5 Things to Understand About the Torture Report

You don’t have to read the full 525-page executive summary of the “torture report” — officially the Senate Select Committee on Intelligence’s Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program — to get the gist. The 19-page “Findings and Conclusions” section begins right after Senator Feinstein’s six-page introduction and is very readable.

When something this long and detailed comes out and says things a lot of people don’t want to hear, it’s easy to get drawn off into arguments that miss the point. So here are my “findings”, the main things that I think the average American needs to understand:

  1. We tortured people.
  2. A lot of people.
  3. We gained virtually nothing from it.
  4. It was illegal.
  5. No one has been held accountable for it.

1. We tortured people. Past public discussions of torture focused primarily on waterboarding, but this report makes it clear that “enhanced interrogation” also included beatings, sleep deprivation (“up to 180 hours, usually standing or in stress positions”), ice water baths (at least one detainee died of exposure), threats against detainee’s families (“threats to harm the children of a detainee, threats to sexually abuse the mother of a detainee, and a threat to “cut [a detainee’s] mother’s throat”), and “rectal feeding without documented medical necessity”.

In addition, inexperienced and poorly trained interrogators sometimes made up their own unauthorized torture techniques, and were not punished for doing so.

Compare this to the definition in Article 1 of the United Nations Convention Against Torture, which President Reagan signed in 1988 and the Senate ratified in 1994,* making it “the supreme Law of the Land” according to Article VI of the Constitution:

For the purposes of this Convention, the term “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.

If you are having any doubt about whether the acts described in the report are torture, imagine a foreign government doing them to an American. John McCain doesn’t have to imagine this, he can remember it, so he has no trouble calling the CIA’s program torture.

2. A lot of people. The public arguments about waterboarding usually led to the claim that we had only done it to three very bad people. But the report says the CIA applied “enhanced interrogation” to 119 people, many of whom didn’t meet the program’s own standards for inclusion.

These included an “intellectually challenged” man whose CIA detention was used solely as leverage to get a family member to provide information … and two individuals whom the CIA assessed to be connected to al-Qa’ida based solely on information fabricated by a CIA detainee subject to the the CIA’s enhanced interrogation techniques.

And remember: that’s just the CIA. It doesn’t count all the prisoners abused by the Army at Abu Ghraib and elsewhere. For an account of that torture, I recommend Fear Up Harsh by former Army interrogator Tony Lagouranis, who wrote:

Once introduced into war, torture will inevitably spread, because ticking bombs are everywhere. Each and every prisoner, without exception, has the potential to be the one that provides the information that will save American lives. So if you accept the logic that we have to perform torture to prevent deaths, each and every prisoner is deserving of torture.

3. We gained virtually nothing from it. Torture’s effectiveness in getting information out of people has been hotly debated all along. Dick Cheney and others claimed it was invaluable, while the sources Jane Mayer and Phillippe Sands talked to said otherwise. After reviewing the CIA’s records, the Senate Intelligence Committee began its findings by calling BS on torture advocates’ effectiveness claims.

#1: The CIA’s use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees.

The shocking thing you learn as you get into the history of the program is that there was never any real reason to think it would be effective. The program was not designed by experienced interrogators, but by a consulting psychologist with no experience, based not on techniques that had gotten information out of prisoners in the past, but on a program we ran to teach our own soldiers how to resist torture. In other word, “enhanced interrogation” was designed to be torture, not to get information.

The repeated claims that torture “saved American lives” were based on several types of deception: giving torture credit for everything a tortured detainee told us, even if he told us before he was tortured; giving torture credit for thwarting “plots” that were never more than a few terrorist wannabees talking big to each other; and picking out rare nuggets of truth from a spew of lies and nonsense after we’d gotten the same information some other way.

People under torture will start saying things to make it stop. If there’s a story you want to hear, they will tell it to you; that’s why torture is so good at forcing false confessions out of people. But it doesn’t seem to be a good way to get them to tell you the truth.

In addition to gaining us nothing, the torture program cost the United States a great deal, not just in money, but in our moral standing around the world, and our international relations. The report describes how U. S. ambassadors to various countries were not cleared to know about the secret prisons the CIA had arranged to build in those countries. We can only imagine how the rulers laughed when their U.S. ambassadors pressed them to be more transparent about human rights.

4. It was illegal. The memos written by the Bush administration’s Office of Legal Counsel were already bizarre distortions of the applicable law, ignoring the clear statements of Article 2.2 of the Convention Against Torture:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

and the Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

These OLC torture memos have been repudiated by President Obama.

But the Senate report now informs us that the CIA was not telling the Bush OLC what their program was really doing, and was lying about its effectiveness.

OLC memoranda signed on May 30, 2005, and July 20, 2007, relied on these representations, determining that the techniques were legal in part because they produced “specific, actionable intelligence” and “substantial quantities of otherwise unavailable intelligence” that saved lives. … The CIA’s representations to the OLC about the techniques were also inconsistent with how the techniques would later be applied.

So the CIA lied to the OLC about what it was doing and whether it was working, and the OLC lied to the President about whether the program (as the CIA had described it) was legal. This was a frequent pattern in the Bush administration, which also turned up in the “evidence” that Saddam had an active WMD program: Some low-level analyst would shade his conclusions to correspond to what his boss wanted to hear; his boss would shade them further for his boss; and so on up the ladder.

What we don’t know for sure is whether Bush, Cheney, or other top officials wanted it this way. Were their underlings out of control and deceiving them about it? Or was this a wink-and-nod arrangement that gave the higher-ups deniability?

5. No one has been held accountable for it. In the early months of his administration, President Obama pledged that he would not prosecute the torturers at the CIA, justifying his position like this:

It is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice, that they will not be subject to prosecution.

That sort of made sense: Maybe you realize what you’re doing is dicey under the law, but you’re not a lawyer and the lawyers say you’re OK. It shouldn’t be a crime to trust them.

But now the Senate report makes it clear that at least some people at the CIA were manipulating the Department of Justice’s Office of Legal Counsel, feeding it false information about the nature and success of their program, and then doing more than the OLC torture memos authorized. Nevertheless, Obama has shown no signs of changing his position.

Subsequent to his boss’ declaration, Obama’s chief of staff elaborated that the policy-makers who OK’d torture and the lawyers who invented bogus justifications for it would also not be prosecuted. He didn’t explain, but simply said, “That’s not the place that we go.” So the Obama administration ratified what law professor Jonathan Turley had dubbed “Mukasey’s Paradox” in honor of Bush attorney general Michael Mukasey:

Under Mukasey’s Paradox, lawyers cannot commit crimes when they act under the orders of a president — and a president cannot commit a crime when he acts under advice of lawyers.

In other words, if a president orders his OLC lawyers to find a way to justify him doing whatever, they all get off scot free.

But then there’s that pesky Convention Against Torture again, and that whole constitutional thing about treaties being the supreme law of the land. Countries that sign the CAT — like the United States — are obligated to investigate and prosecute cases of torture within their jurisdiction. Republicans love to call President Obama “lawless” and accuse him of failing to “faithfully execute the laws” as the Constitution mandates. I’ve argued in the past that those claims are bogus, but in this case — a case where nearly all Republicans agree with him — Obama really is failing to execute the laws.

University of Chicago law professor Eric Posner offers this argument against prosecution:

When the president takes actions that he sincerely believes advance national security, and officials throughout the government participate for the same reason, then an effort to punish the behavior—unavoidably, a massive effort that could result in trials of hundreds of people—poses a real risk to democratic governance.

Obama’s problem is that if he can prosecute Republican officeholders for authorizing torture, then the next Republican president can prosecute Obama and his subordinates for the many questionable legal actions of the Obama administration—say, the drone strike that killed Anwar al-Awlaki and three other American citizens.

In practice, this honor-among-thieves argument comes dangerously close to Nixon’s adage that “when the President does it, that means that it is not illegal.” Nobody is willing to follow it as far as it would go. A president might order genocide out of a sincere belief that the targeted race constitutes a risk to national security, and underlings might carry out those orders for the same reason. (I suspect most of the world’s genocides can be made to fit that pattern.) Should they get off?

I want to stand Posner’s argument on its head: What endangers democratic governance is the tacit agreement that neither party will prosecute its predecessors (except for Blagojevich-style personal corruption) no matter what laws they break. I’m a Democrat who voted for Obama twice, but I would welcome an investigation of the legality of the drone program. If it’s a war crime, then people should stand trial, up to and including President Obama himself.

Posner may be right that no jury would convict a CIA torturer, or someone like Bush or Cheney — or Obama for that matter. But that’s a jury’s decision to make, and not anyone else’s.

So what about ticking bombs? In the ticking-bomb scenario torture defenders love to cite, you are absolutely certain that

  • a hidden nuclear bomb is about to destroy some city like New York, killing millions
  • a guy you are holding knows where it is and how to disarm it
  • he’ll tell you if you torture him, but not otherwise

It’s worth noting that this was not the case for any of the 119 detainees the CIA tortured. So we’re weighing a made-for-TV movie scenario against 119 real people.

In any real situation, you wouldn’t know any of this. You’d have unconfirmed reports about a bomb, which might or might not work, set to go off sometime. You’d suspect this guy was part of the plot. You’d hope he had the information you need. And maybe torture would get it out of him, or maybe it would just solidify his resolve — which otherwise might have melted at the last minute as the enormity of the crime became real to him. So you’d be acting on a hunch, with the possibility that maybe you want torture this guy out of frustration with your own helplessness rather than because it would accomplish anything.

But suppose you’re convinced that torture will make the difference here and save New York. What should happen? I think you save New York, but then you turn yourself in and throw yourself on the mercy of a jury (hopefully a jury of New Yorkers). If you’re not willing to take that risk, then you’re no hero. You’re willing to make somebody else suffer to save lives, but not willing to risk suffering yourself.

There should never be a process that can give prior approval to torture, or hide it after the fact. Everybody who decides to torture in America’s name should have to face his fellow citizens.

Truth and reconciliation. One suggestion to preserve at least some of the integrity of our legal system is that President Obama could offer formal pardons to the Americans involved in torture, from President Bush on down to the guys who poured the water during waterboarding. ACLU Executive Director Anthony Romero explains:

The spectacle of the president’s granting pardons to torturers still makes my stomach turn. But doing so may be the only way to ensure that the American government never tortures again. Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware. Prosecutions would be preferable, but pardons may be the only viable and lasting way to close the Pandora’s box of torture once and for all.

Jonathan Bernstein agrees, hoping that generous pardons would take the partisanship out of torture, and allow Republicans to condemn it. But he adds:

A final step has to be a truth and reconciliation commission to detail what happened and how counterproductive it was. … The only way to get the truth, in other words, is to make it clear that a commission will treat the people involved generously, even if its investigation shows the horrors of what they did.

Truth and reconciliation commissions have been used in many countries — notably South Africa — to move on after a national moral catastrophe. I have my doubts it would work here (and so does Bernstein). But if the alternative is to do nothing …


* The Convention Against Torture was ratified with official reservations. But none of the reservations mention Article 1 or Article 2.2.

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Comments

  • Michael Wells  On December 15, 2014 at 12:18 pm

    Another well-written and cogent article. Two comments: The article by Fred Kaplan you cite in support of your statement that “What we don’t know for sure is whether Bush, Cheney, or other top officials wanted it this way [a wink and a nod]” has this:
    “Second, President Bush and especially Vice President Dick Cheney supported the program, and they still emphatically defend it. Bush wrote in his memoirs that he approved it.” You might be referring only to the “plausible deniability” bureaucratic process but it is irrelevant when both Bush and Cheney loudly and enthusiastically support their actions to use torture, and at least with Cheney, now attempts to justify the actions described in the Senate report.
    Second, you cite the ACLU Director for his statement that “Pardons would make clear that crimes were committed.” That is really silly coming from someone who should know the law. Nixon never admitted he committed any crime and Ford’s pardon of him didn’t state that Nixon did. That was one, of the many, reasons people criticized Ford’s pardon.

    • weeklysift  On December 15, 2014 at 3:33 pm

      I think I’d say that pardons would “recognize” that crimes have been committed. Just not prosecuting leaves no official record of the crime at all.

  • Philippe Saner  On December 15, 2014 at 10:34 pm

    If you’re convinced that torture will make the difference here and save New York, then you’re wrong. Because torture doesn’t work.

  • john lawrence  On December 20, 2014 at 7:40 am

    Thanks for writing this. I just wonder how this whole episode would have evolved if so many of the people had not been lawyers.

    • Michael Wells  On December 20, 2014 at 12:14 pm

      Please. I hope your comment was intended as a joke (although as a lawyer, I thought I had heard them all). Here are some of the non-lawyers involved in and carrying out the torture program: Bush, Cheney, Rice, Hayden, Rodriguez, etc. You will note that they at the top of the power chain. Yoo and Bybee should be disbarred (at a minimum). Unscrupulous people in power will always seek the legal cover of toadying lawyers.

  • deimos4_2000@yahoo.com  On January 6, 2015 at 10:05 pm

    I really don’t see what everyone makes such a fuss about. For all you know, there was another plane that would have been hijacked and crashed into another tower if we hadn’t gotten the information out of them. You may not like to think about what it took to get the information, but you sure like living in safety and protection earned by those means.
    jpierre68@live.com

    • weeklysift  On January 7, 2015 at 5:23 am

      For all I know … .

      Anything can be justified by invoking secret knowledge of what might have happened. But the Senate committee had access to as much secret knowledge as anyone, and they found no evidence torture worked at all. To the best of anyone’s knowledge, NO lives were saved.

      What is often left out of this discussion is all the ways that torture will COST American lives. One advantage America has had in most of its wars is that once the war began to turn against our enemies, soldiers were eager to surrender to us, knowing they would be treated well. Rather than hold out hungry, injured, and in danger, a soldier could just surrender and be confident of regular meals, medical care, and safety.

      That advantage is gone now. The next time we have enemy fighters cut off, they will worry that if they surrender they will be tortured. Rather than surrender, they may well decide to take as many Americans into death with them as they can.

      Torture doesn’t save Americans, it kills Americans.

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