John Rosenthal, in Policy Review, demonstrates that, contrary to widespread belief, Bush Administration standards on coercive interrogation were actually stricter than standards enforced within the European Union on police interrogation.
Frankfurt, Germany, 1 October 2002, early morning:
In the Frankfurt Police Headquarters, the atmosphere is tense. Deputy Police Chief Wolfgang Daschner is losing patience. On the previous day, his officers arrested one Magnus GÃ¤fgen, a 27-year-old law student. GÃ¤fgen is suspected of having kidnapped 11-year-old Jakob von Metzler, son of the banker Friedrich von Metzler. Two days earlier, GÃ¤fgen had personally collected a 1-million-euro ransom payment. But there is no sign of the boy and GÃ¤fgen has refused to give police interrogators accurate information about his whereabouts. A police psychologist, observing the questioning, describes GÃ¤fgenâ€™s responses as a â€œpack of liesâ€ [LÃ¼gengebÃ¤ude]. Deputy Police Chief Daschner fears that Jakobâ€™s life may be in danger. In a memorandum, he writes: â€œWe need to ascertain without delay where the boy is being held. While respecting the principle of proportionality, the police have an obligation to take all measures in their power to save the childâ€™s life.â€
Daschner decides to act. He dispatches police inspector Ortwin Ennigkeit to the office in which GÃ¤fgen is being held for interrogation. Ennigkeitâ€™s assignment: to make GÃ¤fgen talk â€” if necessary by threat of torture. Indeed, Daschner has resolved not only to threaten GÃ¤fgen with pain, but to carry out the threat if his prisoner is not otherwise forthcoming. A doctor has been found to supervise the proceedings.
In the interrogation room, Ennigkeit tells GÃ¤fgen that a â€œspecial officerâ€ is on his way. If GÃ¤fgen does not tell Ennigkeit where the boy is, the â€œspecial officerâ€ will â€œmake him feel pain that he will not forget.â€ On GÃ¤fgenâ€™s own account, the formula is still more menacing: the officer â€œwill make you feel pain like you have never felt before.â€ â€œNobody can help you here,â€ Ennigkeit tells him, according to GÃ¤fgenâ€™s testimony. â€œWe can do whatever we want with you.â€ On GÃ¤fgenâ€™s account, moreover, Ennigkeit already begins to rough him up: shaking him so violently that his head bangs against the wall and hitting him in the chest hard enough to leave a bruise over his collarbone. GÃ¤fgenâ€™s testimony is consistent with the tenor of Daschnerâ€™s instructions, which, on Daschnerâ€™s own admission, called for the â€œuse of direct forceâ€ [ Anwendung unmittelbaren Zwangs].
In any case, whether the mere threat of pain has been sufficient or the latter has had to be supplemented by the â€œuse of direct force,â€ within minutes of Ennigkeitâ€™s entering the interrogation room GÃ¤fgen talks. He tells Ennigkeit where Jakob is to be found. Police rush to the location and find the boy dead, his corpse wrapped in plastic and submerged under a wooden jetty in a pond.
GuantÃ¡namo Bay Prison Camp, Cuba, ten days later:
The atmosphere in Joint Task Force 170 is tense. The task force has been set up to obtain intelligence from detainees, but the effort is lagging and army interrogators are losing patience. They have discovered that one of the detainees appears to have been directly involved in the 9/11 plot. Mohammed al-Qahtani attempted to enter the United States in early August 2001, but was turned back by immigration officers in Orlando, Florida. Telephone intercepts of conversations of 9/11 facilitator Mustafa al-Hawsawi indicate that al-Qahtani was slated to serve as the missing â€œtwentieth hijackerâ€ on September 11. Plot leader Mohammed Atta is known to have been at Orlando International Airport on the day of al-Qahtaniâ€™s arrival, presumably to meet him. Al-Qahtani was sent back to his native Saudi Arabia and then traveled to Afghanistan. In mid-December, two months after the start of Operation Enduring Freedom, he was taken prisoner on the Pakistani border along with 29 other suspected al Qaeda members apparently fleeing the Battle of Tora Bora.
In early October 2002, the questioning of al-Qahtani has been going nowhere. Interrogators and staff psychologists are convinced that he is lying: repeating prefabricated cover stories, no matter how implausible, as required by al Qaeda security protocols. He insists, for example, that he traveled to the United States to import used cars and that he was in Afghanistan merely to purchase falcons.
The first anniversary of the 9/11 attacks has only just passed. A spike in intelligence has American officials on high alert. On October 8, Bin Laden deputy Ayman al-Zawahiri releases an audio statement threatening new attacks against America and American allies. The commanders of JTF170 decide they need to act. On October 11, Major General Michael E. Dunlavey sends a memo to U.S. Army Southern Command requesting authorization to use more aggressive interrogation techniques with the detainees. …
JTF170 requests authorization to threaten detainees with â€œpainful consequencesâ€ if they fail to cooperate. As it so happens, this is precisely the method used by German police inspector Ortwin Ennigkeit a mere ten days earlier to obtain the cooperation of Magnus GÃ¤fgen. Following the advice of Department of Defense general counsel William J. Haynes, the request for authorization of this method is . . . refused.
In June 2005, the child-murderer and law student Magnus GÃ¤fgen lodged a complaint against Germany with the European Court of Human Rights. In his complaint, GÃ¤fgen accused Germany of having violated his rights under the European Convention on Human Rights and, more specifically, of having violated the prohibition on torture contained in Article 3 of the Convention.
On June 30, 2008, the European Court of Human Rights rejected GÃ¤fgenâ€™s complaint and cleared Germany of the charge of tolerating torture. The Court found that the treatment to which Daschner and Ennigkeit subjected GÃ¤fgen did not reach the threshold required to be considered as torture. …
While the (European Court of Human Rights) found that the Frankfurt policeâ€™s treatment of GÃ¤fgen did constitute â€œinhuman treatment,â€ it accepted the Frankfurt District Courtâ€™s judgment that under the circumstances this treatment did not warrant punishment.
The compassion shown for the perpetrators in the Frankfurt courtâ€™s judgment is striking. In adumbrating the â€œmassively extenuating circumstancesâ€ that on its view militated against the application of sanction, it notes that â€œfor both of the accused, it was exclusively and urgently a matter of saving the childâ€™s life.â€ It is â€œalso to be taken into account,â€ the Court adds a bit further on, â€œthat gâ€™s [GÃ¤fgenâ€™s] provocative and unscrupulous manner of answering questions had strained the nerves of the investigators to the breaking point (aufs Ã¤uÃŸerste strapazierte). Trained in law, he knew how to formulate and present his responses, so that they constantly produced doubts, hopes, and disappointments and provided no certainty.â€ â€œMoreover,â€ the Court continues, â€œthe situation was extraordinarily chaotic. The police personnel had been on duty overtime. They were worn out and tired. The accused E. [Ennigkeit] had worked through the night and the accused D. [Daschner] had only slept for a few hours. The overwrought sensibilities of the accused substantially reduces their guilt, since they lowered their inhibitions to acting. Neither man could take any more. Furthermore, both of them had led irreproachable lives up to that point.â€ And so on.12
One may well wonder whether the accusers of Donald Rumsfeld and other Pentagon officials would be prepared to acknowledge â€œmassively extenuating circumstancesâ€ in their cases. But if the desire to save the life of an eleven-year-old boy is an extenuating circumstance, how can the desire to prevent a follow-on attack to 9/11 and to save potentially thousands of innocent lives not be one? And if the difficulty involved in questioning a wily and arrogant 27-year-old student who has been â€œtrained in lawâ€ is an extenuating circumstance, how can the difficulty involved in questioning an evasive and potentially dangerous al Qaeda operative who has been trained in operational security measures not be one?
To deny the same degree of forbearance to American officials and personnel involved in the war on terror is to imply that irregular combatants forming part of terrorist organizations deserve greater legal protections not only than ordinary prisoners of war, but indeed than ordinary citizens. Such an absurd â€” and for the United States suicidal â€” logic could only be embraced by persons who are fundamentally committed to seeing American counter-terrorism efforts fail.