The CIA Inspector General’s Report as a Rorschach test
I was a little surprised to see an op-ed article entitled “Torture justifiable in some cases” appear in the New Zealand Herald last week (alas, by default, New Zealand’s paper of record). The blunt, utilitarian thrust of the piece, by Australian law professor Mirko Bagaric, is predictable from its title. Professor Bagaric claims that life-saving torture is morally justifiable, and that we should reconsider the legal prohibition on torture because it is likely that the CIA’s use of torture ‘did save thousands of lives’.
His empirical claim essentially echoes former Vice President Cheney, who has repeatedly claimed that the CIA’s EITs (enhanced interrogation techniques – read torture, or at the very least, illegal cruel, inhuman or degrading treatment) were necessary and effective, and saved lives. When several notable Bush-era torture memos were disclosed in April this year, Cheney made these claims again, and added that there were documents that, if disclosed, would vindicate his position . Documents that appear to be those Cheney was referring to have now been disclosed, but they do not appear to substantiate Cheney’s claims. High value al Qaeda detainees held by the United States certainly did provide information. But even if we assume that some/most/all of that information was relevant and true, this does not demonstrate that the EITs were effective (or colloquially, that torture works). Does the CIA Inspector General’s Report, also recently disclosed, have anything to say about the matter?
At paragraph 211, the Inspector General (IG) observes that the CIA’s program has been successful from the standpoint of incapacitating certain terrorists, but that ‘[m]easuring the effectiveness of EITs, however, is a more subejctive process and not without some concern.’ In subsequent paragraphs, the IG’s report states that many of the intelligence reports generated between the 9/11 attacks and April 2003 came from ‘intelligence provided by the high value detainees’, and that ‘[d]etainees have provided information on Al-Qa’ida and other terrorist groups’. This included information leading to the identification of terrorist operatives, and information about terrorist plots – although there was no evidence that these plots were imminent.
At paragraphs 222-225, the IG’s report discusses the treatment of three particular detainees. It notes that Abu Zubaydah was waterboarded multiple times, but that ‘[i]t is not possible to say definitively that the waterboard is the reason for Abu Zubaydah’s increased production’. The report states at the end of paragraph 224 that Al-Nashiri was subject to various EITs, and subsequently ‘provided information about his most current operational planning and [redacted] as opposed to the historical information he provided before the use of EITs.’ The very beginning of paragraph 225 states that ‘[o]n the other hand, Khalid Shaykh Muhammad . . . provided only a few intelligence reports prior to the use of the waterboard, and analysis of that information revealed that much of it was outdated, inaccurate, or incomplete.’ The report then notes that Khalid Shaykh Muhammad was waterboarded 183 times in March 2003. The rest of the paragraph is redacted.
What is to be made of this? The report does not express a clear view of the efficacy of the EITs. It seems to suggest that the EITs were effective on Al-Nashiri, although presumably, as with Abu Zubaydah, it would be difficult to show definitely that the EITs were the cause of increased cooperation. Also, does the fact that the paragraph following begins with ‘On the other hand’ suggest that waterboarding did not work on Khalid Shaykh Muhammad? There is no way to be sure about this given that the back half of the paragraph is entirely redacted. (Indeed, the IG’s report is in parts very heavily redacted, so it is theoretically possible (if unlikely) that the redacted portions happen to be the parts that completely vindicate the Cheney position.)
Which brings me to the title of my post. It seems quite possible for people on either side of the torture debate to look into the report, and conclude that it reinforces whatever view that they already held about torture, and more specifically, the efficacy of torture. The reason why there is such a contest over the efficacy of torture, of course, is that it obviates the need to deal with the moral question, about which there may be disagreement. If torture doesn’t work (by this I mean elicit truthful information), then there is no practical reason to use it. And so begins the battle of the anecdotes – a seemingly inevitable consequence given the impossibility of a controlled study into the matter.
Professor Bagaric, for example, asserts that there is a wealth of evidence that suggests that torture works. He cites two examples. The first is the claim of Israeli authorities that they foiled ninety terrorist attacks ‘by using coercive interrogation’. This example is presumably derived from a report submitted by Israel under article 19 of the Convention Against Torture. At paragraph 24, it is stated that ‘as a result of GSS investigations of terrorist organizations’ activists during the last two years, some 90 planned terrorist attacks have been foiled.’ Were the 90 planned attacks foiled substantially through the use of torture? Perhaps, but it is hard to know for sure.
The second example cited by Professor Bagaric is former CIA interrogator John Kiriakou’s account of the interrogation of Abu Zubaydah: ‘Kiriakou says the technique known as waterboarding broke Zubaydah in less than 35 seconds. The agent says he has no doubt that the information provided by Zubaydah “stopped terror attacks and saved lives”.’ There are a number of reasons to be dubious of these claims. As noted, the IG’s report does not conclude that Zubaydah began talking because of the torture. And if Zubaydah was broken after a mere 35 seconds – a la 24 – why was it necessary to waterboard him 83 times (as noted in paragraph 223 of the IG’s report)? Additionally, we have information about Abu Zubaydah’s interrogation from one of his interrogators, FBI agent Ali Soufan. Soufan confirms that much of the actionable intelligence that came from Zubaydah was gained without the use of torture or coercion.
In the end, it is difficult to maintain the oft-repeated position that torture is pointless because in all cases the victim will say anything to make the torture stop. This is a problem endemic to any universal claim. The claim that “all sheep are white” is falsified once someone discovers a black one. Similarly, it is hard to refute every example put forward by advocates of interrogational torture. This is particularly so given the secrecy typically surrounding such events (although, at the same time, we shouldn’t be too credulous of secretive and possibly self serving accounts about the efficacy of torture).
Moreover, the debate over efficacy is only a part of the picture. First, the issue isn’t really torture’s effectiveness in eliciting the truth, but rather its effectiveness in eliciting the truth relative to other non-coercive techniques. Paragraph 250 of the IG’s report expresses uncertaintly on this point: ‘The CTC Detention and Interrogation Program has resulted in the issuance of thousands of individual intelligence reports and analytic products supporting the counterterrorism efforts of U.S. policymakers and military commanders. The effectiveness of particular interrogation techniques in eliciting information that might not otherwise have been obtained cannot be so easily measured, however.’ Soufan on the other hand suggests that torture is relatively ineffective next to traditional non-coercive interrogation techniques.
Second, even if we accept that torture might sometimes be more effective in eliciting truth than non-coercive interrogation techniques, it does not follow that the legal prohibition on torture should be reconsidered unless the relative inefficacy of torture was the only reason one had for opposing its use. And as I have discussed elsewhere, there are other good reasons for opposing proposals to legalise torture.
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