Ineffectiveness of Waterboarding and Illegality of Torture

This past Sunday, the New York Times reported that two high value terrorist detainees – Khalid Sheik Muhammad and Abu Zubayda were waterboarded a combined 266 times in US custody. KSM was waterboarded 183 times and Zubayda 83 times. These revelations came from the newly released OLC memos written by Steven Bradbury and Jay Bybee, describing the torture methods to be used on terrorist detainees. If you want to read them yourself, they are here, here, here and here.

Defenders of waterboarding and torture in general state that these torture methods are necessary 1) to gather crucial and important intelligence and 2) to make the US safer. However, what they fail to mention or even grasp, is that torture is not designed to gather intelligence at all. Torture is designed to get false or coerced confessions to give the impression that its utilization is necessary and the fears of the torturing institution are valid. Furthermore, the idea that one gets credible information from a tortured detainee/prisoner is laughable. A secretive military training called Survival, Evasion, Resistance, Escape (SERE) was created for pilots and other potential captives in the US armed forces where they are taught how to resist torture and other forms of abuse if they were to be captured. It is a purely defensive tactic to protect American servicemen from torture. However, the architects of the Bush terror regime used this exact program as a template on how to conduct interrogations with suspected terrorists. Jane Mayer in The Dark Side states,

The SERE program was a strange choice for the government to pick if it was seeking the learn how to get the truth from detainees. It was founded in the Cold War in an effort to re-create, and therefore understand the mistreatment that had led to thirty-six captured US airmen to give stunningly false confessions during the Korean War.

Among the torture tactics used by the North Koreans were forced nakedness, humiliation, isolation and stress positions. Sound familiar? So here we have the Bush Administration looking at how to get credible intelligence from terrorist suspects by using a program that was based on getting egregious and fantastic lies. Just think about it for a minute. If someone was torturing you, wouldn’t you do or say anything to make it end? I know I would, but if that is the case, then how can we verify the veracity of the “information” coming from the torture sessions? You can’t.

As stated above, supporters also claim that torture and “enhanced interrogation” makes the United States safer. This argument is unpersuasive. Many sources have claimed that the previous US policy of torturing detainees has been the #1 recruiting tool for terrorist organizations. Can anyone tell me how creating more terrorists and inflaming their passions makes the US safer? If you doubt this argument, here is Sen. McCain discussing that waterboarding is torture, it doesn’t make America safer and it has been an excellent recruitment tool for Al Qaeda. As Jim Manzi at the National Review has pointed out, torture isn’t necessary to defeat our enemies because we have a stellar record of defeating those who are barbaric without resorting to their own uncivilized methods.

Since the release of the memos, there has been serious backlash (or should I say panic) from the CIA and supporters of the torture regime under Bush. Among those is Dick Cheney, former Bush speechwriter Mark Thiessen and several unnamed CIA officials. They claim that the torture inflicted upon high value detainees, especially KSM was essential in foiling terrorist plots, specifically a “West-Coast” 9/11 style attack on LA. Unfortunately, in their haste to establish a defense to illegal behavior, they overlooked the chronology of events. Here is Tim Noah of Slate discussing how that claim doesn’t hold up to scrutiny.

What clinches the falsity of Thiessen's claim, however (and that of the memo he cites, and that of an unnamed Central Intelligence Agency spokesman who today seconded Thessen's argument), is chronology. In a White House press briefing, Bush's counterterrorism chief, Frances Fragos Townsend, told reporters that the cell leader was arrested in February 2002, and "at that point, the other members of the cell" (later arrested) "believed that the West Coast plot has been canceled, was not going forward" [italics his]. A subsequent fact sheet released by the Bush White House states, "In 2002, we broke up [italics his] a plot by KSM to hijack an airplane and fly it into the tallest building on the West Coast." These two statements make clear that however far the plot to attack the Library Tower ever got—an unnamed senior FBI official would later tell the Los Angeles Times that Bush's characterization of it as a "disrupted plot" was "ludicrous"—that plot was foiled in 2002. But Sheikh Mohammed wasn't captured until March 2003. How could Sheikh Mohammed's water-boarded confession have prevented the Library Tower attack if the Bush administration "broke up" that attack during the previous year? It couldn't, of course.

Unfortunately, their lies and contradictions don’t end there. In the initial stages of defending KSM’s waterboarding, an anonymous CIA senior official stated that KSM did not cooperate with interrogators at all until he was subjected to waterboarding. He stated that after the first waterboarding treatment, “He sang right away. He cracked real quick.” Another CIA official told ABC News: “KSM lasted the longest under water-boarding, about a minute and a half, but once he broke, it never had to be used again.” Really? If he divulged all the helpful information he knew, then why proceed and waterboard him 182 more times within 30 days? Was there more info? If that is true, that means waterboarding didn’t get the initial results. If they did get all the info in the first session but continued to waterboard, they were doing it merely for sadistic purposes. Neither outcome seems flattering or defensible.

This trend of lying and creating “intelligence breakthroughs” to justify the use of torture isn’t reserved solely for the use of torture against KSM. We can also find them with the torture of Al Zubayda. In maintaining the argument that waterboarding gathered significant and useful intelligence from Al Zubayda, George W. Bush gave three “intelligence breakthroughs” that justified its use during his term as President. First, he claimed that Zubayda disclosed KSM as the mastermind behind that attacks and KSM went by the alias of “Muktar.” Second, he claimed that Zubayda gave info that stopped a terrorist attack where one of the terrorists was travelling to the US. Finally, he stated that Zubayda's info led to the capture of Ramsi bin al Shibh. Surprise, surprise – Bush was not telling the truth and exaggerating the usefulness of torture to gather intel. Let’s look at more reporting in The Dark Side.

The first claim appears undermined by the 9/11 Commission report. As mentioned earlier, it established authoritatively that in the summer before Al Qaeda attacked, the CIA had already received several reports that KSM was involved in terrorist planning against the US, and specifically on Aug. 28, 2001, the agency received a cable reporting that KSM’s nickname was “Muhktar.” The second claim is generally understood to be a reference to Jose Padilla. Yet it has been widely reported, and undisputed, that Zubayda told interrogators about this, too, prior to being harshly
treated. The third claim, concerning the capture of Ramsi Bin al Shibh also seems dubious…There were numerous public reports of Bin al Shibh – Atta’s former roommate in Hamburg – before Zubayda’s capture. The Associated Press, The Washington Post and the Daily News, among others, all carried stories on the prior to Zubayda’s capture…If President Bush meant only that Zubayda provided the info that led to Bin al Shibh’s capture, the picture is less clear, but there is still a major contradiction. Bin al Shibh was not captured until almost half a year after Zubayda on Sept. 11, 2002. The time lag makes it seem far more likely that, as Ron Suskind reported, the key info about Bin al Shibh’s location came not from Zubayda, but from an Al Jazeera reporter, who indirectly passed it on to the Emir of Qatar in the summer of 2002.

First, the Bush administration and other torture defenders told the world “we do not torture” at any chance they could get, but now that it has been exposed that we did in fact engage in torture, they are tying to pivot the debate to “torture worked!” Well, if you read the above accounts and almost all historical accounts on torture, you will understand that torture does not work at getting credible information. However, I don’t care if it worked. It is illegal. It goes against what the US stands for and you cannot do it under any circumstances. Let’s take a look at why torture is completely off limits for the US to engage in – even if it “works.”

As historical precedent, the US never held torture as an official policy until 2002. When Yoo, Bradbury and Bybee were given the task of writing legal memos on the subject, it was extremely difficult for them to find any information favoring torture as US policy because none existed until that point. As I have mentioned in other posts, the last time a descendant of our current government has used torture was over 500 years ago in the British Star Chamber. Yes, we have become more uncivilized, but I digress. One of our greatest military leaders and our first Commander-in-Chief immediately designated torture as barbaric and off-limits to our republic. Here is Jane Mayer discussing Washington’s decision to prohibit torture:

In the Revolutionary War, George Washington and the Continental Army were regarded by the British as treasonous, ‘illegal combatants’ undeserving of the protections of legitimate soldiers, the same category into which the Bush administration was casting terror suspects. As a result, the British freely brutalized and killed American prisoners of war, in conditions considered scandalous even in that day. In contrast, Washington ordered American troops to take a higher road, in keeping with the ideals of the new republic. He insisted that enemy captives must be given food and medical attention and be housed in conditions that were no worse than those of the American soldiers. In directives still eloquent today, he ordered his troops to treat British war prisoners ‘with humanity and let them have no reason to complain of us copying the brutal manner of the British Army…While we are contending for our own liberty we should be very cautious of violating the rights of conscience of others, even considering that God alone is the judge of the hearts of men, and to Him only in this case they are answerable.’ Washington’s orders, which became the backbone of American military doctrine until 2001, were not simply gestures of kindness or even morality. They sprang also from a shrewed [sic] calculation that brutality undermines military discipline and strengthens the enemy’s resolve, while displays of humanity could be used to a tactical advantage.

This position has been consistent throughout our history and it’s surprising a “conservative” president would disregard the wisdom of history. Other great statesmen such as Winston Churchill who faced attacks proportionate to 9/11 each week during the Nazi blitz on Great Britain abhorred the practice and never seriously considered its implementation. To be more precise, there is no historical precedent for torture in the United States.

There are multiple statutes and bodies of law that unequivocally ban the use of torture and make it illegal: The Convention Against Torture, The War Crimes Act of 1996, The Torture Act, Alien Tort Claims Act, The Geneva Conventions and the Torture Victim Protection Act among others. I am going to focus specifically on Geneva and The Convention Against Torture (CAT). Before you argue that these are international laws that do not bind the actions of the US, let me remind you that the United States Congress ratified CAT in 1994, thus making it domestic statutory law. Essentially, all of these statutes prohibit a nation or an agent of a nation from “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." 18 U.S.C. § 2340. Additionally, CAT states the US has an obligation to prevent “cruel, inhuman or degrading treatment or punishment.” These laws leave no doubt that the United States is bound by law from engaging in torture.

By the way, does anyone know what President signed the Convention Against Torture? The year was 1988 – President Reagan. Here is his signing statement:

The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today. The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called 'universal jurisdiction.' Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.

During the 2008 Republican primary and even the general election, Republican candidates for the presidency were tripping over each other to appear more Reaganesque. I don’t see that unfolding within the GOP at this moment. It’s too bad they can’t share in the moments of great leadership like Reagan. How far the GOP has fallen…

Now that we have established that torture is illegal, let’s take a look at the pathetic, unethical and incompetent attempts by the OLC lawyers to make it appear that the interrogation methods were legal. First, in discussing how waterboarding is legal because it does not impose any physical pain or damage, the memo conflates the concepts of pain and suffering. The language of the law prohibits “pain OR suffering.” However, the memo argues that torture results only in physical pain, thus if there is no physical pain, but mental suffering, no torture was committed. Obviously, this is simply ignoring the express language of the law. If an action inflicts severe pain OR suffering, it is considered torture. Do we really believe that waterboarding, forced nakedness and rubbing soiled tampons and human feces on other people doesn’t result in severe suffering in violation of the law? Please. Second, the word gymnastics and conflation doesn’t end there. My current Constitutional Law professor recently wrote a blog entry on the memos. In pointing out the deficiencies of the legal reasoning used, Prof. Wilson Huhn wrote:

Bradbury argues that interrogation methods such as being locked in a small, dark box, being shackled in stress positions, being held naked in a cold cell and sprayed with cold water, and waterboarding (slow drowning) are not "cruel, inhuman, or degrading." To reach this conclusion Bradbury engages in a series of definitions that essentially amount to wordplay. Bradbury reasons that conduct is "cruel, inhuman, or degrading" under the treaty only if it violates the Fifth Amendment; that conduct violates the Fifth Amendment only if it "shocks the conscience"; that it shocks the conscience only if it is "arbitrary"; that it is arbitrary only if it is undertaken without
"reasonable justification"; and that since prisoners were subjected to this treatment in order to protect America from attack, there is "reasonable justification" for the conduct, therefore it is not "arbitrary," therefore it does not "shock the conscience," therefore it does not violate the Fifth Amendment, and therefore it does not violate the treaty. To reach this result Bradbury has to overlook certain key provisions of the treaty against torture and other cruel, inhuman, or degrading punishment. First the treaty's prohibition on mistreatment of prisoners is not conditional upon there being a sufficient justification for such mistreatment - it is instead an absolute prohibition on mistreatment. Article 2, Clause 2 of the treaty specifically states:
"No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.”

This points out another flaw in the legal reasoning of Yoo, Bybee, Bradbury and those who assert the actions are permissible under the claim of self-defense. The treaty understands that these excuses and affirmative defenses are in existence, but explicitly rejects their use in the language of the law. The mantra that “torture is never justified under any circumstances” is in accordance with the laws of the United States.

Third, the memo makes the argument that “if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent.” This is from the case of South Atlantic v. Riese, 356 F.3d 576 (4th Cir. 2004). If you assumed this case dealt with national security matters you would be forgiven. However, the reality is that this case deals with a dispute over the construction of an apartment building. No, I’m not kidding. Apparently dicta and holdings in contract, property and corporations cases are applicable to constitutional and national security law. They have no shame citing case law with dicta discussing construction law, but fourthly, they do not cite any adverse precedent in their memo and conveniently fail to mention the US itself has prosecuted and sentenced to death other individuals who have waterboarded. Rule 3.3(a)(2) of the Model Rules of Professional Conduct mandates an attorney to disclose “legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” In the Nuremburg Trials we sentenced Nazi war criminals to death for torture methods similar to our own. The United States has prosecuted and executed Japanese soldiers who used waterboarding. Even in the past few years the US has prosecuted torturers (see Charles Taylor Jr.) Incredibly, none of these references or the explicit provisions of the treaties themselves are to be found in the memos. Furthermore, here is a Newsweek article discussing a not-yet-released internal DOJ memo investigating the professional and ethical violations of the OLC lawyers that wrote these memos. Finally, if you are still convinced that no acts of torture were committed and these acts fell short of “torture,” Prof. Huhn points out, “it must be admitted that [a] jury might reasonably find that it does constitute torture. No competent lawyer - let alone an Assistant Attorney General - advises his client to engage in behavior that a jury could reasonably conclude constitutes a felony.” There are two words to describe the legal memos giving the green-light to torture – pathetic and criminal. These legal opinions were not generated in good-faith, nor was the issue of torture and treatment of detainees a developing or vague area of US law.

The evidence and law clearly establishes that the US engaged in systematic acts of torture and torture is illegal. You would think the next step is prosecuting those who ordered the torture, but the beltway and establishment journalists think otherwise. You have journalists like Peggy Noonan saying that we shouldn’t ask too many questions about this dark period in our history and certain things should be mysterious in life. Hopefully your jaw dropped because I can’t imagine any self-respecting journalist admitting that people shouldn’t be asking questions or gathering more information. Other journalists like Chuck Todd and Wolf Blitzer still refer to the torture techniques by the Orwellian name of “enhanced interrogation.” Others, especially politicians, claim that our country shouldn’t prosecute for policy differences or Democrats shouldn’t investigate Republican presidents. I’m so sick of hearing that “investigations would be improper to punish differences in policy.” Policy decisions are legitimate decisions made within the framework of the law. The decision to torture was illegitimate and illegal. We punish those who commit illegal acts. That is what the rule of law means. Should we let Bernie Madoff go unpunished and justify his actions by stating “we need to move forward and not dwell on the past?” Some may argue that prosecutors have discretion whether or not to investigate crimes. This is true, however it is inapplicable to the issue of torture. The Convention Against Torture and Geneva mandates that credible allegations of torture MUST be investigated and prosecuted. Thus, if Attorney General Eric Holder does not investigate and prosecute, we will further violate our laws. There is no avoiding the issue. Either we follow US law and our treaties or we should withdraw - It’s one or the other. Finally, the issue of committing torture is not a left/right issue or a Republican v. Democrat issue. Torture is an issue of right and wrong. Moral v. Immoral behavior. Don’t be misled by those who are trying to deflect the issue by making it a partisan battle.

Yes, I’m aware that I am being long-winded so I’ll wrap it up. The United States clearly engaged in torture and torture is unquestionably illegal. Our laws require we investigate and prosecute those who implemented its policies (OLC lawyers, Congressmen, Senior Administration officials). What I think makes America exceptional in the world is that we abide by the principal that no one is beyond the reach of law and we are a nation of laws, not men. This issue will decide if this great country continues to follow that principle. Do we want to remain as a shining city on a hill?

I’ll leave you with statements from Justice Robert Jackson acting as lead prosecutor at Nuremburg:

The common sense of mankind demands that law shall not stop with the punishment
of petty crimes by little people. It must also reach men who possess themselves of great power…We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.