Why “Torture Doesn’t Work,” Doesn’t Work (but, other than for intelligence gathering, torture does have its uses)

As the world that is interested in such matters knows, the U.S. Senate Intelligence Committee has finally released the (redacted) 524-page Executive Summary of its 6000-page report on torture and the CIA, headed "Panel Faults C.I.A. Over Brutality and Deceit in Terrorism Interrogations." One cannot be sure why the Chair, Sen. Diane Feinstein of California, decided to release it over the mounting objections of both the White House and the CIA as well as most Republicans (apparently in favor of the use of torture, from the sound of it/them). But she may have been informed that one Senator or another, especially the outgoing Senator from Colorado, Mark Udall, would do it himself if she didn't. (In the end, likely hoping to live to a normal life span, he didn’t.  For the record, while he was apparently considering the option, I did strongly suggest that were he to do the deed, he never again fly in a small aircraft.) At any rate, even just the Executive Summary presents a huge amount of horrifying detail. (I need not detail it here; it and a huge amount of commentary has already appeared in The Times and many other news sources, print, electronic and other.)

It happens that a good deal of the information contained in it has been known, in relative bits and pieces, for quite some time. What the Senate Committee has done is assemble a huge amount of material in one place, and then put their imprimatur on the information, which it has been collecting in sometimes gruesome detail over the past six years. Of course the Republicans have reacted in horror, not at the details of the torture itself and the catalogue of CIA cover-ups, incompetence, disorganization, amateurism, and what-have-you, but at the fact that they have all been made public. Of course, Sen. Feinstein and her Democratic colleagues knew full well that if they didn't release the even the summary document now, it would never see the light of day, at least for the next two years of a Republican Senate majority. Further, even if the Democrats were to retake the Senate in 2016, by that time it would be a) old news and b) the CIA and its allies within and outside of government would have had many more opportunities to a) cover their tracks and b) further justify their actions with the repetitive aid of Fox"News.".

One should note that Democrats hardly have entirely clean hands in this matter. After all, the Obama White House didn't want even the heavily redacted Executive Summary published. Further, right at the start of its Administration, the Obama White House and its "Justice" Department made clear that they would not be going after any of the torturers or, much more importantly, the torture-enablers starting with Cheney, based on what was even then already widely known about the program. Not only has it done nothing to prosecute the perpetrators, it has even allowed the promotion of many of them. Furthermore, we have the odd occurrence that Obama's current CIA director, John Brennan, who knew about the program when he was Obama's counter-terrorism advisor in 2009, and is a member of a Democratic Administration, criticized the Report not only as inaccurate, but also "flawed," "partisan" (sic), and "frustrating."

Be that as it may, the most important point to come away with in examining the Report is the major conclusion that the Senate Intelligence Committee came to about the CIA's torture program: that is was bad because it doesn't work. And they produced huge mountains of evidence to support that claim. Of course its supporters and instigators continue to bray that it does. Consider: "Many Republicans have said that the report is an attempt to smear both the C.I.A. and the Bush White House, and that the report cherry-picked information to support a claim that the C.I.A.'s detention program yielded no valuable information. Former C.I.A. officials have already begun a vigorous public campaign to dispute the report's findings."

And of course the torturer-in-chief, Dick Cheney, is going bananas over the report's release. Andy Borowitz tells us (WARNING: satire) that Cheney has even called for an international ban on the issuance of reports on the use of torture. And so, we know that the CIA has done some very bad things (bad, that is, if you think that torture is bad), fully justified by the Bush Administration. In fact, even though the Committee said that it wasn't, the program was fully authorized by the Bush Administration.

But the Senate Committee's whole premise is that: the program was bad because it didn't work. Which raises the question: would they have concluded that torture was OK if it had produced useful intelligence? Uh-oh and Oh my. If Cheney et al were/are right about the utility of torture, at least as practiced by the CIA, then the Committee's whole argument against it collapses in a heap. Indeed by focusing primarily on "torture doesn't work" for its primary criticism of the program, the Senate Intelligence Committee has let the Republicans and the Right-wing generally off the hook. For they can simply come back, as they are, as noted, doing vociferously, saying "yes it does."

The argument should have been on "it's wrong," and more importantly, that it violates both domestic and international law, and, most importantly, violates the U.S. Constitution. For example, the use of torture violates the clear prohibition of its use in various Federal statutes. But furthermore, and to me most importantly, it violates the provisions banning the use of torture found in the Geneva Conventions and the UN Convention Against Torture. The United States is a party to both the Geneva Conventions and the UN Convention Against Torture, both signed and ratified international treaties. Before considering the Constitutional question, let us consider just what is "torture?"

The authors of the Geneva Conventions just assumed that everyone "knows" what torture is so they didn't bother to define it any detail. The UN Convention defines it in general terms as "Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession . . ." By exclusion, the U.S. Army Field Manual is rather explicit about it. The Bush Administration's quack law firm, Bybee and Yoo, tried to define their way out of the quagmire, but no one outside of themselves and the US Right would agree that what was done to numbers of prisoners of the US was not torture. And the Senate Committee has certainly concluded that it was and uses the term "torture" over-and-over again.

But then comes the truly inconvenient truth that the use of torture by US authorities is simply unconstitutional. Under article VI of the U.S. Constitution, as treaties signed and ratified by the U.S. government, both Conventions are part of "the supreme law of the land and [further] the judges of every state shall be bound by them." This, and its illegality under various U.S. statutes and Codes, are the only arguments that one can make against the use of torture by US agencies that can withstand the "but it works" argument, even if the latter were true. Thus, torture both doesn't work and is unconstitutional as well as illegal. The CIA surely knew the first (they haven't been able to come up with even one provable example of its effectiveness. Further, it should be noted that the Clinton Administration thwarted two attempted terrorist attacks that would have produce much larger death tolls even than 9/11, the 1998 "25 airliners" plot and the "Millennium Bomb Plot" against Los Angeles International Airport, apparently without using one torturous twitch.) They may or may not have known the second that is unless they got all the way to the Constitution's Article VI, or read the Army Field Manual, if they ever bothered to start to read them at all.

So why did the CIA develop the program and why did they continue to use and surely attempt to perfect it. Well, as I have said elsewhere, first and foremost it is a major instrument of terror that can be used against a government's own population: it is a really good repressor of dissent. A principal tool of Gestapo control in Nazi Germany was to pick up someone who had been making mildly anti-Hitler remarks, give them a good session or two of torture downtown, and then send them back to the neighbourhood. You can bet the neighbours got the message.

Second, it is indeed very useful in extracting information from politically active civilian regime opponents who have no military training or training in resisting torture, such as the civilian opponents of the Pinochet Regime in Chile and the civilian targets of the Argentine "Dirty War." Third, it is a very good tool for extra-judicial punishment, just as long as the regime using it makes sure that its details leak out, in a totally deniable way of course, to its own citizens. Fourth, it is a very useful tool for civilian repression in military-occupied territories. Just ask the Japanese Kempeitai that operated in Korea and Occupied China. Fifth, it is very helpful when a regime is out to change the culture of its country, and to wipe out historical memory of anything that went before it came to power. Once they had restored corporate-clerical control of the country, doing so was perhaps the next principal long-term goal of the Spanish Francoists. Torture was one of their stocks-in-trade to achieve that goal.

Sixth, it is really good at extracting false confessions, then to be used in show trials, such as those of the Soviet Union of the late 1930s that killed off so many of the good Communists who were already challenging Stalinism as the way not to try to build socialism. Seventh, in countries that use it but try to re-define their way out of it convincing no-one but themselves (guess who?), it helps to establish a record of lawlessness, of total disregard for the rule of law, as long as the government says things like, "We are doing what we are doing to keep our people safe and fight terror." This was likely a major objective of BushCheney, et al: to change the culture here. "Torture [except of course we don't call it torture, just 'enhanced interrogation'] is that is as long as we are doing the Deciding as to who gets it." No rule of law, no adherence to international treaties or our Constitution of which they are a part, just as long as they say there's a good reason for it.

Finally, to have torture as a useful instrument of national policy, there has to be a cadre of torturers, another reason for the BushCheney torture program. Until they came to power, Americans didn't do such things, officially at least. So there weren't very many, if any, trained torturers amongst our armed and intelligence forces. But now they are, or at least were. And you can bet your sweet pitootie, once you learn how to be a torturer, you don't forget what you learned. So, don't tell me torture isn't useful. It's just not useful for what the torturers tell us it's useful for. And whatever that may be, in the US its use is unconstitutional.

Indeed, "it doesn't work" just doesn't work in the battle to ban the use of torture by the US government, which, as it happens, may well be renewed if the next President is a Republican.