So Counterintuitive As To Be An Absurdity

I was shocked, I tell you, shocked when I read Richard Cohen’s opinion piece in today’s Washington PostTorture? Prosecute Us, Too. I have taken Richard Cohen to task here before. See Cohen Head. But, to give credit where credit is due, I found Cohen’s piece today to be one of the most thoughtful pieces I have read in a long time. What makes this piece so thoughtful? The realization that there is context to the actions taken by the United States over the past 8 years. Notice that I said “actions” and “United States”. Not “torture” and “Bush”.

The past is a foreign country; they do things differently there.” So goes an aphorism that needs to be applied to the current debate over whether those who authorized and used torture should be prosecuted. In the very different country called Sept. 11, 2001, the answer would be a resounding no.

So begins the piece. And then

Back then, a Post poll gave George W. Bush an approval rating of 92 percent, which meant that almost no one thought he was on the wrong course. At the same time, questions about the viability of torture were very much in the air. Alan Dershowitz was suggesting the creation of torture warrants — permission from a court to, in effect, break some bones.

Dershowitz, mind you, was not in favor of torture but argued that if torture was going to be done, it was best that it be done legally. In a similar vein, the thoughtful Newsweek columnist Jonathan Alter mulled the legality, the morality and the efficacy of torture. In the end, Alter ruled it out — although not sodium pentothal (truth serum) or offshoring terrorism suspects “to our less squeamish allies.” In fact, the government was already sending suspects abroad to be interrogated.

Alter’s essay created quite a stir — and to his considerable surprise, a lot of whispered support from liberals. Around the same time, historian Jay Winik wrote about the usefulness of torture, how Philippine agents in 1995 got a certain Abdul Hakim Murad to reveal a plot to blow up 11 American airliners over the Pacific and send yet another plane, this one loaded with nerve gas, into CIA headquarters in Langley. After being beaten nearly to death, Murad was finally broken by the hollow threat to turn him over to Israel’s Mossad.

The Philippine example was widely mentioned at the time, even by those who opposed the use of torture. The conventional wisdom that torture never works — so counterintuitive as to be an absurdity — was not yet doctrine. Neither for that matter was the belief that the coming war in Iraq was a moral and practical absurdity. Congress overwhelmingly voted for war and the American people overwhelmingly supported it.

Please read the remainder of the article. It is worthwhile. Jonathan Alter, no neocon, is quoted by Cohen. I think that Cohen overstates the extent to which Alter “ruled it out”. Here is the beginning of the cited Newsweek article from November 5, 2001.

In this autumn of anger, even a liberal can find his thoughts turning to… torture. OK, not cattle prods or rubber hoses, at least not here in the United States, but something to jump-start the stalled investigation of the greatest crime in American history. Right now, four key hijacking suspects aren’t talking at all.

Couldn’t we at least subject them to psychological torture, like tapes of dying rabbits or high-decibel rap? (The military has done that in Panama and elsewhere.) How about truth serum, administered with a mandatory IV? Or deportation to Saudi Arabia, land of beheadings? (As the frustrated FBI has been threatening.) Some people still argue that we needn’t rethink any of our old assumptions about law enforcement, but they’re hopelessly “Sept. 10”–living in a country that no longer exists.

One sign of how much things have changed is the reaction to the antiterrorism bill, which cleared the Senate last week by a vote of 98-1. While the ACLU felt obliged to quibble with a provision or two, the opposition was tepid, even from staunch civil libertarians. That great quote from the late Chief Justice Robert Jackson–“The Constitution is not a suicide pact”–is getting a good workout lately.

Alter seems very hesitant to conduct what he calls physical torture, though it is unclear whether he would classify something like waterboarding as physical torture. Later, Alter writes

Short of physical torture, there’s always sodium pentothal (“truth serum”). The FBI is eager to try it, and deserves the chance. Unfortunately, truth serum, first used on spies in World War II, makes suspects gabby but not necessarily truthful. The same goes for even the harshest torture. When the subject breaks, he often lies. Prisoners “have only one objective–to end the pain,” says retired Col. Kenneth Allard, who was trained in interrogation. “It’s a huge limitation.”

Some torture clearly works. Jordan broke the most notorious terrorist of the 1980s, Abu Nidal, by threatening his family. Philippine police reportedly helped crack the 1993 World Trade Center bombings (plus a plot to crash 11 U.S. airliners and kill the pope) by convincing a suspect that they were about to turn him over to the Israelis. Then there’s painful Islamic justice, which has the added benefit of greater acceptance among Muslims.

We can’t legalize physical torture; it’s contrary to American values. But even as we continue to speak out against human-rights abuses around the world, we need to keep an open mind about certain measures to fight terrorism, like court-sanctioned psychological interrogation. And we’ll have to think about transferring some suspects to our less squeamish allies, even if that’s hypocritical. Nobody said this was going to be pretty.

I had to reread some of that.

  • Some torture clearly works.
  • …we need to keep an open mind about certain measures to fight terrorism, like court-sanctioned psychological interrogation.
  • …we’ll have to think about transferring some suspects to our less squeamish allies, even if that’s hypocritical. [emphasis added]

Alter (and Cohen today) cited the work by Alan Dershowitz. Dershowitz is another person that probably won’t be hunting with Dick Cheney any time soon. Dershowitz is not exactly in favor of torture, but he is pragmatic enough to argue in favor of torture warrants

[The] ticking bomb scenario had long been a staple of legal and political philosophers who love to debate hypothetical cases that test the limit of absolute principles, such as the universal prohibition against the use of torture which has long been codified by international treaties. The ticking bomb case has also been debated, though not as a hypothetical case, in Israel, whose security services long claimed the authority to employ “moderate physical pressure” in order to secure real time intelligence from captured terrorists believed to know about impending terrorist acts. The moderate physical pressure employed by Israel was tougher than it sounds, but not nearly as tough as the brutal methods used by the French in interrogating suspected terrorists during the Algerian uprisings. The Israeli security service would take a suspected terrorist, tie him to a chair in an uncomfortable position for long periods of time with loud music blaring in the background, and then place a smelly sack over his head and shake him violently. Many tongues were loosened by this process and several terrorist acts prevented, without any suspects being seriously injured.

Torture, it turns out, can sometimes produce truthful information. The Israeli experience suggested that information obtained as a result of torture should never be believed, unless it can be independently confirmed, but such information can sometimes be self-proving, as when the subject leads law enforcement to the actual location of the bomb.

Nonetheless, the Israeli Supreme Court outlawed all use of even moderate, non-lethal physical pressure. It responded to the ticking bomb scenario by saying that if a security agent thought it was necessary to use physical pressure in order to prevent many deaths, he could take his chances, be prosecuted, and try to raise a defense of “necessity”. In my book Shouting Fire, I wrote critically of this decision on the ground that it places security officials in an impossible dilemma. It would be better if any such official could seek an advanced ruling from a judge, as to whether physical pressure is warranted under the specific circumstances, in order to avoid being subject to an after the fact risk of imprisonment. Thus was born the proposal for a torture warrant.

The remainder of Dershowitz’s paper is recommended reading.

As we begin 2009, and as new administration comes to power, it seems easy to take a high rhetorical road against anything that might hint of torture and for anything that might sound like prosecution of those responsible. This seems a very poor response to the realities of times immediately after 9/11 and the choices we made.

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