The Perils of Torture Agnosticism (Or, How <em>Not</em> to Read the SSCI Report)

It’s now been 10 days since the release of the Executive Summary of the Senate Select Committee on Intelligence’s (SSCI) study of the CIA detainee program—almost certainly to be known to posterity as the “torture report.” One of the emerging themes of much of the commentary the report has precipitated is what might best be called “torture agnosticism”—where commentators profess that they either don’t or can’t know whether torture is ever “effective,” and so are reluctant to take a categorical position as to the propriety (or lack thereof) of the myriad episodes of torture documented in the report. Although there are too many examples of this approach to list (including the public comments from CIA Director Brennan), two paradigmatic cases have appeared here at Lawfare, in “Part I” of Ben’s “Thoughts on the SSCI Report,” posted on Monday, and Peter Margulies’ post from Tuesday on “Torturing Efficacy.” There are two fundamental and intractable problems with torture agnosticism. First, as has been well-covered elsewhere, agnosticism as to torture’s efficacy is utterly irrelevant to torture’s legality. The law doesn’t brook an “efficacy” exception for torture any more than it brooks such a carve-out for other crimes. We may not care, in such cases, about the legal consequences of our conduct, but that’s not because the fact that we deem something to be pragmatic somehow transmogrifies the illegal into the legal. This is not a new critique, though, and so I won’t belabor it here. The second—and, in my view, far more immediate—problem with torture agnosticism in the context of the SSCI report is that it’s utterly belied by the report itself. Theoretical questions about whether torture ever works may be perfectly interesting, but thanks to the 6700 pages produced by the SSCI, we now have actual data. And under the CIA’s own internal standard for when these techniques were appropriate, I just don’t see how that data could cause anyone to be agnostic as to the efficacy of the CIA’s use of “Enhanced Interrogation Techniques” (EITs)—of torture. Instead, based on the standard the CIA itself held out to others, any objective reader of the report should be convinced that, in addition to being illegal, none of the torture documented in the report was “necessary.” As I demonstrate below the fold, one must caricature the SSCI report in order to come away from it agnostic as to whether, from the CIA’s perspective, torture actually “worked.” I.  When Did the CIA Believe EITs Were Appropriate? Before turning to specific examples, let’s start with perhaps the biggest charge that both Ben and Peter levy against the SSCI report—that “[t]he Report and its supporters have proclaimed that EITs never produce useful information,” as Peter put it on Tuesday, or that the report would have readers believe that “the net intelligence benefit of the agency’s coercive program was zero,” as Ben wrote on Monday. (See also Ben’s assertion that “the committee is far less convincing in its dogmatic insistence that no benefit accrued to the agency from any of its use of coercion.”) Neither cites to specific text in the report making such claims, however—and for good reason: there isn’t any. Instead, the report focused on whether, from the CIA’s own perspective, the use of “EITs” was “necessary to acquire ‘otherwise unavailable’ actionable intelligence that ‘saved lives.’” (Page 2 of the Findings.) That was how the CIA itself justified the use of torture to the White House, the National Security Council, the Department of Justice, the CIA Office of the Inspector General, and, in some cases, Congress and the American people. Of course, commentators like Ben and Peter may believe that this shouldn’t be the standard for when EITs are justified—and that, instead, they should be available whenever they produce any actionable information of any kind. By that standard, it should be virtually tautological that the EITs succeeded. Or, perhaps the test is the one to which Ben alludes when he writes that “the CIA is almost certainly correct that it obtained critical information after using brutal methods.” But that does not mean that the information was obtained because of the use of those methods, or that it could not have been obtained without the use of those methods. Indeed, if torture is ever justified (but see above), one would think that it should only be in exceptional cases—where there’s no less intrusive means of obtaining the same information, and where lives are literally hanging in the balance. And whatever individual CIA officers may have thought, it says everything that this was the standard they endeavored to both defend and substantiate in all interagency contexts. Turning to the merits, here’s what the report has to say about the CIA’s proffered examples of cases in which EITs were in fact “necessary to acquire ‘otherwise unavailable’ actionable intelligence that ‘saved lives’”:

The Committee reviewed 20 of the most frequent and prominent examples of purported counterterrorism successes that the CIA has attributed to the use of its enhanced interrogation techniques, and found them to be wrong in fundamental respects. In some cases, there was no relationship between the cited counterterrorism success and any information provided by detainees during or after the use of the CIA's enhanced interrogation techniques. In the remaining cases, the CIA inaccurately claimed that specific, otherwise unavailable information was acquired from a CIA detainee “as a result” of the CIA’s enhanced interrogation techniques, when in fact the information was either: (1) corroborative of information already available to the CIA or other elements of the U.S. Intelligence Community from sources other than the CIA detainee, and was therefore not “otherwise unavailable”; or (2) acquired from the CIA detainee prior to the use of the CIA's enhanced interrogation techniques.

Indeed, CIA Director Brennan all-but agreed with this conclusion in his cover memo transmitting the CIA’s June 2013 response to the report, on page 3 of which he observed that “The Agency takes no position on whether intelligence obtained from detainees who were subjected to enhanced interrogation techniques could have been obtained through other means or from other individuals. The answer to this question is and will forever remain unknowable.” And in the CIA’s more detailed response, here’s the agency’s position, on page 21:

We concluded that all the cases fit within and support the Agency’s overall representations that information obtained from CIA interrogations produced unique intelligence that helped the US disrupt plots, capture terrorists, better understand the enemy, prevent another mass casualty attack, and save lives. We were dismayed to see that, in some of the Agency’s representations, CIA failed to meet its own standards for precision of language and we acknowledge that this was unacceptable. However, even in those cases, we found that the actual impact of the information acquired from interrogations was significant and still supported CIA’s judgments about the overall value of the information acquired from detainees, including detainees on whom the Agency used enhanced interrogation techniques.

If “unique” and “significant” are the metrics, then it’s hard to dispute the CIA’s self-assessment. But what the SSCI report concluded was that the CIA’s proffered examples failed to identify a single case in which EITs were “necessary to acquire ‘otherwise unavailable’ actionable intelligence that ‘saved lives.’” There's nothing in the CIA response militating against that conclusion. II.  The Zubaydah/Padilla Example One of the examples the CIA invokes (and Peter relies upon) to support the conclusion that EITs actually were “necessary to acquire ‘otherwise unavailable’ actionable intelligence that ‘saved lives’” is the connection between Abu Zubaydah and Jose Padilla. Thus, Peter explains, “[t]he actual answer to the Zubaydah efficacy question is mixed.” In his words,

The CIA notes (p. 11) that Zubaydah revealed the existence of Jose Padilla, a US citizen who was eventually convicted of terrorism-related offenses after being detained for over three years without charges. Zubaydah was not being subjected to EITs per se at this time; however, the CIA notes, he was subjected to sleep deprivation, which was eventually approved as one of the enhanced techniques. The SSCI minority report suggests rightly that Zubaydah revealed a great deal of information during this period, which the majority report fails to fully acknowledge because of its definitional sleight of hand.

There’s a lot in this passage that’s deeply misleading—and that’s emblematic of the way in which so many commentators are either missing or ignoring the essential nuances in the SSCI report. First, as the SSCI report makes clear at pages 233–34, it was Pakistani authorities, and not Abu Zubaydah, who “revealed the existence of Jose Padilla.” Thus, “by April 12, 2002, the CIA was already alerted that a named U.S. citizen, ‘Jose Padilla,’ had spent significant time in Pakistan and was engaged in ‘possible terrorist activity.’” All Abu Zubaydah’s interrogation did, at most, was to corroborate the Pakistani information. Indeed, the CIA’s own response drives this point home, stressing (on page 22) that the value of the Jose Padilla information was in “[m]aking vague information actionable.” Peter accuses the SSCI report of “undervalu[ing]” this kind of corroboration. Again, though, the report wasn’t giving value to (or quantifying) individual pieces of information; it was asking whether EITs produced “‘otherwise unavailable’ actionable intelligence that ‘saved lives.” In this case, the answer, even using the CIA’s own explanation, was clearly “no.” Second, even if the corroboration of the threat posed by Jose Padilla was “‘otherwise unavailable’ actionable intelligence that ‘saved lives,’” it wasn’t produced through EITs. This is clear not only from the timeline provided in the SSCI report (see especially footnote 1335 on page 235), and the testimony of the FBI agents who were involved in the interrogation (see text on page 235), but from FBI communications detailed in footnote 113 on page 29 that explain how the “sleep deprivation” to which Abu Zubaydah was subjected in April 2002 wasn’t anything like the sleep deprivation EIT subsequently approved by OLC in the August 2002 Bybee/Yoo memo. (Indeed, if the information was produced through EITs in April 2002, it would have been produced through non-DOJ-approved methods—and would therefore have been unquestionably unlawful even on the CIA’s view.)

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Other examples abound, including that of the very last CIA detainee—Muhammad Rahim—in whose case the CIA concluded internally that, given the lack of actionable intelligence being produced by EITs, it should instead look to non-coercive techniques. But the larger point is that language really matters in debating the relative merits of the SSCI report, the minority report, and the CIA response. In order to truly be agnostic on torture, I would hope that there would be at least some reason to believe that the CIA’s use of torture was necessary for the reason the Agency routinely identified in interagency discussions—“to acquire ‘otherwise unavailable’ actionable intelligence that ‘saved lives.’” It’s entirely plausible, if not likely, that torture occasionally produced “unique” or “significant” information. What critics of the SSCI report have comprehensively failed to rebut is the report’s conclusion that it was this metric that mattered—and that was never satisfied. That brings me to one last point about torture agnosticism in general. I understand the impulse, especially in this political climate, to gravitate toward the center—and to assume that the “right” answer, in all cases, is somewhere in the middle of the perceived positions endorsed by the “left” and the “right.” And I admire both of my friends, Ben and Peter, for being two of the most thoughtful voices in staking out this important ground in so many different areas of our public discourse. But it disserves such discourse to demarcate the middle—and to reach for agnosticism—by mischaracterizing one of the perceived poles in both purporting to describe that position, and in asserting, without defending, that it is the “left” in a left-right debate. It is now beyond question that the United States engaged in a systematic program of torturing detainees after September 11. It is also beyond question, thanks to the SSCI report, that this torture failed to produce “‘otherwise unavailable’ actionable intelligence that ‘saved lives.’” I’m willing to concede that reasonable people can be agnostic about whether, in the ubiquitous but entirely theoretical ticking-bomb hypothetical, torture might ever be morally justified because one could conceive of a case in which it might actually “work.” And I'm also willing to concede that reasonable minds can differ as to whether those responsible for the torture should be prosecuted. But unless one disputes the specific facts found by SSCI investigators (and can substantiate that criticism with facts of his own), or has a completely different definition of “efficacy,” we simply cannot be agnostic about whether the CIA’s EIT program was justified.