Torture on Suspicion

Through the Lens of Efficacy:

legality-morality-efficacy-spheres

This is an adapted and revised excerpt from Chapter 5 of:

Some locutions begin as bland bureaucratic euphemisms to conceal great crimes. As their meanings become clear, these collocations gain an aura of horror. In the past century, final solution and ethnic cleansing were phrases that sent a chill through our lexicon. In this young century, the word in the news—though not yet in most dictionaries—that causes much wincing during debate is the verbal noun waterboarding.

If the word torture, rooted in the Latin for “twist,” means anything (and it means “the deliberate infliction of excruciating physical or mental pain to punish or coerce”), then waterboarding is a means of torture.

–William Safire, Conservative Language Columnist[1]


Here we shall gaze through the lens of efficacy to analyze torture as an intelligence-gathering tool, and this examination will reveal that the issue shares a manifest overlap with our other two lenses of legality and morality. As discussed, the prohibition of torture in international law has reached the special status of an absolute norm of jus cogens, putting it on par with the crimes of slavery and piracy. Put another way, the international law on torture has a clarity and comprehensiveness—no torture, by any authority, against any individual, in any circumstances, anywhere in the world—that places it in a very select category of illegality. For international courts interpreting the laws against torture, its stark status of illegality is not affected by notions of efficacy, and thus the approach of this chapter is legally unorthodox.

However, there is valid reasoning for this unconventional approach. Some national courts have entered into evaluations of efficacy that have traditionally been reserved for the political branches; there have been important decisions dealing with counterterrorism policies by national courts from Israel to Germany that utilized the aspect of efficacy to render their judgment. Yet what must remain front and center is that this work focuses on the legitimacy of the “monopoly of physical force” exercised by the government, and therefore valid policy must aim at defending this core of society that is being targeted.

US before the Committee Against Torture (2006).

US before the Committee Against Torture (2006).

When we speak about state-sanctioned torture, we are looking at the exercising of the government’s most coercive and violent dominance over a defenseless individual. Because of the perceived immediacy and necessity that is coupled with the use of torture for intelligence-gathering, any systematized controls that might exist are often discarded as too cumbersome, and torture becomes an unchecked exercise of the government’s power. Employing profoundly forceful authority in a capricious manner cannot bode well for defending legitimacy.

Abu Zubaydah

Abu Zubaydah

To begin, it is necessary to define what is meant by efficacy in the specific context of a program of counterterrorism interrogation. As has been discussed, effectiveness can be deceptively simple when in fact it is enormously complex. Therefore, it is necessary to put forward the precise manner in which the testing of empirical validity will be carried out when discussing interrogation for counterterrorism. Building on the Oxford English Dictionary definition of efficacious (“that [which] produces, or is certain to produce, the intended or appropriate effect”), and the definition of torture found in Article 1 of the CAT treaty, efficacy in our context will mean: the purposeful infliction of severe pain or suffering on detained suspects (be it physical or mental) produces, or is certain to produce, timely and reliable intelligence information for stopping attacks against noncombatants.

In this framework it is necessary for the elements of timeliness and reliability to be a part of this definition of efficacy because these are indeed a part of the “intended or appropriate effect.” Otherwise there will be the possibility that noncoercive methods would have provided the very same results. It is insufficient to claim that the acquisition of information that turns out to be true or useful at some later point in time is enough to demonstrate the efficacy of torture. For torture to be considered efficacious, it must be shown to be a superior technique.

Most critically, our definition also includes the necessity that it must be calculable in advance that a method of coercive interrogation produces the desired result. No doubt there are terms dealing with effectiveness that suggest no need for this high standard. For example, the term “effectual” is defined in the Oxford English Dictionary as “that [which] produces its intended effect, or adequately answers its purpose.” The idea that a technique brings about a desired result without a demonstrable reason for causality ahead of time, or that it is “adequate,” simply will not do in this context. Torture is far too grave of an intrusion into human dignity to use a pliable standard.

Can torture of innocent or ill-informed individuals ever be considered to be effective?…their torture leads to completely unpredictable outcomes coupled with the guaranteed abuse of human beings.

It is always possible that an action happens to work in a specific instance in retrospect. A single shot fired, even randomly, into a crowd has the capacity for immobilizing a suicide bomber. But without the calculability of how many shots must be fired, and how to ascertain who is the correct target, its true efficacy as a method simply cannot be judged. This brings us to the crux of our argument.

Vann Nath painting, Cambodia

Vann Nath painting, Cambodia

Can torture of innocent or ill-informed individuals ever be considered to be effective? This essential question clarifies the inquiry of this chapter and helps explain the manifest international movement toward the comprehensive illegality of torture. Because the inherent nature of ill-treatment for intelligence-gathering obligates the use of unverifiable suspicions as a trigger for abuse, such a program will always include the innocent and ill-informed among its victims. It is impossible to know in advance (or afterwards) what is inside the head of a detainee, and therefore those who do not have the information we seek will inevitably be brought into the program. The result is that their torture leads to completely unpredictable outcomes coupled with the guaranteed abuse of human beings.

Because terrorism targets legitimacy, counterterrorism policies must be consciously designed knowing that terrorist acts are meant to provoke a government into overreaching into an exercise of force deemed to be illegitimate. Violent force wielded on unchecked suspicion, ensuring that the innocent and ill-informed will be pulled into the program, is a surefire way to jeopardize legitimacy.

Also, we must distinguish between punishment for past crimes and the intention to prevent future ones. When we speak of the efficacy of torture in this chapter, it has nothing to do with the former and everything to do with the latter. Demonstrating agreement, former Vice President Dick Cheney gave a speech in 2009 discussing the security measures implemented when he was in office and spoke to the intention behind using “enhanced interrogation techniques” (EITs). In the speech he made clear that the administration’s use of coercion was solely for intelligence-gathering purposes. While claiming that the tactic worked (without offering any evidence to back up the claim), Cheney propounded,

We know the difference in this country between justice and vengeance. Intelligence officers were not trying to get terrorists to confess to past killings; they were trying to prevent future killings. From the beginning of the program, there was only one focused and all-important purpose. We sought, and we in fact obtained, specific information on terrorist plans.[2]

The defense of the institutionalization of a program of ill-treatment here was because information was gained “on terrorist plans.” The standard that is asked to be applied to the counterterrorist campaign was not that of imminent or timely plans, but just plans. This negligible hurdle does nothing to explain why torture should be chosen over other methods.

Because it is impossible to know that the information being sought to prevent harm actually exists within the mind of a proposed victim, or that coercion will actually extract it if it does exist therein, there is never any way of knowing that the use of ill-treatment will further that cause.

That torture could be known to be necessary to avert serious injury and death presents an onerous burden of proof that must lie on the shoulders of those who wish to subvert or change the comprehensive international and domestic ban on torture and ill-treatment. Because it is impossible to know that the information being sought to prevent harm actually exists within the mind of a proposed victim, or that coercion will actually extract it if it does exist therein, there is never any way of knowing that the use of ill-treatment will further that cause. If it were possible to know what is in the mind of a specific detainee, torture would in fact be unnecessary. The absurd claim is that we can know the mind of the proposed victim, but not in its entirety. This is an insurmountable hurdle simply created by the constraints of our humanity. One notable scholar on torture has suggested: “if such technology existed [to overcome these human limitations], it would surely be just as widespread as electricity”.[3]

This chapter will be an investigation into the empirical validity of treatment during interrogation, and the intelligence gained thereof, by laying out the facts concerning six high-profile detainees. A host of government documents and official statements available in the public sphere will be analyzed that catalogue the suspicions, treatment, and level of cooperation of individuals who have been touted as important figures within the al Qaeda organization. While these assumptions still held true, their capture and interrogation were lauded as advancements in the “war on terror.” However, we will see that the original assumptions frequently turned out to be erroneous, thus drastically recasting the efficacy of the program. The cases of the six detainees that will be presented here are that those of (1) Ibn al-Shaykh al-Libi, (2) Abu Zubaydah, (3) José Padilla, (4) Binyam Mohamed, (5) Mohammed al Qahtani, and (6) Khalid Shaykh Mohammed.

One notable scholar on torture has suggested: “if such technology existed [to overcome these human limitations], it would surely be just as widespread as electricity”.

Binyam Mohamed

Binyam Mohamed

Following his presidency, former President George W. Bush still stands behind the value of the program he authorized and claims he would even do it again.[4] Most importantly for our purposes, what will be clearly seen through the tracing of the known facts relating to these cases is that even when it came to dealing with the detainees considered to be the most valuable, the program still pulled in the innocent and ill-informed with a vetting process we must assume to be at its most rigorous.

Nonetheless, when it comes to discussing the ill-treatment of detainees in US military or intelligence-agency custody since 9/11, there are regrettably numerous cases that can be explored. Today it is possible to find a host of government and nongovernment reports providing extensive empirical data:

  • Report from the US Senate Armed Services Committee (2008);[5]
  • Internal military reports such as the Taguba Report (2008);[6] The Church Report (2005);[7] and the Schmidt-Furlow Report (2005);[8]
  • Inspector General reports from the CIA (2004);[9] and the FBI (2008);[10]
  • Leaked confidential reports from the ICRC (2004)[11] and (2007);[12]
  • Non-governmental reports from the Open Society Justice Initiative (2013);[13] The Constitution Project (2013);[14]
  • Accounts from interrogators at the scene (2009)[15] and (2011);[16] or
  • Investigative manuscripts from major book publishers.[17]

All of these works detail prisoner abuse and sometimes death in both Afghanistan and Iraq, along with the ill-treatment and torture of a detainee in Guantánamo. The most recent, and extensive at 600 pages, is the bipartisan Constitution Project of 2013 which broadcast its conclusion that it is “indisputable that the United States engaged in the practice of torture”.[18] Of note this investigation also dove into the question of efficacy and asserts a truism that also guides this study: “to say torture is ineffective does not require a belief that it never works; a person subjected to torture might well divulge useful information”.[19]

There is also one essential government document treating this specific question of efficacy that has not yet come to light. The US Senate Intelligence Committee completed a 6,000-page report in 2012 that conducted a methodical assessment of whether the EITs led to more intelligence breakthroughs or false leads. The Committee has voted to make the Executive Summary public, and it currently awaits approval by the White House. As this is to be one of the only completed government studies into the efficacy of a program of torture, its conclusions are significant.

It was the broadcasting of graphic photographs exhibiting prisoner abuse in the Iraqi detention facility of Abu Ghraib that brought this issue to the fore of citizens’ minds.[20] This began to demonstrate the extensive nature of ill-treatment being meted out in the “war on terror.” However, this chapter will not attempt to detail the widespread abuse that infected many parts of the US detention system, but rather will focus on just one particular aspect. That is, torture must be carried out on suspicion, not on certain knowledge.

The idea that using forceful coercion can be useful in gathering vital intelligence to save lives is not new. Versions of this argument have been used by philosophers for some time now, lately in the form of the “ticking-bomb scenario.” This was popularized in the US as the public learned about the use of abuse in interrogation. The problems, presented as assumptions, that we find repeated in such a “ticking-bomb scenario” are that we are certain the detained individual has the knowledge needed to diffuse the bomb, therefore we hold the correct target for torture; that time is of the essence and so there is immediacy; and that severe coercion techniques will grant access to the required information.[21] These are all immensely complicated questions to resolve in an isolated situation, but settling these difficulties to institute a program of ill-treatment is truly insurmountable.

It was an intelligence-gathering program based on suspicion and ungoverned by law that was initiated, and therefore the already-grave problems of certainty, targeting, immediacy and the effectiveness of coercive techniques were all multiplied exponentially.

Mohammed al Qahtani

Mohammed al Qahtani

It is often accepted that in a single circumstance it is possible for the ticking bomb scenario to pose a daunting moral question for an individual. However, this is not the situation we will be dealing with here. It was an intelligence-gathering program based on suspicion and ungoverned by law that was initiated, and therefore the already-grave problems of certainty, targeting, immediacy and the effectiveness of coercive techniques were all multiplied exponentially.

Crucially, there is an angle on this ticking bomb scenario that is less often stressed: the application of torture for gaining intelligence will inevitably be based on suspicion. The scenario is often presented in a manner that conceals the importance or centrality of this point, and it is worthwhile to review some of them since they reveal this very point.[22] In a precursor of this scenario, but devoid of bombs, Jeremy Bentham put forward the philosophical question in the nineteenth century with a formulation that properly identifies the root of suspicion in this question. Bentham wrote:

Suppose an occasion, to arise, in which a suspicion is entertained, as strong as that which would be received as a sufficient ground for arrest and commitment as for felony—a suspicion that at this very time a considerable number of individuals are actually suffering, by illegal violence inflictions equal in intensity to those which if inflicted by the hand of justice, would universally be spoken of under the name of torture. [ . . . ] To say nothing of wisdom, could any pretence be made so much as to the praise of blind and vulgar humanity, by the man who to save one criminal, should determine to abandon a 100 innocent persons to the same fate?[23]

In this scenario formulated by Bentham we find that there is an explicit recognition that the intentional application of severe physical or mental pain or suffering would be inflicted on the grounds of suspicion. While Bentham acknowledges this would be a high level of suspicion by which a court would find it sufficient to convict the detainee, this element of speculation which is inherent to all such scenarios is often glossed over. Additionally, it should be remembered that the level of evidence that would satisfy a court is quite diverse in different jurisdictions and even differs with each judge and jury. Nevertheless, because we are speaking about what might or might not be found inside someone’s mind, we are without question discussing an unverifiable suspicion.

It is also the case that historians have not been able to locate any reports produced on torture’s effectiveness for any government (for this reason the report by the US Senate Intelligence Committee is of utmost importance).

Khalid Sheikh Mohammed

Khalid Sheikh Mohammed

As such, in this chapter we shall delve into the facts that are known to address the sphere of empirical validity. Social science provides the most useful tools for ascertaining what techniques have or have not been effective in the past, but this discipline has been largely prevented from applying them to torture because governments have not allowed access to the raw data necessary for a full and objective assessment. It is also the case that historians have not been able to locate any reports produced on torture’s effectiveness for any government (for this reason the report by the US Senate Intelligence Committee is of utmost importance). As one thorough scholar on the subject has put it, “Those who believe in torture’s effectiveness seem to need no proof and prefer to leave no reports”.[24] Due to the dearth of information on the subject, this chapter will analyze the empirical data that has become available on the use of brutal interrogation methods implemented on six particular suspected terrorists in the “war on terror.”

Through the Lens of Efficacy

Torture on Suspicion

  1. Introduction
  2. Legality: The Torture Memos 
    1. The Bradbury Memos
    2. Pushback from the Legislature and the Judiciary
    3. A Flawed Attempt at Efficacy for Legality
  3. Efficacy: Six High-Profile Suspects
  4. Ibn al-Shaykh al-Libi: Casus Belli
  5. Abu Zubaydah: The Pivotal Moment in Torture Policy
    1. The Clash between the FBI and the CIA
    2. Authorizing Further Ill-Treatment and Torture on Suspicion
    3. The Apex of the Waterboard and Its Eighty-Third Application
    4. Erroneous Suspicions
  6. The “Dirty Bombers”: The Insidious Nature of Torture
    1. José Padilla
    2. Binyam Mohamed al Habashi
  7. Mohammed al Qahtani: Destroying the Endgame
  8. Kahlid Shaykh Mohammed: Correct Suspicions and Efficacy
  9. Torture on Suspicion: Clarifying the Moral Argument
  10. Conclusion: Remedy, Redress and Diplomatic Implications

University of Geneva, Global Studies Institute


 [1] SAFIRE, W., ‘Waterboarding’ New York Times Magazine (9 March 2008) available at : <http://www.nytimes.com/2008/03/09/magazine/09wwlnSafire-t.html> (last visited June 2013).
[2] CHENEY, R., ‘Remarks before the American Enterprise Institute for Public Policy Research’ (21 May 2009), available at : <http://www.aei.org/speech/100050>.
[3] For an extensive scholarly work investigating the contemporary use of “clean torture” techniques that leave no trace, researching military and police reports in fourteen languages in over 800 pages and 3,400 notes, see REJALI, D., Torture and Democracy (Princeton, Princeton University Press, 2007) at 453.
[4] BUSH, G., Decision Points (New York, Crown Publishers, 2010) at 168-71.
[5] See e.g. Report of the United States Senate Committee on Armed Services, ‘Inquiry into the Treatment of Detainees in U.S. Custody’ (20 Nov 2008) 110th Congress, 2nd Session, available at: <http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf>.
[6] The “Taguba Report” On Treatment Of Abu Ghraib Prisoners In Iraq, ‘ARTICLE 15-6 INVESTIGATION OF THE 800th MILITARY POLICE BRIGADE’ available at: <http://www.npr.org/iraq/2004/prison_abuse_report.pdf> (last visited June 2013).
[7] Church Report, Office of the Secretary of Defense Review of Department of Defense Detention Operations and Detainee Interrogation Techniques (7 March 2005) available at : <http://www.aclu.org/files/images/torture/asset_upload_file625_26068.pdf> and <http://www.defense.gov/news/ Mar2005/d20050310exe.pdf> (last visited June 2013).
[8] Schmidt-Furlow Report, ‘Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility’ (1 Apr 2005 [Amended 9 Jun 2005]) available at : <http://humanrights.ucdavis.edu/resources/library/documents-and-reports/schmidt_furlow_report.pdf> (last visited June 2013).
[9] Central Intelligence Agency Inspector General (CIA-IG 2004 Report hereinafter), ‘Counterterrorism Detention and Interrogation Activities’ (Sept 2001 – Oct 2003)’ (2003-7123-IG) (7 May 2004) available at the Homeland Security Digital Library : <http://www.hsdl.org/hslog/?q=node/5015> (last visited June 2013).
[10] Office of the Inspector General, ‘A Review of the FBI’s Involvement in and Observations of Detainee Interrogations in Guantánamo Bay, Afghanistan, and Iraq’ (FBI-IG 2008 Report hereinafter) (May 2008) at 68, available at : <http://www.justice.gov/oig/special/s0805/final.pdf> (last visited June 2010).
[11] Report of the International Committee of the Red Cross (ICRC 2004 Iraq Report hereinafter) on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation (Feb 2004), available at <http://www.cbsnews.com/htdocs/pdf/redcrossabuse.pdf> (last visited June 2013).
[12] ICRC Confidential Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody (ICRC 2007 Confidential Report on “High Value Detainees” hereinafter), February 2007, Regional Delegation for the United States and Canada, available at: <http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf> (last visited June 2013).
[13] Open Society Justice Initiative (2013) “Globalizing Torture: CIA Secret Detention and Extraordinary Rendition,” February, available at <http://www.opensocietyfoundations.org/reports/globalizing-torture-cia-secret-detention-and-extraordinary-rendition> (last visited June 2013).
[14] Constitution Project (2013) “The Report of The Constitution Project’s Task Force on Detainee Treatment,” Washington, DC: The Constitution Project.
[15] SOUFAN, A., Testimony before the US Senate Judicial Committee, Subcommittee on Administrative Oversight and the Courts, “What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration,” May 13, 2009 available at <http://judiciary.senate.gov/hearings/hearing.cfm?id=3842> (last visited June 2009).
[16] SOUFAN, A., Black Banners: The Inside Story of 9/11 and the War against al-Qaeda (New York, W. W. Norton & Co., 2011).
[17] For a superbly investigated early look into the questions of ill-treatment of high-value detainees in the ‘war on terror’ see MAYER, J., The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York, Doubleday, 2008) 369 pp.
[18] Constitution Project, “The Report…on Detainee Treatment”, at 3.
[19] Idem, at 11.
[20] CBS 60 Minutes broadcast the first report on the photos of abuse from Abu Ghraib. See LEUNG, R., ‘Abuse Of Iraqi POWs By GIs Probed : 60 Minutes II Has Exclusive Report On Alleged Mistreatment’ (28 April 2004) available at : <http://www.cbsnews.com/stories/2004/04/27/60II/main614063.shtml> (last visited June 2013).
[21] STATMAN, D., ‘The Absoluteness of the Prohibition against Torture,’ [Hebrew] Mishpat u-Mimshal, (1997) 4: 161–198, cited in GINBAR, Y., Why Not Torture Terrorists? : Moral, Practical and Legal Aspects of the ‘Ticking Bomb’ Justification for Torture (Oxford, Oxford University Press, 2008) at 119.
[22] Idem, GINBAR, at 379-386.
[23] Cited in ibid., at 357 (my emphasis).
[24] REJALI, Torture and Democracy, at 522.