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"Major success from limited, surgical torture is a fable, a fiction. . . . As we slide down the slippery slope to torture in general, we should also realize that there is a chasm at the bottom called extrajudicial execution."
Ask not for whom the bomb ticks, Mr. and Ms. America. Right now, across Los Angeles, timers on dozens of toxic nerve-gas canisters are set to detonate in just hours and send some two million Americans to their deaths in writhing agony.
But take hope. We have one chance, just one, to avert this atrocity and save the lives of millions. Agent Jack Bauer of the Counter Terrorist Unit has his hunting knife poised over the eye of a trembling traitor who may know the identity of those who set these bombs. As a clock ticks menacingly and the camera focuses on knife point poised to plunge into eyeball, the traitor breaks and identifies the Muslim terrorists, giving Agent Bauer the lead he needs to crack this case wide open.
As happens with mind-numbing regularity every week on Fox Television’s hit show 24, torture has once again worked to save us all from the terror of a ticking bomb, affirming for millions of loyal viewers that torture is a necessary weapon in George Bush’s war on terror.
Just days before the fifth anniversary of 9/11, President Bush himself appeared live from the East Room before an audience of handpicked 9/11 families for a dramatic announcement that mimed, with eerie precision, the ticking-bomb logic of 24, which is wildly popular among Washington’s neoconservatives. With clipped, secret-agent diction reminiscent of the show’s Emmy Award-winning star, Kiefer Sutherland, Bush said he was transferring fourteen top Al Qaeda captives, including the alleged 9/11 mastermind, Khalid Sheik Mohammed, from long-secret CIA prisons to Guantánamo Bay. At once both repudiating and legitimating past abuses, Bush denied that he had ever authorized “torture.” Simultaneously, he defended the CIA’s effort to coerce “vital information” from these “dangerous” captives with what the President called an “alternative set of procedures”—a euphemism transparent to any viewer of 24.
In defense of the CIA’s past and future use of this “alternative set of procedures,” Bush told his national television audience a thrilling tale of covert action derring-do almost plucked from the pages of a script for 24. After “they risked their lives to capture some of the most brutal terrorists on Earth,” courageous American agents “worked day and night” to track down “a trusted associate of Osama bin Laden” named Abu Zubaydah. But once in custody, he was “defiant and evasive.” Knowing that “captured terrorists have . . . intelligence that cannot be found any other place,” the CIA, with White House approval, applied that “alternative set of procedures” and thereby extracted timely information that “helped in the planning . . . of the operation that captured Khalid Sheik Mohammed.” Then, “KSM was questioned by the CIA using these procedures,” producing intelligence that stopped a succession of lethal ticking bombs.
The mind-boggling catalogue of these plots, the President told us, included “Al Qaeda’s efforts to produce anthrax,” a terror assault on U.S. Marines in Djibouti with “an explosive-laden water tanker,” “a planned attack on the U.S. consulate in Karachi using car bombs,” “a plot to hijack passenger planes and fly them into Heathrow,” and “planned attacks on buildings in the United States” with bombs planted “to prevent the people trapped above from escaping out the windows.”
Of course, the President could not, he said with a knowing wink to his audience, describe “the specific methods used in these CIA interrogations” because “it would help the terrorists learn how to resist questioning.” Although these “procedures were tough,” they had proved vital, the President assured us, in extracting “information about terrorist plans we could not get anywhere else” and thus prevented Al Qaeda from “launching another attack against the American homeland.” If Congress and the Supreme Court would simply set aside their constitutional qualms about these “tough” methods, Bush concluded, then the “brave men and women” who work in this CIA program can continue “to obtain information that will save innocent lives.”
As in so many of these ticking-bomb tales, Bush’s supposed successes crumble on closer examination. Just four days later, The New York Times reported that the FBI claimed it got the key information from Abu Zubaydah with its noncoercive methods and that other agencies already had much of his supposedly “vital” intelligence.
Like President Bush, influential pro-pain pundits have long cited the ticking-bomb scenario to defend torture as a necessary evil in the war on terror. Indeed, in this most pragmatic of modern societies, we are witnessing a rare triumph of academic philosophy in the realm of national security.
More than thirty years ago, the philosopher Michael Walzer, writing about the ancient problem of “dirty hands” for an obscure academic journal, Philosophy and Public Affairs, speculated about the morality of a politician “asked to authorize the torture of a captured rebel leader who knows the locality of a number of bombs hidden in apartment buildings around the city, set to go off within the next twenty-four hours.” [Emphasis added.] Even though he believes torture is “wrong, indeed abominable,” this moral politician orders the man tortured, “convinced that he must do so for the sake of the people who might otherwise die in the explosions.”
In all likelihood, Walzer’s writing would have remained unnoticed on page 167 of an unread journal if not for the tireless efforts of an academic acolyte, Alan Dershowitz of Harvard Law School. In newspaper op-eds and television appearances since 9/11, Dershowitz has transformed this fragmentary philosophical rumination into a full-blown case for torture by recounting a similar scenario which, often set in Times Square, “involves a captured terrorist who refuses to divulge information about the imminent use of weapons of mass destruction, such as a nuclear, chemical, or biological device, that are capable of killing and injuring thousands of civilians.”
From this hypothetical, Professor Dershowitz segues to the realm of reality: “If torture is, in fact, being used and/or would, in fact, be used in an actual ticking bomb terrorist case, would it be normatively better or worse to have such torture regulated by some kind of warrant?” Such a warrant, he tells us, would authorize interrogators to shove steel needles under Arab fingernails. Dershowitz assumes that his putative torture warrants “would reduce the incidence of abuses,” since high officials, operating on the record, would never authorize “methods of the kind shown in the Abu Ghraib photographs.”
With torture now a key weapon in the war on terror, the time has come to interrogate the logic of the ticking time bomb with a six-point critique. For this scenario embodies our deepest fears and makes most of us quietly—unwittingly—complicit in the Bush Administration’s recourse to torture.
Number one: In the real world, the probability that a terrorist might be captured after concealing a ticking nuclear bomb in Times Square and that his captors would somehow recognize his significance is phenomenally slender. The scenario assumes a highly improbable array of variables that runs something like this:
—First, FBI or CIA agents apprehend a terrorist at the precise moment between timer’s first tick and bomb’s burst.
—Second, the interrogators somehow have sufficiently detailed foreknowledge of the plot to know they must interrogate this very person and do it right now.
—Third, these same officers, for some unexplained reason, are missing just a few critical details that only this captive can divulge.
—Fourth, the biggest leap of all, these officers with just one shot to get the information that only this captive can divulge are best advised to try torture, as if beating him is the way to assure his wholehearted cooperation.
Take the case of Zacarias Moussaoui, who sat in a Minneapolis cell in the weeks before 9/11 under desultory investigation as a possible “suicide hijacker” because the FBI did not have precise foreknowledge of Al Qaeda’s plot or his possible role. In pressing for a search warrant before 9/11, the bureau’s Minneapolis field supervisor even warned Washington he was “trying to keep someone from taking a plane and crashing into the World Trade Center.” But FBI headquarters in Washington replied there was no evidence Moussaoui was a terrorist—providing us with yet another reminder of how difficult it is to grasp the significance of even such stunningly accurate insight or intelligence in the absence of foreknowledge.
“After the event,” Roberta Wohlstetter wrote in her classic study of that other great U.S. intelligence failure, Pearl Harbor, “a signal is always crystal clear; we can now see what disaster it was signaling since the disaster has occurred. But before the event, it is obscure and pregnant with conflicting meanings.”
Number two: This scenario still rests on the critical, utterly unexamined assumption that torture can get useful intelligence quickly from this or any hardened terrorist.
Advocates of the ticking bomb often cite the brutal torture of Abdul Hakim Murad in Manila in 1995, which they say stopped a plot to blow up a dozen trans-Pacific aircraft and kill 4,000 innocent passengers. Except, of course, for the simple fact that Murad’s torture did nothing of the sort. As The Washington Post has reported, Manila police got all their important information from Murad in the first few minutes when they seized his laptop with the entire bomb plot. All the supposed details gained from the sixty-seven days of incessant beatings, spiced by techniques like cigarettes to the genitals, were, as one Filipino officer testified in a New York court, fabrications fed to Murad by Philippine police.
Even if the terrorist begins to talk under torture, interrogators have a hard time figuring out whether he is telling the truth or not. Testing has found that professional interrogators perform within the 45 to 60 percent range in separating truth from lies—little better than flipping a coin. Thus, as intelligence data moves through three basic stages—acquisition, analysis, and action—the chances that good intelligence will be ignored are high.
After fifty years of fighting enemies, communist and terrorist, with torture, we now have sufficient evidence to conclude that torture of the few yields little useful information. As the ancient Roman jurist Ulpian noted 1,800 years ago, when tortured the strong will resist and the weak will say anything to end the pain.
History is replete with examples of the strong who resisted even the most savage tortures. After the July 20, 1944, bomb plot against Hitler, the Gestapo subjected Fabian von Schlabrendorff to four weeks of torture by metal spikes and beatings so severe he suffered a heart attack. But with a stoicism typical of these conspirators, he broke his silence only to give the Gestapo a few scraps of vague information when he feared involuntarily blurting out serious intelligence.
Then there are the weak. Ibn al-Shaykh al-Libi, a senior Al Qaeda leader, under torture told his captors that Iraq trained Al Qaeda in chemical and biological weapons. This raises the possibility that he, like Murad, had been tortured into giving fabricated intelligence. Colin Powell relied on this false information in his now-disavowed speech to the United Nations before the Iraq War.
As Yale legal historian John Langbein puts it, “History’s most important lesson is that it has not been possible to make coercion compatible with truth.”
Proponents of torture present a false choice between tortured intelligence and no intelligence at all. There is, in fact, a well-established American alternative to torture that we might call empathetic interrogation. U.S. Marines first used this technique during World War II to extract accurate intelligence from fanatical Japanese captives on Saipan and Tinian within forty-eight hours of landing, and the FBI has practiced it with great success in the decades since. After the East Africa bombings of U.S. embassies, the bureau employed this method to gain some of our best intelligence on Al Qaeda and win U.S. court convictions of all of the accused.
One of the bureau agents who worked on that case, Dan Coleman, has since been appalled by the CIA’s coercive methods after 9/11. “Have any of these guys ever tried to talk to anyone who’s been deprived of his clothes?” Coleman asked. “He’s going to be ashamed and humiliated and cold. He’ll tell you anything you want to hear to get his clothes back. There’s no value in it.” By contrast, FBI reliance on due process and empathy proved effective in terror cases by building rapport with detainees.
Bush’s example of Zubaydah actually supports Coleman’s point. FBI agents say they were getting more out of him before the CIA came in with gloves off.
“Brutalization doesn’t work,” Coleman concluded from his years in FBI counterterrorism. “We know that. Besides, you lose your soul.”
Number three: Once we agree to torture the one terrorist with his hypothetical ticking bomb, then we admit a possibility, even an imperative, for torturing hundreds who might have ticking bombs or thousands who just might have some knowledge about those bombs. “You can’t know whether a person knows where the bomb is,” explains Georgetown University Law Professor David Cole, “or even if they’re telling the truth. Because of this, you end up going down a slippery slope and sanctioning torture in general.”
Most of those rounded up by military sweeps in Iraq and Afghanistan for imprisonment at Abu Ghraib and Guantánamo had nothing to do with terrorism. A recent analysis of the Pentagon listing of Guantánamo’s 517 detainees reveals that 86 percent were arrested not by U.S. forces but by Northern Alliance and Pakistani warlords eager to collect a $5,000 bounty for every “terrorist” captured.
Ironically, though, torture of the many can produce results, albeit at a surprisingly high political price.
The CIA tortured tens of thousands in Vietnam and the French tortured hundreds of thousands in Algeria. During the Battle of Algiers in 1957, French soldiers arrested 30 percent to 40 percent of all males in the city’s Casbah and subjected most of these to what one French officer called “beatings, electric shocks, and, in particular, water torture, which was always the most dangerous technique for the prisoner.” Though many resisted to the point of death, mass torture gained sufficient intelligence to break the rebel underground. The CIA’s Phoenix program no doubt damaged the Viet Cong’s communist infrastructure by torture-interrogation of countless South Vietnamese civilians.
So the choices are clear. Major success from limited, surgical torture is a fable, a fiction. But mass torture of thousands of suspects, some guilty, most innocent, can produce some useful intelligence.
Number four: Useful intelligence perhaps, but at what cost? The price of torture is unacceptably high because it disgraces and then undermines the country that countenances it. For the French in Algeria, for the Americans in Vietnam, and now for the Americans in Iraq, the costs have been astronomical and have outweighed any gains gathered by torture.
Official sources are nearly unanimous that the yield from the massive Phoenix program, with more than forty prisons across South Vietnam systematically torturing thousands of suspected communists, was surprisingly low. One Pentagon contract study found that, in 1970-71, only 3 percent of the Viet Cong “killed, captured, or rallied were full or probationary Party members above the district level.” Not surprisingly, such a brutal pacification effort failed either to crush the Viet Cong or win the support of Vietnamese villagers, contributing to the ultimate U.S. defeat in the Vietnam War.
Similarly, the French army won the Battle of Algiers but soon lost the war for Algeria, in part because their systematic torture delegitimated the larger war effort in the eyes of most Algerians and many French. “You might say that the Battle of Algiers was won through the use of torture,” observed British journalist Sir Alistair Horne, “but that the war, the Algerian war, was lost.”
Even the comparatively limited torture at Abu Ghraib has done incalculable damage to America’s international prestige.
In short, the intelligence gains are soon overwhelmed by political costs as friends and enemies recoil in revulsion at such calculated savagery.
Indeed, the U.S. Army’s current field manual, FM: Intelligence Interrogation 34-52, contains an implicit warning about these high political costs: “Revelation of use of torture by U.S. personnel,” it warns, “will bring discredit upon the U.S. and its armed forces while undermining domestic and international support for the war effort.”
Number five: These dismal conclusions lead to a last, uncomfortable question: If torture produces limited gains at such high political cost, why does any rational American leader condone interrogation practices “tantamount to torture”?
One answer to this question seems to lie with a prescient CIA Cold War observation about Soviet leaders in times of stress. “When feelings of insecurity develop within those holding power,” reads an agency analysis of Kremlin leadership applicable to the post-9/11 White House, “they become increasingly suspicious and put great pressures upon the secret police to obtain arrests and confessions. At such times, police officials are inclined to condone anything which produces a speedy ‘confession,’ and brutality may become widespread.” In sum, the powerful often turn to torture in times of crisis, not because it works but because it salves their fears and insecurities with the psychic balm of empowerment.
As we slide down the slippery slope to torture in general, we should also realize that there is a chasm at the bottom called extrajudicial execution. With the agency’s multinational gulag full of dozens, even hundreds, of detainees of dwindling utility, CIA agents, active and retired, have been vocal in their complaints about the costs and inconvenience of limitless, even lifetime, incarceration for these tortured terrorists. The ideal solution to this conundrum from an agency perspective is pump and dump, as in Vietnam—pump the terrorists for information, and then dump the bodies. After all, the systematic French torture of thousands from the Casbah of Algiers in 1957 also entailed more than 3,000 “summary executions” as “an inseparable part” of this campaign, largely, as one French general put it, to ensure that “the machine of justice” not be “clogged with cases.” For similar reasons, the CIA’s Phoenix program produced, by the agency’s own count, over 20,000 extrajudicial killings.
Number six: The use of torture to stop ticking bombs leads ultimately to a cruel choice—either legalize this brutality, à la Dershowitz and Bush, or accept that the logical corollary to state-sanctioned torture is state-sponsored murder, à la Vietnam.
Alfred W. McCoy, the J.R.W. Smail Professor of History at the University of Wisconsin-Madison, is the author most recently of “A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror.”