The Constitution Project: Task Force Report on Detainee Treatment

Nov 27, 2013

In many instances, U.S. forces used interrogation techniques which constitute torture; the nation's most senior officials bear ultimate responsibility; and there is no evidence that torture produced significant information of value. These are the unanimous conclusions of the task force on detainee treatment, as discussed here by two of its members.


JOANNE MYERS: Good afternoon. I'm Joanne Myers, director of Public Affairs programs, and on behalf of the Carnegie Council, I'd like to welcome our members and all of you who are joining us for the first time, especially the class of Roosevelt Scholars from Hunter College and their professor, Pamela Falk.

The program this afternoon is a bit unusual in that it is a discussion based on the findings of The Constitution Project's Task Force on Detainee Treatment. This task force came together as a bipartisan blue-ribbon panel that was charged with examining the federal government's policies and actions relating to the capture, detention, and treatment of suspected terrorists during the Clinton, Bush, and Obama administrations. There is a particular emphasis on the years after the September 11 terrorist attacks. The report was released on April 16, 2013.

We are very pleased that two members of this task force are with us to comment on this report, David Gushee and Brigadier General David Irvine. David Gushee is a professor of Christian ethics and director of the Center for Theology and Public Life at Mercer University, and David Irvine is a former military intelligence officer who actually taught prisoner of war interrogation and military law for several hundred soldiers, Marines, and airmen.

Before we begin, I think it just might be helpful to provide a context for this initiative and why it came about. In 2009, Senator Patrick Leahy, Democrat of Vermont, and others proposed that a national commission be set up to investigate the post-9/11 counterterrorism programs. President Obama declined, saying that he wanted to look forward, not backward. However, many others disagreed and felt it was crucial for our country to try to assess what the United States did in the years after 2001, how we behaved and how we should be judged. After all, as one of the chairs of this panel, Asa Hutchinson, undersecretary of the Department of Homeland Security and former chief of the Drug Enforcement Administration, said, "The U.S. is known as a nation that has a unique and historic character, and part of that character is that we do not torture."

Shortly thereafter, the Task Force on Detainee Treatment was convened by The Constitution Project, whose purpose was to generate a strong national consensus on the issue of torture. Why is this important? Very simply, if we as Americans condone the use of torture, it will not only reduce our standing as a nation in the world, it would dilute our capacity to convey moral censure when necessary and potentially increase the danger to U.S. military personnel should they be captured. We do not want to lose our moral compass.

Keeping that in mind, I will now turn the floor over to General Irvine, who will be followed in his remarks by Professor Gushee, and then a discussion with the audience will ensue.

Thank you, gentlemen, for joining us this afternoon.


DAVID IRVINE: We're happy to be here. I'm happy to be here. I appreciate seeing so many young faces in this audience.

The events that we examined in this report are unprecedented in United States history. In our previous conflicts there have been brutal acts against captives, as has been the case by armies and governments throughout history. But there is no evidence that ever before has there been the kind of considered and detailed discussions that occurred after September 11, 2001, directly involving a president and his top advisors, on the wisdom, propriety, and legality of inflicting pain and torment on certain prisoners in our custody.

All societies behave differently under stress. At those times they may take actions that conflict with their essential character and values. What once was taken to be understandable behavior can later become a case of historical regret.

Our task force proceeded from the belief that having as thorough an understanding as possible of what occurred during this period strengthens the nation and better equips us to cope with the next crisis and the ones after that. Moving on without such a reckoning weakens our ability to claim our place as an exceptional and exemplary practitioner of the rule of law.

We made a number of findings as a result of our two-year effort. All of these but one were unanimous. I just want to share with you a few of the most significant unanimous findings that this task force reached.

We found unanimously that U.S. forces in many instances used interrogation techniques which constitute—I underscore—torture. We conducted an even larger number of interrogations that involved cruel, inhuman, or degrading treatment. Both categories of actions violate U.S. laws and international treaties. The conduct that I'm going to share with you in a few moments is directly contrary to the values of the Constitution and the nation.

A second finding unanimously made: The nation's most senior officials, through some of their actions and failures in the months and years immediately following the September 11 attacks, bear ultimate responsibility for allowing and contributing to the spread of illegal and improper interrogation techniques used by some personnel in several theaters. Responsibility also falls on other government leaders and military leaders.

Third—this is really critical—there is no firm or persuasive evidence that the widespread use of harsh interrogation techniques by U.S. forces produced significant information of value. There is substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable.

I want to emphasize this next point very, very strongly: We relied on open-source public records to build this report. It's a 600-page report. We had no access to classified information. However, from the public record, we were unable to find any evidence—any evidence—that torture produced more useful information than could have been gained through conventional interrogation techniques, nor could we find any evidence in all of the public record that information adduced through coercive interrogation, through torture, actually saved lives. And that's critical.

The next finding: U.S. officials at CIA black sites committed acts of torture and cruel, inhuman, and degrading treatment.

Next finding: Lawyers in the office of the Justice Department's Office of Legal Counsel repeatedly gave erroneous legal sanction to certain activities that amounted to torture—cruel, inhuman, and degrading treatment—in violation of U.S. and international law. In doing so, these lawyers did not properly serve their clients, the president, or the American people.

I want to just say that these lawyers—and there are about five or six of them—took pains, as they were crafting this justification for torture, to exclude from any of these deliberations anyone who held a dissenting point of view and anyone who had any substantial experience with interrogation or the laws that would have prevented the kinds of techniques that they later approved.

A lot of people, when we talk about enhanced interrogation—and that's a euphemism. We use this as a linguistic euphemism to describe acts which really, if we think about them, look at them, and consider how they were applied, amount to torture.

In any event, most people have no idea what we actually did to people who were in our custody. I have shared with you on this slide things which, from the public record, were practices that were used by U.S. personnel or our surrogates in the 10 years since 2001, either singly or in combination, simultaneously. image from slide on The Constitution Project

I think people have heard us talk about waterboarding as an enhanced interrogation technique. They have heard about stress positions. They have heard about this, they have heard about that. But I would be surprised if very many of you in this room would have been aware that our forces, our people, our agents, governments with whom we contracted, behaved in this manner with many of the individuals who were either captured on the battlefield or who were sold to us for between $4,000 and $9,000 a head as persons who were allegedly involved with al-Qaeda.

I had a chance to speak with a group of university students a couple of weeks ago, who had read this report in pieces together. I was curious what the reaction had been. They said it was like watching an old World War II movie, except that this time we were the Germans. That was an interesting observation, I thought.

Let me share with you a comment that is pretty significant. Abu Ghraib shocked the nation, shocked the world. This is what Colin Powell, secretary of state at that time, had to say about it: "Watch America. Watch how we deal with this. Watch how America will do the right thing. Watch what a nation of values and character, a nation that believes in justice, does to right this kind of wrong. Watch how a nation such as ours will not tolerate such actions. They will see a free press and an independent Congress at work. They will see a Defense Department led by Secretary Rumsfeld that will launch multiple investigations to get to the facts. Above all, they will see a president, our president, President Bush, determined to find out where responsibility and accountability lie, and justice will be done."

This is what Secretary Powell was saying to the world that the world could expect as our reaction to the photographs at Abu Ghraib. When those photographs were published, we really had no idea of what was on that laundry list of interrogation techniques that I showed you earlier.

I need to say about those that when the Justice Department lawyers enabled the president and the secretary of defense to establish a regime of coercive interrogation, they approved a half-dozen "enhanced interrogation techniques." Many of the items that you saw on that list were not part of that list of approved techniques. We got from stress positions to burning with cigarettes, to mock executions, to object rape, to mutilation and the whole host of other despicable acts in violation of international law because of something that I'll call "torture creep." We determined that the Geneva Conventions would not apply in Afghanistan. They always applied in Iraq, but that didn't keep us from abusing and killing people who were in our custody, who were entitled to the status and protection of the Geneva Conventions.

But we said Geneva no longer applies. Then we failed to replace the protections of the Geneva Conventions with any clear guidelines that would tell people who were involved in prisons and prisoners and interrogations in custody what they could or could not do. So a lot of them just made it up as they went.

I sat through a court-martial of Major General Abed Mowhoush, who was an Iraqi major general, who was beaten so severely by U.S. forces that he had several broken ribs. He was then waterboarded by an Army interrogator. He was then trussed in a sleeping bag, to the point that within about 20 minutes he suffocated. This sleeping bag technique had been suggested to the interrogator who was in charge of the investigation by a very young soldier, who said, "You know, when I was a kid, my older brother scared me to death by tying me up in a sleeping bag. And I think if we do this, we'll get him to talk."

Well, he didn't talk, and we killed him. We have killed several people who might have been in a position to give us useful and actionable intelligence, if we had had the sense to use conventional methods of interrogation that have served us as a nation, as an army, so very, very well for the last 60 to 70 years. But we abandoned that, and in its place, we set up a structure that got out of control, that has cost us dearly in terms of our status in the world, our ability to encourage our allies to support us.

One of the things that we determined as we interviewed many, many people who were part of the experience of the last 12 years—one of them was Alberto Mora, who was the secretary of the Navy during this unfortunate period. [Editor's note: Check out Alberto Mora's Carnegie Council speech on unlawful cruelty towards terror suspects.] He was a hero, who stood up and said, "This is wrong. We shouldn't be doing it. We're going to regret what we do."

Mr. Mora was at a conference, and there were present at this conference the senior military judge advocates for many of our allies—Great Britain, Australia, New Zealand, Canada. He said, "It was really, really uncomfortable for me to be standing there and have these officers come up and poke me in the chest and say, ‘You know, we've worked with United States forces for years and years and years. We are your strongest, most consistent, most reliable allies. We know you people. We like you. We want to work together. But we can't have anything to do with how you're treating prisoners in your custody. We can't turn people over to you because of the way you are abusing them. It's not that we don't want you to get information, but the way you are conducting interrogations and the way you are treating people in your custody is illegal, and we can't do it as a matter of protecting the politicians and our leaders nationally, because, for us, it's a criminal act and it's against the law.'"

Thank you very much. It's nice to be here. Professor, it's yours.

DAVID GUSHEE: It's an honor to be a part of this conversation. I have some prepared remarks that I would like to share.

The sad record of human history shows that torture has more often been the rule rather than the exception in what has passed for criminal justice systems and in international conflicts. I was reminded of this last week. I was in Europe on a vacation, a Rhine River cruise—because, after all, if you watch Downton Abbey, you have to, therefore, go on a Rhine River cruise. So that's what we did, a little vacation. They took us to Marksburg Castle, way up over the Rhine River. Unexpectedly, one of the rooms they took us to was the torture room. I realized this was the third time I had been in a European site where they introduced us to the torture room: one in London, the Tower of London, one in Marksburg Castle, and one in Warsaw, where they had a memorial to the abuses of the Nazis in Warsaw.

That triggered the following reflection: Torture has more often been the rule rather than the exception in human history.

What motivates people to torture, or governments to torture, varies. Sometimes people torture because it just demonstrates their power. Torture can wreak vengeance. Torture intimidates. Torture punishes. Torture coerces. Torture harms. And sometimes really what motivates torture is the sheer pleasure of doing harm to a powerless person.

Yes, torture is sometimes deployed to elicit information or confession—or, in the euphemism or the favorite phrase to the last 10 years, actionable intelligence. This was the official reason why we tortured after 9/11. But I think the other factors on the list should not be dismissed.

Torture appears to come all too naturally to humanity. I was introduced as a Christian ethicist, and I am that. The category that I have in my tradition for the distorted character of humanity is "fallenness." Human beings are pretty messed up. One expression of our "messed-upness" is the way that we so routinely torture people when we have the opportunity or the motivation to do so.

So torture is a more or less ubiquitous feature of human history. One way to talk about the ethics of torture, and what we did in our Detainee Task Force report, is to start with that history, that nations and peoples have often tortured, that it has more often been the rule rather than the exception.

If we start there, it turns our conversation upside down in what maybe is a constructive way. Instead of asking why the U.S. drifted into torture after 9/11—a factual claim that is really indisputable and is documented in nauseating detail in our report—the better question might be, what was it in the culture, law, and moral values of the United States that usually prevented us from torturing our enemies in the past? What made us different in the past? If we could discover what that was and how we lost sight of it, we can perhaps be strengthened nationally so that torture is never again deployed by our country.

When framed in this way, the question invites a kind of sad celebration of a great national achievement of our past. That achievement is that, unlike most countries in history and certainly unlike most superpowers with vast militaries, the United States has not routinely resorted to torture in our 237-year history. Given the dark record of human history, this is something to celebrate. This would mean, then, that our resorting to torture and brutality after 9/11 was aberrational. But it is only likely to remain aberrational if we work at it, if we reconnect to our heritage and understand why we strayed from it after 9/11.

In no particularly systematic way, I want to offer 10 elements of cultural heritage in the United States that I think kept us from torturing routinely—not that we didn't mess up sometimes, but not routinely—and that can be deployed again in the future.

First, a constitutional and legal tradition. We have a ban on cruel and unusual punishment in the Eighth Amendment. Other amendments make similar claims. We have statutory law banning torture explicitly. So we have a lengthy constitutional and legal tradition that explicitly bans torture. This is a sturdy place to start. A lot of countries don't have this.

Secondly, we have military traditions that banned torture from the very beginning. We have the example of George Washington and his restraint during the Revolutionary War. We have, relatively speaking, I would say, a highly disciplined military culture that has developed over two centuries, very careful programs of military training, the Uniform Code of Military Justice, the Army Field Manual, traditions of honor and accountability in the military. I have learned a lot about this through the impressive encounters I've had with military leaders like General Irvine in the years that I have been studying this issue.

Third, we have a founding narrative of having come out of British despotism and not wanting to develop such despotism in our own life. Founding narratives can be very powerful. Founding narratives tell us who we are, where we come from, who the enemies were, how we had to be liberated from those enemies. They speak both of who we want to be and who we don't want to be, where we want to go and where we don't want to go.

Fourth, there's the legacy of deep U.S. involvement in the development of international law—the United Nations meeting on our soil, which we strongly supported the founding of, the Geneva Conventions and the various conventions against torture. When these ban torture explicitly, as they all do, the United States was involved in helping to craft all of that and support all of that structure. We supported these treaties, we signed these conventions, and we wrote our own statutory law accordingly.

Fifth, a due regard to the opinions of mankind, to borrow some language, respect for other nations, a desire to be a leader in the world—not just any kind of leader, but a leader in that part of the world that is making progress towards civilized values and away from tyranny and barbarism.

Sixth, a democratic process with checks and balances built into the Constitution and all structures of government at every level: separation of powers, judicial review, the idea that there is accountability, that everyone looks over everyone else's shoulder, disdain for absolute power of any type.

Seventh, realism about human nature and its tendencies towards domination and tyranny and abuse. People who believed in fallen human nature helped to write the Constitution, and it shows. They put lots of checks and balances in place.

Eighth, a free press and an active civil society committed to shining a light into possible areas of abuse and to press for reform.

Nine, medical traditions in what has been described as the Judeo-Christian Hippocratic line. Resistance of medical professionals to participating in abuse or brutality was strongly reinforced after World War II and the abuses of the Nazi regime. Then broader professional ethics standards in other fields, like the law, helping to yield traditions of professional integrity and independent judgment—in other words, we have professional ethics traditions.

Finally, tenth, we have religious traditions emphasizing human dignity, human rights, and human solidarity, which is basically the idea that all human beings are connected to every other human being and what happens to anybody should matter to all of us.

I thought of this image in light of the storms that hit the Midwest recently. Having these 10 resources in our cultural heritage is something like having a 225-year-old oak tree in your front yard. Such a tree can withstand many fierce storms because it's sturdy, it's deeply rooted, it has been there a long time. But as we have, sadly, seen recently in the Midwest, a strong enough tornado can challenge even a very sturdy old tree.

The 9/11 attacks were like a tornado. It challenged our old oak tree of tradition and Constitution and values, and that tree bent in the gale. Some would say it was destroyed. It certainly bent. Now, with closer direct reference to the report, let me tell you the ways in which I think it bent, in which all of those 10 elements were subverted or weakened.

First, I talked about constitutional and legal traditions. Our report documents in detail how lawyers in the Justice Department, undoubtedly under a great deal of pressure from the White House and with a great deal of worry over national security, weakened longstanding legal absolute prohibitions of abuse and torture, using euphemisms and legal reasoning that looks very bad in the light of day. So the legal traditions were weakened.

Military traditions. Under pressure, as our report shows, both military leaders and the civilians who directed them weakened military bans on abuse and torture and sometimes simply left military personnel to improvise, with disastrous effects. Other U.S. security agencies, including the CIA, with far less history and far less discipline, played a disproportionately large role in the worst abuses.

Third, that founding narrative of despotism and resistance. Unfortunately, our national leaders did not call us back to that narrative, but, instead, embraced a narrative of existential crisis and a by‑any-means-necessary response. "We have to go to the dark side," they said. They chose a narrative of panic and improvisation, because this is a new kind of war, they said, rather than a narrative that we have the tradition and we have the history that gives us the resources necessary to respond to this challenge with poise and in keeping with our own values.

Fourth and fifth, international law and global opinion. Unfortunately, after the attack, the leaders in power chose a general path of disdain for international law and treaty obligations and disregard for global opinion. This posture, though, had long predated 9/11. I can't tell you how many rooms I've been in in which people laugh at the United Nations or international treaties or conventions or whatever. That, I think, laid the groundwork for what happened.

Sixth, checks and balances. Unfortunately, as our report documents, national security and secrecy habits kept much of the abuse hidden for several years. Checks and balances did not function very well. Congress did little to exercise checks on executive power. The courts were also very deferential, though they did a few things. On the whole, general principle: Executive power prevails in national security crisis situations, unless the executive bends over backwards to invite review and to set limits. And often that's precisely what does not happen in crisis situations.

Seventh, realism about human nature, including our own fallibility. Despite being led—and here I'm going to speak some Christian language—despite being led by a self-identified Christian president, you may remember, national realism and humility about our own fallibility did not prevail. We were the aggrieved victims, entirely innocent; they were evil. We can be trusted to improvise in the dark; they have no particular rights that must be respected. This is perhaps a reminder that the deep theological and moral underpinnings that have helped to shape our political system and our culture are vulnerable to being lost via neglect, at any time.

Eighth, a free press and an active civil society. I'd be interested to see what any media people here would say about this, how the media performed after 9/11. In some ways, I think the media and civil society did better than any other sector. It was investigative journalists that began to uncover a lot of what was going on, at the earliest stages. Civil society organizations like The Constitution Project and others have been doing analysis and research and reporting from very early. So we should be grateful for our free press and an active civil society, and need to protect it.

Ninth, the medical and professional ethics traditions. Our report pays special attention to disturbing failures of medical and legal ethics. The participation of medical professionals in monitoring and facilitating abuse is well-documented here. The failures of legal professionals have already been noted and are noted strongly in the report.

One interesting detail that I was reminded of when I was reading this again today: The Pentagon classified medical professionals in some places as non-medical combatants so that they would not be governed by medical ethics. Very interesting. That's the detail that illuminates some things that went wrong there.

I should also note that dissenting medical, legal, and other professionals played a key whistle-blowing role. They were not bent too far in the wind. They knew what their traditions of professional integrity demanded of them, and so they protested.

Lastly, religious and ethical traditions. There is much to applaud about the way religion and ethics functioned after 9/11 and much to lament. Religious and ethical values like human dignity, human rights, and human solidarity were activated and mobilized by numerous clergy, lay people, denominations, and various groups, some of which remain active today. I was a leader in the Christian effort to protest torture at the time, and being a part of this drafting process only reinforced my convictions.

But I should say, especially as an evangelical Christian, that my involvement in this work led to ferocious opposition from former friends in the Christian community, whose ethics, in my view, got blinded by partisan loyalty and by versions of Christianity that did not apparently emphasize human dignity, human rights, and human solidarity. In the face of such opposition, I was especially encouraged to find sturdier ethics among military and legal, medical, diplomatic, political, and other professionals, some people of faith and some not.

Despite the release of our report in April, it certainly cannot be said that the United States has come to terms with the breach of our own traditions and laws after 9/11—and somewhat before, actually. When the attacks began in the mid-1990s, some things began to go wrong. The government as a government has not faced up to its failures or to its responsibilities. Accountability for wrongs done and harms done to people has been sparse. Public opinion remains frighteningly divided on the morality of torture. Whether the United States will remain an exceptional nation in preserving a rare and beautiful heritage of resistance to torture or whether we will sink into the general morass of history with all of its torture museums is an unresolved question. This is a disturbing observation but, I think, an entirely true one.

Thanks for taking the time to be here this evening and think about these issues with us.


QUESTION: Good evening. Philip Schlussel.

Would you agree that lack of direction from the top of the executive branch should bear most of the responsibility? I'm speaking about the president and, perhaps especially, the vice president.

DAVID IRVINE: I would characterize that not as a lack of direction. Unfortunately, it was a positive direction down an inappropriate path. Yes, we wrestled with this as a task force. Again, it was a unanimous finding, by a bipartisan, nonpartisan in many cases, group of pretty impressive individuals, that this began, was initiated at the highest levels of our government, including the White House.

DAVID GUSHEE: The first finding of the report is, yes, we really did torture. The second finding is the senior-most level of our government bears direct responsibility.

It wasn't just drift. This was the discovery. It wasn't just leaving people to improvise. There were decisions made in the White House, at the cabinet level, that directly led to what happened, and then some other improvisation that happened below that as well.

QUESTION: I'm Richard Sloan.

General Irvine, could you just briefly describe your background that makes you relevant to this issue and, a little bit more than you just did, describe the composition of the committee that wrote the report?

DAVID IRVINE: I'm going to let David work on the membership of the task force, because there were a number of folks involved. I'll just say that I spent 18 years holding a faculty assignment with a satellite of the United States Army Intelligence School. During that period of time, I taught prisoner of war interrogation and military law to 1,000 or 1,200—I have no idea at this point how many precisely there were—soldiers, Marines, and airmen. My background in the military was as a strategic intelligence officer. I suspect that had something to do with my membership on this task force.

DAVID GUSHEE: Quickly, the co-chairs of the committee were Asa Hutchinson, who was introduced earlier; James Jones, who was U.S. ambassador to Mexico and a Democratic member of the House; Sandy D'Alemberte, president of the American Bar Association and president of Florida State University; Richard Epstein, who is a law professor at the University of Chicago, mainly; Azizah al-Hibri, who teaches at T .C. Williams School of Law, a human rights specialist; Claudia Kennedy, the first woman to be a three-star general in the U.S. Army; Ambassador Thomas Pickering, who has been a U.S. undersecretary of state and ambassador in a number of places, including the Russian Federation, India, and Israel; William Sessions, who was FBI director; Gerald Thomson, medical professor at Columbia. He helped keep the medical ethics issues in view for us. That was the final composition of the task force. It was really an extraordinary group.

DAVID IRVINE: I'm not sure how I got in the door there, when I listen to David talking about those folks. It was a really interesting group of people and a remarkable experience.

QUESTION: My name is Valerie Lucznikowska, and I'm a member of an organization called September 11 Families for Peaceful Tomorrows. We're the only 9/11 family member group that advocates for peace and for closing Guantanamo.

What I'd like to know, Brigadier General Irvine, is, do your colleagues on this report or others that you know—and I know you've worked with The Constitution Project; I believe you've worked with them at other times—do any of you believe, or do you know this, that there is an opportunity, perhaps once Guantanamo is closed and now that the Senate has passed the National Defense Authorization Act for 2014 with the provisions intact to make the transfer of prisoners possible—if the House passes it—do you think there's any chance of a truth and reconciliation commission or group, as I say, not this second, but perhaps sometime in the future? Of course, with such terrible things happening, with torture—who did it? Why? We should be able to know. There should be some justice there for the people who were tortured as well. They're human beings.

DAVID IRVINE: I appreciate you asking that question. It's one that we struggled with and wrestled with.

This is my opinion. David may have a differing opinion. My opinion is that it is probably unlikely that we are ever going to see the establishment of what you described as a truth commission. The momentum that might have made that possible a few years ago seems to have dissipated with President Obama's determination and decision not to look backward, but to look forward.

The only accountability that I believe we may see for what happened, how it happened, would be for the Senate Select Committee on Intelligence, which has looked at these issues in much greater depth than we did and with full access to classified interrogation reports of the Department of Defense and the Central Intelligence Agency—that 6,000-page report has been completed. It was forwarded by the Senate committee to the Central Intelligence Agency for a response. The CIA response has been that this is erroneous for all kinds of reasons, it shouldn't be made public, and so on and so forth.

However, there's going to be a vote taken perhaps in mid-December about whether that report should be released in whole or in part. How much might be redacted—we have no idea what will happen.

I suspect that that is likely to be the only measure of accountability, not with respect to individuals who may have done various things, but institutionally with regard to what kinds of practices were employed, whether they were useful or not useful, and whether they were or were not violations of federal or international law.

DAVID GUSHEE: Which means that thousands, perhaps, or certainly hundreds of people who were mistreated will never really have their day in court, that people who ordered what we concluded on the basis of extraordinarily thorough research were violations of our own laws will never be prosecuted, because it's politically impossible to do so or the will is not there.

We may be surprised. It may be that just the right kind of political situation in 15 or 20 or 25 years could lead to a reopening of this.

I do believe that the fact that it is unlikely that we will have more than a report like this or a Senate select committee report, further journalism—it's a serious blow to the rule of law in the United States. All of us should be aware that that's how democracy begins to fade, when the rule of law is undercut in this way. That's clear to me.

QUESTION: General Irvine, Dr. Gushee, thank you very much. My name is Michael Bellamy. I'm a sophomore in the Roosevelt Scholars Program at Hunter College.

Dr. Gushee, you mentioned that one of the reasons for torture was for the torturer. General Irvine, you mentioned that torture didn't work. Often we would not get information from torture; we would kill the victim or we just would get false information. I can imagine that the military higher-ups did not torture people themselves. So why would they sanction torture if it didn't work?

DAVID IRVINE: Briefly, I believe the group of people who developed the torture regime were sold a bill of goods by other people, who maybe meant well but had no military experience, no interrogation experience, no experience with Arab cultures, and not a very clear understanding of law.

The process that got us to this point was a feeling that the nation had been attacked, that we were likely to be attacked again. The world is a dangerous place. There are people out there who want to do damage to us. New York bore the brunt of the September 11 attacks. So there was probably a general feeling that began with a proper motive and devolved into something else. The something else was a belief that you could shortcut the path to truth by breaking people's will.

So this little group took the advice of a couple of psychologists who had some experience with the military SERE program—survival, escape, resistance, and evasion. This is a program that developed after the Korean War because of the concern about American pilots, particularly, being captured by an enemy force and being subjected to coercive torture in the interest of producing false confessions of criminality or having committed war crimes. So it was believed that if you could reverse-engineer those SERE principles—which really had been taken from the most dictatorial regimes of the 20th century in Germany, China, and North Korea—reverse those techniques and that will teach us how to quickly break the will of someone who doesn't want to tell us where the ticking bomb is buried. And we've got to get this information, and get it that fast, to save lives.

That was a really, really horrendous decision on various people's parts, and it ignored the entire history of interrogation experience, in this nation and others, that would have said, if those experts had been listened to, that you get far more information that's useful, and more quickly, by treating people humanely. We have had a lot of experience with that, and we do it very, very well. We have nothing to show for having embarked on the path of coercive interrogation.

DAVID GUSHEE: I would jump in here, saying I'm increasingly wondering whether it really was about interrogation. Torture works if what you want is to demonstrate power over a powerless person. It works if you're really angry and you want to make somebody suffer. It works if you want to see somebody very afraid of you and if you want to inflict pain. In other words, I think that, especially in the theaters of war—like in Iraq, you had an active war zone with a lot of people getting killed and getting hurt. It's an especially inflammatory environment for soldiers. I think that's one reason why you have to have absolute bans on torture.

Torture works for those subsidiary goals. I think that's one reason why it was deployed. If you want to do a little psychology here, I think we were, after 9/11, enraged, grief-stricken, felt violated and powerless, and were in a lash-out mode. I think the resulting torture was, in part, about national lashing-out after 9/11 more than it was about interrogation.

DAVID IRVINE: Let me add a quick footnote to that. The CIA over the years, going back many, many years, has done a lot of studies psychologically with regard to the old Soviet Union. There was a correlation between episodes in the Soviet Union of social unrest and a crackdown on social unrest, which implied, under the state regime, coercive conduct towards those who were thought to be a part of it.

What the Central Intelligence Agency determined was that, in analyzing photography of Soviet leaders at the time this unrest was going on and then after coercion had been applied, there were visible tells in photographs that suggested exactly what David has shared with you: that being in control, being able to torture someone under your control gives the torturer a real shot of adrenaline and self-confidence. That's a crude way to put it, but there is a body of evidence to support exactly what you have described.

QUESTION: Carol Perlman. Thank you very much. This was most enlightening, and it started me thinking.

It's obvious that the task force report is completed. Does the task force continue? Although we started with the Bush administration, cultures die very hard. It takes a long time. How many of these interrogation techniques could continue to be in process? At the end of the Obama administration, will we find that there has just been a different type of—I'll take "interrogation" out of the way—creating fear, demonstrating power, through drone attacks?

DAVID GUSHEE: One thing to say is that the report goes back to the Clinton years. One of our major findings has to do with the policy of extraordinary rendition. That began in the Clinton era.

Then there are a number of findings related to the Obama era. Towards the end of the report, we do mention drones. We don't attempt an analysis of drones, but we do say that, in a sense, drones solved the interrogation problem.

We tried to stick pretty close to our brief to investigate the treatment of detainees in the last three presidential administrations, but there are implications.

The panel does not officially continue to exist—I may be wrong about this—but we are continually asked to talk about what we found. I think it's imaginable that there would be follow-up beyond that.

But I do think that some toxins have been introduced into the body politic and into our practices that have not gone away. All sectors of society that care about the legacy of the past—the better legacy that I mentioned—need to be monitoring those toxins and hoping to ultimately get the better of them.

DAVID IRVINE: If President Obama were here this afternoon, I think, and were responding to your question, he would say we have moved beyond torture. We have prohibited it. We're no longer concerned that this is going to be American policy.

That statement, if he were to make it, rests on an executive order that he issued within a day of taking office in 2009. Of course, executive orders of any president can be erased or reversed by a successor with the stroke of a pen and the drop of a hat.

We're concerned, as members of the task force—and I think The Constitution Project has a lingering concern—that the architecture for torture still exists. The proponents of torture—they wouldn't call it that; they would say "enhanced interrogation"—the proponents of enhanced interrogation are still in the highest levels of the CIA and the Department of Defense. Institutionally, there has not been a commitment from the Central Intelligence Agency to go a different direction in a future crisis. I believe there has been a commitment from the Department of Defense. The cavalry has just arrived.

QUESTIONER: If I could just comment, I understand that an executive order was signed. My concern is, if you want to find another way to create fear, to demonstrate domination, whatever, to me it may be less messy, but nonetheless it is a tactic. It is, to me, maybe not an interrogation tactic, but it is a fear tactic with the increasing use of drones.

DAVID IRVINE: Let me just quickly respond to that. There is a lot we do not know about the nation's drone policy because it's classified. However, as a general proposition, we need to be concerned about a couple of things. One is, what are the elements for determining who is a legitimate target for targeted killing? We haven't had, as a nation, as a Congress, a sufficient discussion of that question to really be able to address it in a responsible way. We need to have that discussion at some point. We didn't have that discussion as a task force. It was beyond our brief, and so we didn't really address it.

QUESTION: I'm Claire Bleiller. I am also a sophomore at Hunter College in the Roosevelt Scholarship Program. I just thank you so much for being here.

I know that both of you briefly touched upon the consequences of our actions with other nations. You said I believe it was the secretary of the Navy stood up and had other countries coming up to him and saying, "We cannot support this."

Is there anything harsher coming out of other nations than just kind of a slap on the wrist, "We don't approve"? Have any other nations threatened any kind of legal action or anything of that sort?

DAVID IRVINE: The blowback in other countries over what we got them involved in continues to ricochet around the borders of several countries, in Europe and elsewhere. Nations that were hosts to the black sites that were used by the CIA are having significant internal difficulty with what happened.

We suspect that one of the reasons the Senate committee report may not see the light of day is because of agreements that were made between the United States and other nations that hosted those sites to keep their national involvement a secret. It's not a secret at this point. It's an open secret.

Just a quick comment about other matters of litigation that have some interesting bearing on this. David mentioned the rendition program that was involved. Somehow, even though we said we were at war with al-Qaeda and with the Taliban, we managed to use CIA assets to transport Libyan revolutionaries who were opposing the Qaddafi regime. These guys were arrested or snatched in other places around the world. The CIA flew them back to Libya and turned them over to Qaddafi, where they were imprisoned and tortured. Some of them now hold positions of significant responsibility in the Libyan government, and we're working with them. So what goes around comes around.

But there have been some lawsuits filed against British officials for their kidnapping and their torture at the hands of the Libyan government under Qaddafi. One of the guys who was involved in this litigation has offered to settle the case. Here are his terms: "I'll settle it for the equivalent of about five American dollars, plus an apology." That's never going to settle, not because they can't afford to pay it, but because nobody wants to apologize for it.

DAVID GUSHEE: Our report lists black sites in Afghanistan, Iraq, Thailand, Poland, Romania, Lithuania, Morocco, Kosovo, Djibouti, and Somalia. One of the interesting ways I look at this is that we are related to much weaker nations and enticed or coerced their partnership in these activities, thus morally compromising them and their governments—you might say morally corrupting them and their governments, or at least involving them in actions that our report finds unsupportable.

So there is continued fallout related to the large number of other nations that we involved in this program. Most people don't know much about the breadth and extent of that.

DAVID IRVINE: Another quick note. I was at Guantanamo a few weeks ago. This report would be treated as classified information if it were at Guantanamo, because information about the Guantanamo prisoners' place of arrest, detention, and interrogation is considered classified. Even though we used open sources for this information, if the lawyers for the defendants in the Guantanamo military commissions try to quote from this report, they cannot do so, because that would be confirming or denying information that is classified. It's a very, very curious proposition.

QUESTION: Hi. My name is Gabriella Cook-Francis. I'm a freshman with Roosevelt House. Thank you so much for speaking with us this evening.

You talked a little bit about the United States' relations with the international community. In light of the Arab Spring, we've seen a generation of Middle Easterners who are interested in changing their national policy, but who also have grown up with the reality of U.S. war crimes and crimes against humanity. Can you talk a little bit about the importance of the United States addressing and taking responsibility for what we've done in terms of moving forward with foreign policy in these nations?

DAVID IRVINE: In April 2012, some of us were in London to interview three former Guantanamo prisoners, one of whom was Moazzam Begg—an interesting guy. He said to us in that interview, "As long as you have Guantanamo on your books and open, you are writing off an entire generation of Arab Islamic people. The longer you leave it open, the longer this goes, the quicker you—meaning the United States—are going to be seen as irrelevant in this world." That's an interesting indictment. I think he was on to something. A really, really interesting fellow.

GINNY SLOAN: I am Ginny Sloan. I'm president of The Constitution Project, and I just want to thank our panelists and say how we proud we are of this report. It is the only report out there of its kind. If you want to know more about The Constitution Project, you can go to and see the other work that we do.

I want to especially thank the Carnegie Council for hosting us tonight. It has been a very provocative discussion, and we really appreciate it. Thank you very much.

JOANNE MYERS: I just want to say thank you to both Davids for resetting our moral compass. I would like to invite the rest of you to come and continue the conversation. Thank you.

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MAR 11, 2010 Journal

Ethics & International Affairs Volume 24.1 (Spring 2010): Essay: The Politics of Punishing Terrorists [Full Text]

Debates about trying and punishing terrorists reveal how the failure to construct a shared normative consensus in international criminal justice continues to bedevil the international ...

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