Torture: Unreliable and Inestimably Costly

A few years ago, I served as a member of the Constitution Project’s Task Force on Detainee Treatment – an 11-member, bi-partisan group of former, high-ranking officials in the judiciary, Congress, the diplomatic service, law enforcement, and the military – and other experts in medicine, law, and ethics. We conducted an exhaustive, nearly 3-year study of information available in the public record about the interrogation and treatment of detainees in Iraq, Afghanistan, Guantanamo, and the other CIA black sites. We conducted interviews with more than 100 individuals in the United States and overseas who had first-hand knowledge of American practices and policies, including military and intelligence officers, interrogators, policymakers, and former detainees. I interviewed three former Guantanamo prisoners in London: Moazzam Begg, Bishar al-Rawi, and Omar Deghayes.

Our study produced what was at the time the most comprehensive history and analysis of U.S. detention and interrogation practices from 2001 that was based on open source material. The conclusions of our report mirror the findings of the Senate Select Committee on Intelligence’s (SSCI) summarized report on CIA torture, released today. Two points of agreement are especially significant.

First, the SSCI report and our report both confirm that the “enhanced interrogation techniques” (a euphemism for torture and coercive interrogation) reveal a brutality that shocks the conscience. The SSCI report does not use the word torture, and I should note that when we began our work at The Constitution Project, we were undecided if we should use that term to describe what was done by our government on our behalf. By the end of our three-year project, our task force voted unanimously to use the word torture to describe the cruel, inhuman, and degrading treatment of detainees. Our consciences were shaken. Yours should be, too. 

Americans, and those acting as our agents, have used: electricity; lighted cigarettes; freezing temperatures; withholding medical treatment; forced nudity; sexual humiliation; object rape; beatings with enough violence to break bones; prolonged sleep deprivation and interrogation; mock executions; various forms of sensory deprivation to include confinement in coffin boxes; prolonged standing and suspension from ceilings and door frames to increase stress; threats of harm to family members; and waterboarding, which is not “simulated drowning” at all, it’s physiological drowning. Indeed, the United States has prosecuted waterboarding as a war crime. It was not uncommon for multiple techniques to be used simultaneously.

Second, there is no firm or persuasive evidence, now either in the public or the classified records, that the widespread use of brutal and coercive interrogation techniques produced significant information of value. There is substantial evidence that much of the information adduced from the techniques was not useful or reliable. The proponents of coercive interrogation techniques have claimed over and over that waterboarding saved thousands of lives and prevented more terrorist attacks. Our report, and now the report of Senate Select Committee, which reviewed hundreds of thousands of classified documents, found nothing that convincingly supports that assertion. What was found were contradictory timelines of arrests, conventional interrogation, application of coercive interrogation, alleged confessions, arrests of co-conspirators, and information provided by other investigative agencies and foreign intelligence sources.

One of the “disrupted plots” most frequently cited by defenders of the CIA’s program was the Library Towers plan to fly planes into Los Angeles skyscrapers — the discovery of which was attributed to the waterboarding of Khalid Sheik Mohammed (KSM) 183 times. Neither our investigation nor the SSCI’s could find a definitive link tying that plot’s break-up to the waterboarding of KSM. The plan was actually disrupted when Malaysian police arrested the cell leader more than a year before KSM was captured. The would-be pilot backed out. Moreover, in spite of the waterboarding, KSM said nothing about a different plot he had financed: the suicide bombing of a Marriott Hotel in Jakarta in 2003 that killed 11 people and wounded 81.

What is so disturbing is that there seems to have been a sustained and deliberate effort by the CIA to claim success from brutal interrogations when actual timelines, information gained, or contradictory details did not reasonably support such success claims. No less troubling were CIA’s claims that coercive brutality produced no lasting physical or psychological damage. These latter issues are currently tying the military commission proceedings at Guantanamo in knots.

The Office of Legal Counsel in the Justice Department, and perhaps even the White House, were relying on such claims by CIA personnel when they justified these programs. They did this without any independent effort to verify the efficacy of brutality or its permanent medical and psychological damage, and no one had any interest in hearing of the legal pitfalls from the military Judge Advocates General.

I have a knowledge and bias about interrogation techniques. I was commissioned as an Army strategic intelligence officer. For 18 years I taught prisoner of war interrogation and military law for the Sixth U.S. Army Intelligence School. I have spent decades studying which interrogation techniques work, and which do not. The institutional experience, research, and science consistently point to the efficacy of rapport-based techniques and the unreliability of coercion.

It is tempting and easy to employ a false calculus when thinking about torture. If one assumes that a suspect is a terrorist who knows of a plot to murder 500 people, it’s easy to dismiss a brutal interrogation as “he deserved worse!” If retribution is the object of an interrogation, then brutality has some appeal. But if what is really desired is vital intelligence, why employ an interrogation strategy that is more likely than not to make a suspect catatonic? Put that another way: if torture is the fastest way to truth, why isn’t it standard practice in everyday criminal law? Child kidnapping can terrorize a community. Why not waterboard the suspects to save a child’s life?

The reason the justice system disallows torture is not judicial faintness of heart. It is because torture is unreliable. People confess to crimes they didn’t commit under the pressure of coercive interrogation. One study of proven false confessions shows that the average length of police interrogations in those instances is 16 straight hours. Mohammed al Qahtani was interrogated for 20 hours a day, every day, for three months.

New York City recently agreed to pay a $41 million civil rights settlement in the case of the Central Park Five. In 1989, five black teenagers were convicted of assaulting and gang-raping a jogger who nearly died from her injuries. They served a 40-year collective sentence, based solely on their video-taped confessions, in the presence of their parents – after prolonged and manipulative interrogations – confessions they later recanted. There was no physical or DNA evidence linking them to the crime. Years later another man confessed to the crime for which the teenagers served time, and in his case, the DNA was a perfect match.

Why do we assume that the kinds of coercive interrogation which lead to false confessions in everyday criminal law somehow lead to truth in national security investigations? Even if one claims, “the Constitution is not a suicide pact, and when it comes to terrorists, the ends justify the means” – the question of efficacy doesn’t go away. Instead, it becomes even more compelling. That’s because using techniques that are more likely to produce useless information heightens risk. A rational system seeks to minimize the risks of false confessions.

Another piece of the torture calculus dismissed by its proponents is this: how many terrorist suspects, who may know nothing at all, is it permissible to rack in search of the persons you’re really looking for? Two? Ten? Twenty? Fifty? And how does American exceptionalism right that injustice when the wrong person is tormented? So far, we’ve ignored these questions and counted on the courts to dismiss such legal claims based on official secrets defenses.

The SSCI report may well be the most comprehensive assessment of torture’s efficacy that policymakers and the American public will ever have.

Here’s why that matters. For more than ten years, Americans were told: (a) we didn’t torture anyone; (b) the interrogations we conducted produced vital intelligence that saved tens of thousands of lives; and (c) it’s a dirty but necessary job, similar to the argument made by Colonel Nathan Jessup in “A Few Good Men.”

The Jessups out there are, by and large, a well-educated bunch. Many hold advanced degrees from prestigious institutions. They argue, “We followed orders and we were told it was lawful – and now, wusses are trying to hang us out.” Is it asking too much to expect the elites in government and its secret services to recognize and follow the law and the Constitution rather than conspire to subvert it? Instead, we expect infantry privates and sergeants, who are very young, and few of whom have had advanced educational opportunities, to understand and refuse to follow an unlawful order in combat.

The SSCI report should be the start of a serious political discussion the nation has never been forced to have – that the Jessups fervently wish to avoid. A truly great nation will act like one. The CIA’s interrogation program was rooted in the practices of Nazi Germany, the Soviet Union, Communist China, and North Korea. The template did not make America safer, and we will be paying for those mistakes for decades to come. Moazzam Begg put it succinctly: “Guantanamo and torture has cost America an entire generation of Muslim youth, all over the world. Close it, don’t close it, it doesn’t matter; you’re too late.” Only in this case it’s not too late. With the release of the key findings in the SSCI report, we finally have a chance to show the American people and the world that torture wasn’t worth it, and that we ought never go down that path again. Better yet, Congress and the President should come together and pass legislation to reaffirm the prohibitions against torture and cruel treatment to relegate the use of so-called “enhanced interrogations” to the dustbin of history. 

About the Author(s)

David Irvine

Former Army Strategic Intelligence Officer, Retired Brigadier General, Practicing Attorney in Salt Lake City