No torture here, folks

“There was a debate after 9/11 about how to make people disappear,” a former intelligence official said.

The CIA is just pushing people’s heads under water to make them think they’re going to drown.

In the case of Khalid Shaikh Mohammed, a high-level detainee who is believed to have helped plan the attacks of Sept. 11, 2001, C.I.A. interrogators used graduated levels of force, including a technique known as “water boarding,” in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown.

But don’t worry, it’s all legal:

These techniques were authorized by a set of secret rules for the interrogation of high-level Qaeda prisoners, none known to be housed in Iraq, that were endorsed by the Justice Department and the C.I.A. The rules were among the first adopted by the Bush administration after the Sept. 11 attacks for handling detainees and may have helped establish a new understanding throughout the government that officials would have greater freedom to deal harshly with detainees.

And if course it’s not torture:

Defenders of the operation said the methods stopped short of torture, did not violate American anti-torture statutes, and were necessary to fight a war against a nebulous enemy whose strength and intentions could only be gleaned by extracting information from often uncooperative detainees. Interrogators were trying to find out whether there might be another attack planned against the United States.

And we’re making sure the judges don’t get to hear of it:

The methods employed by the C.I.A. are so severe that senior officials of the Federal Bureau of Investigation have directed its agents to stay out of many of the interviews of the high-level detainees, counterterrorism officials said. The F.B.I. officials have advised the bureau’s director, Robert S. Mueller III, that the interrogation techniques, which would be prohibited in criminal cases, could compromise their agents in future criminal cases, the counterterrorism officials said.

When half-drowing people doesn’t work and even more drastic measures are called for, the CIA and the Justice Department have figured out how to get around domestic laws forbidding torture:

The C.I.A. has been operating its Qaeda detention system under a series of secret legal opinions by the agency’s and Justice Department lawyers. Those rules have provided a legal basis for the use of harsh interrogation techniques, including the water-boarding tactic used against Mr. Mohammed.

One set of legal memorandums, the officials said, advises government officials that if they are contemplating procedures that may put them in violation of American statutes that prohibit torture, degrading treatment or the Geneva Conventions, they will not be responsible if it can be argued that the detainees are formally in the custody of another country.

The Geneva Conventions prohibit “violence to life and person, in particular . . . cruel treatment and torture” and “outrages upon personal dignity, in particular, humiliating and degrading treatment.”

Regarding American anti-torture laws, one administration figure involved in discussions about the memorandums said: “The criminal statutes only apply to American officials. The question is how involved are the American officials.”

You really have to read the whole story to believe it. Unlike Abu Ghraib or Guantanamo, the number of prisoners is tiny: no more than 20, or so we’re told, all potentially sources of important information. But the comparisons with totalitarian regimes aren’t hard to draw: The prisoners are held in secret locations, with no visits from the ICRC, completely at the mercy of whatever the CIA or the intelligence services of the countries where they’re being questioned want to do with them.

However, since the United States isn’t actually a totalitarian country, this probably can’t last:

Concerns are mounting among C.I.A. officers about the potential consequences of their actions. “Some people involved in this have been concerned for quite a while that eventually there would be a new president, or the mood in the country would change, and they would be held accountable,” one intelligence source said. “Now that’s happening faster than anybody expected.”

The C.I.A.’s inspector general has begun an investigation into the deaths of three lower-level detainees held by the C.I.A in Iraq and Afghanistan. The Justice Department is also examining the deaths.

What makes me sick is that some of the CIA officers may get hung out to dry, but there’s no probability whatever that the lawyers safe in their Washington offices who approved all this garbage — in your name and mine — will ever be called to account.

There’s a simple principle that applies here. No human being, or small group, is fit to be trusted with absolute and unreviewed power over another human being.

Update Rick Heller comes out foursquare for torture in a few high-value cases on simple self-defense grounds, but denounces torturing and then lying or equivoacting about it. I see his point and respect his intellectual honesty, though I disagree about torture. I’m not sure whether I agree about lying about torture given that we’re doing it: hypocrisy is, after all, the tribute vice pays to virtue, and when people are so shameless they stop being hypocritical all Hell is likely to break loose.

I think he’s wrong about the legal status of torture; the anti-torture treaty we signed bans torture unconditionally (“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. An order from a superior officer or a public authority may not be invoked as a justification of torture”) and we also passed domestic legislation (in fulfilment of treaty obligations) making it a felony punishable by 20 years in prison. So if the government admits it’s carrying out torture, it subjects the people actually doing it to prosecution.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

2 thoughts on “No torture here, folks”

  1. In Which I Endorse Torture

    I year ago, when Mark Kleiman was surveying blogger reaction to the capture of Khalid Shaikh Mohammed, the #3 ranking leader of Al Qaeda, I was the only blogger to forthrightly advocate torturning him, here and here. KSM, as he…

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