TORTURE! Part 2: What Should Be Done

So it's clear that the torture authorized by the OLC memos was immoral, illegal, and ineffective. But what should be done about it?

There should be at least an investigation into how this happened. There should be some consequences for the officials responsible for okaying torture. (I would be fine with not punishing the interrogators because their actions were based on what they thought was--and should have been--sound legal advice.) Disagree? Please allow me to refute your counterarguments.

Investigating and prosecuting torture would be looking backwards; we should be "focused on looking forward." Yes, President Obama has a lot he wants to do to improve our future: stabilizing Afghanistan and the economy, reforming health care, energy and education, and investigating and prosecuting torture. To fail to do so would establish a dangerous precedent, sending the message that the President and upper executive officials can flaunt the law and get away with it.

We should not prosecute a previous administration "for policy disagreements." That is what "banana republics" do. Agreed, we should not prosecute for mere policy disagreements. Anybody who says, "No Child Left Behind was a terrible idea. Off with Bush's head!" is as insane as the Queen of Hearts. But that is not what we're saying. We do not wish to establish a law ex post facto that makes what the Bush administration did illegal. What the Bush administration did was already illegal and should consequently be punished.

Democrats in Congress would be prosecuted too. Good. I don't care. This is not a partisan issue. Anyone who advanced the case for torture or consented to it should be investigated and prosecuted in accordance with the law.

Accountability advocates have "an unworthy desire for vengeance." Maybe I do. Maybe it's even true of the 62% of Americans, every last one of them, who favor some sort of investigation. But motives are irrelevant here. The significant question is not "What are their motivations?" but "What's right?" And what's right is upholding the law.

Prosecuting is "too divisive." I'll let Hilzoy of Obsidian Wings answer this:

I think that upholding the rule of law is more important than avoiding divisiveness, and besides, since any prosecution of high administration officials is always divisive, this principle would seem to me to imply that no high official should ever be punished for breaking any law. I think this would be disastrous.

Moreover, not to prosecute would be illegal. The U.S. is required by "the UN Convention Against Torture to prosecute those who engage in it."

So I think I've established that at least some sort of investigation is necessary. The only question is what sort.

The right special prosecutor (Patrick Fitzgerald?) would be considered non-partisan and would "ensure genuine accountability," (h/t) but might not be able to expose the whole truth. (h/t) A Congressional investigation, such as the one currently being undertaken by the Senate Intelligence Committee under Dianne Feinstein, might work, but would probably be seen as too political by the right and too deferential to secrecy by the left. A bipartisan commission (like the 9/11 one) would practically guarantee "that there [would be] no major political repercussions."

For me, then, the best option would be the two-course meal: a bipartisan commission followed by a special prosecutor. Establishing the truth without the taint of bias is paramount. It would then be up to us to take the commission's findings and apply the political pressure needed to get a special prosecutor appointed.

But I sincerely doubt that this will come to pass. Simpler consequences, however, are more easily achieved. Jay Bybee now sits on the Ninth District Court and can be impeached. Bybee, Yoo and Bradbury could be disbarred. Their actions demonstrate either gross incompetence at best or a nearly complete disregard for the law and established legal precedent at worst. Either way, they are unfit to keep practicing law.

TORTURE! Part 1: What Was Done

On April 16, the Obama Administration released the memos authored by Bush's Office of Legal Counsel that provided the legal rationale for torture.

Though this comparison seems a little over the top, the 2002 memo from Jay Bybee authorized "attention grasp, walling (hitting a detainee against a flexible wall), facial hold, facial slap, cramped confinement, wall standing, stress positions, sleep deprivation, insects placed in a confinement box, and waterboarding."

Some in the CIA felt betrayed, "broken and bewildered" by the release of the memos. President Obama tried to allay these fears in his statement on the memos' release, saying:

In releasing these memos, it is our intention to assure those 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...We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

Not one, not two, but three scientists cited in the memos objected to their work's inclusion. The scientists researched the effects of sleep deprivation, and their conclusions were used to support using sleep deprivation as an interrogation technique. But those who participated in their studies were (a) not deprived of sleep for as long as prisoners were (40 vs. 180 hours), (b) were in perfect health, and (c) were not simultaneously subjected to anything else.

The Bybee memo predicted that walling and cramped confinement would not constitute "serious physical injury." Compare to the Red Cross report:

Abu Zubaida's [often romanized as 'Zubaydah'] attorneys said he "has suffered approximately 175 seizures that appear to be directly related to his extensive torture -- particularly damage to Petitioner's head that was the result of beatings sustained at the hands of CIA interrogators and exacerbated by his lengthy isolation."...

"The stress on my legs held in this position [crouched in a confined wooden box] meant my wounds both in my leg and stomach became very painful," he told the ICRC.

The "learned helplessness" that psychologist James E. Mitchell believed was integral to a successful interrogation (even though he had never personally conducted one) leads to depression. ("You put an animal, human or non-human, in a situation in which bad things happen that it can neither escape nor control, and eventually it just gives up.") Furthermore:

Most of the released detainees, to this day, live with severe anxiety, depression, and post-traumatic stress disorder, including intrusive recollections of trauma suffered in detention, hyperarousal (persistent symptoms of increased arousal, e.g., difficulty falling or staying asleep, anger, and hypervigilance), avoidance and emotional numbing behavior. PHR’s clinicians determined that these symptoms were directly related to the torture and ill-treatment reported having taken place while in US custody.

Sounds like "severe physical or mental pain or suffering" and "prolonged mental harm" (which constitute torture under US law) to me. So it's illegal, but was it, at least, effective?

Dick Cheney thinks so, and, bastion of openness that he is, thinks we should declassify "the memos that showed the success of the effort" so we could have an "honest debate."

However, it seems clear from items already in the public domain that torture techniques are ineffective and unnecessary. These techniques had, after all, solicited false statements when they were used on Americans in the Korean War.

A footnote in the 2005 Bradbury memo notes that:

The CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have information. . . . On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques.

Those who believe that information was acquired from torturing Khaled Sheikh Mohammed and used to foil a plot to attack the Library Tower in Los Angeles are completely wrong. The plot was foiled a full year before Sheikh Mohammed was even captured. (h/t)

And a former FBI agent (h/t) who interrogated Abu Zubaydah argues that:

There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions.

But effectiveness is ultimately irrelevant:

If “effectiveness” is all we care about, any form of torture would necessarily be ok. One could, for instance, drag in a detainee’s child and begin torturing him or her in front of the detainee. I assume that even the most hardened torture advocates would draw a line there. If they didn’t, that tells you pretty much all you need to know.

But if they do concede that certain methods go too far (i.e., that such things are relevant), then they’re stuck having to argue that the methods we used simply
aren’t that bad. In other words, if they concede a line exists, then they’re forced to argue that these methods don’t cross it.

Sundry items of note:

• The memos were only lightly redacted, in contrast with documents released by the Bush administration, which were so heavily redacted that the Onion joked that the CIA had been accidentally using black highlighters.
• Glenn Greenwald: "Finally, it should be emphasized -- yet again -- that it was not our Congress, nor our media, nor our courts that compelled disclosure of these memos. Instead, it was the ACLU's tenacious efforts over several years which single-handedly pried these memos from the clutched hands of the government." (h/t)
• Andrew Sullivan: "If you want to know how democracies die, read these memos." (h/t)