Fosco's Torture Memo (Hint: Bush is going to jail.)

Fosco wishes to thank The BeeMaster again for his recent guest post here at Fosco Lives!, even though it made this blog an (unlikely) stop on the Bush legacy tour. But, after all, when you read that twenty percent of Americans still approve of George W. Bush, don't you ever wonder who those people are and what they're thinking? Well, now we know.

Fosco would like to note that guest posts are always welcome here. On any topic. However, with that being said, I suspect that Fosco Lives! is going to become a little less political for a while (at least until the next Prop 8 flare-up--most likely around June when the California Supreme Court releases its decision). On the one hand, Fosco doesn't want to get complacent now that Obama is in power. On the other hand, there are so many things that Fosco likes more than politics. Many, many things. Not only will this de-emphasis on politics thrill Fosco's boyfriend Oz, it will also allow Fosco to concentrate on some recently-neglected topics (like music and literature). And, to be honest, Fosco is looking forward to feeling a bit less angry on a daily basis... At the very least, this will be good for Fosco's health.

I hope you'll still feel comfortable commenting on The BeeMaster's defense of Bush (especially as more and more of it is proven by history to be untrue). While some of the things that The BeeMaster wrote can be considered legitimate differences in opinion, there are several things that are more problematic. And there is one thing that Fosco just cannot let slide.

The BeeMaster claims that

When water-boarding is brought up, we will see that it was used on only three suspects, one of whom was Khalid Sheikh Mohammed, Al Qaida's chief of operational planning, who divulged vast amounts of information that saved hundreds of innocent lives. Whether this tactic--it creates a drowning sensation--is torture is a matter of debate. John McCain and many Democrats say it is. Bush and Vice President Cheney insist it isn't. In any case, it was necessary.

Fosco may have a bee in his bonnet about torture lately, but there are several things wrong in this statement.

First, the "debate" on whether water-boarding is torture is really only a debate in the same way that there is a debate about whether smoking causes lung cancer. Aside from a few people who are motivated to believe otherwise, the answer is clear. There is a long trail of legal precedent that identifies simulated drowning as torture under American law. The legal precedent has been traced by Judge Evan Wallach in a recent article in the Columbia Journal of Transnational Law. You can download the full text of Judge Wallach's paper from this URL. Judge Wallach's article also presents the clear historical record that the United States has regularly punished simulated drowning as torture:

Indeed, despite increasing discussion of variations of [water-boarding], and their application on a global scale, nobody seems to remember that, not so very long ago, the United States, acting alone before domestic courts, commissions and courts martial, and as a participant in the world community, not only condemned the use of water torture, but severely punished as criminals those who applied it.

Most notably, this happened with the Japanese water torture of American servicemen during World War II, when a number of Japanese interrogators were convicted by the US of torture for using water-boarding techniques. Historically, there is no question that the United States law has considered water-boarding to be torture. I look forward to George W. Bush's prosecution for war crimes. Seriously.

Of course, many conservatives are willing to admit that water-boarding is torture while maintaining that it is unavoidable or necessary to save innocent American lives (and this will presumably be Bush's public defense if/when we get to his war crimes trial). But, even if this is true (and, in a moment, we'll see why it's not), it's a claim that follows from a pretty unpleasant system of moral reasoning. Neither Christianity nor the traditional secular Kantian model of moral reasoning would agree that one can engage in a grossly immoral act in order to do some moral good. Rather, if you want to believe this, you're stuck in the troublesome realm of utilitarianism, where you have to calculate the sums of goods and evils and so on. Sometimes that seems easy; sometimes it's clearly not. But when it comes down to it, I think most people aren't too comfortable basing their ultimate morality on that kind of utilitarian calculus.

As far as the question of whether torture saves lives, I think the problem here is that too many people have been watching that televised propaganda film called "24." Maybe Jack Bauer saved lives by torturing someone (I don't know--I watched Triumph of the Will instead), but very few people who know things about torture are willing to vouch for the realism of "24." Since The BeeMaster is so keen on the information we got out of Khalid Sheikh Mohammed (KSM), let's talk about his case.

I recommend this article from Vanity Fair, December 2008. In it, the respected investigative journalist David Rose speaks to CIA, FBI, and military sources about the results of prisoner torture. Here's what he learned about KSM:

As for K.S.M. himself, who (as Jane Mayer writes) was waterboarded, reportedly hung for hours on end from his wrists, beaten, and subjected to other agonies for weeks, Bush said he provided “many details of other plots to kill innocent Americans.” K.S.M. was certainly knowledgeable. It would be surprising if he gave up nothing of value. But according to a former senior C.I.A. official, who read all the interrogation reports on K.S.M., “90 percent of it was total fucking bullshit.” A former Pentagon analyst adds: “K.S.M. produced no actionable intelligence. He was trying to tell us how stupid we were.”

Hmmm. That doesn't sound promising. But KSM must have said something useful when he was tortured, right? Not so much:

Several of those I interviewed point out the dearth of specific claims the administration has proffered. “The proponents of torture say, ‘Look at the body of information that has been obtained by these methods.’ But if K.S.M. and Abu Zubaydah did give up stuff, we would have heard the details,” says [former FBI terrorist interrogator Jack] Cloonan. “What we got was pabulum.” A former C.I.A. officer adds: “Why can’t they say what the good stuff from Abu Zubaydah or K.S.M. is? It’s not as if this is sensitive material from a secret, vulnerable source. You’re not blowing your source but validating your program. They say they can’t do this, even though five or six years have passed, because it’s a ‘continuing operation.’ But has it really taken so long to check it all out?”

But, you say, these are low-level interrogators and anonymous sources. They must be out-of-the-loop. Or secret liberals (you find a lot of secret liberals among FBI terrorist interrogators).

But what if the Director of the FBI (reluctantly) went on the record about the fruits of torture?

I ask [FBI Director Robert] Mueller: So far as he is aware, have any attacks on America been disrupted thanks to intelligence obtained through what the administration still calls “enhanced techniques”?

“I’m really reluctant to answer that,” Mueller says. He pauses, looks at an aide, and then says quietly, declining to elaborate: “I don’t believe that has been the case.”

Hmmm. I'll take "torture does not save lives" ftw.

In fact, according to this editorial by a former CIA interrogator, torture may actually be responsible for American deaths:

I learned in Iraq that the No. 1 reason foreign fighters flocked there to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me--unless you don't count American soldiers as Americans.

You can believe this or not. But if you want me not to believe it, I need to see a source that is at least as experienced and as knowledgeable as this man about the situation on the ground in Iraq (and neither Bill O'Reilly nor TrAnn Coulter count).

You know what would be so funny if it weren't so sad? The FBI and CIA have known for a long time how to get good information out of detainees. FBI interrogator Jack Cloonan did it (see the Vanity Fair article) with the conspirators in the Kenya and Tanzania US Embassy bombings. The former CIA interrogator mentioned above relates (in his Washington Post editorial and subsequent book) that,

We turned several hard cases, including some foreign fighters, by using our new techniques. A few of them never abandoned the jihadist cause but still gave up critical information. One actually told me, "I thought you would torture me, and when you didn't, I decided that everything I was told about Americans was wrong. That's why I decided to cooperate."

What was this secret method of interrogation?

I taught the members of my unit a new methodology--one based on building rapport with suspects, showing cultural understanding and using good old-fashioned brainpower to tease out information. I personally conducted more than 300 interrogations, and I supervised more than 1,000. The methods my team used are not classified (they're listed in the unclassified Field Manual), but the way we used them was, I like to think, unique. We got to know our enemies, we learned to negotiate with them, and we adapted criminal investigative techniques to our work (something that the Field Manual permits, under the concept of "ruses and trickery"). It worked. Our efforts started a chain of successes that ultimately led to Zarqawi.

I see. Wait--it's almost as if someone had discovered a way to interrogate successfully! Did anyone Cc. Bush?

So why do so many people want to torture detainees? I can't help but think that a very ugly type of vengeance is at work here. Do not think that Fosco is above anger at those who perpetrated 9/11 or those who do/would kill American troops (or civilians). I want those people to get what they deserve. However, I believe that "just deserts" are morally meaningful only when they are just. Vigilante justice is not justice. No matter what Bush et al. claim, it is possible for us to punish evildoers under our system of laws. It might take more work (although it may not), and it will definitely require more restraint. And in calling for this restraint, I am not particularly interested in protecting terrorists; rather, I am interested in protecting our American moral character.