In a new book about torture by former CIA officials the U.S. Naval Institute published last week, former CIA Director George Tenet acknowledges “failures of leadership and management that left a stain on our record.” The book is called Rebuttal. The title summarizes its tone and thesis. It’s a CIA response to the Senate Intelligence Committee Study on CIA Detention and Interrogation Program. It’s also an official defense of torture.
We tortured. And the high-level officials who authorized that violation of domestic and international law have not been held accountable in a court of law for their actions. Even though there is no legal justification for torture — not even national or global security.
But, the former CIA officials willing to go on record defending torture claim…
- It wasn’t that bad!
- It worked!
- They started it!
- And, worst of all, telling the truth about our mistakes hurts national security! (“By calling [CIA folks] torturers and hounding them in the courts, President Obama has broken the covenant that exists between the government and the CIA. I worry about what this means for the safety of our nation.” — Jose A. Rodriguez, Jr.)
These officials feel so secure in their impunity that they have just published a book of statements defending torture. Their statements in this book can all be used as evidence in a court of law — such as an international criminal court. We have one of those! But it only tries African leaders for war crimes, because everybody else is too powerful. That’s right. Racial bias in the courts even extends to world leaders.
These statements are also demonstrably wrong.
- It was that bad. (Slamming against concrete walls. Rectal feeding. Waterboarding.)
- It didn’t work. (Every independent analysis conducted has concluded this.)
- He started it? Are you kidding me? You are the leaders of the free world and your justification for formally and systematically violating international law most closely resembles a dialogue between four-year-olds in the backseat of an overheated sedan?
Have a Happy Meal. And a prison sentence.
We are probably not having another Wickersham Commission or Church Committee hearing (although we should). Those were just the most prominent of the latest Congressional hearings on U.S. security forces’ illegal activities including domestic use of torture. Despite ample evidence of law-breaking lying about law-breaking, we don’t seem to have the political will to own up to our bad mistakes — to tell the truth, so we can reconcile.
Fine. We don’t have to focus on all the bad stuff. I get it. It’s such a downer when you detain and abuse a bunch of innocent people, and then the world keeps questioning your moral authority! Like you made a torture program architect a federal judge or something.
But could we please stop defending and institutionalizing the same illegal, backfiring security practices? We are continually compounding our losses and making the world less safe when we do that.
Focusing attention on defending illegal, immoral, and ineffective interrogation practices wastes time and makes us less safe by undermining U.S. moral authority in the world. That undermining has serious consequences including fostering ISIS motivation, propaganda, and brutality. Focusing on building up rule of law instead of undermining it makes people safer. Because rule of law fosters rule of law. Justice — not justification of injustice — seeds justice. Empathy — not violence — seeds peace.
So to paraphrase Dionne Warwick, what the world needs now is… interrogation best practices reform.
Interrogation Best Practices Reform
- Stop what doesn’t work.
Mass security screenings for low-prevalence problems backfire. They threaten security according to Bayes’ rule, as National Academy scientists warned Congress in 2003 — before these programs massively expanded.
The scientists missed the full implications of their application of Bayes’ rule, probably because the national trauma of 9/11 affected their work. And nobody called out how the logic of applying Bayes’ rule to polygraph screening programs also applies to a whole range of other mass security screenings including insider threat, mass surveillance, and “stop and frisk” policing programs. Until now.
Congress and the Executive need to address the growing national security threat these growing programs pose. The right way to address the threat is to stop the programs that cause it. Failing to do that will probably correspond with lots of preventable deaths. It probably already has.
- Research that actually works.
One of the most common polygraph proponent counter-arguments is that we can’t just take the tool away because we don’t have anything that works better. Rose McDermott, David and Mariana Fisher University Professor of International Relations at Brown University and a Fellow in the American Academy of Arts and Sciences, responded,
“We absolutely can take it away because it’s useless. If something doesn’t work, taking it away is not going to harm people… To me that argument is like saying — ‘ok, I have a bunch of condoms. I stuck a bunch a bunch of needles through them, but you know? It’s better than nothing.’ It’s not better than nothing. It is nothing. It’s nothing only it’s uncomfortable.”
Professor McDermott went on to note that tools like forensic accounting and traditional policing have an established track record of addressing threats from spies and terrorists alike. There’s a growing body of research about what works better than lying about the existence of a lie detector — there’s no such thing — in interrogations. But we need lots more research on this. Investigators — who experience a lot of threat cues in their work that prime them to be attuned to it — might tend to be biased against the innocent.
The most common interrogation method across North America, the Reid Interview and Interrogation Method, is insufficiently evidence-based. It was invented as part of a wave of twentieth-century police science reforms that weren’t very scientific, to make police practice seem neutral so courts wouldn’t take away law enforcement’s fact-finding mission following public outcry over widespread police use of torture. (We almost had an inquisitorial justice system for a minute there.)
Instead of a society in which security forces periodically get in trouble for fact-finding the best ways they know how — we could have an experimenting society in which independent researchers and practitioners collaborate to make best practices better. There are already really good initiatives doing this. We should do that more.
- Interrogate interrogation.
Similarly, instead of law enforcement operations in which the purpose is to “get the bad guys” — and sometimes we spend lots of resources turning vulnerable people into terrorists — we might pull back on the purpose of interrogation.
Changing the purpose of interrogation from extracting a confession to close a case, to helping individuals identify what they need to succeed in the community and helping them get it. That sounds like social work. And in fact, police work used to be much closer to social work in some American cities. Largely male police forces rejected that model as too “girly.” Its history is indeed female-dominated.
Maybe you police differently when you think like a girl. We know having more women on police forces correlates with lower police use of force. We don’t know how women interrogate differently because so little empirical research on interrogation best practices exists. But we know they’ve been systematically discriminated against in the past in law enforcement, and the CIA has recently lied to Congress about continuing to disregard equal opportunity law.
So we need to interrogate what interrogation means — and that means asking hard questions about who is asking the questions, how, and to what end.
- Implement existing standards.
Local and state law enforcement agency organizations are way ahead of the feds when it comes to standardizing best practices. For example, the Commission on Accreditation for Law Enforcement Agencies, Inc. (CALEA) has a system for saying what is best practice without saying how it should be done. That works for making national standards that can be implemented across diverse agencies and communities.
CALEA standards have the power to address serious public safety and community trust issues. Something as basic as letting people know what happens after they put in a report is not standard law enforcement practice. But it is a CALEA standard. Implementing this standard at the national level — including the feds — would help prevent horrible injustices, like rape victims having their complaints downgraded or ignored and never knowing why.
CALEA is an opt-in accreditation agency. We could mandate and fund implementation of national local, state, and federal-level law enforcement compliance with CALEA standards. It’s not like the feds will actually lose their funding if they fail to comply. Federal security agencies are essentially untouchable. So Implementing national law enforcement standards at the federal level would be aspirational even as an Executive mandate. So we have nothing to lose by mandating it.
And if you’re wondering what the rape victim complaint-downgrading example has to do with interrogation — the line between victim-witness and suspect is really thin in law enforcement. So it was only in 2005 that federal law forbade police from requiring rape victims to submit to lie detectors as a condition of proceeding with investigations. (That law is unenforceable.)
- Honor discretion.
Honor discretion while encouraging use of best practices. Most law enforcement are good people who want good things just like the rest of us. Minimizing their paperwork and maximizing their freedom to creatively problem-solve in their communities seems to work out best for everyone.
The reverse — more data collection, more rule-bound policing — can backfire even with the best of intentions. For example, when Nevada experimented with mandatory data collection in an effort to address community concerns about racial profiling, it didn’t improve profiling perceptions but decreased actual enforcement of the law.
- Be human.
Shakespearean psyops worked on the tinker in The Taming of the Shrew. Why not apply the community trust-building tools of art, coffee talk, and faith to policing? Lots of security professionals already argue in favor of this type of strategy. Being human — catching more flies with honey — should go without saying in interrogation.
- Use costly signals at the local and state levels.
Visible reforms matter. Costly signaling — clear words combined with strong actions — about not putting up with torture, coercive interrogation, extrajudicial killings, and other violations of rule of law could go a long way toward healing the global wounds of our post 9/11 mistakes. It might also help heal the national wounds of our post-slavery legacy of systematic racial disparities in police practices, sentencing, and police use of violence.
For example, leading law enforcement organizations like the Major City Chiefs and Major County Sheriffs’ Association could make it best practice to report deaths in police custody to a centralized police database like the Justice Database — and to fire police officers who shoot unarmed civilians like some leaders have done to avoid another Ferguson.
- Make and keep good interrogation evidence trails.
Videotape interrogations and keep the tapes.
Some security agencies have a bad habit of destroying evidence of coercive interrogations with impunity. That’s obstruction of justice. It’s a crime — a possible felony — and the government should prosecute it as such.
The details of this point shouldn’t matter. Keeping a good chain of evidence is simple. Rule of law is rule of law. But I released documents in 2012 suggesting that the CIA has been withholding and potentially destroying video evidence not just in torture of foreign detainees, but also in contested interrogations of domestic civilians. And when I took responsibility for working with the press in the relevant investigative series — activities that were 100% legal — on my old blog, somebody ran domestic surveillance and psyops on me in retaliation for my protected free speech.
That retaliation was illegal. But the FOIA system is so broken that I’ll never get internal agency documents proving it. You would probably have to be pretty high-up in the intelligence apparatus to find out what happened there and share with the class. Leaking those documents would be a public service.
The documents I released themselves seem to have disappeared from the live Web, but are still open-source through several back-ups. Nothing that has ever been on the Internet ever really disappears, for better and for worse.
- No sovereign immunity for knowingly violating the law.
No sovereign immunity for violating the law. That is not what sovereign immunity means. Federal sovereign immunity in the U.S. means that the government cannot be sued unless it consents to the suit.
We have a live political debate within the U.S. government about torture. The government has already consented to this debate. You don’t get to invoke the crown doctrine that you can do no wrong after admitting that you’ve done horrible wrong. That’s just abuse of power.
- Use costly signals at the federal level.
Hold high-level people accountable for violating the law. That’s the ultimate validation of rule of law. The Magna Carta, on which the U.S. Constitution was largely based, made that one essential argument — that the sovereign can’t just do whatever he wants. He’s bound by some basic rules of fairness like everybody else. That’s what rule of law means in liberal democratic societies. That’s what the U.S. undermines when our leaders defend torture. And that defensive act undermines the perceptions of fairness that actually create rule of law and make us safe.
If we want the world to feel safe to flourish — if we want to effectively counter espionage and terrorism — then we have to foster perceptions that the U.S. justice system is fair. And we have to start at the top, where our actions — fair or unfair — are most visible.
Perception starts with reality. Fairness starts at the top. Leaders are supposed to lead — not defend war crimes. Especially ones they themselves are liable for committing.