Lessons on the use of torture

The recently released Senate report shows "enhanced interrogation" techniques used post-9/11 did not work.


Last  week's revelations that the Central Intelligence Agency engaged in torture following the Sept 11, 2001, attacks on the United States should have surprised no one. But they may yet help to dispel the longstanding myth that torture works.

The release of the long-awaited Senate report has filled in gruesome details of sleep deprivation, forced standing for days on end, waterboarding, rectal feeding, threats to the children of detainees, and other so-called "enhanced interrogation" techniques.

Shocking? Yes. Surprising? Not if you have been paying attention.

The first serious accounts of abuse by US officials came in December 2002 when the Washington Post reported on the stress and duress tactics being used on detainees held abroad. Additional stories began to emerge, but it was only when photographic evidence of abuse was leaked from the Abu Ghraib prison in April 2004 that the issue came to be publicly debated.

In March 2005, the director of the CIA defended waterboarding as a "professional interrogation technique". Then Vice-President Dick Cheney was more flippant, saying in October 2006 that a "dunk in water" was a "no brainer" if it saved American lives. (This was, presumably, the "dark side" of which he had warned in the days after Sept 11.)

In August this year, President Barack Obama made headlines when he acknowledged - as only an American leader could - that "we tortured some folks". He had actually used the "T" word before: at a news conference in 2009, marking his 100th day in office, he described waterboarding as torture.

Mr Obama is to be credited with prohibiting the use of enhanced interrogation techniques, though by the end of his term, then-President George W. Bush had revoked the dubious legal justifications for inflicting pain and humiliation on detainees.

The Senate report documents these and many other post-Sept 11 actions. But the report's greatest impact may yet be as a powerful rebuttal of arguments that torture is effective. For the great lie at the heart of many debates over torture, particularly as it is portrayed in the media, is that torture is unpleasant - but it works.

Ticking time bombs everywhere

THE cliched example of this is the "ticking time bomb" hypothetical.

Imagine a scenario in which a terrorist has planted a bomb that will detonate within a fixed period of time and kill large numbers of people. The terrorist has been apprehended but will not reveal the location of the bomb.

Should any restrictions limit the interrogation? Can the terrorist be tortured?

If one assumes an ideal set of circumstances - there really is a bomb, it really is the terrorist being held, he really will speak after a clinical application of pain, and so on - many people would allow for some kind of torture to be used. Some, like Harvard law professor Alan Dershowitz, have extrapolated from this to argue that we should move from prohibiting torture to regulating it.

But a legal system should never assume ideal circumstances. And a society should not abandon its long-term values because of short-term threats.

The real news in last week's Senate report was the extent to which a secret programme quickly spiralled out of control and the fact that this human suffering appears to have served no purpose.

In essence, after the horrific attacks of Sept 11, US officials began to see ticking time bombs everywhere and acted accordingly. This was not limited to CIA agents. Mr Jay Bybee, then in the Justice Department and now a federal judge, claimed at one point that the "ticking time bomb" was a "real world" scenario and that interrogations had helped the US authorities capture alleged dirty bomber Jose Padilla. As page 181 of the executive summary observes in deadpan: "This information was inaccurate."

Indeed, the 6,700-page report concludes that the use of torture yielded little, if any, valuable information. Detainees either provided nothing new or they engaged in outright fabrications - saying whatever they thought their captors wanted them to say in order to make the pain stop. Again, this should not have been surprising: many of the techniques implemented had been derived from a programme that trained US soldiers to resist interrogations based on tactics used by Chinese communists during the Korean War that were intended to extract false confessions.

Moral no-man's-land

MOST of the discussion has focused, correctly, on the abuse of over a hundred men held extra-judicially by the United States. But perhaps the clearest example of the lack of control is the incident that unintentionally guaranteed the publication of so much of the report.

Senator Dianne Feinstein, chair of the Senate Intelligence Committee, had long been a staunch defender of limited oversight of the intelligence community's actions. Nevertheless, when her committee started investigating the agency's role in torture, CIA agents not only lied to the senators - but they also hacked into her staff members' computers.

After months of denials, the director of the CIA had to make an embarrassing apology. Ms Feinstein was, rightly, furious.

Another aspect of the report worthy of note is that the suffering was not limited to the detainees. CIA personnel are quoted as being "disturbed" and choking up to the point of tears. Others requested transfers. (This echoes a comment by one of the Federal Bureau of Investigation's top interrogation experts to Ms Jane Mayer of the New Yorker a few years ago: "Only a psychopath can torture and be unaffected. You don't want people like that in your organisation.")

An indication of the moral no-man's-land into which the CIA wandered is captured in its reaction to a statement from the White House in 2003. On the United Nations International Day in Support of Victims of Torture, Mr Bush condemned torture and committed the US to leading by example. The CIA's deputy-general counsel expressed surprise and concern at the statement, and at a White House spokesman's quote that all prisoners in US custody are treated "humanely".

A few months later, an interrogator is described explaining to Hambali, the former leader of Jemaah Islamiah, that his case will never go to a courtroom - because "we can never let the world know what I have done to you". (Hambali continues to be detained in Guantanamo Bay.)

We can now look forward to weeks of blame-shifting, as former Bush administration officials and leaders of the intelligence community seek to displace responsibility from themselves onto others. Among the questions to be answered is how well Mr Bush was briefed on the subject. The report states at one point that the then-President himself had asked not to be briefed on the location of the CIA's secret prisons in case he accidentally disclosed the information. Elsewhere, a CIA e-mail from 2003 is quoted to the effect that then-Secretary of State Colin Powell was being intentionally kept out of the loop as he "would blow his stack if he were to be briefed on what's been going on".

Defusing the bomb

IN MY classes I have sometimes used the ticking time bomb hypothetical to explore these issues. Occasionally, my students have pressed me on what I myself would do if faced with such a situation in real life. I explain that it is mainly a rhetorical device, but sometimes they will not accept another question as an answer.

Well, there is no good answer. Though it can be argued that terrorism has never been an existential threat to the US (more Americans are struck by lightning than killed in terrorist attacks), for a small country like Singapore, a single nuclear detonation could conceivably threaten the country as a whole.

The least bad answer is that if I were genuinely convinced that the threat was real, that the perpetrator was guilty, and that the method was the only one that would work, then I might well resort to torture.

And then - regardless of whether I was correct in my assumptions - I should go to prison.

But the scenario is so unlikely that it should remain in the realm of fiction and philosophy. As the US experience after Sept 11 shows, the far greater danger is agents of the state will make assumptions about threats without any real fear as to consequences.

An old friend used to say that no one is completely useless: You can always be a bad example. How the US manages these revelations of the extent to which its agents authorised and perpetrated torture will have a significant impact on its moral standing in the world. Yet it may also make clear the case that, for even the richest and most powerful country on the planet, torture didn't work.

The writer is the dean of the National University of Singapore Faculty of Law. His books include One Nation Under Surveillance: A New Social Contract To Defend Freedom Without Sacrificing Liberty, which was released in paperback last year.