Torture Debate Part 2

Hypothetical Scenario

Imagine that we are somewhere in the United States. Some terrible crime has occurred, and the police are looking for the culprit. The police, in the course of their investigations, identify a suspect that they believe is responsible for the crime. The police detain the suspect for questioning. The interrogation of the suspect is key to finalizing the case against the suspect. The police are already convinced that the suspect is the culprit, and let’s assume that the police are correct, but they need more to build a strong enough case for the District Attorney to prosecute. If the police fail to extract a confession or any other verifiable information from the suspect, the case will fall apart and the violent criminal will walk away, likely endangering members of the public. It all comes down to the success of the interrogation.

The suspect is brought into a police interrogation room, and the interrogator tries to ask some questions regarding the suspect and the crime that occurred. The suspect refuses to answer. He is a hardened criminal and knows all the tricks that the police use and the boundaries that the police must observe. All the suspect has to do is not say anything. Facing an uncooperative suspect, the interrogator is running out of time. The police can only detain someone for a limited amount of time, and this interrogation is the last chance to stop this violent criminal. So the interrogator decides to take things a step further. The interrogator gets up from his chair, handcuffs the suspect to the table, and starts slapping the suspect across the face to induce compliance. The slaps are not severe, they don’t leave any permanent injuries or unbearable pain to the suspect. The pain is not the point. It's about making the suspect feel helpless. It's about making the suspect understand that the interrogator has full control. And in this state of learned helplessness, the suspect has no other choice than to start talking. Of course, the police are not idiots. Anything the suspect says during interrogations need to be verified. The point was not about getting the truth; it was about getting the suspect to just start talking. Lies can be disproven, but silence is unworkable.

This hypothetical scenario so far is not entirely unrealistic nor fantastical. Even in the United States, police officers still sometimes use physical coercion before or during interrogations to get results. However, such actions are generally regarded as violations of moral, ethical, and legal boundaries, and the use of physical coercion in police interrogations is strictly prohibited. No, what would make this scenario interesting is if the police interrogator who slapped the suspect did so openly, by video taping the whole thing, and later appealing to the American public that the slapping should be morally and legally justified for police interrogations. The claim would be that slapping is an acceptable interrogational technique because it does not meet the criteria of torture under domestic and international law. The police are adamantly against torture, which is manifestly illegal and cruel and downright un-American. But slapping isn’t torture, at least not the way they used it, which was administered professionally, incrementally, and only when it was necessary.

Most law enforcement agencies around the world do not openly support the use of physical coercion during interrogations. Some countries may be more tolerant of coercive techniques than others, but their tolerance is characterized by denial: they tolerate coercive interrogations by denying that such things happen. It would be unusual for a law enforcement agency to openly challenge existing boundaries of morally acceptable conduct during interrogations, such as advocating the use of slapping.

Whether the American public would support the use of coercive techniques in police interrogations is a bit unclear, but I would bet my imaginary bitcoin on that most Americans are opposed to the police using physical coercion during interrogations. Since the current issue with American law enforcement is the use of lying and deceit during interrogations, I think it's safe to say that physical coercion is not even up for debate.

Physical coercion in police interrogations can be called many things: coercive techniques, harsh methods, or abuse. But the CIA went further, and called it Enhanced Interrogation Techniques. Enhanced Interrogation Techniques, or EITs, are methods not used for normal interrogations. For normal interrogations, EITs are absolutely prohibited. That’s because if the police start using EITs, it would be considered physical abuse at a minimum and torture at a maximum.

How many time does a police officer has to slap a suspect for it to transition from abuse to torture? 10 times? A hundred? A thousand? How much force is in each slap and how long are the intervals between slappings? At some point, it would become torture in the eyes of many but that doesn’t mean the slappings that have occurred before that threshold were permitted.

In my last video, I dismissed the controversy over the classification of EITs. For those who defended the use of EITs by the CIA, it was legally imperative that EITs would not constitute torture because torture is very much illegal under US law. The claim is quite simple: EITs are not torture because they do not strictly meet the legal criteria of torture under domestic and international law.

I will not bore you by reciting the US domestic law prohibiting the use of torture, the UN Convention against torture, and etc. You can read them easily enough on your own. It is not necessary for EITs to meet the criteria for legal definitions of torture for them to be prohibited. Enhanced Interrogation techniques, even if they were used in such a way as to not be considered torture under US and international law, would still qualify as physical abuse, abuse of power, and human rights violations.

What are Enhanced Interrogation Techniques?

Some of you might be wondering, what exactly are EITs? EITs are anything you would consider inappropriate, abusive, or otherwise a breach of moral, ethical, and legal boundaries in normal interrogations. Slapping was an EIT, called “insult slapping”, which was used by CIA interrogators. To get a glimpse of how the CIA used EITs against detainees, we can consult Jose Rodriguez and his book, “Hard Measures”. Jose Rodriguez is a former CIA Chief Operating Officer of the Counter Terrorism Center, the unit that was in charge of the CIA’s detention and interrogation program that created and implemented EITs. He is an ardent defender of EITs and claims that EITs are not torture. He offers some explanation to how the EITs were categorized and used.

“Initially, those who refused to cooperate were subjected to “conditioning” techniques. These included sleep deprivation, dietary manipulation, and enforced nudity. If detainees continued to be unwilling to cooperate, they might receive some of the next level of procedures, which were known as “corrective” techniques.”

Other techniques included walling, which is bouncing people off of a wall repeatedly. The “attention grasp” which is grabbing a detainee by the collar of their prison garb and yanking it towards the interrogator, a technique that is also commonly used by highschool boys with misguided notions of masculinity.

Then there were the “coercive techniques” within EITs.

“If the detainee still refused to cooperate [after conditioning & corrective techniques], then, and only then, would he be subjected to what were called “coercive” techniques. These included being placed in a confined space – essentially a large box in which he could stand up and sit down but in which his movements were physically constrained and uncomfortable, or a smaller box in which there was enough room to sit but not stand. We knew that Abu Zubaydah had an intense fear of bugs, and we were given authority to place a non biting, benign insect in the box with him, but the lawyers said that we would have to inform him before doing so that the caterpillar we intended to use was essentially harmless and would not produce severe pain or death. With the psychological sting taken out of this technique, we opted to skip it.”

Aside from showing the lack of common sense knowledge about how phobias work in the case of Abu Zubaydah, you might be wondering how the CIA determined that these techniques would work in the first place. Or how and why they decided some techniques were conditioning, corrective, or coercive, or how they came up with these categories. The CIA is a professional, government agency, so you would expect that there would have been some reasonable and logical process through which interrogation techniques would be evaluated for expected effectiveness before they were used. I will deal with this issue as well as the problems of efficacy of EITs and torture in another video because the efficacy debate is more complex than one might imagine. But the short answer is that there wasn’t a process.

SERE Training Program

Many of these EITs would be familiar to people who have suffered from abuse, such as from bullying in school to hazing rituals in college. But the biggest inspiration for EITs is the training program for US military personnel called Survival, Evasion, Resistance, Escape, or SERE for short. SERE is often known for training US military personnel on how to deal with capture and interrogation by the enemy. As part of this counter interrogation education, trainees are put in simulated prisoner of war camps and subjected to torture techniques. Walling, insult slaps, cramped confinement, and even waterboarding are administered to the trainees to let them experience torture techniques.

While the history of the SERE program is quite long, the short story is that during the Korean war, American soldiers had been captured by North Koreans and were tortured to make false confessions. Those confessions were broadcasted as part of North Korea’s wartime propaganda efforts. Further incidents of torture and abuse of US soldiers in Vietnam which led to more false confessions being broadcasted, motivated the Departement of defense to create a training program that would teach US soldiers on how to deal with torture and abuse by hostile forces. The techniques simulated in SERE are modeled after abuse and torture by not just hostile forces but hostile forces who would willingly violate the Geneva conventions.

Here is what a SERE counter interrogation simulation entails from a firsthand account from a former US soldier David J Morris.

“I served in the Marine Corps in the 1990s, and I attended SERE as a young lieutenant in November 1995. I have since been to Iraq three times (as a reporter), and I can attest that the school isn’t relevant to the threats American soldiers face abroad. It resembles more of an elaborate hazing ritual than actual training.

While I was in the school, I lived like an animal. I was hooded, beaten, starved, stripped naked, and hosed down in the December air until I became hypothermic. At one point, I couldn’t speak because I was shivering so hard. Thrown into a 3-by-3-foot cage with only a rusted coffee can to piss into, I was told that the worst had yet to come. I was violently interrogated three times. When I forgot my prisoner number, I was strapped to a gurney and made to watch as a fellow prisoner was water-boarded a foot away from me. I will never forget the sound of that young sailor choking, seemingly near death, paying for my mistake. I remember only the sound because, try as I might, I couldn’t force myself to look at his face. I was next. But for some reason, the guards just dropped the hose on my chest, the water soaking my uniform.”

SERE simulates torture and abuse that American soldiers might face under detainment by cruel captors. The CIA adopted those techniques and called them EITs, and claimed that EITs are not torture and abuse, at same time arguing that EITs should not be used by the US military against prisoners of war because using EITs against prisoners of war would be a violation of the Geneva Conventions.

“It is important to note that we are not claiming universal applicability for EITs. We implemented the program specifically for these terrorists, in these circumstances, and for this period of time.”

Rodriguez claims the CIA could use EITs against detainees but the military should not use EITs on prisoners of war because he claims terrorists are not legitimate uniformed soldiers.

“...legitimate military personnel are covered by the Geneva conventions, whereas terrorists, such as those al-Qa’ida leaders we held, are not. There is a vast difference between a soldier carrying out orders of his country and a mass murderer intent on inflicting horrific casualties on members of the public.” - Page 243 of Hard Measures

This is a tragic misreading of the Geneva Conventions. Explaining the Geneva Conventions in full would take a lot of effort and time, which is beyond the scope of this video. Let’s just take a look at the most relevant parts of the Geneva Conventions.

Geneva Conventions

For those who have never read the Geneva Conventions, the Geneva Conventions are comprised of 4 conventions:

• Geneva Convention 1 on wounded and Sick in Armed Forces in the Field

• Geneva Convention 2 on wounded, sick and shipwrecked of armed forces at sea

• Geneva Convention 3 on Prisoners of war

• Geneva Convention 4 on Civilians

All four conventions were signed in 1949. Additional protocols 1 and 2 were signed in 1977 and 3 in 2005. All four conventions have common articles, which are articles 1, 2 and 3. Articles 1, 2, and 3 are the same in all 4 conventions. Article 1 states:

The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.

Article 1 is pretty self explanatory. Article 2 states:

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Article 2 talks about when the Geneva conventions apply. It covers all the bases. The most important article is article 3, which states:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat [out of action/combat] by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

b) taking of hostages;

c) outrages upon personal dignity, in particular humiliating and degrading treatment;

d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

The Geneva Conventions protect everyone who is not taking an active part in the conflict. Al-Qu’ida detainees are protected by the Geneva Conventions even if they are not prisoners of war. The protections given to the uniformed soldiers are not exclusive to them. It says it. Right there. Page 2, of every Geneva Convention.

EITs would violate the Geneva Conventions if used against prisoners of war as Rodriguez correctly states. Conduct that violates the Geneva Conventions against prisoners of war violates the Geneva conventions against everyone else who is also not a prisoner of war.

Al-Qu’ida detainees, even if they are terrorists, are protected persons because they cannot take part in active hostilities towards US soldiers and civilians by the virtue of their detainment.

The Geneva Conventions allow the interrogation and detainment of prisoners of war for the purpose of gathering military intelligence. Of course, conduct of interrogations and detainments must observe Geneva Conventions, which would prohibit EITs as Rodriguez correctly asserts when thinking about the US military.

The Geneva Conventions were designed to limit the most deleterious effects of war from affecting those not taking part of the conflict. It would not make sense for the Geneva Conventions to tolerate loopholes that create whole new classes of people not covered by the conventions. That’s why there is no such loophole. There is no group of people to which the protections do not apply. If you are out of the fight, from injury to surrender, detention, and so on, you are protected by the Geneva Conventions without exception. Terrorists, because of their actions and violence against civilians, do not suddenly become exempt from the Geneva Conventions, or become a group of persons to which the protections of the Geneva Conventions do not apply. The Geneva Conventions apply to everyone. That was the point.

Anyone bringing up the argument that the Geneva Conventions don’t apply to terrorists or detainees at Guantanamo Bay, have not read the first 2 pages of any of the 4 Geneva Conventions. This includes people such as Jose Rodriguez, the former Chief Operating Officer of the CIA’s Counter Terrorism Center who was responsible for the CIA’s detention and interrogation program.

Let’s go back to EITs.

Or rather, things that weren’t even officially EITs but were used on detainees.

This brings us to rectal rehydration and feeding, which is a process of inserting a tube into the rectum of a patient and injecting a solution with nutrients. This wasn’t even an EIT. This was done in the name of nourishing detainees who were refusing to eat or drink. Supposedly, it was not safe enough for the CIA to restrain detainees to a bed or gurney to use IV drips, which is done in every hospital that treats unruly patients to medical bays in prison.

“Medical personnel who administered rectal rehydration did not do so as an interrogation technique or as a means to degrade a detainee but, instead, utilized the well-acknowledged medical technique to address pressing health issues.

The technique [rectal rehydration] was deemed safer than using IV needles with non-compliant detainees and was considered more efficient than a naso-gastric tube.

With respect to Majid Khan, in contrast to the Study’s account, our records indicate Khan removed his naso-gastric tube, which posed the risk of injury and other complications. Given this dangerous behavior, rectal rehydration was considered the most appropriate means of addressing the potential harm Khan might inflict on himself.”

- CIA comments on the senate select committee Intelligence Report on the Rendition, Detention, and Interrogation Program

The CIA officers, who had no problems restraining detainees to stress positions for hours on end, or put detainees in cramped boxes for days on end, couldn’t figure out how to safely restrain a detainee to a bed for a routine IV drip.

Unsurprisingly, rectal rehydration and feeding is not a well-acknowledged medical technique.

Here is an excerpt from a Washington Post article on the CIA’s rectal rehydration and feeding.

“For all practical purposes, it’s never used,” Thomas Burke, a Harvard Medical School professor and emergency physician at Massachusetts General Hospital, said in an interview. “No one in the United States is hydrating anybody through their rectum. Nobody is feeding anybody through their rectum. . . . That’s not a normal practice… Every day in the United States, health workers encounter uncooperative, belligerent or mentally disturbed patients who need hydration or sustenance. “And [in] none of them do we put a tube in their bottom,” he said. Burke said the idea of hydration is plausible, because the colon can absorb water. But the notion of feeding a person rectally has little physiological basis. “It doesn’t make any sense,” he said. “What we can say is that because nobody [in the medical field] would do it, it has to lead to the question of, what were they really doing?” he said. “We deserve a better explanation.””

Here is another response from Physicians for Human rights.

“Rectal hydration is never considered as a first-line form of therapy for rehydration or nutritional support. The large colon has the capacity to absorb fluids, but has a very limited capacity to absorb nutrients with the exception of glucose and electrolytes. Pureed food and nutritional supplements, such as Ensure, should never be administered rectally.”

Ensure is a dietary supplement. It is the kind of nutritional solution that would not work. But that is what the CIA used in rectal feeding. Ensure, and pureed food, all of which are known NOT to work in rectal feeding, which they shouldn't have been doing in the first palace.

What are EITs? EIT is a false cover, a misnomer designed to avoid not only the word: torture, but also abuse.

Public Perception of Torture

When reports of the CIA’s use of EITs began circulating in media around 2003, the American public was not used to the idea of debating the issue of torture. Torture was prohibited. It was something that other governments that Americans despised did, like the Iranian or the North Korean governments. Torture had a bad name, and rightly so. So when the American government, under the leadership of George Bush and Dick Cheney, contemplated the use of torture, they probably needed to call it anything but torture. Of course, the torture policies the CIA and the White House envisioned were much more humane, measured, and professionally administered than torture policies of Iran or North Korea, at least that is what would have liked to believe. Whether the American public would have supported the use of torture under the proper name of torture instead of EITs back then, is unknowable. However, with the benefit of hindsight, the rebranding of torture to EITs worked. The American public became exposed and convinced by the idea that for national security reasons, behaviors and conduct that they would under normal circumstances regard as criminal and immoral can be permissible. The rebranding worked so well that the facade of EITs no longer became necessary for the American public to support the use of torture. Now, half of the nation support torture, not EITs.

In 2017, Pew Research conducted a survey. The main question of the survey was this: “Thinking about US anti-terrorism efforts, which comes closer to your views? NO circumstances in which torture is acceptable OR SOME circumstances in which torture is acceptable?”

And 48% of the responses said yes, there are some circumstances in which torture is acceptable. 48% of americans believe torture as a policy is permissible. Not EITs. Not cruel or coercive methods. Roughly half of Americans support the use of torture, proper.

That half of Americans would explicitly support torture instead of EITs now would be troubling for the earlier defenders of EITs such as Rodriguez, if those defenders were genuine about their claims. Rodriguez claimed he supported EITs because they were not torture, and he opposes the use of torture. He opposes the use of EITs for the police and military as well. If Rodriguez was genuine about his beliefs, this would now put him at odds with the very segment of the American public that stood by him and the CIA’s use of EITs.

Let me quote Rodriguez one last time.

“If you were to sum up the overarching question about this period that we receive from our critics, it might be stated in three words: ”How could you?” How could you torture fellow human beings? The question stems from one of the most fundamentally incorrect “everyone knows” statements. “Everyone knows what you did was torture” Wrong.”

Rodriguez’s book was published in 2012. I don’t think he expected half of America to not care anymore about the torture designation.

Back to the hypothetical scenario

Let’s go back to our original scenario one last time. The police had a suspect, and the interrogator slapped the suspect to get him talking. That single slap is by most measures, not torture. I would not consider that torture, but I would consider it physical abuse, or otherwise gross misconduct by the interrogator. People like Rodriguez wants to steer the discussion about EITs by asking just where the line is for a slap to become torture. But that's not the line that we should be concerned about. The line is the moral, ethical, and legal boundaries of normal interrogations, which would not permit the use of even a single slap. To claim that EITs are permitted because it does not cross the line into torture is moot, as the line that determines appropriate conduct had already been breached.

But is this rule absolute? Can there truly be no exceptions? What if the suspect had planted a ticking time bomb, and only he knows where it is? What if thousands of people’s lives depended on the interrogator to extract the information about the bomb? Would slapping a suspect be that immoral or impermissible in that case? The ticking time bomb scenario was designed to question the inviolability of the rules of normal interrogations. Rodriguez uses the ticking time bomb case in his defense of EITs too. And in my humble opinion, that was his biggest mistake in his defense of EITs, of which there are many mistakes. Keep in mind that Rodriguez supports EITs but opposes torture, and he also uses the ticking time bomb case to justify the use of EITs in exceptional circumstances but oppose the use of EITs by the police and military.

So, the police interrogator in our new ticking time bomb scenario decides that the situation he is in permits the violation of the normal rules of interrogation, and he proceeds to slap the suspect. But, at what point is the slapping supposed to stop now? The slapping would presumably stop when the suspect starts talking. The stopping point is when the suspect breaks, when he becomes compliant. If the suspect does not comply when subjected to abusive methods below the threshold of torture, the interrogator has no reason to not cross the threshold into torture. Rodriguez says the CIA stopped before torture. Why? There is no reason why the moral justification for EITs do not apply to torture and beyond. Why shouldn’t the police interrogator slap as many times as is necessary to get the suspect to reveal the location of the bomb that will kill thousands of people? Why should the interrogator not escalate the intensity of the techniques used from slapping, to sleep deprivation, electrocution, to sexual degradation and violence, waterboarding, permanent bodily mutilations, and even torturing the suspects innocent family members? Once the decision to cross the line is made, there is no line other than doing whatever is necessary to get the suspect talking.

So the line between EITs and torture, is even more nonsensical in the ticking time bomb context, because you wouldn’t stop at an arbitrary line between EITs and torture if thousands of lives are at stake. According to a moral theory underlying the ticking time bomb scenario, not torturing the terrorists who planted the bomb would be even immoral. Not torturing, could be morally wrong.

Hopefully, we got the whole “are EITs torture?” question out of the way, so that we can look at the moral theories regarding torture proper.

Defenders of EITs rarely develop theoretically sound moral arguments because of many reasons, some of which we looked at in this video. To defend EITs, you need to defend torture, and that is what Professor Fritz Allhoff does with consequentialist moral theory and the ticking time bomb scenario. But that is for the next video.