Various Circles of Hell

Various Circles of Hell

Jack L. B. Gohn

 

            Because of the agonizingly slow leakage of information concerning the previous administration’s practices of internment and interrogation of Muslim men, it is only recently that the Central Intelligence Agency component has come into focus.

 

            When the Abu Ghraib photos were first leaked to a stunned world, the explanations that accompanied and followed them largely related to activities more or less under Department of Defense jurisdiction.  We now know that the “techniques” on display there had been by approved in writing by Secretary of Defense Donald Rumsfeld on December 2, 2002 and again on April 16, 2003.[Note 1] 

 

            It later emerged, however, that there were a separate group of “high-value detainees” under CIA jurisdiction.  As much to keep them out of the grips of the FBI and military intelligence as to “disappear” them (the “War on Terror” not being immune to turf battles),[Note 2]  the high-value detainees had been held in a chain of secret prisons in countries like Poland and Thailand.  And their ordeals, by contrast, had been carefully thought through and planned out, and had a different flavor. 

 

            In the past three weeks we have come into possession of three very separate bodies of data on the CIA interrogation regime.  One comes from the detainees themselves, courtesy of a leaked long-suppressed International Committee of the Red Cross summary of their accounts.[Note 3]   Another comes from the CIA theoreticians in the form of four Office of Legal Counsel opinions on the subject, three of them by a hitherto obscure Office of Legal Counsel lawyer named Steven Bradbury, the fourth by Jay Bybee, now of the 9th Circuit Court of Appeals.  The third is a Senate Armed Services Committee report, released April 22.  One might expect these perspectives to differ, but the picture they paint is amazingly homogeneous.  The CIA detainees went through hell thanks to the interrogation techniques described in both sources, but it is a different circle of hell from that endured by the general populations at Abu Ghraib and Guantanamo.  Perhaps a better class of hell in some ways, a worse one in others.

 

            As little controversy as the new sources leave as to what happened, they have nonetheless touched off a firestorm over the larger questions whether the memos, and by extension all of the other data relating to the CIA and DOD interrogations, should have been released, and whether the behavior they reveal should be punished.

 

            Michael Hayden, former Director of Central Intelligence, and Michael Mukasey, former Attorney General, have deplored the release of the CIA documents in a major op-ed piece carried in the April 17, 2009 Wall Street Journal.  And there they try to pre-empt critics like me by observing that “Disclosure of the techniques is likely to be met by faux outrage.”  So I shall attempt to avoid expressing outrage, since Hayden, Mukasey and those who think like them are primed to dismiss all outrage as “faux.”  In addition, I shall try to give the devils their due, by conceding most of Hayden and Mukasey’s premises and treating their arguments with respect.

 

            The Red Cross and the memos alike reflect that the CIA planned to and did use a list of “interrogation techniques”:  dietary manipulation to create bland, low calorie meals; forced nudity; the “attention grasp” which draws an individual toward the interrogator by the lapels; slamming the subject into a wall; holding the subject’s head immobile during interrogation; slapping the face; slapping the abdomen; locking an individual inside a cramped space for as much as 8 hours at a time, 18 hours in a day; forcing the subject to stand facing a wall; “stress positions” to “induce temporary muscle fatigue”; dousing the detainee with cold water; sleep deprivation for up to 11 days; and waterboarding.  These techniques would be used on subjects day after day, in combination, or separately.

 

            To be sure, as the Bradbury and Bybee memos reflect, the CIA professed to plan using these techniques in ways that might inflict less pain or injury than fear.  For instance, when the subject was slammed into a wall, it was to be a specially-built wall that would injure little but would make a tremendous sound when the subject was forced into it.  And if a waterboarded subject appeared to be vomiting, there would be a physician standing by to perform a tracheotomy.  In theory, with all the various provisos and protocols, these techniques would march right up to the edge of torture within the meaning of the prohibitions against torture in U.S. statutes and/or treaty obligations – without stepping over the boundary.

 

            However, the practice undeniably slid over the edge.  Here is how torture expert Mark Danner summed up part of terrorist Abu Zubaydah’s ordeal under these techniques:

 

A naked man chained in a small, very cold, very white room is for several days strapped to a bed, then for several weeks shackled to a chair, bathed unceasingly in white light, bombarded constantly with loud sound, deprived of food; and whenever, despite cold, light, noise, hunger, the hours and days force his eyelids down, cold water is sprayed in his face to force them up. [Note 3]

 

Enough said.

 

            In the totality of these circumstances, this was torture.  The convening authority of the Guantanamo military commissions under President Bush admitted it was torture.  The International Committee of the Red Cross states in its hitherto-suppressed memo that this is torture – and the ICRC is the body directly charged with assuring compliance by the Geneva Convention signatories with treaty prohibitions against torture.

 

            Should the memos sanctioning CIA torture have been released?  The general outlines of the CIA program became generally known when the ICRC memo was finally leaked.  The only truly new material here was the details of how the CIA claimed to be trying to pull punches so that detainees would be more frightened than harmed.

 

            Hayden and Mukasey acknowledge that President Obama has disavowed all of these techniques in favor of those set out in the Army Field Manual.  But they point out that al Quaeda trains its fighters on how to beat Army Field Manual interrogation, and now they will know some useful things about how to beat these new techniques if some future administration tries to revive them.  (For instance, knowing that the wall you are slammed into has more bark than bite may fortify you during the slamming.  But note: To credit accounts in the ICRC report, many of the walls used in practice were probably ordinary walls.)  Hayden and Mukasey argue that Obama has in effect ruined these techniques for any future administration.  That surely overstates the case; perhaps these techniques would be somewhat less effective – but ruined?  Wouldn’t waterboarding still be pretty persuasive?

 

            Perhaps more tellingly, Hayden and Mukasey assert (following a claim in one of the memos) that these techniques sometimes led to actionable intelligence.  The claims in both sources are circumspectly worded, but if they mean what they seem to mean and are believed, it would appear that torture of Khalid Sheik Mohammed led indirectly to the foiling of the plot to blow up airliners over the Pacific, and that torture of Zubaydah yielded identification of Mohammed as the mastermind of 9/11 and provided significant aid in capturing him.  Remarkably, former Vice President Dick Cheney has demanded release of documents supposedly establishing these benefits of torture.

 

            In short, torture is claimed to have saved many lives.  This is dubious.  For instance, Ali Soufan, an FBI interrogator who participated in the early interrogation of Zubaydah, says that the significant information claimed to have been the fruits of torturing Zubaydah actually came from conventional interrogation that preceded the torture.[Note 5]  Too early to call this one; with all we now know about techniques, far too little is known for certain about the content of the torture interrogations. 

 

            But let us take the claim of torture’s efficacy at and maybe beyond full face value.  Yet then let us remind ourselves that it is torture we are talking about – something expressly forbidden by domestic and international law alike, and by conscience.  The heart of all of the Bush Administration legal memos is the stance that law must always be interpreted to yield to national security and conscience must be bent to do the same.  This argument was wrapped by master Bush Administration theoretician John Yoo in the mantle of presidential war powers, but it boils down to the same thing.  So here is the dilemma: You put law and our principles on one side, and national security on the other: which should prevail?  Yoo and Bradbury say national security, but I say they are wrong.

 

            Bearing in mind that torturing terrorists arguably saved lives, maybe thousands of them, and acknowledging that it is easy enough for me to say, not being one who has been victimized by terrorists or lost a loved one to terrorism, I still take my stance with the law and our principles.  No matter the cost, which may indeed be excruciatingly high and which I pray I am never personally called upon to pay, I say that our country should never, ever again engage in torture.  Period.  We should not do it because survival can come at too high a price.  If we lose our commitment to law, if we sacrifice our consciences in such a fundamental way, then there is little point in saving ourselves.

 

            And there are other reasons.  The warriors of the previous Administration (including Hayden and Mukasey in their op-ed) always sneer when it is suggested that our adversaries can be charmed or shamed into better behavior by our treating them with respect or obeying laws that protect them.  Over the short term, I agree.  But a little patience is required.  American humility and observing legal prohibitions will make us friends over the long haul.  Besides, if we torture al Quaeda’s fighters, we can expect no leverage with crucial third parties when al Quaeda’s friends torture our soldiers.  The Geneva Conventions are there to protect us too.

 

            Accordingly, Hayden and Mukasey’s argument that this trove of torture techniques is a weapon whose potential for reinstatement in our arsenal should be preserved seems just wrong to me.  I doubt the ruination, but, if ruination there be, so much the better.

 

            Disclosure in this instance had an additional salutary effect: it complied with the Freedom of Information Act.  That could be another column unto itself.  I will content myself here with observing that it is refreshing to see the Executive Branch complying with FOIA even when compliance may be awkward.  FOIA should be honestly administered.  It is dishonest to resist disclosure because of fear of embarrassment or fear of giving ammunition to the political opposition.  In releasing these memos, the Obama administration passed an important test.

 

            Of course, the other main reason Hayden and Mukasey argue against release is that it tends to facilitate sanctions against the theoreticians and the torturers and the people who directed the torture.  I’ll respond to those arguments next time.

 [Note 1] Senate Foreign Relations Committee report at xix and xxii.

 [Note 2] See James Risen, State of War at 28-30 (2006).

 [Note 3] http://www.nybooks.com/icrc-report.pdf.

 [Note 4] http://www.nybooks.com/articles/22530.

 [Note 5] Ali Soufan, My Tortured Decision, New York Times April 23, 2009.


 

Copyright (c) Jack L. B. Gohn


Leave a Reply