No excuse for torture

In response to an ongoing International Criminal Court investigation into allegations of wrongdoing by American personnel in Afghanistan, the Trump administration has barred ICC personnel from entering the United States.

There can be no legitimate excuse for the United States to use so-called enhanced interrogation techniques, a term which is nothing but a euphemism for torture.

Although Uncle Sam may be tempted to resort to the use of torture to extract information or intelligence from terrorists or enemy combatants, the practice is morally and legally indefensible.

The International Criminal Court (ICC) is currently investigating allegations of wrongdoing supposedly committed by American forces in Afghanistan. The allegations include war crimes and crimes against humanity dating as far back as 2003. And the investigation likely includes the possible use of torture by the Central Intelligence Agency (CIA) in Afghanistan.

Earlier this month, in response to the ongoing investigation, U.S. Secretary of State Mike Pompeo announced that the United States will prevent ICC investigators from entering the country by withdrawing or denying visas to ICC personnel.

“I’m announcing a policy of U.S. visa restrictions on those individuals directly responsible for any ICC investigation of U.S. personnel,” Secretary Pompeo declared at a Washington press conference on March 15, 2019.

The United States is not a party state to the Statute of Rome, the international treaty that established the ICC. However, Afghanistan joined the ICC in 2003, giving the court, which is based in The Hague, jurisdiction over war crimes and crimes against humanity allegedly committed by combatants in the war-torn country.

Besides being illegal, there is ample evidence that torture is not a reliable source of information or actionable intelligence.

U.S. Senate Intelligence Committee

“The CIA’s use of its enhanced interrogation techniques was not an effective means of acquiring intelligence or gaining cooperation from detainees,” states the 2014 U.S. Senate Intelligence Committee Report on Torture.

The committee launched the study of the Central Intelligence Agency’s detention and interrogation program in March of 2009 in the wake of revelations of abuses carried out during the so-called War on Terror prosecuted by the administration of President George W. Bush.

In January of 2009, shortly after taking office, President Barak Obama signed Executive Order 13491, prohibiting the CIA from incarcerating detainees for more than a “short-term, transitory basis.” And the newly elected American President also ordered that interrogation techniques be limited to the methods set out in the U.S. Army Field Manual.

The committee’s report recommended that the limitations imposed by Obama should be enshrined in legislation, because his executive order was “not part of U.S. law and could be overturned by a future president with the stroke of a pen,” Dianne Feinstein, then chair of the Senate Select Committee on Intelligence, writes in the report’s foreword.

Evaluating effectiveness of torture

The U.S. Senate Intelligence Committee Report on Torture examined the effectiveness of the CIA’s interrogation of Khalid Shayk Muhammad (KSM). According to the report, the agency misled the White House, Congress, and the Department of Justice as to the effectiveness of its enhanced interrogation techniques.

“The CIA repeatedly represented that the CIA’s waterboard interrogation technique was particularly effective in eliciting information from KSM,” the report alleges. However, the CIA’s claims were not backed by its own records.

“Numerous CIA personnel, including members of KSM’s interrogation team, expressed their belief that the waterboard interrogation technique was ineffective on KSM,” the report reveals. CIA documents state that one of the agents who “debriefed” KSM informed the CIA inspector general that the subject had “figured out a way to deal with [the waterboard].”

In addition, CIA communications revealed that interrogators “broke” KSM by uncovering incriminating emails. And one of the interrogators told the inspector general that KSM “responded to ‘creature comforts and sense of importance’ and not to ‘confrontation’ approaches.”

The CIA interrogator later wrote in a confidential communication that KSM and another subject, Abu Zubaydah, “held back” information despite being subjected to enhanced interrogation techniques.

“I’m ostracized whenever I suggest those two did not tell us everything,” the interrogator said of the CIA's reaction to his frank assessments of enhanced interrogation methods.

The interrogator also “questions how the repeated use of the waterboard was categorically different from beating the bottom of my feet, or from torture in general.”

Despite the Senate Intelligence Committee’s recommendation that U.S. lawmakers pass legislation outlawing enhanced interrogation, Feinstein writes in the report's foreword that “existing U.S. laws and treaty obligations should have prevented many of the abuses and mistakes made during this program.”

End of a brutal program

According to the report, “the interrogations of CIA detainees were brutal and far worse than the CIA represented to policymakers and others.”

For example, the report states that “the waterboarding technique was physically harmful, inducing convulsions and vomiting.” And the sleep deprivation technique “involved keeping detainees awake for up to 180 hours, usually standing or in stress postures, at times with their hands shackle above their heads.” Plus, the CIA used “ice water baths” to make detainees uncomfortable during interrogation sessions.

In a damning section of the report, the Senate Intelligence Committee concluded that “the CIA impeded oversight by the CIA’s Office of Inspector General.”

When it came to the quality of the intelligence extracted from detainees, the committee found that the Central Intelligence Agency “failed to adequately evaluate the effectiveness of its enhance interrogation techniques.”

Moreover, the committee discovered that the agency “marginalized and ignored numerous internal critiques, criticisms, and objections concerning the operation and management of the CIA’s Detention and Interrogation Program.”

The controversial enhanced interrogation program effectively ended in 2006, after its existence was exposed in news media reports. Other factors that contributed to the program’s demise included reduced cooperation rendered by friendly countries as well as “oversight issues.”

Soft power

Soft power — a term coined by Joe Nye, an influential American scholar and former Clinton administration official — refers to the capability of a nation-state to influence international decision-making through the attractiveness of its values, principles, and actions.

By employing interrogation techniques in the past widely regarded as torture, the United States arguably reduced its soft power. And the Senate Intelligence Committee supports this conclusion.

“The CIA’s Detention and Interrogation Program damaged the United States’ standing in the world,” states the committee’s report. In fact, the program “created tension with U.S. partners and allies, leading to formal demarches to the United States and damaging and complicating bilateral intelligence relationships.”

More broadly speaking, the report concludes that the CIA program “caused immeasurable damage to the United States’ longstanding global leadership on human rights in general and the prevention of torture in particular.”

HIG

In 2009, Andrew G. McCabe was selected by then FBI Director Robert Mueller to build and run a new group referred to as HIG (High-Value Detainee Interrogation Group).

“It was an effort to professionalize how the government conducted interrogations of high-value terrorist suspects detained overseas,” McCabe writes in The Threat: How the FBI Protects America in the Age of Terror and Trump.

According to McCabe, Mueller explained to him that the new program was “an effort to get away from the abuses that had occurred at Abu Ghraib and in other controversial CIA programs.”

Mueller reportedly told his subordinate that President Obama wanted to “do things differently” from the previous administration. In a nutshell, HIG would bring together the CIA, the Department of Defense (DOD), and the FBI to ensure that interrogations techniques respected the laws and Constitution of the United States.

“The HIG was born in a whirlwind, and at the center of the whirlwind stood a prison, Camp X-Ray, at the U.S. military detention facility at Guantanamo Bay,” McCabe writes in his 2019 book.

During the 2008 presidential campaign, Obama had promised to close Gitmo. But he ultimately failed to keep his promise. And the current occupant of the White House, President Donald Trump, is committed to keeping the facility open.

“Obama believed the War on Terror had led the U.S. in the wrong direction,” McCabe continues. “He believed the use of ‘enhanced’ interrogation techniques, such as waterboarding, amounted to outright torture and had compromised our values as a nation.”

President Obama’s Executive Order 13491 created a task force to assess interrogation and detainee policies. In the summer of 2009, the task force recommended establishing an inter-agency initiative to undertake interrogation of so-called high-value terrorist detainees.

“The CIA would be involved, and the Department of Defense; the FBI would run the group, and it would report to the National Security Council at the White House,” McCabe writes of HIG’s reporting structure.

In addition, the task force recommended the prohibition of the use of enhanced interrogation techniques.

“From now on, only techniques from the U.S. Army Field Manual and those used by federal law enforcement, which had been compiled to be in conformity with the Geneva Convention, would be allowed,” McCabe writes, echoing the Senate Intelligence Committee Report on Torture.

Obama accepted the recommendations and tasked FBI Director Mueller with establishing HIG.

From the perspective of the FBI, the HIG approach is superior to enhanced interrogation.

“Most suspects who decide not to talk on the day they’re arrested talk eventually,” McCabe writes. “And rapport building—the relationship-building process of getting to know suspects, breaking down their defences positively, building trust—gets you higher-quality, better intelligence than scaring the hell out of them or beating them into telling you anything you want to hear to make the beating stop.”

The HIG approach yielded actionable intelligence that led to the elimination of a major terrorist figure.

On Christmas Day 2009, Umar Farouk Abdulmutallab unsuccessfully attempted to detonate a bomb concealed in his underpants as Northwest Airlines Flight 253 approached Detroit on Christmas Day 2009. He was taken into custody and became HIG's first major project. And interrogation sessions with the so-called underwear bomber yielded valuable insights.

Over time, he provided the FBI with information on the whereabouts of Anwar al-Awlaki, the notorious American born al-Qaida recruiter and propagandist, who was eventually killed by a U.S. drone strike in Yemen.

Abdulmutallab gave the FBI a precise layout of the al-Qaida training camp where al-Awlaki was living, including the location of his living quarters. That information assisted the Americans in successfully targeting the terrorist leader.

However, during the 2016 presidential campaign, Donald Trump endorsed torture as an acceptable interrogation technique.

“After eight years of finding ways to hold, interrogate, and prosecute terrorists that did not involve sending them to Cuba—eight years of doing these things successfully, with a track record that ‘enhanced’ methods have not matched—we found ourselves having these conversations all over again,” McCabe says of efforts to defend HIG in the era of Donald Trump.

The FBI tried to persuade the administration that torture was wrong, unnecessary, and unhelpful in the collection of “the most reliable intelligence from subjects,” McCabe writes.

Investigating Uncle Sam

Although the United States is not a party to the ICC, the court still has the power to investigate allegations of wrongdoing by American personnel in Afghanistan, which is a state party to the Statute of Rome. Similarly, the ICC has the jurisdiction to investigate allegations of CIA wrongdoing in other countries, such as Poland, which are also state parties to the ICC treaty.

“US citizens who commit crimes abroad are already subject to the jurisdiction of foreign courts,” notes the website of Human Rights Watch. “Countries that ratify the Rome Statute are simply delegating their authority to prosecute certain grave crimes committed on their territory to an international court.”

Human Rights Watch points that “in 2015, the United States reported to the UN Committee against Torture that the armed forces had begun 70 investigations into detainee abuse that resulted in trial by courts-martial, but no time period was provided, and no further information was publicly available.”

International law

Will the American refusal to co-operate with the ICC investigation reduce American soft power or influence in the world?

“Potentially, yes,” replied Kyle Matthews, executive director of the Montreal Institute for Genocide and Human Rights. “The U.S. has never been very fond of the ICC and has always claimed that it would undermine its own sovereignty. I see this as a continuation of U.S. policy.”

Nevertheless, Matthews sees the U.S. position as problematic. “If you say you believe in the rule of law, and you don’t support the international institutions that are created to do that then you lose some of your soft power,” he said in a telephone interview.

The ICC was established without the support of the United States. And Matthews pointed out that it was Canada and other Middle Powers that helped to bring the international institution into existence. “We still have lots to do to keep it in shape,” he said of the ICC.

Geoffrey P. Johnston is an independent Canadian journalist who specializes in international affairs, human rights, international religious freedom, and humanitarian crises. Follow him on Twitter @GeoffyPJohnston