The Obama administration has declassified and released opinions of the Justice Department's Office of Legal Counsel (OLC) given in 2005 and earlier that analyze the legality of interrogation techniques authorized for use by the CIA. Those techniques were applied only when expressly permitted by the director, and are described in these opinions in detail, along with their limits and the safeguards applied to them.
The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.
Proponents of the release have argued that the techniques have been abandoned and thus there is no point in keeping them secret any longer; that they were in any event ineffective; that their disclosure was somehow legally compelled; and that they cost us more in the coin of world opinion than they were worth. None of these claims survives scrutiny.
Soon after he was sworn in, President Barack Obama signed an executive order that suspended use of these techniques and confined not only the military but all U.S. agencies -- including the CIA -- to the interrogation limits set in the Army Field Manual. This suspension was accompanied by a commitment to further study the interrogation program, and government personnel were cautioned that they could no longer rely on earlier opinions of the OLC.
Leaving aside the WSJ's inclusion of the mugshot of KSM, so that we all know that it's only horrible brown people like that who were tortured in our name, the thought of these presumed war criminals arguing their sadistic fantasies in a major newspaper makes me uncharacteristically long for the death of newspapers once and for all.
Messrs. Hayden and Mukasey combine to tell us that the deterrence of legal consequences demanded by democratically enacted legislation and international treaties was merely "timidity" and brings a completely unsupported claim that because we weren't torturing prior to 2001, we couldn't prevent the attacks on 9/11. Conveniently thrown down the memory hole are these six words: "Okay, now you've covered your ass." Those six words alone were grounds for impeachment, in my opinion, for gross incompetence. But that's an aside.
I'd like to respond to Hayden and Mukasey's characterization of the anti-torture crowd. They list four arguments that they say "don't survive scrutiny" by which they mean "we can write complete fiction and find bullshit answers to each of the things we want to argue against, and there's no way they can survive our bullshit." I would have thought that humanity was enough of an anti-torture argument, but we're currently living in an America I don't recognize, so let's scrutinize their scrutiny a little.
1. "There's no reason to keep them secret anymore." Their answer is that Al Qaeda will now train their terrorists to withstand the "absolute limit" of American interrogation. This is self-evidently false from both the pro-torture and the anti-torture points of view. The anti-torture point of view is probably most eloquently presented by former Master Instructor of the SERE program, Malcolm Nance: "The torturer will trigger within the subject a survival instinct, in this case the ability to breathe, which makes the victim instantly pliable and ready to comply. It is purely and simply a tool by which to deprive a human being of his ability to resist through physical humiliation. " That article should be required reading for all American citizens before discussing anything having to do with the CIA's torture regime. The survival instinct Nance describes is not something you can be trained against. Millions of years of evolution have hardwired into our system this response to drowning. Bullshitters Hayden and Mukasey need to provide one example of someone who resisted torture successfully before their claim can be taken at all seriously.
From the pro-torture point of view, it's also false. For the purposes of argument, let's assume that Mukasey and Hayden have their way, Obama is politically forced to re-institute the torture program. But, they say, because the world now knows all the details of the "absolute limit" we will go, Al Qaeda is now able to train against it. Listen, fellas, the techniques are all public information already. Not even the sadists who decided that America now had to torture its detainees were creative enough to think up new ways of pain. I haven't made my way through the four published memos yet, but if someone can show me a technique in there that someone in history hasn't thought of before, I'll never type online again. The CIA program was a perversion of the SERE training created by Malcolm Nance and others to help American soldiers who fall into the hands of a torture regime. When it was developed:
"I [Nance] traveled to Cambodia to visit the torture camps of the Khmer Rouge. The country had just opened for tourism and the effect of the genocide was still heavy in the air. I wanted to know how real torturers and terror camp guards would behave and learn how to resist them from survivors of such horrors. I had previously visited the Nazi death camps Dachau and Bergen-Belsen. I had met and interviewed survivors of Buchenwald, Auschwitz and Magdeburg when I visited Yad Vashem in Jerusalem. However, it was in the S-21 death camp known as Tuol Sleng, in downtown Phnom Penh, where I found a perfectly intact inclined waterboard. Next to it was the painting on how it was used. I found a perfectly intact inclined waterboard.
And finally, if Mukasey and Hayden think that this is the "absolute limit" of what an American torture regime would do, that merely shows us the limit of their personal morality, such as it is. The poor souls who are ordered to torture, and don't have the wherewithal to refuse the illegal order, are damaged by the experience. Not as much as their subjects, probably, but don't we all remember the Stanford Prison test? When those torturers are promoted, they'll be able to dig into the Spanish Inquisition and Salem Witch Trials and medieval dungeons for their inspirations, and all of a sudden "Iron Maiden" will no longer just be a band I liked twenty years ago. From the pro-torture point of view, all this disclosure means is that future American torturers will just have to take the gloves off even more.
Now my little girl has woken up from her nap and I have lost that hour of work I needed to do; but reading that disgusting drivel in the WSJ I couldn't rest until I'd at least begun my own personal response. I will not be a party to torture. Never. No matter how much idiots in power want to justify it. I hope to respond to the remainder of Mukasey and Hayden's so-called arguments soon.
