In a discussion hosted Friday by the Council on Foreign Relations, HRF’s Mike Poser asked the CIA Director, General Hayden, to elaborate on his criticism of the press and other external critics who Hayden said are not giving the CIA the “space” it needs to do its job effectively. Posner asked Hayden if the request for “space” in interrogations wasn’t really an attempt to change the rules and allow for the use of controversial “enhanced” interrogation techniques that have been banned by the Army Field Manual.
Q I’m Mike Posner from Human Rights First. General Hayden, you spoke at the beginning of your remarks about the distinction between law and rules and then space. And I want to focus on the rules relating to interrogations.
Last year about this time, the president spoke, and he asked Congress for authority for the agency to be involved in what he called enhanced interrogation techniques. This is things like stress positions, use of dogs, hypothermia, mock drowning, waterboarding. The Congress said no to that, led by Senators McCain, Graham and Warner. The military’s also said no to that, and all of the senior military lawyers have been very clear that those techniques violate Common Article 3 of the Geneva Conventions, in public testimony before Congress.
And yet a month — six weeks ago, the administration passed an executive order seemingly allowing again the CIA to engage in these enhanced techniques. From my perspective, it seems to me like this is more than asking for space; what you’re really trying to do is change the rules. The question is, why do you need these enhanced techniques? Why shouldn’t every U.S. agency operate by a single standard compliant with Common Article 3?
GEN. HAYDEN: First let me make comment on your listing of techniques and just frankly add that it’s a pretty good example of taking something to the darkest corner of the room and not reflective of what my agency does.
Now let’s talk about the history, last October. With the Hamdan decision, the Supreme Court extended the protection of Common Article 3 to the unlawful combatants of al Qaeda. I’m not a lawyer, but I’m frankly surprised by that aspect of the decision, in that Common Article 3 refers to conflicts not of an international character. And this one does certainly seem to be conflict of an international character.
Our problem was not that we wanted the Congress to approve any techniques. Our problem was, we didn’t know what Common Article 3 meant in the context of American law.
When the Senate ratified a variety of other portions of the Geneva Convention, the legislative history or specific statements of the Senate clarified the meaning of the international treaty in terms of American law. For example, the Convention Against Torture is carefully hooked in the legislative history to the prohibition in domestic law against cruel and inhuman punishment articulated by the 5th, 8th and 14th Amendments to the Constitution.
The Congress had made no clarifying language with regard to Common Article 3. And any, I think, fair reading of Common Article 3 would point out that it would be very hard for me to direct an officer of the agency to do things with the vagaries of the language in Common Article 3. So I wasn’t looking for a carve out; I was looking for a definition.
One of the outs that was offered to the agency was that we in the — it turns out to be the Military Commissions Act. We in the Military Commissions Act will criminalize certain kinds of activities. And as long as your officers don’t do these activities, they won’t be prosecuted. And therefore you’ll be safe from — well, you’ll be safe from prosecution.
The agency as a whole and myself in particular rejected that solution. Because what it — what it would put me in the position of doing would be to turn to an agency officer and say, I would like you to do this with regard to this detainee, okay; I have no idea whether or not it violates the Geneva Convention, because I don’t know what it means, but I’m pretty sure you’ll never go to court for it, so would you go do that for me? And that’s about the worst locker room speech I can imagine giving to an agency employee.
So we insisted on clarity for Common Article 3. The Congress decided that they would not offer that clarity but they then would instead reinforce the already existent presidential right to define the meaning for treaties for the United States. And so there’s actual language in the Military Commissions Act that has the president doing that, and it requires him to publish his executive order in the Federal Register, which is what he did.
It’s clear that what it is we do as agency is different from what is contained in the Army Field Manual. I don’t know of anyone who has looked at the Army Field Manual who could make the claim that what’s contained in there exhausts the universe of lawful interrogation techniques consistent with the Geneva Convention.
The Army Field Manual was crafted to allow America’s Army to train large numbers of young men and women to debrief and interrogate, for tactical purposes, transient prisoners on a fast-moving battlefield. CIA handles a very small number of senior al Qaeda leaders. The average age of our interrogators is 43. The amount of training for this specific activity is 240 hours. So the reason we’re not covered by the Army Field Manual is that we’re not in the DOD. We weren’t consulted about the Army Field Manual, and no one ever claimed that the Army Field Manual exhausted all the lawful tools that America could have to protect itself.