Keeping Up With the Wickershams

I have an article in the current print edition of Counterpunch on the Wickersham Commission report on Lawlessness in Law Enforcement, under the pen name of Peter Lee.

This article will provide enlightenment to anyone who ever wondered why the abusive apes in Dr. Seuss’s Horton Hears a Who were named the “Wickersham Brothers”.

More significantly, this report, prepared eight decades ago for Herbert Hoover by Harvard law professor Zechariah Chafee, the most distinguished guardian of civil rights in the first half of the twentieth century, anticipates and repudiates virtually all of the arguemnts in favor of—and abuses committed under the color of—“enhanced interrogation techniques” or, as they were known back in the Roaring Twenties, “the third degree”.

Chafee identified four reasons why beating people up to get information was a bad idea: false confessions, the corruption of police procedure as “fists trump wits”; the tainting of prosecutions; and the collapse of police reputation in the public eye.

Somewhat prescient, n’est pas?

If the Bush administration held motivations beyond mere retributive atavism, it might have referred to the Wickersham Report—which underlies the current federal protections against self-incrimination in the United States—before it embarked on its ruinous program of “enhanced interrogation techniques” in 2002-2003.

As it is, EIT is a signature Bush policy: dishonest, ineffective, and with catastrophic consequences that will long survive its morally and intellectually obtuse authors.

Typically, the Bush administration spent more mental energy defending the program than it did in its design or execution, first in the reams of bogus legal opinions enshrined as the “torture memos”, and currently with the non-stop spin by ex-Bush officials concerning the purported efficacy of the odious methods.

A good deal of rhetorical gymnastics is devoted to efforts to evade the “torture” label for enhanced interrogation techniques. As far as the impact, consequences, and shortcomings of coercive interrogation, it’s a distinction without a difference. Chafee uses the terms “torture”, “abuse”, and “the third degree” interchangably in his report.

The only reason everybody is loath to apply the description of “torture” to the intense mental and physical duress inflicted on detainees during the Global War on Terror is that the U.S. is a signatory to the U.N. Convention Against Torture, which is specifically designed to remove any and all justifications for giving torturers legal impunity…and Congress, in the reign of Bush I, enshrined the obligation to prosecute U.S. torturers under U.S. Statute 2340, the domestic enabling legislation for the treaty.

The Obamas administration is also determined to obfuscate the issue, because frankness and honesty on the issue would expose U.S. practitioners and sanctioners of torture to prosecution both under U.S. statute and, under the principle of” universal jurisdiction” by other signatories to the U.N. Convention Against Torture and cause no little political heartburn for the current administration.

Coercive interrogation is an issue that’s the subject of a lot of confusion, muddled thinking, and outright dishonesty. Hopefully the article on the Wickersham Commission will help clear things up.

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The one issue that the Wickersham Report does not address is the favored excuse of those who condone torture: the ticking time bomb defense.

The fact that torture has defused few if any ticking time bombs has not dimmed the ardor of its champions.

I can bring some perspective to this issue from Asia and justify a China Matters link to the debate.

The historical record indicates that motivated and trained terrorists and insurgents anticipate torture and have already developed effective countermeasures to protect their conspiracies and their networks.

As Claude Shannon, the father of information technology, might put it, the problem with torture is the signal to noise ratio.

All that’s needed to degrade the transmission of useful information is to bury it in increasing amounts of useless noise.

China in the 1930s and 1940s witnessed the life-and-death battle between the Kuomintang and the Chinese Communist Party.

It seems the only successful organization inside the dysfunctional KMT was Dai Li’s burgeoning and remorselessly efficient secret police empire.

Did Dai Li waterboard?

Certainly.

Among other things.

In 1932 [Harold] Isaacs summarized the Guomindang methods of torture as follows: beatings, pouring kerosene, urine, and feces through the nose of the victim and having the guards drive their knees into the stomach of the victim; strapping prisoners to chairs and giving them intermittent electric charges; placing pieces of bamboo between the fingers, which were then crushed; intermittent dislocation of bone joints; “tiger’s bench”, an ancient Chinese method of torture “by which the ligaments beneath the knee are pulled out”; imprisonment for months in cages where the prisoner must crouch like an animal for weeks or months; single or double pairs of shackles; and mutilating the reproductive organs of both sexes.

From Frederic Wakeman, Spymaster: Dai Li and the Chinese Secret Service, University of California Press; Berkeley 2003

Dai Li had an unwavering commitment to torture.

And torture, in its simplest iteration works. Everybody breaks down sooner or later.

But, as the Chinese say, for every tactic there is a countertactic.

In its struggle with Chiang Kai-shek’s KMT, the Chinese Communists figured out how to deal with torture of their operatives, as Wakeman writes:

In fact, most people broke sooner or later under secret police torture. What Communist prisoners appeared especially skillful at doing—perhaps because they were trained ahead of time for the experience of interrogation—was providing false information that would help other members of their organization get away. Often, for instance, a CCP agent being tortured in the zhencha dadui would pretend to reveal the location of the headquarters organization but actually give an address one or two blocks away. Until the secret police caught on to this trick, they would launch a raid against a totally harmless address close enough to the real headquarters to alert the party leadership to seek safer refuge elsewhere.

Apparently energetic application of torture sans scruples, restraint, or any legal hindrance was unable to save the KMT from eventual defeat by the Communists.

One might notice how insidious the red herring defense is.

Once Dai Li’s secret police “caught on to this trick”, they would have to torture beyond the original legend to get at the truth.

But what if the second confession was still a fraud?

And how would they know?

The more Dai Li tortured, the more the noise of additional bogus confessions would overwhelm the unrecognized signal—the truth.

It wasn’t just a problem for Dai Li.

As someone who participated in coercive interrogations of high-value targets inside Iraq told Human Rights Watch:

If [the detainees] were going to lie, they were going to stick with it—
unless it became too harsh and they would break, or whatever. But then
you get into the too-harsh area. . . and that’s when you don’t know if
you’re getting the right information—are they doing it just because of
the pain or the discomfort?

Jeff said he was concerned that harsh tactics were not as effective as more traditional
interrogation methods. When detainees provided information, yielding to abusive or
harsh techniques, it would take time to corroborate and determine whether the
information was accurate, whereas with traditional techniques, interrogators would
usually determine immediately whether the information was accurate.

You know, the time difference of checking out the story, and this and
that. Because if you’re talking to somebody and you break them using a
mental tactic or so forth, you just know when that person breaks. But
from what I’ve seen of harsh physical tactics, where they supposedly
break, that’s harder to tell [whether the information is accurate] because
they’re just saying something to stop the discomfort.

From No Blood, No Foul; Soldiers' Accounts of Detainee Abuse in Iraq, Human Rights Watch, 2006.

Recall that Khalid Sheihk Mohammed was waterboarded 183 times. Potentially, that’s 183 different stories.

KSM’s statements at his Combatant Status Review Tribunal offer little reassurance that the United States got a lot of actionable, real time intel out of him:

…be under questioning so many statement which been some of them I make up stories just location UBL. Where is he? I don’t know. Then he torture me. Then I said yes, he is in this area …KSM CSRT transcript pg. 15