The CIA, torture, and the loss of privacy

An Introduction

This is a guest post by a friend of mine in the political sphere.  It’s a breakdown of the “Torture Memos” that got a lot of press at the end of last year.  If you’re not American like me this subject was a rascal to get to the bottom of, and I turned to someone much more well versed on the subject.

I don’t agree with the sentiments in the last paragraph, but the previous paragraphs illuminate a subject that can be quite tricky to traverse – the politics behind The War On Terror.

To link this post back to previous ones, the War On Terror is often given as a reason for decreasing privacy rights, and increased online digital supervision.  The Worriers of previous posts (which I confess to be amongst),  who are concerned about a potential big brother state, will see the below as cause for concern.

On the CIA, Torture, and Moral Politics

If there’s one thing Americans do well, it is display their outrage. Recently, we got a pretty good showing of this with the collective hernia that sprung up in reaction to the Senate Intelligence Committee’s report on the CIAs ‘torture’ of foreigners as a part of the ‘War on Terror’. You only had to take a cursory glance around the mainstream press to see the extent of this – “Why We Need The Gory Details About Torture”; “What Have We Become?”; and helpfully “An Eight Point Guide to Discussions With People Who Support the CIA’s Torture Program” (my personal favourite – nothing like outsourcing intellectual reasoning and reducing arguing important topics to spitting talking points). What so much coverage doesn’t actually do is break down the issues and assess what’s going on with the release of this report. Here’s an attempt.

To go back to the start, as much as you can draw a clear line as anything with the ‘War on Terror’ (politically loaded but for lack of a better term) goes back to the 70s and 80s, I think it’s important to start by asking “What is torture, and how is it defined in a US legal context?” and then the corollary question is “Was what the US was doing ‘torture’?”

Say what you like about the US government, its bureaucracy is sophisticated to the point where it’s rare for them to act unilaterally without being able to point to constitutional or legislative mechanisms (whether that is the Constitution itself, legislation, treaties codified in law, legal memoranda, regulations etc.) as a means of justifying any action (more on this later).

[As an aside here, this raises an interesting meta-legal point about the unintended consequences of advanced political and legal systems and our dedication to written, codified laws – the system basically incentivises finding ways of justifying anything through interpretations of supposed ‘facts’ and law. If we desire morally consistent outcomes, are we actually doing ourselves a disservice through being so beholden to this form of governance? Sure, it’s convenient politically, but if you’re approaching an issue like torture from a ‘moral perspective’ – perhaps people should be going to the bottom and at least asking what structural factors allowed it to happen.]

Here’s the right time to take another slight but important detour – while we’re talking about the legal definition of torture, we need to state the obvious and be aware that at stake here is a fight over the meaning (both literal and the underlying emotive effect) of words. For those morally (and to conflate, usually politically – but not always) opposed to torture, it is politically convenient and in fact necessary to the logic of their argument to define what the US did as ‘torture’. It is an incredibly loaded word, which is why you have seen CIA chief John Brennan pretty consistently refusing to use it, and instead describing what the CIA did as using euphemisms like ‘interrogation techniques’. My point here is constantly be aware of the context, authorship, publication, and premise when you see the word ‘torture’ used in relation to this topic. It can help inform you massively about the moral judgements and political beliefs of the person discussing it (I’ll flesh this out).

So back in the early 2000s, the Justice Department produced what’s popularly known as the ‘Torture Memos’ (I’m loathe to link to Wiki for a serious argument, but it’s a fairly easy to access summary), which was the official legal advice the Bush Administration relied on to justify the interrogation techniques. Over the next few years, there was a lot of wrangling and back and forwards as different administration officials redefined things as the political climate of the war shifted (remember, war is as much a political and public relations exercise as it is a mobilisation and utilisation of force).

Naturally, they found ways of defending what a common man might see as fairly extreme techniques by narrowing the definition and saying that techniques may be justifiable. This is important because this is the critical technical point relied on for those who defend the CIA actions. For example, see Vice President Cheney’s comments here (as the standard bearer for the ‘it wasn’t torture’ camp, basically).

[Another important aside – There is a case that can be made that arguing semantics about ‘what is torture/was the US torturing people?’ is actually a convenient way of hiding how truly abhorrent the actual acts of torture are. While I agree that news companies and politicians relying on polls saying that Americans support the use of torture when they’re asked in that way (even if they are opposed to specific acts when asked about them directly) is a bit of a false flag, this argument is rather unhelpful to furthering understanding of the issues at stake as it is premised on and imparts a strong moral judgement being made from the outset, without knowing all the facts that either side present.]

So this is what’s floating around underneath all of this, but isn’t really the thing that’s getting any coverage as a) it’s too complicated and dry and b) is less interesting as a news story than the moral aspects, namely “Is what the CIAwas doing right?”, accepting the facts of the report on the face of it, which there is some dispute over (especially around the question of whether any intelligence was gained and saved American lives).

Much of the coverage around this is that people are outraged that the US would commit these acts to other human beings. Basically insert most mainstream coverage here. It is important to note that the anti-Senate report camp (largely conservatives) draw on moral arguments to defend the CIAs actions by rejecting a kind of moral equivalency between what the US did and what the terrorists do – read “Cheney’s argument here – and this was hardly the first time – is that as long as al-Qaeda’s tactics are worse than ours, nothing we do is morally unjustified.” I will let you make any normative judgement for yourself.

Which is actually a tidy place to segue into the politics of the situation, and to close out my comment at the start on justifications for action. I think the big elephant in the room with this report, and what people are dancing around without addressing it directly, is a question of “Do the ends always justify the means?” To me, it’s not unreasonable to conclude that the Bush Administration practiced a very raw (and creative I will admit) politics in which the question was in a lot of cases yes.

Here’s how it’s framed in the popular narrative: The public conflict between the Democrats opposed to the ‘War on Terror’ (as they are broadly now, ignoring potentially politically necessary initial support) and the Republicans who are in favour of it is driven by an unwavering belief in American superiority. For Democrats/anti-interventionists/whatever you want to call them, America’s position globally is enhanced by emulating Constitutional principles that value life and protect and enhance it, and that this is a sacred and morally right position that limits potential action. Pro-interventionists/Republicans/etc. take this a step further and think that it needs enforcing and defending, so are willing to take action when it is ‘threatened’ or attacked. This isn’t the place to go into the history of this or the possible reasons (or in fact how it’s largely wrong) but again, I’m just outlining the supposed conflict as it exists in the broad narrative that is carried by the mainstream press.

What’s underneath this point is much more blurred, and in fact, focused on the simple question of “Who is in charge?” Because this is where the anti-interventionists argument fails to an extent, in that their quest for moral high ground in being outraged by the CIAs actions don’t actually preclude them putting a stop to things when they’re in charge. Look at President Obama’s extensions of Bush-era policy in drone use and continuation of tactics practiced by the CIA abroad for two examples. It’s another case of politicians cynically using moral arguments to bolster their own position and gain public support, even though many have a vested interest in keeping the status quo and when in power do very little to make any changes (I believe that this is best evidenced in the way that ‘inequality’ or the ‘climate crisis’ are bandied about by supposedly morally outraged liberal politicians who do little to actually make the changes they publically espouse as necessary).

This is where we get to the Senate report, at long last. The Democrats have been working on this report since 2009.It was initially bipartisan, but quickly became apparent to the Republican minority members of the Intel Committee that it wasn’t about good public policy per se, but about politics – humiliating Republicans and continuing to discredit Bush and co., and in turn painting themselves as morally righteous by shining the light on the evil acts of the CIA and their Bush/Cheney administration overlords. The CIA, for their part, didn’t really help by probing the computers of the Senate Democrats to see what they were writing.

The GOP/Right have been outraged because they see this as a political hit job. For the Congressional Democrats, it feeds into the broader narrative that ‘Democrats care about people, Republicans don’t’, without actually proposing any real changes to the CIA (which is out of their control as only the President can make those changes) or suggesting how things should be done differently.

Republicans point to the fact that CIA operatives weren’t even interviewed by the Committee as a case in point that the Democratic Majority members weren’t interested in writing a thorough report, but presenting facts that suited their purposes. However, it’s a little more complicated of course. The CIA point to their own internal I-G investigating conduct and finding failings, essentially the same as what the Senate report found, without the need for such a political report. There’s now public outcry that the CIA officers seem to have been protected and should be prosecuted for their actions, and as such there is now a fight over documents to further expose the CIA/Bush Admin’s abuse of rights (which lead to President Bush saying the agents are patriots and basically shouldn’t have their integrity questioned).

So while the two sides can’t agree on whether the report is good or bad, both the CIA Director and the Senate Committee Majority agree that there was essentially a failure of bureaucracy. It was all a bit messy, a bit badly handled, and shouldn’t really be conducted in the way it was (putting aside those legal/justification issues above).

There are things I haven’t gone into in my desire to keep this brief (it’s already too long). Further interesting points that deserve consideration are around whether torture actually works, what effect it has on America’s global reputation, whether it’s actually counterproductive and puts Americans more at risk instead of saving lives, and whether foreigners should be granted Miranda Rights (not an exhaustive list). There are plenty of good arguments being made on either side of these questions.

But this piece isn’t about addressing those. It’s about trying to strip away the very highly charged emotions that have driven the coverage of this issue, and more broadly, about the way we let our feelings cloud our ability to see who is talking about it, what they’re saying, and why they might be saying it. I think we’d all be well served if we tried to feel a little less when we’re considering these things. But then, I haven’t been waterboarded…


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