The decision to authorize torture was made in the immediate aftermath of the attacks of September 11, 2001, before any suspects had been taken into custody. On September 17, 2001 President Bush signed a memorandum of understanding granting the CIA authority to establish a secret detention and interrogation operation overseas. The Clinton-era rendition program was ramped up into “extraordinary rendition,” permitting the CIA to kidnap people from anywhere and disappear them into “black sites” or extra-legally transfer them to states with well-established records of torture, like Egypt and Morocco. By December 2001, the Pentagon was exploring how to “reverse engineer” SERE (survival, evasion, resistance, extraction) techniques that had been developed during the Cold War to train US soldiers in case they were captured by regimes that don’t adhere to the Geneva Conventions.

The Bush administration circumvented the legal prohibitions against torturing and abusing prisoners by declaring the Geneva Conventions inapplicable in the “war on terror,” which the president did in a secret directive to his national security team (over State Department dissent) on February 7, 2002. A team of “torture lawyers” from the White House, Department of Justice’s Office of Legal Counsel (OLC) and Pentagon constructed an elaborate set of legal interpretations and security rationales to authorize violent and painful interrogation tactics, and to negate the risk of criminal liability for doing so. Prisoners classified as “unlawful combatants” and detained at Guantánamo (GITMO) were to be held incommunicado with no status review hearings, which meant that they were afforded no habeas corpus rights, a contravention of, arguably, the most basic rule of law norm that dates back to the Magna Carta.

In 2002, OLC lawyers authored memos for the CIA narrowing the definition of physical torture to exclude anything less than “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” They also argued that cruel, inhuman or degrading (CID) treatment would not constitute mental torture unless it caused effects that lasted “months or even years.” The legal rationales devised for the CIA influenced subsequent Pentagon directives for military interrogations at GITMO.

These torture-permissive interrogation and detention policies have affected tens of thousands of people: Considering only prisoners held overseas, approximately 500-600 have been held at Bagram at any given time since the 2001 invasion, a number that does not include prisoners held “off the books” by the CIA or Special Forces. In Iraq, the number rose at the end of 2007 as a result of the “surge” to 51,000, including hundreds of juveniles. At its peak, GITMO held 775, and an estimated 100 were held in secret CIA detention. As of January 2009, there were 245 detainees at GITMO, 700 in Afghanistan, 200 in the Horn of Africa, and 39 known to have been taken by the CIA but whose whereabouts are currently unknown.

The overwhelming majority was innocent or had no meaningful intelligence: Thousands were swept up in raids, hundreds were sold into custody for big bounties paid by the US, some were named by others under torture, and some were victims of mistaken identities. But most captives remained in custody, many continuing to be interrogated, long after their innocence or intelligence valuelessness was known.
Abu Zubaydah (nom de guerre for Zayn al-Abidin Muhammad) was the first “high value target” to be captured in early 2002. In CIA custody he was waterboarded 83 times and confined in a coffin-like box with insects. His treatment set the stage for the whole CIA interrogation program, which subsequently “migrated” to GITMO and then to Iraq. A factor contributing to the escalating harshness was that his importance had been overestimated. Contrary to the initial presumption that he was al-Qaeda’s chief of operations and top recruiter, in fact, he was more like a receptionist responsible for moving people in and out of training camps. He had not even joined al-Qaeda until after 9/11. According to former senior government officials who followed his interrogations, not a single plot was foiled as a result of his tortured confessions, but false statements that he made to stop the pain (e.g., about planned attacks on shopping malls, nuclear plants, the Brooklyn Bridge and the Statue of Liberty) sent hundreds of CIA and FBI investigators in pursuit of phantoms.

Unlike Abu Zubaydah, Khalid Sheikh Muhammad (KSM) was a valuable intelligence asset. He was captured in 2003 not as a result of information gleaned by torture but rather a $25 million dollar reward. KSM was subjected to waterboarding 183 times along with the full panoply of tactics in the CIA’s repertoire. According to former CIA and Pentagon officials with direct knowledge of his interrogations, most of what he said under torture was lies, and he gave up no actionable intelligence.

Torture’s inefficacy in the interrogation of someone as valuable as KSM was true of the entire US torture program. According to investigative journalist David Rose, who interviewed numerous counterterrorism officials from the US and elsewhere, their conclusions were unanimous: “not only have coercive methods failed to generate significant and actionable intelligence, they have also caused the squandering of resources on a massive scale ….”

The torture of Arabs and Muslims has been a major recruitment tool for al-Qaeda and other terrorist organizations. According to Matthew Alexander (pseudonym), a retired Air Force major with extensive interrogation experience in Iraq, the number one reason foreign fighters gave for coming to Iraq was anger at the torture and abuses of Abu Ghraib and Guantánamo. Because the majority of casualties and injuries (military and civilian) are the result of suicide and roadside bombings, the majority of which are carried out by foreign fighters, according to Alexander, “At least hundreds but more likely thousands of American lives (not to count Iraqi civilian deaths) are linked directly to the policy decision to introduce the torture and abuse of prisoners.”

America’s disastrous past experiences with torture—in Vietnam, Chile and Guatemala, to name a few—should have deterred officials from authorizing torture after 9/11. Now we have a fresh opportunity to learn some lessons. First, torture cannot be employed with strategic precision; the use of techniques spreads, and there is the inevitable and, in the US case, immense imprecision of torturing innocents. Second, torture is ineffective in enhancing security; on the contrary, states that do not torture (or extra-judicially execute) prisoners experience substantially less terrorism, and their counter-terror efforts are more effective. What the US lacked and desperately needed after 9/11 was human intelligence, but the decision to authorize torture had the reverse effects: By indiscriminately arresting innocent people, and by subjecting so many prisoners to violent and dehumanizing treatment, the quest for intelligence assistance and cooperation in critically important communities, let alone “hearts and minds” was damned. Third, the universal illegitimacy and illegality of torture brings disgrace to those who violate the prohibition. American torture invited righteous condemnation by allied foreign governments, and reduced domestic support and confidence in the administration, especially among military officers, legal professionals and the intelligentsia.

At a very high cost, the US case confirms that torture does not work by any measure. No modern regime or society is more secure as a result of torture. Its use spreads, its harms multiply, and its corrosive consequences boost rather than diminish the threat of terrorism.

* Associate Professor, Chair of the Law & Society Program, University of California Santa Barbara.