‘Torture Works’ is Not a Defense

Dick Cheney’s continued insistence that the torture techniques used by the CIA and DOD on terror suspects, or associates of terror suspects, or anyone they picked up that they thought might know some information, based at times on the “confessions” extracted from torture victims, has shifted much of the debate to the question, “Does Torture Work?”

As former State Department official Philip Zelikow writes in today’s New York Times, some of the brutal interrogation techniques may have produced some useful intelligence – and some didn’t.  Perhaps some detainees under torture said something true – and maybe they lied so the interrogators would stop slamming their head against the wall.  Maybe traditional interrogation methods, the kind that the FBI insisted on sticking to, would have been just as useful, if not more so.  As Zelikow writes: “Each of these accounts of disrupted plots and captured terrorists has a back story, full of lore and arguments about who developed which lead and whose sources proved out.”

Although the Senate Intelligence Committee’s investigation may turn up some of that back story, many of these questions are inherently unanswerable.  (Although as former FBI interrogator Ali Soufan wrote yesterday, most of the claims that torture has worked on even high-level terrorists are false.) After you’ve tortured and humiliated someone, how can you possibly know what he would have told you if you’d gained his confidence instead?

Take, for example, the case of Mohammed Jawad, sent to the prison at Guantánamo Bay after he was captured at about age 16 at the scene of a grenade attack in Afghanistan that injured two U.S. soldiers. After Afghan authorities threatened to kill Jawad and his family if he didn’t confess to throwing the grenade — surprise!– he confessed.  Jawad was sent to Guantanamo Bay, where he’s been for the past 5 years. Although he was supposed to be tried by a military commission, the military judge decided his “confession” had been wrung from him through torture and was therefore unreliable. He’s still stuck at Guantanamo while an appeals court decides what to do.

So how do you count the torture of Jawad?  Was it successful, because he confessed to the attack, or not, because he later recanted?  And how many other people at Guantanamo are there only because others fingered them as terrorists simply to satisfy their abusers?

Most of these questions will never be answered, or at least not anytime soon.  And that’s in part why the law doesn’t offer an “effectiveness of torture” exception.

As ACLU legal fellow Alex Abdo said to me the other day, “There is no exigency exception in the anti-torture statute.”  Yet in the recently released Office of Legal Counsel memos, OLC head Steven Bradbury attempted to argue that the abuse of prisoners comes down to a balancing test.  So long as it was done for some legitimate government purpose, he argues, it’s not illegal.

But experts on international law and the laws against torture all say, as I reported yesterday, that’s a blatant misreading of the law.  If torture and inhumane and degrading treatment were justifiable by an important government purpose, says NYU Law Professor David Golove, then “torture would not be in violation of the American constitution.”

Bradbury and his colleagues were arguing that the actions weren’t illegal because the intent was not to harm anyone, but to obtain valuable information.  That same reasoning would also excuse the torture and abuse of U.S. citizens – hanging them upside down from the ceiling, confining them in a tiny box with insects, forcing them into shackled stress positions for days on end, as was done to terror suspects – simply because the police think they might possess valuable information.

“If you don’t think there’s a bottom line beneath which the government is not permitted to go,” says Golove, “and if you need a specific intent to harm rather than an intent to get information — even though you do harm in the process — then you’ve just destabilized the whole constitutional understanding that torture is not permitted by the U.S. constitution, even on American citizens in the United States.”

Of course, the universally accepted understanding of the Fifth Amendment’s substantive due process right is that it would prohibit torture, regardless of torture’s intent — which almost always is primarily to extract information rather than, say, to be sadistic.  “So you have to read substantive due process as, there are definite limits beyond which the government cannot go,” says Golove.

In other words, Dick Cheney’s arguments that “torture works” notwithstanding, the torture and abuse of prisoners for the purpose of obtaining information is, and was, illegal. And despite the tortured legal reasoning used to justify it, it’s hard to believe that Justice Department lawyers and the White House didn’t know that.