The CIA Inspector General’s Report as a Rorschach test
posted by John Ip
I was a little surprised to see an op-ed article entitled “Torture justifiable in some cases” appear in the New Zealand Herald last week (alas, by default, New Zealand’s paper of record). The blunt, utilitarian thrust of the piece, by Australian law professor Mirko Bagaric, is predictable from its title. Professor Bagaric claims that life-saving torture is morally justifiable, and that we should reconsider the legal prohibition on torture because it is likely that the CIA’s use of torture ‘did save thousands of lives’.
His empirical claim essentially echoes former Vice President Cheney, who has repeatedly claimed that the CIA’s EITs (enhanced interrogation techniques – read torture, or at the very least, illegal cruel, inhuman or degrading treatment) were necessary and effective, and saved lives. When several notable Bush-era torture memos were disclosed in April this year, Cheney made these claims again, and added that there were documents that, if disclosed, would vindicate his position . Documents that appear to be those Cheney was referring to have now been disclosed, but they do not appear to substantiate Cheney’s claims. High value al Qaeda detainees held by the United States certainly did provide information. But even if we assume that some/most/all of that information was relevant and true, this does not demonstrate that the EITs were effective (or colloquially, that torture works). Does the CIA Inspector General’s Report, also recently disclosed, have anything to say about the matter?
At paragraph 211, the Inspector General (IG) observes that the CIA’s program has been successful from the standpoint of incapacitating certain terrorists, but that ‘[m]easuring the effectiveness of EITs, however, is a more subejctive process and not without some concern.’ In subsequent paragraphs, the IG’s report states that many of the intelligence reports generated between the 9/11 attacks and April 2003 came from ‘intelligence provided by the high value detainees’, and that ‘[d]etainees have provided information on Al-Qa’ida and other terrorist groups’. This included information leading to the identification of terrorist operatives, and information about terrorist plots – although there was no evidence that these plots were imminent.
At paragraphs 222-225, the IG’s report discusses the treatment of three particular detainees. It notes that Abu Zubaydah was waterboarded multiple times, but that ‘[i]t is not possible to say definitively that the waterboard is the reason for Abu Zubaydah’s increased production’. The report states at the end of paragraph 224 that Al-Nashiri was subject to various EITs, and subsequently ‘provided information about his most current operational planning and [redacted] as opposed to the historical information he provided before the use of EITs.’ The very beginning of paragraph 225 states that ‘[o]n the other hand, Khalid Shaykh Muhammad . . . provided only a few intelligence reports prior to the use of the waterboard, and analysis of that information revealed that much of it was outdated, inaccurate, or incomplete.’ The report then notes that Khalid Shaykh Muhammad was waterboarded 183 times in March 2003. The rest of the paragraph is redacted.
What is to be made of this? The report does not express a clear view of the efficacy of the EITs. It seems to suggest that the EITs were effective on Al-Nashiri, although presumably, as with Abu Zubaydah, it would be difficult to show definitely that the EITs were the cause of increased cooperation. Also, does the fact that the paragraph following begins with ‘On the other hand’ suggest that waterboarding did not work on Khalid Shaykh Muhammad? There is no way to be sure about this given that the back half of the paragraph is entirely redacted. (Indeed, the IG’s report is in parts very heavily redacted, so it is theoretically possible (if unlikely) that the redacted portions happen to be the parts that completely vindicate the Cheney position.)
Which brings me to the title of my post. It seems quite possible for people on either side of the torture debate to look into the report, and conclude that it reinforces whatever view that they already held about torture, and more specifically, the efficacy of torture. The reason why there is such a contest over the efficacy of torture, of course, is that it obviates the need to deal with the moral question, about which there may be disagreement. If torture doesn’t work (by this I mean elicit truthful information), then there is no practical reason to use it. And so begins the battle of the anecdotes – a seemingly inevitable consequence given the impossibility of a controlled study into the matter.
Professor Bagaric, for example, asserts that there is a wealth of evidence that suggests that torture works. He cites two examples. The first is the claim of Israeli authorities that they foiled ninety terrorist attacks ‘by using coercive interrogation’. This example is presumably derived from a report submitted by Israel under article 19 of the Convention Against Torture. At paragraph 24, it is stated that ‘as a result of GSS investigations of terrorist organizations’ activists during the last two years, some 90 planned terrorist attacks have been foiled.’ Were the 90 planned attacks foiled substantially through the use of torture? Perhaps, but it is hard to know for sure.
The second example cited by Professor Bagaric is former CIA interrogator John Kiriakou’s account of the interrogation of Abu Zubaydah: ‘Kiriakou says the technique known as waterboarding broke Zubaydah in less than 35 seconds. The agent says he has no doubt that the information provided by Zubaydah “stopped terror attacks and saved lives”.’ There are a number of reasons to be dubious of these claims. As noted, the IG’s report does not conclude that Zubaydah began talking because of the torture. And if Zubaydah was broken after a mere 35 seconds – a la 24 – why was it necessary to waterboard him 83 times (as noted in paragraph 223 of the IG’s report)? Additionally, we have information about Abu Zubaydah’s interrogation from one of his interrogators, FBI agent Ali Soufan. Soufan confirms that much of the actionable intelligence that came from Zubaydah was gained without the use of torture or coercion.
In the end, it is difficult to maintain the oft-repeated position that torture is pointless because in all cases the victim will say anything to make the torture stop. This is a problem endemic to any universal claim. The claim that “all sheep are white” is falsified once someone discovers a black one. Similarly, it is hard to refute every example put forward by advocates of interrogational torture. This is particularly so given the secrecy typically surrounding such events (although, at the same time, we shouldn’t be too credulous of secretive and possibly self serving accounts about the efficacy of torture).
Moreover, the debate over efficacy is only a part of the picture. First, the issue isn’t really torture’s effectiveness in eliciting the truth, but rather its effectiveness in eliciting the truth relative to other non-coercive techniques. Paragraph 250 of the IG’s report expresses uncertaintly on this point: ‘The CTC Detention and Interrogation Program has resulted in the issuance of thousands of individual intelligence reports and analytic products supporting the counterterrorism efforts of U.S. policymakers and military commanders. The effectiveness of particular interrogation techniques in eliciting information that might not otherwise have been obtained cannot be so easily measured, however.’ Soufan on the other hand suggests that torture is relatively ineffective next to traditional non-coercive interrogation techniques.
Second, even if we accept that torture might sometimes be more effective in eliciting truth than non-coercive interrogation techniques, it does not follow that the legal prohibition on torture should be reconsidered unless the relative inefficacy of torture was the only reason one had for opposing its use. And as I have discussed elsewhere, there are other good reasons for opposing proposals to legalise torture.
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September 13, 2009 at 9:02 pm
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Responses (3)
Patrick S. O'Donnell - September 13, 2009 at 11:12 pm
John,
Re: “the issue isn’t really torture’s effectiveness in eliciting the truth, but rather its effectiveness in eliciting the truth relative to other non-coercive techniques.”
In Public Committee Against Torture in Israel v. State of Israel and Others ([HC 5100/94...] Supreme Court of Israel, 7 BHRC 31, 6 September 1999), even the Israeli Supreme Court for once (cf. David Kretzmer’s The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, 2002) got things right, as it did not recognize a “necessity” justification (the extreme exemplum: the ticking bomb scenario) for torture although, wrongly I think, it left open the principle of necessity as an “exceptional post factum defense.” The Court specifically mentioned the fact that it was not clear that other, non-coercive methods, might not have discovered the information elicited that was claimed to have thwarted a terrorist attack. In Larry May’s words, “Here, the Court prohibits all forms of torture and other forms of physical violence because they simply are not consistent with a society that values human dignity and in any event do not advance the goals of interrogation that cannot be obtained by other means.
In addition to your paper, David Luban has discussed these issues in some depth in several articles (see bibliography below). I would also recommend these two works:
Brecher, Bob. Torture and the Ticking Bomb. Malden, MA: Blackwell, 2007. See too C.A.J. Coady’s review for Notre Dame Philosophical Reviews, 2009.02.09. Available: http://ndpr.nd.edu/review.cfm?id=1538
Ginbar, Yuval. Why Not Torture Terrorists? Moral, Practical and Legal Aspects of the ‘Ticking Bomb’ Justification of Torture. New York: Oxford University Press, 2009.
A select bibliography on the “moral, legal and political dimensions” of the torture question is available at the Ratio Juris blog (which includes John’s paper):
http://ratiojuris.blogspot.com/2009/04/torture-moral-legal-political.html
John Ip - September 17, 2009 at 3:02 pm
Patrick – thanks for the reference to the PCATI decision, and also the sources you mentioned. I am familiar with and think highly of David Luban’s work in this area. I also have Ginbar’s book, which is the most comprehensive resource on the Israeli example that I am aware of (in English at least). I will check out the Brecher book, which has also been recommended to me by others.
ohwilleke - September 23, 2009 at 10:38 pm
The biggest counterargument to any gains achieved by U.S. use of torture is that troops in Iraq have indicated that a large share of the most deadly foreign fighter attacks and suicide bombings used in Iraq were motivated by the fact that the U.S. is a nation that uses torture and holds suspected enemies degrading conditions.
Even if torture provides some information that other means had not (and the evidence to support this claim is questionable on multiple fronts), and that information saves lives, we still have to ask if that makes up for the thousands of lives that were lost due to this approach.
The kind of analysis Cheney and Bararic try to make considers tactical advantage to the complete exclusion of strategic concerns.
Also, by insisting on complete confidentiality, Bush and Cheney forfeited the opportunity to let the American public know that their most controversial programs were much smaller in scale than many supporters and opponents of these programs had believed. The documents coming out now appear to show that the number of people tortured by the most extreme means probably didn’t number more than dozens, and that the number of suspected terrorists held in secret foreign prisons probably didn’t number more than hundreds.
Nor were the criteria that distinguished those subjected to torture from those who were not, and those who were put in secret prisons from those who were not every clearly identified (and indeed, those criteria remain obscure) although clearly there were some fairly limiting criteria used, given the numbers involved.
These methods would have been far less explosive domestically and abroad, with minimial operational impact, if George W. Bush had gone on TV when the program started and said, something along the lines of:
“We have used some extreme methods to deal with terrorism. In fewer than seven hundred cases where witnesses, wiretaps, video evidence and seized documents have shown direct connection to and knowledge of the workings organizations that we know have killed Americans in terrorist attacks in the past, and in fewer than thirty cases where multiple unrelated direct sources of evidence show that these are senior leaders of these organizations likely to have detailed knowledge of current plots to kill Americans and every reasonable effort has been made to secure intelligence by other means we have used extreme interrogation methods. A CIA director, the Secretary of Defense, the Secretary of State and I personally have reviewed every single one of those dossiers and reached consensus before authorizing these extreme methods. I have never authorized the killing of any detainee without a public court martial or criminal trial, and every CIA or military employee who was responsible when in two cases a detainee died in custody has faced serious consequences as a result. And, I have provided every member of the Select Committee on Intelligence with dossiers of a representative sampling of those detained in secret prisons and a full dossier in advance on every single case where extreme interrogation methods have been proposed. We have carefully tracked the results that this information has produced. Information obtained by these methods has so far has prevented at least forty-five terrorist attacks that could have killed dozens or even hundreds of lives each. These methods are legal and I am posting on the Internet an opinion of the Office of Legal Counsel that supports this position.”
I would still have opposed it, and I suspect that many people of good conscience would have agreed. But, that level of detail of disclosure would have focused the debate tremendously, and would have elminated the fear that the U.S. Supreme Court articulated when it made clear that the Executive branch does not have a blank check to do anything it wants without supervision under its war powers.
I also suspect that if the President had been required to truthfully publicly articulate the nature of these programs in a statement with that level of detail that more formal abuse preventing nuanes of the type that my sample speech suggests (which would have been practically feasible) would have been implemented.
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