Torture at the Polls

Wendy Kaminer

It’s hard to know if we should characterize as good or bad news a recent Pew Forum survey suggesting that public opinion is fairly evenly split over the legitimacy of torture. Support for torture was disproportionately low among people who do not attend religious services (which may reflect their political affiliations rather than any particular godless morality), but overall, nearly half the respondents to Pew’s survey opined that the torture of suspected terrorists is often or sometimes justified. About the same proportion said that torture is rarely or never justified. Whether this is evidence of the strength or weakness of our moral instincts, it tells us little or nothing about our understanding of torture and its use by the Bush administration post–September 11, 2001.

Here’s the question posed by Pew: “Torture to gain important information from suspected terrorists is justified . . . [check one response] Often; Sometimes; Rarely; Never; Don’t Know.” The question incorporates two unsubstantiated and highly debatable assumptions: that important information may, in fact, be gained by torturing people and that people imprisoned on suspicion of terrorism are, in fact, terrorists who harbor important information about pending or future attacks. In other words, the Pew survey reflects the highly misleading and highly popular “ticking bomb” scenario: the good guys have in their custody a really bad guy (his guilt may not have been proven in court, but the good guys have every reason to be certain of it), and he knows the whereabouts of a ticking bomb or a kidnapped child who will perish within hours unless he talks.

But this atypical Hollywood scenario was not the one confronted by agents or contractors who tortured post–9/11 terror suspects under color of law. After all, if the good guys are certain that their prisoner knows the whereabouts of a ticking bomb and would reveal it under torture, they would probably not wait for the Justice Department to draft and finalize lengthy legal memoranda before employing their arsenal of “enhanced interrogation techniques.” (Of course, interrogators might torture first and obtain legal justifications for torture later, greatly increasing their legal liability; the possibility that they did so post–9/11 is one more subject for an inquiry.)

In any case, there is strong evidence that torturing terror suspects did not produce the life-saving information that advocates of torture claim it did. On April 23, 2009, in a New York Times op-ed piece, former Federal Bureau of Investigation agent Ali Soufan denounced “the false claims magnifying the effectiveness of the so-called enhanced interrogation techniques like water boarding. . . . There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions—all of which are still classified. . . . Defenders of these techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and Mr. Padilla. This is false.”

But while some will believe Soufan and have confidence that he is reporting the facts, others will put their faith in the encomiums to torture offered by Dick Cheney (who seems hopeful that a murderous attack will occur while Obama is in office, not engaging in torture). What are the facts about torture, and do they matter when people reflexively believe what they hear from political allies or idols? Even if some blue-ribbon truth commission were established to investigate post–9/11 abuses, its findings would likely be dismissed by people who found them politically unpalatable or impossible to reconcile with deeply held beliefs. (Prosecutions of people who authorized or practiced torture, which seem highly unlikely, would be even more readily dismissed as witch hunts.)

I don’t mean to diminish the importance of uncovering unpleasant truths about the use of torture and holding people accountable for it. I don’t mean to suggest that investigations of torture will have either no or only marginal effects on public opinion. If a generally credible fact-finder reports that torture did not help keep us safe by eliciting important information that would not have been elicited otherwise, public sentiment could turn against it. (Attitudes toward torture will inevitably reflect conventional wisdom about its effectiveness, not its morality.) If a majority doesn’t turn against torture, it will surely be embraced again, with at least tacit public approval, as openly as it was embraced by the Bush administration.

Revelations about “enhanced interrogations” and debates about justification are not new; they date back to Bush’s first term in office, and, as I recall, they posed no significant barrier to his reelection. But they do complicate efforts by his successor to forge an anti-torture consensus. The elected officials who advocated it, the lawyers who provided cover for it, and the agents who practiced it are not the only people who need protection from condemnations of torture. Prior public knowledge that the government was engaging in torture provides one more reason for continuing public approval of it.

Wendy Kaminer

Wendy Kaminer is a lawyer and social critic. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU (Beacon Press, 2009).


It’s hard to know if we should characterize as good or bad news a recent Pew Forum survey suggesting that public opinion is fairly evenly split over the legitimacy of torture. Support for torture was disproportionately low among people who do not attend religious services (which may reflect their political affiliations rather than any particular …

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