The prohibition on torture: An essential element of national security policies

By Darren O’Donovan

What does it take to believe torture works? Why do we as a society often debate hypothetical ticking time bomb scenarios, and what does it say about our public discourse that they are so prominent? In this blog, I want to explore the ‘smooth’ falsity of assumptions underwriting the familiar narrative around the idea that torture “works”. This is particularly topical given the recent statement of President Trump:

 “We have a general that has just been appointed Secretary of Defense, General James Mattis. He has stated publicly that he does not necessarily believe in torture, or waterboarding, or however you want to define it — enhanced interrogation would be a word a lot of people would like to use. I do not necessarily agree. But I would tell you that he will override, because I’m giving him that power. He is an expert. He’s highly respected. He is the general’s general…And so I’m going to rely on him. I happen to feel that it does work. I have been open about that for a long period of time.”

President Trump, Joint Press Conference with UK Prime Minister Theresa May, January 27, 2017

The narratives that “torture works” relies on a sequence of actions and competences, which in our popular culture, are often represented totally unrealistically. A typical TV scenario revolves around the following steps:

– identify the terrorist (viewed as unproblematic process)

– torture (with legal debates accompanying what this means, with bureaucratization through torture warrants etc)

– extract otherwise unobtainable benefits for security

– All this was a one-off scenario.

The flawed vision of circumstance, the flawed definition of alternatives and the flawed vision of human knowledge and institutions often implicit in the ticking time bomb narratives have frequently gone unchallenged. It has frequently been used to argue against the prohibition of torture in international and national laws, to project international human rights law as an obstacle to effective security.

The Killing of Bin Laden and Torture:

During the Obama administration the principal flashpoint of the competing approaches to torture was in reconstructing the investigation and ultimate killing of Osama Bin Laden. The first link to the chain leading to the Osama Bin Laden killing was reported at the time to be the following:

“Prisoners in American custody told stories of a trusted courier. When the Americans ran the man’s pseudonym past two top-level detainees- the chief planner of the September 11 attacks, Khalid Sheikh Mohammed, and Al Qaeda’s operational chief, Abu Faraj al-Libi- the men claimed never to have heard his name.”

 The New York Times first reported that a ‘quite co-operative’ detainee at a CIA black site, Hassan Ghul, supplied the nickname of the courier. The interrogation techniques he was subjected to remain unclear. The 2014 Senate Intelligence Committee found that Ghul cooperated with his interrogators without being subjected to any form of coercion. “He opened up right away and was cooperative from the outset,” said a CIA officer, adding that Ghul “sang like a tweetie bird”.  During two days of questioning, Ghul yielded enough information for 21 separate intelligence reports. He referred to bin Laden’s courier and speculated – entirely accurately, as it turned out – that the al-Qaeda leader must be in Pakistan. Despite this cooperation, however, the interrogators were convinced that Ghul was still withholding information. The Senate Report found that they duly transferred him to a “black site” where he was subjected to 59 hours of sleep deprivation and other techniques to see if he would provide further information.

Side by side with this, interrogators grew suspicious that Muhammed (waterboarded 183 times in 2003) and Al Libi were lying, despite their treatment, and that the courier was probably an important figure. There are often attempts to paint these false denials extracted by torture in 2003 as the key. This is quite audacious, especially as, in 2005, having assessed the evidence obtained by waterboarding, the CIA itself regarded the trail to Bin Laden as cold, and further that Bin Laden was no longer engaged in planning operations. The ultimate operation against Bin Laden was attributable to Operation Cannonball in 2005, which viewing existing information as insufficient, focused upon placing more CIA agents on the ground in Pakistan and Afghanistan and the complex intelligence work which followed.

On the kindest possible interpretation, the calculus which torture proponents sell in using the bin Laden operation in support of changing the law, is that torture is acceptable to gain a sliver of information that may, after six years of conventional intelligence and advanced surveillance networking, might at some point in the future, avoid the massacre of civilians. Systematising such a state of exception has far broader ramifications than any ticking time bomb experiment. The engine of this is the one percent doctrine (‘if there is a one per cent chance of an event coming due, act as though it was a certainty’). In an outstanding recent article, Louise Amoore has summarised the impact of such reasoning upon the rule of law:

“…risk is uncertainty made certain. That is to say, it acts on the undcertain future in a way that undercuts law’s conventional reliance on precedent, evidence and judgment in the present”

Why Torture doesn’t work

 As a preliminary hurdle for beginning any enhanced interrogation techniques, it would be desirable to be able to tell when someone is lying. We have of course a wealth of behavioural psychology material on this ability within the mainstream population (57%), and police (45%-65%). The Opinio juris blog has helpfully cited the 2006 Educing Information Report of the American Intelligence Science Board which found that prevailing programmes produced ‘little reliable information’ that could assist the detection of deception. Darius Rejali instances the experience of Sheila Cassidy who was ‘broken’ under electric-shock torture by Chilean torturers in the 1970s, identifying priests who aided the country’s socialist opposition. The interrogators refused to believe such a fact, and continued their torture until she was rendered in such a state that she could no longer remember the location of their safehouse. Implicit within pro-torture arguments is often the ability to distinguish the person who has information from one who does not. Equally, the standard is not merely that torture produces information, but that it is superior to other methods. These are the hidden competences that lie beneath our pop culture representations of torture, and are never recognised.

For torture proponents, it is common to cite the case of Ramzi Murad in 1995, where the Philippine police brutally tortured a suspect for 67 days. Yet, despite police having broken his ribs, burned him and pumped his stomach with water for more than two months, Murad only spoke when a new team of interrogators turned up claiming to be Mossad agents. In terms of alternative means, Murad was captured with a treasure trove of incriminating evidence, including a computer, whose files revealed the same information.

The recent German case Gafgen (which went to the European Court on Human Rights) comes closest to representing ticking time bomb scenarios. Here, the threat of violence led the suspect to give up the location of an already deceased kidnapped child. Police were fined under German criminal law and dismissed from the force. Again even this most difficult of situations must yield to a counterfactual; if the victim had been alive when he was interrogated Gafgen may have disclosed the hiding place at once for mitigation.

Clear counterarguments exist to such cases, and our public debate often does not sufficiently engage with the complexities of conventional interrogations. For instance, Kleinman, writes about how abuse destroys ‘clusters, groupings of behaviours’ which interrogators read ‘when a detainee is lying, being uncooperative or truthful’. The NYPD secured actionable intelligence from a suspect in the millennium bombing plot in just six hours on December 30 1999 through standard interrogation.

In this blog I have not yet even touched upon second order effects in the counterterrorist sphere: e.g. its impact upon a government’s standing in the world. These lay out the heart of Obama’s moves to end the enhanced interrogation techniques. These second order effects go beyond the capacity and expertise of individual agents or military officials to measure. One hopes, therefore that events in recent days do not signal the relaunching of simplistic debate around the idea that “torture works if only the lawyers would allow it”.

La Trobe