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Why Do We Talk About Torture The Way We Do?

Editors’ NoteThe following post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week and/or looks ahead to key developments on the horizon.

A couple of days ago, a reporter asked me a simple and good question: has the Senate torture report changed anything in the torture debate?

Of course, the report provides a wealth of details, many horrifying and many previously unknown. But the basic story was entirely familiar – revealed years ago in books, articles, a CIA Inspector General’s report, the torture memos themselves, and the bipartisan Constitution Project’s 600-page report. Even if the contours and many of the details are familiar, the Senate report does great service by providing corroboration – especially important because it is backed by the 6,000 page report that is not released.

Even so, it will not end disagreements about facts, nor about opinion. The CIA’s rebuttal contests both facts and interpretation in the Senate report. That leaves room for people to continue to believe what they want to believe. That’s politics. Almost 400 years ago, Thomas Hobbes wrote scathingly cynical lines:

I doubt not, but if it had been a thing contrary to any mans right of dominion, or to the interest of men that have dominion, That the three Angles of a Triangle, should be equall to two Angles of a Square; that doctrine should have been, if not disputed, yet by the burning of all books of Geometry, suppressed, as farre as he whom it concerned was able.

Disputed or suppressed – Hobbes’s words could hardly be more apt.

But some things in the debate have changed. 

Americans began thinking about torture almost immediately after 9/11. Less than a week after the attack, the Washington Post reported on a quiz in a university ethics class that gave students a multiple-choice poll on what to do about terrorist attacks. Most opted for executing terrorists on sight or torturing them. A few weeks later, the New York Times reported that torture was being discussed “in bars, on commuter trains, and at dinner tables.” No surprise: we were afraid, and we were enraged.

But for a long time, the “torture debate” centered around the cartoonish scenario of the ticking bomb – debunked by many, including me, and vividly by Rosa Brooks this past week. Reality and “24” blended in our national political imagination.

The Senate report confirms that there were no ticking bombs, where interrogators had to resort to rough stuff because time was running out. We pretty much knew that already — these were prolonged interrogations, some of them taking place weeks or months after the subject had been captured. Interrogators were fishing for information that might be helpful, not racing the clock in an emergency. And of course, if torture had really foiled some concrete ticking-bomb plot, torture supporters would have made sure we learned about it years ago. But now, with the Senate report, perhaps we can finally stop talking about the ticking bomb.

Second, the Senate report confirms that torture was not needed to obtain make-or-break information. John Brennan and others in the CIA hotly dispute this – but in fact, the CIA is ultimately more circumspect about this point. In its “Fact Sheet,” it writes:

The Agency takes no position on whether intelligence obtained from detainees who were subjected to EITs could have been obtained through other means or from other individuals. The answer to this question is, and will remain, unknowable.

“Unknowable” is at least a concession that the Senate diagnosis could be right. Ergo, viewed in the most favorable light to the CIA, the facts don’t confirm that torture got information otherwise unobtainable. “Unknowable” is a backing down from the confident assertion that torture was crucial for saving American lives.

“Unknowable” probably means: the CIA got pieces of information from men who had been tortured. It was put together with a lot of other information, and the CIA reached certain conclusions that were true and useful. The CIA might have drawn the same conclusions without the torture information. In fact, the CIA might have gotten the same information from the detainees with non-torture interrogation.

This matters. Several years ago, former Condoleezza Rice advisor Philip Zelikow gave a speech in which he reframed the “did it work?” question in a crucial way:

The elementary question would not be: Did you get information that proved useful? Instead it would be: Did you get information that could have been usefully gained only from these methods?

In his angry rebuttal of the Senate report, CIA Deputy Director John McLaughlin dismisses Zelikow’s crucial question as “a dodge wrapped in political correctness.” He complains that the same could be asked about all intelligence successes.

McLaughlin’s response is obfuscation and bluster. Zelikow’s question is not whether in some alternate universe the information might somehow have surfaced. He asks a much more focused question: could lawful interrogations conducted by methods that aren’t morally abhorrent have worked? What we learn from the Senate report is that once the program was in place, the CIA didn’t try to find out.

Now even Zelikow’s question is about efficacy, not morality, law, or even simple decency. I am discussing the efficacy question because it seems to be the main thing that thoughtful Americans care about – a fact that itself ought to give rise to some soul-searching. In yesterday’s Washington Post, Daniel Byman wrote that when he teaches his master’s-level course on terrorism, his students focus on “practicality, not morality. They are more interested in whether something works rather than whether it’s right.” And, Byman observes, that is the focus of the Senate report as well. So, to answer the question of whether the torture report has changed anything, there is no way to avoid the efficacy question. Perhaps the legendary American pragmatism leads us to frame all moral questions about what works. But would we ask of murder or bank robbery “does it work?” Almost surely not (unless you’re a bank robber) – we would say that they are wrong.

The Debased “Does It Work?” Debate 

There are two other things terribly wrong with our “does it work?” debate, and I want to close this Monday reflection by pointing them out.

First, nobody ever mentions that torture is a crime under U.S. law. Torture carries a 20 year sentence, and a death penalty if the victim dies. So not only is torture a crime, it’s a serious crime on a par with rape and murder. Yet we debate torture as if our own laws against it are not even mildly relevant. How could they not be relevant? They are, after all, our laws, not some alien imposition from Venus or from “Old Europe.”

Furthermore: when the Senate ratified the international Convention Against Torture, it committed us to the part that says that

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

This too is our own law. Yet we almost never discuss that either.

The criminal law, at least, was certainly on the minds of some in the CIA. One remarkable revelation in the torture report was a CIA memo on whether the necessity defense might be available to criminal charges of torture. The content of the memo is less surprising than the date: November 26, 2001 – months before the first high-value detainees were captured. (Matt Sledge will soon be posting about this memo in Huffington Post.) [UPDATE: It’s here.] In its rebuttal, the CIA objects that it never relied on this memo or that it motivated the program. That misses the point, which was that almost from the beginning the CIA was thinking about the crime of torture. To write or request the memo, someone must have been asking “can we get in trouble if we torture people?” And they were asking it before the program even existed.

[Editor’s Note: see also John Sifton’s guest post at Just Security, “They Knew It Was Illegal”]

Second: in the debased form of our current debate, we have downgraded the test of whether torture works from “is it a last resort in a life-or-death emergency, producing vital information that could not be obtained otherwise?” to “did it produce anything useful at all, including things that might have been gotten without torture, except that we didn’t try?” If the answer is yes, then somebody starts crowing “torture works!” On those terms, the only way anyone could ever argue against torture is by showing that it never produced a single fact. How crazy is that?

 

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About the Author

is University Professor in Law and Philosophy at Georgetown.