The current conservative line on the forms of torture used by the Bush administration -- from waterboarding to stress positions that produce "muscle fatigue" that manages not to rise to the level of "severe pain" -- leads to an obvious question. Why don't we do more of it? According to the right, this kind of physical and psychological torment doesn't meet the standard for illegal torture. And according to the right, it's also highly effective at producing information.
And a legal, highly effective method of acquiring information from prisoners or captives sounds like a useful thing indeed.
It seems to me that people who genuinely believe this stuff -- those who, like moral cretin and Weekly Standard blogger Michael Goldfarb want to call torturers "American heroes" and make light of waterboarding by calling it "dunking" -- ought to believe in making its use widespread. And yet somehow, I don't hear the calls. I don't hear the calls for a waterboarding apparatus in every American police station or for equipping the Afghan national army with fewer guns and more bug-filled boxes. Maybe we could get to the bottom of the Allen Stanford case with the judicious application of a waterboard. And why not? If it's not torture, why not? If it works, why not?
Most likely, they don't really believe what they're saying. Indeed, it's extremely difficult to read Jay Bybee's now-infamous memo as anything other than a bad-faith product from someone who knows perfectly well that the techniques he's describing are torture but who sees it as his job to spin out a rationalization for authorizing them.
The giveaway, if you ask me, is the contention that waterboarding does not violate the prohibition on severe pain and suffering in part because "'pain and suffering' (as used in Section 2340) is best understood as a single concept, not distinct concepts of 'pain' as distinguished from 'suffering.'" This is preposterous hairsplitting, and the follow-up contention that waterboarding doesn't meet the standard for "severe suffering" because it's "simply a controlled acute episode" is absurd.
One suspects that the architects of the Bush torture regime, and its leading defenders, know perfectly well that it's torture. This, I think, is why they don't propose wider use of the waterboard in the criminal-justice system. They think it's torture and they think it's wrong, but they think it's useful and therefore justified under the extreme circumstances of the "war on terror." The public seems to see things the same way, with a recent CBS/New York Times poll showing that over 70 percent of Americans think waterboarding is torture, but a plurality deem it justified anyway.
This is why some form of protracted investigation into torture -- whether taking the form of criminal prosecution or, more likely, some kind of "truth commission" -- could do the most good. The evidence we already have overwhelmingly indicates that the Bush-era turn toward torture was not useful.
This should have been foreseeable. When we think of states that went in for large-scale torture we don't think of states that had really effective political systems. Instead, we think of situations like the Spanish Inquisition and Stalin-era Russia that had a desire to produce coerced confessions. This is why regimes have employed torture. Some criminal justice systems have required a confession before punishment could be meted out. This created large incentives for the guilty not to confess and for the authorities to engage in widespread torture to coerce confessions from the guilty and the innocent alike, as well as from those guilty of pseudo-crimes like apostasy or blasphemy. Stalin's show trials didn't require any evidence, but staging them properly required the victims to submit elaborate confessions. Through the use of torture, Nikolai Bukharin and other "old Bolsheviks" were persuaded to confess to wild Trotsky-orchestrated conspiracies to sabotage the USSR.
Looked at properly, the claim that torture doesn't work is misleading -- it works fine as long as you use it for what it's intended. It's just not intended to be a reliable investigative tool.
The Bush-era torture program is, by all signs, no different. As has been known for some time, the program was modeled on techniques deployed by the Joint Personnel Recovery Agency's Survival, Evasion, Resistance and Evasion (SERE) training program for special-forces soldiers. The relevant part here is "resistance" as in resistance to torture. Torture modeled on techniques employed by the Chinese military during the Korean War in order to extract false confessions from our troops. Just as you would expect, the officials in charge of overseeing SERE knew perfectly well that deploying it as an interrogation tactic was a bad idea. A recent Senate Armed Services Committee report reveals that one SERE instructor told interrogators curious about their methods that "the likelihood that the use of physical pressures will increase the delivery of accurate information from a detainee is very low." Another explicitly warned that "the physical and psychological pressures we apply in training violate national and international laws."
This is why, despite the huffing and puffing, nobody on the right has produced any convincing evidence that the torture program has been, on net, useful. Torture fans sometimes claim that waterboarding Khalid Sheikh Mohammed helped disrupt a terrorism plot in Los Angeles, but it's questionable whether the plot ever existed in the first place, and at any rate its disruption occurred before Mohammed was captured. We do know, however, that torture succeeded in getting Abu Zubaydah to tell the administration what it wanted to hear in order for it to make its case for invading Iraq and offer up bogus information about al-Qaeda ties to Saddam Hussein.
It would be surprising if widespread application of torture never produced any accurate information. On the contrary, a desperate torture victim is sure to say all kinds of things -- true and false. Before Zubaydah hit on the story his interrogators wanted him to tell, after all, he almost surely tried out the truth, that he knew nothing of such ties. That truth-telling would, however, only be interpreted as resistance and met with additional torture. As a system, the main impact of torture is to provide confirmation for what one already thinks one knows, not to produce new, useful facts.
Even if torture was a useful investigative tool, it probably wouldn't be a good idea to do it. But the fact of the matter is that it isn't and never has been.
