Who you gonna believe? Me or your lyin’ eyes?

In a recent blog, my esteemed colleague from the great state of Lester Maddox and Saxby Chambliss [and, coming from the state that's given us Tom DeLay, George W. Bush, and the best damned secessionist movement south of Todd Palin's snow machine, I say that endearingly] talked about torture and the so-called one-percent solution, i.e. if there’s even a one percent chance of a terror attack, then any methods, such as torture, are legitimate means to get information about and preempt that attack [Bill Stueck, "Torture and the 'One Percent Doctrine.'"  http://www.shafr.org/2009/04/torture-and-the-one-percent-doctrine/].

Bill Stueck makes some important points, and many with which I agree.  His principal argument is that it’s too soon to make a judgement on the Bush torture program, that as historians we need to wait and find out more, get more information, get access to documents, put things into a larger context.  I fully agree with him on the need for research and evidence-after all, we are not postmodernists.   But I am also unsettled by his claim that it is too early to draw conclusions about the Bush torture program until we can piece together the whole story.

In fact we do know a great deal about it already, and from a legal and political standpoint [I try to keep morality out of these discussions, because I don't believe U.S. policymakers give it much credence when making their decisions] I think we have persuasive evidence that it was quite a failure, and in fact counterproductive.  If, as historians, we have to shy away from such judgements based on the evidence, both documentary and from other sources, that we already have, then we have become merely scribblers, or court intellectuals.  There is plenty of legitimate information out there, and while admitting that the “full picture” won’t be seen for some time, we surely know what it will end up looking like to a good extent.

To begin, I find it interesting that Professor Stueck cited Philip Zelikow to make his larger point about the way historians practice their craft and the need for serious study and reflection. (Zelikow, I must point out, is a graduate of the University of Houston Law School).  While this is clearly true, in my estimation, it’s unfortunate that Bill’s blog appeared immediately before Zelikow himself spoke at great length in the media about the specific issue at hand-the Bush torture regime.  Writing on the  Foreign Policy website on 21 April [http://shadow.foreignpolicy.com/posts/2009/04/21/the_olc_torture_memos_thoughts_from_a_dissenter ] he made three key points.  First, that the focus on waterboarding and other specific acts deflects attention away from the fact that this was a program of torture, not a series of random acts.  Khalid Shaikh Mohammed  was waterboarded 183 times [and Abu Zubaydah 83 times], for instance .  It wasn’t clear after 182 that he wasn’t going to provide any dynamite information?  Or maybe if they’d gone for 184 he’d have finally opened up and maybe even told us the truth behind the Kennedy assassination?

Second, Zelikow actually argued that morality should have been introduced into the issue.  Rather than focus the debate on torture on its efficacy, whether the means used against prisoners provided useful information-which is what the politicians and media are overwhelmingly talking about now-he suggests that we ask what the unique value of these methods might have been.  Instead of simply asking lawyers, “what can we do?” Zelikow suggested the question “what should we do?”  Lawyers-like Jay Bybee and John Yoo-might make a contorted claim that something was legal, but that didn’t make it okay.

Third, and crucially, Zelikow pointed out that the legal opinions defending torture had “grave weaknesses.”  At their core, they contravened international laws and, as one of the memoranda from the OLC [Office of Legal Counsel] argued, met the lowest standard for compliance, that the acts were not “cruel, inhuman, or degrading.”  But, Zelikow tells us, the U.S. is in compliance with international law if it also complies with “the comparable body of constitutional prohibitions in U.S. law.”  So, if the OLC had it right, American citizens in county jail could be physically abused, deprived of sleep, waterboarded, etc, which, as harsh as American jails are, would not likely pass constitutional muster [even in Texas . . . ].

Zelikow, it’s important to note, wasn’t covering up his own role in any of this [and I'm not suggesting he had any role in the torture decisions-he clearly did not] by writing about it in 2009.  In fact, in 2005, when one of the crucial OLC memos was written, he responded with his argument against torture [at the time Zelikow was counselor to the secretary of state, which did not entitle him to proffer a legal opinion, but he wanted to warn other lawyers and judges that there was a good chance the OLC would be found unsustainable in court].  Zelikow argued that existing case law on the standard of “shocks the conscience” would find the CIA’s methods illegal; courts would also find that the OLC memo would be a violation of the 8th amendment “conditions of confinement”; and that the use of a “balancing test” of national security versus individual injury would simply bar many kinds of cruel treatment no matter the alleged gain from it.

For his efforts, the White House attempted to collect and shred all the copies of Zelikow’s contrarian memo, though he suspects that “one or two are still at least in the State Department’s archives.”

Later, on MSNBC’s Rachel Maddow show [http://blog.foreignpolicy.com/posts/2009/04/21/zelikow_on_rachel_maddow ] Zelikow explained further his rationale for opposing the OLC position.  The proponents of torture did not take account of relevant case law, for instance, that outlawed the type of procedures being used by American operatives against the U.S. detainees at Guantanamo.  Zelikow did not believe that “any judges or lawyers outside of the administration” would find the OLC construction of standards of treatment or definitions of cruel, inhuman or degrading acts persuasive.  The torture program, he again stressed, was not moral, but also not legal.

Zelikow, and others, also weighed in on what Professor Stueck, and so many others, have made their main point of conention-the idea that torture might have worked, might have forced detainees to provide information about forthcoming attacks that were then stopped before the damage was done.  Although Dick Cheney and others have already contended that torture tactics were essential to gaining information that disrupted terrorist plots, each of those claims, Zelikow points out, “has a back story, full of lore and arguments about who developed which leads and whose sources proved out.”     What is likely, he adds, is that if an investigation is launched, it will discover that torture rarely, if ever, affected a “ticking bomb” Jack Bauer scenario, which would be the only real rationale for torture-to save time. It would also, unsurpringly, have a high level of unreliability.  In fact, as Zelikow points out, the kinds of tactics that the Bush legal team okayed could not be legally used by two countries which have had “ticking bomb” crises-Britain  [with the IRA] and Israel [http://www.nytimes.com/2009/04/24/opinion/24zelikow.html ].

More powerful is the story of Ali Soufan, an FBI supervisory agent who interrogated suspected terrorists, including Abu Zubaydah, who was, according to U.S. sources, a high-ranking al Qaeda operative and close associate of Osama bin Laden.  In early 2002, using traditional, non-torture methods, Soufan and others got Zubaydah to disclose information that Khalid Shaikh Mohammed was the mastermind behind the 9/11 attacks and to talk about Jose Padilla, the so-called Dirty Bomber.  In addition to being unnecessary, as Soufan observes, the introduction of terror also made a coherent, inter-agency approach to interrogations impossible, as the FBI was pulled off these cases when terror was introduced (CIA officials who objected  were simply told to continue [http://www.nytimes.com/2009/04/23/opinion/23soufan.html?ref=opinion]).  Torture tactics, as so many officials have observed, is also counterproductive in that it makes retaliatory torture against Americans who might be captured almost inevitable.

Even the CIA Inspector General could find no conclusive evidence that waterboarding or other torture tactics had helped.  Steven Bradbury, an assistant attorney general, wrote in 2005 that he could make no claims of effectiveness “with confidence and precision.”  Many military officials who had helped develop interrogation techniques likewise warned that information gained by physical torture was “less reliable” than that acquired via traditional psychological measures, according to a Senate Armed Services Committee report.  And Robert Mueller, the FBI director and a critic of torture, has publicly argued that intelligence gained from torture did not disrupt any attacks on the U.S. [http://www.mcclatchydc.com/227/story/66895.html ].

Even more troubling were the views of two retired and influential military officers.  General Barry McCaffrey, no dove by any means [see Seymour Hersh's  Annals of War, "Overwhelming Force," The New Yorker, May 22, 2000] described denials of torture by Bush officials as an “out of body experience” and then bluntly said, on an MSNBC interview, “We tortured people unmercifully.  We probably murdered dozens of them during a course of that, both by the armed forces and CIA.” [http://i9.photobucket.com/albums/a81/kos102/2009/Video/?action=view&current=McCaffery-Bush-probe.flv].  Lawrence Wilkerson, once chief of staff and best friend to Secretary of State Colin Powell, went further. In testimony before congress last summer, Wilkerson revealed that over 100 detainees had died in U.S. custody and classified over 25 of them as murder [http://blip.tv/file/1003937 ].   More recently he has made the important point that many of the detainees at Guantanamo, at least some of whom were presumably tortured, were innocent men captured by U.S. soldiers who couldn’t tell enemy soldiers from noncombatants.  Alleged al Qaeda or Taliban operatives captured in Afghanistan were vetted in an “incompetent” manner, said Wilkerson.  Of the 800 men held at Guantanamo at one time, about 240 remain, and about two dozen of them are terrorists, according to Wilkerson [http://seattletimes.nwsource.com/html/nationworld/2008891921_gitmo20.html?syndication=rss].

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One of Richard Pryor’s best stories revolved around his wife coming home and catching him with another woman.  The woman bolted from the bedroom while Pryor’s wife berated him, as he denied that he’d done anything wrong.   Finally, Pryor gave the punch line, as he looked at his wife and asked, “Baby, who you gonna believe?  Me or your lyin’ eyes?”

I’ve thought of that far too often the past few weeks as the issue of torture and the released torture memoranda have been so widely discussed.  There seems to be a consensus that “enhanced interrogation techniques,” the Orwellian term the media has chose to use instead of “torture” did exist, and, though they were clearly distasteful, they might well have been effective in forestalling a terrorist attack.  More so, there’s a wide consensus among politicians and pundits that no legal action should be take against anyone involved in these “advanced interrogation” situations.

Clearly, these politicos and talking heads don’t have the full picture, yet have made their conclusions already, conclusions which  cannot be sustained by the evidence we do already have.  Surely Bill Stueck is correct-we won’t know the full story for a long time because there is so much  that we haven’t seen [and maybe never will].  At the same time, it would be merely self-delusional to imagine that torture didn’t take place, and wistful to claim that it was acceptable because it worked-because it stopped otherwise certain terror attacks.  There is no evidence for that.  So in the end, as we read the myriad accounts of torture, as we analyze the memos written by Yoo and Bybee and others, as we ponder the contrary views of Zelikow, Mueller, Wilkerson and others [who, we must importantly remember, are not outsiders or dissenters but part of the ruling class], we have to ask ourselves who we’re going to believe: the torturers, or our lyin’ eyes?

Epilogue:  The Justice Department today [1 May] dropped charges against two AIPAC lobbyists for Israel who had been charged under the espionage act for improperly giving out sensitive information [http://www.nytimes.com/2009/05/02/us/politics/02aipac.html?hp] .  At the same time, a Professor of Sociology at UC-Santa Barbara is being investigated by his faculty senate, no less, on charges of “intimidation” because he sent an email comparing Israeli actions in Gaza to the Nazis [ http://www.msnbc.msn.com/id/30522276/ ].  And over 100 detainees, most of them probably innocent of any type of “terror” activities, have been killed by U.S. forces, according to a high-ranking American military official.

Still trying to reach those Khmer Rouge standards!