Secretary Rice, Torture, and the Meaning of Berlin

There are weeks when the irony level in the news is almost too much to bear. This is one of those weeks. In the city where the U.S. led and won the long battles against fascism and communist totalitarianism, a city that is now a vibrant center of democracy, the capital of one of the world’s largest economies and of hte most important U.S. policy partner in Europe, a city where Kennedy declared, “Ich bin ein Berliner” and where Reagan famously demanded, “Mr. Gorbachev, tear down this Wall,” the Secretary of State is reduced to this legalism:

“It is against U.S. law to be involved in torture or conspiracy to commit torture.”

For anyone who served in Berlin as a member of the American armed forces or, as I did, a diplomat, it is simply heartbreaking.

How did we come to this? It is too early to write the complete history of the legal opinions and policy decisions that led us to this sad, yet entirely avoidable, juncture. But let’s remember what the past Secretary of State and his legal adviser wrote in 2002 about why it is important to follow the path of international law, law that the U.S. itself had created over decades of practice:

*It has high costs in terms of negative international reaction, with immediate adverse consequences for the conduct of our foreign policy.
*It will undermine public support among critical allies, making military cooperation more difficult to sustain.
*Europeans and others will likely have legal problems with extradition and other forms of cooperation in law enforcement, including brining terrorists to justice.
*It may provoke some individual foreign prosecutors to investigate and prosecute our officials and troops.
*It will make us more vulnerable to domestic and international legal challenges and deprive us of important legal options.

The renditions of terror suspects to black sites in Europe and to other countries, the capture of European citizens in European states and their transfer to Afghanistan and Guantanamo, the indefinite detention and yes, in some (how many?) cases, the mistreatment of detainees at the hands of U.S. military and intelligence personnel, have come to dominate the U.S.-European relationship. And will continue to do so for years to come, as criminal and civil investigations into U.S. policies and conduct go forward. It is more than a pity; it is to the detriment of many other bilateral and multilateral policy initiatives that are crucial to the security and safety of people on both sides of the Atlantic. What is the future of Kosovo? What about European commitments in Afghanistan? Will the U.S. ever be able to share with the Europeans the burden of training and security in Iraq? The second term was supposed to be the “diplomatic turn” for an administration that had disdained it in the first. But how can the State department feel unconstrained on the diplomatic front when it is faced not only with the deep reputational harm of the detention practices, but quite literally faced with the possibility that senior officials will be slapped with subpoenas or arrest warrants if they travel abroad?

The struggle against violent Islamic extremism (I leave to others to debate whether it is Islamo-fascism or Islamo-Bolshevism) will be with us for quite some time, perhaps our lifetimes. Like the two great struggles played out in Berlin in the 20th Century, this is one that the free world cannot lose. If the past two years of revelations – from Abu Ghraib to Guantanamo to the “mistake” of holding a German citizen without charge for nine months – has taught us anything, it is that how democratic states treat terror suspects matters a great deal in this struggle, just as it mattered in 1945 and 1989 how we dealt with the crimes of fascism and totalitarian communism. The spectacle at the Iraqi Special Tribunal yesterday of a victim of one of Saddam Hussein’s “rape rooms” being forced to concede that, unlike at Abu Ghraib under the U.S. occupation, no one used dogs on her or took photos of her, is sickening. But we can expect to see more of it. As Secretary of State Rice has said in another context, but which applies equally to the question of humane treatment of detainees and the battle to win respect for the rule of law:

“The terrorists only have to be right only once. We have to be right all the time.”