POLITICS MAY 5, 2011
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Sunday evening brought the welcome news that U.S. forces had killed Osama bin Laden at a home in Pakistan. Because this is a very good thing for America, and because at least some of the information that ultimately led to Sunday’s raid may have come from post-September 11 interrogations conducted by the CIA at overseas black sites and by the Department of Defense at Guantánamo, we find ourselves back in the morass of the torture debate. Once again, the debate takes on the character of two blindfolded pugilists swinging wildly, unable to lay a glove on each other but each alarmed by the other’s cheering crowds. And, once again, the person who could contribute most to this debate speaks volumes by his silence. Indeed, President Obama is missing at exactly the moment when he should not be.
The immediate question is whether and to what extent Sunday’s raid relied on information learned through the use of the so-called “enhanced interrogation techniques.” Instead of getting clear answers, however, we are currently being subjected to dueling insistences that leave a great deal unsaid. “Information provided by KSM [Khalid Sheik Mohammed] and Abu Faraj al Libbi about Bin Laden’s courier was the lead information that eventually led to the location of [bin Laden’s] compound and the operation that led to his death,” said Jose Rodriguez, who ran the CIA counterterrorism center from 2002-2005, in an interview with Time. Rodriguez’s statement drew an angry retort from National Security Council spokesman Tommy Vietor: “There is no way that information obtained by [enhanced interrogation techniques] was the decisive intelligence that led us directly to bin Laden. It took years of collection and analysis.” But Vietor did not deny that perhaps some important information came to us after we tortured detainees.
Other reports shed no more light. Representative Peter King went on national television to say the bin Laden breakthrough came from waterboarding. CIA head Leon Panetta indicated in an interview that, indeed, waterboarding had been used on detainees who provided intelligence. Yet, when asked on MSNBC whether waterboarding was involved, counterterrorism chief John Brennan said “not to my knowledge.” Senator Dianne Feinstein, the chair of the Senate Intelligence Committee, has said that “none” of the intelligence came from “harsh interrogation practices,” And The New York Times reported that former CIA officers said the enhanced interrogation of prisoners led to false information. Each side is picking its champions, and the clatter continues.
There is no good reason why the country should be in the dark about this; the Obama administration knows the answers. Information disclosed by the CIA as part of a request by the ACLU under the Freedom of Information Act leaves no doubt that the agency kept meticulous records of its interrogations. It knows precisely, and can reconstruct in great detail, who did what to whom, when, and with what result. It knows the questions that came before relevant information was disclosed, the questions that came afterward, the sequence in which they were asked, and the condition of the prisoner at the time of the answers. The Obama administration, therefore, could answer once and for all if torture helped lead to finding to bin Laden, if it chooses to do so.
The question, of course, is whether it will—and the signals aren’t promising. To date, Obama has given only one major address dedicated to counterterrorism in the context of national security. Speaking at the National Archives in May 2009, he said the Bush administration “went off course” when it made a series of “hasty decisions” that “established an ad hoc legal approach for fighting terrorism … that failed to rely on our legal traditions and time-tested institutions, and that failed to use our values as a compass.” To correct these mistakes, Obama said he had made “dramatic changes” that represented “a new direction from the last eight years,” and that his approach to terrorism would be faithful to “our most fundamental values.”
Since that speech, however, Obama has been virtually silent on counterterrorism issues, including torture. He and his advisers have apparently made the political calculation that, if he presents Republicans with no target on national security, he will escape their wrath on the issue. If that is his judgment, however, he is profoundly mistaken. Public opinion polls consistently show that Republican voters strongly disapprove of Obama’s counterterrorism policies and believe, by a substantial margin, that they have made the nation less safe than when Bush was in office. Obama’s silence has not saved him from blame; it has encouraged it.
The reason for this is clear enough: Most Americans do not have the time or inclination to carefully evaluate the arguments for or against a particular policy and determine if it is a good or bad idea. Instead, they rely on the guidance provided to them by trusted voices, the perceived elites and policymakers of their world who share their values and speak their moral language. These people are believed to have digested the information for and against a particular policy and to have arrived at a position that is most congenial to the values they share with their audience. Naturally, though, one person’s trusted source may be another’s idiot or ideologue. Trust has nothing to do with whether the speaker is correct. And this, of course, leads to uninformed debate.
It is in light of this reality about public understanding that Obama should buck against his own track record and now weigh in on the question of torture in the bin Laden manhunt. The president, more than anyone alive, can shape this heated debate. No matter what has happened since he took office, Obama is still personally liked—and thus, presumably, trusted—by most Americans. (In fact, in the wake of the successful raid on bin Laden’s lair, his credibility with the American people is unusually high.) Most importantly, though, he also has direct access to the information most people would accept as definitive.
Whether torture led to key information should not matter; Obama should allow a discussion about the issue to occur on an informed plane. Maybe torture didn’t work. We have long known, after all, that “enhanced” interrogation techniques used by the CIA led to false information about a link between Al Qaeda and Saddam Hussein, and that this was used by the Bush administration as partial justification for the war in Iraq. Perhaps we will now learn that CIA prisoners, while their interrogations were being “enhanced,” provided false leads about bin Laden’s whereabouts or the identity of his couriers. Perhaps that is one explanation for why it took so long to find bin Laden. If so, that should be part of the discussion. On the flip side, if the answer is that torture “worked,” that it has proven invariably reliable with no discernable downside, that it helped us get bin Laden, we should know. Either way, we will be able finally to have a national conversation based on our values and concrete evidence.
If he is serious about influencing the public debate on the proper response to transnational terrorism, in the wake of bin Laden’s death, Obama cannot remain silent. Yet his track record of abandoning the public square when it comes to counterterrorism issues, including torture, and leaving them for others to argue, does not inspire confidence. In other words, don’t hold your breath for Obama to explain how exactly we got the information that led to bin Laden. We may just never know.
Joseph Margulies is a clinical professor of law at Northwestern University School of Law and associate director of the Roderick MacArthur Justice Center. He is the author of Guantánamo and the Abuse of Presidential Power and is writing a new book, Like a Single Mind, on the changes in American thought produced by September 11.
Follow @tnr on Twitter.
22 comments
The author asks the question: "Instead of getting clear answers, however, we are currently being subjected to dueling insistences that leave a great deal unsaid." Doesn't that tell you all you need to know? If it didn't work, this administration that argued so hard against the tactics would have said so. Penneta's hemming and hawing spoke volumes. There is no question that if someone doesn't know the information you are after, then torture doesn't work. How could it? And of course, they will lie just to get you to stop. But ask yourself this: Is there ANYTHING you wouldn't reveal if some sweaty guy was sitting across from you with a 6000 degree F oxyacetylene blowtorch, you were tied down, and one of your ankles was badly burned to the bone and smoldering?? 90% of Americans will give up just about any possession they own if you just stick a gun in their face. Pistol whip them and knock out a front tooth and you increase that to 98%. To pretend that an untrained and uneducated terrorist, with a pliable allegiance to his shadowy and unknown leader would be able to do any better with a few nuggets of information is laughable.
- seattleeng
May 5, 2011 at 2:41am
President Obama needs to think this through and present something clear on whether torture should be part of our foreign policy in conjunction with our fight against terrorists. I feel that when one President relies on torture and the other avoids it, we can measure their policies by the outcome. If prisoners believe that if they don't tell interrogators what our government wants to hear that the prisoner will be tortured. then the answers will likely lead us into dead ends or, worse, into another after justified war in Iraq. One vice-president thought torture a first resort and our current President could say in our country it is something avoided, where justification is rare if ever.
- Nusholtz
May 5, 2011 at 7:15am
The obfuscators (The WH spokesman was particularly insistent) would have us believe that Bin Laden's detection and assassination were the consequence of a process of pure ethical information gathering. Rather like an immaculate conception. Just as assassination is never purely legal (no matter how morally justified) so is the gathering of information in a stealth war like this can never be purely ethical. Chris O'donnell on MSNBC last night was speaking to a guy who wrote a book about the futility of torture in information gathering. O'Donnell showed his endearing naivete by saying that he always thought that the opposite of torture would be much more constructive: treat them well, feed them well, and when they refuse to cooperate, take away those privileges. Just think what an effort it takes to maintain this sort of ethical sanctity on O'donnell's part. Guys that had little trouble sawing off the heads of innocent hostages or blow themselves up, could be really induced to reveal secrets by having to eat less sumptuous food or sleep in less soft beds! Apparently, for someone like him, there is very little different between determined jihadists and incalcitrant children.
- noga1
May 5, 2011 at 7:37am
Hasn't Rummy already said that the information that lead to the operation wasn't obtained by using torture? Even after he "clarified" his remarks, its still what he's saying. Given the risks involved for those who are party to torture, wouldn't we expect them to have produced some exculpatory evidence by now? Seattle: There is a long history of people who know things not revealing it under extreme torture. The Israelis have a very small number of examples of where it has worked; as do most organizations, but the vast bulk of literature on it indicates that the value of the information obtained is of far less value than the costs the process creates. Its noteable that regimes that indulged in it tend to only start falling back on it toward their ends, when they run out of trained interrogators. And we can look at the value of the data we obtained in Guantanamo. We know KSM lied repeatedly and sent us on plenty of wild goose chases. And again, where are the successes that we can point to? What is holding people back from saying "this information, obtained under torture" prevented/led to whatever. It's not like it's a secret that it was going on!
- Nari224
May 5, 2011 at 11:11am
I think y'all need to get a grip. There is no indication that waterboarding was performed after Obama took office. There is nothing time related to the question that was asked of Panetta, so his affirmation is effectively redundant with everything we already know. And ultimately, I think you guys are asking an impossible and possibly ridiculous question. From one perspective, the hunt for bin Laden absolutely involves every shred of information of every act of person involved since 9/11, even false leads are positive results because you've expanded your knowledge of where bin Laden isn't and who isn't working with him. But from another perspective, and this is the perspective I think is most relevant, one of the articles clearly indicates "The identity and whereabouts of the courier came to light only years later, after the enhanced interrogation had stopped." which means interrogation had nothing to do with it. And no matter which perspective you prefer, I think it's clear Obama hasn't authorized any more torture. You should be ashamed for asking such a poorly thought out question. Yes, Bush authorized torture. Yes, the CIA worked with that information. No, Obama didn't authorize torture. Yes, we tracked down bin Laden. Get over it, already! Is it really that hard to understand?!
- GSpinks
May 5, 2011 at 11:42am
Assuming a general agreement on what torture is, the use of any particular "enhanced interrogation technique" in a future confrontation within the "war on terror" can not be determined solely by its prior success or failure. The benefits of any technique can be discovered through historical examination; but students of torture will often be heard to say that methods to obtain information from opponents continue to evolve. A particular torture invoked in the past may have reaped benefits and secured its place in the future as a valued "enhanced interrogation technique" while another technique is relegated to the dust bin of history. The use of any "enhanced interrogation technique" must consider whether a specific method is actually torture and whether the method is both proper and necessary under the prevailing circumstances.
- Doug12
May 5, 2011 at 12:04pm
A technique for gathering information (torture) may work but that doesn't mean that it should be used. It should certainly not be allowed as a common practice. It should also not be proscribed either. It’s one of those grey areas where individual circumstance should determine its use. If a man kidnaps a young girl or by and is arrested after he hid her or him in such a way that if not found soon she or he would die the interrogators should be give more latitude in what kind of force and threats they use to find out the location of the young person. On the other hand interrogators should be on notice that if they overreach they themselves could be charged with a crime. Sorry, pacifists, would be saints and other simple souls but there is no single or mechanical answer to the question ‘should torture be allowed as an interrogation technique.’
- arnon
May 5, 2011 at 12:10pm
seattle ignores the fact that info obtained by torture could very well be obtained by traditional interrogation techniques (which ain't no picnic) Osama would not have been found if the courier did not get in touch with a person who was being monitored. The CIA put 2 and 2 together, because they knew both sides however the courier making the call would have put him directly on the CIA radar anyhow and they might have then put things together. No one here is privy to what that conversation was about and it was that conversation that directly led to Osama's location. Certainly in this case no one can say that torture directly led to Osama Bin Laden, 7 years and many threads later ain't very direct.
- blackton
May 5, 2011 at 12:59pm
"overreach" ain't good enough, arnon. You better spell it out in words of one syllable. You're going to prosecute people who are acting in good faith, usually with advice of counsel, who "overreach"? Terrible idea - you won't be able to recruit or retain good people. They had better REALLY go beyond the pale for you to prosecute.
- butchie b
May 5, 2011 at 1:47pm
butchie b ""overreach" ain't good enough, arnon." I thought I was speaking casually and not formally and legally to a legal audience.
- arnon
May 5, 2011 at 2:01pm
This "Overreach" is an interesting question. In this 2003 interview with Mark Bowden, the author of "The Dark Art of Interrogation," tries to explain why the practice of coercion is a necessary evil: http://www.theatlantic.com/past/docs/unbound/interviews/int2003-09-11.htm I find this particular question sums up the problem: "You conclude that "coercion should be banned but also quietly practiced," because legalized coercion, even when closely regulated, is the ultimate "slippery slope." Yet if coercion is officially banned, how will Americans come to a consensus about what kind of coercion is and isn't appropriate? It's hard to have a debate about something that officially doesn't happen."
- noga1
May 5, 2011 at 3:12pm
noga1, that's a neat trick, moving the discussion from torture to coercion. But, I'm not buying any of it. I'm not biting, though.
- GSpinks
May 5, 2011 at 5:51pm
Here is a fine critic of the self important Ken Roth: "The Hubris of the International Lawmongers" "Here's a very short and necessarily superficial summary of the theory of lawmaking in modern democratic societies." http://yaacovlozowick.blogspot.com/2011/05/hubris-of-international-lawmongers.html
- arnon
May 5, 2011 at 6:02pm
DON'T speak, Obama. I oppose torture - but, given that we can't undo the past, it's good to keep America's enemies uncertain about what we might do or not do, use or not use. Creative ambiguity is frustrating for pundits, but allowing terrorists to know that the US may well do something illegal, immoral, or insane in pursuit of them is bound to have a salutary effect.
- floydsm8
May 6, 2011 at 5:46am
When I lived in Australia, there was a common joke that it was more socially acceptable to be unemployed than a lawyer at a party (I assume the same joke existed in the US, but something other than unemployed was substituted). I had always understood that it was due to a chariacture of the way some defense and personal injury lawyers acted. However posting on this board has taught me that there is a conpleltely unrelated cause for this antithipy amongst some. These people are prone to making statements that they are unprepared to defend or support, which I guess tells us all that we need to know about the depth of their arguments. Instead, they appear to feel that calling someone a lawyer completely invalidates any question, even very obvious and reasonable ones, of their statements. Not sure which would be worse if I were a lawyer; being a social pariah for the actions of a few, or having the basics of argument and rhetoric confused for Jedi mind tricks.
- Nari224
May 6, 2011 at 6:51am
Otherwise, preach it on brother/sister GSpinks. You speak the truth.
- Nari224
May 6, 2011 at 6:52am
"brother/sister GSpinks" ??? I wonder, what sort of brotherhood is that? Nari224 seems to think that if he feels something very deeply then he must be right. Lozowicz's analysis is not based on anti-lawyer animus. It is based on the way INTERNATIONAL LAW is being subverted and bowdlerized in service of the ethics that emanate from such "international" bodies as the UNHR council. An ethics that can be summed very simply as let's gang up on Israel. Obviously from his acrimonious remark one can deduce that Nari224 rather admires that body and its evil message. Also a fact that "brother/sister GSpinks" doesn't have the guts to deal with the contents of the article I linked too so he resorts to some strawman/red herring fallacy about "a neat trick". As if he doesn't know that "coercion" was probably the term used to designate what later came to be described, euphemistically, as "enhanced interrogation" and for the less squeamish, straight up "waterboarding". I've been wondering what could induce anyone to call my posting of the article as "a neat trick" and presume that only a mind pathologically prone to conspiracy theories could actually think that way. http://www.usnews.com/science/articles/2009/05/26/the-inner-worlds-of-conspiracy-believers " ... the new study provides an intriguing but partial look at the inner workings of conspiracy thinking. Such convictions critically depend on what he calls “selective skepticism.” Conspiracy believers are highly doubtful about information from the government or other sources they consider suspect. But, without criticism, believers accept any source that supports their preconceived views" Here is an example of such a mind: http://ca.news.yahoo.com/conspiracy-theory-ndp-deputy-leader-mulcair-doubts-u-223811645.html "The first burst of controversy from the next crop of MPs came not from a raw NDP rookie but from the party's experienced deputy leader who said he doesn't believe the United States has photos of Osama bin Laden's body. Thomas Mulcair struck a conspiracy theory note Wednesday when he told CBC TV that U.S. President Barack Obama's version of the death of the terrorist mastermind is incomplete, if not untrue. Obama said he has seen photos of bin Laden's corpse but releasing those photos would be akin to peddling gruesome trophies. Mulcair was doubtful. "I don't think from what I've heard that those pictures exist," Mulcair said during an appearance on Power and Politics. "I think that if there is something that went on there, it requires a full analysis, and we have to understand whether or not there was an action where there was an action in self-defence or whether it was something that is more in the style of a direct killing. And that has to do with American law and international law as well."
- noga1
May 6, 2011 at 9:58am
Actually Noga, I'm not sure how you derive any inferences about a relationship between how deeply I feel about something and how correct I feel it is, but no matter. And please note that not everything is about you or your posts. If I was referring to Lozowicz's article (which I did not read), I would have mentioned his name. If you read the posts again, hopefully it's clear who my post is directed to. As for complaints about strawmen and avoiding things, I must extend my thanks for your providing such entertaining hypocrisy so early in the day.
- Nari224
May 6, 2011 at 12:09pm
Nari "Actually Noga, I'm not sure how you derive any inferences about a relationship between how deeply I feel about something and how correct I feel it is, " Ex. Nari: "As for complaints about strawmen and avoiding things, I must extend my thanks for your providing such entertaining hypocrisy so early in the day." Talk about entertaining.
- noga1
May 6, 2011 at 1:52pm
Noga - did you have something to support your statement of "Nari224 seems to think that if he feels something very deeply then he must be right. "? The example you provided above would appear to be completely unrelated to you claim. Unless you believe that I care very deeply about your statements, it's a meaningless example. And I salute capacity for self-deprecation in being able to laugh at yourself along with me!
- Nari224
May 6, 2011 at 2:55pm
Chomsky: http://www.guernicamag.com/blog/2652/noam_chomsky_my_reaction_to_os/ "We might ask ourselves how we would be reacting if Iraqi commandos landed at George W. Bush’s compound, assassinated him, and dumped his body in the Atlantic." And another quote, from the same putrid mind that produced the above:: "Same with the name, Operation Geronimo. The imperial mentality is so profound, throughout western society, that no one can perceive that they are glorifying bin Laden by identifying him with courageous resistance against genocidal invaders. It’s like naming our murder weapons after victims of our crimes: Apache, Tomahawk… It’s as if the Luftwaffe were to call its fighter planes “Jew” and “Gypsy.” "It’s as if the Luftwaffe were to call its fighter planes “Jew” and “Gypsy.” " Is it? Does the great linguist of MIT really NOT get it?
- noga1
May 7, 2011 at 2:11pm
Noam Chomsky is one sick puppy. He surely knows that what he says is bs, but he enjoys the adulation of the idiot left around the world too much to want to stop spewing his hatred of all that is honorable and decent and good, and his adoration of any scumbag dictator so long as he is anti-American and anti-Semitic. To quote Mary McCarthy on the subject of Lillian Hellman, everything Noam Chomsky writes is a lie, including "a" "and" and "the".
- bulbman1066
May 10, 2011 at 3:38am