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Day 17

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When the Law is Discarded

Torture and the Damage Done

by PETER WEISS

Osama bin Laden’s death has laid to rest the mystery of his whereabouts. His body lies under the ocean. But now his death raises another increasingly popular question. Was he tracked down thanks to tips elicited through the torture of captured al-Qaeda operatives?

The answer should be clear: no, torture doesn’t "work." The damage done by systematically resorting to torture far outweighs the benefits obtained from the very rare instances where reliable information is obtained from torture.

Defenders of the Bush-Cheney policies that gave us rampant human rights abuses at the Abu Ghraib and Guant?namo prisons claim, on flimsy evidence, that waterboarding and other forms of torture produced information that eventually led the Navy SEALs to bin Laden’s hideout in Pakistan.

Defenders of Obama’s policy of ending torture, such as White House counterterrorism advisor John Brennan, tell us that the trail to bin Laden’s compound was assembled over a decade, from a multitude of bits and pieces of intelligence. As New York Times reporters Scott Shane and Charlie Savage explained, "harsh techniques played a small role at most" in leading the Navy SEALs to Osama Bin Laden.

Professional interrogators, like Air Force Major Matthew Alexander, insist that torture is the wrong way to go because it tends to produce unreliable or deliberately deceptive information. In addition, torture creates more terrorists than it unmasks.

It’s also unnecessary, as I learned first-hand many years ago. I did part of my army service in World War II at an interrogation center for high-level German POWs. We got a lot of valuable intelligence without ever laying a hand on them.

But it’s not necessary to deny that torture ever works in order to come to the conclusion that it should never be used. People who believe in morality ? and not everyone does ? will oppose torture because they consider it deeply immoral. People who believe in the rule of law will refuse to employ it because it is illegal. And people who are proud to be Americans should reject it because it is profoundly un-American. The U.S. Constitution forbids cruel and unusual punishment.

In 1863, in the middle of the Civil War, a German immigrant law professor at Columbia University, Francis Lieber, drafted "Instructions for the Government of Armies of the United States in the Field," which President Abraham Lincoln subsequently promulgated. The Lieber Code, as it came to be known, is the fountainhead of all subsequent documents dealing with what is prohibited in warfare, both in this country and throughout the world.

At its core is this sentence: "The law of war does not only disclaim all cruelty and bad faith?offenses to the contrary shall be severely punished, and especially so if committed by officers." The United States is a party to the Geneva Conventions of 1949, which spell out the law of war in detail, and, as of 1994, to the Convention against Torture.

In 1980, in a case brought by the Center for Constitutional Rights, the Federal Court of Appeals for the Second Circuit said, "The torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind."

Another reason to obey the injunction against torture, one that military officers frequently cite, is the blowback effect. If the United States tortures foreign detainees as a matter of policy, as it did during George W. Bush’s administration, what is to prevent other countries from using torture on American detainees, as the North Koreans did during the Korean War?

Finally, there’s something about a slippery slope. If the law can be broken because doing so "works," where will that stop? How about convicting Guant?namo detainees on secret evidence? Or locking up "really bad people" ? that’s what Dick Cheney called the ones in Gitmo ? for life without trying them at all, as the government is getting ready to do? Or doing away with the presumption of innocence, as President Barack Obama did the other day when he declared that Private Bradley Manning "broke the law," despite the fact that the alleged WikiLeaker hasn’t even been tried yet?

If the law is discarded in the fight against terror, terrorists can rack up a win.

Peter Weiss is a vice-president of the Center for Constitutional Rights and a member of TransNational Institute‘s International Advisory Board.