Making Torture Illegal—Again

You might have read about the McCain-Feinstein Amendment introduced last week—an attempt to prevent a recrudescence of the torture that began with the Bush/Cheney administration and that was solidified by Obama’s decision to “ban” torture via executive order as a matter of policy rather than prosecute it as a matter of law. Obama’s ban included a requirement that interrogations would henceforth be limited to the techniques specifically enumerated in the Army Field Manual. The AFM limitation was no panacea (and no matter where you stand on McCain-Feinstein, I recommend this terrific contrary view from Jeff Kaye in Firedoglake and this one from David Swanson) but it does seem to have curtailed at least some of the barbarity of the Bush/Cheney years, and the McCain-Feinstein amendment would codify that requirement into a law.

(I’ve said it many times before, but still I want to pause here to note that one president has no more power to prohibit what’s already illegal than another president has to permit it, and Obama purporting to “ban” torture is about as coherent a notion as Obama purporting to ban murder, arson, embezzlement, or rape. The constitution provides that the president “shall take care that the laws be faithfully executed,” and Obama’s failure to do so despite the requirements of the United Nations Convention Against Torture and other laws by which the United States is bound is a violation of that oath.)

Laws that demonstrably will not be enforced are de facto no longer laws (imagine if the government decided to “look forward, not backward” regarding bank robberies, for example), and so the Bush/Obama one-two punch presented a conundrum to anyone opposed to torture: how do you advocate against something that’s already criminal but that the government has insidiously turned into a mere matter of policy? A terrific organization called Human Rights First has adopted a two-prong approach: decrease the political attraction of torture by educating the public about how torture is ineffective, contrary to the values America claims to champion, and detrimental to national security; and re-introduce the possibility of prosecution for torture by helping to pass new laws that would be more difficult for unscrupulous lawyers to turn into mockeries.

I’m proud to have been part of both these efforts, each of which has involved an extraordinary collection of former generals, admirals, CIA case officers, law enforcement officers, and interrogation professionals who between them have hundreds of years of relevant experience. And coinciding with the introduction of the McCain-Feinstein amendment, last week we were in DC meeting with various senators and staff we thought might be amenable to our message.

I confess it was a little surreal and dispiriting at times to realize we were trying to persuade American legislators that torture is a bad idea. I mean, that’s a pretty remedial level of lobbying. What’s next—You know, Senator, it occurs to me the government really shouldn’t conduct syphilis experiments on unsuspecting patients? You’d just think that in 2015, we’d be past that level of inhumanity and could focus on more advanced topics. And yet.

Anyway, I can’t imagine anyone but the most hardened ideologue or cynical politician spending time with this group and coming away still believing that torture is in any way a good idea for America, and my sense is that we might have changed a few minds. There’s something inherently awkward about insisting on believing something based on absolutely no relevant experience when a roomful of people with hundreds of years of experience in that thing is telling you the opposite.

It’s worth pausing to emphasize that point: The world’s most experienced and accomplished intelligence, military, and law enforcement interrogators all agree that torture is ineffective, contrary to the values America claims to champion, and detrimental to our national security. It’s not just that the actual experts don’t need torture to be available; they don’t want it to be available.

Conversely, the people most enthusiastic about torture—Dick and Liz Cheney; Mark Thiessen; John Yoo, to name just a few—have no interrogation experience at all. It’s not a coincidence that these people tend to argue for torture in the form of clichés—take the gloves off, do whatever it takes, get tough on terrorists—because the chief function of a cliché is to provide a comforting substitute for actual thought. But it’s also interesting that the clichés in question tend to focus on tactics rather than objectives, because a focus on tactics rather than results is one of the defining features of an amateur.

Professionals focus on the results they want, and dispassionately select the techniques most likely to achieve those results. Amateurs focus on the techniques they want to use because the techniques themselves are the source of their gratification. So it’s telling that the people who most want to torture aren’t, judging by their own rhetoric, primarily interested in actionable intelligence. They’re primarily interested in torture. And the people most interested in actionable intelligence are the ones least interested in torture.

To put it another way: you don’t have to be Sun Tsu to know that you don’t win a fight by doing what feels best to you; you win by doing what is worst for your enemy.

John Oliver got a lot of this right last night on Last Week Tonight. The 15-minute clip is, as usual with Oliver, both hilarious and far more informative than most mainstream coverage. Its primary shortcoming, I think, is its failure to mention that torture was already illegal on 9/11; that in ordering torture, Bush and Cheney were committing criminal acts; and that in failing to prosecute the officials who ordered torture, Obama has violated his oath of office. A little more discussion of Appendix M of the Army Field Manual would have been great, too, because even if McCain-Feinstein passes, the fight against torture will have to go on.

Amateurs think tactics; professionals think strategy. In this regard, as part of our efforts, former navy general counsel Alberto Mora was part of a panel in which he pointed out that torture was a profoundly tactical decision. Whatever it might have accomplished in any individual instance (and the evidence suggests it accomplished nothing useful at all), it cost us the cooperation of our allies who refused to go along with torture and of local populations who became understandably reluctant to inform lest they deliver up a neighbor into barbarity. It’s worth remembering that Nazi soldiers fled the Soviet advance from the east, hoping to be captured by American forces advancing from the west because of America’s reputation for humane treatment of captives (and the Soviet army’s reputation for brutality). Imagine the intelligence boon we achieved because German soldiers wanted us to capture them. Now imagine if our reputation had instead been for brutality, and those German soldiers had decided they’d best flee in the other direction.

Along these lines, I also spent time with Torin Nelson, a former soldier who has conducted and supervised thousands of interrogations in Afghanistan and Iraq and at Guantanamo. It was sobering to hear him describe how nearly every jihadist he interrogated cited Abu Ghraib and Guantanamo as the causes that impelled them to pick up arms. Former Air Force interrogator Matthew Alexander, also a member of the Human Rights First group, has made similar points, arguing that torture is probably responsible for more Americans killed than 9/11 itself.

If you’re relatively new to this topic, here are a few posts I’ve written over the years addressing the various torture apologist arguments:

The Torture Mentality Part 1

The Torture Mentality Part 2

The Torture Mentality Part 3

The Torture Mentality Part 4

It’s Good to Be the King

How it Looks to the Terrorists

Torture Tales

It’s interesting to see how the “facts” apologists used to cite have all been overtaken by evidence. And yet the apologists continue to agitate for a return to what Dick Cheney’s “dark side.” I hope the work I was honored to be part of last week will make that prospect more difficult.