On the Torture Memos

At long last the paper trail authorizing the use of coercive interrogation techniques, to include tortures such as water boarding ( a simulated drowning technique) has been made public. The bottom line is that it reveals that high level Bush administration officials, to include John Ashcroft (Attorney General at the time), John Yoo (Deputy Attorney General), Alberto Gonzalez (White House counsel, later Attorney General) Dick Cheney (Darth Vadar) and Condoleeza Rice (Nurse Ratched), should be indicted for criminal offenses under both US and international law. What is worse, their authorization of criminal acts–no matter how Mr. Yoo’s convoluted legal arguments may wish to paint them as something less than torture and permissible under doctrines of Executive authority anyway–flew in the face of expert opinion that torture is an unreliable method for extracting reliable intelligence and could, in fact, be counter-productive both legally and practically. There are several layers to the story, so I shall briefly run through them.

The techniques used were derived from the SERE school practices. SERE is a program run by the US military to simulate the conditions of a prisoner of war camp in which US aviators and special forces operators might find themselves. It is modeled on 1950s Chinese prison camps. Under controlled conditions, SERE operators subject US personnel to what they admit are “torture techniques” (such as water boarding) in order to teach the US personnel how to resist coercive interrogations. Thus, the Bush White House and Justice department took techniques that were capable of being overcome by determined prisoner resistance and authorized their use, without fully exploring their history or the controlled circumstances of their SERE application, on suspected jihadis whose idea of glory comes in the form of martyrdom. Not to put too fine a point on it, but that is just arse-backwards.

In fact, once SERE camp administrators heard of the (mis) application in 2002 they wrote memos to the Defence Department protesting against the use of SERE techniques. They explicitly warned about the unreliability of the confessions extracted and the risk of accidental death. These memos were ignored by the Rumsfeld cronies who ran the Pentagon at the time and were apparently never passed onto the White House and Justice Department (or if they were, they were ignored). What is important to note is that the people who pushed for the use of these techniques were Republican ideologues who had no actual experience with interrogations. Most interrogators are US military counter-intelligence personnel, who are fully aware of the legal and practical pitfalls of using torture to extract confessions. These include the unreliability of the information extracted, the uselessness of such information for strategic intelligence purposes, the problems of garnering actionable information from atomized cells in a decentralized guerrilla network like al-Qaeda–in other words, the complete disutility of using SERE-type techniques for anything other than immediate tactical purposes (if that). Since these forms of punishment were being meted out in “black sites”  thousands of miles away from the battlefields of Iraq (Abu Ghraib was more of a test case rather than a systematic application of the Yoo doctrine) and Afghanistan (although the prison at Bahgram Air Force Base outside of Kabul is reported to contain a “black site’), or in Guatanamo, even the tactical intelligence obtained was mostly unactionable. Hence, professional interrogators such as Special Forces counter-intelligence officers did not conduct the interrogations, but instead were replaced by CIA operatives or private contractors. The can of worms that opens almost defies belief.

In a nutshell:  the Bush administration authorized unproven and unreliable torture techniques against the advice of those who were best informed about the use and results of those methods, then replaced seasoned interrogators with civilians and private contractors to do the dirty work. Presumably this was to gain some of distance on any potential legal repercussions down the road. When one looks at the results of the Abu Ghraib case, where two enlisted soldiers served short jail sentences, two field officers were reprimanded and demoted and one flag rank officer demoted and  forced to retire, it easy to see how Bush administration officials believed that they would never be held responsible for anything that happened in the “black sites.”

Bush administration defenders claim that the coercive interrogation program obtained results in the form of preventing terrorist attacks but are unable or unwilling to offer a single instance of such a success. They claim that revealing the torture memos jeopardizes current and future intelligence operations and demoralizes the CIA. The answer to these claims (other than to laugh when Dick Cheney makes them), is to say 1) provide a single shred of evidence that an attack was prevented by the use of waterboarding and other forms of torture; 2) prove that any information obtained that was useful could not have been obtained using other (non-torture) techniques. Let us be clear: getting the names of other cell members, or of liaison contacts, or of the early outlines of a terrorist plot is not “actionable” intelligence that could not have been obtained by other means (say, by good human intelligence in the field). Arresting some of the Guantanamo detainees was enough to disrupt the most grandiose of al-Qaeda plots, so once their role was ascertained and their backwards linkages traced, use of torture was just vengeance, not intelligence-gathering. If the claim is going to be made that the use of terror was efficient, i.e., that it actually prevented an imminent attack, then it needs to be supported with proof. After all, the “informants” are not going anywhere so need not fear retribution and whatever intelligence penetration of terrorist networks has occurred should not be vulnerable to exposure if the truth of the matter is revealed (otherwise it is simply shoddy workmanship on the part of US intelligence and its allies).

The best way to verify such claims is to grant immunity to interrogators and lower-level CIA and military officials who oversaw coercive interrogations in  order to find out not only whether the techniques were as necessary as the Bush defenders say there were, as well as their results. More importantly, the main purpose of the grants of immunity is to determine the chain of command responsible for authorizing the use of torture, and on what grounds. The last point is important because as it stands, the Bush administration will hide under the doctrine of “plausible deniability” where subordinates get blamed for the physical acts but no evidentiary link can be conclusively made to the orders of high level officials. That deception can be countered with a “due obedience” approach whereby legal immunity to lower-ranked officials is exchanged for their testimony on who gave the orders and how did they do so (as well as how they tried to conceal those orders).  That is the key to getting indictments of Bush administration officials. John Yoo and his chief lieutenants, in particular (the former now happily ensconced as a Law Professor at UC Berkeley, of all places, the latter now anxiously realizing that private legal practice does not afford them any cover in the face of a federal indictment), need to be held to account because they apparently took an untoward interest in specific techniques and were the keenest to authorize their use. Getting these toadies to turn under the threat of imprisonment could in turn be the key to finding out what exact roles were played by Cheney, Bush and Rice in opening the Pandora’s box embedded in the torture memos.

Of course, being a cautious and pragmatic person, Barack Obama may pull the plug on any prosecutions in the interest of political security (his own and of the Democratic Party). If so, it will be up to the International Criminal Court to seek the truth of the matter, so that even those who rule a seemingly unassailable superpower realise that they too are not above basic standards of human rights and international justice. I shall not hold my breath waiting for either to happen. What is certain is that, until something dramatically different is revealed to counter what is known so far,  from a moral-ethical as well as an efficiency-practical standpoint, the US use of torture in the fight against terrorism has been a failure more than a success.

14 thoughts on “On the Torture Memos

  1. There is so much that is disturbing, but this for me encapsulates a lot of it…

    “There were two reasons why these interrogations were so persistent, and why extreme methods were used,” the former senior intelligence official said on condition of anonymity because of the issue’s sensitivity.

    “The main one is that everyone was worried about some kind of follow-up attack (after 9/11). But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there.”

    It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly — Abu Zubaydah at least 83 times in August 2002 and Khalid Sheik Muhammed 183 times in March 2003 — according to a newly released Justice Department document.

    “There was constant pressure on the intelligence agencies and the interrogators to do whatever it took to get that information out of the detainees, especially the few high-value ones we had, and when people kept coming up empty, they were told by Cheney’s and Rumsfeld’s people to push harder,” he continued.

    “Cheney’s and Rumsfeld’s people were told repeatedly, by CIA . . . and by others, that there wasn’t any reliable intelligence that pointed to operational ties between bin Laden and Saddam, and that no such ties were likely because the two were fundamentally enemies, not allies.”

    Senior administration officials, however, “blew that off and kept insisting that we’d overlooked something, that the interrogators weren’t pushing hard enough, that there had to be something more we could do to get that information,” he said


    say’s it all doesn’t it?

    Once you start with the torture it becomes either an end to itself, or a political tool. It is rarely if ever about actionable intelligence. The SERE program was based on methods used by the Chinese to elicit false confessions, and here we have Cheney et al using it to get the ‘evidence’ they needed to justify Iraq.

    Whether it was true or not was secondary. They already believed they knew the truth, ( or the ‘truth’ they needed) so if the confessions weren’t fitting in with that truth, the interrogations obviously weren’t ‘enhanced’ enough.

    And so you end up waterboarding someone 183 times in a month.

    Here’s Cheney in September 03

    Nonetheless, Cheney, in the “Meet the Press” interview Sunday, insisted that the United States is learning more about the links between Al Qaeda and Hussein.

    “We learn more and more that there was a relationship between Iraq and Al Qaeda that stretched back through most of the decade of the ’90s,” Cheney said, “that it involved training, for example, on [biological and chemical weapons], that Al Qaeda sent personnel to Baghdad to get trained on the systems.”

    The claims are based on a prewar allegation by a “senior terrorist operative,” who said he overheard an Al Qaeda agent speak of a mission to seek biological or chemical weapons training in Iraq, according to Secretary of State Colin Powell’s statement to the United Nations in February.

    Again from the first link…

    It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly — Abu Zubaydah at least 83 times in August 2002 and Khalid Sheik Muhammed 183 times in March 2003 — according to a newly released Justice Department document.

    on a slightly lighter note, here’s a fox news anchor, of all things…


  2. In an alleged democracy, doesn’t it go right up to the resident and then out to the 50% of the US population that voted him in?

  3. …Barack Obama may pull the plug on any prosecutions…

    technically Obama can’t determine who does or doesn’t get prosecuted. That’s the role of the Attorney General. Imagine if our PM could choose to have prosecutions brought against opposition MPs.

    But the Attorney General is an Obama appointee. So I don’t think Obama is going to go there. At most there might be some sort of Congressional enquiry.

  4. Toture is a crime against common sense, common decency and common law. The problem with your argument as I read it Pablo is you seem to believe that evidence of torture being useful in preventing an attack would constitute a legitimisation of it’s use.

    I would reject that absolutely.

    To use a quote from Sir William Holdsworth (A History of English Law, vol 5, 3rd ed (1945)) and quoted again by the Law Lords in 2005 in their landmark condemnation of torture:

    “We have seen that the use of torture, though illegal by the common law, was justified by virtue of the extraordinary power of the crown which could, in times of emergency, override the common law. We shall see that Coke in the earlier part of his career admitted the existence of this extraordinary power. He therefore saw no objection to the use of torture thus authorized. But we shall see that his views as to the existence of this extraordinary power changed, when the constitutional controversies of the seventeenth century had made it clear that the existence of any extraordinary power in the crown was incompatible with the liberty of the subject. It is not surprising therefore, that, in his later works, he states broadly that all torture is illegal. It always had been illegal by the common law, and the authority under which it had been supposed to be legalized he now denied. When we consider the revolting brutality of the continental criminal procedure, when we remember that this brutality was sometimes practised in England by the authority of the extraordinary power of the crown, we cannot but agree that this single result of the rejection of any authority other than that of the common law is almost the most valuable of the many consequences of that rejection. Torture was not indeed practised so systematically in England as on the continent; but the fact that it was possible to have recourse to it, the fact that the most powerful court in the land sanctioned it, was bound sooner or later to have a demoralising effect upon all those who had prisoners in their power. Once torture has become acclimatized in a legal system it spreads like an infectious disease. It saves the labour of investigation. It hardens and brutalizes those who have become accustomed to use it.”

    I hope you forgive this extensive quote, but it is the best and most ringing condemnation of torture (and defence of our liberties) I know.

    Bush and Cheney will not be held to account by Obama. The United States is to militarised a state for him to be able to do that. It would simply be his death warrant, literally. But what will happen is judges across the world will issue arrest warrants for Bush, Cheney, etc etc… And they will never be able to travel abroad again for fear of arrest, perhaps to suffer the fate of Pinochet as they are hunted to their dying day.

  5. Neil: I am aware of the chain of command and just chose to state the obvious that any call on prosecutions would ultimately be made in the Oval Office. The mouthpiece for the call will, as you note, be the AG. I will be surprised if the mouth piece announces anything significant, although some of Yoo’s aides might be targeted.

    TomS. I was merely pointing out that on utilitarian as well as humanitarian grounds the defence of torture in this instance falls short.

    PB: That is precisely why Cheney and co. need to be prosecuted. As I said in the post, this was about revenge, not intelligence gathering. In fact, one can see the use of extreme interrogation methods as a tacit admission of intelligence failure elsewhere. That tells us all we need to know about the state of US intelligence collection during the period this was going on (2002-2005).

  6. The President can choose to pardon anybody, ending any prosecution, or indeed removing a conviction. (probably forever, although there’s nothing in the US constitution that says a pardon can’t be rescinded).

    Also, the A-G could (I think) appoint an independent counsel, or Congress could create a special prosecutor.

  7. One thing I forgot to mention is that a utilitarian justification for torture would be time-sensitivity. That is, torture is the ONLY way to get information about a “ticking bomb” about to go off, all other options having been exhausted. That clearly was not the case here, no matter what the apologists argue.

  8. I don’t find the “ticking bomb” scenarios all that useful, in that they require a lot of unlikely things to be true in order to be convincing. ie, that you already know for certain that there is a bomb, that your prisoner has the info you need to stop it, that you must torture them to get the info, that the prisoner won’t give you pre-prepared disinformation mixed in with the truth, and that you will have time to stop the ticking.

    The argument is dishonest in that it seems to say that if those conditions justify torture, then torture is therefore a viable policy option, or should be legal or whatever. Like you say it is for this case, it’s misdirection almost everytime it gets brought up.

    I would say that if there was such a scenario (unlikely) then an interrogator might be morally justified in using torture, but that does not imply that torture should be policy or legal. An interrogator could be morally justified in breaking that law, and facing the consequences of that law breaking.

    If it is to be policy, then it will inevitably used when there is only suspicion, rather than knowledge, of the ticking bomb. Which is the sort of scenario apologists usually have in mind.

    I, (and I suspect you), am not in favour of giving them an inch.

    Another point is that the debate should not be about when is torture morally justified if ever, or what is torture; but rather what is and should be legal.

    In the current case, the memo’s argue that certain things are not torture, even though when other nations do it, it is, and that the US has tried convicted and punished with hard labour and even death, people that have done the exact same things. Given that those memos do not take those precedents from WWII and Vietnam into account, then surely they are bad opinions. I don’t really see how I could rely on them, in good faith.

  9. PB: To which I agree, completely. Geez, I must be getting a bit thick in my advancing age if that was not clear from the onset.

  10. No, I took your meaning I think. I didn’t think you were saying that if it had been a ticking bomb we should just move on…

    I’ve just been watching and reading too many media folks running with too many side tracking arguments over the last few days, “does it work”, “did it save lives” and so on.

    I needed to get it off my chest that the direct issue at hand is “Was it legal?, what do we do about that?”, and you gave me the perfect foil.

    Thanks :)

  11. Of course, even by the limited Bybee/Yoo definition of “torture”, this crime was clearly committed by US military and contractors at Bagram and Abu Ghraib, in that detainees did die under brutal interrogation and thus did indeed suffer “pain equivalent to organ failure and death”.
    The official cause of death was listed as “homicide”, but i am unaware of any courts martial arising.

  12. RobT: The deeds were done and authorized at the highest levels of the US government as a matter of national security. Whether the justification is true or not (I think not), the acts were illegal under US and international law. So the question is not the b.s justification of Yoo and his buttock-licking subordinates, but whether Obama has the gonads to pick a partisan fight in the middle of all his other issues in order to prove that no one in the USG is above the rule of law. As I said above, I am not holding my breath on that one. But then again–do you think that things would be much different in NZ? My experience tells me that abuses of authority in NZ are the norm, not the exception…

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  14. Pingback: Kiwipolitico » Blog Archive » Repost: The torture-terror doctrine.

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