On The Dark Side:

Making Torture Legal


by C. Clark Kissinger


Vice President Cheney: We also have to work, though, sort of the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.

--on Meet the Press, September 16, 2001


Definition: Waterboarding is a technique used by interrogators to extract information from a subject. The subject is strapped to a board and lowered into the water until the subject believes that they will drown. The subject is then taken from the water and resuscitated. If necessary it is repeated. The technique is designed to be more psychological than physical, as the victim is led to believe that he or she is being killed. This technique strengthens the interrogators control of the subject and makes the subject experience the fear of death.

--from the About.com reference web site



Only a few years ago, certain social questions were considered settled beyond debate. Slavery, genocide, and war crimes were universally condemned. Torture, as an instrument of state policy, was treated officially as if it had gone out with the Spanish Inquisition, or at least it was now practiced only by a few petty tyrants who were universally condemned.


Yet the campaign of the Bush regime to remake all the norms of U.S. society behind a program of empire and Christian fundamentalism has suddenly thrust the issue torture back into the realm of the debatable. Torture has always gone on behind closed doors, both by government intelligence agencies and local police. What’s new is the attempt to make it a publicly accepted policy and norm, to make it a legitimate practice of government.


A brazen step in this direction was taken in the June 12 issue of the New York Times Sunday Magazine. In the cover story entitled “Interrogating Ourselves,” Joseph Lelyveld discusses the pros and cons of torture, and proposes a formula for its public acceptance. Lelyveld is not just anybody. He is the Pulitzer Prize winning former executive editor of the New York Times, the premier newspaper of the liberal wing of the ruling class in this country. When such a figure comes out for condoning torture, it tells just how far things have gone in the direction of fascism.


Torture Made “Reasonable”


Mindful of his liberal to moderate audience, Lelyveld first engages in a little hand-wringing over excesses. Yes, torture that actually kills people is really bad. But more than that, “By the coldest cost-benefit calculation, a dead detainee is a disaster: he cannot be a source of ‘actionable intelligence,’ only fury.” Accordingly, Lelyveld reports that the military is producing a new reformed interrogation manual in the wake of the Abu Ghraib scandal. Of course the methods of interrogation to be permitted will be listed only in a classified annex.


Next Lelyveld assures us that most people would really rather not know what U.S. interrogators do behind closed doors anyhow. This pearl of wisdom was obtained directly from Republican Senator Susan Collins. She told Lelyveld that she just doesn’t get that much mail from her constituents about the torture issue. “I think they just want to keep it blurry,” he quotes her as saying.


But Lelyveld won’t let it go at that. Instead, he points out that there is a deep policy question that has to be faced head-on: Yes, hard-core torture is real bad. But what should government policy be toward coercive techniques that are commonly held to fall short of outright torture? These techniques, variously known as C.I.D. or H.C.I. for “cruel, inhuman and degrading” or “highly coercive interrogation,” fall short of pulling out fingernails, breaking arms and legs, or strategically applying lighted cigarettes.


Lelyveld actually terms these coercive techniques generically as “torture lite.” They include actions ranging from sleep deprivation to waterboarding. The key criterion of “torture lite” is that it leaves no permanent scars.


These activities are not legal under either U.S. or international law, but they regularly go on. As justification, Lelyveld writes the following amazing passage:


“An implicit understanding has been reached, or so I would argue, between the governed and those who govern: that the prime task is the prevention of future attacks on our own soil as opposed to the punishment of past attacks; that extralegal excesses, not excluding kidnappings and physical abuse, may be necessary in the effort to suppress terrorists seeking to implant sleeper cells in our midst and equip them with deathly substances and bombs; that in pursuit of this goal, much can be forgiven, including big mistakes (the abuse and indefinite detention of innocent people, the tacit annulment -- for foreigners, anyway -- of legal guarantees, not to mention a costly war of dubious relation to the larger struggle); and that the less we know as a people about our secret counterterrorism struggles and strategies, the less we contemplate the possibly ugly consequences, the easier it will be for those in authority to get on with the job of protecting us.”


What an exposure of the morality of imperialism! And what egregious lies! If you really wanted to protect the American public, you might consider changing the global policy of the U.S. that results in mass hatred for the U.S. regime. And just when did “the governed” agree with those who rule over us that it was just fine to engage in these “extralegal excesses”? And when did we agree that the less we know about the ugly consequences of U.S. terrorism, the easier it will be for the Bush regime to get on its program of empire, war, and repression?


Then Lelyveld pointedly remarks that civil libertarians don’t have any real answers to the danger of terrorism: “Would they, for example, give presumed Al Qaeda terrorists Miranda warnings in Arabic about their rights to a lawyer and to remain silent?” Yes, they would. That’s exactly what due process requires, and no invoking of the magic words “suspected terrorist” can be used to take away our rights. But this exemplifies Lelyveld’s main point: legal rights are the argument of losers.


Making Torture Feel Better


Having set the stage and posed the issue, in the rest the article Lelyveld sets out to reveal the solution. Evoking some empathy with the uncertainty of his readers, he muses that, “I was surprised that I was finding it harder than most commentators and most people I knew to take a fixed view of coercive force in interrogation. . . I didn't know whether it was effective, whether it had any potential, as sometimes claimed, to save thousands of lives by preventing a catastrophic attack. If it did, I wondered if coercive force could be considered unthinkable. And I wondered whether it was more reprehensible morally than accepting the ‘collateral damage’ in dead and maimed innocents that occurs when you target a house or cave with a missile or a bunker-buster bomb in order to extinguish a terrorist.”


The first thing to note here is that the famed former editor of America’s premier liberal newspaper actually has to struggle with the question of whether torture is morally right or wrong. That’s quite an exposure right there. This is a little like wrestling with whether slavery is good or evil. Then Lelyveld goes on to point out how dangerous it could be to question the morality of torture. It might lead you directly to questioning morality of other key aspects of U.S. military policy. Heaven forbid!


So, telling us that he is unsatisfied by either “absolutist position,” that torture is always wrong or we have to trust the government to do what is best, Lelyveld sets out, “notebook in hand,” to explore the wide and wonderful world of torture.


Learning from the Masters: Torture Works


First he turns to the real experts in the field of torture and interrogation, the Israelis. The point of this foray is not to criticize Israel, but to explore what can be learned from the actual practice of torture without having to use examples drawn from the actions of U.S. agents.


What about the “ticking bomb scenario”? This is the argument made by Alan Dershowitz and others that if you had the person who had set in motion a ticking bomb that could kill thousands, wouldn’t it be justified to apply coercive means to find out where the bomb is so it could be defused. What did Lelyveld learn about this? “In Israel, I was repeatedly told that coercive interrogation had effectively thwarted missions of would-be suicide bombers, saving lives.”


But what Lelyveld also discovers in Israel is that Israeli torturers exercise considerable souplesse. They don’t just beat people, like U.S. interrogators who have killed so many prisoners in Iraq and Afghanistan. Rather, the Israelis are consummate professionals. The Israelis employ “torture lite,” and it works.


Having learned from the masters, Lelyveld’s conviction is strengthened. “Commentators and editorial writers who deplore torture use the ‘slippery slope’ argument to avoid facing the issue of lesser forms of coercion. Any breach in the norms of due process, they contend, is sure to be taken as license for the grossest abuse. That argument may be true, even profoundly true, but it’s also something of a dodge, for it leaves unanswered the question of whether coercive interrogation ‘works.’”


And as we all know, “what works” is the watchword of American pragmatism. “If it could be shown with some certainty that, say, 10,000 lives would be saved, few purists would argue against the infliction of pain,” Lelyveld asserts. Never mind where this logic is going to take you.


Having laid the basis for the supposed necessity of “torture lite,” Lelyveld next takes up the question of exactly how it should be incorporated in to the U.S. system. There is a big problem here because the use of torture (at home or abroad by the U.S. military) is flatly prohibited by U.S. law. The law even provides the death penalty for torture that results in death (but don’t hold your breath wait for that law to be applied!). Further, the U.S. is a signatory of the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.


Nevertheless, Lelyveld deftly shifts the argument from whether torture is legally and morally permissible, to examining how some form of torture might be accommodated. In doing this he explores two models: The first is the Israeli model, where the Israeli Supreme Court has formally outlawed all forms of torture, and thus (Lelyveld argues) Israeli torturers are under some pressure not to go too far. The second is to legalize and regulate “torture lite.”


The Harvard Program


What better place to explore such issues than Harvard? In fact, a task force was assembled at Harvard last year to delve into just these questions. It was jointly sponsored by the Kennedy School of Government and Harvard Law School, with some of the tab picked up by the Department of Homeland Security. Not surprisingly, the task force concluded that “torture lite” works.


According to Lelyveld, “The idea was not to remove highly coercive interrogation, or H.C.I., from the American counterterrorism arsenal but to set strict legal limits on its use. Blatant torture would have been absolutely out; ditto forms of torture lite that ‘shock the conscience’; ditto the farming out (in official jargon, ‘rendition’) of terrorist suspects to foreign governments that practice torture, even, presumably, if they were being swapped for intelligence the United States couldn't otherwise get. The president would have had to sign off on permitted coercive techniques, on whether they could be combined and for how long; Congressional committees would have had to be briefed; and before these techniques were used in any particular case, senior officials would have to make a determination in writing that there was ‘probable cause’ to believe significant information could be obtained. All of this would be done in secret, but if these standards were not met, a victim would be able to sue for civil damages, even a foreigner held outside the United States.”


The victim could sue! And just how would that have helped Manadel a-Jamadi, who was beaten to death in Abu Ghraib prison, or Mullah Habibullah who was beaten to death at the Bagram air base in Afghanistan? They could sue?


So this then is the “liberal” approach to using “torture lite” -- legalize and regulate it. As Lelyveld reports, “Representative Jane Harman, a California Democrat and the ranking minority member on the House Intelligence Committee, found merit in the Harvard approach. I asked her whether she thought a line could be drawn distinguishing acceptable forms of coercive force from unacceptable ones. ‘We have to try,’ she said. ‘If you're serious about trying to get information in advance of an attack, interrogation has to be one of the main tools. It has to be made to work. I'm O.K. with it not being pretty.’”


So there you have it from the horse’s mouth. If you’re serious about getting actionable intelligence in the push for global empire, some bodies are going to have be broken. It’s not going to be pretty. But Representative Harman, and the rest of the Democratic Party leadership, are OK with that.


The other model, the one seemingly preferred by the Bush regime, might be labeled “Don’t Ask, Don’t Tell.” Torture would remain officially illegal, in keeping with U.S. pretensions about being the leader of the “free world.” But torture would go on nonetheless. This was exemplified in the memo on torture produced by Alberto Gonzales, now Attorney-General, for Bush at the onset of the war on Iraq. Gonzales termed the requirements of the Geneva Convention on the humane treatment of prisoners as “quaint,” and advised the president that the only actions that would violate U.S. laws against torture were those that produced pain of a level experienced in organ failure or death!


Making Torture Legal


So what does Lelyveld conclude? He likes the Harvard model best. “It offered a form of due process for torture lite. . . I found myself bouncing back and forth between the two positions. . . but if coercive force was inevitable under both regimes, I had to admit, not being a lawyer, to a sneaking regard for the one that acknowledged as much.”


In Lelyveld’s “Newspeak” of the Bush era, legalizing torture is now termed “due process.” The monster of unrestrained state power is to be repackaged in a paper shell of legality in order to stifle the fears of the squeamish about full-blown fascism.


So this is what we have come to. A distinguished journalist, writing in the premiere liberal newspaper comes down on the side of legalizing torture, as opposed to the reactionaries Bush, Cheney, and Rumsfeld who simply want to do it by executive order in an open flaunting of the law. This is the new American political spectrum, from “left” to right.


Could there be any stronger argument for the necessity of people taking independent historic action outside the framework of traditional politics? This is why the world can’t wait. This is why we have to drive out the Bush regime.

(June 16, 2005)