Speak, Obama

by Joseph Margulies | May 5, 2011

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.

Source URL: http://www.newrepublic.com//article/politics/87909/obama-osama-bin-laden-torture-guantanamo-bay