The Torture Memos
“Are thumbs fingers?” The question is posed by an obtuse but efficient Nazi interrogator in the film version of “The English Patient.” The scene jumped into my mind as I pondered the tortured legal locutions the Bush administration concocted to justify interrogation techniques that went out of style in most of the civilized world following the Inquisition.
Apologists for the Bush administration, of course, would prefer that these torture memos never saw the light of day. They claim self-servingly, that revealing the “legal rationales” behind the Bush administration’s “enhanced interrogation” methods can only aid the enemy. In truth, the Bush administration’s harsh interrogation methods were never as effective as advertised. However, the administration’s defenders do have a point; the memos are such a complete legal, logical, and moral embarrassment that their publication amounts to a propaganda victory for al-Qaeda.
The Justice Department has long since repudiated the shoddy legal opinions devised by Bush’s Three Legal Stooges, John Yoo, David Addington, and Alberto Gonzales. They are viewed as cranks by their peers and pariahs by the international community. It is probably only a matter of time before they face prosecution for providing the legal rationale for war crimes.
Many conservatives are apoplectic because they believe legitimate policy differences are being criminalized. This view does not hold up to scrutiny. Simply put, the Bush administration’s lawyers were not looking to the law for guidance; they were looking for ways around the law. Incidentally, the same perversion of justice was at work in the legal rationalizations that culminated in the debacle of Bush vs. Gore, and the run-up to the Iraq War for that matter. In each case, the “legal principles” involved functioned as a blunt extension of political power, rather than as objective standards. This is a pretty cynical approach to the law.
The same ad hoc quality that infects the Bush administration’s quasi-legal reasoning is on display by those who insist torture techniques are what kept America safe since 9/11. Bush’s speechwriter, Marc A. Theissen, writing in the Washington Post for instance, insists that “without enhanced interrogations, there could be a hole in the ground in Los Angeles to match the one in New York.” What Thiessen fails to mention, however, is that torture also led to “intelligence” that apparently “confirmed” the Bush administration’s preconception that Saddam possessed WMD. In other words, torture also helped lead the United States into a strategic debacle. This illustrates what most counterterrorism experts believe is the fatal flaw from using torture: It is exceeding difficult to distinguish bad information from good. Too often, interrogators who use torture will hear what they want to hear.
Theissen goes on to cite the “success” of using harsh interrogation methods on Abu Zubaydah. However, it is now clear that President Bush overstated the importance of Zubaydah and the information he apparently divulged after being tortured. As the Post’s Eugene Robinson notes, Zubaydah was hardly the pivotal figure the administration claimed he was. And the “vital information” Zubaydah provided after being tortured was in fact information that was already known to the intelligence community from other sources.
The Bush administration has deservedly acquired a reputation for concocting self-serving ad hoc rationalizations: America has not been attacked since 9/11, so naturally it must be because we employed enhanced interrogation methods. To paraphrase Bush’s CIA director, Michael Haydn, enhanced interrogations were done according to the best legal advice available at the time, and those methods worked.
The first part of Haydn’s conclusion is patently ridiculous; even the Bush administration has repudiated the early legal memos that supposedly legitimated the president’s authority to order techniques like water boarding. That tells you how shoddy and scholarly deficient they were. However, it’s no surprise that torture can yield important intelligence. The real question, of course, is this: Could legal interrogation techniques have yielded the same or better results? Members of the Bush administration say no, but most counterterrorism experts insist torture is counterproductive in the long-term.
There are good reasons to side with the vast majority of counterterrorism experts on this one. To begin with, the appalling level of deliberation the Bush administration engaged in prior to authorizing enhanced interrogation methods provides no confidence alternatives were debated or even discussed. As with the decision to invade Iraq, dissension was virtually non-existent, and top administration figures simply chose a course of action and then charged underlings with finding a way to legitimate and rationalize a foregone conclusion.
George Bush believed in a leadership style in which displays of strength and success would breed legitimacy. He got it backwards; legitimacy is what leads to strength and success. Simply put, George Bush and his policies have weakened America precisely because they lacked legitimacy. There is a common thread linking the corrupt decision of Bush vs. Gore, the corruption of the intelligence gathering process that led to the Iraq War, the corruption on Wall Street, and the corruption of American ideals that bred the torture scandals of Abu Ghraib and elsewhere; in each case objective standards of decision-making, rationality and accountability were discarded to meet the self-serving interests of those who wielded power.
To be sure, many of the minions who served Bush believed they were protecting America when they justified the use of torture. Let there be no doubt, however; they were not safeguarding America’s ideals or values. America was founded on the principle that all individuals are endowed through Natural Law with certain inalienable rights. These are rights that no sovereign or government can grant or take away without due process of law. The Bush administration, however, made the preposterous and indefensible argument that a single individual -- the commander-in-chief -- could effectively strip any individual of their right to due process under the Constitution, the Geneva Convention, or virtually any meaningful legal framework whatsoever. Anyone who challenged this perverse perspective was accused of caring more about the rights of terrorists than the safety of America’s citizens. This is pure demagoguery that rests on fallacy of a false choice.
Statecraft is an art, not a science. Though torture is odious, there may be some limited instances where its use can be justified. If it is necessary to torture a suspect to save a city, then those circumstances should count heavily as mitigating circumstances when those officials are prosecuted. If I were a judge, prosecutor, or juror in such a case, then I’d recommend only a token sentence if the defendants are found guilty. The bright lines civilization has drawn against torture should not be erased by third-rate legal scriveners. After all, the institutionalization of torture is bound to corrupt the body politic as the practice brutalizes and desensitizes those who use and rationalize it. The practice has certainly demoralized Americans, inflamed our adversaries, and delegitimized America in the eyes of the world. When the debate descends to whether thumbs are fingers, well, that’s an indication that things have gone seriously wrong.
Wednesday, April 22, 2009
Thursday, January 22, 2009
Bush Kept us Safe? Osama bin Laden once noted, "Americans may have the watches, but Arabs have the time." As the clock wound down on President Bush's tenure many of the administration's apologists were quick note that there were no further attacks on American soil in the 2,688 days following 9/11. This is a welcome fact. And I hope historians and future generations will find that for all his faults, President Bush did do some things right. However, it is dangerously simplistic to assume that 2,688 without an attack should count as evidence in favor of Bush's counter terrorism policies. Marc A. Thiessen, chief speechwriter for President Bush, is the kind of figure Taleb would likely call a turkey. Writing in the Washington Post, Thiessen cites the 2,688 day figure and then fallaciously deduces that if there is another attack it will be because an Obama Administration weakened the Bush administration's "enhanced interrogation" policy and other counterterrorism methods. Thiessen's logic fails on so many levels that it's easy to see how such defective thinking contributed to one of the worst administration's in American history. To begin with, al-Qaeda and other Arab terror organizations operate according to a vastly different time-frame than we do in the West. Put simply, al-Qaeda and it like-minded affiliates are thinking in terms of generations and centuries, while much of America's political class are thinking in terms of election cycles. Insisting a relatively narrow sliver of time without an attack constitutes evidence of success (in a war that Bush himself said will be a generational affair) is not all that different from a turkey crowing "Mission Accomplished" right after feeding time. Basically, the 2,688 days without an attack spiel is little more than a demagogic ploy, the political equivalent of putting lipstick on a pig. A more accurate slogan might go like this: At least Bush kept us safe and secure, excepting for 9/11, Katrina, and the financial meltdown. Arguing that "enhanced interrogation" methods have kept America safe is patently bogus too. To begin with, "enhanced interrogation" is nothing but a euphemism for torture. The Bush administration resorted to legal sophistry in its Alice in Wonderland interpretation of the Constitution, leading it to define torture in terms so narrow that the concept no longer had any practical meaning. President Obama has brought some much needed moral clarity to the issue by insisting that the Army Field Manual and the Geneva Conventions will govern how detainees in U.S. custody are treated. Thiessen claims torture works. Undoubtedly, in some cases this is true. But most counterterrorism experts agree that torture frequently leads to false confessions. When torture is involved, it is exceedingly difficult to sort out good information from bad. Indeed, some of the "evidence" the Bush administration used to substantiate its case that Saddam possessed WMD was gleaned through torture. It may be true that torture has prevented attacks, but torture also helped lead to the foolish war with Iraq. Ironically, the subsequent torture and abuse scandals at Abu Ghraib will in all likelihood help breed a new generation of jihadists determined to attack the United States. Torture also brutalizes, desensitizes, and corrupts the personnel and the institutions that resort to barbarism to extract information. The America people correctly sensed that dispensing with our values, as the Bush administration most assuredly did, would not lead to greater security over the long haul. Put simply, the Bush administration's radical departure from America's traditional ideals regarding the humane treatment of prisoners sapped American morale and expanded the ranks of our enemies. Theissen's most outrageous fallacy is his claim that if there is a future attack during Obama's tenure, then the fault will lay with his administration. This is typical of the divisive fear mongering the American people are rightly revolted with following eight years of Bush's political demagoguery. If there is another attack, then the blame will lie with those who carried out the attack. America will need to come together to work towards the common purpose of defeating our enemies. Pointing fingers to score political points will be a recipe for self-defeat. There was a moment after 9/11 when President Bush had the goodwill and trust of the American people behind him, but he blew it. The claim that Bush's extra-legal policies kept the polis safe are not dissimilar to an athlete using steroids who insists a great run is proof of his fitness. Over time, the extra legal techniques of torture will weaken the body politic, just as steroids will weaken the athlete's body. America is a less resilient country because of Bush's policies. The American people were right to reject the self-defeating policies of Bush/Cheney
In his book The Black Swan authorNassim Taleb, a philosopher and statistician who studies improbable events, relates the parable of the turkey who takes each day he is fed and cared as further evidence that the farmer loves him. The turkey's inductive reasoning seems sounder and sounder every day of the year, until Thanksgiving.
