Freedom New Mexico
The release of the so-called “torture memos” last week, in response to an American Civil Liberties Union lawsuit, has renewed debate about whether torture, or “enhanced interrogation” was useful or justified as part of what officials then called the “war on terror.”
The debate is healthy, but if we don’t learn something useful from it, it is likely to pass into the dustbin of history as yet another episode of mutual recrimination leading nowhere and satisfying nobody.
Memos released last week were sent to lawyers at the Central Intelligence Agency. Their purpose was to provide, in spots in rather grueling detail, what kind of interrogation techniques CIA interrogators were legally authorized to use.
These memos certainly make it clear the CIA did use enhanced interrogation techniques that have been defined as torture when done by operatives from other countries, including the simulated drowning technique known as water boarding, sleep deprivation, nakedness in extreme cold, beatings, threats against relatives, forcing uncomfortable postures for long periods, and more.
The Obama administration has announced it does not intend to prosecute CIA operatives who relied on these and other memos that appeared to authorize such techniques as legal.
There is a strong case for prosecution. The Convention Against Torture, signed in 1988 by then-President Ronald Reagan and ratified by the Senate in 1994, requires signatories to investigate allegations of torture and to “submit the case to its competent authorities for the purpose of prosecution … No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture … An order from a superior officer or a public authority may not be invoked as a justification of torture.”
If we believe the rule of law applies to rulers as well as to the ruled, to government employees as well as to ordinary citizens — which is the essence of the rule of law — then at least an investigation of both those who committed and those who ordered or authorized torture, up to and including the man in the Oval Office, would seem appropriate.
Others argue that more helpful would be the “truth and reconciliation” commissions convened after the end of the legally enforced regime of racial discrimination and persecution called apartheid in South Africa. Nelson Mandela, president of South Africa at the time, believed that getting the full story of atrocities committed in the name of apartheid out in public was more important than prosecuting people — and that immunizing people from prosecution was the best way to encourage people to tell what they and others had done.
A case can be made for either approach. What seems more important is to use public interest in the matter to try to answer the question of whether torture actually “works” in the sense that it can elicit information vital to protecting America and American interests.
You know the argument. If you had a captured terrorist and you knew a plan to detonate a nuclear weapon in a major American city was scheduled to be implemented in 24 hours and the terrorist in question knew the operational details, wouldn’t you torture him to get the information and prevent the catastrophe? Torture may be regrettable but it may be necessary to keep us safe.
Maybe you would resort to torture, argue torture opponents, but you wouldn’t be likely to get accurate information. Under torture prisoners tell captors what they think they want to hear or what they think will stop the pain — seldom the truth.
The fact that water boarding was used 266 times, according to the memos, on suspects Khalid Shaikh Mohammed and Abu Zubaydah, adds weight to the critics — and especially debunks an oft-told tale that Abu Zubaydah began spilling his guts after only 35 seconds of waterboarding. But it’s not definitive enough.
Even if it has to be done by people cleared to handle top-secret information, it would be worth trying to find out if torture really does yield reliable information. We doubt if it has done so in more than a tiny number of cases among hundreds of documented instances of using torture. But we may be wrong; let’s find out.