The past week, predictably, has seen many attempts to link the locating of Osama Bin Laden to the programme of torture and “enhanced interrogation” introduced by the Bush administration, with the most concerted attempt being Wall Street Journal Op-Ed by former Attorney General Michael Mukasey. This has elicited the usual philosophical responses, none more eloquent than our own Supreme Court in AG v O’Brien, that such policies ‘involve the State in moral defilement’. Here however, I want to explore the ‘smooth’ falsity of assumptions underwriting the familiar narrative:

 

- identify the terrorist (viewed as unproblematic process)

- torture (suitable obfuscation around what this means, with bureaucratization through torture warrants etc)

- extract otherwise unobtainable benefits for security

- All this was a one-off scenario.

The flawed vision of circumstance, the flawed definition of alternatives and the flawed vision of human knowledge and institutions often implicit in the ticking time bomb narratives have frequently gone unchallenged. The metrics of suspicion and risk propagate visions of governmental power that must be interrupted.

The first link to the chain leading to the Osama Bin Laden killing appears to be the following:

Prisoners in American custody told stories of a trusted courier. When the American’s ran the man’s pseudonym past two top-level detainees- the chief planner of the September 11 attacks, Khalid Sheikh Mohammed, and Al Qaeda’s operational chief, Abu Faraj al-Libi- the men claimed never to have heard his name.

The New York Times has claimed that a ‘quite co-operative’ detainee at a CIA black site, Hassan Ghul, supplied the nickname of the courier. The interrogation techniques he was subjected to remain unclear. Interrogators grew suspicious that the Muhammed (waterboarded 183 times in 2003) and Al Libi were lying, despite their treatment, and that the courier was probably an important figure. The attempt by some is to now paint the false denials extracted by torture in 2003 as the key. This is quite audacious, especially as, in 2005, having assessed the evidence obtained by waterboarding, the CIA itself regarded the trail to Bin Laden as cold, and further that Bin Laden was no longer engaged in planning operations. We now see the emergence of claims that Bin Laden was in fact still shaping attacks, underlining a pro-torture case riven by internal contradiction. Last week’s operation is attributable to Operation Cannonball in 2005, which viewing existing information as insufficient, focused upon placing more CIA agents on the ground in Pakistan and Afghanistan and the complex intelligence work which followed.

On the kindest possible interpretation, the calculus currently being sold is that torture is acceptable to gain a sliver of information that may, after six years of conventional intelligence and advanced surveillance networking, might at some point in the future, avoid the massacre of civilians. Systematising such a state of exception has far broader ramifications than any ticking time bomb experiment. The engine of this is the one percent doctrine (‘if there is a one per cent chance of an event coming due, act as though it was a certainty’). In an outstanding recent article, Louise Amoore has summarised the impact of such reasoning upon the rule of law:

risk is uncertainty made certain. That is to say, it acts on the uncertain future in a way that undercuts law’s conventional reliance on precedent, evidence, and judgement in the present.

As a preliminary hurdle, it would be desirable to be able to tell when someone is lying. We have of course a wealth of behavioural psychology material on this ability within the mainstream population (57%), and police (45%-65%). On the Opinio Juris blog, Duncan Hollis has helpfully cited the 2006 Educing Information Report of the American Intelligence Science Board which found ‘little reliable information’ that could assist the detection of deception. Darius Rejali instances the experience of Sheila Cassidy who was ‘broken’ under electric-shock torture by Chilean torturers in the 1970s, identifying priests who aided the country’s socialist opposition. The interrogators refused to believe such a fact, and continued their torture until she was rendered in such a state that she could no longer remember the location of their safehouse. Implicit within pro-torture arguments is often the ability to distinguish the person who has information from one who does not. Equally, the standard is not merely that torture produces information, but that it is superior to other methods.

Mukasey again instances the case of Abu Zubaydah, claiming foiled attacks, yet this is debunked by other authors who note that his imbalances have sent hundreds of CIA and FBI investigators scurrying after phantom threats. Ali Soufan, one of the FBI’s top al Qaeda profilers, has explained that conventional interrogation methods (e.g. deception and rapport building) yielded the identity of Khalid Sheikh Muhammad. At that point, a CIA team headed by a psychologist contractor with no interrogation experience stripped Abu Zubaydah naked and used SERE tactics on him, at which point he stopped co-operating. This pattern of FBI progress, CIA regression occurred three times, with Soufan threatening to arrest CIA agents on the final occasion, leading to his team being removed from the facility.

Soufan’s NY Times Op-Ed attempts to refute the tidy narrative that harsh methods were used as a last resort after other methods had failed. Mukasey also renounces the notion of institutional creep that holds that once such logic is sanctioned one cannot prevent any legalization of torture from spreading within the organization. Certainly the distancing and shattered accountability achieved by the Bybee memo and other Office of Legal Counsel documents tell another tale.

For torture proponents, it is common to cite the case of Ramzi Murad in 1995, where the Philippine police brutally tortured a suspect for 67 days. Yet, despite police having broken his ribs, burned him and pumped his stomach with water for more than two months, Murad only spoke when a new team of interrogators turned up claiming to be Mossad agents. In terms of alternative means, Murad was captured with a treasure trove of incriminating evidence, including a computer, whose files revealed the same information.

The recent German case Gafgen (which went to the ECtHR last year) comes closest to representing ticking time bomb scenarios. Here, the threat of violence led the suspect to give up the location of the already deceased kidnapped child. Police were fined under German criminal law and dismissed from the force. Again the motivation of Gafgen is questionable, and must yield to a counterfactual; if the victim had been alive when he was interrogated he may have disclosed the hiding place at once for mitigation.

Pragmatic counterarguments exist to such cases, for instance, Kleinman, writes about how abuse destroys ‘clusters, groupings of behaviours’ which interrogators read ‘when a detainee is lying, being uncooperative or truthful’. The NYPD secured actionable intelligence from a suspect in the millennium bombing plot in just six hours on December 30 1999 through standard interrogation. Furthermore, we have not yet even touched upon second order effects in the counterterrorist sphere: e.g. impact upon the US’s standing in the world, invocation of torture as a recruitment tool.

In the age of the war on terror and, indeed hyper-bureaucratization and econometrics, human rights have increasingly become subservient to ‘a proliferating assemblage of expertise, administration and discretion’. If lawyers and judges are not suitably alive to the true meaning of the principle of proportionality, they risk sanctioning an entire administrative superstructure that substitutes the existence of a polemical construct for an adequate reasoning process. Judicial deference to the executive branch of government, so common in many human rights matters, can often herald the moment where ‘acts that do not have the value of law acquire its force’.

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Written by Darren O’Donovan

Darren O’Donovan is an Assistant Professor at Bond University in Queensland, Australia having previously lectured at University College Cork. His research interests are in administrative justice, equality and minority rights, particularly the rights of Irish Travellers. You can contact him at dodonova@bond.edu.au