The CIA Inspector General’s Report as a Rorschach test

You may also like...

3 Responses

  1. 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

  2. John Ip says:

    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.

  3. ohwilleke says:

    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.