War by Other Means: An Insider's Account of the War on Terror
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Most of the arguments against coercive interrogation are not about moral absolutes, but about whether the costs outweigh the benefits. Critics of the Bush administration raise a number of claims, I believe, which understate the benefits and overstate the costs. One common claim is that torture does not work and produces only unreliable information or lies from terrorists,64 and so therefore, by extension, coercive interrogation won't work either. This argument is implausible. FBI agents prefer to build a rapport with detainees, while military lawyers believe that "the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear."65 But there is substantial current, and historical, evidence that coercive interrogation can produce important information, or "actionable intelligence."
The most extensive up-to-date evidence is from Israel. The Landau Commission, an Israeli investigation into allegations of torture against its security services (the GSS), found that effectively preventing some terrorist bombings would have been "impossible" without the use of coercive interrogation methods. In a 1997 report to the United Nations, Israel said that because of these methods, "some 90 planned terrorist attacks have been foiled. Among these planned attacks are some 10 suicide bombings, 7 car-bombings, 15 kidnappings of soldiers and civilians, and some 60 attacks of different types."66 In its 1999 opinion, the Israeli Supreme Court accepted that coercive interrogation had forced a terrorist to reveal the location of a powerful bomb similar to one that had destroyed a Tel Aviv cafe, killed three civilians, and wounded more than forty others in 1997.67 Israel's security services appear to have continued their use of coercive interrogation methods.68 And in the last few years, Israel has succeeded in substantially reducing the number of terrorist attacks against its people. While no doubt a large part of this reduction is due to the construction of the security barrier between Israel and the West Bank, the creation of the Palestinian Authority, the withdrawal from some of the occupied territories, and other antiterrorism policies, some of it is no doubt due to information learned through coercive interrogations.
The most convincing evidence that coercive interrogation works in certain circumstances comes from the fight against al Qaeda. In 1995, Filipino authorities captured an al Qaeda operative who had accidentally exploded bomb-making materials in a Manila apartment. Under terrible physical abuse (which does not bear any resemblance to the British, Israeli, or American methods), he divulged information that allowed intelligence agencies to disrupt a plan to simultaneously destroy twelve American airliners flying across the Pacific.69 His testimony in federal court eventually helped convict Ramzi Yousef, the mastermind and leader of the 1993 World Trade Center bombing.
Coercive interrogation of Abu Zubaydah, Ramzi bin al Shibh, and KSM, all captured in the space of about one year, netted American interrogators a great deal of information--as a careful reading of the text and footnotes of the 9/11 Commission report reveals. Interrogating these men revealed not only how 9/11 was carried out, but the entire command structure of al Qaeda, its processes and organization, and how operations are planned, approved, and executed. These leaders discussed the gaps that allowed them to penetrate American security, and the types of attacks they sought to carry out. Interrogation also yielded the names of other al Qaeda agents diverted from 9/11 to future operations.70 Interrogation of KSM produced the names of two al Qaeda pilots in addition to Moussaoui slated for a second wave of attacks in the United States,71 and led to Jose Padilla. This is invaluable information.
A last example, made public by the White House and the Defense Department in June 2004, is that of Mohamed al Kahtani.72 Kahtani is a Saudi national thought to have been the "twentieth hijacker."73 The 9/11 hijackers had hijacked four planes, with three teams of five and one team of four, for a total of nineteen. American intelligence believed a twentieth hijacker had failed to join his compatriots in time for the attacks. American forces picked up Kahtani on the border between Afghanistan and Pakistan in December 2001. During initial questioning, he told military interrogators that he was in Afghanistan to buy falcons. Investigation showed that he had flown from Canada to Orlando on August 4, 2001, but was denied entry by an alert customs official who found his answers to questions suspicious. Telephone records show that Mohammed Atta was waiting in the Orlando airport on that very day and at that very time.
Following techniques designed to counter standard interrogation, Kahtani initially refused to tell investigators anything of value. Based on the evidence, there was good reason to believe that he had been sent to the United States to meet Atta. Kahtani therefore could have possessed very important information about any other al Qaeda operatives still in the United States, providing support for terrorists or, worse, waiting for future attacks.
It was Kahtani's case that set in motion the military's consideration of coercive interrogation. Officials in the fall of 2002 were concerned that al Qaeda would try another attack to commemorate the September 11 anniversary, and intelligence reports were spiking. In October 2002, Gitmo's commander sent a request forward, which Rumsfeld approved on December 2, to use coercive interrogation methods on Kahtani.74 Rumsfeld approved stress positions, such as standing for up to four hours, isolation for up to thirty days, deprivation of light and sound in his cell, removal of clothing, changing rations, shaving of facial hair, and use of phobias to induce stress. In his usual candid way, Rumsfeld approved, but asked in a handwritten note: "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?"
Gitmo's commander requested even more aggressive measures, but only one--mild physical contact that does not injure, such as poking or grabbing--was approved. After unspecified concerns were raised at Guantanamo Bay about the use of these methods, Jim Haynes, DOD general counsel, went to Rumsfeld to ask him to suspend his approval until a broader review could be done. Rumsfeld did so on January 15,2003. There have been unverified media reports based on Army logs that some interrogators went beyond their orders and made Kahtani wear women's underwear, put him on a leash and made him bark like a dog, and put him on an IV when he went on a hunger strike.
But what were the results of this use of coercive interrogation? Kahtani admitted that his cover story was false. He confessed that he was an al Qaeda operative who had met with Osama bin Laden several times. He acknowledged that he was sent to the United States by KSM. He provided detailed information on Reid and Padilla, whom he had met in al Qaeda training camps. Most important, he provided information on an al Qaeda operative, Saudi citizen Adnan el Shukrijumah, who is still on the loose and was believed to be in the United States in 2003 and 2004 to carry out another 9/11-style attack. KSM had apparently told interrogators earlier that El Shukrijumah was a high-level operational commander, on a par with Mohammed Atta, whose job was to organize a cell of operatives and oversee their execution of a surprise attack in the United States. Some reports also indicate that El Shukrijumah was to have worked with Padilla on the dirty bomb plot. El Shukrijumah would have little difficulty blending into American society, as he had lived in the United States for several years. His parents still live in south Florida, and he had been seen there in 2003. In May 2004, Ashcroft issued a warning that al Qaeda planned to attack the United States that summer, and launched an urgent manhunt for El Shukrijumah, along with six other al Qaeda suspects. The attacks never happened; perhaps the intensive scrutiny caused El Shukrijumah and his cell to scuttle their plans. Kahtani not only confirmed that he was the twentieth hijacker, but he also gave up information that helped our law enforcement and intelligence piece together an undiscovered plot within the United States.
This evidence, however, should not be overstated. It is not meant to prove that coercive interrogation should be used in every case, or even that it always works. It is only offered to show that coercive interrogation works in some circumstances, and therefore should not be ruled out across the board. We must carefully weigh the co
sts of coercive interrogations, but we must also be careful not to exaggerate them. Critics commonly make a number of claims about the costs of coercive interrogation based on highly speculative and empirically unsupported assumptions, such as that relaxing a prohibition on physical pressure will lead to a "standard operating procedure" where torture will become the norm.75 Or that it will prove to be an added incentive for the enemy to fight all the harder.76 Or that the information could be acquired another way. Or that it will undermine the advancement of international human rights, or the symbolism of Western law as a rejection of barbarism.77 Or that it will cause allies to reject cooperation with the United States or cause us to lose the moral high ground in the war against terrorism.
These objections are pragmatic considerations based on hunches--albeit perhaps perfectly legitimate ones--about the way the world works. Coercive interrogation in an individual case might even make sense, a critic might concede, but because we cannot rationally balance costs and benefits under the pressure of war, or we only think of the short term, following a prohibition in all cases would still make for better policy overall. The problem, however, is that this hypothesis is often stated as fact, without any convincing evidence. Take the most commonly heard claim, that if we allow the use of coercive interrogation with terrorists it will undermine the ban on physical pressure in other situations.78 This is the familiar "slippery slope" argument.79 Soon, these civil libertarians worry, the use of coercive interrogation will create a constituency in the intelligence and military agencies that will support the expansion of its use against legal POWs and even criminal suspects.80
This argument is plausible, but it is anything but clear that coercive interrogation forces us inevitably onto a slippery slope. Other democracies, such as Israel and Great Britain, that have employed coercive interrogation do not seem to have allowed the practice to spread to their broader military or law enforcement activities. France's use of torture against Algerian terrorists does not seem to have infected its investigation of garden-variety crimes in metropolitan France.81 We have laws that permit the police to use force, even deadly force, against suspects to protect themselves or the lives of others. The slippery slope argument would predict that this would lead to a weakening of respect for the rights of suspects by the police and create a "constituency" in the law enforcement community in favor of ever more brutal physical methods against crime. But this does not seem to be the case. We also have many cases of police brutality and prison abuse in the United States every year, but this does not mean that the rules promote or facilitate police or prison brutality.
The critics usually point to the mistreatment of Iraqi prisoners, speculating, as journalists Seymour Hersh and Michael Isikoff do, that the use of coercive interrogation methods against al Qaeda leaders must have led to their use at Guantanamo Bay, and that this culture must have then migrated to Iraq and inspired Abu Ghraib. Articles have appeared claiming abuses at Guantanamo such as long-term isolation, stress positions, and exposure to extreme heat or cold or noise. At this writing we cannot know if such reports are false, or isolated examples. They are currently unverified and the subject of continuing investigations. But slippery slopes produced by policy choices are one thing, and simple violations of rules another. If you look at the facts, instead of speculation and conspiracy theories, abuses at Abu Ghraib were found by multiple commissions and investigations to be solely the acts of individuals--in no way authorized as a matter of policy, law, or "atmosphere." Abu Ghraib operated under the Geneva Conventions from the start, as it should have under our laws. Several Pentagon investigations, most notably a bipartisan panel chaired by two former secretaries of defense, James Schlesinger and Harold Brown, have found the charges of a secret policy to engage in coercive interrogation to be false.82 They report that the abuses at Abu Ghraib resulted not from orders out of Washington, but from flagrant disregard of interrogation in Iraq and detention rules by the guards. Schlesinger described conditions at the prison "as a kind of Animal House on the night shift" and blamed a lack of resources, training, and leadership.83 A separate investigation by the naval inspector general, Vice Admiral Albert Church, who was charged with conducting an overall review of detainee policy, affirmed this conclusion. In the unclassified portion of his report, Church concluded, "It is clear that none of the pictured abuses at Abu Ghraib bear any resemblance to approved policies at any level, in any theater."84
While the Brown-Schlesinger report admitted that some migration of interrogation techniques from Guantanamo Bay to Iraq was possible, it found that whether they had migrated or not, this hadn't caused the Abu Ghraib abuses. It also found that the rate of abuse of detainees was actually lower in the war on terrorism than in previous American wars. The military has conducted literally tens of thousands of interrogations in the war on terrorism. Admiral Church's investigation found (as of September 2004) 71 cases of detainee abuse and 6 deaths, with only 20 of those cases involving interrogation, and 130 cases still under investigation. This included cases not just at detention facilities, but those that occurred at the point of capture, when soldiers are under much greater stress. He found no pattern to the abuses; they were committed in different theaters, by different personnel and units. Given that the United States had detained by that time approximately 50,000 individuals, this is an extremely low error rate. As Senator Joseph Lieberman observed at a Senate Armed Services Committee hearing on the Church report, this amounted to abuse of one tenth of one percent of all detainees. While each case of abuse is regrettable, it is not possible for a large organization charged with protecting the national security, under extraordinary pressure, to perform its mission error-free. A few high-profile, graphic cases do not reflect the actual overall performance of the military.
The "culture of abuse" theory has no reliable evidence to support it. Has the death penalty, or abortion, created a "culture of death" in the United States? That many say so does not make it true. Compare the Defense Department's interrogation methods at Guantanamo Bay with what happened at Abu Ghraib. Abu Ghraib featured terrible examples of physical and sexual abuse, imposed not in any interrogation context, but as sadistic entertainment when higher officers were not present.85
Interrogation methods at Guantanamo Bay, by contrast, were the result of a careful vetting process through a Defense Department-wide working group.86 In January 2003, Rumsfeld asked Haynes to establish a group to consider the policy, operation, and legal issues involved in the interrogation of detainees in the war on terrorism. OLC advised the group, composed of both military officers and Defense Department civilians, on constitutional and other legal issues. I have conducted many briefings in my time, for senators, judges, White House staff, and cabinet members. And of course I have taught many hundreds of Berkeley students--no easy job, that. The toughest reception I ever received was from that working group, which took no legal conclusion for granted and challenged every assumption and step in reasoning. Anyone who thinks the working group was there to rubber-stamp Rumsfeld's decisions does not know the military and its tough officers, nor the hardworking Defense Department staff.
The media has made a civilian named Alberto Mora, then the Navy's general counsel, into a minor celebrity (complete with a spread in the New Yorker) by claiming he protested the use of coercive interrogation and attempted to stand in the way of the working group's conclusions. This claim is usually made without reference to what the working group actually approved, which bears no resemblance to actual examples of torture. Mora, who has gone on to work in the general counsel's office at Wal-Mart, claims that I met with him and told him that the President could order the torture of the Gitmo detainees. I would not have said any such thing; no interrogation methods of anything like torture were under consideration. Mora seems to buy the standard position of human rights advocates that anything more than oral questioning would be torture, a view that lets him assert whatever he wants for media purposes.
That April, the working group issued a re
port approving interrogation methods for use at Guantanamo Bay. The group recommended twenty-six techniques for general use at Guantanamo Bay, of which twenty-two were strategies for purely verbal questioning, such as "Pride/Ego Up" or "Pride/Ego Down."87 Most of these were already authorized for use against all enemy combatants, whether covered by the Geneva Conventions or not, by the U.S. Army field manual on interrogation.88 Only two involved any physical contact. One allowed an interrogation to occur with the detainee wearing a blindfold, a second authorized only "lightly touching a detainee or lightly poking the detainee in a completely non-injurious manner."89 Nine other "exceptional" methods were requested by interrogators at Guantanamo Bay: isolation, prolonged interrogation, forced shaving of hair or beard, prolonged standing, sleep deprivation, exercise, a sudden face or stomach slap to cause surprise, and removal of clothing. Only the ninth--creating a sense of anxiety by playing on a detainee's aversions--could be said to be similar to what happened at Abu Ghraib, because the example given was of the "simple presence of a dog without directly threatening action."90
Conspiracy theorists say this last proves their "culture of abuse" point. But they have no facts other than mention of the word "dog." Abu Ghraib violated these rules. The rule in place about dogs was that they could be used in a nonthreatening posture, only by specially trained interrogators who had received "senior level approval" for the interrogation, only as an exceptional measure, only at special facilities, and only on healthy detainees with vital intelligence.91 And it could not be used if it would produce physical or mental injury to the detainee.