Torture Is Never Legal and Didn't Lead Us to Bin Laden

By Marjorie Cohn
Published by Portside
May 13, 2011

The assassination of Osama bin Laden has rekindled the
discourse about the efficacy and legality of using
torture in the "war on terror." Torture is illegal
under all circumstances, even in wartime. Moreover, the
United States located Bin Laden with traditional
interrogation methods over several years, not by the
use of torture.

When the United States ratified the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, it became part of U.S. law under the
Supremacy Clause of the Constitution, which says
treaties are the supreme law of the land. The Torture
Convention states, "No exceptional circumstances
whatsoever, whether a state of war or a threat of war,
internal political instability or any other public
emergency, may be invoked as a justification of
torture." The prohibition against torture is
unequivocal, regardless of the circumstances.

Pundits proclaim that the successful hit on Bin Laden
exonerates the Bush administration for its use of
"enhanced interrogation techniques" - aka torture. John
Yoo wrote in the Wall Street Journal that the kill
"vindicates the Bush administration, whose intelligence
architecture marked the path to bin Laden's door." The
author of the most egregious torture memos, Yoo
maintains that "the tough interrogations" of Khalid
Sheikh Mohammed and Abu Faraj al-Libi provided the
United States with the identity of Bin Laden's courier.

Yoo's claims are false. Senator John McCain declared in
a speech on the Senate floor yesterday, "It was not
torture, or cruel, inhuman and degrading treatment of
detainees that got us the major leads that ultimately
enabled our intelligence community to find Osama bin
Laden." McCain said that CIA Director Leon Panetta told
him: "The first mention of Abu Ahmed al-Kuwaiti - the
nickname of the al-Qaeda courier who ultimately led us
to bin Laden - as well as a description of him as an
important member of al-Qaeda, came from a detainee held
in another country, who we believe was not tortured.
None of the three detainees who were waterboarded
provided Abu  Ahmed's real name, his whereabouts or an
accurate description of his role in al-Qaeda."

McCain added, "In fact, the use of `enhanced
interrogation techniques' on Khalid Sheik Mohammed
produced false and misleading information." Mohammed
was waterboarded 183 times in 2003. It is well-
established in U.S. case law that waterboarding
constitutes torture.

Tommy Vietor, spokesman for the National Security
Council, agrees that waterboarding didn't lead us to
Bin Laden. He said, "The bottom line is this: If we had
some kind of smoking-gun intelligence from
waterboarding in 2003, we would have taken out Osama
bin Laden in 2003." He added: "It took years of
collection and analysis from many different sources to
develop the case that enabled us to identify this
compound, and reach a judgment that Bin Laden was
likely to be living there."

White House Press Secretary Jay Carney concurs: "It
simply strains credulity to suggest that a piece of
information that may or may not have been gathered
eight years ago somehow led to a successful mission [on
May 1]. That's just not the case." Dianne Feinstein,
chairwoman of the Senate Intelligence Committee,
confirmed that "none of it came as a result of harsh
interrogation practices."

A 2006 study by the National Defense Intelligence
College found that traditional, rapport-building
interrogation techniques are extremely effective even
with the most hardened detainees, but coercive tactics
create resistance and resentment.

Interrogators agree that torture is not efficacious to
glean intelligence. Glenn L. Carle, who supervised the
2002 interrogation of a high-level detainee for the
CIA, told The New York Times that coercive techniques
"didn't provide useful, meaningful, trustworthy
information."

Likewise, Ali Soufan, who interrogated Abu Zubaydah,
testified before Congress that harsh interrogation
techniques "are ineffective, slow, and unreliable, and
as a result harmful to our efforts to defeat al Qaeda."
Soufan wrote in the Times that any useful information
Zubaydah provided happened before the "enhanced
interrogation techniques" were utilized.

Matthew Alexander, a former senior military
interrogator who supervised or conducted 1,300
interrogations in Iraq, which led to the capture of
several al-Qaeda leaders, echoes Soufan's sentiments.
Alexander said, "I think that without a doubt, torture
and enhanced interrogation techniques slowed down the
hunt for Bin Laden."

When I testified in 2008 before the House Judiciary
Committee's Subcommittee on the Constitution, Civil
Rights, and Civil Liberties about Bush administration
interrogation policy, one of the Republican congressmen
asked me how I would fashion an interrogation statute.
I replied that it would require humane, kind,
respectful treatment to develop trust. As the
questioner sniggered, Professor Philippe Sands, who
also testified on the same panel that day, said I was
correct, that the British got much better intelligence
from the Irish Republican Army when they used humane
techniques.

In her chapter in The United States and Torture:
Interrogation, Incarceration, and Abuse, journalist
Jane Mayer discusses Ibn Sheikh al Libi, who was
tortured in CIA custody. Al Libi provided a link
between Saddam Hussein and al Qaeda, which Colin Powell
cited in his speech before the Security Council as he
tried to secure a resolution authorizing the invasion
of Iraq. The CIA knew Al Libi's information was false;
indeed, he later recanted, and died under mysterious
circumstances.

Torture is not simply illegal, immoral and ineffective.
It is also counter-productive. Former Navy General
Counsel Alberto Mora testified before Congress that the
two most effective recruiting tools for those who would
do harm to our soldiers in Iraq were Abu Ghraib and
Guant namo. When people see the U.S. government
torturing detainees from their countries, they resent
us even more.

Indeed, an interrogator currently serving in
Afghanistan, told Forbes, "I cannot even count the
amount of times that I personally have come face to
face with detainees, who told me they were primarily
motivated to do what they did, because of hearing that
we committed torture . . . Torture committed by
Americans in the past continues to kill Americans
today."

Until the United States completely revamps our foreign
policy and ends the wars, occupations, and harsh
treatment of people in U.S. custody, we will continue
to be vulnerable to terrorism.

Marjorie Cohn is a professor at Thomas Jefferson School
of Law, past president of the National Lawyers Guild,
and deputy secretary general of the International
Association of Democratic Lawyers. Her latest book is
"The United States and Torture: Interrogation,
Incarceration, and Abuse." (NYU Press).

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