Torture, Torture-Lite, and the Predictability of Dick Cheney

When the news broke last week about the Senate Intelligence Committee’s release of the report on CIA torture of terror suspect detainees, outrage ensued. Politicians pounded their chests in indignation about how ‘this isn’t who we are as Americans.’ The words “American people” were uttered numerous times. CNN’s Wolf Blitzer asked pointed questions of the CIA’s then-counsel, John Rizzo, about the approval process for enhanced interrogation techniques like water-boarding. The New York Times reported that the report’s release put potential presidential candidates “in quiet mode”.  Others fretted about what this meant for American interests and citizens abroad, and whether there would be retaliation and imprisonment for those involved.

Watching CNN on the morning of the report’s release, I knew it would be a matter of time – a day or so – and then the reporting pendulum would swing the other way. Defenders of foreign policy, including CIA interrogation tactics and black sites, under then-President George Bush would surface. And sure enough, like clockwork, out came former Vice President Dick Cheney. The report was “full of crap”, Cheney told Fox News.  He called it “deeply flawed” and “a terrible piece of work” demonstrating how politicians – democrats – will get together to “throw the professionals under the bus.”

You gotta love Dick Cheney. And by “love” I mean marvel at the spectacularly unapologetic, non-introspective, non-self-doubting force of nature that is the former Vice President.

If you watched the Showtime documentary “The World According to Dick Cheney”, then none of this surprises you. When asked by “The World” filmmakers what he considered his main faults, Cheney paused for some seconds and then answered, “I don’t spend much time thinking about my faults.” Indeed, he is a man who would condone techniques from the CIA’s KUBARK manual and never lose a night’s sleep over it, if there were a chance that these practices could extract information useful to protecting the country.

Since the 9/11 attacks, issues like terrorism, torture and emergency preparedness have become more common in criminal justice curricula. When I teach Issues in Criminal Justice, I cover torture in a chapter by Andrew Moher and Elisa Massimino (“Does the United States have a right to torture suspected terrorists?”) that discusses the pros and cons of torturing. On the pro side, proponents argue that it’s a necessary evil (injuring and terrorizing individuals who play a role in killing Americans) that may prevent a greater evil (mass deaths of Americans). Former CIA investigator Jose Rodriguez notes that the techniques are designed to make the suspect uncomfortable, and that this is fair given their intentions and the need to keep the country safe from groups like Isis and Al-Qaeda. On the con side, torture is immoral and simply breeds more terrorists plotting against the U.S. Plus, it has been noted, people lie to make the pain stop. The utility of information obtained through the torture of suspects is currently a subject of debate.

If you saw “Zero Dark Thirty”, or even just the beginning of the movie, you have a sense of the nastiness of these techniques. Being stripped naked and chained up. Having loud music blasting constantly and bright lights shining at you so you can’t sleep. Given minimal food and drink. Being locked in a box in which you can neither sit, stand, or stretch out. The box was the one that got me. The box would make me crack.

Part of the problem is possibly that the definition of torture is actually a bit murky. Sure, it’s illegal under U.S. and international law, as per the Geneva Convention, the International Covenant on Civil and Political Rights, the Convention against Torture (ratified by the U.S. in 1994), as well as the 8^th Amendment to the U.S. Constitution. But what is it exactly? None of the techniques shown in “Zero Dark” will kill a suspect, and therein comes the distinction between torture vs. torture-lite. Traditional torture techniques like amputation and mutilation cause severe pain and possibly death. By contrast, torture-lite practices like sleep deprivation, moderate beatings, and exposing a person to extreme heat or cold will make them very uncomfortable, but not cause death or even (perhaps) severe pain. Thus, torture-lite could fall outside the realm of illegal practices. In other words, torture-lite practices exploit definitional ambiguities.

And then of course there is the practice of rendition, or shipping terror suspects to countries with looser policies on torture. The U.S. has shipped terror suspect detainees to countries known to torture, like Egypt and Pakistan. The benefit to the U.S. is that we can disavow knowledge of the terrible acts that occur in dungeon-like rooms, claim that our hands are clean, and still benefit from any knowledge that may be obtained.

Senator Ron Wyden, Democrat from Oregon who serves on the Senate Intelligence Committee, stated on National Public Radio that “the conduct described in this [torture] report is not America.” I’m not so sure he’s right. It’s not who we like to think we are. We’re willing to give up certain things – privacy, a strong sense of right vs. wrong vs. justifiable conduct – after a terrible attack like 9/11. From a violent crime perspective, the U.S. also has much higher homicide rates than similarly developed nations. The torture report’s release offers the nation a chance to do some soul-searching about its heart of darkness, long after it is out of news headlines. 

This is how I intended to end this blog post, until I read two recent articles in www.nj.com by journalist Paul Mulshine: Two ex-CIA agents weigh in on 13 years of bad leadership under Bush and Obama and Don't believe waterboarding is torture? Watch this radio talker squeal. Mulshine is politically conservative, which made his opposition to torture surprising (to me). He and his ex-CIA acquaintances know more on the subject than I do - indeed, one of them has been tortured - so I'll defer to their wisdom. Among the points that Mulshine makes that are worth considering:

(1) True conservatives would never want to put that much power - to torture - in the hands of the government. Political conservatives favor less government, not more. To quote one of Mulshine's comments (to me), "if there was a justification for torture then Ronald Reagan would not have signed the anti-torture treaty." When I asked Mulshine what he thought of Alan Dershowitz's idea of a torture warrant to make torture legal and safe (relatively speaking), Mulshine referred to Dershowitz as "ultra-liberal". 

(2) When the CIA's torture/investigation program began, the CIA had little experience in conducting investigations. The FBI had much more experience. This opinion is from the two former CIA agents. 

(3) The torture program was designed by psychologists who didn't know much about the subject. Mulshine refers to the end result as a program of "staggering incompetence." 

Inexperienced operatives inflicting pain on captives to extract information. Winging it, essentially. Hoping it would work. Quite a different image than what we saw in "Zero Dark". 

How to Handle a Campus Rape Complaint

Note: a version of these suggestions were originally posted by me here:  http://chronicle.com/article/Study-Challenges-Notion-That/150817/

This is a suggested approach for colleges and universities handling rape accusations, when both the accuser and accused are students at the college or university.

(1) The default assumption should be that the victim is telling the truth and needs to be protected and handled with care.

(2) The police are the best ones to handle rape complaints. Police don't do everything perfectly, but they've had training in investigations in a way that college administrators, staff, and professors haven't.

(3) The 6th Amendment rights of the accused need to be protected. People are innocent until proven guilty. 

(4) Yes, some victims may not be entirely truthful, but that shouldn't be the starting assumption. 

(5) The university should do what it can to keep the accused and accuser physically separate on campus while the police conduct their investigation. Alternative class schedule arrangements should be made. The accuser could be offered the option of having a bodyguard of sorts accompany her around campus. 

(6) The accused should not be suspended or expelled from campus until convicted, or at the least indicted by a grand jury (meaning there's enough evidence to move forward with a case). Maybe suspended with an indictment, and expelled if convicted.

Rolling Stone magazine, Justice for Victims, and the 6th Amendment

As you may know by now, Rolling Stone (RS) magazine has apologized for, and then retracted, its story on a gang rape of "Jackie" (not her real name) at a University of Virginia fraternity after discrepancies in the woman's story surfaced. In case you haven't seen the original article - and the more recently added retraction - it's viewable here. Among the problems with the story as reported are that the journalist, at Jackie's request, never interviewed the alleged perpetrators. Also, no party occurred at the frat house on the night the attack reportedly happened. Jackie told the RS reporter that one of her attackers, "Drew" (not his real name), was a member of the fraternity where the attack occurred. It turns out he is a member of a different fraternity. There are a few other discrepancies as well. Even so, Jackie stands by her story. 

Here are some thoughts, in no particular order.

(1) Discrepancies or no, sexual assault on campus remains a nagging problem. 

(2) Circumstances surrounding campus rape can make prosecutors reluctant to pursue a case; if, for example, there was drinking involved by both the victim and perpetrator(s). A rape that occurs at a college fraternity party would likely involve drinking at the very least. It may have begun as a consensual encounter, then turned non-consensual and ugly. From a legal standpoint, the 'better' type of victim/witness for the prosecution didn't know her attacker(s) ahead of time, and at the time of the attack was only involved in wholesome activities like coming home from church. Any questions about the victim's behavior at the time of the attack can shift blame off of the perpetrator and onto the accuser. A good example of how rape victims can be mistreated by the justice system - by prosecutors, who are supposed to be on their side - is shown in this this video clip from the movie "The Accused".

(3) From a police and prosecution perspective, ideally rape victims would dial 911 immediately after an attack, not shower before heading (right away) to the hospital, and submit to a rape kit so that as much evidence can be collected as possible. In reality, this could very well be the last thing a victim wants to do. She may prefer to go home, shower, call a friend, crawl into bed, weep, and process what happened for weeks, months, or years before coming forward. Such is the case with Emma Sulkowicz, the young woman at Columbia University who is carrying a mattress around campus until her attacker is expelled from the school. This is part of her performance art senior thesis, entitled "Carry that Weight", and it refers to an assault that happened two years earlier when she was a sophomore. In waiting to report an assault, rape victims may contribute to their own inability to get justice. But this sounds like victim-blaming. Is it even fair to mention this? 

And speaking of expelling (alleged) perpetrators from their universities - 

(4) Colleges and universities face a thorny legal problem if they try to expel someone for breaking a law when he/she hasn't been convicted or even arrested. The Sixth Amendment to the U.S. Constitution is all about rights for the accused, including the right to confront witnesses against oneself, and to understand the nature of the alleged crime and the evidence pertaining to that crime. 

(5) It must be truly, unimaginably awful to be a rape victim and have to walk around campus still seeing one's attacker in the hallways, in the cafeteria, in class.

(6) It must also be awful to be accused of something, to wear the scarlet letter R (Rapist!), for something you didn't actually do. I don't think that the majority of rape accusations are false, but they happen. Remember the Duke University lacrosse team allege rape/fiasco? This blogger saw a biography of the accuser in that case, and she claims to have been gang-raped as a teenager by her boyfriend's friends (set up by him). She doesn't seem to have reported this to the police. Years later, she (apparently falsely) accused three men on Duke's lacrosse team of a gang assault. No justice is served by accusing the wrong people of a crime they didn't commit. (Note: I've previously written about the Duke University case.) 

(7) There's no easy solution for solving the problem of sexual assault on campus. Despite the amount of brain power on college campuses, university folk haven't come up with any perfect solutions. Ideas like California's "yes means yes" campaign are, in my humble opinion, silly and doomed to fail. In trying to balance victims' needs for justice and comfort with fairness to accused perpetrators, bad feelings will abound.

(8) I still stand by my sentiment expressed in an earlier blog post: let the police handle it. Not that the police do everything perfectly, but they've had more training in working with rape victims. It's a criminal matter; let the criminal justice folks do what they do.