The self-described “world leader in global intelligence” information group STRATFOR said on Monday, in an assessment of the Obama administration’s decision to release a series of legal memoranda giving the C.I.A. legal cover to engage in torture, that “torture can be a useful tool” and defended President Barack Obama’s decision to protect C.I.A. interrogators who employed torture against detainees from any criminal prosecution.
Obama, in his own defense of his decision to protect torturers, said that harsh interrogation methods “undermine our moral authority and do not make us safer” while defending interrogators “who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”
He also asserted that “nothing will be gained by spending our time and energy laying blame for the past.” The suggestion that it would serve no purpose to hold people accountable for violating U.S. and international law stands in contrast to his avowal within the same statement that he believes in accountability, as well as his remark that “The United States is a nation of laws. My Administration will always act in accordance with those laws, and unshakeable commitment to our ideals.”
U.S. law defines “torture” as “an act committed by a person acting under the color of law specifically intended to inflict sever physical or mental pain or suffering … upon another person within his custody or physical control”.
The legal memoranda in question effectively served to grant the color of law to the use of torture.
Under the law, anyone found guilty of using torture can be fined and imprisoned for up to 20 years. If death results from the use of torture, the offender may be given the death penalty. This applies to anyone who uses torture “outside the United States”, such as C.I.A. detention facilities overseas.
The U.S. War Crimes statute, which applies to offenses “whether inside or outside the United States”, forbids war crimes, defined as a grave breach of the Geneva Conventions and other relevant bodies of international law to which the U.S. is a party. The statute notes that the Geneva Conventions specifically forbid torture as a war crime, defining torture as “The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering … for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.”
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment not only obligates parties to establish jurisdiction over offences committed within that state or by nationals of that state beyond its borders, but to prosecute those accused of having committed such offences.
The legal argument put forth by Justice Department and White House lawyers in numerous memoranda that have come to light over the years is in essence that the President is simply above the law. The Executive Office may simply disregard international treaties and U.S. law as he sees fit in the execution of his duties as Commander-in-Chief of the armed forces and as deemed necessary for purposes of “national security”.
President Obama, by declaring that his administration will protect those who committed or conspired to commit torture despite the U.S. obligation under both domestic and international law to prosecute such individuals, is effectively reaffirming that same interpretation of Executive power adopted under the Bush administration.
In defense of this policy under the Obama administration, George Friedman, founder of STRATFOR, acknowledges that while the harsh interrogation methods given color of law under the recently released memoranda “do not rise anywhere near the top” of the “scale of human cruelty”, the treatment of detainees by the U.S. “was terrible nonetheless.”
“But”, continues Friedman, “torture is meant to be terrible” and torturers should be judged in the context of the terror of 9/11. The U.S. “lack of intelligence” led to an increased sense of fear both among the public and within the government, he asserts. “Washington simply did not know very much about al Qaeda and its capabilities and intentions in the United States.”
The notion that 9/11 was the result of an intelligence failure has been largely discredited. Former Director of Central Intelligence George Tenet admitted to the 9/11 Commission that “the system was blinking red” with warnings about an imminent attack. The C.I.A. had been tracking two of the would-be-hijackers, Khalid al-Midhar and Nawaf al-Hazmi, and knew that al-Midhar had obtained a visa to enter the U.S. Yet the C.I.A. chose not to inform the State Department, the F.B.I., or the Immigration and Naturalization Service to put the men on the terrorist watchlist or otherwise be on the lookout for known al Qaeda operatives who might attempt to enter the U.S.
C.I.A. documents showed that it was known that “al-Qa’ida operative Khalid Shaikh Mohammed was recruiting persons to travel to the United States and engage in planning terrorist-related activity here”, according to the 9/11 Congressional Joint Inquiry report. These persons “would be ‘expected to establish contact with colleagues already living’” in the U.S. “In short,” the report observed, “before September 11, the Intelligence Community recognized that a radical Islamic network that could provide support to al-Qa’ida operatives probably existed in the United States.”
While in the U.S., the two terrorists were assisted by the subject of an F.B.I. terrorism investigation and made frequent contact with an F.B.I. informant. They lived in San Diego under their real names and were even listed in the phone book.
Numerous other examples discrediting the intelligence failure claim exist, including the fact that President George W. Bush received an intelligence brief on August 6, 2001, entitled “Bin Ladin Determined To Strike in U.S.” that said terrorists were planning on exploiting their access to the U.S. “to mount a terrorist strike.” Al Qaeda, the brief stated, “maintains a support structure that could aid attacks” within the U.S. The threat of hijackings was noted, and New York was specifically named as a potential target for an attack.
When the existence of this brief became public knowledge, President Bush responded to criticism by saying that brief “was no indication of a terrorist threat.” Such public statements, belied by actual facts, served to help establish the popular myth that U.S. intelligence was blind to the threat that manifested on the morning of September 11, 2001.
Friedman argues that it was this “lack of knowledge” about terrorists’ intentions that “led to the authorization of torture”, which “offered a rapid means to accumulate intelligence”.
That torture is an effective means of gathering intelligence is also a notion that is offered no credibility among interrogation experts. The use of torture, far from resulting in the extraction of credible and useful information, results in the victim saying whatever he or she thinks their interrogator wants to hear in order to make it stop. Torture is useful, but as a means to elicit false confessions, such as for propaganda purposes.
This is perfectly well recognized. In fact, many of the interrogation methods authorized during the Bush administration were derived from Chinese Communist techniques. Military interrogation trainers at Guantanamo Bay, Cuba, where the U.S. maintains a detention facility, based an entire class on methods taken from a 1957 study entitled “Communist Attempts to Elicit False Confessions From the Air Force Prisoners of War”.
The military developed a training program ostensibly designed to teach members of the armed forces how to resist harsh interrogation methods, but this program, known as “Survival, Evasion, Resistance, Escape”, or SERE, was used by both the C.I.A. and military not to teach resistance to such methods, but rather how to use such methods on others.
Remarking on the revelation of the origins of interrogation methods employed by the U.S. after 9/11, Senator Carl Levin said, “What makes this document doubly stunning is that these were techniques to get false confessions. People say we need intelligence, and we do. But we don’t need false intelligence.”
Continuing, Friedman points out that “The president takes an oath to preserve, protect and defend the Constitution from all enemies foreign and domestic”, but argues fulfillment of this oath required President Bush to authorize torture gain intelligence. In other words, he adopts the position of the authors of government legal memos that it’s okay to disregard U.S. and international law under the U.S. Constitution in cases where the President unilaterally decides it is necessary to do so for national security.
Friedman illustrates this supposed necessity not with a real life example, but with what is known as the “ticking time bomb scenario”.
Lt. Col. John A. Nagl, coauthor of the Army counterinsurgency field manual, said, “Frankly, I joined the military to fight against people who torture” in expressing shock and horror at a survey by Foreign Policy that found that 44% of retired and active military officers disagreed with the statement “Torture is never acceptable”. He suggested this figure might reflect what he called “the Jack Bauer effect” (a reference to the popular TV series “24″ in which the main character employs torture in just such “ticking time bomb” scenarios) and “the extraordinarily hypothetical, one in a million million sort of case”.
Torture should be exercised only by “well-trained, experienced personnel”, Friedman argues in his STRATFOR assessment. While acknowledging that “the person you are torturing may well know nothing at all”, in which case torture “becomes not only a waste of time and a violation of decency, it actually undermines good intelligence.” But at the same time he argues that “critics” of torture “cannot know the extent to which the use of torture actually prevented follow-on attacks.” While such critics “may have been correct”, nobody “had the right to assume” that another terrorist attack wasn’t imminent.
The implication is that critics have no right to judge those responsible for authorizing and using torture. The problem isn’t with the use of torture itself. Torture, “as with other exceptional measures”, he argues, “is useful, at best, in extraordinary situations.” But “in the hands of bureaucracies”, it “becomes the routine”. Torture was initially “essential”, but after time “the emergency” ended. It “can be a useful tool”. Torture isn’t wrong, in other words, it is just at times not necessary.
The “fundamental question” to Friedman and his ilk is what the limits are on the president’s obligation under his oath of office, implying that the Executive may have a duty to use torture under the U.S. Constitution – the very argument employed by the authors of the legal memos in question.
That such Orwellian logic, which says essentially that the president must assume dictatorial powers and violate U.S. and international law in order to uphold his oath of office, has come to be so widely accepted in mainstream thought and commentary is perhaps an instructive measure about the “unshakeable commitment to our ideals” in American society today.
Jeremy R. Hammond is the editor and principle writer for Foreign Policy Journal, an online publication dedicated to providing news, critical analysis, and commentary on U.S. foreign policy, particularly with regard to the “war on terrorism” and events in the Middle East, from outside of the standard framework offered by government officials and the mainstream corporate media. He has also written for numerous other online publications. You can contact him here.