While the nation was transfixed on the daily horse race of the presidential campaign; while we were distracted by the endless rainbow-colored graphs, charts and polls, a curious thing happened. On Thursday, Aug. 30, the Justice Department (after a three-year probe) announced it would not prosecute anyone involved in the killing and torturing of prisoners in CIA custody.
The Justice Department had been investigating the deaths of two men — one in Iraq, one in Afghanistan. Gul Rahman died in 2002 while being held at a secret CIA facility known as the “Salt Pit” in Afghanistan. He had been shackled to a concrete wall in near-freezing temperatures. Manadel al-Jamadi died in 2003 while in CIA custody at Iraq’s infamous Abu Ghraib prison. His corpse was photographed packed in ice and wrapped in plastic.
Attorney General Eric Holder stated that “based on the fully developed factual record concerning the two deaths, the department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt,” which meant, roughly translated, if we want this administration’s indiscretions overlooked, then we are prepared to overlook the previous administration’s peccadilloes.
The irony of this decision will be touched on at the conclusion of this piece. Meanwhile, it is important since the Justice Department has saw fit to not seriously prosecute torture, that we reacquaint ourselves with how ingrained into our national security aims the practice actual was and why its adherents and practitioners are so wrong.
The notion that torture is a viable option can be deconstructed by arguing three main points:
1. Torture is an ineffective intelligence strategy.
2. Torture, whether “effective” or ineffective, violates the Constitution and any number of agreements made by our government.
3. By torturing, we lose far more than we gain in moral standing.
Torture is an ineffective intelligence strategy
Point 1: Let’s just say, for the sake of argument, that the use of torture didn’t violate our Constitution, the Geneva Conventions or the Convention Against Torture (the last two of which the U.S. was a signatory), it is still a bad intelligence strategy and bad law enforcement. One defense of torture is the “ticking bomb” scenario the idea that an imminent, massive threat to civilians might be stopped by a single detainee who possesses crucial information and will yield actionable intelligence under physical coercion.
But this is mostly a “24”-induced delusion, not a frequent occurrence in a complex conflict. Interrogation expert after interrogation expert has debunked this flawed, and dare I say, ineffective line of reasoning.
Ali Soufan, a former FBI agent, testified to a Senate panel and said (under oath — this is more than any of the officials who advocate torture have done) his team’s non-threatening interrogation approach elicited crucial information from al-Qaida operative Abu Zubaydah, including intelligence on “dirty bomb” terrorist Jose Padilla. Soufan added that his team had to step aside when CIA contractors took over. They began using harsh methods that caused Zubaydah to “shut down,” Soufan said — later his team had to be recalled to get the prisoner talking again.
Writing under the pseudonym of Matthew Alexander, a former special intelligence operations officer, who in 1996 led an interrogations team in Iraq, has written a compelling book where he details his direct experience with torture practices. He conducted more than 300 interrogations, supervised more than a thousand and was awarded a Bronze Star for his achievements in Iraq.
Alexander’s nonviolent interrogation methods led Special Forces to Abu Musab Al-Zarqawi, the head of al-Qaida in Iraq. His book is titled “How to Break a Terrorist: The US Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq.” He says, “It’s extremely ineffective, and it’s counterproductive to what we’re trying to accomplish.”
Army Field Manual 34-52 Chapter 1 states, “Experience indicates that the use of force is not necessary to gain the cooperation of sources for interrogation. Therefore, the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear.”
The CIA inspector general in 2004 found that there was no conclusive proof that waterboarding or other harsh interrogation techniques helped the Bush administration thwart any “specific imminent attacks,” according to recently declassified Justice Department memos — this same administration claimed that the waterboarding of Khalid Shaikh Mohammed helped foil a planned 2002 attack on Los Angeles … forgetting that he wasn’t captured until 2003.
There are many more examples that could be cited, but the point should be clear. When the CIA engages in practices such as waterboarding, sleep deprivation or anything that smacks of giving the suspect the “feeling of impending death” — our government’s definition of torture — we hamper and hinder true intelligence gathering and taint the process by which effective interrogation can take place.
There is a reason why in our criminal justice system, information or confessions that are obtained by coercion are not admissible in court and, in some cases, deemed criminal as well.
Torture violates the Constitution and any number of agreements made by our government
Point 2: Okay, let’s rewind. We are now removing the imaginary condition that says torture does not violate our Constitution, the Geneva Conventions or the United Nations Convention Against Torture.
The Eighth Amendment of the Constitution states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Geneva Convention III (GCIII) Article 5 covers the treatment of prisoners of war (POWs) in an international armed conflict. In particular, Article 17 says, “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind.”
POW status under GCIII has far fewer exemptions than “Protected Person” status under GCIV. Captured enemy combatants in an international armed conflict automatically have the protection of GCIII and are POWs under GCIII unless they are determined by a competent tribunal to not be a POW.
United Nations Convention Against Torture Article 2 prohibits torture and requires parties to take effective measures to prevent it in any territory under its jurisdiction. This prohibition is absolute and non-derogable. “No exceptional circumstances whatsoever” may be invoked to justify torture, including war, threat of war, internal political instability, public emergency, terrorist acts, violent crime or any form of armed conflict.
Torture cannot be justified as a means to protect public safety or prevent emergencies. Neither can it be justified by orders from superior officers or public officials. The prohibition on torture applies to all territories under a party’s effective jurisdiction and protects all people under its effective control, regardless of citizenship or how that control is exercised.
Since the Conventions entry went into force, this absolute prohibition has become accepted as a principle of customary international law.
These are things we have agreed to as a nation and we have a legal obligation to follow it. We have signed our name and said we would live by these national and international social contracts. Things like waterboarding, after all, have been recognized as a torture technique since the time of Torquemada and the Spanish Inquisition.
U.S. soldiers who were caught using it on enemy insurgents in the Philippines in 1901 and the Vietnam War in 1968 were prosecuted. In 1947, the United States charged a Japanese officer, Yukio Asano, with war crimes for carrying out another form of waterboarding on a U.S. civilian. When suffocation by water was used by foreign governments, such as the Augusto Pinochet dictatorship in Chile, the State Department didn’t hesitate to call it torture.
How do we now go backward in our support of methods that have been deemed illegal and criminal, to move forward in what many have called 21st century warfare and post-9/11 thinking?
By torturing, we lose far more than we gain in moral standing
Point 3: There is a Christian scripture that says, “not many of you should presume to be teachers, my brothers, because you know that we who teach will be judged more strictly.” America has held itself up as the beacon of law, liberty and justice, so this is not about comparing America to other countries of the world or al-Qaida, but to the values that it espouses; to the principles that America says it believes in.
America is held to a different standard for the same reason that the banker who disparages dishonesty in business and is found to be an embezzler is; for the same reason the minister who decries marital infidelity and cheats on his wife is — one simply cannot be found guilty of the very things they condemn, because they indeed will receive greater blame or criticism.
The U.S. has said, in effect, “we will lead;” “we will teach.” Whether the terrorist has a flag that they salute or a Bill of Rights that they follow or not, we do. The insistence that we stay true to those values does not make a nation weaker, it makes it stronger.
A great deal of the pushback by many countries against the United States is connected to a perceived hypocrisy that America engages in. We are constantly told that it is because others are envious of America or hates America’s values, but this writer suspects it has more to do with hatred of a double-standard. A double-standard that preaches human rights, but whose practices produce Guantanamo, warrantless wiretaps, extraordinary rendition and drone attacks that treat civilians as necessary collateral damage.
Conclusion
Here’s the twisted irony of the Justice Department’s decision to not aggressively prosecute those who engaged in torture. Approximately two months after its decision, a retired CIA agent who publicly confirmed the torture of al-Qaida operative Abu Zubaydah pleaded guilty to leaking classified information.
John Kiriakou, who served from 1990 to 2004, is best known for a 2007 ABC News interview detailing how Zubaydah was waterboarded in CIA custody. So you see, we won’t indict those who torture, but those who blow the whistle on those who torture … we absolutely will.
To be clear, it appears that since President Obama has taken office, the “enhanced interrogation” practices that took place under the Bush administration have not been the policy under his watch — drone attacks aside. Although, by executive order and policy prescriptions you can say that torture will not happen during my administration, it is through prosecution that you say torture will not happen in this democracy.
War, in this writer’s opinion, is always regrettable but sometimes necessary. Torture, however, is inexcusable. Once again, there are those who say that when the clock is ticking and lives are at stake, the end justifies the means. Yet, that is the problem with torture: It is not a split-second decision, but rather flawed and deliberate policy; it is not about extracting information, but about coercion and therefore unreliable.
For example, Sen. John McCain, himself a victim of torture, provided no actionable intelligence to the North Vietnamese, but he was coerced into making certain statements — statements that he would later retract. That is the hard clinical truth about torture; it is, by and large, about getting people to say what you want them to say.
This was true during the various Inquisitions; this was true during the Salem witch trials; this was true when the Chinese did it during the Korean War; it is true when totalitarian governments do it; and yes most regrettably, it is true when we do it.
This has to be understood for what it is, because it isn’t a sound intelligence strategy, but rather smacks of revenge. Is a democracy so fragile; is a nation’s security so fallible, that its safety depends upon whether or not a government gets to dunk someone’s head under water? We have heard time and time again that the terrorists hate our way of life, however, shouldn’t our way life include our values, our laws and our honor?
Al-Qaida does not have a Statue of Liberty that says: “Give me your tired, your poor, your huddled masses yearning to breathe free,” but we do; the terrorists do not have a military code of conduct or honor, but we do.
Honor is not something that we discard when times are rough or when we are opposed by our enemies; it is the very thing that allows us to face those times and our enemies without fear or shame.