘severe pain or suffering.’ Even if one were to parse the statute more finely to attempt to treat ‘suffering’ as a distinct concept, the waterboard could not be said to inflict severe suffering."

Obama’s attorney general, Eric H. Holder Jr., however, has said that "waterboarding is torture" and is illegal. Vice President Cheney said it was appropriate in the interrogation of alleged Sept. 11 mastermind Khalid Sheikh Mohammed.

King draws a line between what the Bush administration authorized the CIA to do and the types of humiliation and abuse that were documented at Abu Ghraib prison in Iraq:

King: …[T]here was no connection at all between the CIA memos, the interrogations that were carried out, the extra interrogations of Khalid Sheikh Mohammed and the others, have nothing to do with with MP reservists might have been doing at Abu Ghraib. That was out-and-out torture. …

The photos that Obama has said he doesn’t want to release, however, allegedly show abuse at prisons other than Abu Ghraib. And it’s not clear what exactly they show. Obama has said that the pictures "are not particularly sensational … but the conduct did not conform with the Army manual."