Here’s an email I just sent to everyone in my firm:
| The report of the Senate Select Committee on Intelligence was released a few minutes ago. It can be downloaded here. Everyone should read as much of it as they can bear. |
| Barest summary of the report: In the years after 9/11, the CIA systematically tortured terror suspects and other detainees pursuant to orders from the Executive branch. Senior members of the Bush Administration (presumably including Vice President Cheney) committed war crimes, in knowing violation of both international and US law, under cover of deliberately shoddy and misleading legal advice from, among others, a sitting Federal judge. No one will be prosecuted. |
| The report’s most important conclusion: The torture yielded no actionable intelligence, a fact that should finally put an end to the specious arguments about ends and means. That torture doesn’t “work” is not a surprise. Torture isn’t, and wasn’t, about extracting information. It is, and was, about power, revenge, rage and cruelty. Certainly, torture isn’t a sign of strength, or moral clarity in the face of existential danger. It’s a sign of fear and, ultimately, weakness. |
| Justification for this email: If a meaningful distinction can be made between “law” and “politics” – and, by extension, between what is and what is not appropriate for workplace discussion – my considered judgment is that the attached Senate report is concerned with issues of law. At the very least, the report (in its discussions of the Yoo and Bybee memos) highlights the ethical lapses lawyers can commit when pressured by important clients to reach a favorable conclusion. |
| Jeff |
Update
I’ve been forced to admit that saying “torture never, ever yields reliable and actionable intelligence that could not have been timely obtained by other means” is untenable. But my position does not rely on this assertion. I am one of those people who believes, as a matter of law and principle, that torture is always wrong. Many conservatives agree with me (or did, before torture became yet another litmus test of conservative identity).
So does the Catholic Church (you surely remember the 1993 encyclical in which Pope John Paul II deemed physical and mental torture not merely shameful, but also intrinsically evil: “they are such always and per se … on account of their very object, and quite apart from the ulterior intentions of the one acting and the circumstances.”).
So, of course, do Common Article 3 of the Geneva Conventions and the United Nations Convention Against Torture, both of which are binding on the United States (President Reagan’s signing statement on ratification of the UN Torture Convention, particularly his expressed support for universal jurisdiction to prosecute torturers, is worth reading).
So does 18 U.S.C. § 2340A (the Federal crime of torture, to which effectiveness in obtaining actionable intelligence is not a defense).
Both sides of the torture debate understand, at some level, that the prevailing moral and legal positions do not depend on whether torture “works” or not. Indeed, supporters of torture – perhaps sensing that mere “effectiveness” is too easily generalized to other, less favorable contexts – tend to rely on other arguments:
- that the conduct in question does not constitute torture;
- that the conduct in question constitutes torture, except when the United States does it;
- that the defense of “necessity” applies;
- that torture honors the heroes of 9/11;
- that torture is a war-fighting strategy that signals our resolve and has “shock and awe” effects on the enemy’s will to fight.
In a way, committed supporters and opponents of torture have conspired to make “effectiveness” the issue in order to appeal to a public that would find the supporters’ arguments too callous and the opponents’ arguments too high-minded. This is unfortunate, but probably unavoidable.
But what if we were to remove law and morality from the equation, and focus entirely on effectiveness, by taking a cost/benefit approach to torture? We could agree on the benefits: that in some unknowable percentage of cases, torture will yield reliable and actionable intelligence that could not have been timely obtained by other means.
On the costs side of the ledger, we could include the following, all of which have been documented:
- death and disfigurement of persons detained and tortured in error, or tortured after yielding all the actionable intelligence they have, or tortured to provide information that has already been obtained by other means.
- psychological trauma, sometimes permanent, suffered by interrogators and other personnel involved in torture;
- loss of the United States’ international standing and moral leadership and its ability to influence the advancement of human rights and democratic governance abroad;
- reprisals in kind against US military and diplomatic personnel captured by enemy forces; and
- perhaps most critically, the costs of actions taken in mistaken reliance on false or misleading information provided by detainees subjected to torture.
Depending on your view of the likelihoods, the various costs of torture could mount up very, very quickly, exceeding the benefits to a degree that would be intolerable for any other government program. The problem is that we won’t know the costs, because that information either can’t be quantified or is kept secret, and we won’t know the benefits, because that information is subject to manipulation by the torture bureaucracy.
That’s why I stick with my position that torture is always wrong and my belief that, in the long run, we are much better off as a nation if we never, ever do it. Standing firm on principle in the face of threats builds the national character.
So let’s get on our feet, salute the Flag, say the Pledge, renounce torture forever, extradite the torturers (and especially their lawyers) to any Western European country willing to try them for war crimes, and march forward to a better and more honorable tomorrow.