Bowden on the Waterboarding of Abu Zubaydah:

Agree with his conclusions or not, Mark Bowden is always worth reading. His reporting on counter-insurgency and counter-terrorism efforts, from Black Hawk Down to his articles on torture and interrogation methods in The Atlantic (see here and here) are riveting, thought-provoking, and often unsettling. Few, if any, journalists have covered these issues and events with his level of insight and intelligence.

This past Sunday, Bowden had a an op-ed in Philadelphia Inquirer, somewhat deceptively titled "In Defense of Waterboarding." In the article, Bowden argues that information gleaned from coerced interrogations should never be admissible in court. But he rejects the notion that torture never "works," if by that one means that torture never yields truthful information. What torture and other coercive interrogation techniques yield is that which the victim believes his captors want to hear. If they want a confession for criminal conduct, they'll get it, and it will be worthless. But if they want readily verifiable, time-sensitive intelligence information, coercive interrogation methods may yield that as well. Writes Bowden:

Here's where the issue gets confusing. No information gained by coercive methods ought to be admissible, ever, in a trial or tribunal. Torture can be used to twist (the word torture literally means "to twist") testimony in any desired direction. The goal of any criminal proceeding is justice, and torture produces only the kind perfected during the Inquisition.

The goal of an intelligence operation in wartime, on the other hand, is to elicit accurate, timely information to thwart attacks. In this setting, interrogation is a process, one in which a prisoner is rewarded for the truth, and punished for lying. It is designed to save lives and ensure the success of a military operation. Coercive methods are rarely necessary. Most often, prisoners can be induced to cooperate by being nice to them. There are many other interrogation methods proven to be useful that do not require so much as raising one's voice. But there will always be hard cases like Abu Zubaydah and Khalid Sheik Mohammed, another mastermind of Sept. 11. With prisoners like these, defiant and dangerous, the only right question to ask is, What works?

Again, Bowden's answer is that, for intelligence purposes, coercive methods that induce fear can work — indeed, "fear works better than pain" — and (in the most extreme cases) there may not be equally effective alternative methods available.

Does this mean that official government policy should sanction torture or other coercive interrogation methods? Not to Bowden. He believes that techniques like waterboarding are, and should remain, illegal. But he also argues that this does not mean those who waterboarded Abu Zubaydah should be subject to criminal prosecution. As he concludes:

It is an ugly business, and it is rightly banned. The interrogators who waterboarded Zubaydah were breaking the law. They knew they were risking their careers and freedom. But if the result of the act itself was a healthy terrorist with a bad memory vs. a terror attack that might kill hundreds or even thousands of people, it is a good outcome. The decision to punish those responsible for producing it is an executive one. Prosecutors and judges are permitted to weigh the circumstances and consider intent.

Which is why I say that waterboarding Zubaydah may have been illegal, but it wasn't wrong.

Waterboarding was a horrific thing to do to someone, even someone as evil as Abu Zubaydah. Such conduct should be forbidden and never sanctioned as official policy (even if some journalists and DoJ officials have survived it). At the same time, there may be extreme (and extremely rare) circumstances in which life does imitate an episode of "24," and horrific measures may be necessary. This does not mean such measures should be legal. Rather, as Bowden suggests, the specific context should be considered when authorities decide whether and how to prosecute those involved for breaking the law.

UPDATE: A few quick points in response to some of the comments below. First, many claims made in the comments have already been addressed in one or more of the Bowden articles linked above. Bowden clearly understands that non-coercive interrogation techniques are more than sufficient in the vast majority of cases. Indeed, both Atlantic articles linked above discusses the success of such techniques in some detail. Yet he also identifies instances in which such methods were insufficient, and where coercive techniques designed to generate fear (rather than inflict pain) yielded potentially life-saving information. Another example not discussed by Bowden is when Israeli agents used extremely coercive interrogation techniques on one of the captors of Corp. Nachshon Waxman. These methods violated Israeli law, but they also worked, and Waxman was rapidly found (but killed nonetheless). The unfortunate reality is that coercive interrogation methods designed to instill fear in captives can produce potentially life-saving intelligence information in a timely fashion in many circumstances. It is also true that such techniques, in and of themselves, are morally repugnant and using (or even threatening to use) such techniques is illegal, whether or not one wishes to call them "torture."

As for what Bowden proposes, his approach is basically that adopted by Israel after the Israeli Supreme Court overturned regulations allowing coercive interrogations as official policy. Such techniques are now illegal in Israel, but those prosecuted for utilizing them can also plead necessity in their defense. Keeping the techniques illegal prevents their use in all but the most extreme circumstances, but it is also understood that their are instances in which other values may trump compliance with the law. I would also note that, under U.S. law, prosecutorial discretion and the pardon power both permit executive officials (or the President) to excuse extreme actions taken in extreme circumstances, and the pardon power has been used to excuse actions that a president believed were justified despite being against the law.

Why not simply approve these techniques if they can "work" when properly used? Because when they are approved they tend not to be "properly used." As Bowden has reported (and some commenters note), ex ante approval of coercive techniques tends to lead to their "overuse." In Israel and elsewhere the experience has been that the standards for when such techniques can be used are progressively lowered and the official sanction of such techniques leads to abuse. This is one reason why Bowden argues for ex post exoneration due to "necessity" instead of ex ante approval.