The Lessons of the Torture Report

 

As I mentioned in our discussion of the Senate Intelligence Committee’s report on CIA torture on the most recent episode of the Law Talk podcast, for some years I served as a member of the Constitution Project’s task force on Detainee Treatment. The detailed recounting of the evidence I witnessed during that time left no doubt in my mind that the United States government did commit systematic acts of torture, which were contrary to this nation’s value structure, laws, and international treaty obligations. In my opinion, this is not a close case on which reasonable minds can differ.

As I note in my new column for Defining Ideas, however, I do not believe that opposition to the methods used by the CIA dictates, as a necessary correlate, that the United States should take a passive stance in dealing with Al Qaeda and its offshoot organizations. As I write there:

The real question here is on the effectiveness of the various techniques. From the outset, it should have been clear that the payoff from interrogation of high-value captives could only yield limited information of value, no matter how effectively conducted. It did not take much imagination for high-level al-Qaeda operatives to figure out which of their numbers were in the custody of the United States. The organization could therefore alter its various practices and protocols so as to depreciate the value of the information that these operatives possessed. The passage of time also degrades the value of any information that the detainees had about al-Qaeda plans or the whereabouts of its key operatives.

Indeed, the severe interrogation of these suspects therefore always carries the serious risk that even high-level targets do not possess any information of value. But it is all too easy to refuse to take these statements at face value and to continue the interrogation until the suspects make up stories that can actually mislead American intelligence officials. The constant cycle of ever more severe interrogation carries with it the seeds of its own destruction. It may well be wise to detain these subjects indefinitely so that they cannot rejoin the fray. But not to torture them.

As I mention in the column, the shortcomings of the interrogation program do not remove the need for America to continue aggressively monitoring terrorist activities through surveillance and to engage extremists on the battlefield. In the end, the detainee process was a regrettable chapter in a war that is very much worth waging. That fact should not be lost in the controversy over the CIA program.

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  1. calvincoolidg@gmail.com Inactive
    calvincoolidg@gmail.com
    @CalvinCoolidg

    Has there been a study on the effectiveness of degrading the human condition in order to produce a certain outcome? If there were it would probably suggest that the United States didn’t go far enough, or fast enough to achieve it’s intended purpose.

    The debate can be made as to whether or not it is in our moral compass to “Torture” detainees, but that could also be said for the countless lives that have been taken in a brutal fashion from those monsters. Many in the armed services have written books and columns about how interrogation techniques were performed on themselves as a matter of training for whatever may lie ahead if they were ever captured. So “Torture” may be the right adjective, but all of those people lived to write, or to talk about it. The same can’t be said for all the prisoners that have been taken hostage by a brutal enemy who plays by their own rules.

    I’m sure with the current rules of engagement and the fact that only our side seems to adhere to the rules of the Geneva Convention that it is likely an unfair fight down on the ground.

    • #1
  2. Zafar Member
    Zafar
    @Zafar

    But it’s gotta work, it’s just gotta.

    • #2
  3. user_836033 Member
    user_836033
    @WBob

    Can someone name the specific laws or treaty obligations waterboarding violates?  Not a rhetorical question.  I’m just not clear what they are, if they do exist.  You always hear it but never hear them actually cited.  I know it’s not the Geneva conventions which don’t apply to terrorists or even regular combatants who aren’t in uniform.

    As far as whether waterboarding violates our “Value structures” that’s just an assertion which begs the question.

    • #3
  4. Max Knots Member
    Max Knots
    @MaxKnots

    Calvin Coolidg: were performed on themselves as a matter of training for whatever may lie ahead if they were ever captured. So “Torture” may be the right adjective, but all of those people lived to write, or to talk about it. The same can’t be said for all the prisoners that have been taken hostage by a brutal enemy who plays by their own rules.

    Those who define what we do as “torture” devalue the word.  I offer as a definition any action that permanently maims or blinds, that removes limbs or permanently destroys the function of that part of the body.  None of our EIT’s meet this criteria.  They are unpleasant to the extreme but you get over it.  From personal experience I know that every pilot in our Navy and Air Force undergoes EITs during training to help them both resist, and to understand when they should no longer resist in the event of capture.

    Further, none of the terrorist groups have signed or feel inclined to be bound by the Geneva Convention’s Prisoner of War proscriptions.  To do that, they would be required to wear uniforms, not deliberately target civilians (their own or the enemy’s), and follow several other restrictions.

    So how to treat them?  As international criminals?  Under whose jurisdiction?

    There are two other issues surrounding EITs as others have noted:  1)  Is it ever effective? and 2)  Is there an alternative for getting that same information?  If “1” is always False, then there’s no need to ask “2”.  But if “1” is YES and “2” is “NO”, and it has the potential to save the lives of our citizens and soldiers, it should be done.  Even if there’s no guarantee.

    That said, most would probably agree that we’d all much prefer a world that didn’t require us to conduct EITs against our fellow creatures, despite their manifest flaws and intent to do us harm.  But sometimes words are not enough…

    • #4
  5. calvincoolidg@gmail.com Inactive
    calvincoolidg@gmail.com
    @CalvinCoolidg

    Bob W:Can someone name the specific laws or treaty obligations waterboarding violates? Not a rhetorical question. I’m just not clear what they are, if they do exist. You always hear it but never hear them actually cited. I know it’s not the Geneva conventions which don’t apply to terrorists or even regular combatants who aren’t in uniform.

    As far as whether waterboarding violates our “Value structures” that’s just an assertion which begs the question.

    There are none that I know of. I could be wrong. The reason the congress is having such a field day with this is for political purposes. This “Torture” test has been going on for a long time. I honestly don’t see the point in any of it other than to weaken our ability to extract information and to let people in the intelligence industry fry for doing a good job.

    • #5
  6. Mario the Gator Inactive
    Mario the Gator
    @Pelayo

    While some people in the United States engage in a discussion about whether EITs are torture or not and whether they are effective or not, ISIS is beheading hostages and the Taliban just massacred everyone in a Pakistani school.  Our laws and international treaties clearly do not interest Islamic Jihadists.

    My view is simple.  If there is any chance that EITs will lead to valuable information from an Islamic Jihadist prisoner, we should use them.  I would rather be accused of using EITs than to allow any American to die because we failed to use them and did not obtain information that could have prevented a death.  The goal should be to save lives and defeat our enemy, not to claim the so-called “moral high ground” while people are slaughtered.

    • #6
  7. common Inactive
    common
    @common

    Professor Epstein, I agree with you that I think it was torture.  But I strongly disagree that reasonable minds cannot differ.  Are you indicting your colleague John Yoo?

    Further, you are falling into the trap of the Left, which tries to avoid the moral quandary of torture by pretending it has no value.  Our minds instinctively recoil from the unpleasant choices that have no good outcomes.  We are forced to choose between what is bad and what is worse.  But that doesn’t relieve us of the necessity of the choice.

    You are attempting to avoid that choice by conveniently imagining that no useful information could come from torture.  I’m afraid there really is no other word for that moral avoidance: cowardice.

    • #7
  8. Instugator Thatcher
    Instugator
    @Instugator

    Max Knots:

    Calvin Coolidg: were performed on themselves as a matter of training for whatever may lie ahead if they were ever captured. So “Torture” may be the right adjective, but all of those people lived to write, or to talk about it. The same can’t be said for all the prisoners that have been taken hostage by a brutal enemy who plays by their own rules.

    Those who define what we do as “torture” devalue the word. I offer as a definition any action that permanently maims or blinds, that removes limbs or permanently destroys the function of that part of the body. None of our EIT’s meet this criteria.

    Concur on both statements. What was done to John McCain permanently damaged his arm/shoulders to the extent that he cannot raise them above his head. That was torture.

    Waterboarding isn’t.

    From Ricochet 1.0 – ‘waterboarding is so safe, untrained lefties can do it to each other while protesting in front of a congressman’s office and not get hurt.’

    • #8
  9. Zafar Member
    Zafar
    @Zafar

    Torture’s definition hinges on pain, not on maiming. From the irct website:

    The most widely accepted definition of torture internationally is that set out by Article 1 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT):

    “… ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

    Unless, of course, we would like to make up our own definition and use that instead.

    • #9
  10. Zafar Member
    Zafar
    @Zafar

    Why are some conservatives so invested in the utility of information gained from torture? To me it isn’t primarily a moral issue but a matter of doing something that doesn’t work and ignoring the evidence that it doesn’t work because….?? What’s the point?

    • #10
  11. calvincoolidg@gmail.com Inactive
    calvincoolidg@gmail.com
    @CalvinCoolidg

    Zafar:

    What do you suggest, asking nicely for the information? Do you think these practices started with the terrorists in the Middle East? The US has been using interrogation tactics for a very long time. I would assume that intelligence agencies would have quit long ago if they were rendered useless, don’t you think? Maybe we shouldn’t have carpet bombed Dresden either, but that proved effective as well.

    • #11
  12. user_836033 Member
    user_836033
    @WBob

    Anyone who thinks this kind of interrogation isn’t still happening is pretty naive.

    • #12
  13. Big Green Inactive
    Big Green
    @BigGreen

    Zafar:

    Why do a lot of leftists and some conservatives want to ignore the evidence that it doesn’t work (at least in come instances)?  The “it doesn’t work” line is incredibly unsatisfying and strikes me as a bit of a cop out.  Of course, if those techniques don’t work, there is absolutely no reason to employ them.  However, if they do, even in limited instances, then those opposed to the techniques on “moral” grounds have to deal with much more uncomfortable questions.

    You then need to take the view that even though the techniques work, you are still opposed and are willing to risk the lives of people (and perhaps, your fellow Americans) in order to maintain conformity to these strict scruples.  I respect that view and it might be the right one even if I disagree.  Either way, it is a view that would more likely relate to the real world.

    • #13
  14. user_989419 Inactive
    user_989419
    @ProbableCause

    The purpose of the Senate report was to knock Jonathan Gruber and Obama’s executive amnesty off the news cycle.

    • #14
  15. calvincoolidg@gmail.com Inactive
    calvincoolidg@gmail.com
    @CalvinCoolidg

    Probable Cause:The purpose of the Senate report was to knock Jonathan Gruber and Obama’s executive amnesty off the news cycle.

    The purpose was to smash the windows and kick the doors in on their way out of these committee positions, (as K.T. McFarland put it).

    • #15
  16. Howellis Inactive
    Howellis
    @ManWiththeAxe

    The blanket proposition that torture is always wrong is obviously false. It is bad, but it is not necessarily the worst choice in every situation. Like lying, like stealing, like killing, the prohibition of torture is not a true categorical imperative. It is possible to torture someone so harshly that he would beg for death. An analog might be a cancer patient who is in so much pain that he would rather die. But it is also possible to torture someone just enough to elicit relevant life-saving information yet remain orders of magnitude short of the point where he’d rather die.

    Torturing a terrorist not as bad as killing a terrorist and his whole family with a predator missile. Torturing a terrorist is not as bad as the deaths of innocent American civilians that the torture might have prevented.

    The torture victim (Gitmo detainee) has the “key to the jailhouse” in his pocket, i.e., he can avoid the torture completely by divulging the information he has.

    One final question: Which is more cruel:  water boarding or prison rape? I haven’t seen the Senate Report on the latter practice, which I understand is a common feature of our prison system. Maybe that’s what we should use to get the Gitmo detainees to talk. The fact that we mostly  turn a blind eye to prison rape shows that our revulsion towards water boarding is mere moral preening.

    • #16
  17. A Murder of Cows Inactive
    A Murder of Cows
    @DanielAdamMurphy

    Bob W:Can someone name the specific laws or treaty obligations waterboarding violates? Not a rhetorical question. I’m just not clear what they are, if they do exist. You always hear it but never hear them actually cited. I know it’s not the Geneva conventions which don’t apply to terrorists or even regular combatants who aren’t in uniform.

    As far as whether waterboarding violates our “Value structures” that’s just an assertion which begs the question.

    My understanding is that the main treaty obligation against torture is the UN Convention Against Torture, signed by President Reagan and ratified by the Senate after Reagan left office.

    • #17
  18. Zafar Member
    Zafar
    @Zafar

    Big Green:

    Why do a lot of leftists and some conservatives want to ignore the evidence that it doesn’t work (at least in come instances)? The “it doesn’t work” line is incredibly unsatisfying and strikes me as a bit of a cop out. Of course, if those techniques don’t work, there is absolutely no reason to employ them. However, if they do, even in limited instances, then those opposed to the techniques on “moral” grounds have to deal with much more uncomfortable questions.

    Wrt torture – I think the issue is more banal than wanting to avoid a moral question.  Most people, given the much used ticking bomb in a kindergarten hypothetical, would agree to engaging in torture.  So  that point becomes a parsing of when and how much and in which situations rather than a debate about never vs sometimes.

    More fundamentally, there is a human tendency to believe what confirms one’s other/existing beliefs- and that’s as true of the Left as the Right (and the you find torturers in both comps).  Googling for hard evidence about whether torture works or not, I ran across reams of articles that indicate that it’s a poor way to gain information – going by quality of information – compared to other interrogation methods.  One even quotes the US Army Handbook on interrogation.  It all seems really believable to me – and unsurprisingly it aligns with my existing beliefs – not just about torture, but about what actually causes terrorism and how it needs to be dealt with.

    But then there are clear instances where torturing for information worked. William F Buckley’s abduction and torture by Hezbollah in 1984 basically took down the CIA’s network of informants in Lebanon – they all disappeared or were killed – and that’s hard to deny, even though I do not like it. (I can’t help mutinously wondering how many innocents Hezbollah killed as they worked their way down the names Buckley eventually gave them.  But if they were willing to accept that collateral damage, it certainly worked for them.)  So in some circumstances, torture does deliver results.

    RSIS in Singapore has a predictably cool headed (and I am sure thoroughly researched) assessment of torture.  Which ends with:

    “The larger problem here, I think,” one active CIA officer observed in 2005, “is that this kind of stuff just makes people feel better, even if it doesn’t work.”

    And that leaves me with the cynical thought that maybe there’s a political aspect to torture.  A Government that is willing to engage in torture (or enhanced interrogation) comes across as ‘tough’.  Perhaps it’s for domestic consumption as much as it is to get actionable information?

    • #18
  19. Howellis Inactive
    Howellis
    @ManWiththeAxe

    How many cases of obtaining useful intelligence through torture would it take to convince the crowd who claim that torture “doesn’t work?” Would thousands suffice to convince them?

    In the long history of torture by military, police, espionage, church, and other agencies, not to mention by criminals torturing bank managers for vault combinations, or homeowners for the secret location of their stashed wealth, or drug dealers for their stashed drugs, etc., has torture ever worked? No, to hear the “it doesn’t work” crowd. Everyone, and I mean everyone, gives false information, they claim. No one ever says, “Stop beating me. I’ll talk.”

    I can understand that there are people who think that torture is wrong, but the claim that it doesn’t work just doesn’t accord with reality.

    • #19
  20. Howellis Inactive
    Howellis
    @ManWiththeAxe

    Zafar: Most people, given the much used ticking bomb in a kindergarten hypothetical, would agree to engaging in torture.

    I assume by “kindergarten hypothetical” you mean something like the plot yesterday to kill hundreds of children in a Pakistani school. That would be a good example of a case where torturing one captured Talib who new of the plot would be a legitimate use of torture, in which the wrongfulness of the torture is offset many times over by the harm to be avoided by foiling the plot.

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  21. calvincoolidg@gmail.com Inactive
    calvincoolidg@gmail.com
    @CalvinCoolidg

    Zafar:

    How many attacks haven’t happened because of information extracted from interrogations? The answer is you haven’t got the slightest clue. Neither do I. The majority of these interrogations and, in many cases, the people that are interrogated never reaches the press or to you or I. So you can search the internet all you like attempting to justify your position, but it’s a fruitless effort.

    • #21
  22. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    Why is it worse to splash some water on a suspected terrorists’ face than to blow him up with a hellfire missile?

    • #22
  23. Zafar Member
    Zafar
    @Zafar

    Man With the Axe:

    Zafar: Most people, given the much used ticking bomb in a kindergarten hypothetical, would agree to engaging in torture.

    I assume by “kindergarten hypothetical” you mean something like the plot yesterday to kill hundreds of children in a Pakistani school. That would be a good example of a case where torturing one captured Talib who new of the plot would be a legitimate use of torture, in which the wrongfulness of the torture is offset many times over by the harm to be avoided by foiling the plot.

    Yes, precisely.  But what’s to stop the captured Talib to lie about which institution or which school is being targeted?  How would the questioners know when he was telling the truth and when he was lying?

    • #23
  24. Zafar Member
    Zafar
    @Zafar

    Calvin Coolidg:

    Zafar:

    How many attacks haven’t happened because of information extracted from interrogations? The answer is you haven’t got the slightest clue. Neither do I.

    Interrogations can provide excellent information.  But do all types of interrogation provide good info?  Are some kinds of interrogation worse than others wrt the info gained?

    Torture is only one kind of interrogation.  When you answer a question about torture’s efficacy by defending interrogation in general I think you’re missing the point.

    • #24
  25. Devereaux Inactive
    Devereaux
    @Devereaux

    Zafar – I would suggest that you have a significant point in asking just what DOES work and what does not. That, unfortunately, can only be answered over time, with a comparison of the two techniques.

    Intelligence, in its raw form, is not known to be true or not true. It doesn’t come with a little ribbon that says, “This is true,” or “This is BS because I am in pain.” In either case you have to run it down, check it out, look at what collateral info you have or can find to evaluate it. These things don’t come out in nice, neat packages.

    Judging from the comments of James Mitchell the other night, the man who ran and developed the EIT techniques, we got real, actionable intel from these methods. So the question of whether they work or not seems answered as yes, they do. What we don’t know, and what we need the agencies involved to review – and keep reviewing – is what methods work best, quickest, etc. You may, eg, find the same intel from less harsh methods but a lot later and perhaps not in time to do something about it. We just don’t know.

    I would submit that we, as a people, should stand by those who made attempts to gather this intel, and to encourage them to assess and reassess their methodology. But to stand up like DiFi and claim we “don’t do this” is both stupid, hypocritical as she knew ALL of it as it was being done, and clearly a lame excuse to make some cheap political ponts and change the debate, in as much as we already discussed all this long ago and decided what we would or wouldn’t do. NOTHING in her report is younger than 6 years. MUCH is cherry picked to elicit a desired effect. Little is honest.

    We don’t need that from the agencies involved, and we certainly don’t need that from our politicians. No matter what the issue is here, it ought to be handled quietly out of the public eye. 25-30 years from now perhaps we can have some books written on the efforts and their results, but not at this point.

    • #25
  26. Instugator Thatcher
    Instugator
    @Instugator

    Zafar:Torture’s definition hinges on pain, not on maiming. From the irct website:

    The most widely accepted definition of torture internationally is that set out by Article 1 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT):

    “… ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

    Unless, of course, we would like to make up our own definition and use that instead.

    Under that definition, P. Obama’s gift of his speeches to the Queen of England was torture, assuming he asked her any questions.

    • #26
  27. Instugator Thatcher
    Instugator
    @Instugator

    <posted on the wrong thread>

    • #27
  28. Zafar Member
    Zafar
    @Zafar

    Devereaux:I would submit that we, as a people, should stand by those who made attempts to gather this intel, and to encourage them to assess and reassess their methodology. But to stand up like DiFi and claim we “don’t do this” is both stupid, hypocritical as she knew ALL of it as it was being done, and clearly a lame excuse to make some cheap political ponts and change the debate, in as much as we already discussed all this long ago and decided what we would or wouldn’t do. NOTHING in her report is younger than 6 years. MUCH is cherry picked to elicit a desired effect. Little is honest.

    The point is that when it’s politicised, personalised or assigned to one institution or another, and perhaps this is inevitable, the arguments for and against are both tainted by self interest – neither is objective.

    I agree that the ‘we don’t do this’ argument is both hypocritical and stupid (in fact laughable to anybody in Latin America and much of the Middle East).  But sadly the insistence that torture works well – that it’s worth doing – seems to be a proxy for defending Brand Bush, or the Republicans – and that kind of motivation doesn’t make for honest assessment either, in fact the opposite.

    I’d be interested to know if you think that other countries’ experience with using torture as a tool is relevant to the debate, or whether you think torture as it was/is carried out by the US is completely different wrt accuracy of information gained and the practical HR aspect of running an operation.

    • #28
  29. calvincoolidg@gmail.com Inactive
    calvincoolidg@gmail.com
    @CalvinCoolidg

    Zafar:

    Calvin Coolidg:

    Zafar:

    How many attacks haven’t happened because of information extracted from interrogations? The answer is you haven’t got the slightest clue. Neither do I.

    Interrogations can provide excellent information. But do all types of interrogation provide good info? Are some kinds of interrogation worse than others wrt the info gained?

    Torture is only one kind of interrogation. When you answer a question about torture’s efficacy by defending interrogation in general I think you’re missing the point.

    I’m not missing anything. You have no idea what you’re talking about.

    • #29
  30. Devereaux Inactive
    Devereaux
    @Devereaux

    Zafar – I believe us holding this discussion is rather like the blind describing the colour red. There are a whole lot of issues that we just don’t know about.

    Take KSM. From Mitchell’s comments, and the (hopefully) inadvertent comments of another guy, it appears that waterboarding did nothing to KSM. Indeed, per Mitchell, he was counting, holding up fingers, knowing how long the pour was going to be. Apparently what got him was sleep deprivation. But the Brits used that on the IRA and got nothing. So we have to ask whether the techniques were the same, whether the approach was the same, whether the object of the action was the same. Because clearly it affected KSM, and he was an arrogant, intelligent dude.

    So I would submit that bandying about the word “torture” is counter-productive. This stuff wasn’t torture, as uncomfortable as it may have been. Furthermore, I would submit that regardless of what any UN thing says, it’s only some BS created by some nation with an agenda at the time. In real time one has to look at what was done and why and what it got. That ends up being the only rational ruler. Evaluation of other national experience can be useful, but with a grain of salt.

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