David Frakt, Stephen Jones, Michael Hayden and Marc Thiessen Discuss Guantánamo and “Enemy Combatants” (Part One)

19.9.10

On September 14, Intelligence Squared U.S., an organization founded in 2006 that holds “Oxford-style debates” in New York, with high-profile figures discussing hot political topics, held a debate on the motion, “Treat terrorists like enemy combatants, not criminals,” which was proposed by former CIA director Gen. Michael Hayden and torture apologist Marc Thiessen, and opposed by Lt. Col. David Frakt, law professor, expert in the laws of war and the former military defense attorney for two Guantánamo prisoners, and Stephen Jones, the attorney who defended Oklahoma bomber — and U.S. terrorist — Timothy McVeigh.

As this was a fascinating discussion, and one that touched on some of the key problems with the Bush administration’s “War on Terror” detention polices — and the mistaken rationale for holding men neither as criminal suspects nor as prisoners of war, which, disturbingly, has been maintained by the Obama administration — I’m cross-posting the transcript of the debate (PDF) in two parts (please also note that a video is available here). In the first part, below, the four speakers present their arguments, and are then questioned by moderator John Donvan of ABC News, and in the second part, the speakers take questions from the audience, and then sum up their arguments.

I’m delighted to note that, when the audience voted before the debate, 33 percent supported the motion, 32 percent opposed it, and 35 percent were undecided, but that, by the end of the evening, Lt. Col. Frakt and Stephen Jones had swayed a larger number of undecided voters, so that 39 percent supported the motion, 55 percent opposed it, and 6 percent were undecided. If only lawmakers, media pundits and the wider U.S. public could be persuaded in a similar manner …

I have presented the transcript largely as it appears on the Intelligence Squared website, but on occasion I have added my own editorial comments, addressing points that were not picked up on by the speakers, or (largely in Thiessen’s case) comments that were clear distortions of the truth.

“Treat terrorists like enemy combatants, not criminals”
An Intelligence Squared U.S. Debate, New York, September 14, 2010

Robert Rosenkranz (Founder, Intelligence Squared, U.S.): Good evening. As we assemble tonight, a few days after the anniversary of 9/11, it should be obvious that there are distinctions between terrorists and criminals as well as between terrorists and soldiers, just as there are distinctions between counter-terrorism and the criminal justice system and the laws of war. A major function of criminal law is to deter crime. The reason we allow an insanity defense in criminal cases is because the insane cannot be deterred. Obviously suicide bombers cannot be deterred either. Another function of criminal law is punishment: interrogations are conducted to link suspects with crimes that have already been committed so we can punish the guilty.

When we interrogate suspected terrorists, the goal is to prevent attacks before they occur. In criminal proceedings, we would prefer to see a guilty man go free than to compromise our sense of fairness. That is why, for example, the most damning evidence of guilt cannot be used if it is obtained illegally. Turning to the laws of war, the Geneva Convention is in part a bill of rights for soldiers in uniform; but the convention equally protects civilians by making them readily distinguishable from soldiers.

Tonight’s resolution is about whether these distinctions should or should not make a difference. Are the substance and procedures of standard criminal practice consistent with our societal needs for intelligence and security? Do the Geneva Convention protections for soldiers in uniform apply to non-state actors, who are not parties to the convention and who blend with and deliberately target civilian populations? Finally, if we don’t treat terrorists like criminals, and we don’t treat them like soldiers, where do we look for constraints on our military, intelligence officers, and interrogators so that their actions are consistent with our societal values?

These are vexing issues, and we have an outstanding panel with us this evening to discuss them. So now I’d like to turn these proceedings over to our moderator, John Donvan.

John Donvan: Well, welcome everyone to another debate from Intelligence Squared, U.S. I’m John Donvan of ABC News and again, it is my honor to be serving as moderator. As the four debaters you see sharing the stage with me at the Skirball Center for the Performing Arts at New York University. Four debaters, two against two, will be debating this motion: “Treat terrorists like enemy combatants, not criminals.” Now, this is a debate. There will be a winner and a loser, and you our audience will be serving as the judges. By the time the debate has ended, we will have asked you to vote twice, once before the debate and once again after you have heard the argument. And the team that has changed the most minds, once we see where you stand on the motion, that team will be declared our winner. […]

So on to the debate: Round one, opening statements by each debater in turn. They will speak for seven minutes each uninterrupted. Our motion is: “Treat terrorists like enemy combatants, not criminals.” And I would like to introduce our first debater arguing for this motion, Marc Thiesson, who is a columnist for the Washington Post. He’s also a fellow at the American Enterprise Institute, a former speechwriter for President George W. Bush. He came out with a book this year that was a stiff defense of the interrogation methods used by the CIA throughout the war on terror and it sold really, really well actually, Marc, congratulations to you. So a lot of people liked it, your critics don’t like it. They — I think Jane Mayer of the New Yorker calls it the bible for the torture apologist. Is that fair?

Marc Thiessen: No, not at all.

John Donvan: Okay. Ladies and gentlemen — I’m surprised you said that. Marc Thiessen.

Marc Thiessen: I want to thank Mr. Rosenkranz for inviting Mike Hayden and I to the only debate we could possibly win in Greenwich Village. We just marked, as Mr. Rosenkranz said, the anniversary of September 11th, 2001. I’d like to start by asking members of the audience a question. With a show of hands, how many of you remember exactly where you were when the attacks of September 11th happened?

John Donvan: Let the record show it’s everybody.

Marc Thiessen: Okay. I want you to think back to that time. I want you to think back to the scenes of burning rubble. I want you to think back to the shock that you felt at the ability of the terrorists to penetrate our defenses and launch such an attack like that in our midst. And the questions we were all asking. Who had attacked us? What do they want? Were there more attacks coming? If I had told you back then that we would go almost a decade without another terrorist attack, who would have believed me?

Very few, I think, a few. Most of thought it was going to be the first of many attacks. I was in the Pentagon on September 11th, 2001. I was blessed not to be not at the point of impact, but I was a few corridors down and I remember feeling the building shudder; I remember the smell of the smoke in the hallways. And the one thing I remember very distinctly is that the alarms never went off, the evacuation alarms. We all just sort of filed out of the building and went on out to the lawn and looked back at the broken and burning Pentagon.

But in the months that followed, the alarms went off a bunch of times as false reports of impending attacks, planes that were headed our way kept coming in. And every time, the whole building, we would all evacuate and go out on the lawn and look up at the sky, waiting for the attack that never came. Why did that attack never come? I would submit to you there are only two possibilities. Either the terrorists lost interest in attacking us again, or we found out what their plans were and stopped them from carrying them out.

Mike Hayden and I will argue tonight that the latter is the case. We will argue that the reason that attack did not happen is because we abandoned the law enforcement approach to terrorism that failed to stop the 1992 World Trade Center bombing, that failed to stop the attack on the embassies in Kenya and Tanzania, that failed to stop the attack on the USS Cole, that failed to stop the attacks of 9/11. That we abandoned that approach and began to treat terrorists as enemy combatants and not criminals.

In those early days after 9/11, we knew almost nothing about the enemy who had attacked us. We did not know that Khalid Sheikh Mohammed was the mastermind of 9/11. He wasn’t even on our charts. And we didn’t know who his accomplices were. And unbeknownst to us, there were two terrorist networks out there, at large, planning new attacks. The KSM network that had planned and carried out 9/11, and the Hambali network which was a Southeast Asian terrorist that KSM had organized because he knew we’d be on the lookout for Arab men.

And those terror networks were in the advanced stages of planning a series of attacks including a plot to blow up high-rise apartment buildings in the United States using natural gas, a plot to repeat 9/11 in Europe by flying airplanes into Heathrow Airport in downtown London, a plot to blow up the U.S. consulate in Karachi and western residences in Karachi, an al-Qaeda cell that was developing anthrax for attacks inside the United States and a cell of southeast Asians who KSM had tasked to fly an airplane into the tallest building in the west coast, the Library Tower in Los Angeles. We did not know any of this, not a word. We didn’t know who those people were, what they had planned. And then we started capturing terrorists. Abu Zubaydah, Ramzi Bin al-Shibh, KSM, and they provided us information that allowed us to round up and dismantle both of those terror networks. [Editor’s Note: I need hardly explain that much of this is fiction -- for example, the non-existent “plot to blow up high-rise apartment buildings in the United States using natural gas,” which supposedly involved the British resident Binyam Mohamed -- and that only the most ferocious apologists for torture cling to the claim that the well-documented torture of Abu Zubaydah or Khalid Sheikh Mohammed produced any reliable information that actually foiled any plots].

When KSM was captured and brought into custody, he was asked about upcoming attacks. You know what he said? I’ll tell you everything when I get to New York and see my lawyer. Ladies and gentlemen, our opponents tonight would have granted that request. And if we had listened to their advice, if we had told KSM you have the right to remain silent, there would be craters in the ground in Los Angeles and Karachi and London and other cities in this country because of the attack that we did not stop. This debate is about more than Miranda rights. The Obama administration had eliminated the CIA program, but at least they’re killing terrorists using predator drones, right? No, no, no say our opponents, that’s illegal too. The ACLU and Center for Constitutional Rights filed a lawsuit a couple weeks ago saying that because terrorists outside of Iraq and Afghanistan are criminals and not enemy combatants, we cannot kill terrorists in those areas using predator drones. So if you believe that we should not kill terrorists using predator drones, then vote for them. The fact is that that program has killed half the al-Qaeda leadership and it is probably the only thing standing between us and another 9/11. (Editor’s Note: See here for UN condemnation of the drone assassination program].

One final point: Our opponents are going to try to turn this into a debate on waterboarding. I’m happy to have that debate. As John pointed out, I wrote a book defending it. But if they’re arguing about waterboarding, they’re losing and I’ll tell you why. It is a little known fact — how many people think Barack Obama ended waterboarding? He didn’t. My debate partner Mike Hayden ended waterboarding. When Mike Hayden handed over the CIA program to Barack Obama, the techniques involved were the tummy slap, the facial hold, mild sleep deprivation and a diet of liquid Ensure. I’m sure the makers of liquid Ensure will be thrilled to know that their product is torture.

Bottom line is, there is a wide area between waterboarding on one hand and telling KSM and other terrorists, you have the right to remain silent. So you can be against waterboarding and for the proposition, that we should treat terrorists as criminals, as — before the proposition, we should treat terrorists as enemy combatants and not criminals. So finally I’d just like to ask you, keep in mind, if you would like to keep killing terrorists with predator drones, if you would like — if you think that our first priority in the war on terror, when we capture a terrorist, should be interrogating them for intelligence, not obtaining evidence for prosecution; if you want to continue the approach to counterterrorism that has prevented us from being struck again as we were on 9/11, then I ask you to vote for our position. If you would like to eliminate all those tools, I suggest you vote for the other side and find a safe place to hide. Thank you.

John Donvan: Our motion is: “Treat terrorists like enemy combatants, not criminals.” We have heard the opening statement by the side for the motion and now to speak first against the motion, I’d like to introduce David Frakt who is a Lieutenant Colonel in the U.S. Air Force Reserve JAG Corps.

That means he’s a lawyer in the military. He served as lead defense counsel at the Office of Military Commissions. He represented detainees at Guantánamo. His most famous case is that of the teenager [Mohamed Jawad] who was released finally after you made the case that his interrogation had been conducted improperly. He went home. David, I know it worked out well for him. Is it your view that [it] works out well for the United States?

David Frakt: Absolutely. Anytime an innocent man is released, that’s a very positive thing.  And I — it wasn’t my advocacy that got him out. Actually the Department of Justice, after seven years, acknowledged that actually he was not an enemy combatant, and so he was sent home and it was a great day for America.

John Donvan: Ladies and gentlemen, David Frakt.

David Frakt: Thank you. It’s a privilege to be here and against such august opposition. I’m going to start by disagreeing, and it’s probably not a good idea to disagree with your host, but Mr. Rosenkranz made a comment in his opening remarks that the criminal justice is about punishing criminals after the fact. And that’s a notion I would like to disabuse our audience of because the criminal justice system is much more robust than that. It’s there — our law enforcement and working hand in hand with intelligence — is there to detect crime before it happens, to infiltrate terrorist networks, to deter attacks. And we don’t have to wait for a crime to be completed before stepping in. We’ve seen it over and over again where the police or the FBI or NYPD breaks up a terrorist cell or just discovers a plot in progress or conspiracy, and those people can be arrested.

They can be interrogated by law enforcement, and those interrogations yield a lot of information. There’s this perception somehow that reading people Miranda rights automatically means that they’re never going to talk again. And it’s true that sometimes when advised to the right to an attorney and the right to remain silent, that people clam up, but not always. In fact quite often, they divulge a lot of information.

And so we’re able to charge people with attempting crimes, with conspiracies to commit crimes and put a lot of terrorists away. In fact, since 9/11, and talking only about federal prosecutions, over 400 terrorists have been locked up for an average of 20 years apiece. Now contrast that with Guantánamo, which at its peak had 787 detainees — all of whom were at one time accused of being enemy combatants. The Bush administration ended up releasing over two-thirds of those when they realized they had no evidence against the vast majority of them. Another 100 were cleared for release before President Obama took over. Another 100 have been cleared for release now. So what’s the scorecard now? We have four detainees who have been prosecuted successfully in military commissions: four convictions versus 400. The Obama administration, after a year-long review, determined that there were 35 detainees that should be tried in some criminal form and there’s another 48 that they say are too dangerous.

So we’re talking about 83 people, after seven or eight years that they’ve decided are really the bad guys. And this is the danger of simply labeling people as enemy combatants. And you have to think about the implications of what is being proposed here because as a whole — and Mr. Thiessen acknowledged it — they want to go back to the program of the prior administration.

And what did that entail? It entailed locking people up indefinitely without charge, without access to courts, without access to counsel, subjecting them to a full range of interrogation techniques, many of which are abhorrent to American values. And they were not given the opportunity to defend themselves, to even find out what the basis for their detention was. And that’s the system that Mr. Thiessen would like to return to. And I think it’s a fundamentally un-American system. Terrorists are criminals, nothing more. It may be that they have particularly grandiose criminal plans. But by labeling them as combatants, we actually legitimize them. We elevate their status to a warrior status, which is what they seek. And we engage in a war on their terms. And I don’t think that’s a good idea.

Let me pose a question. Mr. Thiessen posed a question to you and he talked about the fact that there haven’t been any attacks as if this is proof that those methods — the illegal interrogation methods and treating people as enemy combatants — worked and that’s the reason we didn’t have any attacks. Let me tell you why we didn’t have any attacks. And of course there were a number of attempted attacks. But the reason is because, by treating terrorism primarily as a military problem, as a war, we started two voluntary, unnecessary wars, in Afghanistan and Iraq, and we presented the terrorists with hundreds of thousands of targets, American soldiers. And as bad as 9/11 was, and 3,000 people died on that day, we have lost 5700 American service members, dead. Another 1100 coalition members dead in Iraq and Afghanistan and 39,000 American service members injured. It’s basically revived the Veterans Administration Hospitals because we have a whole generation of wounded warriors out there who have been fighting wars that really aren’t necessary.

And are we safer? That’s the question you really have to ask. Are we safer after eight years of this approach? Ask yourself this question. Are there more people in the world — according to Mr. Thiessen, there were two little terrorist cells of al-Qaeda after 9/11. How many terrorists are there right now in the world or violent jihadists who are willing to strap a bomb to their bodies and kill Americans, or plant roadside bombs? We have essentially launched a global war — and that’s what we called it, the global war on terror that the Islamic world interpreted as a war on them and we have alienated tens and hundreds of millions of people unnecessarily. And we are not safer. We are not safer when we abandon our core values. And that’s ostensibly — they use coded language but that’s what they’re talking about because they’re talking about not using law enforcement methods, not using traditional tools. They want a world of perfect security where no crimes are ever committed, where no terrorists attack. That’s never going to happen. And when you seek, strive for that, you end up with a police state. The safest country in the world is North Korea, but we don’t want to live in North Korea.

John Donvan: David Frakt, thank you very much. We have heard from the first two debaters arguing for and against this motion. Now our third debater to argue for the motion, I’d like to introduce Michael Hayden; he is a retired four-star Air Force general and former director of the CIA. And Michael, when you took over the interrogation program of the CIA that had been in place, had just about been called to a halt under political pressure and other complaints, you decided to take a look at it again, commissioned your own review, which you undertook personally, and you concluded what?

Michael Hayden: I spent the whole summer of 2006 getting what I would call a graduate degree on the CIA Interrogation and Detention Program. I was a blank slate; I had no vested interest in what had gone on before. I could have chosen any course of action. At the end of the summer, I went to President Bush and said I wanted to make some modifications to the program, but as Marc has suggested, I could not in conscience, given my responsibility of the CIA to defend the republic, take this program off the table for him or for any future president. He needed this. In conscience I could not just say make it go away. It would have been a comfortable decision, John. It probably would have gotten credit in some circles, but it would have been immoral.

John Donvan: Ladies and gentleman, Michael Hayden.

Michael Hayden: Well, I think Marc and David have kind of teed up the question pretty nicely for us here. Are we a nation at war or are we not? Should we perceive ourselves to be at war or should we not? David said that our adversaries in this thing out there, war or not, are criminals and nothing more. But if that’s the case, let me take you back almost a year to the day to the Horn of Africa, to Somalia, to American Navy SEAL, in a helicopter, a Seahawk, coming off a Navy carrier in the Indian Ocean, going after an individual named Saleh Ali Nabhan, at the time was the leader of al-Qaeda in Somalia, al-Qaeda in the Horn of Africa.

We killed him. We landed long enough to swab up portions of his remains to get DNA evidence that we had killed him. I wasn’t in the mission, I was out of government at this time, I wasn’t privy to the pre-brief. But I know what was asked by the field commander before he got on the helicopter: Sir, is this a kill or a capture? And it’s very clear from what happened, he was told this is a kill. No probable cause, no warrant, no court. Because we are a nation at war and Saleh Ali Nabhan was part of an opposing armed enemy force. I became an advocate; my epiphany that we are a nation at war took place about 10 minutes after 10:00, September 11th, 2001. It became clear to me at that point and I believe in few things more firmly than I believe in the fact that we are a nation at war. President Obama has said we are a nation at war. President Bush has said we are a nation at war.

In March of 2007, I went to the German residence to give a talk to all the ambassadors to the United States from the nations of the European Union. And Germany was in the chair of the E.U. They were inviting these ambassadors in. They invited an American to come in and kind of be the lunchtime entertainment. Bob Gates was there at one point, Condi Rice at another. This was my turn and I decided to say something interesting. I decided to talk to our European friends about rendition, detention and interrogation. I had a wonderful speechwriting staff at CIA, but this was a speech that I took a personal hand at. On page two of that speech, I simply said to our European friends, let me tell you what I believe, what my agency believes, what I believe my country believes. We are a nation at war. We are at war with al-Qaeda and its affiliates. This war is global in scope and I can only fulfill my legal and moral responsibilities to the citizens of my republic by taking this fight to this enemy wherever he may be.

A year ago last August, August of 2009 I was in Phoenix. President Obama was addressing the VFW. He said quite clearly we are at war; we are at war with al-Qaeda and its affiliates. Now I know most of the American population doesn’t sense they are at war. I know that. The American armed forces know that we are. The American security establishment knows that we are. The American intelligence community knows that we are. You, your political processes have sent me, a career military officer, the director of the CIA to war. You have told me to defend you. Do not take away from me the tools that I need to perform the service you demand. At some point in our conversation tonight, there will be a discussion here about how we need to uphold the rule of law. I could not agree more. It just matters what model of law we are committed to upholding. Is this an issue best addressed through American criminal law or is this an issue best addressed through the laws of armed conflict? I submit to you that it’s only the laws of armed conflict that will keep you safe. This isn’t theoretical for me; this was real.

I had a meeting with my general counsel and his team at CIA about two years ago. I said to the team, our enemy is opening a new front. They are beginning to attack us — with attack in quotes, it’s a bit metaphorical — they are beginning to attack us in the American legal system.  We have to best them in the legal system the way we are defeating them in the tribal region of Pakistan.

And I told my lawyers, I want you to lean as far forward and the hardest as you possibly can in terms of giving information to our court system. I want blood on the harness, you are leaning so far forward. We worked our tails off in those judicial processes, specifically habeas corpus. When we got a point where we could go no farther, one of the judges demanded that we provide not him, but the defendant, the name and the identity of the intelligence source we had used in order to determine that he was a member of al-Qaeda. I know you don’t live in the world I used to live in, but there is nothing that a director of CIA could do in those circumstances. You cannot let the world know that sources who risk everything, who risk all to work for you, will have their names revealed in the American judicial process, to the individual they have identified as al-Qaeda.

The Christmas attack is another little morality play. It really demonstrates the fallacy of treating this as a law enforcement matter. When Umar Farouk Abdulmutallab attempted to down an American aircraft, he was a member of al-Qaeda; he was an enemy combatant. It was an attack mounted from outside the United States towards and in the United States. And because of a law enforcement mentality, we sent a clean team in there. A clean team; that is somebody in the FBI who knew nothing of what Abdulmutallab [could tell] us. […] Every known al- Qaeda aircraft attack this country has involved multiple threats of attack: 9/11, 2006 from London, the Bojinka plot over the Pacific. And yet after 50 minutes, our instincts were so strong to the law enforcement that we allowed him to lawyer up. [Editor’s Note: See here for a report abut how, contrary to these claims, Abdulmutallab cooperated with his interrogators without being declared an enemy combatant and subjected to coercive interrogations].

That’s unconscionable. That’s a terrible decision. It is based upon a model that you know, he’s just a criminal and we just need to make sure we get him in jail. That’s not the objective here. The objective is to keep you safe.

John Donvan: Thank you very much. Our motion is, “Treat terrorists like enemy combatants, not criminals,” and finally to speak against the motion, I’d like to introduce Stephen Jones who is an attorney from the Midwest, from Oklahoma I believe, managing partner of the law firm Jones, Otjen, and Davis. He has also defended a well-known terrorist, but not from the Middle East. He defended Timothy McVeigh, the Oklahoma City bomber. And you were a public defender in that role, so you were assigned to him and he to you. I’m curious, did you want that case when it came to you?

Stephen Jones: Well, I wasn’t the public defender. I wasn’t even on the panel. I was appointed as lawyer by the judges in the federal courts in Oklahoma City.

John Donvan: And did you want the case?

Stephen Jones: Well, when the judge or judges ask you to take a case, what you want or don’t want is not relevant.

John Donvan: Ladies and gentlemen, Stephen Jones.

Stephen Jones: First of all, let me tell you that I am a Republican and I voted for George Bush both times, and I voted for John McCain and yes, Sarah Palin, and I don’t apologize for that. I don’t think the argument here is political. I think the argument is constitutional and it basically boils down to how far we are willing to sacrifice our ideals, our history, our beliefs as a nation for security. And is that security real or temporary?

Has the target of our adversaries simply moved offshore, much like banking and investment, or is the target here? For various law enforcement agencies and members of the national intelligence establishment who have protected us and work long and devoted hours, there can be no criticism. But that’s hardly the issue, nor frankly is the ACLU the issue. The issue quite simply is whether we are a nation of laws, and there are three reasons, compelling reasons why you should vote against this resolution and vote no.

The first is that the United States of America did not happen accidentally. There was a political deal, a bargain. The bargain was this; that the twelve states that participated in the Philadelphia Convention would surrender some of their rights which they held very importantly, to a central government that they had no experience with. And in return for that surrender of their rights to that central government, that government would, as its first order of business, pass a series of amendments of the Constitution to restrict the power of that government which they had agreed to join. So the right, the freedom of speech, freedom of assembly, the right to petition, redress of grievances, the right to a fair trial, to due process, to protection against self-incrimination, to the assistance of counsel, to be safe and secure unless a warrant is issued by law enforcement to search it, the right to a public trial, the right to a speedy trial — all of those are in the first 10 amendments. And the bargain was redeemed.

And 100 years later, or almost 100 years later, that bargain was purchased and redeemed by the blood of more Americans who died in the Civil War than all the other wars.  By the Civil War, President Lincoln’s address at Gettysburg and the passage of the 14th amendment, we as a nation reaffirmed the ideal, which is due process of law, equal protection of all people under the Constitution. Not something that we always follow, and there have been black holes in our history, but that is our ideal, that is the American experience: a written Constitution that limits the power of government.

Secondly, the United States is, for millions, hundreds of millions of people in the world, their ideal. One of our presidents once referred to a letter by one of the early English governors, that the United States is a city upon a hill. Well it is a city upon a hill and what makes us special is that we try, every day and in every way, most of us, to uphold those ideals. And if we were to surrender even temporarily those ideals, if we were willing to say, to these individuals who are charged, charged not convicted, charged with terrorist offenses, that we will be like Great Britain and Northern Ireland in the early ’70s and we will suspend these basic rights, these things that our national experience has taught us, we would lose many of the allies, supporters, and people who in their hearts look at the United States.

And finally, having represented a terrorist — and before 9/11, the Oklahoma City bombing was the greatest act of domestic terrorism in this country. 168 people dead, 19 of them children under the age of six. Eight federal law enforcement agents, over a billion dollars of uninsured damages, 500 people seriously injured and 30,000 who sought and received mental or emotional intervention because of their disturbances. But Tim McVeigh was tried and convicted before a jury in a federal court. He had lawyers; he got a change of venue; he got a severance; he got the money through the federal system to pay his lawyers, to investigate the case and bring witnesses to Denver, Colorado even in the last days of that trial, [when] the G-7 summit was meeting in Denver. But in our country, our security forces, our law enforcement was able to provide both a fair trial for Tim McVeigh and protect the world’s leaders meeting five miles away.

Now, ladies and gentlemen, the courts are a sanctuary in the jungle; that’s what they are. They are to determine justice is blind; we don’t have a special court for people we call a terrorist. We don’t have a special criminal court for drug dealers; we don’t have a special criminal court for murderers or people who commit other crimes, whether serious or small. We have a federal judicial system and a state judicial system and then for the armed forces, the uniform code of military justice. Because 200 years’ national experience has taught us that our safety comes just as much from adherence to the rule of law as it does to the talents of our intelligence agencies and our law enforcement agencies.

The history of our country is on the side that Dave and I represent. And I urge you to vote no and to affirm the rule of law, regardless of how despicable persons may be. For in the final analysis the justice of a society is measured by how it treats its worst, not its best.

John Donvan: I’m John Donvan of ABC News. I’m host and moderator for this Intelligence Squared U.S. debate. We are at the Skirball Center for the Performing Arts in New York City at NYU. We’re on a stage surrounded by several hundred of you in the audience and on our stage, four debaters, two against two debating this motion: “Treat terrorists like enemy combatants, not criminals.” The team arguing for the motion include a former CIA director and a speechwriter for the Bush administration, now an author. They are arguing that we are in a war and that in war for the sake for security and survival, we have to at times undertake unpleasant actions. It may even be the moral thing to do. Their opponents include two attorneys, one who works for the military and one who defended Tim McVeigh, and they argued that terrorists are nothing more than criminals. And to treat them as more than criminals actually does them a favor.

We are now into round two and I want to, at this point, invite you into the debate. In a few minutes I’ll come to you for questions but in this part of the debate, the debaters can address one another directly and also will take questions from me. And my first question is actually to the side arguing against the motion.Your opponents include a former director of the CIA, a speechwriter for the Bush Administration who wrote the president’s speech in which he discussed these issues and he was briefed, as he tells us extensively, on how the system actually works and what it actually produced. And they are painting a very dire picture. And my question to you, their opponents, is whether they may just know more than you do?

David Frakt: Well, I would hate to concede that, and I would note that I do have a top secret FBI clearance, but I did not get the opportunity to see much of the intelligence that would have come across the desk of General Hayden. I would hope that that intelligence did not come across the desk of Marc Thiessen. But — but some of it somehow seems to have gotten its way into his book. So maybe we ought to be investigating that. But —

Marc Thiessen: The person you’d be investigating is Barack Obama, who released it.

John Donvan: Back to David Frakt.

David Frakt: I’m sorry. One of the things that I want to —

John Donvan: Well, no, I’m asking the question in a serious way, that you — so you hear the director of the CIA said, this was on me, this was my responsibility. Not that I love doing these things or any of us love doing it, but I saw the impact. And that’s why I came to that decision.

David Frakt: I don’t dispute that there is a possibility that some of the methods endorsed by the Bush administration may have worked at times. But what that boils down to is an “ends justify the means” argument. And that’s the argument that we reject. Because you cannot achieve perfect safety. Might we have found that information without using enhanced interrogation methods? Might we have used it if we had prioritized our intelligence, gathering our law enforcement in other ways? They talk about plots that were foiled. They don’t talk about all the blind alleys that they went down.

They don’t talk about all of the lives that were ruined through false confessions that were wrung out of people in coercive interrogations. They don’t talk about the people that were falsely accused and only years later were released with no apology, no compensation. So it’s not entirely one-sided. Yes, sometimes the methods may work. But if they’re un-American, then we should not be doing them.

John Donvan: Michael Hayden.

Michael Hayden: If you’re going to debate about what constitutes appropriate interrogation methods, invite me back. I’d be happy to come. But that’s not what this is about. This is: are these or are these not enemy combatants? And if they are enemy combatants, do I have the right to hold them, consistent with the laws of armed conflict because they are a danger to you? The Geneva Convention doesn’t require me to prove that they’re a criminal. I simply have to have reasonable belief that they’re enemy combatants.

John Donvan: But General, the implications of — the implications of that decision actually in practice have to do with the most important and critical information, the rationale for even heeling to your position is to be able to interrogate them using certain methods.

Michael Hayden: No, no. The rationale, the primary purpose is to take the enemy combatant off the battlefield. And if you overcomplicate my taking them off the battlefield by capturing him, you will leave me with one other choice to take him off the battlefield, and that’s to kill him. Now, do you want to create that box? If the American political process wants to create that box, the people who are left behind in the intelligence service will work in that box. But that is a far less noble box than continuing the war as we have traditionally fought wars. I was stunned that Stephen made the comment to follow American history. When in American history have we had habeas hearings for enemy combatants?

John Donvan: David?

David Frakt: I think we need to be very clear about who we’re talking about and define who we’re referring to when we’re talking about terrorists because from our perspective, we are not talking about people who were actually captured on a battlefield in Iraq and Afghanistan. There is no doubt that there is in fact an armed conflict going on in those places. And as a military attorney, as a judge advocate, certainly I acknowledge that under the laws of war, we do have the power to detain and remove from the battlefield people who are engaged in active conflict. The problem is that the war has been defined in such amorphous terms that there’s a claim of a global battlefield, including the United States, and that anyone who essentially is against America, and mostly we’re talking about — their focus is on Islamic terrorists — are enemy combatants. So Major Hasan is a terrorist. But really, he’s a criminal. People — if you are in the United States, and you attempt to commit a crime, the United States really is not a battlefield. I reject that. And even if it you think it is, the Constitution does apply here.

So there is a limited group of people that, yes, if it’s in an active war in a theater of war, that they can be captured and removed from the battlefield. But the solution — we have captured a lot of people. We do not screen them well. We sent people who were brought in for ransom without, you know, any back checking, fact checking, and packed them off to Guantánamo. And that’s something that’s unprecedented in American history.

John Donvan: Let me get Marc Thiessen into it.

Marc Thiessen: I’d like to — I’m not a lawyer. You have an advantage over us. But I’d like to enter some documents into evidence, right? The inaugural address of Barack Obama.

David Frakt: Objection.

Marc Thiessen: Our nation is at war —

David Frakt: Hearsay.

Marc Thiessen: That is a true statement. The inaugural address of Barack Obama, our nation is at war against a far-reaching network of violence and hatred. Congressional Authorization for Use of Military Force passed by the House of Representatives 420 to 1, Senate 98 to nothing. We are at war. Supreme Court of the United States in the Hamdi decision. We are at war, we can hold people captured in the war as enemy combatants. And, my final piece of evidence, Osama bin Laden’s fatwa, which is entitled: “Declaration of War Against the Americans.” What part of war do you not understand? We are at war. The president, the Congress, the Supreme Court and the enemy all think we’re at war, and you do not.

John Donvan: Stephen Jones.

Stephen Jones: Well I suppose the problem that I have, Marc, is that I’m old enough to remember when Lyndon Johnson said we were at war with Vietnam and the legacy and the things that were done in the name of the declaration of war which was nonexistent. I regret to say that I’m old enough to remember what one of the presidents of my own party did in the name of national security in Watergate and when he tried to use the CIA and the FBI in the name of national security. I remember what happened in Iran Contra. And I remember the efforts made to assassinate Patrice Lumumba, and Premier Castro, Dr. Castro, and how that backlashed in this country, and I’m sorry. The powers of the federal government in the last 50 years destroyed any credibility when we were asked to believe people in power because frequently they know no more than what we can read in the Economist or the New York Times.

Now, that information may be subject to different interpretation. But General Hayden talked about when in history have we had habeas for enemy combatants. General, your argument is not with me; it’s with the Supreme Court, the majority of whom my presidents appointed. And they brought the argument three times that these people are entitled to habeas review. And if we look at our history, those things that we thought were good in a time of war because the national interest compelled it were wrong. And there is no greater example of that than the internment of 200,000 Japanese on the West Coast in World War II because we thought our national security required that we round them up, take them out of their homes and put them in detention camps because they had attacked Pearl Harbor. At least their Imperial Navy did.

John Donvan: All of which, at least I want to say to the other side, all of which at least goes to the issue of violation of core US values that we say defines us. Your opponents are saying, essentially, and I think they used the word “un-American,” that your position is so at odds with what we value, including equal protection under the law, that what you’re doing is un-American. Can you respond to that?

Marc Thiessen: Well I will tell you something about that. Stephen mentioned American history.

John Donvan: No no, I want the answer to his question.

Marc Thiessen: No, I’m answering his question. Since the Revolutionary War, the United States has held over 5 million enemy combatants. Until the war on terror, not one of them was given habeas corpus rights to petition their detention. The Geneva Convention, which regulates the conduct of war, nowhere in there does it say that you have a right to contest your detention in a war. My mother is here. And my mother was a prisoner of war. She fought in the Warsaw uprising in Poland against the Nazis. She threw Molotov cocktails at German soldiers. And she was taken into a prisoner of war camp in Germany that would make Guantánamo look like the Four Seasons. And she was not given the right to petition.

David Frakt: You would be referring to the Geneva Conventions that the Bush administration said did not apply.

Marc Thiessen: Excuse me. Yes. Well this is the point. You want to give Geneva Convention rights to terrorists. Well you don’t even want to give them Geneva Convention rights because you don’t accept that it’s a war. But to take the argument to argument. My mother followed the laws of war. She was in an army that carried its weapons openly, that did not target civilians, that wore uniforms or distinctive insignia. Terrorists do none of those things; they violate all of the rules of war, and so you want to get more rights — if I understand your position you want to get more rights to people who violate the laws of war, than rights to the people like my mother who followed the laws of war never had.

John Donvan: It’s not that we don’t trust you, but I want to check all this with your mother. Is she here?  Can you stand up for just a moment? Is it all true?  Is it all true, everything he says? [Marc’s mother says yes from the audience.][Over to] David Frakt.

David Frakt: It’s ironic that I’m being accused of not understanding war. I have been awarded a Global War on Terrorism Expeditionary Service Medal, two National Defense Service Medals, I understand that we are at war. My objection is to the conduct of that war in the way that we have particularly domestically, are operating and, yes, and I have freely acknowledged that we can detain combatants on the battlefield. Where there is a question about what their status is, then they’re entitled to a hearing under the Geneva Conventions. At a minimum, they are entitled — all persons are entitled to humane treatment. And this is what we got away from in the early years of the Bush administration until the Supreme Court over time reigned in these abuses. But these are the abuses that they would like to get back to. And I think, Marc suggested that we want to broaden and expand rights, and you know actually that’s not such a bad thing. Over time history marches forward and human rights are expanded. And sometimes we extend those rights even to people whom we despise.

John Donvan: Actually, I’d like to hear from Michael Hayden.

Michael Hayden: David, we both served in the Air Force and I commend you for your service but it’s unfair to make that — again, if you want to talk about what was done in terms of interrogation, again, it’s a separate debate. This is a legal concept. Which of the equally valued legal systems do we want to use? Domestic criminal law, or the laws of armed conflict? I think we have the right as a nation to use the laws of armed conflict because we were attacked by an opposing armed enemy force. And Stephen, I have to say, you have a broad suspicion of government, and you went back to Vietnam, and the Gulf of Tonkin, and I think the historical record is quite clouded whether or not the [USS] Turner Joy was fired on by North Korean patrol craft. I don’t think that there is any dispute that we were attacked in New York City and in Washington.

John Donvan: Stephen Jones to respond.

Stephen Jones: I concede that point, but it’s not the historical accuracy of the initiating incident that’s at issue. It’s what we do about the incident after it’s happened.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

8 Responses

  1. Andy Worthington says...

    Here are a few comments from Facebook:

    Jennifer Elaine Elliott wrote:

    Michael Hayden is an evil man hiding international war crimes committed by male contractors paid to experiment on human lives for pay and rewards in a sadistic systematic expanded power abuse.

  2. Andy Worthington says...

    Kat Tehranchi wrote:

    The premise for a conversation like this is asinine. Sure, now that we’ve used, hidden and approved of torture, let’s have a high-brow, brainiac discussion about it so we can make it normal/ok? Total BS.
    Any reasonable, compassionate human being already knows how to treat any other human being. No ‘oxford’ debate needed. For those that aren’t reasonable or compassionate — maybe read a little Zimbardo.

  3. Andy Worthington says...

    Patrick O’Brien wrote:

    ‎… thank you for posting this, Andy …

  4. Andy Worthington says...

    Cheshire Cat wrote:

    I love David Frakt — he’s so dedicated! Thanks Andy!

  5. Andy Worthington says...

    This was my reply:

    Thanks for the comments, everyone. And Kat, while I appreciate your disdain for the premise of the debate, I think that, in reality, it’s an uphill struggle to persuade people to find or reconnect with their reason and compassion, and I really appreciate David Frakt and Stephen Jones’ efforts — especially as they demonstrated that they were able to change people’s minds, and were also able to make Marc Thiessen look foolish.

  6. Professional Leftist Michael Hayden praises Obama’s “continuity” says...

    [...] program was implemented (and was one of its principal defenders), and just last month defended Bush’s torture program in a debate alongside torture apologist Marc Thiessen.  Indeed, in 2006, then-Senator Obama voted against Hayden’s confirmation as [...]

  7. Dani Weber says...

    Another very disturbing premise here is that torture works and yields valuable information. In the entire debate no one on either side ever really challenges this. Apart from all the ethical concerns, which don’t seem to sway the likes of Thiessen, it’s an absurd premise; 2500 years ago Aristotle wrote about the unreliability of information obtained under torture, and nothing’s changed. It’s not that we have this effective “tool” we should or should not be too noble to use–it’s a question of how many false leads we wasted how much time and effort and manpower chasing after because people just want the pain to stop. Frakt briefly mentions “blind alleys,” but much of the value of the info has been provenly “cooked” to make the apologists look better–the premise is false. Torture mainly serves other purposes–chiefly feelings of power-over and revenge that people like Thiessen seem to need.

  8. Andy Worthington says...

    Thanks, Dani, for those very useful comments about torture, which reveal, I think, how the use of torture has not been subjected to proper open debate.

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Andy Worthington

Investigative journalist, author, filmmaker, photographer and Guantanamo expert
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The Guantánamo Files book cover

The Guantánamo Files

The Battle of the Beanfield book cover

The Battle of the Beanfield

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Stonehenge: Celebration & Subversion

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Outside the Law: Stories from Guantánamo

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