May 2, 2009
A serious debate is underway on whether those who engaged in torture - as participants or enablers - should be prosecuted. Even conducting a searching, and potentially accusatory, inquiry is controversial. The arguments in favor are largely moral, those in opposition largely political, but that characterization doesn't determine the answer.
Here's a summary of the debate, as I understand it. Let's start with the arguments against prosecution and investigation; first, the claim that torture is justified.
Most of the focus has been on waterboarding. For some time, conservatives claimed that it wasn't really torture, but that has worn thin. Now it is a matter of necessity or, at least, utility. Gen. Michael V. Hayden, the director of the Central Intelligence Agency under Bush, claimed that "the use of these techniques against these terrorists made us safer. It really did work." In support of this position Cheney, as usual, avoided nuance. In an interview last month, he claimed that "the harsh interrogations of suspects and the use of warrantless electronic surveillance were 'absolutely essential' to get information to prevent more attacks like the 2001 suicide hijackings that targeted New York and Washington."
Opponents of prosecution have cited Adm. Dennis C. Blair, the new intelligence director, who wrote in a memo this month, "High value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa'ida organization that was attacking this country." However, he later added, "The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means. The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security."
The evidence for the success of "those methods" is thin. One of those tortured is Abu Zubaida, at one time considered, or claimed, to be a high-level al Qaeda operative. A recently-released memo21 recited that "Abu Zubaida provided significant information on two operatives, including Jose Padilla, who 'planned to build and detonate a dirty bomb in the Washington D.C area.' " However, Zubaida identified Padilla before the torture began. Ali Soufan, a former FBI special agent who questioned Abu Zubaida between his capture in March 2002 and early June of that year, has stated that Zubaida revealed Padilla "under traditional interrogation methods." 22
Khalid Sheik Mohammed is another source alleged to have disclosed valuable information under torture. Part of the problem in assessing this claim is that the torture apparently began immediately after his capture, so there is no control situation against which to measure the effectiveness of the technique. Whether Mohammed gave useful information also isn't altogether clear. One example claimed certainly is phony: the exposure of a plot to crash an airliner into a tower in Los Angeles. This is a somewhat dubious story which the Bush administration trotted out from time to time but, whatever its reality, it doesn't fit here: President Bush told us that the plot was broken up in 2002, before Mohammed's capture in Pakistan on March 1, 2003.
Various experts in interrogation have stated that torture is as likely to produce false information as true. The Joint Personnel Recovery Agency, a military organization, wrote, apparently in 2002, "The requirement to obtain information from an uncooperative source as quickly as possible -- in time to prevent, for example, an impending terrorist attack that could result in loss of life -- has been forwarded as a compelling argument for the use of torture. . . . In essence, physical and/or psychological duress are viewed as an alternative to the more time-consuming conventional interrogation process." However, not so. "The error inherent in this line of thinking is the assumption that, through torture, the interrogator can extract reliable and accurate information. History and a consideration of human behavior would appear to refute this assumption." 23
Even the enabling lawyers recognized that the efficacy of the methods was questionable. "[I]t is difficult to quantify with confidence and precision the effectiveness of the program. As the [CIA] I[nspector] G[eneral] Report notes, it is difficult to determine conclusively whether interrogations provided information critical to interdicting specific imminent attacks." 24
Those who defend torture rarely attempt to support it on moral grounds, although Michael Scheuer, formerly Anonymous, resorted to an admitted "worst-case scenario" to justify torture, and to turn the morality argument on its head. Writing in the Washington Post on April 26, he said, "[O]ne can wonder what could be more moral for a president than doing all that is needed to defend America and its citizens? Or, asked another way, is it moral for the president of the United States to abandon intelligence tools that have saved the lives and property of Americans and their allies in favor of his own ideological beliefs?" However, the imminent-attack scenario is almost entirely a dramatic device, and the assertion that lives have been saved, while often made, is at best speculative. Last year, FBI Director Robert Mueller said that he did not believe that any attacks had been disrupted because of intelligence obtained through "enhanced techniques." 25
An entirely different argument against prosecution or accusatory inquiry is that the interrogation techniques were approved by Congress, or at least allowed to proceed without objection. Speaker Nancy Pelosi insists that "the lawmakers were told only that the C.I.A. believed the methods were legal -- not that they were going to be used." Even if true, that's hardly a defense; she would have to be incredibly naïve to think that the conversation was wholly theoretical. Porter Goss, then a congressman, later briefly CIA chief, has a different recollection. "In the fall of 2002, while I was chairman of the House intelligence committee, senior members of Congress were briefed on the CIA's 'High Value Terrorist Program,' including the development of 'enhanced interrogation techniques' and what those techniques were. This was not a one-time briefing but an ongoing subject with lots of back and forth between those members and the briefers." He implies that waterboarding was discussed. His recollection may be as convenient as Pelosi's, and his fuller statement is somewhat ambiguous, but I'm inclined to credit it in general. It's certainly true that Democrats in Congress - perhaps out of agreement, perhaps out of political cowardice - raised few objections to the administration's policies and practices.
A related argument is that the Obama administration has to some degree approved "enhanced interrogation" practices. In addition to the comment by Adm. Blair, this is based on a waffling statement made by Leon Panetta, now CIA chief, during his confirmation hearings. Panetta identified waterboarding as torture, and said that he was "absolutely convinced ... we can get the information we need, we can provide for the security of the American people and we can abide by the law." However, when pressed he added, "If I had a ticking bomb situation and obviously whatever was being used I felt was not sufficient, I would not hesitate to go to the president of the United States and request whatever additional authority I would need."
A more limited argument is that those who carried out the interrogations should not be prosecuted, because it is highly unlikely that higher-ups will be, and the discrepancy would be unfair. It would, indeed. We should not follow the example of the Bush administration in prosecuting the grunts at Abu Ghraib and giving the policy-makers a pass. Nürnberg principles have been cited in support of prosecution: following orders should not be a defense. However, at Nürnberg the prosecutions went all the way to the top so, unless there is a major change of course, that analogy won't apply here.
On April 29, Thomas Friedman, defending the do-nothing option, tried to make the case for not pursuing those at the top: "justice taken to its logical end here would likely require bringing George W. Bush, Donald Rumsfeld and other senior officials to trial, which would rip our country apart." This is a new form of "too big to fail." Would it be more disruptive than impeaching a sitting president over trivial issues?
As a way of transitioning to the arguments in favor, let's look at the April 24 house editorial of The Washington Post, which offered its comments on the calls for an investigation. When I saw that the general drift was toward caution, I started to drop the column into the mental bin marked "Bush-friendly, pro-establishment ignorance." (I must confess a tendency to assign all Post editorials to that receptacle). However, this one made sense. "On one side, you have the sacred American tradition of peacefully transferring power from one party to another every four or eight years without cycles of revenge and criminal investigation." That is no small issue. We would not want to create an atmosphere in which each change of administration was accompanied by prosecutions, and every campaign sullied by accusations of criminality. However, the Post's specific reference was oddly inconsistent with that thesis. Rather than pointing out the impeachment of President Clinton as a horrible example, it noted that the investigation (and presumably the move toward impeachment) of President Nixon was OK. "It's one thing to investigate Richard Nixon for authorizing wiretaps and burglaries in secrecy, outside the normal channels of government, for personal political gain. It's another to criminalize decisions authorized through all the proper channels, with congressional approval or at least awareness, for what everyone agrees to be the high purpose of keeping Americans safe from terrorist attack." I don't know where the Post gets the idea that everyone agrees that the motivation behind the Bush actions was that noble.
However, its more general point has validity: where do we draw the line? Should various acts of undeclared war be the subject of investigation and possible prosecution? Again the first example under that heading is strange: "Should Bill Clinton, Sandy Berger and their team have been held criminally or civilly liable for dereliction of duty 3,000 people died in the Sept. 11, 2001, attacks, given that they knowingly allowed Osama bin Laden to flee Sudan for sanctuary in Afghanistan?" A more pertinent question is whether Bush should be prosecuted for allowing 9-11 given his irresponsible inattention to warnings. No one has suggested that as a basis for prosecution, and the Clinton example is even less persuasive.
If that were the only worry, we could move ahead, but the Post added a better hypothetical: "What if the next administration believes that Barack Obama is committing war crimes every time he allows the Air Force to fling missiles into Pakistan, killing innocent civilians in a country with which we are not at war?" That is close enough to the proposed investigation to be worrisome, and its the sort of question which will come up in nearly every administration. However, thePost muddied the waters yet again by claiming that "[s]uch concerns are heightened when the country is at war, as we in fact are . . . ." The "wartime" excuse carves out a special exemption for an administration which starts a war.
The editors also worried that the threat of prosecution would discourage public service, which might be so.
The Post then considered the case for investigation and prosecution: "on the other side, we have this: American officials condoned and conducted torture. . . . In a country founded on the rule of law, a president can't sweep criminality away for political reasons, even the most noble." Again, ignore the nod to nobility. "When the United States sees torture taking place in other parts of the world, it issues some pretty simple demands: Stop doing that, and punish -- or at least identify, and in some way hold accountable -- those responsible, so that the practice will not be repeated. How can a country that purports to serve as a moral exemplar ask any less of itself?" How, indeed.
The Post was concerned that "the past will haunt the present until it is investigated and openly dealt with." I doubt that. Our capacity for convenient forgetfulness and rationalization is too great, and will be reinforced by Bush apologists. "[I]it's also true that if the United States doesn't examine its own record, other nations will have a better claim to do so." That's a possibility, as the threats from Spain have shown.
The Post ended by advocating a thorough, but calm, investigation, leaving open the possibility of prosecution but with a bias against it. That may be the right course, but its concern for evenhandedness is misplaced. The reason we are contemplating an inquiry is that the behavior is unacceptable. The editors seem to acknowledge that, but cover it with a veil of good intentions.
I don't know whether there is anyone who now defends the interrogations on the ground that there is no legal or moral issue regarding the use of torture. At least as to waterboarding, no one could have contended honestly that it was lawful; as recently pointed out, it was among the war-crimes charges against Japanese soldiers after WWII.26
The excuse is that dire circumstances justify drastic measures. (Conservative aversion to situational ethics recognizes a convenient exception). However, the interrogations we know about didn't involve ticking bombs. Khalid Sheik Muhammed was waterboarded repeatedly in March 2003; to my knowledge no one has identified an imminent threat disclosed as a result. Abu Zubaida was waterboarded repeatedly in August 2002, with no useful effect.27
Waterboarding came into the repertoire by the back door. It was used in a program known as SERE (Survival, Evasion, Resistance and Escape), "created decades earlier to give American pilots and soldiers a sample of the torture methods used by Communists in the Korean War, methods that had wrung false confessions from Americans." 28 The knowledge that this procedure did not produce true information ought to have indicated its likely uselessness but, as Cofer Black said, "after 9-11, the gloves come off." It's wartime; real men become brutal.
SERE has been pointed to as a model and as a justification for using waterboarding in interrogations; one of the recently released memos treats the use in SERE as equivalent to its use in interrogation.29 However, later memos make clear that the two practices bear little resemblance to each other. "Individuals undergoing SERE training are obviously in a very different situation from detainees undergoing interrogation; SERE trainees know that it is part of a training program, not a real-life interrogation regime, they presumably know that it will last only a short time, and they presumably have assurances that they will not be significantly harmed by the training." 30 Its use in interrogation was hardly comparable: 183 waterboardings of K S Muhammed in a month, 83 in a month of Zubaida.31 That indicates that it appealed to interrogators for reasons far removed from any noble concern for national security and, contrary to recitals in the memos, with no regard for the health of the victims.
There is reason to believe that the various extreme measures were used to extract not unknown true information but false information which would be useful politically. That is, they were employed in the hope of "proving' a link between Iraq and al Qaeda which would justify the invasion.32
The issue for investigation goes beyond waterboarding and beyond abusive interrogations. Scheuer named what he considers to be three "proven threat- containing capacities of the major U.S. counterterrorism programs -- rendition, interrogation and unmanned aerial vehicle attacks." He complained that, "in a single week, President Obama has eliminated two-thirds of that successful- but-not- sufficient national defense troika because his personal ideology . . . ." Presumably the vow not to use torture in the future eliminates one. I don't know which is the other, as Obama has not, as far as I know, renounced drone attacks or rendition.
However, Scheuer has listed three questionable practices, and Obama needs to address each of them. It isn't enough to state that waterboarding is torture and we won't torture in the future. Waterboarding isn't the only barbaric technique which needs to be so identified, and torture isn't the only issue raised by Bush's "wartime" policies and practices. We need to expose and renounce rendition to torture-friendly countries, and the use of black sites, and stop unmanned aerial attacks, at least as to drones sent into Pakistan.
John Dean famously testified that he told Nixon that a cancer was growing on the presidency. Systematic violation of the law and of moral standards create that disease. Collaboration of lawyers in the violation is one of the most reprehensible aspects of this entire scandal. Lawrence Wilkerson, Colin Powell's former chief of staff, called for disbarment of the lawyers involved in drafting the torture memos. "I feel that Gonzales, Addington, Yoo, Bybee, Haynes and Feith should be, at a minimum, disbarred. . . . " Feith doesn't quite fit into that group, and reappears in another category: "Second, the decision-makers and their closest advisors (particularly the ones among the latter who may, on their own, have twisted the dagger a little deeper in Caesar's prostrate body -- Rumsfeld and Feith for instance). Appoint a special prosecutor such as Fitzgerald, armed to the teeth, and give him or her carte blanche." 33
The memos produced by those lawyers are odd documents. They are worded carefully, in that they recite the information provided by the interrogators and condition their advice on those disclosures. The information provided represents the measures to be mild, emphasizes how carefully the health of the prisoners will be monitored and generally describes something akin to a fraternity hazing. Accepting those representations, even as the basis for an opinion, suggests naïveté or a wink-and-nod arrangement, probably both.
The opinions go to great lengths to find that the procedures will not cause great pain and suffering. Even severe mental distress is declared not to be a result, which is odd, as it seems to be the whole point. Despite the effort, a few hints of the barbarity of the practices slip through. For example, sleep deprivation, in which the prisoner is shackled in such a way as to prevent sleep or much movement, may go on for 180 hours. That's seven and one-half days. But it's not torture; it doesn't cause physical or severe mental pain.34
The memos are long, couched in legalese and larded with citations. It's extremely unlikely that interrogators read any of that turgid prose. The message - go for it! - was all they needed. The memos were designed for ass-covering, for the authors and for the policy makers. They were, in other words designed to forestall exactly the measures now being debated.
What to do? Prosecution isn't a reasonable course because it will criminalize followers but leave those most responsible to pleasant retirement. However, the alternatives aren't limited to putting people in jail and sweeping it under the rug. What is needed is a principled political declaration.
We should conduct a searching, critical investigation - or more than one - to turn over all of the rocks, to see just how bad it was, to expose all of those involved, however inconvenient that may be. The inquiry must be fair and honest, but it would be ludicrous to insist that it be unbiased. The nature of the crime is known; the purpose of further investigation should be to ensure that it isn't repeated.
Apart from moral considerations, the obvious reason that the Bush policies toward "enemy combatants" must be fully aired is that they undermine the rule of law. They do so by promoting the view that the president is above the law. The legal memos, especially the earlier ones, are briefs for that position. Disbarment makes sense, and so does impeachment of Jay Bybee.
Condoleezza Rice, in a recent exchange with students at Stanford, came close to adopting the Nixonian view that, if the president does it, it isn't illegal. We put people in prison to declare otherwise, but here we are decades later, debating whether we were right, or whether there is a "wartime" exception.