Beginning in the early 1990s and continuing to this day, the Central Intelligence Agency, together with other U.S. government agencies, has utilized an intelligence-gathering program involving the transfer of foreign nationals suspected of involvement in terrorism to detention and interrogation in countries where — in the CIA’s view — federal and international legal safeguards do not apply. Suspects are detained and interrogated either by U.S. personnel at U.S.-run detention facilities outside U.S. sovereign territory or, alternatively, are handed over to the custody of foreign agents for interrogation. In both instances, interrogation methods are employed that do not comport with federal and internationally recognized standards. This program is commonly known as “extraordinary rendition.”
There are several countries that have utilized the techniques established earlier and thus established a precedent for rendition. The United States has set a precedent for other states to also use extraordinary rendition. By redefining torture and non-combatants, it changes the context of human rights in the international system. Because the United States is such a significant actor, it means that other states will follow their lead when it comes to international policy making. This includes Great Britian who has performed extraordinary rendition on Libyans. When the United States does things within the international system, as a rule setter at the top of the international hierarchy, they establish the rule whereby other states will act. So, when we pursue policy options there must be significant debate to determine its overall effects on the international system rather than if it is simply expedient in the here and now.
There is an argument to be made that extraordinary rendition is a letter of marque or reprisal. These originally were established to counteract piracy, and it is argued that they give the United States power to arrest foreign nationals who represent a threat to the state. Additionally, the United States has claimed in the past that even its own citizens can be classified as enemy combatants, and has done so in order to arrest and torture them.
The confrontation clause suggests that at least when it comes to arresting United States citizens, they have a right to face their accusers. There is no adversarial process in FISA courts or investigations by the CIA or FBI, and while there is some ambiguity about warrants and whether or not it is necessary to have an adversarial process for secret warrants…a scenario that involves torture invariably suggests that the government suspects guilt. The relationship between torturer and tortured is roughly equivalent to one between investigating police and suspect or lawyer and defendant. In all these other cases there is a right to counsel and a right to avoid self-incrimination. These rights for United States citizens should not be suspended just because they are being tortured.
Torture, historically and practically, represents a form of punishment regardless of the context in which it is being done. To imply that inhumane methods should be within government purview whenever they deem it necessary is to admit that the right to confrontation does not exist – especially when torture occurs under conditions where the victim is not confronted with any accusations, but instead, interrogation. This means that they also cannot avoid self-incrimination, and since innocent victims can and have admitted guilt when confronted with torture, there is also no guarantee that their admissions of guilt are true. In essence, whether or not you think that torture or enhanced interrogation are legitimate foreign policy options, the idea that torture should be a legitimate option to use by the US government on United States’ citizens is incompatible with our constitution. Invariably people are being tortured because of accusations or implications of criminal acts, and the constitution clearly states that
In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Torture does not meet this criteria when applied to United States system as it is not adversarial, takes away their right to counsel and takes away their right to avoid self-incrimination.
But what about when it comes to foreign citizens that are arrested or detained under the authority of the marque and reprisal clause? The United States Constitution was, in part, created in such a way that protected the fundamental human rights of United States’ citizens. Our government exists because of human rights violations by the British monarchy, and it seems understandable to claim that human rights are universal, rather than specific to only certain peoples. Why then, would there be an assumption that there is a lower standard of human rights that can be applied by the United States to non-citizens? In the context of a detained person, there seems to be at least some validity to the assertion that they deserve some sort of adversarial court process as established by the constitution, or to have the right to avoid self incrimination. While conflict breeds scenarios wherein the assurance of human rights is more difficult that non-conflict, and wartime scenarios create different laws than non-wartime ones, administering torture breaks several international norms and laws created by the UN and at the Geneva Convention.
At the very least, we should ensure that torture never becomes legitimized or institutionalized in our government as it is now, because it places our own troops and citizens at great risk. As was pointed out earlier, the United States is one of the most important international rule setters. Even if we re-frame torture in terms of “enhanced interrogation”, it is well known that the techniques employed constitute very real torture. The same techniques used in the Vietnam and the Korean wars against United States soldiers are the ones that we now employ and attempt to legitimize. Why go to the lengths to do that, when legitimizing it means that any captured US soldiers will also face the same treatment?
The primary argument of those that advocate torture or enhanced interrogation is the idea of a ticking time bomb scenario. The classic ticking time bomb scenario is one in which bombs are placed at undisclosed and populated areas. In this scenario, the United States has also been able to somehow capture someone that they think is either responsible for, or closely related to the plot. In order to extract the information about where these bombs are, and when they will explode, it is necessary to torture the captured person. This is a bleak scenario that is an unlikely occurrence, and not something that should be used in order to justify an institutionalized torture program. First of all, someone who does go to the lengths described in this scenario is most likely willing to die to ensure that their plot is successful. If they have placed several bombs, and the United States tortures them to reveal the locations, how do we ensure that they tell us all of the locations? Are we satisfied in assuming that the information they give us provides solvency? And that is under the unlikely scenario that there is (a) knowledge of the plot and (b) the United States has captured said subject. What happens under the scenario that we do not have any suspect, or that we have captured and tortured the wrong person, thus wasting important time on a fruitless endeavor? Furthermore, if we have knowledge of the plot, it seems that with the technology advantages that the United States has, it is only a simple matter of tracking a person’s cell phone activity or using security cameras to locate where they have been in the recent past. In that case, is it necessary to torture?
The ticking time bomb establishes a precedent wherein denying the utility of torture seems illogical, yet the ticking time bomb scenario itself is so unlikely that there is little to no precedent of scenarios under which torture can be justified because of imminent risk to the state. Therefore it is not reason enough to establish a torture program.
Assuming that the ticking time bomb terrorist is captured, there is also no guarantee that torture is an effective tool of information extraction. In fact, research suggests information extracted via torture may be more unreliable than information gained in other ways, and from a philosophical perspective it seems that torture may integrate several deductive errors that render it ineffective. Game theory also suggests that the results of torture are inconsistent and unpredictable, and that in most scenarios false information is more likely than not. With such strong evidence against the validity of torture as a tool to extract information, there seems to be little reason to assume that it would be necessary or effective in the unlikely event of a ticking time bomb scenario. This is not to say that ticking time bomb scenarios are impossible, or unsolvable, but likely other techniques besides torture would be more effective.
The question becomes, what methods are there other than torture when extracting information becomes a priority?
Option 1: Talking
Anecdotal evidence in the wake of Abu Ghraibe suggests that interviewing detainees rather than torturing them produces quality information that can be used to destroy terrorist networks, while possibly having the added advantage of changing the narrative about what Americans do inside of countries that we occupy. Matthew Alexander (psuedonym), a former Air Force Interrogator who supervised over 1,000 interrogations and conducted over 300, is a firm believer that sustained interviews rather than torture are the answer to the United States’ intelligence needs. He is the author of “How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq,” and the man who headed the interrogation team that found information that lead to Abu Musab al Zarqawi. One experience of his, in particular, sticks out in illustrating the effectiveness of talking, rather than torturing. One day, his Air Force group captured a young Al Qaeda member named Naji, who was 12 years old. He was belligerent, speaking about his desire to kill “American infidels.” The techniques used are described as follows:
There is more than one approach to extracting information from a captive. Interrogators are often encouraged to use threats and intimidation — and even harsher methods. But my small group of Air Force investigators, along with several military and civilian interrogators on my team, were committed to a different way. We believed that interrogation methods based on building a relationship and on intellectual engagement were far more effective than intimidation and coercion.
Using these techniques they were able to extract viable information:
Back in our office, Steve and I marveled at all the intelligence Naji had provided — the names, the locations. He’d pinpointed the better part of Al Qaeda’s operations around Yousifiya. In the two weeks that followed, our soldiers put this information to good use and took out a significant portion of Al Qaeda’s suicide-bombing network in the area. For two weeks, violence dropped and many lives were saved.
This isn’t a unique experience, as torture was not used by the United States during WWII and we were still able to have an effective intelligence apparatus. And while it has been 70 years since then, we now have greater technological resources to utilize alongside human intelligence. When an interrogator who was instrumental in finding Abu Masab al Zarqawi can make a condemning statement against torture, then maybe we ought to listen. And what about Naji? According to Alexander,
By the end of his stay with us, after we had coddled him, ensured his comfort and treated him with affection despite his contempt for us, he started to warm up. By the day before he left, his vituperative speech had disappeared completely.
Alexander isn’t the only United States interrogator who thinks that torture is counterproductive. This statement from Peter Bauaer, an Army interrogator for 11 years, is a good representation of what many in the intelligence community have come to believe:
I know the techniques in the field manual work, and I know torture isn’t as effective. I was stationed in Europe almost all of my career and I did resistance-to-interrogation training for NATO forces. We simulated the sort of abuse they could expect should they fall into the hands of the Warsaw Pact. This treatment is quite similar to the sort of techniques described as the CIA’s “alternative interrogation procedures.” We invariably obtained more reliable information using our own techniques than we did using the abusive procedures.
Option 2: Intelligence
Intelligence gathering on the ground through human or technological sources is a critical part of United States’ defense policies. Our technological prowess is such that the United States can collect information about the whereabouts of people around the world just through their cell phones. While terrorists may be low income enough that cell phones may be little use, there are certainly scenarios where this technology would be useful. Computer users who use TOR (software that makes it difficult to track their online actions) also are susceptible to NSA spying. Even sophisticated technology designed to avoid spying can eventually be compromised by NSA hackers. This means that critical communications about terrorist plots can’t be contained from prying eyes when using technology. Therefore the final avenue for terrorists is word of mouth.
The United States is well known for having a large network of spies. While it is difficult to integrate oneself into a terrorist network, this is not the only way to gain human intelligence. Their hideouts can be bugged, and the United States can gain valuable intelligence from community members. These tactics yield valuable information, even if they are not 100% reliable (yes, often times innocent people are tortured because of inaccurate intelligence).
Option 3: Challenging Assumptions
Alternatives to torture can also be preemptive, done before the need for gaining information ever arises. How is this done? By challenging the assumptions of those who may decide that terrorism is a viable option against the United States. This doesn’t happen when your country has a history of human rights abuses.
When there is a legitimate claim of human rights abuses by a country, it opens the door for retributive tactics used against them. As a country that tortures, it should be unsurprising when other countries torture our soldiers. As a country that has killed people under these conditions, it should also be unsurprising when our own soldiers are killed. These are the realities of war of proportional force, and when we violate that proportional force, escalation is an inevitability. Even if others do not operate by the same humanitarian rules, if we consistently show care and concern for human life, we can hope that this becomes normal in other countries as well. To reiterate again, the United States is a rule setter within the international system. If we can uphold and follow international law, it is more likely that other countries will follow.
Humanitarian and economic aid have the added benefit of directly helping those who might be at risk of attacking the United States by providing them with a greater quality of life due to United States intervention. Inside of Iraq and Afghanistan this should have been our strategy, to rebuild their economy and assist them to the point that they recognize United States intervention helped the common citizen in their every day life. Converting a majority of people to believe this creates social stigma in committing terrorist acts. A necessary part of our defense policy is providing aid to create good will. In the end, this may be one of the most effective tools we have to prevent terrorist action in the future.
The inherent hypocrisy of “illegal enemy combatants”
Unlawful enemy combatants are not entitled to immunity because they “engage in acts against the United States or its coalition partners in violation of the laws and customs of war during an armed conflict”. This irony can’t be overstated, because the Geneva Accords – which are the internationally agreed upon laws and customs of warfare – specifically outlaw torture. We have created this classification in order to use proportional force against terrorists, but instead we use disproportionate force against innocent people and entrench the perceived legitimacy of terrorism.
Why should we be above the international law that we helped establish? There is an absolute need for the respect of human dignity. Creating an alphabet soup of legalese to justify the torture of “unlawful combatants” does far more harm that it does good. It also violates international norms and law. Claiming that since these combatants are not a part of a standing force or militia sanctioned by a state simply skirts around the obvious intent of the Geneva accords and is wholly dishonest. Standards of fair treatment should apply universally, not arbitrarily.
Where does this leave us?
Torturing United States’ citizens by declaring them illegal enemy combatants has happened. In these scenarios, constitutional protections should protect them from torture as it eliminates the adversarial law process and the right to avoid self-incrimination.
Since our constitutional rights are institutionalized human rights, it is a difficult moral position to take that torture constitutes something that is morally acceptable. We may not have a system of law for foreign prisoners, but it is hypocritical to deny anyone basic human rights. Our government should try to establish the guilt or innocence of detainees, and if they are to be detained by us for an extended amount of time, rather than extradited to their own country, they should enjoy the same right to trial and representation as United States’ citizens.
Furthermore, the traditionally used arguments for the use of torture do not seem to hold water. The ticking time bomb scenario is unlikely, and the chance that such a terrorist would reveal complete or accurate information is even lower. In the war on terror, where torture is used against anyone that could potentially have valuable information, other techniques are yielding just as valuable, if not more valuable information.
Finally, creating good will among countries is difficult when you have a shady human rights record…especially when much of those abuses come against the population that we fear will attack us. Creating good will through humanitarian and economic aid (not giving money away) is a valuable preemptive measure against terrorism.
Deinstitutionalizing torture is the moral thing to do, and evidence suggests that focusing on other means of collecting information will yield more valuable and reliable intelligence.