Sunday, March 25, 2007

Sacrificing Certainty

When the Military Commisions Act was passed last October, it mandated a Presidential Executive Order to provide the legal framework for acceptable interrogation practices by the CIA in their network of black hole detention centers for terrorist detainees. According to the Times, that framework has still not yet been elaborated. One of the reasons for the delay are the new players at Defense, the CIA, and in the White House Counsel's office. But while there's reason to hope that the outcome will be more restrictive guidelines, there's also a good deal of skepticism that they will ultimately prohibit torture.

Reading through the detainee transcripts coming out of Gitmo these past few weeks has already triggered a lot of reflection about torture for me. This audio slide show from Slate about Gitmo, along with the Times article cited above, makes me want to share some of them, even if they're by no means fully developed. The fairly mechanical arguments stem from the fact that there are obviously persuasive limits to moral outrage, otherwise there would be no need to have this debate.

People who try to justify the use of torture generally focus on the "ticking bomb" scenario. But in reality this type of situation is so rare as to be meaningless as an argument. The most valuable data for a counterterrorism or counterinsurgency operation, and the goal of all interrogations, whether coercive or not, is network data: information that gives a clearer picture of the structure of the enemy organisation, and the identities of the people who comprise it. Confessions are only useful insomuch as they reveal operational mechanisms that were previously unknown.

But the "ticking bomb" argument does reveal at least one assumption in all apologias for torture: the idea that somehow we can be certain beyond any doubt that the detainee is guilty. No one, so far as I've read, advocates the use of torture to go fishing for information. Unfortunately, we already know of at least one case where an individual was unlawfully kidnapped, secreted off to a black hole detention center, tortured, and then released when it became obvious he was the victim of mistaken identity: Khaled el Masri.

The problem is that when you start with an absolute certainty that someone is guilty, as indeed you must in order to justify the use of torture, it makes it all but impossible to admit the possibility that they are telling the truth when they claim they're innocent. Now let's imagine that Khaled el Masri had not been able to maintain his innocence throughout his interrogation. When he finally cracked, offering up whatever name he could think of to simply bring his suffering to an end, what do you think would have happened next? Another detainee would have been kidnapped and secreted to a black hole detention center, guilty beyond any doubt and therefore eligible for torture. Except that like el Masri, they would just happen to be innocent.

It's not true that torture never produces actionable intelligence. There are circumstances under which a certain technique, used at a certain time, on a certain suspect, will cause a guilty detainee to divulge a piece of useful information. And there are others when an innocent detainee will resist until the error is recognized. But torture never produces reliable intelligence, because it's impossible to know when those circumstances arise. Guilty detainees might resist. And innocent detainees might not.

It's been pointed out that apart from the young men and women fighting in Iraq and Afghanistan, and their families, the American people have been asked to sacrifice nothing for these wars. I propose that we start by sacrificing certainty: the certainty of guilt that permits torture to even be considered. And the certainty of security in whose name we've abandoned our most lofty principles. The statement we would make by fearlessly embracing our principles even though it might make us more vulnerable to attack would be more valuable in the fight against terror than anything we might learn from the use of torture against our enemies.

Posted by Judah in:  Global War On Terror   Human Rights   

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