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The self-described “world leader in global intelligence” information group STRATFOR said on Monday, in an assessment of the Obama administration’s decision to release a series of legal memoranda giving the C.I.A. legal cover to engage in torture, that “torture can be a useful tool” and defended President Barack Obama’s decision to protect C.I.A. interrogators who employed torture against detainees from any criminal prosecution.
Obama, in his own defense of his decision to protect torturers, said that harsh interrogation methods “undermine our moral authority and do not make us safer” while defending interrogators “who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”
He also asserted that “nothing will be gained by spending our time and energy laying blame for the past.” The suggestion that it would serve no purpose to hold people accountable for violating U.S. and international law stands in contrast to his avowal within the same statement that he believes in accountability, as well as his remark that “The United States is a nation of laws. My Administration will always act in accordance with those laws, and unshakeable commitment to our ideals.”
U.S. law defines “torture” as “an act committed by a person acting under the color of law specifically intended to inflict sever physical or mental pain or suffering … upon another person within his custody or physical control”.
The legal memoranda in question effectively served to grant the color of law to the use of torture.
Under the law, anyone found guilty of using torture can be fined and imprisoned for up to 20 years. If death results from the use of torture, the offender may be given the death penalty. This applies to anyone who uses torture “outside the United States”, such as C.I.A. detention facilities overseas.
The U.S. War Crimes statute, which applies to offenses “whether inside or outside the United States”, forbids war crimes, defined as a grave breach of the Geneva Conventions and other relevant bodies of international law to which the U.S. is a party. The statute notes that the Geneva Conventions specifically forbid torture as a war crime, defining torture as “The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering … for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.”
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment not only obligates parties to establish jurisdiction over offences committed within that state or by nationals of that state beyond its borders, but to prosecute those accused of having committed such offences.
The legal argument put forth by Justice Department and White House lawyers in numerous memoranda that have come to light over the years is in essence that the President is simply above the law. The Executive Office may simply disregard international treaties and U.S. law as he sees fit in the execution of his duties as Commander-in-Chief of the armed forces and as deemed necessary for purposes of “national security”.
President Obama, by declaring that his administration will protect those who committed or conspired to commit torture despite the U.S. obligation under both domestic and international law to prosecute such individuals, is effectively reaffirming that same interpretation of Executive power adopted under the Bush administration.
In defense of this policy under the Obama administration, George Friedman, founder of STRATFOR, acknowledges that while the harsh interrogation methods given color of law under the recently released memoranda “do not rise anywhere near the top” of the “scale of human cruelty”, the treatment of detainees by the U.S. “was terrible nonetheless.”
“But”, continues Friedman, “torture is meant to be terrible” and torturers should be judged in the context of the terror of 9/11. The U.S. “lack of intelligence” led to an increased sense of fear both among the public and within the government, he asserts. “Washington simply did not know very much about al Qaeda and its capabilities and intentions in the United States.”
The notion that 9/11 was the result of an intelligence failure has been largely discredited. Former Director of Central Intelligence George Tenet admitted to the 9/11 Commission that “the system was blinking red” with warnings about an imminent attack. The C.I.A. had been tracking two of the would-be-hijackers, Khalid al-Midhar and Nawaf al-Hazmi, and knew that al-Midhar had obtained a visa to enter the U.S. Yet the C.I.A. chose not to inform the State Department, the F.B.I., or the Immigration and Naturalization Service to put the men on the terrorist watchlist or otherwise be on the lookout for known al Qaeda operatives who might attempt to enter the U.S.
C.I.A. documents showed that it was known that “al-Qa’ida operative Khalid Shaikh Mohammed was recruiting persons to travel to the United States and engage in planning terrorist-related activity here”, according to the 9/11 Congressional Joint Inquiry report. These persons “would be ‘expected to establish contact with colleagues already living’” in the U.S. “In short,” the report observed, “before September 11, the Intelligence Community recognized that a radical Islamic network that could provide support to al-Qa’ida operatives probably existed in the United States.”
While in the U.S., the two terrorists were assisted by the subject of an F.B.I. terrorism investigation and made frequent contact with an F.B.I. informant. They lived in San Diego under their real names and were even listed in the phone book.
Numerous other examples discrediting the intelligence failure claim exist, including the fact that President George W. Bush received an intelligence brief on August 6, 2001, entitled “Bin Ladin Determined To Strike in U.S.” that said terrorists were planning on exploiting their access to the U.S. “to mount a terrorist strike.” Al Qaeda, the brief stated, “maintains a support structure that could aid attacks” within the U.S. The threat of hijackings was noted, and New York was specifically named as a potential target for an attack.
When the existence of this brief became public knowledge, President Bush responded to criticism by saying that brief “was no indication of a terrorist threat.” Such public statements, belied by actual facts, served to help establish the popular myth that U.S. intelligence was blind to the threat that manifested on the morning of September 11, 2001.
Friedman argues that it was this “lack of knowledge” about terrorists’ intentions that “led to the authorization of torture”, which “offered a rapid means to accumulate intelligence”.
That torture is an effective means of gathering intelligence is also a notion that is offered no credibility among interrogation experts. The use of torture, far from resulting in the extraction of credible and useful information, results in the victim saying whatever he or she thinks their interrogator wants to hear in order to make it stop. Torture is useful, but as a means to elicit false confessions, such as for propaganda purposes.