Q&A: Lindsey Graham on Torture

South Carolina Sen. Lindsey Graham has played a key role in opposing President Bush's plan to authorize military tribunals for terror suspects and reinterpret the Geneva Conventions to permit some aggressive interrogation techniques. As a member of the Senate's Armed Services' Committee, Graham and two other Republicans—John McCain and committee chairman John Warner—broke ranks with their party to reject the White House's detainee bill last week. NEWSWEEK's Michael Isikoff spoke to Graham, a former military lawyer, about the legislative battle—and why he feels so strongly about the issue. Excerpts:

NEWSWEEK: How do you see the military commission and torture issues playing out? Is the president going to get the legislation he wants?

Lindsey Graham: This idea of trying somebody where they don't get [to see] the evidence against them, but the jury does—that's dead. That's going nowhere ...

Why are you so against it?

Let me give you the best example. What if a CIA paramilitary guy is caught in Iran, trying to find out about the Iranian [nuclear] program? What would our response be if the Iranian government put them on trial as a war criminal? And had a procedure where the prosecutor could give to the jury or the judge a file marked "secret" and never provide that to the accused? We would scream bloody murder ... We would go crazy.

What do you make of the president's comments at [last Friday's] news conference [in which he threatened to terminate the CIA interrogation program if the White House legislation doesn't pass.] He seemed pretty worked up about this.

He's probably frustrated. But how many people have died in Iraq over the last few days?

Every day, there are scores of people getting killed in Iraq.

Yeah, but we're not talking about that. We're talking about this. So the president is getting to talk about something other than Iraq. He's getting good build-up from his base. He's getting beat up by you guys [in the media] a bit. I'm getting hit from the right. The politics of this is a mixed bag.

Another big issue is the use of aggressive interrogation techniques like water-boarding [dripping water into a wet cloth over a suspect's face], sleep deprivation and other techniques that might be considered abusive. Have we gotten useful intelligence using these techniques?

I don't know. I'm not on [the Senate intelligence] committee. And I wouldn't believe them if they told me .... I know the prosecutor at Gitmo believes that water-boarding inherently renders a statement involuntary. Water-boarding is a near drowning experience. It's pretty hard to say that a person voluntarily gave you something there. It may have been accurate. But it sure wasn't voluntary. So they don't need to go down that road. They don't need all that stuff ...

Are there no circumstances in which we should use them?

Either we're going to use torture or we're not. And when you say, we won't use torture, unless we think we really, really need it [then] we're not a rule-of-law nation ... John [McCain] and I argue. We love "24."

You mean the TV show?

He memorizes it. That's his favorite TV show. These guys going all around, shooting people in the kneecaps. And he won't miss an episode. But he'll come back the next day and say, we still have got to treat people right. ..What if the president of the United States were told there's a terrorist somewhere and we believe he knows where lethal weapons are. If the president of the United States authorizes people—'do whatever you have to do'—here's what we'd be giving up: If we let our chief of state decide the law is getting in the way, what's to prevent some other [foreign] chief of state from saying, 'that American pilot we've captured, he knows where the next bomb wave is coming, do what you got to do.' That's what's hard about being a democracy ... The enemy has no moral dilemma. They don't sit around wondering, what do we do here? People tell me—hah! They'll cut our heads off. I say, 'I know that. So what do we do? Cut their heads off? What does that make us? It might make us feel better. But you'll wake up one day and the next thing you know, you've lost your way.'

Why do you care so much about this issue?

For the past 20 something years, I've been a military lawyer. Every military lawyer I've ever met believes that this is vital for the safety of our troops .... I can give you dozens of example of cases involving captured Americans where abuse stopped at a certain point because the people doing it were afraid of being prosecuted as a war criminal ... During the Somalia conflict, they had one of our helicopter pilots. We dropped leaflets all over Mogadishu telling everybody, all the militia people, that we were watching, and that anybody who abuses this person will be a war criminal and we will come after you ...

Did you deal with these issues as a military Judge Advocate General (JAG)?

What I've done, like every other JAG, is teach the law of armed conflict. There is a pretty famous case back in Vietnam where a downed pilot, I think it was a Navy guy, got shot down. And a couple of Vietcong guys came up to him, captured him. He raised his hands in surrender, they dropped their weapons. He lowered his hands, got his pistol out and shot both of them. He came back to the carrier and started bragging about it. He ended up getting prosecuted—because he feigned surrender. That's a violation of the law of armed conflict. You know, people may think that's silly. But I told that story to all the pilots, just to say: 'Your country will be advocating there for you. But you have to do your part too' .... I know Al Qaeda are a bad bunch of people, I know the Taliban [are], you know, animals. But every war in the future won't be with them.

What did you make of former Secretary of State Colin Powell's letter [opposing the president's plan and stating that "the world is beginning to doubt the moral basis of our fight against terrorism."] How did that come about?

That was John [McCain] talking to Powell ... I know Powell is really committed to this.

One thing I'm hearing from defense lawyers is that you still have the language in there that's going to deny habeas corpus rights, strip access to the federal courts for all the other detainees who are still locked up in Guantánamo.

That's absolutely right.

What that means is there will be trials for the big 9/11 conspirators like Khalid Sheikh Mohammed, but everybody else could be stuck in indefinite limbo with no access to the courts.

Bulls--t. There are 400 and something lawsuits filed against our guys complaining about the food, the TV access, all kinds of crap. Prisoners of war don't sue their captors .... Habeas rights came about because the Bush administration took such a hard line. What we did last year [in the Detainee Treatment Act] is say, dismiss those lawsuits about conditions of your imprisonment, replace that with a right to go to ... the D.C. Court of Appeals and you can appeal whether or not you were validly confined as an enemy combatant ... They'll have their day in court to challenge whether or not the government has properly confined them ... But we're not going to give them the ability to bring medical malpractice lawsuits.

But the Guantánamo detainees have been declared enemy combatants at Pentagon hearings which were not real trials. They had the same flaws you just said you don't want to see in these military commission trials. The detainees weren't able to see the evidence against them.

They do get redacted versions of why they're an enemy combatant. Under a law of armed conflict, you can have one person say, 'OK, you're an enemy combatant. This is a military decision.'

But isn't the practical effect of all this going to be the small fry—not the big September 11 conspirators like Khalid Sheikh Mohammed—but the small fry will stay there indefinitely without having the right to challenge any of the evidence against them?

That was true of the Germans and the Japanese ... But here's the practical effect. If you're a small fry and you're not dangerous, and we got all the intelligence we can get out of you, well, we've let 230 go. We don't have a desire to keep these people in jail, we don't want to be the world's jailors ... But if that person is truly a member of an enemy force that is committed to your destruction, you don't have to let them go. And there's no requirement to try him as a war criminal. That's the way war works.

I've been hearing from all these defense lawyers who say the process is pretty unfair regardless.

Well, if I was a defense lawyer, I'd be bitching too.

So are we going to have a bill on this soon?

Yeah, I think a bill will come out of committee [this] week. It's going to be something we all can live with. I've got things that I think are just a bridge too far. I'm willing to give, but I can't sit by and watch a guy be tried and, even though I may hate his guts, he never gets to see the evidence against him ... You know what I've learned from this? I can see how easy it was to put all the Japanese in jail [during World War II]. The temptations are great to lash out and fight back. But history tells us, in the long run, the way we've tried to live our life as a nation is the best way, that the higher purpose of our reason to exist as a nation always serves us better than going the low road ... The bottom line—why does Lindsey care about this—I don't love the terrorists, I just love what Americans stand for.