Monday, June 15, 2015

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:

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.


KSR said...

Great blog entry Barry.

Isn't lobbying fun? You hit it on the head to call it surreal.


0x4F said...

Hi Barry,

Long time listener (lurker), first time caller (commenter).

I just have a question about this blog as an additional outlet for your writing.

Do you ever worry that airing your political opinions publicly will alienate potential readers who might not agree, or be turned off by outspoken political content?

I ask this as an aspiring writer myself who's conflicted about whether or not I should be "myself" in the whole (very confusing) platform thing, or if I should play it safe and stick to the old rule of never discussing politics, religion and/or sex in mixed company.

I mean, Orson Scott Card took a big hit to his mainstream readership and credibility when his views on LGBT rights and marriage went public during the promotion for the Ender's Game movie. So, I believe, did Hugh Howey, whose views were apparently just the opposite and alienated potential readers who disagreed with his take on the issue.

You've been at this for awhile now, so does it not bother you or is it still a point of concern? Should someone who is just starting out be more publicly neutral and only discuss "safe" topics (i.e. those related to writing and maybe the occasional cat picture), or just be bold and let it all hang out?

Thanks in advance. Congratulations on your continued success.

Barry Eisler said...

0x4F, here's how I see it. If you believe your activism could make the world a better place, but you bite your tongue because you don't want to hurt sales, what's the difference between that and someone paying you to self-censor?

That's the choice. Make the world better, or make more money. I'd rather make the world better even if it costs me some sales.

Unknown said...

As a non-American commenting here the first time I would simply state that the underlying issue isn't merely torture its the acceptance of torture and indiscriminate killing that should be dealt with. While browsing the blog I did come across a few comments stating that since the enemies of the US government are ruthless barbarians therefore American citizens shouldn't be appalled at the acts their sons and daughters commit in uniform. That's the root cause of the ignorance pervading the American society. Unless people rid themselves of this bizarre notion of American exceptionalism fed by their well-chosen leaders democrats and republicans alike, there would always be another monster to shift the blame to. It's not about torture but the fact that in Iraq itself within the first 4 to 5 years the Americans outstripped the kill ratio achieved by Sadam Hussain throughout his reign of terror. For most non Iraqis its terribly hard to imagine that there was no such thing as car bombings and suicide attacks taking place in Iraq before the American footprint but instead of being appalled by the gory details of what goes around there its easier to claim that the Iraqis were always divided on sectarian lines so the violence ensuing the invasion has been thanks to the uprising with no mention on how the the US aside from running torture and detention sites was funding one sectarian group to fight against the other to avoid a unified resistance. Taking the easier route that the enemy attacks schools but we don't is not just excessive self righteous but ignorant as well regarding the facts. It's not hard to find out how many hospitals got raided and attacked in Iraq who were operating under extreme electricity shortage in the absence of most basic vaccines and medication and how many children lost their lives due to basic preventable diseases like Cholera due to the brutal sanctions. Secondly, if the Soviets invade Afghanistan you ought to lead a boycott against them until they withdraw because again every American adversary is inherently evil so when they occupy a country its for malicious intents not to mention the US aided the Afghans to fight the demonic Russians but when the Americans invade Afghanistan the natives should have known the US government is incapable of harboring self serving criminal aspirations even when their schools, hospitals and civilian residences get bombed and droned and their people can picked up in the middle of the night in raids and tortured and killed its all in good faith. Unfortunately its still as much a problem in 2016 as it was in 2001 hence the cycle of violence gets twice as bloody every year. When the goal is to make people submit to your military might and dominance through brute force and excessive killing then you end up having people who have lost their sons or wives in a drone strike, a house raid or a terror bombing to not just hate those who are bombing them but people who fund the murders of their children and defend such acts.