The Other Side of the “Torture” Debate

By Kyle Orton (@KyleWOrton) on December 11, 2014

As a final act while the Democrats hold their majorities in Congress, the United States Senate Select Committee on Intelligence (SSCI) released a report on December 9, the “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program”, known to the Twitterverse as the “Torture Report”. This has reignited the debate about America’s use of harsh interrogation methods, the so-called “enhanced interrogation techniques” (EITs), against al-Qaeda operatives in the shadow of the 9/11 massacre. The politics surrounding this matter—even on basic questions, such as whether discomfort works to induce cooperation in detainees—are poisonous, and the publication of this partisan Committee Study has done nothing to assist this environment. One means of trying to get at the truth is to examine a counterpoint, the 2012 book, Hard Measures: How Aggressive CIA Actions After 9/11 Saved American Lives, a memoir by Jose Rodriguez, the man who oversaw the Central Intelligence Agency’s Counterterrorism Centre from 2001 to 2004.

The problems with the SSCI report were most lucidly expressed by Bob Kerrey, a former Democratic Senator and Governor from Nebraska, who himself once served on the SSCI. In the long war with jihadism, “human intelligence and interrogation have become more important” than in prior conflicts, and “the partisan nature of this report could make this kind of collection more difficult”, Kerrey notes. “I do not need to read the report to know that the Democratic staff alone wrote it. The Republicans checked out early when they determined that their counterparts started out with the premise that the CIA was guilty and then worked to prove it.” The oversight committees set up in the 1970s were intended to bring the national security system within the ambit of law, while keeping politics out of this most crucial aspect of statecraft, Kerrey writes, and the “committee [has] departed from that high road and slipped into the same partisan mode that marks most of what happens on Capitol Hill these days.” Worst of all, while “no one with real experience would claim [the EIT program] was the completely ineffective and superfluous effort this report alleges”, very few would claim it was perfect, Kerrey concludes, so the fact that the Democrats on the SSCI failed to offer any suggestions for reform “is perhaps the most significant missed opportunity”.

The headlines about the Democrats’ SSCI’s report have focused on the apparent application of EITs beyond the scope, quantitatively and qualitatively, of what had previously been known; the allegedly needless brutality of these tactics; the misrepresentation to Congress—and the press—of the effectiveness of the EITs; and the severe mismanagement of the program. Rodriguez’s book, published two years ago, offers a refutation for every one of these assertions.

“Rather than inflict pain, our goal was to induce a sense of hopelessness in the detainees,” Rodriguez writes (p. 233). Rodriguez freely admits that it is possible, though by no means certain, that the information could have been acquired from al-Qaeda detainees using “typical FBI practices,” but only if “we had all the time in the world … But we did not. You cannot overstate the urgency that we felt about getting answers quickly” (p. 231). A number of intelligence officials have described this sense of urgency after 9/11, and it has to be noted that there was public demand for results, and quickly, at any price. Even so, as Rodriguez notes, “[m]any of the techniques were essentially bluffs” (p. 66).

Rodriguez describes (pp. 65-71) a program that was graduated, proportional to the extremity of the circumstances, and subject to extreme invigilation by bureaucrats and lawyers. The entire point was to give intelligence officials additional tools to gather intelligence at a moment when everybody believed another 9/11 was only a matter of time, while not crossing the legal line into torture. To minimize the risks of people going too far, the CIA psychologically assessed those charged with implementing the EITs to screen out sadists and other defectives (p. 82). There is a night-and-day difference between what the CIA did with the EIT program, backed at the highest levels and intended to furnish information, and what happened at Abu Ghraib, which was recreational torture by military policemen without even the pretence of seeking information, something punished by their superiors. What the CIA aimed to do was “disabuse the detainees of the notion that they were able to control the situation or manipulate us” and press upon them that “the only way to ensure some semblance of order in their lives was to cooperate”. In doing this, “[d]etainees were brought to a state of cooperation with the least amount of discomfort because gratuitous pain is counterproductive” (p. 64).

If the detainee was compliant from the beginning, no EITs were applied. If detainees were resistant, EITs began, with written permission needed for every escalation. The first EITs applied were “conditioning” techniques: “sleep deprivation, dietary manipulation, and enforced nudity”. Next was “corrective” actions, such as grabbing a prisoner by the collar, a “facial hold”, and propelling prisoners into a plywood “room within a room” (throwing a detainee against a brick wall would have caused injury; this was intended to shock, says Rodriguez.) After this there was the “insult slap”: an open-handed strike between the chin and the ear, which was not particularly painful, and was not intended to be; it was meant to humiliate and surprise, and it worked, according to Rodriguez. A number of al-Qaeda prisoners were taken aback that the Americans had treated them this way. Finally there were “coercive techniques”: being placed in a confined space, able to stand or sit; placed in a smaller box where one could only sit; “wall standing”, where a detainee stood with their arms against a wall (the intent was to cause fatigue, not pain); and finally was waterboarding (pp. 66-9).

EITs were applied to thirty out of the one-hundred or so al-Qaeda jihadists arrested by the CIA, and in nearly all cases the techniques were ceased within a month of captivity and never started again (p. 234). Given this restraint, the necessity of written permission to administer a slap to a prisoner, and where interrogators are disciplined for blowing cigar smoke into captives’ faces (p. 84) because it was outside what had been approved, the notion of a disorganised, violent program as depicted by Guantanamo inmates like Mohamedou Ould Slahi is rather hard to sustain. This is not to dismiss the problems.

Despite Rodriguez’s claims of a smoothly-run program, one can detect the ad hoc nature of the CIA’s response to 9/11 and others who were there testify to this. There were out-and-out mistakes, like the fiasco over Gul Rahman, an Afghan militant who was shackled to a wall overnight at a black site and died from the cold in November 2002. And while only three people were waterboarded—Zayn al-Abidin Husayn (Abu Zubaydah), Abdurraheem an-Nashiri, who was involved in the USS Cole bombing, and Khalid Shaykh Muhammad (KSM), the operational planner of the 9/11 atrocity—Rodriguez’s attempt to rest his defence of the legality of this technique on the Justice Department’s findings and the use of waterboarding in the U.S. Navy’s SERE (Survival, Evasion, Resistance, Escape) program does not quite cut it. It is not an implausible case, and since waterboarding does no lasting physical damage it is inexact to compare it to real torture. Nonetheless, there is the matter of historical precedent. The U.S. prosecuted Imperial Japanese officers for using waterboarding against American captives during the Pacific War in the 1940s, and prosecuted their own troops for using waterboarding in Vietnam in the 1960s.

Rodriguez pushes back against this argument, saying that the “goals, techniques, and application of Japanese waterboarding were entirely different from the carefully managed and applied procedures we used with these three terrorists” (pp. 237-8). And he has a point. The Japanese were using waterboarding to punish and to extract forced confessions to pre-arranged statements. The use of EITs by the U.S. after 2001 was not about confessions. “Getting ‘confessions’ was generally not a problem,” Rodriguez explains (p. 67). “[Al-Qaeda prisoners] were proud of what they had done in the past; they just didn’t want to talk about attacks that might happen in the future.” The FBI’s operating method is to secure enough information for a criminal prosecution; the CIA needed operational intelligence about forthcoming crimes.

These differences between the CIA and FBI priorities reverberated all the way to the core of the legal questions surrounding the “War on Terror”. If it is a war, then al-Qaeda detainees are being held to keep them off the battlefield until combat concludes, an indefinite though not infinite period, and to provide intelligence to avoid further acts of terrorism. If the paradigm is a law-enforcement one, then al-Qaeda jihadists are being taken into custody in order that they can be prosecuted for past acts. Rodriguez clearly takes the view this is a war, and also notes that the equivalence some make when asking the hypothetical question about al-Qaeda waterboarding Americans does not hold: soldiers operating under a clearly-identified state chain of command, in uniform and accordance with the Geneva Conventions, are not the same as terrorists who hide behind civilians while orchestrating mass-murder of civilians (p. 243). Rodriguez puts it minimally. The very traditional laws of war recognized the category hostis humani generis (enemies of all mankind), often referring to buccaneers and pirates, who were subject to no law and could be executed on the battlefield. Al-Qaeda and its offshoots would fit the definition of hostis humani generis.

Probably nobody has been so prominent as former FBI Special Agent Ali Soufan in criticising the CIA on the grounds that the EIT program could not have worked since even actual torture is ineffective. Other serious commentators have given voice to versions of the same idea. But it isn’t true. The French broke the Algerian insurrection with torture—though they lost ultimately, partly because of the political price incurred for the employment of such methods. The Soviet Union, immune from—and in any case rarely faced with—outcry from Western opinion, employed torture as a systematic part of its counterintelligence and security doctrine, whether it was resisting the Nazi incursion or pacifying the Baltics and Ukraine after the Second World War. The CIA, however, does not need these historical examples; it has more direct experience. Probably the most famous case is William F. Buckley, the CIA station chief in Beirut in 1984-5, who was kidnapped by Iran’s agents, acting as part of the nascent Hizballah. Buckley was murdered, but not before he was tortured horrifically into giving up everything he knew, crippling the CIA’s operations in Lebanon for years to come.

A key argument for rejecting information acquired by any form of coercion is that it is polluted: people will say whatever is necessary to make the discomfort stop. There are cases where this is true. But the assumption that information from terrorists is simply accepted is bizarre. The CIA did not “blindly accept” what was told to it by prisoners like Abu Zubaydah, even after they became compliant. “Every statement … was checked and double checked” (p. 81). Al-Qaeda’s members never gave up everything they knew, yet they would have had little incentive to give up anything without the EITs, argues Rodriguez, and once brought to a state of compliance under this pressure they regularly gave up more than they intended (p. 111). The CIA often knew the answers to questions it asked and impressed this on prisoners to increase their sense of the futility of trying to mislead the CIA; there was always the spectre of more EITs; and as more prisoners came in the CIA was able to play them off against one-another to fill in the blanks, allowing something approaching the truth to be pieced together (p. 233).

Rodriguez is unrepentant—even about the controversial destruction of videotapes showing the EITs. There were ninety-two tapes, twelve showing EITs being applied, and the rest just showing prisoners in their cells (p. 186). The tapes were initially made so it could be demonstrated, in the case of a badly-injured Abu Zubaydah’s death, that the CIA had done all it could to save him. In August 2002, with Abu Zubaydah recovered, the tapes became a counter-intelligence risk and a request was made to destroy them (p. 185). Rodriguez was given the legal right to destroy the tapes and in November 2005 he brought down the curtain on the bureaucratic wrangling, realising, as he puts it, that he would still be waiting for the go-ahead if he left it in the hands of others (pp. 192-4). In March and April 2007, after President George W. Bush made the EIT program partially public in September 2006, the CIA informed congressional leaders about the destruction of the tapes (pp. 196-7). In December 2007, The New York Times published this fact, alongside terms like “obstruction of justice”.

Rodriguez refuses to take cover behind the fact of political demands for results that led to “mistakes”. Rather, he says, the EIT program garnered the most “important, critical, and life-saving intelligence” of any CIA operation in his long career (p. 241). Rodriguez also points out that the crucial information that set the U.S. intelligence community on the trail of the courier, Ibrahim Saeed Ahmed (Abu Ahmad al-Kuwaiti), which led to Osama bin Laden being killed in May 2011, had come first from Mustafa Haji Muhammad Khan (Hassan Ghul). Khan was arrested in Iraq in January 2004 and at first played the “tough mujahideen,” but after application of EITs “he became compliant and started to provide some excellent information”. Khan’s information about “Abu Ahmad” was then checked with two men already in custody, KSM and Mustafa al-Uzaybi (Abu Faraj al-Libi), who had been brought to a state of compliance by EITs, as Rodriguez tells it, and their information helped pave the road to Abbottabad (pp. 108-112). The EITs extracted “some of the most important intelligence collected since 9/11,” Rodriguez writes (p. 71). “Those who say otherwise are simply ill informed or misleading the public.”

Rodriguez says that he briefed Congressional leaders on the EIT program on September 4, 2002, and among those in the room was Nancy Pelosi, the Democratic leader in the House (p. 64). Rodriguez recently wrote with some annoyance about the mendacious attempt by people like Pelosi to pretend they did not know what was occurring in real time and did not support and encourage it. For Rodriguez there is the taunting echo of KSM, who used to say to CIA officers: “You know, someday your government is going to turn on you” (p. 97).  With the release of the SSCI Committee Study, it must seem like that moment has arrived, doubly bitter since the Democrats did not give the CIA a chance to input or even respond to their report. This makes Rodriguez’s book all the more important as a representation of the alternative point of view.