Counterbureacracy and Lawfare: The Question of Torture in the War on Terror

I heard a commotion and turned around to look into the courtyard. I saw one of our interpreters slap one of the Taliban detainees across the back of the head. After a half-second pause the man dramatically fell to the ground, much like a basketball player looking for a foul call. “They so know our rules,” I thought. I could see a line of a half dozen men squatting with their arms tied behind their backs, facing the far wall of the compound. The Afghan police lieutenant, an interpreter, and two of the [Special Forces] team’s operators were questioning each of them. Over the wind I could hear the team’s intelligence sergeant telling one man to stop lying and asking him to reveal who owned the compound. At the same time, another operator grabbed the interpreter by the arm. I could see the shadow of the operator shaking his head to let him know to knock off the slapping routine.

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America’s conflict with Islamic extremism must be understood as a decades-long ideological clash, akin to our 50-year fight against communism. Despite the popular narrative about ending the wars in Iraq and Afghanistan, we are still in the opening throes of this conflict (as yesterday’s events in Paris should have reminded us). When sensitive information is released about America’s rules and procedures for dealing with suspected terrorists, the enemy gains an advantage we can ill-afford. Holding our operatives accountable is one thing—giving away information that abets the enemy is quite another.

The dust seems to have already settled around the Senate Intelligence Committee’s recently released report on the CIA’s interrogation, but its impacts will reverberate into the future even if the news cycle has left it behind. Yes, the report shed light on some troubling practices that may meet the definition of torture, but it did not stop there. It also detailed how our premiere intelligence agency adapted to meet the al Qaeda threat and discussed legal interrogation methods that our intelligence agencies and military personnel may continue to rely upon. Whether we are discussing interrogation programs run by the CIA or our military, the United States will need to have the ability to extract information from captured insurgents and terrorists for the foreseeable future. That capability took a serious blow with the release of this report and provided America’s enemies with a treasure trove of information on what our forces will and will not do.

It is appropriate for Congress to review the work of the CIA and the military, but this report is a poor example of oversight. The Senate Intelligence Committee was designed specifically to ensure adequate Congressional oversight of classified matters without harmful disclosures. Any debate on this report should have happened behind closed doors. The report offered no recommendations, and many of the techniques most deplored by the Committee’s then-majority staff have already been banned. Moreover, the legal questions have largely been settled—the Bush Justice Department found the techniques legal and the Obama Justice Department investigated and found no prosecutable offense.

We already know that Islamic extremists take advantage of public acknowledgements of what American intelligence operatives will and won’t do. Past reports, including the documents retrieved from Osama Bin Laden’s compound, indicated that al Qaeda and related extremist groups actively review Western media for leaks on the tactics of intelligence agencies and issue guidance throughout their ranks on how to respond. It is no different in Afghanistan, where this sort of knowledge equips dangerous people with blood on their hands with the knowledge to evade justice and withhold valuable information that could stop future acts of violence. Now that the hysterics on every side have faded, I offer some brief reflections on our military interrogation practices in Afghanistan—recognizing of course that there are some major differences with the CIA program—as a way to inform what will hopefully evolve into a more mature debate on interrogation policy and oversight.

Weeks later, while in-processing to a coalition detention centers in Afghanistan, the man who had been slapped pointed to two bruises on his arm and claimed he was beaten while in our custody. This accusation triggered a full-blown investigation from our higher headquarters. After hours of interviews and sworn statements from my Special Forces team, guided by my executive officer, “Francis,” we were fully exonerated. Francis, a former White House attorney and federal prosecutor, coordinated our response. He tied the investigating major into knots regarding the veracity of the charges and finally got him to admit that these investigations were now mandatory in response to any accusation from a detainee, even if the accusation appeared to be blatantly bogus. Unfortunately it would not be the last investigation we faced along these lines. Each one took weeks of man-hours and made me wonder how units fared if they didn’t have a former White House counselor on their side.

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The cumulative leaks of our tactics, techniques, and procedures over the years coupled with the collective overreaction of our policymakers to abuses had real consequences on the ground. During my last tour in Afghanistan, my staff used to say we were engaged in a “counterbureaucracy” campaign rather than a “counterinsurgency,” because of all the layers of restrictions placed on us from Washington.

I agree with Sen. John McCain that Americans must rise above the brutality employed by our enemies and continue to set an example for the war. What needs to be understood is that we already go out of our way—often too far—in our care for any insurgents or terrorists we capture. In turn, they’ve become adept practitioners of “lawfare,” using our own legal restrictions to fight us or to pursue personal gain. Frankly, they are taking advantage of our kindness and turning it into weakness.

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Over the howling wind I could hear two of the detained men down in the compound courtyard finally admit that they were not from the area and claim that they were in [our area] simply for a wedding. However, when we quizzed them on who owned the compound and who they were visiting, both claimed not to know. Another one of my operators walked up and, through the translator, told the police to find the men’s shoes and some blankets, as they were starting to shiver violently, each wearing only his shalwar kameez.

“I wonder if we would get the same treatment from them,” I said sarcastically.

My interpreter didn’t say a word, just drew his finger across his throat as he shook his head.

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In Afghanistan, the Taliban actively trained their fighters on how to resist our interrogations. They also knew the evidentiary standards required to keep their men locked up. They fully expected to be held for a short amount of time, minimally questioned, and released. They knew that all they had to do was wait out interrogators. And those who did cooperate with investigators risked serious retribution from their fellow Taliban upon their expected release.

On a number of occasions we found documents in Taliban-controlled areas outlining how to manipulate our rules of engagement and use them against us. The documents instructed fighters to drop their weapons as soon as they heard aircraft overhead knowing we would not attack them while unarmed, to wear burkas to get through checkpoints knowing we were unlikely to look underneath out of respect for Muslim women, and to claim abuse if captured knowing it would trigger an internal investigation for the capturing unit.

Some elders went so far as to tell us that they would work with us only if we promised to kill the Taliban commander and not capture them. The elders had seen the American’s relatively “weak” questioning methods as well as their “catch and release” detention system in action and didn’t want to face the certain retribution that would be visited on them and their families when these Taliban or Haqqani thugs were released.

Afghans supporting the coalition, informants, doctors, interpreters, and elders were also deathly afraid of their names and relationships with us showing up in Western media via our embedded reporters, appearing in some type of leaked report, or just getting around by word of mouth in the local community.   These people made life and death decisions every time they bravely assisted the coalition.   Sure enough, thousands of Afghans and Iraqis were put in grave danger when Wiki-leaks released their identities and also leaked our methods and tactics for interacting with them.

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Toward the end of our tour a series of interviews with Taliban prisoners revealed that they trained each other to take advantage of our rules of engagement regarding detainees. The Taliban leadership in Quetta, Pakistan had instructed their followers to throw down their weapons when confronted with overwhelming force, knowing that we would not shoot unarmed men and that they would then be detained and likely released. The biggest problem was that the Afghan judicial system was horribly corrupt and ineffective. If we handed detainees over to the local Afghan police, they would almost certainly bribe their way out of prison or intimidate local officials until they were released. If they were sent to a U.S. detention facility, their instructions were to automatically claim abuse (knowing from previous leaks that we would have to launch an investigation) and to take advantage of the clean living conditions found in U.S. detention centers while they radicalized less dedicated recruits and terrorized any inmate who worked with coalition interrogators. The net effect of our catch-and-release detention system was progressively less and less support from the populace as released Taliban commanders exacted retribution on pro-government/coalition villagers and propagated a message that they were untouchable. It was seriously damaging to our counterinsurgency campaign.

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The more information we give our enemy about our rules and procedures, the more he will use it against us in this long war against Islamic extremism. Disclosures like those contained in the Senate Intelligence Committee’s report have already compromised American interrogators in the field. America is going to be fighting extremists for decades to come. We must hold our military operatives to the highest standards while not making it impossible for them to do their jobs.

Michael G. Waltz is the author of the recently released book, Warrior Diplomat: A Green Beret’s Battles from Washington to Afghanistan, which details his experiences with Afghanistan both as a Green Beret and a policy-maker in the White House and Pentagon.   He is also the Senior Fellow at the New America Foundation, as well as the Co-Founder of and a Principal in Askari Associates, a strategy and policy firm serving clients in the Middle East and North Africa.