Tortured Logic

While the nation was transfixed on the daily horse race of the presidential campaign; while we were
distracted by the endless rainbow-colored graphs, charts and polls, a curious thing happened. On
Thursday August 30, 2012, the Justice Department (after a three-year probe) announced it would not
prosecute anyone involved in the killing and torturing of prisoners in CIA custody.

The Justice Department had been investigating the deaths of two men—one in Iraq, one in Afghanistan.
Gul Rahman died in 2002 while being held at a secret CIA facility known as the "Salt Pit" in Afghanistan.
He had been shackled to a concrete wall in near-freezing temperatures. Manadel al-Jamadi died in 2003
while in CIA custody at Iraq’s infamous Abu Ghraib prison. His corpse was photographed packed in ice
and wrapped in plastic.

Holder stated that "based on the fully developed factual record concerning the two deaths, the
department has declined prosecution because the admissible evidence would not be sufficient to obtain
and sustain a conviction beyond a reasonable doubt," which meant, roughly translated, if we want this
administration’s indiscretions overlooked, then we are prepared to overlook the previous
administration’s peccadilloes.

The irony of this decision will be touched on at the conclusion of this piece. Meanwhile, it is important
since the Justice Department has saw fit to not seriously prosecute torture, that we reacquaint ourselves
with how ingrained into our national security aims the practice actual was and why its adherents and
practitioners are so wrong.

The notion that torture is a viable option can be deconstructed by arguing three main points:

1. Torture is ineffective intelligence strategy

2. Torture, whether "effective" or ineffective, violates the Constitution and any number of agreements
made by our government

3. By torturing, we lose far more than we gain in moral standing

Torture is ineffective intelligence strategy

Point 1: Let's just say, for the sake of argument, that the use of torture didn't violate our Constitution,
the Geneva Conventions or the Convention Against Torture (the last two the U.S. were signatories of), it
is still bad intelligence strategy and bad law enforcement. One defense of torture is the "ticking bomb"
scenario the idea that an imminent, massive threat to civilians might be stopped by a single detainee
who possesses crucial information and will yield actionable intelligence under physical coercion.

But this is mostly a 24-induced delusion, not a frequent occurrence in a complex conflict. Interrogation
expert after interrogation expert has debunked this flawed, and dare I say, ineffective line of reasoning
Ali Soufan, testified to a Senate panel and said (under oath --- this is more than any of the officials who
advocate torture have done) his team's non-threatening interrogation approach elicited crucial
information from al-Qaida operative Abu Zubaydah, including intelligence on "dirty bomb" terrorist Jose
Padilla. Soufan added that his team had to step aside when CIA contractors took over. They began using
harsh methods that caused Zubaydah to "shut down," Soufan said --- later his team had to be recalled to
get the prisoner talking again.

Writing under the pseudonym of Matthew Alexander, a former special intelligence operations officer,
who in 1996 led an interrogations team in Iraq, has written a compelling book where he details his direct
experience with torture practices. He conducted more than 300 interrogations and supervised more
than a thousand and was awarded a Bronze Star for his achievements in Iraq.

Alexander's nonviolent interrogation methods led Special Forces to Abu Musab Al-Zarqawi, the head of
Al-Qaeda in Iraq. His book is titled "How to Break a Terrorist: The US Interrogators Who Used Brains, Not
Brutality, to Take Down the Deadliest Man in Iraq." He says: "It's extremely ineffective, and it's
counterproductive to what we're trying to accomplish."

Army Field Manual 34-52 Chapter 1 states: "Experience indicates that the use of force is not necessary
to gain the cooperation of sources for interrogation. Therefore, the use of force is a poor technique, as it
yields unreliable results, may damage subsequent collection efforts, and can induce the source to say
whatever he thinks the interrogator wants to hear."

The CIA inspector general in 2004 found that there was no conclusive proof that waterboarding or other
harsh interrogation techniques helped the Bush administration thwart any "specific imminent attacks,"
according to recently declassified Justice Department memos --- this same administration claimed that
the waterboarding of Khalid Shaikh Mohammed helped foil a planned 2002 attack on Los Angeles...
forgetting that he wasn't captured until 2003.

There are many more examples that could be cited, but the point should be clear. When the CIA
engages in practices such as waterboarding, sleep deprivation or anything that smacks of giving the
suspect the "feeling of impending death" --- our government's definition of torture --- we hamper and
hinder true intelligence gathering and taint the process by which effective interrogation can take place.

There is a reason why in our criminal justice system, information or confessions that are obtained by
coercion are not admissible in court and, in some cases, deemed criminal as well.

Torture violates the Constitution and any number of agreements made by our government

Point 2: Okay, let's rewind. We are now removing the imaginary condition that says torture does not
violate our Constitution, the Geneva Conventions or the United Nations Convention Against Torture.
The Eighth Amendment of the Constitution states: "Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted"

Geneva Convention Three Article Five: covers the treatment of prisoners of war (POWs) in an
international armed conflict. In particular, Article 17 says that "No physical or mental torture, nor any
other form of coercion, may be inflicted on prisoners of war to secure from them information of any
kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to
unpleasant or disadvantageous treatment of any kind."

POW status under GCIII has far fewer exemptions than "Protected Person" status under GCIV. Captured
enemy combatants in an international armed conflict automatically have the protection of GCIII and are
POWs under GCIII unless they are determined by a competent tribunal to not be a POW.

United Nations Convention Against Torture Article 2: prohibits torture, and requires parties to take
effective measures to prevent it in any territory under its jurisdiction. This prohibition is absolute and
non-derogable. "No exceptional circumstances whatsoever" may be invoked to justify torture, including
war, threat of war, internal political instability, public emergency, terrorist acts, violent crime, or any
form of armed conflict.

Torture cannot be justified as a means to protect public safety or prevent emergencies. Neither can it be
justified by orders from superior officers or public officials. The prohibition on torture applies to all
territories under a party's effective jurisdiction, and protects all people under its effective control,
regardless of citizenship or how that control is exercised.

Since the Conventions entry went into force, this absolute prohibition has become accepted as a
principle of customary international law.

These are things we have agreed to as a nation and we have a legal obligation to follow it. We have
signed our name and said we would live by these national and international social contracts. Things like
waterboarding after all, have been recognized as a torture technique since the time of Torquemada and
the Spanish Inquisition.

U.S. soldiers, who were caught using it on enemy insurgents in the Philippines, in 1901, or the Vietnam
War, in 1968, were prosecuted. In 1947, the United States charged a Japanese officer, Yukio Asano, with
war crimes for carrying out another form of waterboarding on a U.S. civilian. When suffocation by water
was used by foreign governments, such as the Augusto Pinochet dictatorship in Chile, the State
Department didn't hesitate to call it torture.

How do we now go backwards in our support of methods that have been deemed illegal and criminal, to
move forward in what many have called 21st century warfare and post-9/11 thinking?
By torturing, we lose far more than we gain in moral standing

Point 3: There is a Christian scripture that says, not many of you should presume to be teachers, my
brothers, because you know that we who teach will be judged more strictly. America has held itself up as
the beacon of law, liberty and justice, so this is not about comparing America to other countries of the
world or Al-Qaeda, but to the values that it espouses; to the principles that America says it believes in.

America is held to a different standard for the same reason the banker who disparages dishonesty in
business and is found to be an embezzler; for the same reason the minister who decries marital
infidelity and cheats on his wife--- one simply cannot be found guilty of the very things they condemn,
because they indeed will receive greater blame or criticism.

The US has said, in effect, "we will lead;" "we will teach." Whether the terrorist has a flag that they
salute or a Bill of Rights that they follow or not, we do. The insistence that we stay true to those values
does not make a nation weaker it makes it stronger.

A great deal of the pushback by many countries against the United States is connected to a perceived
hypocrisy that America engages in. We are constantly told that it is because others are envious of
America or hates America’s values, but this writer suspects it has more to do with hatred of a double-
standard. A double-standard that preaches human rights, but whose practices produce Guantanamo,
warrantless wiretaps, extraordinary rendition and drone attacks that treats civilians as necessary
collateral damage.

Conclusion

Here’s the twisted irony of the Justice Department’s decision to not aggressively prosecute those who
engaged in torture. Approximately two months after their decision, a retired CIA agent who publicly
confirmed the torture of al-Qaeda operative Abu Zubaydah pleaded guilty to leaking classified
information.

John Kiriakou, who served from 1990 to 2004, is best known for a 2007 ABC News interview detailing
how Zubaydah was waterboarded in CIA custody. So you see, we won’t indict those who torture, but
those who blow the whistle on those who torture… we absolutely will.

War, in my opinion, is always regrettable but sometimes necessary, torture, however, is inexcusable.
Many say when the clock is ticking and lives are at stake, the ends justifies the means. Yet, that is the
problem with torture: it is not a split-second decision, but rather flawed policy; it is not about extracting
information, but about coercion and therefore unreliable.

For example, Senator John McCain, himself a victim of torture, provided no actionable intelligence to
the North Vietnamese, but he was coerced into making certain statements --- statements that he would
later retract. That is the hard clinical truth about torture; it is, by and large, about getting people to say
what you want them to say.
This was true during the various Inquisitions; this was true during the Salem witch trials; this was true
when the Chinese did it during the Korean War; it is true when totalitarian governments do it; and yes
most regrettably, it is true when we do it.

There have been no compelling reasons made other than they do it to us, so we must do it to them. This
has to be understood for what it is, not sound intelligence strategy, but revenge. Is our democracy so
fragile; is our national security so fallible, that our safety depends upon whether or not our government
gets to dunk someone's head under water? We have heard time and time again that the terrorists hate
our way of life, however, shouldn’t our way life include our values, our laws and our honor?

Al-Qaeda does not have a Statue of Liberty that says: "Give me your tired, your poor, your huddled
masses yearning to breathe free," but we do; the terrorists do not have a military code of conduct or
honor, but we do.

Honor is not something that we discard when times are rough or when we are opposed by our enemies;
it is the very thing that allows us to face those times and our enemies without fear or shame.