The Unpleasant Return of Torture?

March 2nd, 2016

Have you heard? Torture has returned to the political arena in the 2016 presidential campaign. No, I’m not referring at the moment to the figurative torture of long-winded speeches, negative advertising, name-calling, and promises that are unlikely to be kept. No, I’m talking about the issue of whether the U.S. government would return to the techniques of so-called “enhanced interrogation” that were employed by representatives of the Central Intelligence Agency (CIA), Defense Intelligence Agency (DIA), and certain units of the Armed Forces beginning in the aftermath of the terrorists attacks of September 11, 2001, and continuing up to the advent of the Barack Obama administration. The international response to images from Abu Ghraib, Guantanamo, and shadowy “black sites” was uniformly negative and called into question if American tactics were little better than those of the international terrorists. 
Most of the opposition Republican Party hopefuls who have commented on “enhanced interrogation” on the campaign trail have suggested they would bring back these methods if elected President. Donald Trump, who leads the GOP pack despite (or because of?) an almost complete lack of subtlety or self-reflection on just about every issue, has said he would bring back waterboarding. He’s not alone. Senator Marco Rubio of Florida, who may be the mainstream of the party’s best hope for the nomination, sounded positively Trumpian on the issue when he commented about members of reactionary Muslim extremists like the Islamic State or Al Qaeda:  “If we capture any of them alive, they are getting a one-way ticket to Guantanamo Bay . . . and we are going to find out everything they know.” Retired neurosurgeon Ben Carson swept away concerns about whether the CIA et. al.’s methods amounted to torture by saying “(t)here’s no such thing as political correctness when you’re fighting an enemy who wants to destroy you.” Meanwhile, New Jersey governor Chris Christie similarly has said “(w)e should do whatever we need to do to get actionable intelligence that’s within the Constitution”. [1] 

There’s at least one problem with all this rough rhetoric thoughit’s now against current U.S. law. In June of last year, an amendment proposed by Senators John McCain of Arizona (GOP) and Dianne Feinstein of California (Democrat) to the National Defense Authorization Act successfully passed, which banned the use of harsh techniques when questioning prisoners. The amendment passed by a surprisingly wide margin—78–21—with all 44 Democrats voting in favor, along with both independents (including presidential candidate Bernie Sanders of Vermont). Of the 53 Republicans, 32 voted in favor (counting among their ranks candidate Ted Cruz) and then the remaining 21 who made up the “nays.” One of the naysayers was South Carolina’s Lindsey Graham but he has since suspended his campaign. Ironically, Rubio was the only Senator not to vote on the amendment. The McCain-Feinstein amendment outlawed a macabre host of techniques such as waterboarding; exposing detainees to deafening noise; depriving them of food, drink, sleep, or medical care; sexual humiliation; and repeated physical abuse or beatings, etc. Instead, the bill enshrined into law what a President Obama executive order had attempted to paper over in 2009, namely that only the techniques described in the Army Field Manual are permissible for interrogation by agents of the federal government. The manual allows questioners to deceive or isolate prisoners but not any of the brutal treatments listed above. [2]  If the armchair warriors of the GOP campaign have nostalgia for, shall we say, the year 2002, they would need to undo the current law and that would require a swing within their own ranks of the Senate.

Christie’s reference to information gained “within the Constitution” is a revealing look into the semantics that took place during the George W. Bush Administration. Legal counsel within the administration wrote opinions that amended whether harsh techniques actually constituted “torture” and set the CIA and other surveillance agencies down a path where they would be held less accountable for rough handling of prisoners. For this reason, President Bush could say with a straight face “we do not torture” in 2005 because under the working definition most of the techniques being used were not considered to meet the (new) legal definition[3] The legal sleight of hand appears to violate the United Nations Convention Against Torture [4] and the Geneva Conventions. [5] The US is a party to the Geneva Conventions but has only signed, not ratified, the UN convention (which incidentally places us at the same status as nations like Cuba, Gabon, The Gambia, and Sudan). If pushed on the matter, folks like former vice president Dick Cheney have stated “I was and remain a strong proponent of our enhanced interrogation program." [6] In other words, whether we agree or not that the tactics used in in the Bush-era interrogation programs were torture, they helped the national security of the U.S. and kept Americans safe. The most strenuous of these efforts can be observed by the publication of Rebuttal (Naval Institute Press, 2015) in which George Tenet, Porter Goss, Mike Hayden, and others from the CIA defended the agency’s actions and disputed the findings of the Senate’s Select Intelligence Committee’s Report on Torture ‘s report (Melville House, 2014). The 6,000 pages of the Report on Torture set the stage for the McCain-Feinstein amendment as it provided a wealth of persuasive evidence that led to the Congressional ban. Rebuttal follows on the heels of Jose Rodriguez’s Hard Measures: How Aggressive CIA Actions after 9/11 Saved American Lives (Threshold Editions, 2012) in which Rodriguez tells his personal story of 31 years of service in the CIA and makes the argument that the “aggressive” techniques indeed were required to keep us safe.

Khmer Rouge Waterboarding Device
The religious argument that torture is morally wrong is not ambiguous. The ecumenical  National Religious Campaign against Torture (NRCAT) features statements from a majority of Protestant Christian denominations, the U.S. Conference of Catholic Bishops, Jews, and Muslim organizations. [7] In fact, the case against brutal treatment of enemy detainees is so universal that the NRCAT’s current campaign has instead placed a focus against the widespread use of solitary confinement in American penitentiaries. We often find that public policy runs counter to, or fails to attain, the moral and ethical principles of our faith traditions. How do Americans actually feel about torture in lieu of religious beliefs? Gallup began polling about attitudes to torture only a month after the 9/11 attacks. In a time period where Americans were fearful that additional acts of violence could take place and perhaps vengeful towards the supporters of the attacks, 53 percent said they would be willing to allow torture in order to gain vital information. However, within four years only 38 percent of Americans were willing to back torture. [8]

After citizens became more familiar with specific methods of tough interrogation, only about 1 in 6 Americans believed waterboarding (for instance) should be utilized. In the same sampling of opinion that saw the big drop in support for “enhanced interrogation”, nearly three-quarters of Americans believed that members of the Armed Forces or intelligence agencies had in fact engaged in techniques that amounted to torture. Gallup’s analysis though suggests that despite the public misgivings about torture when the media began to report abuses, that only a bare plurality of Americans would have backed the Senate committee that was referred to earlier in this article. It may mean that although Americans believed torture was a “sin” of public policy, but we were accepting of it as a means to an end during that frightening post-9/11 period. Pew Research provides some interesting and surprising results of its own when asking Americans about the degree of support for tough interrogations. In 2009 they found that from an overall sample of Americans, 15 percent believed that torture against suspected terrorists can “often be justified”, 34 percent believed it to be “sometimes justified,” 22 percent thought it “rarely justified”, and 25 percent believed it “never justified”. This means that in their discussions, a thin majority (49 percent to 47 percent) was willing to allow torture, and in any event, three-quarters of the population would at least consider its use. [9] What is troubling about the polling though is that self-identified religious voters appear to be the demographic groups most likely to consider the use of torture. When asking those who “seldom or never” attend a religious service, only 12 percent of these Americans were in the “often justified” camp, and 30 percent were counted in the “sometimes” group. 53 percent fell into the “rarely” or “never” categories. However, 54 percent of the “attend a service weekly” respondents were fairly supportive of torture—16 percent in the “often” ranks and 38 percent in the “sometimes” group. Only a quarter of religious poll takers were in probable agreement with their national churches. 

These results, particularly the divergence between people of faith and those who are ambivalent at best about religion, are perplexing. The bitter partisanship of American politics has become so polarized that perhaps religious voters who have set their flag on to “values” issues (i.e., abortion, same-sex marriage, etc.) are willing to accept the tough rhetoric from the political right on other topics even if it clashes with their church’s teachings on treatment of prisoners. Conversely, Americans with tenuous or no formal ties to a faith group’s ethical traditions may yet be less inclined to support torture because a “free-thinking” individual may tie their dissent on the religious question to other liberal or broad-minded values. Perhaps folks of whatever religious or non-religious persuasion believe they are justified in supporting calls to give the “bad guys” tough treatment because however bad it might be, torture works. Does torture work? The Senate Select Committee on Intelligence report didn’t believe soat least not in the post 9/11 usage. One of the key findings in its report was that the CIA’s enhanced interrogation techniques were not effective in acquiring intelligence from suspects or otherwise gaining their cooperation. Further, the CIA exaggerated the claims of success in order to justify its continued use. Most damning of all was that the intelligence community used tactics that were generally harsher in practice than they previously admitted to Congress. [10]

A PBS Newshour segment after the release of the Select Committee’s report pitted Bill Harlow, who had served as the CIA’s spokesman during the 9/11 aftermath, against David Iglesias, who served as a U.S. attorney and war crimes prosecutor at Guantanamo. Harlow builds a case that similar to the “fog of war” argument that the uncertainty of our nation’s safety after the terrorist attacks led to the need to use enhanced interrogation to prevent imminent other assaults and to find the whereabouts of the perpetrators. Iglesias, makes the counter argument that the kind of admissions made under duress by prisoners leads to unreliable intelligence and is hard to build legal prosecutions from. [11]

A variation on the “fog of war” justification for torture is the “ticking time bomb” argument. Typically “ticking time bomb” is posited as a sort of special scenario in which those who may be predisposed against rough treatment of prisoners may become willing to bend the rules to prevent that time bomb from exploding. The popular TV program 24 was almost completely based on plot threads in which anti-terrorist agent Jack Bauer (as portrayed by actor Kiefer Sutherland) is attempting to defuse a serious threat and only has the proverbial 24 hours in which to foil it. Bauer frequently is seen roughing up and threatening smug suspects and Machiavellian bureaucrats who block his way to preventing a catastrophe. 24 was a thrilling program, with a tense, edge-of-your seat experience for viewers. However, the show’s point of view clearly articulated that the rules could (and should) be bent by the “good guys” if the “time bomb” was about to go off. The U.N. Convention against Torture gives short shrift to the “time bomb” scenario though. In Article 2.2 it states “(n)o 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.” [12] 

Iglesias makes the argument that the Federal Bureau of Investigation (FBI) which has protocols against coercion and abusive tactics in its own interrogations, has prioritized a rapport-based approach which ultimately has a better chance of being reliable, verifiable, and would stand up in court. Previous investigations by Congress revealed that then FBI Director Robert Mueller became aware of CIA enhanced interrogation techniques that he found troubling, and possibly illegal. He directed that FBI agents who had visited sites or witnessed torture to remove themselves from the cases. He also conveyed his concerns about torture with the Department of Justice and Department of Defense. However, perhaps due to maintain inter-agency goodwill this was the extent to which the FBI was willing to blow the whistle. Had the FBI more vigorously objected to enhanced interrogation by the CIA and other intelligence services the practice could have been downgraded or stopped earlier before additional bad public relations for the U.S. government. [13] 

The New York Times draws from the Senate report that in eight of the key cases where the CIA claimed its enhanced interrogation methods led to the apprehension of terror suspects, or averted an act of violence that in fact these were inaccurate or bogus claims. For instance, a detainee Hassan Ghul contributed a wealth of information about the associates of Osama bin Laden that led to his killing in 2011. Ghul made most of his valuable statements without torture but despite this he was deprived of sleep and placed in stressful positions. Although the report said these produced hallucinations, and heart arrhythmia in Ghul he did not provide any further actionable intelligence. Similarly, in the foiling of the dirty bomb by Jose Padilla, the CIA claimed that waterboarding of Abu Zubaydah was instrumental in revealing details of the plot. However, Padilla was actually detained months before the “enhanced interrogation” program began. Abu Zubaydah’s rough treatment along with another prisoner Ramzi bin al-Shibh aided the apprehension of Khalid Shaikh Mohammed (the mastermind of the 9/11 attacks). However, intelligence agencies identified Mohammed from the earliest days of the terror aftermath as a possible ringleader, and in any event was already a known suspect. A heavily redacted portion of a CIA report suggested a paid informant may have been most instrumental in leading U.S. authorities to the Al Qaeda figure. [14] 

Perhaps it would be instructive to look at the case of Senator McCain. McCain’s Navy bomber was shot down by the North Vietnamese during the Vietnam War. McCain was seriously injured in ejecting from his aircraft – breaking his right leg and both arms. Angry North Vietnamese that came to capture him shattered his right shoulder, and he was also stabbed in his abdomen and foot by bayonets. Initially after being jailed as a prisoner of war he was further dealt a blow by being denied medical treatment. Only when the NVA discovered McCain’s father was an admiral did they decide to provide surgery for possible propaganda value and bargaining chip. Later though McCain was placed in solitary confinement and underwent severe beatings every few hours over periods of days which left him with broken ribs and a broken arm (again). To this day, McCain is unable to raise his arms above his shoulders due to the severity of the torture he endured. However, despite the interrogations he – and other American prisoners – were subjected to, he provided no intelligence and refused to make a deal to be released from detainment. [15] In fact due to McCain being the only member of Congress who actually has experienced torture he said eloquently at the time of Senator Feinstein and his amendment: “I believe past interrogation policies compromised our values, stained our national honor, and did little practical good. This amendment provides greater assurances that never again will the United States follow that dark path of sacrificing our values for our short-term security needs. I know that such practices don’t work. I also know from personal experience that the abuse of prisoners does not produce good, reliable intelligence. Victims of torture will offer intentionally misleading information if they think their captors will believe it. Our enemies act without conscience. We must not. Now, let us reassert the contrary proposition: that is it essential to our success in this war that we ask those who fight it for us to remember at all times that they are defending a sacred ideal of how nations should be governed and conduct their relations with others—even our enemies.” [16] 

When Senator Cruz joined in voting for the amendment banning enhanced interrogation techniques he said “Torture is wrong, unambiguously… (w)e can defend our nation and be strong and uphold our values… There is a reason the bad guys engage in torture. ISIS engages in torture. Iran engages in torture. America does not need to torture to protect ourselves.” Perhaps Cruz’s stand against torture seems incongruous with other tough talk about “carpet bombing” ISIS but then again, Cruz has family knowledge of brutal treatment by a dictatorial regime. Cruz’s father was detained and severely treated by agents of the strongman Fulgencio Batista when he was a revolutionary in 1950s Cuba. Cruz relates in his memoir “(m)en with clubs beat him. . . . they bashed in his front teeth until they dangled from his mouth”. [17] It would be interesting to see if other would-be tough guys in the GOP race would espouse the same rhetoric if they too had any personal brushes with torture as McCain and Cruz have had. 

Kirk G. Morrison, MLS 

Mr. Morrison is a librarian in Connecticut and interested in issues of social justice and rebuilding social capital and civics in communities nationwide.