- Over the past several weeks we have watched a fundamental
moral, legal and constitutional question about torture descend into a rude
argument over whether it works. In short, a critical question of how America
deals with its malefactors has morphed into a debate about whether the
ends justify the means. The resolution of this debate, it seems, would
be if it works, it is OK. That resolution, of course, takes us back to
the Middle Ages, and justifies taking the rack out of mothballs, to say
nothing of stripping away the Eighth Amendment to the Constitution. It
is time we seriously asked: Where are we headed, and will we be legally,
morally, and spiritually pleased with our destination?
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- Do we take our cue from national leadership? The Bush
administration introduced us to the current version of the issue by a process
that included anonymous confinement of prisoners in Guantanamo Bay in Cuba,
Bagram Air Base in Afghanistan, Diego Garcia- an island system in the Indian
Ocean, and other cooperative prison systems in Egypt, Jordan, Syria and
elsewhere. Those were all places where torture (no debate about the meaning
of the word) was commonplace. And out of six or seven hundred recipients
(maybe thousands we don't know about) of this gross mix of interrogation
techniques, it seems that less than a dozen plausible stories emerged.
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- Three cases were thought solid enough by the Bush team
to present to the American public, but the exempla were not allowed to
confront their accusers or defend themselves by presenting evidence, or
even to read the documentary materials alleged to describe the body of
their crimes. American justice it seemed had stepped outside itself, and
it was not considered necessary that the processes or the evidence be considered
credible. In short, these were not actually trials; they were public events
in which the findings, allegedly uncovered by "special" interrogation
techniques, supported the official story of the destruction carried out
by the perpetrators of 9/11. The findings were simply presented, not legally
proven.
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- But as former FBI Agent Ali Soufan told the New York
Times and other media in early May 2009, all the information about the
involvement of the two lead planners of the 9/11 attacks was obtained by
"traditional interrogation methods". Before Khalid Shaikh Mohammed,
the reported 9/11 mastermind, and his cohort Abu Zubaydah were submitted
to torture, they had already revealed the main story to FBI and CIA questioners.
In short, the Bush administration assertion that the valuable information
the two provided was made possible by harsh interrogation techniques is
a fraud.
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- We have a special problem with the alleged evidence that
torture works to yield critically useful information. Our highest profile
sources for the assertion that torture works-the Bush team and its neoconservative
insiders-are the same ones who insisted on a connection between Osama bin
Laden and Saddam Hussein. The 9/11 Commission found that there was no proof
of any connection between the two. Rather, it was fairly widely known that
the two were avowed enemies. Nonetheless, long after leaving office Dick
Cheney has continued to tout the story of a connection. With that order
of disregard for facts, should we credit anything he or former President
George W. Bush says about the efficacy of torture? The assertion of either
one that torture works is at minimum a self-serving declaration meant to
obfuscate or dismiss the truth of prisoner abuse at US holding facilities
and those of friendly governments.
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- All of that is by way of showing that we actually have
no reliable evidence that torture works. What we actually have is that
alleged high value prisoners said thing their torturers wanted to hear
after they had been waterboarded countless times, hanged on tiptoes for
hours at a time, slammed repeatedly against a plywood wall, confined in
boxes too small for them to sit up, publicly embarrassed by being stripped
naked, and confined in near freezing conditions. What these processes gave
the interrogators was a situation in which they would not be able to distinguish
fact from fiction in the spoken efforts of prisoners to make it all stop.
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- In the end, in interrogation there is a fundamental difference
between hearing what you want to hear and knowing that what you hear is
true. But every bit of the debate about whether torture works is beside
the point. Murder works to rid one of an enemy, but we consider that a
crime. Physical abuse works to get one's way, for example in rape cases,
but we consider that a crime. Physical assault is one way to settle an
argument, but we consider that a crime. However, what the advocates of
torture are saying is that the systematic abuse and mutilation of an individual
up to some point just short of system failure and death is OK so long as
this is done to gather "national security" information. By this
stretch of our moral fiber we simply set aside the rules of humanity that
were built into our Constitution. The implicit assertion is that it is
OK to risk and maybe even take a life in this manner to save some other
life.
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- But there is a deeper set of offenses here. The basic
US strategy invented by the Bush team was to avoid situations in which
the so-called "enemy combatants" could be treated as equals under
US law. The "rag heads" or "hajjis" or "dirt bags",
all common terms for the enemy combatants, were considered below second-class
citizen status; they were treated as members of a subhuman category.
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- Presidential Candidate Obama promised to clean up this
mess. His basic promise was to close Guantanamo, shut down the black sites,
stop use of friendly government sites where prisoners were held when not
at Guantanamo, and bring the enemy combatants into the American legal system.
While he started off in this direction, he now seems to be changing course
toward perhaps remodeling the Military Tribunal system and keeping it for
trying the people scooped up in the past War on Terrorism or in future
engagements.
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- Where the enemy combatants will be stored re-emerges
as an issue. The dominant reasons for keeping the Military Tribunals are
to maintain a secure forum for hearing sensitive cases bearing on national
security. That would mean the American tradition of a public trial is out.
But it also means that these prisoners cannot be kept in the company of
ordinary criminals. To do so could result in leakage of sensitive information
through criminal contacts.
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- So we are drifting back toward a system in which the
enemy combatants will continue to be held anonymously and, needless to
say, in circumstances (outside of public view) where (with or without White
House knowledge) they could be subjected to harsh interrogation techniques
that will not see the light of day.
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- The remaining quandary is what to do with the people
we have held for years without bringing any charges against them, and their
keepers have admitted there is insufficient evidence to convict if they
were tried. In an ordinary criminal case, unless the court could prove
insanity or incompetence, the individuals would be free to go. However,
the fear is that such people, given their freedom, might retaliate for
unjust confinement. The Bush decision, therefore, was to keep these people
confined, and the Obama decision seems to be trending in that same direction.
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- Of course, the longer these people are unjustly held,
the higher the probability that, if released, they and/or their friends
would be angry enough to do harm. It is an awkward case of injustice breeding
anger, and the jailer's growing fear of retaliation generating a continuing
unjust confinement. This appears to be a special brand of torture from
which there is no escape for either party.
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- The irony of the situation is that since it seems to
have great national security and military significance it is deemed capable
of a military solution. In reality, the only workable solutions to the
problems are legal and humanitarian. By failing to apply either, we buy
our own enduring confinement, trapped in a continuing ignorance and distrust
of the American Constitution.
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- The writer is the author of the recently published work,
A World Less Safe, now available on Amazon, and he is a regular columnist
on rense.com. He is a retired Senior Foreign Service Officer of the US
Department of State whose overseas service included tours in Egypt, India,
Sri Lanka, the Philippines, and Brazil. His immediate pre-retirement positions
were as Chairman of the Department of International Studies of the National
War College and as Deputy Director of the State Office of Counter Terrorism
and Emergency Planning. He will welcome comment at
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- wecanstopit@charter.net
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