James Castagnera
The Question of Torture:
A Tortured Inquiry in the Offing

“Torture” is in the headlines as I write this Blog. Asked about his attitude toward declassified memos, which suggest Bush Administration officials condoned illegal interrogation techniques, President Obama initially indicated intent to look forward, not back. He then back-pedaled, suggesting that he might support some sort of inquiry. His waffling opened the door through which Move On.Org rushed, waiving a petition. Congressional liberals also are shouting for Bush White House blood. A witch-hunt, if permitted, will be both unfair and dangerously distracting.

Bush and his minions are victims of what the administrative partner in my old law firm labeled “the smart-stupid syndrome.” When this law partner failed to produce promised new clients, he was told that he would be phased out of the firm. Ruefully, he ruminated, “Last week, I was considered smart. People around here asked my advice about anything and everything, whether I knew something about the issue or not. Now that the word’s out about my leaving, I’m seen as stupid. Nobody asks my views on anything, as if I were suddenly stripped of all my expertise along with my partnership.”

On September 12, 2001, and for the next three years --- at least through the 2004 national election --- Bush was considered “smart.” He had come off as “presidential” in the days immediately after the Nine-Eleven attacks. He looked the part of national war leader, when he landed on an aircraft carrier and declared victory in Iraq in the spring of 2003. In the autumn of ’04 the real war hero, John Kerry, came off looking wimpy and inept by comparison.

But inexorably the image tarnished, as the two-front War on Terror dragged on, expensively and with apparent futility. Now, in April 2009, W’s legacy appears destined to be reduced to a single irony: he blundered so badly that he facilitated the election of America’s first African-American president. Obscured by the economic meltdown of autumn and winter, the dramatic rise to power of a charismatic man of color, and now the brouhaha over the torture memos, is the simple but irrefutable truth that for nearly eight years no further terrorist attacks have happened on American soil.

Did Bush Administration Interrogation Techniques Work?

Historians and social scientists appreciate the difficulties inherent in establishing cause-effect relationships. Did effective intelligence work contribute significantly to the utter absence of further terrorist attacks in the United States? To even venture an authoritative answer to this question, we need the data. NPR reported this morning the existence of some 6,000 interrogation records, about half of which allegedly involved ranking Al Qaeda operatives. If an inquiry into the “torture” policies of the Bush Administration proceeds, this material is crucial evidence… unless, of course, you believe that the interrogation techniques must be punished no matter what they yielded. (More on that issue below.)

For those readers who may agree with me that inflicting serious pain on an Al Qaeda terrorist is preferable to a dirty bomb blasting Mahattan, or my own hometown of Philadelphia, the issue of efficacy is a crucial one to resolve.

Among my current reading material is the 2007 biography of a British double agent during WWII. Ben MacIntyre’s Agent Zigzag (Random House) includes a detailed description of how the Brit’s leading counter-espionage officers turned German spies into double agents. According to MacIntyre, physical torture was abhorred and eschewed, and yet the results were dramatically successful. The theory, which apparently comported with experience, was that --- given enough time --- anyone could be made to break, to talk, and finally to turn.

The fly in this ointment is time. About half of all Americans, according to recent public opinion polls, condone the interrogation techniques adopted by Bush but now forbidden by Obama. I suggest that the percentage would soar if the scenario involved a known threat of substantial magnitude, a tight timeline (say days or even hours) and a strong suspect. All the same, only the data contained in the 6,000 extant interrogation records can verify the reliability, or lack thereof, of the “product” obtained by means of water boarding and its kindred “harsh” interrogation techniques.

Utilitarianism in an Age of International Terrorism

In our honors course, “Theories of Justice and the American Common Law,” Political Scientist Jonathan Mendilow and I cover Jeremy Bentham and his fellow Utilitarian philosophers. We note that to the extent the American common law can be generalized, Utilitarianism --- the greatest good for the greatest number --- comes as close to a dominant, if largely implicit, organizing philosophy as any theory of justice can claim to come. We then pose the following hypothetical: If a Utopia could be assured, but only at the price of one innocent child spending eternity in a filthy cell, sore-covered and wallowing in her own excrement, would that innocent’s endless misery be justified?

The “hypo” stimulates a brisk discussion, from which we move the conversation to such real-world circumstances as the persistence of poverty and violence in our inner cities, and ask whether this is the price we are prepared to pay for the middle-class prosperity of the American majority? Again, the discussion is lively, often heated.

The simple fact --- the point of our little exercise --- is that our society makes Utilitarian trade-offs all the time. How many Americans would not trade the human rights of one Al Qaeda operative for the lives of, let us say, a million Americans in the “dirty-bomb” scenario?

If we assume for sake of argument that the 6,000 interrogation records were released and demonstrated the efficacy of the now-forbidden “torture” techniques, this Utilitarian balancing act must be addressed in any inquiry that is launched
Walk a Mile in Their Shoes

An honest inquiry, I believe, requires that we do one more thing, and that is to make every reasonable effort to put ourselves into the minds of Bush officials and intelligence-service officers during the days, weeks and months following the incendiary deaths of several thousand Americans in an attack more lethal than Pearl Harbor. What might each of us have done, confronted by (1) a mandate to make America safe once again, and (2) a set of interrogation alternatives about which both the effectiveness and the legality were ambiguous? I will say here that I believe I would have erred in favor of harsher interrogation techniques and against any serious risk of a reprise of Nine-Eleven. Perhaps you, reader, are comfortable mounting a more-lofty moral height, regardless of the potential carnage on the slopes below.

All this being said, I probably will not surprise you by adding that in my view Obama’s first instinct --- to move ahead and meet the massive political and economic challenges in front of us --- was the right instinct. An inquiry into the interrogation techniques of the Bush years is (1) unfair to the U.S. intelligence officers and civilian policy makers caught up in the crisis of their moment, (2) portends a political/media circus in which we can ill afford to indulge, and (3) endangers America’s security by demoralizing our intelligence services and encouraging our enemies.

[Jim Castagnera, a Philadelphia attorney and university counsel, is author of Al Qaeda Goes to College: Impact of the War on Terror on American Higher Education (Praeger, 2009).]