Terror just before death,
Shoulders torn, shot
From helicopters, the boy
Tortured with the telephone generator,
‘I felt sorry for him
And blew his head off with a shotgun.’

Robert Bly.[1]

[Let’s give credit where it’s due. We had no intention to do another blog on torture any time soon; the subject is disheartening and we’re sick of it. But there’s a new study out, by a think tank that bills itself as non-partisan, which basically summarizes much of what we know to date, and, mirabile visu, relies on documents in the public domain, not on the private or secret knowledge that so many pundits on the Right seem to have.

And what does it conclude? Why, that we really did torture people over the last ten years, and top officials in our Government were responsible for it.[2] Also, “[t]here is no firm or persuasive evidence that the widespread use of harsh interrogation techniques by U.S. forces produced significant information of value.”[3]

Larry’s done the heavy lifting on this subject for the last three years, so I asked him to come back for an encore and discuss the latest findings. Will anybody pay attention to this expose? We’ve had them before[4], but still lots of pundits seem to think that we did the right thing. Especially the ones on AM Talk Radio.]

“I can’t answer that question, G, but I can tell you about the new report. It’s called the Report of the Constitution Project’s Task Force on Detainee Treatment, and it’s available as a free download. [5] So don’t let anybody charge you for a copy. The Task Force was made up of former high-ranking government officials from both political parties. It was co-chaired by Asa Hutchinson, a prominent conservative and official of the Bush Administration, and James R. Jones, U.S. Ambassador to Mexico under President Clinton.[6] On paper, anyway, the team’s experience and bi-partisan credentials are well established.”[7]

“Fine, but we don’t have the time or space to discuss the whole report. After all, it’s over 550 pages. So let’s try to focus on two questions. Were our actions legal, and were they effective?”

“I can’t give a hard and fast answer to either question. I suppose there are two sides to almost every story, and that’s especially true when it comes to legal arguments. But it seems pretty clear that, in the early years following September 11, 2001, the Bush Administration decided to push the limits of acceptable conduct as much as possible. The Task Force found that the Administration did this with the support and sanction of elements within the Justice Department.[8]

However, it’s also clear that many lawyers in the Government, especially in DOD, did not agree[9] and, after a series of stunning disclosures in Guantanamo and Abu Ghraib, the Army revised its guidance in 2006 to prohibit many of the practices DOJ apparently had sanctioned.[10] The revised Army Manual became the standard that all DOD components followed.[11]

“So the problem was solved, right? New standards came into being, and everybody followed them. Right?”

“Not exactly. While DOD was officially out of the torture game as of 2006, it didn’t control all the US actors in the Middle East. The CIA, for one, was an early adopter of harsh interrogation. In 2001 it retained two retired Air Force psychologists to develop basic techniques for inducing a form of “learned helplessness” in prisoners, so that they would become more amenable to disclosing secrets, etc.[12] The Task Force found that the CIA used, and continued to use similar  techniques on prisoners for years thereafter.[13]

Generally CIA prisoners were interrogated in “Black Sites” maintained in other countries, usually with the cooperation of local intelligence services. Over time the CIA established “Black Sites” in Afghanistan, Iraq, Thailand, Poland, Romania, Lithuania, Morocco, Kosovo, Djibouti and Somalia.[14] Presumably all of this activity stopped after President Obama issued Executive Order 13491, Ensuring Lawful Interrogations. [15] That one ordered all agencies that had prisoners in the War on Terror to follow the Army rules when interrogating them, and specifically directed the CIA to close down its facilities.”

“That’s interesting, Larry, but what about my second question?  Granted there were legal problems with what the Bush people did, but were their actions effective? Did they make us any safer?”

“I doubt it. Remember, we were an occupying power in Iraq, and are so even today in Afghanistan. It’s very odd for an occupier to torture the locals, and expect to be loved for it. Indeed, one might think the opposite would be the case.[16] The Army seemed to recognize this in 2006, when it said that the ‘[u]se of torture can … have many possible negative consequences at national and international levels.’ [17]

The Task force certainly agrees. There were operational consequences at the working level. Some of our allies wouldn’t transfer prisoners to us, because they thought we would torture them. At the political level, some people we previously detained are now rising as leaders in their own countries; it’s an open question whether we have, in fact, won their hearts and minds. And, of course, even today there are widespread efforts in foreign countries to detain and prosecute Americans, including former leaders of the Bush Administration, for war crimes involving the treatment of prisoners.[18] So, our past experiments with torture have consequences that ripple on and on into our future.”

“Larry, I understand all of that. I also read Chapter 8 of the report. But is torture effective in pulling information out of prisoners? Does that make all of the negative consequences worthwhile?”

“I doubt it. The Army certainly doesn’t think so. It says: ‘Use of torture is not only illegal but also it is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the HUMINT [i.e., human intelligence] collector wants to hear.”[19] And, as you pointed out at the beginning of this piece, the Task Force agreed. It found ‘[t]here is no firm or persuasive evidence that the widespread use of harsh interrogation techniques by U.S. forces produced significant information of value.’ Instead, much of it was useless.[20]

“Larry, that about wraps it up, I think. Thanks for your help. Do you have any parting comments?”

“Well, back in the last decade most people I know thought that it was a bad idea to torture people for information. It’s too bad that loudmouths in the media, and renegades, crazies and functionaries in the Bush Administration went the other way and made a national program out of it. Perhaps someday, someone will write a poem about that.

 


[1] You can find this in the Oxford Dictionary of Quotations (ODQ) (6th Edition, 2004) at Robert Bly, p. 124, n. 11. Bly is a contemporary poet. The lines are from Driving Through Minnesota During the Hanoi Bombings (1968). Bly has a website at http://robertbly.com/.  There’s also a good short biography of him on Wikipedia. To find it go to the Wikipedia website and search Robert Bly, or simply click here: http://en.wikipedia.org/wiki/Robert_Bly

[2] See Huff Post Politics, Johnson, U.S. Tortured Detainees And Top Officials Are Responsible: Report (04/16/2013) at http://www.huffingtonpost.com/2013/04/16/torture-report_n_3092775.html If you don’t believe that, see Los Angeles Times, no author, Study alleges ‘indisputable’ use of torture under Bush (April 16, 2013) at http://www.latimes.com/news/nationworld/nation/la-na-torture-20130417,0,2127161.story?track=rss

[3] This is the Report of the Constitution Project’s Task Force on Detainee Treatment, available at http://detaineetaskforce.org/ Henceforth, we’ll cite the Report as Detainee Treatment at __. See Detainee Treatment at Finding #3, p. 10. Finding #3 also says “There is substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable.”

[4] See, e.g., New York Times – International, Schmitt & Marshall, In Secret Unit’s ‘Black Room,’ a Grim Portrait of U.S. Abuse (March 19, 2006) at http://www.nytimes.com/2006/03/19/international/middleeast/19abuse.html?_r=0 Endnotes to the Report list many other sources.

[5] See note 3.

[6] See Detainee Treatment at p. III – IV.

[7] See Detainee Treatment at p. I: “The Constitution Project’s blue-ribbon Task Force on Detainee Treatment follows this successful model. It is made up of former high-ranking officials with distinguished careers in the judiciary, Congress, the diplomatic service, law enforcement, the military, and other parts of the executive branch, as well as recognized experts in law, medicine and ethics. The group includes conservatives and liberals, Republicans and Democrats.”

[8] See Detainee Treatment at Finding #6, p. 14: “Lawyers in the Justice Department’s Office of Legal Counsel … repeatedly gave erroneous legal sanction to certain activities that amounted to torture and cruel, inhuman or degrading treatment in violation of U.S. and international law, and in doing so, did not properly serve their clients: the president and the American people.”

[9] See Detainee Treatment at Chapter 1, Detention at Guantanamo, The Battle within the Pentagon Over Interrogation Techniques, p. 41 – 46.

[10] For a short discussion of the Army’s interrogation manual, see the blog of 03/28/2013, Who’s in Combat? at https://opsrus.wordpress.com/2013/03/28/whos-in-combat/

[11] See AFM 2-22.3, Human Intelligence Collector Operations (September 6, 2006), at par. 5-74. See also AFM2-22.3 at p. vi: “This manual applies to the Active Army, the Army National Guard/Army National Guard of the United States, and the United States Army Reserve unless otherwise stated. This manual also applies to DOD civilian employees and contractors with responsibility to engage in HUMINT collection activities. It is also intended for commanders and staffs of joint and combined commands, and Service Component Commands (SCC). Although this is Army doctrine, adaptations will have to be made by other Military Departments, based on each of their organizations and specific doctrine.” The full text is available at http://www.fas.org/irp/doddir/army/fm2-22-3.pdf

[12] See the discussion in Detainee Treatment at Chapter 6, Doctors and Psychologists’ Role in Treatment of Prisoners in CIA Custody, p. 205-206.

[13] They were “refined” in 2003, for example, by the CIA Director, George Tenet. See Detainee Treatment at Chapter 6, Refinement to the CIA Program by the Office of Medical Services, p. 213 – 215.

[14] See the discussion in Detainee Treatment at Chapter 5, Rendition and the “Black Sites, at p. 163-202.

[15] See 74 Fed. Reg. 4893-4896 (January 27, 2009). For more information, see the blog of 09/29/2011, On Closing Guantanamo. You can find it on the old Elemental Zoo website, at http://elementalzoo.typepad.com/elemental-zoo/2011/09/index.html

[16] Others have pointed out that widespread torture of the enemy can be counterproductive. See Stiglitz & Bilmes, The Three Trillion Dollar War (Norton, 2008), at p. 181: “If they [i.e., al Qaida] punish only those who are complicit with the occupation, and we punish many who are not complicit with the insurgency, individuals have an incentive to join the insurgency. What matters is the relationship between our punishment and their punishment, and most important, the accuracy with which punishments are levied.”

[17] See AFM 2-22.3, Human Intelligence Collector Operations (September 6, 2006), at par. 5-74. See also AFM2-22.3 at p. viii.

[18] See the discussion in Detainee Treatment at Chapter 8, Effects and Consequences of U.S. Policies, p. 267 – 294.

[19] See AFM 2-22.3, Human Intelligence Collector Operations (September 6, 2006), at par. 5-74.

[20] See Detainee Treatment at Finding #3, p. 10.