I had the tremendous pleasure of appearing on a forum with Marc Thiessen earlier this week, sponsored by the UMass Republican Club. Thiessen was there to promote his new book, Courting Disaster: How the CIA Kept America Safe and How Barack Obama is Inviting the Next Attack, and in his remarks he gave the abbreviated version: that had it not been for the enhanced interrogation including waterboarding of Khalid Sheikh Mohammed and a few other high-value detainees (which by the way definitely wasn’t torture), potentially thousands of Americans would now be dead in attacks foiled only by the efforts of these patriots who set aside their moral uneasiness and, as professionals, applied the least necessary discomfort to a few detainees in order to gather vital actionable intelligence.
A number of commentators have already ripped apart his argument on the facts and methodology (Jane Mayer questions his causal narrative on empirical grounds; Matthew Alexander points out that the evidence he presents is primarily drawn from interviews with the CIA agents who did the torturing and proceeds to pick apart a number of his propositions, drawing on his extensive experience as a former military interrogator.)
In my view, the weakest part of his book is where he tries to argue that enhanced interrogation isn’t torture and doesn’t violate the Geneva Conventions.
His fallacy regarding the Geneva Conventions is that they don’t apply to GWOT detainees. But he seems to be confusing the concept of humane treatment with the concept of POW status. It’s true that the likes of KSM probably do not qualify as POWs, but this only means it is legitimate to try him for participating in hostilities. It doesn’t mean he can be tortured: Common Article 3 of the Geneva Conventions is understood by both human rights organizations and the US Supreme Court to apply to all detainees in all contexts.
For the torture claim, Thiessen relies on the US definition of torture in the War Crimes Act, as well as a “common-sense definition of torture” as he put it in our panel discussion: “if you are willing to try it yourself, it’s not torture.” He also argues waterboarding can’t be torture, because it if is the military would be guilty of torturing its SERE trainees.
In making these claims, Thiessen wilfully overlooks the elements of the international torture definition that pertain to the context of torture: the Convention Against Torture defines torture not as just any kind of “severe physical or mental pain or suffering” but particularly suffering
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. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
In short, SERE training doesn’t qualify under this definition; it also doesn’t quality under the War Crimes Act because trainees are not “in custody” and have a choice to quit. It’s clear that these legal instruments define torture, and prohibit it, in precisely the kinds of situations that Thiessen is talking about.
But non of these legal mistakes disprove his entire argument, because his argument doesn’t really rest on whether this is torture or not: in fact if Thiessen were to just admit we tortured, it wouldn’t alter his basic argument at all, which hinges on a causal claim and a moral claim. The causal claim is that torture, yes, torture is both effective and absolutely necessary for the protection of civilians from terror attacks. The moral claim is that, if these two causal claims are true, then engaging in limited acts of non-lethal torture are the lesser evil compared to standing by and allowing innocent civilians to absorb terror attacks.
Thiessen does a careful job developing these claims, squarely addressing liberal counter-arguments as he does so, and so for the sake of argument, I plan to set aside my general belief that torture is illegal and wrong no matter how effective it is. I’ll also set aside the broader constitutive claim that “it’s not about who they are it’s about who we are.”
Instead, I’ll address Thiessen’s wider argument on its own merits. Are Americans really safer if we cede our intelligence services the right to torture certain individuals in certain circumstances? I will argue no, but in doing so I rely on a much broader understanding of civilian protection that Thiessen is allowing for.
First, is torture effective? Readers may hate me for saying this, but this is the strongest part of Thiessen’s argument. Most social scientists and law enforcement officials know already that torture extracts confessions or information some portion of the time, which is precisely why we have rules preventing evidence gathered through those techniques from being admitted in court. An important question is how effective?
It’s hard to gather data on this today due to human subjects laws, but no such constraints existed in France a few hundred years back, and court records from that period give us some sense of how often individuals broke under the rack, crushing of joints and the like: according to a study cited by Jean Maria Arigo on p. 549 in his paper “A Utilitarian Argument Against Torture Interrogation of Terrorists,” that number is only between 5 and 33 percent out of a population 625 prisoners.
So however you measure it, a part of the problem is the a significant proportion of the time torture does not extract the information you want. (There is a related argument that torture might lead to bad intel, though I find this less convincing because intelligence officials have methods for corroborating intelligence gleaned through torture, and moreover as Thiessen explains detainees were not generally providing the intel itself under duress; rather torture was used to gain a promise of cooperation and intelligence was extracted later.)
All that said, I think Thiessen makes a fair case that some intelligence was gathered from high-value detainees using torture, and I don’t think it helps the anti-torture argument to argue this can never be the case. But note the lynchpin in Thiessen’s argument: he must show not only that this was the case, but that the same intelligence could not have been gathered in any other way. He must also show that had it not been gathered, Americans would have died.
I think he fails in both these additional elements of his causal analysis. Indeed, in our panel discussion he ultimately admitted that 99.9999 percent of intelligence gathered from detainees required no torture. In fact, according to Thiessen, two thirds of detainees began cooperating as soon as they were shaved, put in clean clothes and sat down with interrogators for a civil discussion. Now, Thiessen would argue that it’s that thousandth of a percent of information – the strategic intelligence gathered from KSM on dry-erase boards and not the merely “tactical” information gathered from his many underlings – that prevented additional mass-casualty attacks.
But this is a very hard sell, based entirely on the correlation between the torture we committed and the absence of additional attacks. It requires us to believe that our security and intelligence services post-9/11 – vigilant, marshalled in unprecedented ways and coordinated more closely than ever with their international counterparts – have played no role in foiling such attacks.
In fact, the recent cargo-plane incident proves the opposite: the plot was foiled due to regular old human intelligence gathered by a Saudi double-agent who had infiltrated the AQAP cell in Yemen, plus a tip from a former al-Qaeda operative who defected to the Saudi authorities, plus clear lines of communication between Saudi, British and American intelligence. Thiessen is certainly right that al-Qaeda is still planning and attempting to execute attacks against American civilian targets, but anecdotally at least (and let’s be honest, anecdotal evidence is all he really presents in this book) it would seem that plots are as easily foiled through conventional methods as through torture.
This is a counter-argument to which Thiessen provides no clear answer, because he focuses only on establishing a correlation between torture and the acquisition of intelligence. He shows that certain individuals who won’t break under conventional methods will break under torture. He fails to show us that the same evidence could not have been gathered (or plots foiled) through some other means.
But forget all that. Let’s suspend disbelief for a moment and assume we are convinced by his case – which, as you read it, you may actually find compelling at places, for Thiessen is a speech-writer and a master at rhetoric. What if we were to accept that the CIA has made America a wee bit safer by torturing KSM?
Liberals actually need an answer to this question, I would argue, because so many of their fellow Americans will buy Thiessen’s empirical case. So the most important part of his argument to refute is actually not the causal argument. The most important part of his argument is his moral argument.
In fact, the most fascinating chapter of his book is the one in which he poses the question: why should torture be considered an absolute prohibition, when killing is not? He explores just war theory and makes an interesting argument that non-lethal forms of torture – the kinds that are scary more than physically injurious – are a lesser evil if innocent civilian lives can be saved as a result.
But this argument as it turns out can be answered by liberals on Marc Thiessen’s own terms as well, because if you read closely it is clear that Thiessen’s overriding goal is not to promote a torture culture per se, but something much nobler: to protect innocent civilian life. The problem with his analysis is that he simply doesn’t have a clear empirical understanding of the factors that most threaten innocent civilian life.
As a matter of fact, terrorism falls pretty far down that list, but state repression is a rather important risk. Think-tanks that track terror fatalities measure the number of dead from terrorism since 1970 in the tens of thousands. Compare this to the hundreds of thousands killed by their own governments over the same period, a number that rises, RJ Rummel tells us, to a staggering 169,198,000 between 1900-1987. International terrorism may be scary, but in relative terms it’s pretty small beer.
It stands to reason that if the goal is to protect civilians the means used to be consistent with the wider protection of civilians. So although liberals are fond of making the absolutist moral argument and the constitutive argument against torture, it turns out that you can also argue against torutre on purely utilitarian grounds. And the argument is not that it’s ineffective. The argument is that even if it’s sometimes effective and even if it’s necessary to protect civilians, civilians stand to benefit far more from preserving a rule of law political culture than they do from avoiding every single risk that comes with living in an era of techno-globalization in which the gap between the haves and have nots is widening.
The examples I gave on the panel included traffic accidents and heart disease, two modern ailments that kill people in drastically greater numbers than terrorism; we would not, however, like to give up the freedom to drive and eat what we like in order to address these threats. Nor, I argue, should we allow even a justifiable fear of death by terrorists to lead us to accept a slippery slope toward arbitrary government, because arbitrary government poses a far greater risk over all.
“War is its rules. It is the rules of warfare that give the practice meaning, that distinguish war from murder and soldiers from criminals.”
In short, Mr. Thiessen, freedom isn’t free. There are some things worth risking our lives for, and the maintenance of a torture-free system of public safety is one of those things. If, as you say (though I highly doubt this), if the price I must pay for that is the slightly higher risk I will be taken out by a terror attack, I’m willing to pay that price. And I say this not at all lightly, as an American who travels abroad with my children relatively frequently and is therefore at a greater risk of terror attack than most Americans.
By all means, do everything within the bounds of the law to protect me and my children. But don’t assume that I value my life more than my freedom. I don’t. Neither do our service-personnel who are risking their lives every day to protect those freedoms. Let’s not demean them or the sacrifices made by their families by destroying the political values they’re fighting for.