Torture, Zero Dark Thirty, and the Need to Confront the Past

Prompted by the release of the Hollywood film “Zero Dark Thirty,” the American Enterprise Institute (AEI), a conservative Washington think tank, hosted a panel a few weeks back on the subject of “enhanced interrogation techniques” (EITs). The panelists were three high-ranking officials of the Central Intelligence Agency from the administration of George W. Bush. Gen. Michael Hayden was director of the CIA, and before that of the National Security Agency; John A. Rizzo was chief legal officer; and Jose Rodriguez was director of the National Clandestine Service (formerly known as the Directorate of Operations). Rodriguez, whose branch of the CIA ran the interrogation program, has subsequently gained some notoriety as the official who destroyed the videotapes of enhanced-interrogation sessions. The moderator of this panel was Marc A. Thiessen. A fellow at AEI and a columnist for the Washington Post, Thiessen was a speech writer first for Secretary of Defense Donald Rumsfeld and then for President Bush and earlier had served as an aide to Senator Jesse Helms. He has developed something of a reputation for himself as an enhanced-interrogation enthusiast. An actual military interrogator has described Thiessen’s book, Courting Disaster, as “less a serious discussion of interrogation policy than a literary defense of war criminals.”

Before setting aside issues of law, let’s note that torture occupies an unusual position in the legal system. It is absolutely prohibited, by international law, by U.S. law, by U.S. military regulations. That distinguishes it from more mundane matters, such as murder. You can legally kill people in a limited number of circumstances. For instance, you can kill someone in self-defense. In some states, you can kill someone who strikes you as particularly threatening. In war, you can slaughter people in unimaginable numbers, but you cannot torture them. There are no legal exceptions. That may strike some as unfair, but that’s the way it is. This, of course, is precisely why so many advocates of enhanced interrogation insist that it is not torture, even though the United States has prosecuted people in the past for doing the very same things. As Rodriguez put it: “I did not like the fact that it (i.e., the movie) made a false link between torture and intelligence successes, because I also think that torture does not work. And our program worked because it was not torture.”

Before continuing, let’s make one thing clear. The CIA is not the Spanish Inquisition, and it is not the Gestapo. There are many horrible activities that the agency could have engaged in but did not. They endeavored to be moderate and to monitor interrogation activities closely, but they have confused that effort with choosing the right path. Even their efforts to be moderate raise questions. They frequently point out that interrogators had to request specific permission from CIA headquarters for every action related to enhanced interrogation, which they describe as the “Mommy, may I?” approach. The narrative creates an image of zealous interrogators being constrained by cautious (perhaps overcautious) bureaucrats, yet at the beginning of 2003 the CIA Office of Inspector General (OIG) launched an internal investigation based, in part, on the actions of apparent zealots who had not been constrained and, in part, on complaints from interrogators who believed they were being pushed to go too far.

2. (TS/{code deleted}) In November 2002, the Deputy Director for Operations (DDO) {i.e., one of Rodriquez’s predecessors} informed the Office of Inspector General (OIG) that the Agency had established a program in the Counterterrorist Center to detain and interrogate terrorists at sites abroad (“the CTC Program”). He also informed OIG that he had just learned of and had dispatched a team to investigate {about one line deleted} in January 2003, the DDO informed OIG that he had received allegations that Agency personnel had used unauthorized interrogation techniques with a detainee, ‘Abd al-Rahim al-Nashiri, at another foreign site, and requested that OIG investigate. Separately, OIG received information that some employees were concerned that certain covert Agency activities at an overseas detention and interrogation site might involve violations of human rights. (pp. 1–2)

What did the interrogators in this second category have to say to the Inspector General about the guidance they were getting from the Counterterrorism Center (CTC)? They did not necessarily view it as constraining

264. (TS/{code deleted}) Agency officers report that reliance on analytical assessments that were unsupported by credible intelligence may have resulted in the application of EITs without justification. Some participants in the Program, particularly field interrogators, judge that CTC assessments to the effect that detainees are withholding information are not always supported by an objective evaluation of available information and the evaluation of the interrogators but are too heavily based, instead, on presumptions of what the individual might or should know. (pp. 104–5)

In addition, interrogators were quite conscious of the risks they faced with regard to their own futures as a consequence of what they were being ordered to do.

255. (TS/{code deleted}) A number of Agency officers of various grade levels who are involved with detention and interrogation activities are concerned that they may at some future date be vulnerable to legal action in the United States or abroad and that the U.S. Government will not stand behind them. Although the current detention and interrogation Program has been subject to DoJ legal review and Administration political approval, it diverges sharply from previous Agency policy and practice, rules that govern interrogations by U.S. military and law enforcement officers, statements of U.S. policy by the Department of State, and public statements by very senior U.S. officials, including the President, as well as the policies expressed by Members of Congress, other Western governments, international organizations, and human rights groups. In addition, some Agency officers are aware of interrogation activities that were outside or beyond the scope of the written DoJ opinion. Officers are concerned that future public revelation of the CTC Program is inevitable and will seriously damage Agency officers’ personal reputations, as well as the reputation and effectiveness of the Agency itself. (pp.101–2)

The AEI panelists alluded to the common argument that the enhanced interrogation techniques cannot be considered torture because the U.S. military applies them to our own people. (Thiessen even joked that journalists who had undergone the process so that they could report on it outnumber the detainees subjected to it.) In the case of the military, this occurs as part of the SERE program, a training program to prepare U.S. service personnel for what to expect if they are captured by, well, torturers. Critics of the interrogation program object that the situation is not at all the same. American soldiers undergoing SERE know that the trainers are really on their side, know that they will not be subjected to the techniques indefinitely, and have a special codeword they can use to end the session if it proves unbearable. Beyond that, however, the OIG found this episode.

79. (TS/{code deleted}) OIG’s review of the videotapes revealed that the waterboard technique employed at {place (?) deleted} was different from the technique as described in the DoJ opinion and used in the SERE training. The difference was in the manner in which the detainee’s breathing was obstructed. At the SERESchool and in the DoJ opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency interrogator {name (?) deleted} continuously applied large volumes of water to a cloth that covered the detainee’s mouth and nose. One of the psychologists/interrogators acknowledged that the Agency’s use of the technique differed from that used in SERE training and explained that the Agency’s technique is different because it is “for real” and is more poignant and convincing. (p. 37)

And on occasion, of course, things may simply get out of hand.

194. (S//NF) In June 2003, the U.S. military sought an Afghan citizen who had been implicated in rocket attacks on a joint U.S. Army and CIA position in Asadabad located in Northeast Afghanistan. On 18 June 2003, this individual appeared at Asadabad Base at the urging of the local Governor. The individual was held in a detention facility guarded by U.S. soldiers from the Base. During the four days the individual was detained, an Agency independent contractor, who was a paramilitary officer, is alleged to have severely beaten the detainee with a large metal flashlight and kicked him during interrogation sessions. The detainee died in custody on 21 June; his body was turned over to a local cleric and returned to his family on the following date without an autopsy being performed. Neither the contractor nor his Agency staff supervisor had been trained or authorized to conduct interrogations. The Agency did not renew the independent contractor’s contract, which was up for renewal soon after the incident. OIG is investigating this incident in concert with DoJ. (pp.78–9)

At the AEI session, in defense of the interrogation techniques, Rodriguez said that Abu Zubaydah, a detainee subjected to waterboarding, recommended that the agency should waterboard all its detainees if it wanted information. Needless to say, while he may have insights into the thinking of al-Qa’ida members, Abu Zubaydah — whose mental state has been questioned — is not an expert on interrogation.

In this regard, it is also worth mentioning that the initiators of the CIA interrogation program were not experts on the subject either. The CIA had not run an interrogation program in decades, and they based this one on amateurish assumptions. Former State Department counselor Philip Zelikow has described the haphazard way in which the new program was thrown together in the aftermath of 9/11.  (When Zelikow wrote a memo opposing the program in 2006, the Bush White House ordered all copies of it collected and destroyed.) Even Rizzo, at AEI, alludes to the atmosphere of the time:

Well, certainly in the wake of the immediate aftermath of the 9/11 attacks, when we were frantically – that’s the only word that can describe it – trying to pull together a program that would elicit the information that we were – our experts were convinced Zubaydah and his colleagues were keeping from us.

After the program had been initiated, people at the National Defense Intelligence College, a branch of the Defense Intelligence Agency, began to examine the question of interrogation and discovered that not that much was known about it. One of them, Robert A. Fein, noted in 2006:

With the attacks of 11 September 2001, and the initiation of the Global War on Terrorism, the Intelligence Community plunged into activities that, of necessity, involved efforts to obtain information from persons in U.S. custody who at least initially appeared uncooperative. At holding facilities in Afghanistan, Cuba, Iraq, and perhaps other sites, active duty military personnel, reservists, intelligence officers, law enforcement agents, contracted interrogators, and others worked to glean information and create intelligence that might help prevent terrorist attacks and contribute to national security. Since there had been little or no development of sustained capacity for interrogation practice, training, or research within intelligence or military communities in the post-Soviet period, many interrogators were forced to “make it up” on the fly. This shortfall in advanced, research-based interrogation methods at a time of immense pressure from operational commanders to produce actionable intelligence from high-value targets may have contributed significantly to the unfortunate cases of abuse that have recently come to light. Perhaps in the future, EI [Educing Information] professionals and researchers can develop knowledge that will inform and improve both practice and policy in these critical areas of national security. (p. xiii)

In the same set of studies, with specific reference to coercive techniques, Robert Coulam noted:

Of particular concern, we do not fully understand a complex of issues surrounding the use of coercion. Coercion is an important issue in all types of interrogation—from local police precincts and petty crimes to distant centers of detention and serious terrorist threats. The costs of coercion in human, ethical, political, and other terms vary, but can be enormous. Even when these costs are acknowledged, contemporary discussions often assume that torture, physical coercion, and psychological coercion are effective ways to obtain information, especially in emergencies (e.g., when there is little time, as with “ticking bombs”). Torture and many forms of physical and psychological coercion have been used for centuries. Whether we like it or not, coercion might be more “effective” than other methods in some circumstances. Unfortunately, much of the current debate in this area proceeds as if we actually knew what those circumstances were. In fact, we do not, beyond anecdotal evidence adduced ad hoc. (p. 9)

As Jane Mayer has noted elsewhere, the movie “Zero Dark Thirty” never acknowledges that there were doubts or dissenters or investigations within the CIA when it came to the use of enhanced interrogation. Nor is there any mention that the FBI, which had professional interrogators, refused to be involved in the CIA program. (The CIA apparently assumed that the FBI’s methods were geared toward prosecution and that this made them inappropriate for eliciting intelligence.) The panelists in the AEI discussion do acknowledge the existence of the OIG report, but only to argue that it missed the point, that useful intelligence had, in fact, been obtained even if it was often in subtle and indirect ways. Hayden goes so far as to say that no one ever complained about the methods until after the CIA had made it safe to do so. But it is the panelists who have missed the point.

The question is not whether anyone has ever revealed an important secret while under torture. The question is whether the torture was necessary to reveal that secret. The panelists object to the OIG report because it concludes (e.g., on pp. 90–1, 100) that it is not possible to determine whether EITs or other factors led to the results obtained. FBI interrogator Ali Soufan says that he personally interrogated Abu Zubaydah before the CIA took custody of him and that it was only after the detainee was subjected to harsh treatment that he stopped talking, not the other way around as the CIA claims. Soufan dismisses arguments that enhanced interrogation is more effective, faster, or even as fast as other noncoercive techniques long used by the FBI. Several military interrogators have come to the same conclusion. The CIA is not in a position to judge that torture works simply because they used it and obtained a result.

At the moment, a 6,000-page Senate report on the interrogation program is under review by the CIA to determine whether it may be released to the public, most likely in redacted form. (The report, based on 6 million pages of documents, was written by the Democratic staff of the Senate Select Committee on Intelligence. The Republican staff declined to participate, and thus Republicans may denounce it as one-sided.) John O. Brennan, newly confirmed as the director of the CIA and a long-time CIA official, has said that reading the report’s 350-page executive summary has caused him to believe that he may have been misinformed about the interrogation program. There can be no doubt that the country needs a thorough review of this topic. Once considered beyond the pale, torture has now become a highly divisive, highly politicized topic. There are some people who seem to see its revival as a form of personal redemption. Too much of the debate consists of politicized arguments based on rumor, hearsay, or biased, self-serving accounts. (Former CIA officer John Kiriakou’s 2007 statement—based on hearsay—that Abu Zubaydah began talking after being waterboarded for only 30–35 seconds was treated as gospel until the OIG report revealed that he had been waterboarded “at least 83 times during August 2002.”) This topic is far too important for that, and the Senate report should be released in the fullest form possible.

Note: The OIG report, Special Review: Counterterrorism Detention and Interrogation Activities (September 2001–October 2003), was issued on May 7, 2004. A heavily redacted version was declassified in 2009. In an unusual move, in 2007 Hayden launched an investigation of the Office of Inspector General reportedly because of its intensive investigations of the interrogation and detention programs.

Note: Modeled on the military clock, “zero dark thirty” is military slang for any time during the dark of night. Its civilian equivalent might be “half past dark.” As a movie title, it refers to the secrecy enshrouding the hunt for Osama bin Laden.