News that the CIA destroyed tapes of interrogations during which al Qaeda operatives were tortured has elicited little public reaction. This apparent lack of concern helps explain the behavior of several leading Democratic members of Congress back in 2002, when they were briefed on the potential use of waterboarding, or simulated drowning, and similar techniques to extract information from terrorist suspects.
With the exception of a letter to the CIA written by Rep. Jane Harman of California, these Democrats seem to have raised no objection to making it U.S. government policy to torture terrorist suspects (it’s worth emphasizing these techniques have been used on people who not only haven’t been convicted of any crimes, but who in some cases turned out to be innocent altogether).
There are three distinct arguments against torture: it’s illegal, it’s immoral and it doesn’t work. The first is the easiest to dismiss, since, like any great power, the United States only pays attention to international law when its government believes it’s in the nation’s interest to do so.
In any case, nothing is easier than to find lawyers such as University of California law professor John Yoo and now-federal Judge Jay Bybee — advocates who informed President Bush that, in their view, waterboarding isn’t really torture, and that, furthermore, laws prohibiting the president from torturing the nation’s enemies might well be unconstitutional.
As for the morality of torture, disputes about fundamental moral principles are famously impossible to resolve. The moral axiom that there are certain things it’s never permissible to do, and that torturing a human being is one of them, can never be proven, no matter how self-evident it may appear to those who agree with it.
Which brings us to the third objection to torture — that it doesn’t work.
Consider the case of Abu Zubaydah, one of the men tortured in the interrogations recorded on the destroyed tapes. Zubaydah turned out not to be any sort of terrorist mastermind, but rather a low-level operative who had almost no useful information to confess to his tormentors. (The agent who led the interrogation has claimed torturing Zubaydah did produce evidence of various genuine plots, but there is no independent evidence for his claims.)
He was also — or perhaps he became in the course of his interrogation — seriously mentally ill.
Nevertheless, Zubaydah was waterboarded, threatened with certain death, kept awake continuously for days at a time (a technique former Israeli Prime Minister Menachem Begin was subjected to by the KGB, and which he described as a torment far worse than starvation) and otherwise tortured, until he started “confessing” to his involvement in an amazing variety of terrorist plots.
Zubaydah claimed he was involved in plots to blow up the Statue of Liberty, to attack shopping malls, to blow up water-treatment plants and the Brooklyn Bridge, to sabotage nuclear facilities, and so on. Each of these “confessions” led to a massive waste of law-enforcement resources, as various state and federal agencies rushed to avert the imaginary plots Zubaydah described.
Kevin Drum of the Washington Monthly sums up the situation: “we brutally tortured an al Qaeda operative who was (a) unimportant and low-ranking, (b) mentally unstable, (c) had no useful information, and (d) eventually spewed out an endless series of worthless, fantastical ‘confessions’ under duress. This was all prompted by the president of the United States, implemented by the director of the CIA, and the end result was thousands of wasted man hours by intelligence and law-enforcement personnel.”
It would be an exaggeration to say torture (begin ital) never (end ital) works. But it is, to say the least, unclear whether the practical costs of cases like Zubaydah’s outweigh the benefits of the occasionally useful piece of information torture elicits.
That an immoral policy that also doesn’t work has been embraced by both major parties is a sad comment on the extent to which fear has corrupted our leaders and ourselves.
(Paul F. Campos is a law professor at the University of Colorado and can be reached at Paul.Campos(at)Colorado.edu.)