Nearly a century and a half after the fact, Robert Redford has renewed the debate, in his movie The Conspirator, over whether the government was right to prosecute and execute Mary Surratt for conspiracy in the assassination of President Abraham Lincoln.
Historical debates over wartime policies like this one are peculiarly durable because the legal and ethical issues are so stark and the stakes so high in getting the answer right or wrong. So decades from now, Americans will still be debating whether the U.S. government under President George W. Bush was right to use torture against some number of “high-value” detainees in the so-called global war on terror.
The debate, which has gone on inconclusively since the first disclosure of the Bush administration’s “enhanced interrogation techniques,” resumed last week after the killing of al Qaeda’s founder and leader Osama Bin Laden [May 1]. Former vice president Dick Cheney and former Justice Department official John Yoo, among others, re-emerged into public view to credit the success in the decade-long hunt to the former administration’s policies, including what Yoo called “tough” interrogation techniques.
The Bush alumni’s argument rests on one dot out of the many that were connected only after years of painstaking intelligence gathering and surveillance. Writing in the Wall Street Journal (May 4), Yoo contends that the key to the success was learning the identity of Bin Laden’s trusted courier, known as Abu Ahmed al-Kuwaiti, from two al Qaeda detainees subjected to the tough interrogation: Khalid Sheikh Mohammed, the architect of the 9/11 attacks, and his successor, Abu Faraj al-Libi.
The argument has several weak spots. First, al-Kuwaiti’s identity apparently was first gleaned not from KSM or al-Libi, but from Hassan Ghul, a detainee captured in Iraq, held at a secret CIA prison, and, yes, subjected to some coercive interrogation. Ghul’s information was “the linchipin,” one U.S. official told the Associated Press, but he did not put the courier in direct contact with Bin Laden. Second, by this account KSM and al-Libi helped identify al-Kuwaiti and his significance not by answering questions but by refusing. Their determined silence about al-Kuwaiti convinced CIA agents they were on to something.
Whatever KSM and al-Libi said or did not say about al-Kuwaiti, critics of the Bush administration policies emphasize that the clues came not during or immediately after their rough treatment, but some time later. The time interval, they contend, shows that conventional interrogation yielded the crucial information, succeeding eventually where waterboarding did not.
The reply to that argument: waterboarding is not designed to elicit information in the moment, but to secure cooperation later. That reply has a flaw as well: it would prove that torture — once applied — always “works” whenever useful information is obtained later regardless of the methods used.
For now, the arguments are raging without a full disclosure of the facts and circumstances surrounding the KSM and al-Libi interrogations or the intelligence and surveillance that ensued. Writing in The New Republic (May 5) , lawyer and law professor Joseph Marguiles, a leading critic of and litigator against the Bush administration detention policies, called last week for President Obama himself to confirm whether torture was used to find Bin Laden or not.
Marguiles reviews the authoritative but contradictory statements issued after Bin Laden’s death by presumptively knowledgeable current or former officials. Jose Rodriguez, head of the CIA’s counterterrorism center from 2002 to 2005, tells Time that the “lead” information definitely came from KSM and al-Libbi. Sen. Diane Feinstein, the California Democrat who heads the Senate Intelligence Committee, says “none” of the intelligence came from what she called “harsh interrogation practices.”
History suggests that this argument will continue even after (if?) the facts are fully laid out. But facts are unnecessary to expose the overarching flaw in defending torture based on Bin Laden’s death. The argument simply has no stopping point.
Pressed with the legal and ethical arguments against torture, defenders of the practice resort to the “ticking time bomb” hypothesis. A prisoner with information about some large and imminent threat to life and limb, the argument goes, should be questioned without restraint until the information is divulged. The hypothesis is more the stuff of fiction than of real life, but in any event does not fit the hunt for Osama Bin Laden.
In hiding somewhere, Bin Laden was a threat, but not a ticking time bomb. Nor was the torture of second- or third-level operatives close enough in time or place to match the hypothesis. And to defend the use of torture to track down Bin Laden is to suggest that the same techniques could be applied to track down al Qaeda’s next leader — and the next and the next until the war ends. .
As history, The Conspirator plays loose with some of the facts, but the liberties do not detract from the film’s lesson that Surratt should have been tried in a civilian instead of a military court. Whatever the facts in the hunt for Bin Laden, the lesson to draw is that the best stopping point for the use of torture, in line with American law and values alike, is before it ever begins.
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