Posted by Jonathan Adler:
Bowden on the Waterboarding of Abu Zubaydah:
http://volokh.com/archives/archive_2007_12_23-2007_12_29.shtml#1198702060
Agree with his conclusions or not, [1]Mark Bowden is always worth
reading. His reporting on counter-insurgency and counter-terrorism
efforts, from [2]Black Hawk Down to his articles on torture and
interrogation methods in The Atlantic (see [3]here and [4]here) are
riveting, thought-provoking, and often unsettling. Few, if any,
journalists have covered these issues and events with his level of
insight and intelligence.
This past Sunday, Bowden had [5]a an op-ed in Philadelphia Inquirer,
somewhat deceptively titled "In Defense of Waterboarding." In the
article, Bowden argues that information gleaned from coerced
interrogations should never be admissible in court. But he rejects the
notion that torture never "works," if by that one means that torture
never yields truthful information. What torture and other coercive
interrogation techniques yield is that which the victim believes his
captors want to hear. If they want a confession for criminal conduct,
they'll get it, and it will be worthless. But if they want readily
verifiable, time-sensitive intelligence information, coercive
interrogation methods may yield that as well. Writes Bowden:
Here's where the issue gets confusing. No information gained by
coercive methods ought to be admissible, ever, in a trial or
tribunal. Torture can be used to twist (the word torture literally
means "to twist") testimony in any desired direction. The goal of
any criminal proceeding is justice, and torture produces only the
kind perfected during the Inquisition.
The goal of an intelligence operation in wartime, on the other
hand, is to elicit accurate, timely information to thwart attacks.
In this setting, interrogation is a process, one in which a
prisoner is rewarded for the truth, and punished for lying. It is
designed to save lives and ensure the success of a military
operation. Coercive methods are rarely necessary. Most often,
prisoners can be induced to cooperate by being nice to them. There
are many other interrogation methods proven to be useful that do
not require so much as raising one's voice. But there will always
be hard cases like Abu Zubaydah and Khalid Sheik Mohammed, another
mastermind of Sept. 11. With prisoners like these, defiant and
dangerous, the only right question to ask is, What works?
Again, Bowden's answer is that, for intelligence purposes, coercive
methods that induce fear can work -- indeed, "fear works better than
pain" -- and (in the most extreme cases) there may not be equally
effective alternative methods available.
Does this mean that official government policy should sanction torture
or other coercive interrogation methods? Not to Bowden. He believes
that techniques like waterboarding are, and should remain, illegal.
But he also argues that this does not mean those who waterboarded Abu
Zubaydah should be subject to criminal prosecution. As he concludes:
It is an ugly business, and it is rightly banned. The interrogators
who waterboarded Zubaydah were breaking the law. They knew they
were risking their careers and freedom. But if the result of the
act itself was a healthy terrorist with a bad memory vs. a terror
attack that might kill hundreds or even thousands of people, it is
a good outcome. The decision to punish those responsible for
producing it is an executive one. Prosecutors and judges are
permitted to weigh the circumstances and consider intent.
Which is why I say that waterboarding Zubaydah may have been
illegal, but it wasn't wrong.
Waterboarding was a horrific thing to do to someone, even someone as
evil as Abu Zubaydah. Such conduct should be forbidden and never
sanctioned as official policy (even if some journalists and [6]DoJ
officials have survived it). At the same time, there may be extreme
(and extremely rare) circumstances in which life does imitate an
episode of "24," and horrific measures may be necessary. This does not
mean such measures should be legal. Rather, as Bowden suggests, the
specific context should be considered when authorities decide whether
and how to prosecute those involved for breaking the law.
References
1. http://www.theatlantic.com/about/people/mbbio.htm
2. http://inquirer.philly.com/packages/somalia/
3. http://www.theatlantic.com/doc/200310/bowden
4. http://www.theatlantic.com/doc/prem/200705/tracking-zarqawi
5.
http://www.philly.com/inquirer/opinion/20071223_The_Point___In_defense_of_waterboarding.html
6. http://volokh.com/posts/1194103751.shtml
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