JURIST Guest Columnists Victor Hansen and Lawrence Friedman of New England School of Law say that if we learn nothing else from recent disclosures about the Bush administration's use of harsh interrogation techniques on terrorism detainees, we must come to understand that once we decide to go down the road to officially sanctioned cruelty – either out of frustration, desperation, fear, or a mistaken belief that ends justify means – the lasting and damaging consequences of those actions will likely be beyond our control…

Following President Barack Obama’s decision to release the so-called “torture memos,” which revealed the legal thinking behind the Bush administration’s use of harsh interrogation techniques on terrorism detainees, there has been a call for the release of classified documents showing what information we learned from those detainees. Leading the charge has been former Vice President Dick Cheney, who complained that Obama had not released “the memos that showed the success of the [interrogation] effort.”

Numerous commentators have agreed that any debate about the efficacy of particular interrogation techniques should consider whether those techniques resulted in the discovery of actionable intelligence. The argument made by President Obama and his top aides that the interrogation methods approved in the torture memos undermined American values and produced unreliable information would, as Scott Shane, writing in the New York Times, has noted “be far trickier if the C.I.A. methods were demonstrated to have been crucial in disrupting major plots.”

But the conclusion does not necessarily follow that, even if the government were to reveal information about the results of its interrogation efforts, that information would justify the use of waterboarding and other controversial interrogation techniques. This is so for at least four reasons. First, defenders of the Bush administration’s use of harsh interrogation methods operated on the belief that essentially all aspects of terrorist plotting amounted to a “ticking bomb” scenario. But it cannot be the case that every situation presents such a scenario. Further, if agents of the United States government had the time to waterboard a detainee more than one hundred times, it is unlikely any bomb was ticking. And, apparently, according to information that has been reported, the most controversial techniques were used repeatedly over time in the belief that the information revealed on the last day of the interrogation was as reliable as that revealed on the first—an empirically suspect proposition.

The second reason why the release of information about the so-called success of harsh interrogation would not demonstrate its validity and utility is that, even if these interrogations did result in the discovery of actionable intelligence, as former Vice President Cheney and others claim, we have no way to determine whether we would have got better — or more reliable — information more quickly using less harsh techniques. Indeed, the public is ill-equipped to evaluate governmental claims that the information we learned using harsh interrogation techniques was useful in any particular circumstance. Consider that, even at this point in time, there is, at a minimum, strong disagreement among experts about how best to obtain information from an individual that is reliable and, therefore, useful. As early as 2002, the F.B.I. declined to participate in the C.I.A. interrogation program because of questions about methods, and former F.B.I. supervisory special agent Ali Soufan, also writing in the New York Times, has stated that the use of traditional interrogation methods actually had produced actionable intelligence in multiple instances. As he put it: “traditional interrogation techniques are successful in identifying operatives, uncovering plots and saving lives.”

Third, whether the information about the results of harsh interrogations produced actionable intelligence obscures what was most fundamentally wrong with the interrogation programs: the use of these techniques had the effect of eroding our moral authority to fight terrorism, as well as our ability to maintain discipline over our own forces, and it had a corrupting effect on those who were called on to implement these techniques. In its report on the treatment of detainees in U.S. custody, the Sentate Armed Services Committee thoroughly documented how the policies, procedures and attitudes developed for interrogations conducted at Guantanamo and C.I.A. black sites made their way to Iraq and Afghanistan. The consequence was the abuse and torture of detaines at the hands of United States military men and women. Further, as President Obama, Defense Secretary Gates, and a number of senior military leaders seem to understand, the shadow of Abu Ghraib, Guantanamo, and C.I.A. black sites have made our efforts in Iraq, Afghanistan and elsewhere that much more difficult: the Bush/Cheney-era policies have provided a rallying point for Islamic extremists throughout the Middle East and complicated our efforts to fight insurgencies in Iraq and Afghanistan, all at the cost of the lives of American service members.

Finally, and perhaps most importantly, the release of the information that former Vice President Cheney claims will demonstrate the effectiveness of the programs would do nothing to establish the legality of these programs. We have seen in the most recently released memoranda on interrogations from the Bush/Cheney-era that the pervasive attitude in the Office of Legal Counsel and in the administration was that ends justify means. This attitude served as the underlying motivation for poorly reasoned and inadequately considered legal opinions. This attitude explains why, when comparing the treatment of the detainees in C.I.A. control to the training that U.S. forces receive, the legal opinions failed to consider the cumulative and repeated effect that these techniques could have on the detainees. It also explains why the legal opinions failed to take into consideration that U.S. forces undergoing training knew that at some relatively short point in time, their training would come to an end, and thus, they would not likely suffer lasting psychological impact from the training. The same cannot be said for the high-value detainees being held by the United States.

In short, these flawed legal opinions failed to consider how interrogation could amount to torture and cruel, inhumane, and degrading treatment, in violation if U.S. law. The release of the results of our use of harsh interrogaton methods would not make these methods legal. If we have learned nothing else from this sad chapter in our history, we must come to understand that once we decide to go down the road to officially sanctioned cruelty, either out of frustration, desperation, fear, or a mistaken belief that ends justify means, the lasting and damaging consequences of those actions will likely be beyond our control. It seems that the former Vice President has not learned this lesson, but that does not mean we cannot learn from these mistakes.

Victor Hansen
teaches criminal law and criminal procedure and Lawrence Friedman teaches constitutional law and state constitutional law at New England School of Law. Their book, The Case for Congress: Separation of Powers and the War on Terror, will be published in 2009.
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