Does Transparency Inspire Terrorism?
The debate over the Obama administration’s release of the torture memos took an important turn during the past week, as reflected in discussions on the Sunday morning shows.
The economy was the lead story on Fox News Sunday, but in the second segment Chris Wallace led his questioning of Senator Kit Bond (R-MO) as follows:
The Pentagon now says that it’s going to release hundreds of photos of alleged abuse of detainees by U.S. personnel – this, after, of course, the release of the interrogation memos. Senator Bond, how serious is the threat of a backlash in the Middle East and the recruitment of more terrorists, possibly endangering U.S. soldiers in that part of the world?
Revelation! The idea that abusive practices on the part of the United States would draw people to the side of its enemies.
In the media, most of the debate up to now has centered on the tactical question of whether torture works, and to some degree the moral dimension. (Here’s David Rittgers on the former and Chris Preble on the latter.)
There’s an ineluctable conclusion from understanding that torture drives recruitment which endangers our soldiers: It is strategic error to engage in abusive practices. Abuse on the part of the United States adds heads to the hydra.
But wait. Wallace’s question may imply that it is release of the photos – not commission of the underlying offenses – that risks causing a backlash. This cannot be.
Given the governments they’ve long experienced, people in the Muslim and Arab worlds will generally assume the worst from what they know – and assume that even more than what they know is being hidden. Transparency about U.S. abuses cuts against that narrative and confuses the story that the United States is an abuser akin to the governments Arabs and Muslims have known.
Abusive practices create backlash against the United States. Transparency about abuses after the fact will dispel backlash and muddy the terrorist narrative about the United States and its role in the Middle East.
As the question turns to prosecution of wrongdoing by U.S. officials, such as lawyers who warped the law beyond recognition to justify torture, transparent application of the rule of law in this area would further disrupt a terrorist narrative about the United States.
“Soft” Interrogation Yields the Best Results
My colleague Chris Preble sketches out some of the moral pitfalls that come with authorizing torture in his post. Beyond that, history shows that utilitarian claims that torture has enhanced our safety are also mistaken.
While torture can in some instances provide valid intelligence, it can also produce false information motivated only by a desire to end suffering. Successful interrogators from World War II to the modern day have used rapport and psychology, not brutality, to get inside the heads of their enemies.
The Air Force interrogator who helped bag Abu Musab al Zarqawi, writing under the pseudonym Matthew Alexander, says that the difference between an interrogator and a used car salesman is that the interrogator has to abide by the Geneva Conventions. No torture there, and a good read to boot.
This theme is echoed in Kyndra Rotunda’s book Honor Bound:
I knew one CITF agent and one FBI agent who were Muslims, and both knew how to coax the truth from detainees’ lips. One word captures their effective, secret ingredient to successful interrogations – patience. They each spent hours visiting with the detainee, sharing tea, bringing gifts of dried fruits, and talking endlessly about family, Allah, and the Quran.
This should come as no surprise, since it is a repackaging of the techniques of World War II interrogator Hanns Scharff, “Master Interrogator of the Luftwaffe.” Scharff treated downed Allied pilots humanely, gaining their trust and sympathy while gleaning significant information about Allied air power and advance warning of the D-Day landing. The Allies wanted to prosecute him after the war for interrogating their pilots so effectively, but dropped the charges when they couldn’t substantiate him so much as raising his voice. He came to the United States after the war and did mosaic art work at Walt Disney World.
So color me unsurprised when a former FBI supervisory agent says that we gained actionable intelligence by traditional interrogation techniques, and that torture backfired on us.
The release of memoranda authorizing torture will help prevent the U.S. from ever traveling this dark path again. The U.S. has consistently taken the moral high ground in armed conflicts, contrasting our behavior with the savagery our enemies engaged in for decades. The historical record shows that mercy, not might, is the key to successful interrogation.
Bob McDonnell Wants to Scare You and Take Your Money
Though I’m not a Virginia resident or voter, nor a donor to politicians, Virginia gubernatorial candidate Bob McDonnell (whose party affiliation I’m not aware of) has added me to his email list. His name is similar to a past roommate, and that affinity has caused me to open more of his emails than I ordinarily would.
Today’s is worth writing about: It’s a political candidate transparently trying to scare voters and use their fear for fundraising.
Dear Jim,
Terror suspects could be headed to Virginia…
With the closing of the detention center at Guantanamo Bay the federal government must find new locations in which to house and try the roughly 240 terrorist suspects currently held 90 miles from our shores. Recent news reports indicate that the Department of Justice is considering transferring a number of the detainees to the Commonwealth of Virginia. One specific location: Alexandria. And other Virginia locations could be possibilities as well.
There are security details to be worked out when prisoners are transferred out of Guantanamo Bay, but the prisoners themselves are not dangerous as such. They’re prisoners, and they will always be under heavy guard. Terrorists are not radioactive, and they do not have lasers built into their eyes.
The problems with housing prisoners in the past have been over-the-top security precautions that make a great show but don’t necessarily meet actual security problems associated with housing terror suspects.
Bills have been introduced to bar detainees from being transferred to various states.
A precious few Americans have exhibited cool in this fear-of-detainees brouhaha. Alexandria Sheriff Dana A. Lawhorne is quoted in this Washington Post article, at least saying “he would do what he can: ‘You can’t run the other way when your country calls.’”
But McDonnell, the politician seeking a prominent leadership position in the state, would “lead” by pretending that captured terrorists are too big a security risk for Virginia. It’s shameful fear-mongering meant to capitalize on the ignorance and weakness of Virginians who don’t understand terrorism. The only links in the text of the email are to the fundraising page on McDonnell’s Web site.
McDonnell exhibits leadership malpractice with this kind of campaigning.
TLJ: Holder Advocates Some Constitutional Principles
I’m a long-time reader and fan of TechLawJournal. Dogged reporter David Carney produces an amazing amount of content about technology-related goings-on in Washington, D.C. and the courts. Subscription information is here.
I also appreciate his editorial style, which often betrays a dose of concern for civil liberties and healthy skepticism about power. A wonderful example follows, reprinted with permission:
Holder Advocates Some Constitutional Principles
Attorney General Eric Holder gave a lengthy speech at the United States Military Academy in West Point, New York in which he discussed the role of law in “our current struggle against international terrorism”.It was a plea for adherence to Constitutional principles. However, it was as significant for what he said — about detention of people in places like Guantanamo Bay — as for what he did not say — about interception of communications and seizure of data.
He spoke with specificity about Guantanamo Bay, detainees, and the history of American treatment of detained soldiers and citizens.
But, he said nothing that suggested an intent to reverse, or halt, the deterioration of Constitutional protection of privacy and liberty interests in the context of new communications and information technologies.
Holder (at right) said, “And so it is today, at the beginning of a new presidency, as we face a world filled with danger, that we must once again chart a course rooted in the rule of law and grounded in both the powers and the limitations it prescribes.”
He said that “we will not sacrifice our values or trample on our Constitution under the false premise that it is the only way to protect our national security. Discarding the very values that have made us the greatest nation on earth will not make us stronger — it will make us weaker and tear at the very fibers of who we are. There simply is no tension between an effective fight against those who have sworn to do us harm, and a respect for the most honored civil liberties that have made us who we are.”
This statement could equally apply to government surveillance activities. But, he did not say so. Perhaps Holder intends to speak in a similar speech about surveillance at a later date. Or perhaps, he does not, and his concern for Constitution rights is selective and does not extend to surveillance.
He did make one statement that may pertain to electronic surveillance and data. He said that “many national security decisions must by necessity be made in a manner that protects our ability to gather intelligence, investigate threats and execute wars”.
He did not reference the state secrets privilege, or the government’s assertion of it in legal proceedings involving warrantless wiretaps.
On April 3, 2009, the Department of Justice (DOJ) filed a motion to dismiss and memorandum in support [36 pages in PDF] in Jewell v. NSA, a case against the NSA, DOJ, Holder and officials, arising out of the NSA’s warrantless wiretap program.
The DOJ asserts the state secrets privilege, sovereign immunity, and other arguments, to evade litigation of this case on the merits.
The Electronic Freedom Foundation (EFF) stated in a release that “These are essentially the same arguments made by the Bush administration”.
This case is Carolyn Jewell, Tash Hepting, et al. v. National Security Agency, et al., U.S. District Court for the Northern District of California, San Francisco Division, D.C. No. C:08-cv-4373-VRW.
Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release issued in response to Holder’s speech that “It’s disturbing that instead of helping investigate the extent of spying by the Bush administration, the new administration is not just defending those policies, but taking them a step further. In its April court brief (Jewel v. NSA), the Obama DOJ argued that the government is completely immune from litigation for illegal spying and even that it can never be sued for violating federal privacy laws with surveillance techniques. Those arguments sound more like ’1984′ than 2009.”
Black continued that “President Obama appreciates more than most people how the Internet can be used as a tool to allow greater participation in a democracy. That same tool could also be the greatest innovation for surveillance and repression in the wrong regime. Defending practices like this sets a dangerous precedent down the road and makes it easier for a government to expand the programs from surveilling terrorists to surveilling political opponents.”
“The Obama administration had the courage to change policy on the treatment of terrorism suspects and how they were treated and sometimes tortured”, said Black. “But the abuse of the privacy rights of millions of U.S. citizens is a greater long term threat to the rule of law and the Constitutional rights of all Americans. The failure to allow the full investigation of the surveillance abuse by both the government and major collaborating industry giants would be a tragic betrayal by an administration so many were looking to for greater honesty, openness, and respect for all citizens’ constitutional rights.”
The Problem of Guantanamo
The Constitution obviously does not leave Americans helpless in fighting against those who wish them ill. But it also sets standards of conduct that should not — indeed, cannot — be carelessly tossed aside.
The prison at Guantanamo Bay has become such an international symbol of the U.S. abandoning its principles because it reflects an anti-terrorism policy gone badly awry. First, the Bush administration was both callous and careless in imprisoning people, even paying unreliable tribal allies for captives. Second, the U.S. government created no effective and objective truth-determining process to assess guilt. Third, Washington employed torture, violating both domestic and international law.
No doubt dangerous terrorists have been incarcerated at Gitmo. But so too have many innocent people. Indeed, the claims of former State Department Chief of Staff Larry Wilkerson are particularly sobering:
Lawrence B. Wilkerson, the former chief of staff to Secretary of State Colin Powell, admitted today that of the approximately 800 detainees held at Guantanamo Bay since the controversial detention center opened, only “two dozen or so” were actually terrorists. Wilkerson told the Associated Press today that “there are still innocent people there,” and that “some have been there six or seven years.”
Wilkerson made other comments earlier in the week in an internet posting entitled “Some Truths About Guantanamo Bay.” In that posting he said that “several in the US leadership became aware of the lack of proper vetting very early on and thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released.”
Wilkerson also claimed that then-Secretary Powell and Richard Armitage were pressuring for the repatriation of as many detainees as possible, and that former Defense Secretary Donald Rumsfeld and Vice President Dick Cheney were unphased by the fact that “among the detainees was a 13 year old boy and a man over 90,” standing in opposition to returning detainees.
Even if Wilkerson exaggerates–and he has been a credible witness so far–he points to the price America has paid for failing to live up to its principles. The U.S. has locked up many who were neither terrorists nor otherwise dangerous. Doing so undoubtedly has helped turn some people in and out of Gitmo towards violence against America. And mistreating the innocent has badly sullied America’s reputation as a shining city upon a hill.
Confronting terrorism will never be easy. But violating America’s principles is no way to defend the America in which we all claim to believe.
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