Torture as a False Moral Dilemma

After years of backroom haggling with the Obama administration and the CIA, the Senate Select Committee on Intelligence (SSCI), on Dec. 9, 2014, released the Chairman’s “Foreword,” the “Findings and Conclusions,” and the “Executive Summary” (in redacted form) of its Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, commonly referred to as the Torture Report. (The CIA, of course, refers to these methods as “enhanced interrogation techniques,” or EITs.) If that does not sound like much, note that the “Executive Summary” alone weighs in a 499 pages. The total report, which otherwise remains classified, exceeds 6,700 pages. The report was written by the committee’s Democratic staff, after the Republicans pulled their staff members off the project,* so the release was accompanied by a rebuttal from the Republican members, which is itself 159 pages long. Several committee members of both parties also provided additional written comments of their own.

The media have already highlighted many of the findings: details of the techniques used, including some that had not been previously reported; the administrative incompetence, especially in the early years; the CIA’s apparent exaggeration of the program’s value and its downplaying of negative aspects. We do not need to lay out the details here. What strikes me, however, is how the report illuminates what some call the false moral dilemma of torture.

Many people — ordinary citizens and high-ranking government officials alike — tacitly view the torture issue as a moral dilemma. They acknowledge that the practice is morally repugnant, but they also assume that it is a fast and effective method for securing vital information that cannot otherwise be obtained. Given that premise, it is only natural to assume that there must be some situation, some dire set of circumstances, in which the need to obtain information is so urgent that it will outweigh the moral objections to torture. Indeed, it is possible to imagine situations so dire that it would be considered immoral not to do everything possible to obtain necessary information by any means available.

Apologists for torture have conveniently provided such a hypothetical situation: the so-called “ticking time bomb” scenario. If you have ever read anything on the subject of torture, absolutely anything, you have undoubtedly encountered it. The scenario asks what you should do if you know that a time bomb has been placed somewhere in the city (in some versions it’s a nuclear time bomb); it is set to go off; you have a prisoner who knows where the bomb is, when it is set to explode, and how to disarm it; and the prisoner won’t talk. The anticipated response is that you torture the prisoner until he gives up his secrets so that you can defuse the bomb in time to save the city and its innocent residents. Anything less would be morally unacceptable.

When examined closely, however, the supposed moral dilemma falls apart. I can think of three specific flaws.

First, the function of the “ticking time bomb” scenario is not to describe reality, but solely to serve as a justification for torture. It never happens in the real world. In real life, you never know there is a bomb. You never know that some person you happen to have in custody knows where the bomb is. Real-world intelligence is about ambiguity, uncertainty, and conflicting evidence. Nothing happens fast, and nothing is clear-cut. In the real world — the SSCI report now tells us (“Executive Summary,” page 16) — by the CIA’s calculation, 26 of 119 CIA detainees (22 percent) did not even meet the interrogation program’s own standard for detention. Some of them were simply cases of mistaken identity. The number includes only those for whom there is agreement within the CIA that their detention was mistaken. There are others that some CIA officials believe were mistakenly detained.

Second, a tacit assumption — rarely stated explicitly, never questioned — is that it is difficult to get information out of terrorists. They are frequently described as “hardened” and “trained to resist torture.” (If so, then maybe torture is not the best approach for that reason alone.) While that may well be true in some cases, there is no reason to assume it is always so. Many terrorists appear to believe they are on the right side of history, are proud of what they’ve done, and are willing to boast about it with relatively little encouragement.

News reports have frequently cited the assertion that Abu Zubaydah, the first al-Qaida detainee and an erstwhile training-camp bureaucrat, told his CIA interrogators that they should torture detainees to make them talk because the jihadis believe that Allah will only forgive them for collaborating if they do it under duress. The SSCI report (p. 48) finds no trace of this quote in CIA records. Rather:

CIA records indicate that Abu Zubaydah maintained that he always intended to talk and never believed that he could withhold information from interrogators. In February 2003, Abu Zubaydah told a CIA psychologist that he believed prior to his capture that every captured “brother” would talk in detention and that he told individuals at a terrorist training camp that “brothers should be able to expect that the organization will make adjustments to protect people and plans when someone with knowledge is captured.”

Ali H. Soufan, an experienced Arabic interrogator with the FBI, elicited from Abu Zubaydah information about himself, his associates, and the al-Qaida organization and the identity of Khalid Shaykh Mohammad as the mastermind of 9/11 before the prisoner was turned over to the CIA. He used established interrogation techniques, which involve developing a rapport with the detainee and leading him to believe you know more than you do so he that he does not realize the significance of what he is disclosing. The first CIA interrogators returned the prisoner to Soufan and another FBI agent several times because they were unable to get anything out of him. Everything that the CIA claimed to have extracted from Abu Zubaydah had already been obtained by the FBI (p. 47) before he was waterboarded 83 times or spent more than 11 days in a coffin-sized box and 29 hours in a 30″ x 30″ x 21″ box. From the SSCI report (p. 46) we now know the CIA nonetheless determined their interrogation to be a “success” and a worthy template for future detainees because it convinced the interrogators that Abu Zubaydah really did “not possess undisclosed threat information, or intelligence that could prevent a terrorist event.”**

Third, and most important, the enhanced interrogation techniques are not especially effective, and certainly uniquely effective. This is where the entire pro-torture argument falls apart. It must be kept in mind that, given the moral opposition to using torture techniques, the appropriate question is not whether someone undergoing torture ever said anything of value. It is not incumbent upon torture’s opponents to prove that no useful information was ever elicited from someone by means of torture. Rather, it is incumbent upon torture’s advocates to prove that the same information (and possibly more) could not be obtained in any other way.

Even an internal CIA memo from November 2001, before there were any detainees to interrogate, acknowledges that the use of torture would have to be justified by results and a total lack of alternative means. As the “Executive Summary” (p. 19) quotes it, “CIA could argue that the torture was necessary to prevent imminent, significant, physical harm to persons, where there is no other available means to prevent the harm. . . . [S]tates may be very unwilling to call the U.S. to task for torture when it resulted in saving thousands of lives.” This argument, known the “necessity defense,” was later incorporated into legal opinions by the Justice Department’s Office of Legal Counsel. (Note that in those days even the CIA recognized it as “torture.” A draft letter to the attorney general in July 2002 (p. 33) requested “a formal declination of prosecution, in advance,” because the techniques they were about to use would otherwise be prohibited by law.)

On Dec. 9, the day the SSCI report was released, CIA director John O. Brennan issued a written statement that touched on the issue of effectiveness. He said in part:

Yet, despite common ground with some of the findings of the Committee’s Study, we part ways with the Committee on some key points. Our review indicates that interrogations of detainees on whom EITs were used did produce intelligence that helped thwart attack plans, capture terrorists, and save lives. The intelligence gained from the program was critical to our understanding of al-Qa’ida and continues to inform our counterterrorism efforts to this day.

Leaving aside the question of whether gaining an “understanding of al-Qa’ida” warrants torture (“access to background information” only comes up as a goal in post hoc justifications and in any event is hardly a time-urgent task), note how artfully the statement is constructed. Virtually no one denies that the interrogation of prisoners is worthwhile. The controversy concerns how one goes about it. Here Brennan does not claim that EITs produced intelligence quickly or that they produced intelligence unattainable in any other way. If you read carefully, you will see that he does not even claim that EITs produced intelligence at all. He asserts only that intelligence was gained from the same detainees “on whom EITs were used.”*** This is reminiscent of statements by George W. Bush in 2002 and 2003 in which he juxtaposed references to Saddam Hussein, terrorism, Osama bin Laden, and 9/11, thereby creating the impression of a connection, only to claim years later that he had never said he believed that Iraq was responsible for the terrorist attack.

Numerous CIA representatives and defenders used the same phraseology, but someone must have complained. Two days later Brennan hosted a rare press conference at CIA headquarters at which he took a different tack.

As to issues on which we part ways with the Committee, I have already stated that our reviews indicate that the detention and interrogation program produced useful intelligence that helped the United States thwart attack plans, capture terrorists, and save lives. But let me be clear. We have not concluded that it was the use of EITs within that program that allowed us to obtain useful information from detainees subjected to them. The cause and effect relationship between the use of EITs and useful information subsequently provided by the detainee is, in my view, unknowable.

Irrespective of the role of EITs might play in a detainee’s provision of useful information, I believe effective non-coercive methods are available to elicit such information—methods that do not have a counterproductive impact on our national security and on our international standing. It is for these reasons that I fully support the President’s decision to prohibit the use of EITs.

What does the SSCI report tell us about the effectiveness of EITs in obtaining information? Findings and Conclusions #1 and #2 include the following:

For example, according to CIA records, seven of the 39 CIA detainees known to have been subjected to enhanced interrogation techniques produced no intelligence while in CIA custody. . . . Other detainees provided significant accurate intelligence prior to, or without having been subjected to these techniques.

While being subjected to the CIA’s enhanced interrogation techniques and afterwards, multiple CIA detainees fabricated information, resulting in faulty intelligence. Detainees provided fabricated information on critical intelligence issues, including the terrorist threats which the CIA identified as its highest priorities. . . .

The Committee reviewed 20 of the most frequent and prominent examples of purported counterterrorism successes that the CIA has attributed to the use of its enhanced interrogation techniques, and found them to be wrong in fundamental respects. In some cases, there was no relationship between the cited counterterrorism success and any information provided by detainees during or after the use of the CIA’s enhanced interrogation techniques. In the remaining cases, the CIA inaccurately claimed that specific, otherwise unavailable information was acquired from a CIA detainee “as a result” of the CIA’s enhanced interrogation techniques, when in fact the information was either: (1) corroborative of information already available to the CIA or other elements of the U.S. Intelligence Community from sources other than the CIA detainee, and was therefore not “otherwise unavailable”; or (2) acquired from the CIA detainee prior to the use of the CIA’s enhanced interrogation techniques. . . .

Zero valid instances in “20 of the most frequent and prominent examples” is not an enviable record.

Apologists for torture, when they acknowledge that mistakes were made, frequently cite mitigating circumstances, namely, the urgency and the tense atmosphere prevalent in the aftermath of 9/11. Yet the question must be asked: If urgency was a prime motivator, then why did the CIA embark on a task it was not prepared to handle, essentially making it up as it went along, instead of bringing in other agencies that were more adept at interrogation? Even Brennan, in his statement of December 9, said, “The most serious problems occurred early on and stemmed from the fact that the Agency was unprepared and lacked the core competencies required to carry out an unprecedented, worldwide program of detaining and interrogating suspected al-Qa’ida and affiliated terrorists.” Needless to say, a lack of core competencies was not something that they touted at the time. The “Executive Summary” (pp. 20–21) notes that prior to the initial interrogations,

. . . there are no indications in CIA records that the CIA conducted significant research to identify effective interrogation practices, such as conferring with experienced U.S. military or law enforcement interrogators, or with the intelligence, military, or law enforcement services of other countries with experience in counterterrorism and the interrogation of terrorist suspects. Nor are there CIA records referencing any review of the CIA’s past use of coercive interrogation techniques and associated lessons learned. The only research documented in CIA records during this time on the issue of interrogation was the preparation of a report on an al-Qa’ida manual that was initially assessed by the CIA to include strategies to resist interrogation.

In a June 2013 response to a draft of the SSCI study, the CIA explained that they had turned to outside contractors for interrogation advice precisely because no U.S. government agency had expertise “specifically in the area of non-standard means of interrogation.” (Quoted on p. 32, fn.138; emphasis in original. Note that the contractors were not experienced interrogators.) Thus they had already decided on the approach they were going to take, without doing a review.

And the tense atmosphere, the overarching fear that another attack was imminent? That was real, but that is the reason we turn these matters (or think we turn these matters) over to cool-headed professionals and not to amateurs who will come back later and say, in effect, “Hey, I got hysterical. So what?”

*Mark Danner says that the Republicans made their participation in the SSCI study conditional on the study being limited to the CIA and not extending to the White House or National Security Council. (Having achieved this, they then declared the process biased and dropped out anyhow.) Although information at the highest decision-making levels is therefore lacking, it appears that no formal decision to use torture was ever made. This may have been intended as a way to maintain “plausible deniability,” but it also seems to parallel the run-up to the Iraq War, which also transitioned from the contemplation of war to the enactment of war without any formal decision process or review of alternatives.

**CIA officials believed that Abu Zubaydah was the third-highest-ranking official in al-Qa’ida and that he would know both the plans for future attacks and the identities of al-Qa’ida operatives in the United States. Both assumptions proved to be wrong.

***A fact sheet issued by the CIA on the same day said that the agency took no position on whether the intelligence could have been elicited by other means.