02 May Let’s Not Talk About Torture
Cross-posted at Balkinization
For all the interesting things that might be said about the still-emerging circumstances of bin Laden’s death, it’s disheartening to see conversation already turning to old, old debates about interrogation. Peter King (R-N.Y.) was naturally quick to suggest that reports that information leading to bin Laden’s capture came from detainees held at Guantanamo Bay should lead Obama to rethink his opposition to torture. Emptywheel, naturally, says it’s clear waterboarding had nothing to do with it. FWIW, Rumsfeld appears far closer to Emptywheel’s view than King’s.
Why is this a fruitless (not to mention so, so old) conversation? Any number of reasons. For one, the odds are negligible that we will ever truly know who produced the critical piece of information when and for what reason. If perchance we do learn the actual “facts” about what happened – facts as distinct from competing anecdotal accounts selectively leaked by “official sources” with agendas of their own – they will prove nothing in any meaningful way. If a detainee effectively volunteered key information, advocates of waterboarding, prolonged isolation, etc. will insist torture could have produced it sooner. I’ll look forward to their controlled study. If a detainee gave up the information under torture, critics will insist that it is impossible to know whether he also would have conveyed the same information under other conditions. Just right.
Either way, let’s be clear that the arguments in this realm have never been about ‘interrogation’ as an intelligence collection method per se. No one seriously thinks we should refrain from using our broad range of lawfully available means to seek information from terrorist suspects who are otherwise lawfully in our custody. The debate is about torture and cruelty. And all the arguments that existed about the legality, morality, and efficacy of torture that we had when we had the debate in 2002, and 2004, and 2006, and 2008 and all the years in between – remain the same today as they were yesterday. So let’s note that the U.S. law prohibiting cruel techniques has been strengthened since 9/11. Let’s recall that there was nothing at all in the President’s speech last night to suggest that this no-doubt defining experience of his presidency has led him to reconsider his standing executive order reinforcing existing prohibitions. And let’s not nudge the blogosphere to see that yesterday’s events “reignite” that old, rightly concluded, debate.
“Either way, let’s be clear that the arguments in this realm have never been about ‘interrogation’ as an intelligence collection method per se. No one seriously thinks we should refrain from using our broad range of lawfully available means to seek information from terrorist suspects who are otherwise lawfully in our custody.”
Really? You mean, all those who whine about Gitmo, who demand full civilian trials for terrorists captured overseas aren’t demanding the same prohibitions on interrogation that exist in the US criminal system (e.g., cessation once an arrested person asks for counsel, having counsel present during interrogation, etc.)?
Up until now, you’ve had the luxury of moral preening over the treatment of captured illegal combatants. Now we’re about to find out exactly what the cost of that moral preening might have been.
On the contrary, since they seek to instrumentalize the OBL death to support the torture, let us talk about it. When only low level persons have been prosecuted and with the Spanish prosecution only just having been refused to go forward “Why is this a fruitless (not to mention so, so old) conversation?” It is certainly not an old conversation – it was topical just last September in the Ghailani trial and keeps coming up in these habeas proceedings. Look at the years it took Argentina or Chile or Brazil after the dirty wars to address torture. The Pinochet case alone took years. As to fruitless, I fail to see how torture and holding accountable those who did it is fruitless. I am certain there are plenty of people who WANT it to be fruitless so that we acquiesce. There is no inevitability on this. There is just whether you acquiesce or resist it. And, this post is one more in the efforts – on the left and the right – to change the subject to get us to acquiesce. Will not happen. Not as long as no accountability for people at the top has gone forward and the people at the top remain relentless in trying… Read more »
I just suffered through Rep. Peter King on the O’Reilly Report asserting that it was the waterboarding of KSM and Al-Libbys that was the key to the information. I also suffered through former Rep. Jane Harman trying to have us say this was a Clinton,Bush, and Obama effort – diminisihing the fact that Obama was the one who got Bin Laden.
I just heard Donald Rumsfeld here http://www.newsmax.com/Headline/DonaldRumsfeld-gitmo-waterboarding-osamabinladen/2011/05/02/id/394820
saying ordinary techniques made this happen. I hear that former head of CIA Michael Hayden was saying the enhanced interrogation techniques got the information.
The Obama press briefing did not say that.
The point here is that the apologists for torture are out in full force and it is incumbent on international lawyers in the United States to stand with those who back then and on through now condemned these craven acts by our leaders – not try to change the subject.
Talk about leadership.
Best,
Ben
Update. Saw Hannity – pro-torture. Heard Debra Burlingame of keepamericasafe.com fame who lost family and Todd Beamer’s dad extolling the torture – so all the stops are being pulled out by apologists. And we are asked to stay quiet. Over at Rachel Maddow and The Ed Show saw Matthew Alexander who wrote “Capture and Kill” and who is a former interrogator for the military who completely discredits the use of torture and suggests it cost us time with regard to what we got from KSM. So this is a time when the torture stuff is being pulled out in defense of Bush’s mangled efforts. i think one part of this is that it is so terribly hard for Republicans to give credit to a Democrat who is the President and who is black. It goes against the koolaid that they have been weaned on all their lives. Just to be bipartisan, I would also note the number of times that Osama and Obama have been confused by the reporters not of color on the left AND the right. Profound freudian slips related to the long legacy of our country. I noted that the code name for OBL was “Geronimo.” As… Read more »
Ben – On “Geronimo:” I wondered about that choice of code name as well….but just heard a White House correspondent on “Morning Joe” report the following (which casts an entirely different light on the matter): The code name for bin Laden was “Jackpot.” The code name for mission success was “Geronimo.” When mission success was confirmed on site, the On Scene Commander radioed to the Mission Commander in Afghanistan, according to this reporter, “For God and Country, Geronimo, Geronimo, Geronimo.”
Response…
It still smacks of anti-Native American and a poor choice.
Deborah,
You say that the old debate about torture was settled. How so? I think there is broad agreement that torture should not be allowed under any circumstances and this administration has limited interrogation techniques to those found in the Army Field Manual. But that is not the same as saying all techniques not included in the AFM constitute torture or cruel, inhuman and degrading treatment. Where is the legal line between permissible interrogation and impermissible cruelty? I don’t think that was settled at all, in part because so very few people actually want to address that question.
This event happened on May 1st, celebrated here in America as “Law Day” and in many countries as “May Day.” I wonder how the legal profession will address this in the context of “Law Day.” As for “May Day,” perhaps the take on this event may be mixed in other countries. Frankly, based on my trips on the Internet on May 1st, I did not see much about “Law Day” and it wasn’t addressed, to my knowledge, by the talking heads here in conjunction with the killing of Osama.
I agree with Michael on this. I don’t think the questions have been settled at all, and instead the can has been kicked down the road.
[…] Benjamin Wittes var addthis_product = ‘wpp-254’; Over at Opinio Juris, Deborah Pearlstein says that “it’s disheartening to see conversation already turning to old, old debates about […]
[…] New Yorker: Jane Mayer) Surveillance, Not Waterboarding, Led to bin Laden (Wired’s Danger Room) Let’s Not Talk About Torture (Opinio Juris: Deborah Pearlstein) A Response to Deborah Pearlstein (Lawfare blog: Benjamin Wittes) […]