Part 2
In 2014, the US Senate Select Committee on Intelligence (SSCI) published a report on the Central Intelligence Agency’s (CIA’s) Detainee and Interrogation Program (DIP)[1] The report presents ‘overwhelming’ and ‘incontrovertible’ evidence of torture used against CIA detainees between 2001 and 2009.[2] This, however, should come as no surprise knowing that the CIA’s Enhanced Interrogation Techniques (EITs) include simulated drowning (waterboarding), sleep deprivation up to 180 hours, debilitating stress positions, and threats to rape family members among other methods.[3] Although EITs merely amount to a euphemism for torture, proponents claim that such methods are simply ‘enhancing interrogation’ and crucial to obtain information from uncooperative detainees in order to prevent imminent terror attacks.[4] The following questions thus remain: What is considered torture? and Does torture work? As consequentialists take an opposing stance to an absolute ban on torture, it is important to emphasize that they only do so on the condition of its efficacy. After all, as stated in part one of this essay, torture would not increase the collective utility if it does not deliver the required results. The answer to both questions lies in the field of neuroscience.
By Maarten Visser
What is Considered Torture?
An authoritative point of reference is the 1984 United Nations Convention Against Torture (CAT),[5] which forms the design of numerous national legislations. The CAT defines torture as ‘an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.’[6] Although this definition offers a valid starting point, it contains shortcomings – especially with regards to torture for intelligence purposes (interrogational torture). To begin with, it fails to identify the unique relation between captive and tormentor, in which the former must have total inability to protect himself or fight back against the latter. Hereby, Michael Davis suggests that the torturer often knows much more about the victim than the other way around and, therefore, usually also has intellectual or psychological dominance.[7] However, this sense of control is neither necessary nor sufficient. Another inadequacy of this definition is its limitation to acts, while ‘not acting,’ such as the withholding of medical treatment, can also constitute torture.[8] Furthermore, it overlooks the fact that interrogational torture requires total absence of consent of the victim.[9] In order to address these shortcomings from the CAT definition, I will define interrogational torture as the intentional infliction, by act or omission, of severe pain or suffering, whether mental or physical, on a defenceless and non-consenting person over whom a state actor as physcological influence, in order to obtain information.[10]
Nonetheless, the fundamental question of torture’s continuum remains: how severe must physical and mental pain or suffering be in order to qualify as torture? After all, torture once constituted an aggravated form of cruel, inhuman, or degrading treatment.[11] Evidently, the answer to this question is complicated. It can be argued, however, that the judgements found in the 2002 Torture Memos, which tend to justify the DIP seem highly inaccurate: they are narrowing the scope of torture to pain and suffering that result in long-term psychological harm, organ failure, impairment of bodily function or death.[12] This is not to say, however, that EITs are not capable of resulting in these long-term consequences. The repeated waterboarding of Abu Zubaydah offers a striking example. Aside from the convulsions and vomiting caused by his treatment, following one of the sessions, Abu Zubaydah became completely unresponsive with bubbles rising out of his mouth.[13] George W. Bush stated in 2010 that “medical experts” had assured the CIA that EITs could not cause any “lasting harm”.[14] These “medical experts,” though, have yet to be identified.
Although pain and suffering are complex phenomena, they are not impossible to measure. Ronald Melzack and Warren Torgerson made significant claims that pain is more than purely a physical sensation.[15] More specifically, pain is a highly subjective multidimensional experience whereby affective dimensions (such as fear, anxiety, and distress) and sensory dimensions (aching, stinging, burning, etc.) are interdependent and equally essential components.[16] Furthermore, according to Paul Kenny, there is an incorrect utilitarian assumption that pain and suffering not only differ qualitatively, but also quantitatively.[17] There is strong evidence that suffering from sleep deprivation, exposure to extreme temperatures, certain stress positions, or humiliating treatment, does not differ substantially from physical torture in terms of the underlying mechanism of traumatic stressors and their long-term psychological outcomes.[18] This ultimately means that pain and suffering require a broader and more refined interpretation than the implications from the 2002 Torture Memos.
Does torture work?
Most of us have experienced a jetlag or other kinds of intense fatigue. It would then not be the easiest task to focus and pay attention, let alone reproduce exact information from several years ago; the only desire is to sleep. We all have some sense of how it would be if people keep you awake for 180 hours. Alongside the fact that sleep deprivation can severely damage brain function, experience shows that people will say anything the torturer wants to hear if subjected to such extreme conditions.[19]
Scholars make the distinction between interviews and interrogations, the latter demonstrating a more coercive nature.[20] Through coercion, captives are more likely to be presumed guilty or given misleading evidence.[21] EITs primarily consist of harsh confrontation alternated with prolonged isolation of the captive. Psychological studies have shown that the desire to escape isolation and agonising guilt-presumptive interrogation techniques are common factors in the provision of false statements.[22] Accordingly, the SSCI findings conclude that EITs largely produced false and fabricated information.[23] For example, Khalid Sheik Mohammed (KSM), who was waterboarded at least 183 times, provided predominantly false information which ultimately caused the imprisonment of two innocent individuals.[24] Moreover, intelligence that led to Abu Ahmed al Kuwaiti (an Al Qaeda member who gave information leading to the killing of Usama Bin Laden) did not come from any of the three detainees who were waterboarded.[25] In fact, KSM told the CIA that Abu Ahmed al Kuwaiti had moved away and completely ceased his involvement in Al Qaeda, neither of which were true.[26]
It is an all-too-common mistake to believe that telling the truth will ultimately stop torture; in fact, just talking does. To address this claim, it is important to emphasise the asymmetrical power relationship between interrogator and captive, and, more specifically, the distinct motivations of each. Shane O’Mara illustrates these motivations with reference to the Pavlovian condition.[27] The captive who desperately wants to escape extreme stress recognises stimuli in the brain that signal periods of safety during these events. In a torture situation, the safety signal for the captive in a torture situation would be the act of speaking: when the captive speaks, the torturer stops torturing, whether the captive is telling the truth or not.[28] Therefore, it is evident that torture does not reliably produce truthful information.
Another argument for the ineffectiveness of torture is that extreme stress and pain affect memory and manipulate the brain. The parts of the brain that regulate memory and stress are highly interdependent and reciprocal.[29] As previously stated, pain and suffering are multidimensional experiences which invoke prolonged and extreme stress. These stressors have a damaging effect on the frontal lobe, the area of the brain that controls cognitive functions such as communication and memory. In this respect, O’Mara argues that frontal lobe disorders frequently result in confabulation.[30] Furthermore, it has been suggested that the use of misleading or false information by the interrogator as part of EITs can lead to memory distortion of the captive.[31] In this essence, Misty C. Duke and Damien Van Puyvelde emphasise the distinction between suggesting accurate and truthful evidence to a captive on the one hand and deceitful or inaccurate information on the other. The former might contribute to detecting deception and building a productive relationship with the captive, whereas the latter may lead to faulty intelligence and consequently, leave interrogators astray.[32]
Conclusion
Torture is demeaning and violates the fundamental existence of human beings as bearers of dignity with the utmost unimaginable cruelty. For this reason alone, as mentioned in part 1 of this article, torture is ethically unjustifiable. Even a threshold deontological approach is completely unwarranted because “ticking bomb” scenarios are more myth than reality. Once torture is permitted it will have a corrupting effect on governmental institutions, as the vast amount of evidence of deceit and the covering of tracks contained within the SSCI report attests. Above all, torture is not proven to work as a reliable source of accurate intelligence. The CIA’s EITs provide a striking example of this. The techniques used, have proven to be deleterious, and their heuristic nature is extremely obstructive to the captive’s cognitive and neurobiological functioning. These techniques that supposedly enhance intelligence collection do exactly the opposite – they hinder interrogation.
Sources
[1] U.S. Senate Select Committee on Intelligence, Committee Study of the CIA’s Detention and Interrogation Program, S. Rpt. 113–288, at http://www.intelligence.senaat.gov/publications
[2] Ibid., 4 and 160-161.
[3] Ibid., 4 and 12.
[4] Alan M. Dershowitz, Why Terrorism Works: Understanding the Threat Responding to the challenge (London: Yale University Press, 2002).
[5] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the U.N. General Assembly. 10 December 1984.
[6] Ibid., article 1, paragraph 1.
[7] Michael Davis, “The Moral Justifiability of Torture and other Cruel, Inhuman, or Degrading Treatment,” The International Journal of Applied Philosophy 19 no. 2 (January 2005): 164.
[8] Mathew H. Kramer, Torture and Moral Integrity: A philosophical enquiry. (Oxford: Oxford University Press, 2014), 32-33.
[9] Ibid., 51-53. Kramer’s criticism is not directed to interrogational torture.
[10] I used the VAT definition as starting point.
[11] Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 1, paragraph 2. Adopted by General Assembly. 9 December 1975.
[12] U.S. Department of Justice. Memorandum from Jay S. Bybee to Alberto R. Gonzales, Standards of Conduct for Interrogation under 18 U.S.C.§§ 2340-2340A, 1 August 2002 at www.washingtonpost.com/wpsrv/nation/documents/dojinterrogationmemo20020801.pdf
[13] SSCI Report, xii and 44.
[14] George W. Bush, Decision Points (New York: Random House, 2010), 169.
[15] Ronald Melzack and Warren R. Torgerson, “On the Language of Pain,” Anaesthesiology 34, no. 1 (1971): 58 and Donald D. Price “Psychological and Neural Mechanisms of the Affective Dimension of Pain,” Science 288 (2000).
[16] Ibid., 1770.
[17] Paul D. Kenny, “The Meaning of Torture.” Polity 42, no. 2 (2009): 149.
[18] Metin Basoglu, Maria Livanou, and Cvetana Crnobaric, "Torture vs Other Cruel, Inhuman, and Degrading Treatment: Is the Distinction Real or Apparent?" Archives of General Psychiatry 64 (2007): 283.
[19] Shane O’Mara Why Torture Doesn’t Work: The Neuroscience of Interrogation (London: Harvard University Press, 2015), 149.
[20] Elizabeth F. Loftus, “Intelligence Gathering Post 9/11,” American Psychologist, 66 no. 6 (2011): 533.
[21] Ibid.
[22] Duke and Puyvelde, “What Science Can Teach,” 316-317.
[23] SSCI Report, xi.
[24] Ibid., 83.
[25] O’Mara Why Torture Doesn’t Work, 101.
[26] Ibid.
[27] Ibid.
[28] Ibid., 103.
[29] Ibid., 51.
[30] Ibid., 104.
[31] Duke and Puyvelde, “What Science Can Teach,” 323.
[32] Ibid.