Foreword & Afterword

Nils Melzer, UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Alberto Mora, Former Navy General Counsel


Editors: Steven J. Barela, Gloria Gaggioli, Mark Fallon and Jens David Ohlin


Nils Melzer
UN Special Rapporteur on Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment

Foreword

Hardly any norm of international law commands as much consensus and authority as the prohibition of torture. It is universally recognized as absolute, non-derogable and peremptory. It protects all human beings without discrimination and in all situations without exception, it cannot be restricted even in war and other situations of public emergency, it cannot be abolished even by treaty, and any contradicting legislative, administrative or judicial act is not only inherently unlawful, but originally void. States must prevent torture throughout their jurisdiction, may not use any information obtained through torture, and may not transfer anyone to another jurisdiction where they may be exposed to torture. In criminal law, violations of the prohibition of torture invariably figure among the gravest offences, including war crimes and crimes against humanity, and must be investigated and prosecuted as a matter of universal jurisdiction. This, in a nutshell, is the international law on torture.

In reality, however, torture is still practiced with disturbing frequency and near complete impunity in all regions of the world. Torture is used to interrogate, intimidate, coerce, punish and discriminate. It is used to break resistance, force confessions, and silence witnesses, to extort money, sex or cooperation, to deter migrants, exploit labor, and subdue political opponents, and to terrorize, disempower and humiliate a wide range of critical voices and marginalized segments of society. Every day, people are being prevented from leaving, or are extradited, deported, or returned to countries where they face near certain torture, rape or murder. Every night, countless children, women and men face violence, abuse and even death in their own homes, often with the complacency of their communities and the acquiescence of the State. In recent years, it has become increasingly acceptable for politicians to promote responses to terrorism, narcotics, criminality and migration that are clearly incompatible with the prohibition of torture, and even contemporary mainstream entertainment portrays torture as an effective means of last resort in the everlasting struggle between good and evil.

So what has gone wrong? How can reality deviate so drastically from one of the most authoritative legal provisions ever codified in human history? Does the prohibition of torture no longer reflect the moral imperatives and utilitarian pragmatism of our time?

The only convincing explanation for the continued use of interrogational torture throughout all times and contexts is that its primary purpose never was to find the truth, but always has been to dictate or suppress the truth, or to otherwise dominate, coerce and intimidate—tasks for which torture is very effective.

From a moral standpoint, torture, along with slavery and genocide, doubtlessly has come to epitomize the absolute and unforgivable evil. Even those who openly promote coercive interrogation generally do so under the guise of euphemisms, such as “enhanced interrogation” and “pressure techniques”, and may even refer to specific methods, such as “waterboarding” or “stress positions”, but would never admit that what they are advocating is nothing else than torture. This moral consensus is remarkable given that, for most of human history, torture was common practice and morally accepted as a byproduct of absolute power. The peremptory prohibition of torture has grown out of the horrors of World War II, and it is no coincidence that it begins to erode again precisely at the time when the last witnesses of those horrors are dying away. The moral imperative of the prohibition of torture still is a fairly recent achievement, too recent perhaps to be sufficiently immune to bad faith attacks in the face of purportedly existential threats. The problem is not that the prohibition of torture no longer reflects our moral values, but that our common perception of torture no longer reflects the reality of torture, that we have become totally disconnected from the dirty truth of what torture really is and what torture really does, not only to its victims, but also to its perpetrators and to any society tolerating such profoundly dehumanizing abuse. Unless we wake rapidly from our collective amnesia and stop the current downward spiral, humanity may well have to learn the same lesson again the hard way.

From a utilitarian perspective, we may celebrate scientific evidence demonstrating the ineffectiveness of torture for the extraction of reliable information, but we tend to forget that these findings do not come as a surprise to the torturers themselves. Throughout history and across cultures, interrogators, prosecutors and judges may have been cruel, corrupt or indifferent, but the inherent unreliability of any information extracted under excruciating pain and anguish cannot possibly have escaped their common sense. The only convincing explanation for the continued use of interrogational torture throughout all times and contexts is that its primary purpose never was to find the truth, but always has been to dictate or suppress the truth, or to otherwise dominate, coerce and intimidate – tasks for which torture is very effective.

By integrating all three perspectives and cleaning up with a broad range of myths and misconceptions, the authors contributing to this book jointly expose the ugly truth of torture and make an incontrovertible call for the eradication of coercive interrogation.

The real paradigm shift of non-coercive interviewing lies not in scientifically demonstrating the ineffectiveness of torture for the extraction of reliable information, but in unveiling the true purpose of all coercive interrogation. It exposes how ruthlessly States practicing coercive interrogation are betraying their lip service to the letter of the law, and how complacent or even complicit they are with the corrupted logic of forced confessions, which so conveniently intimidate opponents, produce culprits and scapegoats, and reduce the judicial case-load in short, effortless and inexpensive proceedings, but which also make a complete mockery of human dignity, justice, and the rule of law.

As we have seen, in order to overcome the scourge of interrogational torture, neither its absolute prohibition, nor its universal moral condemnation, or its demonstrated ineffectiveness for any legitimate purpose are sufficient in themselves. By integrating all three perspectives and cleaning up with a broad range of myths and misconceptions, the authors contributing to this book jointly expose the ugly truth of torture and make an incontrovertible call for the eradication of coercive interrogation, in fulfillment of the unequivocal promise made by the Universal Declaration of Human Rights to all members of the human family: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment!”


Alberto Mora
Former Navy General Counsel

Afterword

The Corrosive Strategic Legacy of Torture

The U.S. policy to adopt torture[1] as an interrogation technique after the 9/11 attacks had a relatively short life span, yet it was deeply corrosive to the national interest and continues to be.[2] First adopted by the administration of President George W. Bush in the summer of 2002, it was formally terminated by an executive order signed by President Barrack Obama on January 22, 2009, his second day in office. The actual official use of torture may even have been shorter: press reporting in 2003 on rumors of torture, the explosive and revolting revelations of the Abu Ghraib scandal in 2004, the exposure of the CIA’s archipelago of torture “black sites,” and mounting domestic and international outrage, among other factors, all appear to have contributed to the de facto abandonment of the policy even before the end of the Bush administration. But it would be a mistake to conclude that the end of the use of torture meant the end of all of the torture policy’s effects or that the United States has returned to the pre-lapsation status quo ante; while the use of torture may have been abandoned, for now, the long-lasting damage caused by the U.S. torture policies—which has been inadequately addressed and is often unrecognized—endures. As it was for the United States, so would it be for any country, torture is a tactical measure that invariably triggers adverse strategic consequences.

Collateral Costs and Consequences

What is that damage? The answer to this question in large measure depends on how the issues are framed. Unfortunately, much of the public discourse on the use of torture has not framed the issues properly.

The Bush administration’s torture program’s architects, alumni, and other apologists for the policy maintain that it was legal (i.e., not torture), necessary, medically safe (for its victims), and effective. They assert that the program “worked,” meaning—as they interpret the term “worked”—that it yielded information from the torture victims that had intelligence or military utility and contributed in some significant way to keeping America “safe.” But to frame the issue of whether or not to use torture exclusively on the alleged yield from the interrogation sessions is to adopt an excessively narrow framing of the scope of the issue. As political messaging, this unquestionably succeeded in providing potent and durable political cover for the use of torture, but as policy analysis it has several disabilities. The first disability is that the claim does not appear to be true; the United States Senate Select Committee on Intelligence (SSCI) Report found that the Central Intelligence Agency’s (CIA) own internal documents don’t support the Agency’s claim of effectiveness. This renders the CIA claim at best unproven and at worst potentially entirely false. But, more importantly, the major disability is that to defend the use of torture mainly on the basis of its putative interrogative effectiveness is to adopt an overly narrow set of criteria by which to evaluate the program’s costs or benefits. To properly weigh the merits of any policy, one should not limit oneself to just the claimed benefits of the policy but should also identify what its collateral consequences and costs may be.

As it was for the United States, so would it be for any country, torture is a tactical measure that invariably triggers adverse strategic consequences.

The Narrow Objectives

The Bush administration seems never to have engaged in any significant policy analysis of the decision to use torture. No National Security Council memo analyzing the costs and benefits of such a policy has surfaced nor is there any evidence that such an analysis was ever considered. Indeed, as Philip Zelikow, the historian, 9/11 Commission chief of staff, and former State Department Counselor, has observed, that administration only posed itself the question “Can we do this?,” never “Should we do this?” The interrogation methods were thus formally only seen as legal issues, not policy issues. Of course, it is unlikely that any U.S. administration bent on applying torture but anxious to avoid criminal liability would commission such a legally incriminating memo, but the absence of any significant policy analysis prior to the adoption of the torture policy was a contributing factor to the poor decision.

The Bush administration seems never to have engaged in any significant policy analysis of the decision to use torture. No National Security Council memo analyzing the costs and benefits of such a policy has surfaced nor is there any evidence that such an analysis was ever considered. Indeed, as Philip Zelikow, the historian, 9/11 Commission chief of staff, and former State Department Counselor, has observed, that administration only posed itself the question “Can we do this?,” never “Should we do this?” The interrogation methods were thus formally only seen as legal issues, not policy issues. Of course, it is unlikely that any U.S. administration bent on applying torture but anxious to avoid criminal liability would commission such a legally incriminating memo, but the absence of any significant policy analysis prior to the adoption of the torture policy was a contributing factor to the poor decision.

The first objective—the use of torture—was quickly achieved. With the support of the White House, particularly Vice President Dick Cheney and his staff but also with the support of the President, the legal approval of the Department of Justice, and the policy approval of the full National Security Council, the CIA was authorized to implement what became its Rendition, Detention, and Interrogation (“RDI”) program. The torture was applied through the use of “Enhanced Interrogation Techniques”—the puckishly euphemistic term applied to torture techniques borrowed from North Vietnamese and Chinese interrogators—and by “extraordinary rendition,” the outsourced use of torture obtained by transferring prisoners to third countries, such as Syria, Egypt, and Morocco, where they were inhumanly interrogated. Relying on the authority granted to the CIA, the Defense Department followed suit by employing “Counter-Resistance Interrogation Techniques” in 2002 against high-value prisoners held at Guantánamo and other sadistic practices against prisoners in Afghanistan and Iraq, including Abu Ghraib. For each prisoner abused under specific orders, such as those in Guantánamo or those in Iraq, or the efforts made to “Gitmoize” detention operations in another country, many more suffered at the hands of individual soldiers or units that that were not acting under orders but who perceived that the use of brutality against prisoners was tacitly approved. The official adoption of torture at Guantánamo and the CIA black sites became known to others through informal channels and that led to its unofficial metastasis.

The use of torture was made possible by a series of express legal authorizations issued in 2002 by the Department of Justice to the CIA and the Department of Defense. Obtaining these authorizations satisfied the administration’s second objective. These authorizations were drafted by the Department’s Office of Legal Counsel and were contained in a series of secret legal memoranda now commonly referred to as the “Torture Memos.” One series of memos declared that the Geneva Conventions were inapplicable to Al Qaeda and Taliban “unlawful combatants,” thus removing an important legal obstacle against the brutal treatment of these captives. A second series of critical memoranda legally redefined the term “torture” to require such a high level of abuse before the brutality would legally qualify as torture that almost all torment, including the CIA’s “enhanced interrogation techniques,” were deemed not to meet the threshold. Once exposed and made public in later years, these memos were widely ridiculed and eventually withdrawn by DOJ, but not before they had achieved their purpose of creating a veneer of faux “legality” to the torture program and had enabled the president and those subordinates involved in the program to claim, then and subsequently, that they were not torturing and were always acting in reliance on and consistent with the advice of DOJ counsel.

Once exposed and made public in later years, these memos were widely ridiculed and eventually withdrawn by DOJ, but not before they had achieved their purpose of creating a veneer of faux “legality” to the torture program.

But the memoranda were not written in good faith, and it would be surprising if many of those administration officials who were at least partially shielded in the United States from civil and criminal liability by the Torture Memos were unaware of this or that they were actually committing torture. In fact, the memos have been cited as examples of what appear to be “results-oriented lawyering,” a derogatory term meaning memos that were written to permit a certain result by improperly twisting, ignoring, or redefining the law rather than by objectively applying the law to determine whether the desired outcome is legally permissible. To appreciate the degree of distortion, it is helpful to engage in a “before and after” comparison. Before 9/11 and the Torture Memos, this is how the U.S. State Department, speaking on behalf of the government, characterized the categorical nature of the U.S. legal prohibitions against torture in a 1999 submission to the U.N. Committee Against Torture:

Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention [Against Torture] constitutes a criminal offence under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor many any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on ground of exigent circumstances (for example, during a “state of public emergency”) or upon orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension.

The Torture Memos did not reflect these standards; after the Torture Memos and as a consequence, virtually all of the legal restrictions recited above were violated or circumvented.

As to the fourth objective—ensuring that no one involved in the torture program would be held criminally accountable—the Bush administration, with the assistance of Congress and subsequent administrations, fully succeeded in accomplishing this goal. No one associated with the torture program who served in the While House, Department of Justice, or CIA has been charged with criminal responsibility. On the contrary, many have been honored and promoted, such as Gina Haspel and Steven Bradbury, two key participants of the program who were respectively promoted to CIA Director and General Counsel of the Department of Transportation in the Trump administration. In the military, a few low-level soldiers associated with some abuses have received some punishment , but no one associated with the military’s implementation of the CIA’s enhanced interrogation program at Guantánamo and elsewhere has been punished.

Alberto Mora and Jens David Ohlin
Volume Preparation Conference, CERL at Penn Law
September 20-21, 2018

The Broader Consequences

Because torture is inherently immoral, there are many who object to any policy analysis of its use, particularly one that that assesses its “benefits” as well as costs. I share the view that torture is immoral and that that constitutes a necessary reason to prohibit its use. But I wholeheartedly disagree with the idea that subjecting it to policy analysis is inappropriate. The norm against torture and the historical national consensus that torture is always wrong were shattered by 9/11. Many polls since then show that many Americans—and, in some polls, most Americans—support the use of torture if it could be useful in helping them be safer. These Americans, President Donald Trump among them, do not even glance at, much less prioritize, the moral or the legal arguments. They are and will likely continue to be situationalists, meaning that they will make the decision to use torture or not depending on their perception of the magnitude of the threat. The use of torture after 9/11 demonstrates that laws alone may be insufficient to prevent torture if another crisis once again motivates the country’s top leaders to violate the law with the acquiescence of a supportive or passive Congress and public. The politics of torture thus require that the policy issues be addressed, not ignored. If these Americans can be convinced that the use of torture did not make them safer and was against the national interest, then there is hope that the former consensus against torture can be restored and the tendency to approve of torture situationally in “ticking time bomb” scenarios will not be normalized. More broadly, the application of policy analysis can help clarify the multitude of reasons why the categorical prohibition of torture is a rule we should wish to keep. Happily, the data from our recent national flirtation with torture support that conclusion.

The assessment of the costs of the torture program to the United States may be a matter of cost/benefit policy analysis, but it is not narrowly utilitarian. Many individuals, including senior military leaders, have fallen under the seductive logic of the ticking time bomb hypothetical, not realizing that among the reasons why it is not a reliable guide to decision-making is because it fails to factor in the benefits to society (not to mention potential victims) of individuals having their inalienable right to be free from cruelty continue to be held inviolate. Properly conducted, a policy analysis of torture factors in not only the myriad national security and foreign policy consequences of torture, but also the costs of violating our laws, our nation’s moral principles and international human rights norms. Those who scoff at the consideration of our nation’s values in the evaluation of the decision to use torture not only engage in moral error, they disregard the underpinning function of these values to the constitutional and legal foundation of our nation. Torture violated our nation’s sense of right and wrong because it recklessly disregarded our founding concepts of inalienable rights and the inviolability of human dignity, principles that undergird much of our legal order. Furthermore, our use of torture failed to consider how deeply the norm against torture constrained our nation’s political, military, and legal operating environment overseas as we sought to wage the war on terror because the moral and legal principles associated with the norm had been so extensively embraced by other nations. Because none of our major allies proved willing to accommodate the U.S. desire to abandon these civilizational achievements, the U.S. war effort came to generate needless friction and opposition as other nations became more and more aware of our abusive practices. We also failed to consider the critical role that the prohibition against torture plays in the structure of domestic law, human rights, and international law, both being concrete achievements and structures that have served the interests of our nation much as they have served the interests of humanity. Countless individuals have been protected by these norms and rules; countless more would be harmed if these norms and rules were to be weakened or discarded. All of these are examples of the morally-grounded but nonetheless real policy costs of the use of torture.

The United States seeks to build a nation and world that is less cruel—not more cruel.

What Is the Harm?

The full range of the categories of harm and the data that would be considered in comprehensive assessment of the policy costs and consequences of U.S. torture represents a vast and complex research challenge. Despite the vast amount of legislative, journalistic, and investigative attention focused on the issue and the massive literature and commentary it has generated, much of the critical data is still inaccessible and likely to continue to be because of a variety of reasons, including document destruction, classification protocols, and the unwillingness of many key participants to cooperate with investigations. On some occasions, as was the case with Spain, for example, the U.S. government applied diplomatic pressure to seek to block local investigations, parliamentary inquiries, or litigation. How the Spanish government fully reacted to this pressure and what the internal consequences were is not fully known.

Still, despite these challenges, we know enough to postulate that the damage from the torture extended well beyond that inflicted on the individual victims—there was damage to our country and to our interests as well. Torture damaged and the legacy of torture continues to cause damage in three principal areas:

• Domestically, to our values, societal norms, laws and legal system, and to our governmental integrity;
• Internationally, to our standing abroad, to the architecture of international law and human rights, to many bilateral relationships, to the support for U.S. goals and policies in the fight against terrorism, and to the coherency of our foreign policy and our ability to achieve our foreign policy objectives;
• To our national security, by weakening our alliance structure, disrupting and reducing military and intelligence cooperation, producing adverse military impacts at the tactical, operational, and strategic levels, degrading U.S. military integrity and ethos, enhancing enemy propaganda, recruiting, and combat effectiveness, and contributing to U.S. combat deaths

Some of these categories of harm may have abated or even disappeared when the United States stopped practicing torture. But some have not. Among Muslim populations, the American abuse of its almost exclusively Muslim victims inflamed public opinion and facilitated recruitment into terrorist or insurgent units. Some of this resentment still exists. And, when the United States failed (and fails) to hold itself accountable for its acts of torture, failed to cooperate with foreign law enforcement, parliamentary, and judicial inquiries into U.S. acts of torture and acted to block the International Criminal Court from investigating specific acts of American torture, it signaled that it held itself above the law. That this signal also communicated that similar impunity may now also be available to other bad actors did not appear to factor in the U.S. policy calculation.

A Less Cruel World

Mark Fallon and Alberto Mora
Center for Ethics and the Rule of Law at Penn Law

Looking back, when President Bush and his administration colleagues considered whether to use torture as a weapon of war in the summer of 2002, they should have rejected the idea for any single one of three reasons:

First, because it was wrong: it is morally impermissible either for a nation or an individual to hurt a person;

Second, because it was illegal: the cruel treatment of a captive is categorically prohibited by U.S. and international law; and

Third, because it was counterproductive: the policy costs of the use of torture vastly and foreseeably outweigh any putative benefit.

But this was not how President Bush and his colleagues framed the issue in the heat of the moment or years later, when the fear in the immediate aftermath of 9/11 had passed and the costs of the torture program were more readily visible. Fear of individual legal accountability and of political backlash had the administration locked into its policy of defending what they had done, refusing to examine the consequences of its actions, and placing the personal interests of those individuals associated with the program above the national interest.

No, to determine the “merits” of the U.S. torture program, it is not simply enough to determine whether some questions were answered during interrogation. To evaluate the program properly, the totality of the effects and consequences of the program have to be identified and weighed, which, in the case of torture, were massive and adverse. And, in the end, the use of torture also has to be weighed in the context of two fundamental questions: “What are we trying to protect?” and “What is in the national interest?” The first question is answered by the response that in the defense of our country the United States seeks not only to protect lives, but also our values and freedoms. The second question is answered in turn by the answer that the United States seeks to build a nation and world that is less cruel—not more cruel.

For as long as the United States was a state sponsor of torture—as we were and some would still have us be—we acted directly contrary to these principles, and we paid a steep price.

As Albert Camus warned us, torture is just the kind of weapon that would destroy what we’re trying to protect since it is inherently inimical to our values and freedoms. So, too, torture’s sole contribution can only be towards a world that is more cruel, not less, and one that does not share the vision of the importance of human dignity and of individual rights protected by the rule of law. And to embrace torture would be to disregard John F. Kennedy’s wise counsel to his own and future generations as to what we stand for and how we act: “I believe in human dignity as the source of national purpose, in human liberty as the source of national action, in the human heart as the source of national compassion….” For as long as the United States was a state sponsor of torture—as we were and some would still have us be—we acted directly contrary to these principles, and we paid a steep price.


[1] The issue whether the Bush administration tortured captives under a deliberate and knowing policy of state-sponsored torture is no longer a matter of serious debate or discussion. Not only is this the judgment of the overwhelming majority of informed legal specialists, academics, journalists, and human rights organizations in the United States and abroad, but a cursory review Senate Select Committee on Intelligence’s 2014 “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program” (henceforth “Senate Torture Report”) permits no other conclusion. Accordingly, it would be inappropriate to use any word other than the precise legal term—“torture”—to characterize the administration’s interrogation program and its effects on the victims.
[2] This essay draws from a number of prior speeches I have given on the issue and from Doug Johnson, Alberto Mora, and Averell Schmidt, ‘The Strategic Costs of Torture: How Enhanced Interrogation Hurt America,’ Foreign Affairs (Sept/Oct 2016).
[3] US Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, Executive Summary (Approved 13 December 2012; Updated for Release 3 April 2014; Declassification Revisions 3 December 2014) [SSCI Report hereinafter]. The report sought to validate the 20 most important claims of success from the CIA attributable to its “Enhanced Interrogation Program.” It determined that the CIA’s own records and documents supported none of those claims. Findings and Conclusions #1 (“The CIA’s use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees”) xi; and #2 (“The CIA’s justification for the use of its enhanced interrogation techniques rested on inaccurate claims of their effectiveness”) xii.
[4] This failure would contribute to many catastrophic consequences, but two that were fundamental to the program’s failure. First, the CIA architects of the program failed to critically examine their fundamental operational assumptions, that torture is uniquely effective in extracting truthful information and that its use was necessary. In point of fact, these were false assumptions: the vast body of historical data on interrogation supports the proposition that relationship-based interrogation techniques are more effective than torture (see all of Section II in this volume). And second, the torture proponents failed to examine the historical record with respect to other nations’ use of torture. That record is one of failure. There is no evidence of any nation having used torture to achieve a strategic success, and many instances where the use of torture directly led to a strategic failure, as were the cases of the French in Algeria and the British in Northern Ireland.
[5] All citations here come from direct conversations with Philip Zelikow.
[6] However, when psychologist Dr. Robert Fein, a member of the Intelligence Science Board (ISB) during the Bush administration, obtained the Board’s approval in 2003 to an inquiry into the scientific basis for the CIA’s interrogation methods, CIA Director George Tenet barred the Board from conducting the research. That research would be later conducted when the subsequent CIA Director, Porter Goss, gave his approval (conversation with Dr. Fein). For further discussion of the ISB study see the Introduction of this volume by S Barela and JD Ohlin.
[7] According to the SSCI Report (n 3), 39 individuals were subjected by the CIA to its “enhanced interrogation techniques” xi. Reportedly, 136 individuals were rendered to third countries. Open Society Justice Initiative, Globalizing Torture (2013) 6 <https://www.justiceinitiative.org/uploads/655bbd41-082b-4df3-940c-18a3bd9ed956/globalizing-torture-20120205.pdf> accessed 31 May 2019. It is assumed that all were tortured.
[8] See Mark Fallon, Unjustifiable Means (Regan Arts 2017); and US Senate Committee on Armed Services, Inquiry Into the Treatment of Detainees in U.S. Custody (110th Congress 2nd Session, 20 November 2008).
[9] It is not known how many individuals may have been brutalized at the hands of the military. The number is certainly in the hundreds.
[10] The State Department was kept in the dark as to the reason why the White House and DOJ were so insistent on the need disable Geneva’s coverage from the war on terror. One senior lawyer in the department’s Office of the Legal Advisor working on the Geneva issue confided to me that he was puzzled by this departure from consistent past practice until the moment he realized, when reviewing the presidential memorandum declaring the Geneva Conventions inapplicable, that he was holding in his hand proof of mens rea (intention or knowledge of wrongdoing).
[11] This was John Yoo’s notorious definitional invention that “severe pain” (a requisite element of torture under 18 U.S.C. §§ 2340-2340A) is tantamount to “serious physical injury, such as organ failure, impairment of bodily function, of even death.” Jay Bybee, Memorandum for Alberto R. Gonzales, Counsel to the President re: Standards of Conduct for Interrogation Under 18 USC §§ 2340 – 2340A (1 August 2002) 11.
[12] But this achievement was a fragile one; ultimately, the legal test for torture is the quantum of abuse and its effect on the victim, not a lawyer’s characterization. Throughout the Bush administration, the commission of torture was a crime.
[13] US Department of Justice, Office of Professional Responsibility (Final) Report, Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists (29 July 2009) 254 <https://www.thetorturedatabase.org/files/foia_subsite/20090729_opr_final_report_with_20100719_declassifications_0.pdf> accessed 31 May 2019. This OLC opinion was later controversially overruled by DOJ attorney David Margolis on January 5, 2010. D Margolis, US Department of Justice, Memorandum of Decision Regarding the Objections to the Findings Of Professional Misconduct in the Office of Professional Responsibility’s Report of Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of Enhanced Interrogation Techniques” on Suspected Terrorists (5 January 2010) <https://fas.org/irp/agency/doj/opr-margolis.pdf> accessed 31 May 2019.
[14] Two former CIA operations officers engaged in front-line activities against Al Qaeda have related to me that, within the CIA at the time, the “enhanced interrogation techniques” were frequently referred to as “torture” and the RDI Program was referred to as the “torture program”.
[15] Addendum to the United States Report to the Committee Against Torture, UN Doc CAT/C/28/Add.5 (9 February 2000) para 6.
[16] But even that number is low. See eg Noah Bierman, ‘Few have faced consequences for abuses at Abu Ghraib prion in Iraq,’ Los Angeles Times (17 March 2015).
[17] See eg Pew Research Center, ‘2016 Pew Research Center’s American Trends Panel, Wave 22 October, Final Topline’ (poll taken Oct. 25 – Nov. 8, 2016). In this poll, 48% responded that torture may be used and 49% responded that it may never be used.
[18] The views about torture held by top students at the US Naval Academy and the US Military Academy help illustrate how deeply the situationalists perspective has seeped into society. In 2017 meetings I held with each academy’s “Scholarship Class” (the top 30 or 40 students being groomed as Rhodes scholarship candidates), only a handful in each class expressed categorical opposition to torture. The rest—despite their training in the Geneva Convention and the Uniform Code of Military Justice—expressed a willingness to consider the use of torture based on varying ticking time bomb scenarios. These opinions were voiced in a classroom and don’t necessarily reflect the students’ real views or how they would act in the field, but still…
[19] As can be seen in Chapter 16 of this volume by S Barela, Jeremey Bentham himself (often named as the originator of the classic utilitarian calculation found in the so-called ticking bomb scenario) clearly worried about opening the door to tyranny by giving the power to torture to a government.
[20] One well-known and highly regarded legal and foreign policy expert with years at the National Security Council expressed skepticism when I raised this argument. In all his years at the White House, he said, he had never participated in a discussion in which an issue of morality had been raised. To do so could have provoked laughter and damage to reputation. No doubt he was accurate in his recollection, but he never confronted the almost-sui generis issue of torture during his White House years. To have failed to raise the moral issues in such a discussion would have been professional malpractice for the reasons noted above.
[21] Jeremy Waldron, the legal philosopher, points out that the “rule against torture is archetypal of a certain policy having to do with the relation between law and force, and with law’s forcefulness with regard to the persons it rules.” He adds: “Law is not brutal in its operation; law is not savage; law does not rule through abject fear and terror, or by breaking eh will of those whom it confronts. If law is forceful or coercive, it gets its way by methods which respect rather than mutilate the dignity and agency of those who are its subjects.” Torture, Terror and Trade-Offs: Philosophy for the White House (Oxford 2010); see also, Charles and Gregory Fried, Because it is Wrong: Torture, Privacy and Presidential Power in the Age of Terror (WW Norton 2010).
[22] For discussion of the inviolability of human dignity and the rule of law, see Chapter 14 in this volume by JM Bernstein.
[23] The CIA’s acknowledged destruction of its waterboarding videotapes is one such example. Another is the mysterious disappearance of all of John Yoo’s and most of Jay Bybee’s emails generated during their years at the DOJ Office of Legal Counsel. Both were among the key architects of the torture program.
[24] The bulk of the 2014 SSCI Report (n 3) is still classified. Also, much of the damage caused by the US torture program was to the bilateral relationships with key allies (the United Kingdom, Germany, Italy, and Poland, to cite just a few examples) and to their ability to apply their domestic legal regime to US torture practices that affected them. Much of the evidence of harm in these situations is contained in highly classified diplomatic, military, and intelligence bilateral communications or internal memoranda which, if disclosed, would put at risk that nation’s security relationship with the United States. We don’t really know, for example, how Germany assessed and reacted to the US abduction and torture of one of its citizens, Kalid El-Masri and how it affected the bilateral relationship.
[25] Examples include Vice President Dick Cheney and his chief of staff, David Addington, both key figures in the torture program. Also, MGen Tony Taguba, who conducted the Army’s investigation into Abu Ghraib, has commented that he experienced widespread non-cooperation, deception, and perjury during his investigation. (Conversation with MGen Taguba.)
[26] Philip Zelikow has publicly stated that while serving as Counselor to the State Department (2005-2007) the most acute foreign policy problem facing the United States was not Iraq or Afghanistan, but how to manage the international reaction to US detention policies, including torture. The reason for this, he said, was because our detention policies adversely affected virtually every country in the world.
[27] A personal anecdote illustrates this point. At the 2005 PACOM-sponsored Asia-Pacific Military Law Conference in Singapore, I happened to be the senior US official present. During a break in the conference I was literally cornered by the senior military lawyers of the United Kingdom, Canada, Australia, and New Zealand. Each was in full uniform. What the spokesman told me was that what I needed to know as the senior American present was that—and I’m almost quoting—“their countries’ cooperation with the US across the spectrum of military, intelligence, and law enforcement activities in the war on terror would continue to decrease if we continued to abuse detainees.” Each of these military lawyers would not have spoken without direct instruction from their senior military superiors and they would not have spoken as a group with coordination among the four countries.
[28] In research conducted in the United Kingdom in 2016, a senior former FCO official stated to me that, out of concern that the UK may inadvertently aid and abet the US in what was clearly a pattern of U.S. detainee abuse, the FCO developed a “complicity analysis” by which to screen transmittal of intelligence from the UK to the United States. If the application of the screening criteria led to the determination that the receipt of the intelligence could induce the US to torture someone in captivity, the intelligence was not sent. This resulted, he said, in a sharp drop in the volume of British intelligence forwarded to the US and may have been one of the most important bilateral consequences of US torture policies.
[29] The United States, for example, failed to cooperate with the European Court of Human Rights when it adjudicated the claims of victims tortured in CIA black sites in Poland, Lithuania, and Romania.
[30] It is difficult to concisely express the argument why nations should not torture beyond simply saying it is morally wrong. These three points constitute my best effort to articulate the three main reasons.
[31] Albert Camus, Algerian Chronicles (1958). In the book’s preface, Camus states that while it is sometimes necessary to fight a war, the war must be justified in terms of values. “One must fight for one’s truth while making sure not to kill that truth with the very arms employed to defend it…”.
[32] John F Kennedy, “Acceptance Speech for Democratic Party Nomination for President” (New York City, 14 September 1960). In more recent years, the late Senator John McCain’s frequent statements in opposition to torture and articulating America’s national purpose come closest to echoing Kennedy’s own governing philosophy.