(The original poster for the film The Road to Guantanamo.)
Too many good pieces on the torture memos have been written in the past few days, as well as too many atrocious torture apologist pieces, for me to link them all. I can't go through all the torture apologia pieces as thoroughly as with David Rivkin's inconsistent, disingenuous arguments. However, I did want to spend some time on the recent Wall Street Journal op-ed by former NSA and CIA head Michael Hayden and former Attorney General Michael Mukasey. It responds to Obama's release of four Bush era memos on torture, describing abusive techniques ranging from physical assault to psychological attacks to sensory deprivation to waterboarding. Hayden and Mukasey say the president has 'tied his own hands' in giving up torture, but they're attempting a little sensory deprivation of their own, trying to prevent the public from seeing the full truth of the war crimes committed by their colleagues in the Bush administration.
Michael Hayden has been running around quite a bit to argue against any investigation. As Scott Horton, discussing the memos on Democracy Now on Friday, April 17th, pointed out:
Well, I think if we have a little bit more candid Michael Hayden, we’d hear him saying something else. In fact, it was reported in Bart Gellman’s book Angler that around the time of the 2004 elections, he had a very, very strong focus on and fear of prosecution, if the things he was involved with should become public, a matter of public knowledge. And I think that’s what’s in the back of his mind here. I don’t think it’s national security at all.
Neither Hayden nor Mukasey is a disinterested party in all this. Hayden's legal jeopardy stems largely from other law-breaking by the Bush administration, but disclosures in one area may lead to more. It's not as if either of them wants the truth to come out, because even if they don't face legal jeopardy themselves, and their colleagues face greater danger of criminal convictions, their reputations could plummet. Still, this is a gamble – a poker bluff, lying about war crimes to prevent investigations and prosecutions. If they don't pull it off, their reputations could fall even further. (Presumably they feel in too deep for the more honorable route of whistle-blowing.)
There are several key lies in the Hayden-Mukasey piece. The first is that they avoid ever using the word "torture" even though the Red Cross report and U.S. statutes are clear on this - torture is precisely what was committed. The second is that they claim that torture works, and that American torture provided actionable intelligence. This specific claim ties into a general, false and horrendous notion that's been dangerously widespread in the past few days (and the past several years): that torture works, that other methods don’t, and that foregoing the cruel immorality of torture means we're at greater risk. John Yoo, Dick Cheney and most torture apologists have pushed exactly this line, however implicitly: investigate the war crimes we committed, and you'll all die horribly in a terrorist attack. It's a particularly evil piece of bullshit, but it's proved disappointingly effective and is often repeated uncritically in the corporate media. To quote the post on Rivkin:
As we've explored before, torture is (1) immoral, (2) illegal, (3) endangers us (especially American troops in the Middle East), and (4) doesn't work – unless one wants to inflict pain, produce bogus intelligence or elicit false confessions. For obtaining reliable information, more humane, rapport-building techniques are far more effective.
You can read the full Hayden/Mukasey op-ed here, and Memeorandum links a number of responses. I'm going to go through the entire piece, paragraph by paragraph.
The President Ties His Own Hands on Terror
The point of interrogation is intelligence, not confession.
By MICHAEL HAYDEN and MICHAEL B. MUKASEY
The Obama administration has declassified and released opinions of the Justice Department's Office of Legal Counsel (OLC) given in 2005 and earlier that analyze the legality of interrogation techniques authorized for use by the CIA. Those techniques were applied only when expressly permitted by the director, and are described in these opinions in detail, along with their limits and the safeguards applied to them.
The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.
There are several falsehoods here. As Scott Horton pointed out on Democracy Now (linked above), the abuses started before these memos were issued, at the directive of the White House. The memos were ass-covering attempts because the CIA was worried about legal jeopardy if and when their actions became known. Cheney and others have tried to claim they authorized torture in response to CIA requests, but that's more ass-covering. (Jane Mayer's The Dark Side is one of the better accounts of what happened, and the excellent documentary Torturing Democracy can be viewed online.)
Hayden and Mukasey are correct that the point of interrogation is intelligence, not confessions, but they're trying to gloss over two crucial points. One, rapport-building is a far more effective interrogation technique, as testified to by U.S. military interrogator Matthew Alexander. Two, torture – what happened under Bush – produces false confessions, and can produce false intelligence that wastes resources and wears out agents, as it did with Abu Zubaydah (as chronicled by Ron Suskind in The One Percent Doctrine, among other sources). Hayden and Mukasey also push a familiar Bush line, that somehow, 9/11 occurred because the Bush administration was restrained by the law, as opposed to them ignoring imminent threat warnings and being horribly incompetent. This ties into the central lie they're pushing: foregoing the cruel immorality of torture means we're at greater risk.
Proponents of the release have argued that the techniques have been abandoned and thus there is no point in keeping them secret any longer; that they were in any event ineffective; that their disclosure was somehow legally compelled; and that they cost us more in the coin of world opinion than they were worth. None of these claims survives scrutiny.
This is a better written paragraph than many torture apologia pieces, because it's fairly accurate other than its conclusion. Hayden and Mukasey will save the bulk of their straw men for later.
Soon after he was sworn in, President Barack Obama signed an executive order that suspended use of these techniques and confined not only the military but all U.S. agencies -- including the CIA -- to the interrogation limits set in the Army Field Manual. This suspension was accompanied by a commitment to further study the interrogation program, and government personnel were cautioned that they could no longer rely on earlier opinions of the OLC.
Although evidence shows that the Army Field Manual, which is available online, is already used by al Qaeda for training purposes, it was certainly the president's right to suspend use of any technique. However, public disclosure of the OLC opinions, and thus of the techniques themselves, assures that terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them, and can supplement their training accordingly and thus diminish the effectiveness of these techniques as they have the ones in the Army Field Manual.
"Absolute limit" is my favorite bit. The key lie here is that torture is effective, but outlawed, and because of that, evil terrorists will laugh at our expense and be able to operate without fear (twirling their mustaches as they do so). This ignores, once again, that torture is completely unreliable for producing accurate intelligence, and that rapport-building techniques are much more effective. "If only they'd let us torture these evil-doers, we'd all be safe!" This is very much a 24 fantasy, a chief inspiration for many Bush officials and completely contrary to the actual history of torture through the ages. In past conflicts, enemy soldiers have been relieved to be treated well by Americans and thus have been more willing to disclose information. Some enemy soldiers have been more willing to surrender, thus saving lives, because of the American reputation of treating prisoners humanely. American and British interrogators of Germans during WWII have denounced the Bush administration's torture policies.
Malcolm Nance, a former SERE instructor, wrote one of the definitive pieces on waterboarding. It's a fallacy to think it can be resisted indefinitely. Holding out for more than a few minutes is extraordinary, because it is controlled drowning, and the panic it creates is primal and overpowering. Waterboarding long enough will "break" anyone in the sense that he or she will beg for it to stop, but it does not "break" them in the sense of making them tell the truth. Torture typically produces false confessions, for obvious reasons – the victim will say anything to make the suffering stop. The ancient Romans used torture as punishment, but statements obtained through torture were inadmissible for this very reason. As I've argued before, given what's effective and what's not, and what's legal and moral and what's not, if you're approaching a prisoner asking, "How much pain can we inflict on him without breaking the law?" you're already on the wrong path, and a very dangerous one at that.
Moreover, disclosure of the details of the program pre-empts the study of the president's task force and assures that the suspension imposed by the president's executive order is effectively permanent. There would be little point in the president authorizing measures whose nature and precise limits have already been disclosed in detail to those whose resolve we hope to overcome. This conflicts with the sworn promise of the current director of the CIA, Leon Panetta, who testified in aid of securing Senate confirmation that if he thought he needed additional authority to conduct interrogation to get necessary information, he would seek it from the president. By allowing this disclosure, President Obama has tied not only his own hands but also the hands of any future administration faced with the prospect of attack.
This is mostly a cheap charge of hypocrisy and promise-breaking combined with the key lie, that torture works and foregoing it endangers us.
Disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption. It will also incur the utter contempt of our enemies. Somehow, it seems unlikely that the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists even to help elicit intelligence that could save the lives of its citizens.
This may be the most obnoxious, repulsive paragraph of the entire piece. Hayden and Mukasey have the gall to pretend that outrage over torture and war crimes is somehow false, and that anyone who feels this way is a dupe of the media, while simultaneously, they outrageously lie about war crimes in a major media outlet to prevent justice. (Provide your own profanity.) I'd like to see them argue this one in court. They also show the same views as Cheney and the neocons, who embraced the views of The Arab Mind, a book that argues – falsely and dangerously - that Arabs only respect force, and thus humiliating them is a good idea. There's a quite a straw man here – who knew that the point of upholding human rights was to shame other countries into not mistreating prisoners? Clearly, torturing our prisoners will show them! Seriously, how utterly juvenile and vindictive is this world view? As John McCain said (in one of his principled moments), this is not about them, it's about us. Yet again, Hayden and Mukasey lie that torture will save us.
Which brings us to the next of the justifications for disclosing and thus abandoning these measures: that they don't work anyway, and that those who are subjected to them will simply make up information in order to end their ordeal. This ignorant view of how interrogations are conducted is belied by both experience and common sense. If coercive interrogation had been administered to obtain confessions, one might understand the argument. Khalid Sheikh Mohammed (KSM), who organized the Sept. 11, 2001 attacks, among others, and who has boasted of having beheaded Daniel Pearl, could eventually have felt pressed to provide a false confession. But confessions aren't the point. Intelligence is. Interrogation is conducted by using such obvious approaches as asking questions whose correct answers are already known and only when truthful information is provided proceeding to what may not be known. Moreover, intelligence can be verified, correlated and used to get information from other detainees, and has been; none of this information is used in isolation.
This paragraph is simply incoherent. Their use of "this ignorant view" is also awfully obnoxious, but the bigger problem is that Hayden and Mukasey construct an alternative reality here. In the first section, Hayden and Mukasey pretend that torture is the same as normal (effective, rapport-building) interrogation. Of course torture produces false confessions. It's unlikely that Hayden and Mukasey are ignorant of this, so more likely, they're lying. "If coercive interrogation had been administered to obtain confessions, one might understand the argument" is a lawyerly lie if ever there was one. Coercive interrogation was administered, and did produce false confessions – but Hayden and Mukasey claim those false confessions weren't the goal, and construct their sentence to deceptively suggest that neither coercive interrogation nor false confessions took place. They continue with the shell game here, conflating torture with legal and effective interrogation. They write that "But confessions aren't the point. Intelligence is." Notice they've shifted to discussing general principles and not what actually happened. They're talking about the goals of interrogation, and are largely correct, but this is to pretend once again that the Bush administration did not torture prisoners and produce false intelligence. Specifically, Khalid Sheikh Mohammed was tortured, and some of his information was very unreliable, including his "confession" to killing Daniel Pearl, since another prisoner had confessed to it already. And as we've noted before, the Bush administration based pre-war assertions about links between Iraq and Al Qaeda on statements from Ibn al-Shaykh al-Libi obtained through torture. Torture's very effective at producing convenient lies – that's one of the chief reasons it's used.
The terrorist Abu Zubaydah (sometimes derided as a low-level operative of questionable reliability, but who was in fact close to KSM and other senior al Qaeda leaders) disclosed some information voluntarily. But he was coerced into disclosing information that led to the capture of Ramzi bin al Shibh, another of the planners of Sept. 11, who in turn disclosed information which -- when combined with what was learned from Abu Zubaydah -- helped lead to the capture of KSM and other senior terrorists, and the disruption of follow-on plots aimed at both Europe and the U.S. Details of these successes, and the methods used to obtain them, were disclosed repeatedly in more than 30 congressional briefings and hearings beginning in 2002, and open to all members of the Intelligence Committees of both Houses of Congress beginning in September 2006. Any protestation of ignorance of those details, particularly by members of those committees, is pretense.
In most accounts by non-Bushies, Abu Zubaydah served primarily as a travel agent and was mentally ill, made worse by extensive torture. According to The One Percent Doctrine, he was tortured in large part because Bush had talked him up in public and told CIA head George Tenet, "You're not going to let me lose face on this, are you?" (See the earlier linked Suskind excerpts for more.)
Dan Froomkin has tirelessly debunked claims of Bush era torture "working." In his response to the Hayden/Mukasey op-ed, he writes:
But as I've written previously Bin al Shibh was captured almost half a year after Zubaida was, and author Ron Suskind reported that the key information about his location came not from Zubaida but from an al-Jazeera reporter who had interviewed bin al Shibh and KSM at their safehouse apartment in Karachi. Zubaida also did not provide information that led to KSM's capture. Suskind reported that a tipster led the CIA directly to KSM and subsequently collected a $25 million reward.
It's not only Suskind saying this, either. As Froomkin notes in that previous post:
Jane Mayer, in her book The Dark Side, substantiates many of Suskind's findings, and concludes that "whatever their motives, it appears the President and the Director of Central Intelligence gave the public misleadingly exaggerated accounts of the effectiveness of the abuse they authorized. Some might impute dishonest motives to them. But it seems more likely that they fooled not just the public, but also themselves."
Hayden and Mukasey have a point when they write that "Any protestation of ignorance of those details, particularly by members of those committees, is pretense." Some members of Congress did know details, although others have claimed they were deceived or details were otherwise omitted, which would hardly be a first for the Bush administration. But say that Hayden and Mukasey are correct, and that the Bush administration not only bragged about their "successes" but were also entirely honest about the torture they used. So what? Do war crimes magically not become war crimes because they were revealed to other people in positions of power? They weren't somehow made legal, and certainly not moral. It's not as human rights activists haven't criticized congressional leaders for their reluctance to oversee and investigate all these affairs. Have a full investigation and disclosure, and may the chips fall where they may.
The techniques themselves were used selectively against only a small number of hard-core prisoners who successfully resisted other forms of interrogation, and then only with the explicit authorization of the director of the CIA. Of the thousands of unlawful combatants captured by the U.S., fewer than 100 were detained and questioned in the CIA program. Of those, fewer than one-third were subjected to any of the techniques discussed in these opinions. As already disclosed by Director Hayden, as late as 2006, even with the growing success of other intelligence tools, fully half of the government's knowledge about the structure and activities of al Qaeda came from those interrogations.
Well, if you only tortured a few of them, that's okay, then. This is a deliberately misleading account because torture occurred before the memos were issued, per White House directives. Moreover, this picture is grossly deceptive because, as Emptywheel notes, "According to the May 30, 2005 Bradbury memo, Khalid Sheikh Mohammed was waterboarded 183 times in March 2003 and Abu Zubaydah was waterboarded 83 times in August 2002." As John Cole comments, "There better be a pretty damned long fuse on that ticking time bomb. And yes, this is nothing but pure sadism."
Nor was there any legal reason compelling such disclosure. To be sure, the American Civil Liberties Union has sued under the Freedom of Information Act to obtain copies of these and other memoranda, but the government until now has successfully resisted such lawsuits. Even when the government disclosed that three members of al Qaeda had been subjected to waterboarding but that the technique was no longer part of the CIA interrogation program, the court sustained the government's argument that the precise details of how it was done, including limits and safeguards, could remain classified against the possibility that some future president may authorize its use. Therefore, notwithstanding the suggestion that disclosure was somehow legally compelled, there was no legal impediment to the Justice Department making the same argument even with respect to any techniques that remained in the CIA program until last January.
Hayden and Mukasey are basically whining about Obama revealing what the Bush administration did. However, they also suggest once again that torture worked and that it was somehow legal.
There is something of the self-fulfilling prophecy in the claim that our interrogation of some unlawful combatants beyond the limits set in the Army Field Manual has disgraced us before the world. Such a claim often conflates interrogation with the sadism engaged in by some soldiers at Abu Ghraib, an incident that had nothing whatever to do with intelligence gathering. The limits of the Army Field Manual are entirely appropriate for young soldiers, for the conditions in which they operate, for the detainees they routinely question, and for the kinds of tactically relevant information they pursue. Those limits are not appropriate, however, for more experienced people in controlled circumstances with high-value detainees. Indeed, the Army Field Manual was created with awareness that there was an alternative protocol for high-value detainees.
The first sentence makes little sense. They seem to be arguing that revealing prisoner abuses is the real problem, not the abuses themselves. And Hayden and Mukasey have been conflating interrogation with torture throughout their entire op-ed, and do so again in this paragraph. Unconscionably, they suggest the "bad apple" view of Abu Ghraib, when it's well established at this point that the abuses at Abu Ghraib, Guantanamo, Bagram and other sites was the result of policy issued at the top. (See again Torturing Democracy, linked above, or Phillipe Sands' Torture Team: Rumsfeld's Memo and the Betrayal of American Values.) The talk about "alternative protocol" is obfuscation. At issue is the baseline treatment of prisoners, the core human rights every person is entitled to under U.S. and international law. We are talking about torture, which is immoral, and always illegal. Even if the CIA wasn't following the Army Field Manual, they would not be entitled to break those laws.
In addition, there were those who believed that the U.S. deserved what it got on Sept. 11, 2001. Such people, and many who purport to speak for world opinion, were resourceful both before and after the Sept. 11 attacks in crafting reasons to resent America's role as a superpower. Recall also that the first World Trade Center bombing in 1993, the attacks on our embassies in Kenya and Tanzania, the punctiliously correct trials of defendants in connection with those incidents, and the bombing of the USS Cole took place long before the advent of CIA interrogations, the invasion of Saddam Hussein's Iraq, or the many other purported grievances asserted over the past eight years.
This paragraph is pretty illogical and incoherent, and reminds me of one of Bush's craziest straw man arguments from years ago. Hayden and Mukasey are seriously suggesting that many people think the U.S. deserved the 9/11 attacks? And that such people are on the same side of those who dislike American power? This smells of an irrational attack on Europe and activists, and a lame attempt to discredit torture opponents. Or maybe it's flag-waving and fear-mongering as an irrational appeal. Yes, a number of attacks " took place long before the advent of CIA interrogations," but so what? Bush tried to claim that those same attacks occurred because we hadn't invaded Iraq yet. Hayden and Mukasey seem to be arguing that they occurred because we weren't torturing people. Or they're claiming that people didn't like us even before we started torturing people, so who cares if they don't like us now? Oh, also – torture and "the invasion of Saddam Hussein's Iraq" – make sure you mention the boogeyman by name – were both unnecessary and extremely harmful to the United States. Starting a war of choice and killing people needlessly, and torturing people needlessly, aren't "purported grievances," either. They're real. If you can come up with a more charitable interpretation of their paragraph, let me know, because it seems like utter crap in even the best light.
The effect of this disclosure on the morale and effectiveness of many in the intelligence community is not hard to predict. Those charged with the responsibility of gathering potentially lifesaving information from unwilling captives are now told essentially that any legal opinion they get as to the lawfulness of their activity is only as durable as political fashion permits. Even with a seemingly binding opinion in hand, which future CIA operations personnel would take the risk? There would be no wink, no nod, no handshake that would convince them that legal guidance is durable. Any president who wants to apply such techniques without such a binding and durable legal opinion had better be prepared to apply them himself.
This really isn't hard. If a lawyer says murder is legal, it doesn't make it so. It's not as if the CIA and the Bush administration thought all this was legal to begin with, which is why they kept things as secret as they did and issued these ass-covering memos. Wow, the CIA needs to follow the Geneva Convention and not commit war crimes, which is such a burden, especially since torture does not work reliably for producing accurate intelligence and legal methods do.
Beyond that, anyone in government who seeks an opinion from the OLC as to the propriety of any action, or who authors an opinion for the OLC, is on notice henceforth that such a request for advice, and the advice itself, is now more likely than before to be subject after the fact to public and partisan criticism. It is hard to see how that will promote candor either from those who should be encouraged to ask for advice before they act, or from those who must give it.
Oh, please. Again, the OLC can't say something that's clearly illegal is legal. The issue is hardly "candor." The Bush administration aggressively attacked and undermined "candor." Angler is probably the best account, but Dick Cheney, David Addington, Donald Rumsfeld, George Bush and the rest actively squelched and punished dissent. They didn't want honest brokers. That’s why they hid major decisions even from key members of their own administration, and Cheney even spied on some of them. John Yoo, Bybee and the rest were either horribly incompetent lawyers in claiming that torture was legal (as well as warrantless surveillance and other abuses) or opportunist suck-ups, willing to say black was white to please their superiors. I'd say the evidence strongly points to the latter. What Hayden and Mukasey describe would not be an issue in a competent and relatively honest administration.
In his book "The Terror Presidency," Jack Goldsmith describes the phenomenon we are now experiencing, and its inevitable effect, referring to what he calls "cycles of timidity and aggression" that have weakened intelligence gathering in the past. Politicians pressure the intelligence community to push to the legal limit, and then cast accusations when aggressiveness goes out of style, thereby encouraging risk aversion, and then, as occurred in the wake of 9/11, criticizing the intelligence community for feckless timidity. He calls these cycles "a terrible problem for our national security." Indeed they are, and the precipitous release of these OLC opinions simply makes the problem worse.
Jack Goldsmith has said that he's no civil libertarian, but even so, he was appalled by many of the abuses of the Bush administration. This is subterfuge by Hayden and Mukasey, though. The issue is not one of "timidity and aggression." The issue is whether we're a nation of laws or not. According to U.S. and international statutes, torture must be investigated, and prosecuted where appropriate. "Following orders" is a mitigating factor but not an excuse. The Bush administration committed war crimes, and was warned off that course by members of its own administration such as Alberto Mora. What makes the situation "worse" is that we have people like this in power in the first place, and other people defending this monstrous conduct. It's shameful that, as the op-ed states:
Gen. Hayden was director of the Central Intelligence Agency from 2006 to 2009. Mr. Mukasey was attorney general of the United States from 2007 to 2009.
Aren't we proud. It would be nice if these two actually put duty to their country above loyalty to Bush, Cheney, the six men indicted in Spain and others, but personal honor and conscience have not exactly been the hallmark of the Bush administration. I'd really like to hear some of their reasoning offered up at trial and have it eviscerated. We need a full investigation, with people under oath. The truth needs to come out. We've seen time and time again that when high-ranking people aren't held accountable, they simply abuse power again. And while our national honor is at stake, these are also far from victimless crimes. I'll link once more the Firedoglake petition for AG Eric Holder to appoint a special prosecutor.
Hayden and Mukasey have penned a sensory deprivation op-ed. They seek to blind the public to what actually happened. They want to prevent citizens from hearing the word "torture." But all their attempts to deceive the public, hide the truth and prevent justice can't cover the rank stench of the war crimes committed by their colleagues.
(Cross-posted at Blue Herald)