Outside the Beltway

Report: U.S. Practiced Torture After 9/11

A new report confirms that the United States did engage in torture in the wake of the September 11th attacks.

Doug Mataconis · Wednesday, April 17, 2013 · 5 comments

A report by an independent group called The Constitution Project has completed a review of U.S. detention and interrogation practices in the wake of the September 11th attacks has concluded that the United States did indeed engage in torture in the course of its anti-terrorist efforts:

WASHINGTON — A nonpartisan, independent review of interrogation and detention programs in the years after the Sept. 11, 2001, terrorist attacks concludes that “it is indisputable that the United States engaged in the practice of torture” and that the nation’s highest officials bore ultimate responsibility for it.

The sweeping, 577-page report says that while brutality has occurred in every American war, there never before had been “the kind of considered and detailed discussions that occurred after 9/11 directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.” The study, by an 11-member panel convened by the Constitution Project, a legal research and advocacy group, is to be released on Tuesday morning.

(…)

The use of torture, the report concludes, has “no justification” and “damaged the standing of our nation, reduced our capacity to convey moral censure when necessary and potentially increased the danger to U.S. military personnel taken captive.” The task force found “no firm or persuasive evidence” that these interrogation methods produced valuable information that could not have been obtained by other means. While “a person subjected to torture might well divulge useful information,” much of the information obtained by force was not reliable, the report says.

Interrogation and abuse at the C.I.A.’s so-called black sites, the Guantánamo Bay prison in Cuba and war-zone detention centers, have been described in considerable detail by the news media and in declassified documents, though the Constitution Project report adds many new details.

It confirms a report by Human Rights Watch that one or more Libyan militants were waterboarded by the C.I.A., challenging the agency’s longtime assertion that only three Al Qaeda prisoners were subjected to the near-drowning technique. It includes a detailed account by Albert J. Shimkus Jr., then a Navy captain who ran a hospital for detainees at the Guantánamo Bay prison, of his own disillusionment when he discovered what he considered to be the unethical mistreatment of prisoners.

But the report’s main significance may be its attempt to assess what the United States government did in the years after 2001 and how it should be judged. The C.I.A. not only waterboarded prisoners, but slammed them into walls, chained them in uncomfortable positions for hours, stripped them of clothing and kept them awake for days on end.

The question of whether those methods amounted to torture is a historically and legally momentous issue that has been debated for more than a decade inside and outside the government. The Justice Department’s Office of Legal Counsel wrote a series of legal opinions from 2002 to 2005 concluding that the methods were not torture if used under strict rules; all the memos were later withdrawn. News organizations have wrestled with whether to label the brutal methods unequivocally as torture in the face of some government officials’ claims that they were not.

In addition, the United States is a signatory to the international Convention Against Torture, which requires the prompt investigation of allegations of torture and the compensation of its victims.

(…)

While the Constitution Project report covers mainly the Bush years, it is critical of some Obama administration policies, especially what it calls excessive secrecy. It says that keeping the details of rendition and torture from the public “cannot continue to be justified on the basis of national security” and urges the administration to stop citing state secrets to block lawsuits by former detainees.

The report calls for the revision of the Army Field Manual on interrogation to eliminate Appendix M, which it says would permit an interrogation for 40 consecutive hours, and to restore an explicit ban on stress positions and sleep manipulation.

The core of the report, however, may be an appendix: a detailed 22-page legal and historical analysis that explains why the task force concluded that what the United States did was torture. It offers dozens of legal cases in which similar treatment was prosecuted in the United States or denounced as torture by American officials when used by other countries.

The report compares the torture of detainees to the internment of Japanese Americans during World War II. “What was once generally taken to be understandable and justifiable behavior,” the report says, “can later become a case of historical regret

Indeed it can.

This is a debate that the United States has been having virtually since the abuses at the Abu Ghraib prison in Iraq came to light and, later on, as the waterboarding that Khalid Sheikh Mohammed and others were subjected to waterboarding and other forms of “enhanced interrogation” in an effort to uncover information regarding al Qaeda and possible future terrorist attacks. Throughout the Bush Administration, the official position of the United States was that we did not engage in torture, and that waterboarding was not torture even though we had called it precisely that when engaged in by adversaries in the past. Indeed, the report addresses that directly:

The United States may not declare a nation guilty of engaging in torture and then exempt itself from being so labeled for similar if not identical conduct. It should be noted that the conclusion that torture was used means it occurred in many instances and across a wide range of theaters. This judgment is not restricted to or dependent on the three cases in which detainees of the CIA were subjected to waterboarding, which had been approved at the highest levels.

Lest you think that this report was put together by a committee of anti-war zealots, Conor Friedersdorf points out that the members of the panel was made up of elder statesmen, former members of the military, and respected civic leaders:

They include Asa Hutchinson, who served in the Bush Administration as a Department of Homeland Security undersecretary from 2003 to 2005, and as the administrator of the Drug Enforcement Administration before that; James R. Jones, a former U.S. ambassador to Mexico and a Democratic member of the House of Representatives for seven terms; Talbot D’Alemberte, a former president of the American Bar Association; legal scholar Richard Epstein; David Gushee, a professor of Christian ethics; David Irvine, a former Republican state legislator and retired brigadier general; Claudia Kennedy, “the first woman to receive the rank of three-star general in the United States army”; naval veteran and career diplomat Thomas Pickering; William Sessions, director of the FBI in three presidential administrations; and others.

Not exactly members of Code Pink, obviously. Instead they are, as Conor referred to them, bipartisan elites many who have served as some of the most prestigious levels of government and the military. So, any argument of anti-war bias on their part would, of course, but absolutely absurd. Instead, based on the summaries of the report that I’ve seen (the actual report is over 500 pages long), it seems fairly clear that they based their conclusion on a careful review of the evidence. Indeed, I’d argue that this is not an easy conclusion to come to. Concluding that your nation has engaged in activity that it has contended for years violated international law is a disconcerting one to say the very least, and it’s one that is likely to have a profound impact on the way the United States is viewed in the world, as well as the future historical judgment of the Bush Administration and the wars in Iraq and Afghanistan.

This doesn’t end the debate, of course. In the wake of the raid that killed Osama bin Laden, many argued that the raid itself was proof that torture worked because, in part, it helped extract information that led to bin Laden’s location in Pakistan. There  was significant disagreement on this point in the wake of the bin Laden raid itself, and John McCain was among those who arguing that waterboarding did not play any significant role in the intelligence operation that led to bin Laden. As I argued at the time, though, whether it “worked” or not was really rather irrelevant:

For example, it may be theoretically possible that we could break a suspected terrorist by placing him a room with his child while a CIA operative put a loaded gun to the child’s head, threatening to kill them unless the suspect revealed what they knew. We could revive the medieval torture processes of the Inquisition. Those methods might even prove highly effective in getting a particularly difficult person to crack. That doesn’t mean we should do those things, however, and the fact that the debate has suddenly moved into “ends justify the means” territory should concern anyone who believes in the rule of law.

Even if we accept the argument that enhanced interrogation techniques  “worked”  in this case, that says nothing about whether they should be done, and the extent to which people are willing to throw morality out the window when it’s convenient is profoundly disturbing.

In a similar vein, and in a separate post from the one linked above, Conor Friedersdorf notes that the boundaries of when torture is acceptable for those who advocate its use have expanded greatly over the years:

Torture used to be unthinkable except in a ticking time-bomb scenario. Now it is widely defended as having been justified because it “arguably” played a small part in killing a terrorist mastermind. Little wonder that, in real life, Americatortured with even lesser utilitarian justification. And despite all the excesses, Boot disparages a fact-based reckoning as “self-righteous.” If neoconservatives are permitted to exercise power again, I fear they’ll have America slipping even farther down this slope. Their journalistic representatives certainly show no sign of remorse.

The real question is whether the people who were responsible for undertaking this reprehensible conduct will ever answer for it. Something tells me that the answer is no.

UPDATE (James Joyner): I was composing “Yes, Bush Administration Used Torture” as Doug was writing his. There’s enough substantive difference to keep both posts live.