Discrimination of Any Kind

In the classic presentation of the ticking bomb theory, there is a bomb somewhere ready to destroy a large American city, and there is a prisoner who knows where the bomb is. The prisoner needs to be tortured because the crime of torturing the prisoner is outweighed by the need to save lives. In the classic rebuttal to the ticking bomb theory, one usually hears two things: That the ticking bomb scenario never happens, and that torture produces unreliable information because the prisoner will tell you what it is he thinks you want him to say, to get the torture to stop.

At least I think that's how it goes. In my mind, the torture is wrong always, so the decision is clear. There are many variations of the ticking bomb scenario, proponents like to stress that first one makes the question so stark that the answer is not in question, then one argues that the case has been made and it's a matter of judgment as to where the line is. Sometimes one needs to remember that there are plenty of unwritten assumptions involved, even in the unlikely case, that are not articulated.

The Unwritten Assumptions

The biggest among these is the assumption that there is no other way to get the prisoner to divulge the information. The next is that the information must stay secure, from the existence of the prisoner, to the tactic used, to the information divulged, since once the prisoner parts with the information, we must know that no one can change the circumstances. The next is that we know exactly how to get them to talk, and how to interpret the information, and how to link the information to the defusing process quickly enough to avert disaster. There are a quick set of names for these three unwritten assumptions: The first is called dehumanization. The prisoner is so evil that we can assume there is no non-violent way of getting the information. The second is called anonymity. The need for secrecy begets a need to do things that you don't want to know. The third is called control. The extraction of information is being done professionally, the ability to manipulate the prisoner is total. Oddly, these unwritten assumptions are exactly the conditions predicting the Stanford Prison Experiment. So the message to anyone advocating the ticking bomb theory is: Bet you can't do it just once. It is guaranteed to go out of control.

But the first assumption, like I said, is the biggest. There is no other way to get the information. This is frequently not an appeal to fact, it is an appeal to commonly held belief, or to gut instinct, or to any and all of the more vile emotions that underlie true dehumanization: racism, prejudice, xenophobia. There is a reason why the U.N. Convention Against Torture, Article 1, has more forms of torture than are commonly supposed (I was truly surprised with Philippe Sands for citing only the first two, interrogation and confession, The Torture Team, p. 169). Article 1 also includes punishment, intimidation, and coercion, and it includes the curious phrase,"or for any reason based on discrimination of any kind".

How strange. But if you look at the history of the U.S. recent descent into torture, this phrase says everything about that unwritten assumption, everything about why torture is really done. It isn't the ticking bomb scenario that gives rise to the assumption that torture has become necessary, it's this unwritten assumption: The prisoner is so evil that this must be done. Torture is the only language this prisoner understands. This was a requirement among the Greeks and the Romans (Rejali, Torture and Democracy p.36, or see also Harrison at A1-A3).

The assumption is pervasive. During the testimony on May 6th before the House Judiciary Committee, at one point after the statements were read and the questioning had begun, it was generally agreed between David Rivkin and the members of the Judiciary Committee, who also attempted to get agreement from others after Marjorie Cohn said that she would write a statute that would require that a prisoner from whom one wanted information would specify treating the prisoner with kindness and respect and build a rapport (see the webcast, at about 1:17).

The Forensic Evidence

But FBI documentation, available at various points during the history of the U.S. and its current problems with prisoner abuse, seems to say otherwise. The FBI has a different opinion of the Abu Zubaydah interrogation, in which the CIA, possibly with help from the National Security Council Principals, subjected this "high value detainee" to multiple "enhanced interrogation" methods up to and including waterboarding. They believed (p.ix) that they had begun to establish a rapport with the prisoner, when he was taken away for harsher questioning. The FBI also objected to the treatment of Mohammed al Qahtani, the prisoner whose interrogation Philippe Sands documents in The Torture Team. Aside from feeling that the interrogations would spoil the ability to try al Qahtani in court, they worried that it would taint the agents who interrogated him, if they did so after he had been badly treated. Evident in their testimony is the fact that they thought their techniques would work, but would take time (p. 84). As Mr. Sands so aptly points out, time should not have been the issue, as they had had him in captivity for the better part of a year (The Torture Team, p. 224).

It really wasn't that. The military and CIA interrogators did not believe the FBI techniques would work at all. The FBI special agent in charge during the first stages of the al Qahtani interrogation was interviewed (p. 90),

Demeter told the OIG that he argued with Miller that by using proven law enforcement interview tactics such as rationalizing the conduct along with the subject, joining the subject in projecting blame for the conduct on others, or minimizing the severity of the conduct with the subject, the barriers to confession are reduced and cooperation becomes more likely. Demeter told the OIG that these tactics may sound "touchy-feely" or "counterintuitive," but they had been very successful with hard core criminals in the past.

The real problem was that there was a perception, and still is, in the minds of the administration lawyers and spokespeople, in the minds of policy makers at the Pentagon, in the minds of the interrogators, and many others, that these are a fundamentally different kind of prisoner, that they will not succumb to rapport building techniques, that they are somehow different, somehow inhuman.

This is most certainly not an empirical observation coming from past history. The whole reason that the FBI had been asked to participate in the initial interrogations of people like Abu Zubaydah, and al Qahtani, and many others, was because of their interrogation expertise, and the fact that they had had good results interrogating al Qaeda prisoners in the past. Remember that famous August 6, PDB, the one called Bin Ladin Determined To Strike in US? It contains the following paragraph:

The millennium plotting in Canada in 1999 may have been part of Bin Ladin's first serious attempt to implement a terrorist strike in the US. Convicted plotter Ahmed Ressam has told the FBI that he conceived the idea to attack Los Angeles International Airport himself, but that Bin Ladin lieutenant Abu Zubaydah encouraged him and helped him facilitate the operation. Ressam also said that in 1998 Abu Zubayday was planning his own US attack.

Ressam says Bin Ladin was aware of the Los Angeles operation.

The Case of the Real Ticking Bomb Warning

That PDB, the closest thing in the whole nearly eight years of the Bush administration to a ticking time bomb warning, got its evidence by FBI Behavioral Analysis Units, rapport building, and non-torture interrogation of an al Qaeda suspect, one who, like al Qahtani, had been spotted trying to enter the U.S. by an alert border agent -- evidently the border agents catch even al Qaeda suspects with standard methods with some regularity, too.

The effort to dehumanize, the need to present those who are now called variously islamofascists, jihadi terrorists, or Muslim extremists, by the administration, as something other than human beings has a history dating to the 1980's and Douglas Feith's successful lobbying in the Reagan Administration to not ratify the 1977 Geneva Conventions First Additional Protocol, with other roots in the New Sovereigntist movement that disliked the perceived encroachment of international human rights treaties and protocols into U.S. sovereignity.

But the text of the U.N. Convention Against Torture Article 1 says, essentially, that all the reasons for torture that were conceived of by limiting access to legal opinions, by discussing techniques without expertise, and by forming interrogation policies by ideology instead of science, are reasons that have been seen before. Just like the excuses of, "I didn't see it," when the ICRC presented the administration with complaints about Guantanamo and Bagram, which the ICRC had seen before and therefore had a policy to disseminate their documents to the entire chain of command.

And so, that last reason for harsh treatment has meaning, in retrospect, when it turns out that the prisoner would have given up the information about the ticking bomb without harsh treatment: or for any reason based on discrimination of any kind. It covers the other reasons for torture perfectly. It's as clear in this case as the clause in Article 2: No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.