Serves Me Right for Talking About It

by Deborah Pearlstein

Cross-posted at Balkinization

In response to my post a few days ago lamenting the post-bin Laden urge to rehash debates about torture’s efficacy, Ben Wittes writes to disagree.

“Pearlstein is right, of course, that we will never know with any certainty whether any specific piece of information that the CIA program developed would have been developed had the program used no coercion–or had the program not existed at all and had the interrogators in question been military folks. One can never establish a but-for relationship between coercive practices and any valuable intelligence that we learned following its use. But I do not think the effort to understand the value added of the CIA program is useless. In fact, I think it’s critical. If one believes that the program contributed nothing–or little–of value that could not have been obtained in a manner that did not trouble our collective conscience, one will and should feel very differently about it than one will and should if one believes it provided critical intelligence that saved American lives and led to the capture and killing of key Al Qaeda figures. While it may be impossible to get certainty on the answers to these questions, it should not be impossible to get some more solid understanding of the matter than we currently have as a society. A lot of people are quick to opine on this matter in one direction or another, but it has received virtually no impartial study.”

Various things to say. First, I quite agree that impartial study of intelligence methods and their effects is of great value. That (among other reasons) is why I have long supported the establishment of an independent commission that would look back over intelligence practices of the past decade and evaluate not only questions of history, but also questions of strategic impact, small and large. It is also why I thought it worth looking closely at the findings those impartial studies that do exist – like the 2006 report on Educing Information by the Intelligence Science Board – which I’ve often cited for its conclusion, among others, that “knowledge of behavioral indicators that might assist in the detection of deception is very limited and provides little reliable information that could assist intelligence collectors” with current populations of interest. In other words, 4 years in to our dramatic program of coercive intelligence collection, no one knew in any real way how to secure the revelation of accurate information from an individual. My point in this week’s post was not that such investigations, when rigorously and ethically done, lack value. Just the opposite, it was to note that post hoc assertions based on incomplete information about a particular anecdotal case are no substitute for rational study. Put differently, for every “maybe some guy in Gitmo said something useful” story, there’s a “some guy in Gitmo said something false that lead us to war in Iraq” story. Dueling anecdotes do nothing to advance – and plenty to mislead – the inquiry about efficacy.

Second, and more broadly, let’s imagine for a minute that the closest to “truth” about efficacy we will ever be able to get is that sometimes people say useful things under torture and sometimes they don’t. In other words, let’s imagine that study will not be able to conclusively foreclose the possibility that on some occasion, someone will say something true if you torture them. (With more study, maybe one could discern what kinds of torture are more likely to produce true answers than false ones, even true answers not otherwise obtainable, but I’d be fascinated to hear the scenario for doing this in any ethical way.) The far harder question still remains: What policy conclusion follows from this result? How does one weigh this information in a cost-benefit analysis that includes tactical gain vs. strategic loss, effects on our own forces, variations among individual responses, designs of training and education, alternative options (including a finding that sometimes, someone will say something true if you give them a Big Mac), or all of the important arguments from philosophy, morality, law, medicine and religion that say efficacy is entirely beside the point, and we can decide as humans that there are some kinds of things we simply won’t do? Science can be enormously valuable. But I think it’s a mistake to imagine in thsi case that it will get us out of – or even much clarify – the otherwise far deeper question. In all events, for those who have not yet settled this matter in their own minds, this week strikes me as a particularly inopportune time to try.

http://opiniojuris.org/2011/05/04/serves-me-right-for-talking-about-it/

9 Responses

  1. Hey Deborah,
    Some things are stronger than our wills!
    That is one of the key points about torture.  I disagree with the efficacy/inefficacy meme because it detracts from the essence.  That essence is the strength of the universal condemnation of torture as a matter of international law. 

    The torture prohibition is “vanilla ice cream” stuff “not “tutti frutti” calling for cost/benefit and other nuance-like sprinkles in thought experiments.  

    I think the cost/benefit is a peculiar current American deformity related to the mantra of cost-benefit and economic theory being ingrained in us for the past 40 odd years.  Homo economicus is just one aspect of the more general homo sapien.

    I recognize the marginal cost/marginal benefit vision of life – but just say it is such a constricted vision of the richness of what it is to be a human.

    Best,
    Ben 

  2. While I fully support the belief that there are “some things we must just never do”, I think that it is important to be clear about what those things are. 

    Recall that the “efficacy debate” was used in both directions.  “Torture never works because people will say anything to make it stop” or “torture is the only way to get information from some people.”  Neither of these simplistic descriptions is accurate which is exactly what Panetta and others are indicating.  People will give you more information faster when they are coerced.  However that information is not particularly reliable by itself.  Some of it will be true, some of it will be false, and as the intelligence collectors have constantly reminded us over the past several days, each piece of information is recovered, corroborated and placed into context with all the other information out there.  Coercion merely increases information flows.  I doubt we will ever know by exactly how much.  So I agree with Ben for very different reasons, the “efficacy debate” really doesn’t get you anywhere.

    It is the question of morality that must be answered.  What things must we never do?  The answer “torture” is not particularly helpful in this context.  Must we treat everyone under 8th amendment standards?  Is the Army Field Manual the final word?  Can you slap a prisoner to make him think you mean business?  Can an interrogation go on for 24 or 36 hours?  Lines can be drawn.  Yoo drew them in ways that many found unacceptable.  Obama has drawn them at the AFM.  Forget about law for a moment, where does morality demand that they be drawn?

  3. I like to stay away from the morality part of this because settling moral debates is beyond my limited competence.  I focus on law, cases and authorities in this area because there is law and there are cases that have spoken to a great many of the things that have been seen as torture.  Now one can always get someone who wants to torture to play games to say that “black is white”.  The point I make is that I think there is more stability in the notion of what is torture than is generally put forward by clever people.
    Best,
    Ben

  4. Non-rhetorical question, I’m not an expert on this issue:  There are opinions for US courts that parse out in detail which practices are torture and which are not? 

    To use Michael Lewis’s example, are there cases that come unequivocally down on a certain number of slaps to the face? length of interrogation?  how long one can be exposed to annoying audio or visual stimulation?

    I’m assuming here that various military manuals aren’t legal authority and that statutes and cases are.

  5. Hey Matt,

    I will speak to one case in Texas of which I am aware and the cases at the Tokyo tribunals or from the Spanish American War.  See this article called “Drip by Drip…” someone here probably has the right cite on it.

    Now, what the clever types say is “let’s look at that case and what happened and then let us change one or more things so we can distinguish what happened in the past.”

    The clever types then say we need to pass a new law to ban this thing – which of course is more about saying that what was done before was not torture and absolving themselves.  I add this to help you see the dynamic of the game.

    This process is one of the reasons that the Geneva Conventions were written in the way they were laying out broader principles rather than laundry lists and why the ICRC argues they should be interpreted expansively.

    So there are always folks who will change something and say “this is not clearly torture based on prior cases.”  Or you can make sh*t up like Yoo did in his statute and regs analysis to come up with a standard to move the ball to allow what is torture.

    Another thing is to do everything to make sure that there are no cases in court that examine what you did.  That is what is happening with the high-level folks from the last administration.  No cases, no crime! Of course, the grunts are allowed to be court-martialed because they are in violation of the UCMJ.

    One can go through all the kinds of things that happen in common assault, battery and those criminal cases and come to the conclusion whether something is a crime – vindicating the international prohibition on torture throught the domestic law.  Our criminal justice system has those.  Maybe look at the higher felonies for example as opposed to misdemeanors and what facts happened there and one gets a flavor for the kinds of things that are torture.

    Outside of criminal law, then there are the immigration cases by persons with well-founded fears of going back to their countries.  Those are not in criminal space but they might help.

    If you want to leave the states you can go to internaional tribunal space, regional tribunal space, and courts of other countries space to see what they say was torture or the equivalent in their criminal law.

    You can also look at the training given by SERE based on what the Chinese and others did – to show the things that were considered torture before they were reverse engineered for purposes of the US torturing.

    Hope this helps to see the rule and the gamesmanship that one has to deal with about torture.  The gamers must think we are dumb and can not see their gambits.

    Best,
    Ben

  6. Matt,

    Another response might be to say that you are right there are some things that have indeed been called torture by international tribunals and US courts.  However, there is a great distance between what those opinions definitively describe as torture (electric shock, mutilation, blow torches, rape, broken bones, broken teeth, baseball bats) and the Army Field Manual requirements which prohibit touching the detainee.  I don’t believe that anything which goes beyond the AFM constitutes torture which should be prosecuted.  

    The gap between what clearly constitutes torture based on US and ECHR case law and the interrogation techniques currently authorized by executive order is a large one and can only be closed by people willing to talk about how lines should be drawn.  Whether anyone is willing to have that conversation is a different matter.

  7. This is way too much fun.  Just watching The Last Word with Lawrence O’Donnell who says that the former CIA hotshot jose Rodriguez is the person saying that the waterboarding and EIT’s provided important intelligence (I am paraphrasing) to get Bin Laden.

    Jose Rodriques is of course the guy who ordered the destruction of the CIA tapes of the waterboarding at the insistence at least of the two psychologist contractor waterboarders Miller and Jessen one of which was a subject of a complaint before the Texas Licensing Board for Psychologists that was dismissed recently.

    The guy who is King’s, Rumsfeld’s and all these guys source for waterboarding was good was the guy who ordered the tapes destroyed of the waterboarding.

    Add to that that John Ashcroft is Ethics guy at Xe now and I think one begins to “connect the dots” on this relentless effort to have us believe the waterboarding and torture worked.

    This looks like a mega-CYA against criminal prosecution for the waterboarding and EIT’s.  Nothing more or less.

    As I said three years ago, “Refluat Stercus!”

    Dudes you really must think ordinary American citizens are chumps to try to play us like this.  No way jose.

    Best,
    Ben

  8. Interview on Toledo ABC today 5/8/11 speaking about international law on OBL and torture.  Given the relentles torture meme all this week it is important to keep pushing back and prosecute the high-level people.  I was amazed that no one in all the discussions mentioned the soldiers who were court-martialed and serving time for doing the bidding of these high-level types.

    http://abclocal.go.com/wtvg/story?section=resources/inside_station&id=8119159

    Best,
    Ben

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