Thursday, June 25, 2009

Debunking Myths in the Torture Debate: Why Waterboarding Does More Harm than Good

The recent release of memoranda advising the President about interrogation techniques used at Guantanamo Bay, specifically waterboarding, has prompted much debate regarding the utility and morality of torture. Many argue that torture is unequivocally wrong. Others contend that, under certain circumstances, torture may be permissible or even recommended. This post reviews the laws that apply in the United States as well as the scientific studies regarding the use of torture so that our readers may take an informed stance. We explore two common myths surrounding torture such that it becomes clear: torture is never a valid option.

Myth #1: Certain types of conduct, including waterboarding, are not torture.

To understand whether torture is ever permissible, we must first clarify what is or is not torture. In the context of the debate over waterboarding of terrorist suspects, many argue that this technique is not torture because, in most cases, it does not cause permanent physical injury. International law offers a clear prohibition against torture, defined as:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. [1]

This ban is contained not only within multiple international treaties, including the Geneva Conventions, but also customary international law as well as U.S. domestic law. [2]

Yet some commentators have attempted to delineate how much pain, suffering, or force must be inflicted before the “torture line” is crossed. Their creation of an artificial divide between torture and cruel, inhuman, and degrading treatment acts as a distraction from the real issue: whether torture is justifiable. For example, panelists on Fox News’ “The Strategy Room” unanimously concluded that the actions of a United Arab Emirates sheik, including electrocuting, whipping, and driving over a prisoner, constituted torture. Yet, in that same discussion, the panelists continued to refer to waterboarding as “splashing water on someone.” These divergent reactions are the result of the difference between reading about a set of interrogation procedures versus watching and hearing them be carried out. The difference might also be related to the identity of the person being tortured; some might change their opinions regarding the lawfulness of torture based on whether the person strapped to the board is an alleged Al Qaeda operative or a U.S. citizen.

The willingness of some journalists to undergo waterboarding provides an opportunity to better understand the procedure. Watching someone emerge, stuttering and panicked, from a brief waterboarding session raises more questions than merely reading about the procedure. This is especially true since these willing participants lack both the perspective of someone accused – whether correctly or incorrectly – of being a terrorist, as well as the agenda of some administration and military officials.

When waterboarding was applied in a controlled environment with less political charge to two different participants, both subjects easily and quickly conceded the procedure is torture. Conservative radio talk show host Eric “Mancow” Muller was so adamant that waterboarding was merely “uncomfortable” that he agreed to undergo the procedure during a live radio broadcast: “I wanted to prove it wasn’t torture.... they cut off our heads, we put water on their face.” After only a few seconds, he emerged gasping for air, then raised his head and said, though he hated to admit it, the procedure was “absolute torture.” Similarly, Vanity Fair columnist Christopher Hitchens subjected himself to waterboarding and later penned an entire article describing, in detail, how and why the procedure was torturous.

The objective accounts of Muller and Hitchens tend to debunk any skepticism as to the fact that waterboarding constitutes torture.

Myth #2: Torture is a Useful Tool in the War Against Terror

Another argument often put forth to support the use of torture is the “ticking time bomb scenario. Its proponents argue that torture may provide the only avenue by which certain life-saving information may be extracted from informants. Such proponents claim that waterboarding has “saved thousands of lives.” These declarations may be refuted by two separate lines of argumentation: (1) there is no evidence to prove that waterboarding is the only way to gain information and (2) even if waterboarding is the only way to gather information, there is no guarantee that the information will be truthful.

First, there is no control group or any reliable method comparison from which to draw the conclusion that torture is the sole method of gaining information. As Intelligence Director Admiral Dennis C. Blair has stated: "...there is no way of knowing whether the same information could have been obtained through other means..." These conclusions were buttressed by a New York Times op-ed piece by Ali Soufan, a former interrogator responsible for the interrogation of Abu Zubaydah. Like Blair, Soufan stated that “there was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified.”

Second, even if torture provides the quickest and most efficient method of gaining intelligence, there is no guarantee that information gained is correct. Harsh interrogation techniques may have created an unbearable pressure on detainees to make statements, whether false or fabricated, in order to make the painful interrogations cease. One of the high-value detainees imprisoned at Guantanamo, Khaled Shaik Mohammed, provided misleading information to interrogators: “I gave a lot of false information in order to satisfy what I believed the interrogators wished to hear in order to make the ill-treatment stop.... I'm sure that the false information I was forced to invent...wasted a lot of their time and led to several false red-alerts being placed in the US.” Therefore, even if tortuous techniques were the only way to gain certain information, there is no guarantee that the information gained is true or would prove to be helpful to national security officials.

Sadly, it appears that the use of “enhanced interrogation techniques” may have lead not only to a wider escalation in violence, but to misinformation (and thus a likely misallocation) of U.S. military resources. These techniques have damaged the global reputation of the United States, and, according to Admiral Blair, “the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security."

-Jill Paul, International Justice Project Legal Intern

[1] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 39 U.N.T.S. 24841.

[2] See, e.g., War Crimes Act of 1996, 18 U.S.C. § 2441 (1996); Anti-Torture Statute, 18 U.S.C. § 2340; Torture Victim Protection Act, 28 U.S.C. § 1350 Note.

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