Why President Obama Should Not Declassify Documents Showing What Information We Gained As A Result of Torture

Since President Obama took office and the possibility of criminal prosecutions for the torturing of detainees became a reality, supporters of the Bush Administration have been screaming that this is simply the criminalization of policy differences.  Now, former VP-Cheney, in his effort to justify the use of torture, has called on President Obama to declassify certain documents he argues will show that the Bush Administration’s torture policy kept us safe.

But this is just a red herring.  Whether torture got us actionable information is beside the point for three important reasons.  First, there is no proof that we could not have gotten this information (EVEN IF WE DID GET ACTIONABLE INFORMATION BECAUSE OF TORTURE) through “regular’ interrogation techniques.  In fact, as I detailed in my prior post there is plenty evidence to the contrary. The FBI interrogator who interrogated one of the victims of torture testified that the the detainee was giving up actionable information well before torture was used.  Second, and equally important, is the fact that as soon as we began torturing these detainees, they stopped giving us information and gave us false information just to stop being tortured.

But most importantly, the federal statute banning torture does NOT provide a defense to torture that either (a) a person thought he to torture to keep the country safe or (2 b) the person actually obtained actionable information.  Therefore, regardless of what information came to light as a result of torture, the analysis of  whether the Bush Administration committed war crimes is not impacted.  The police are not permitted to argue that they violated a person’s 4th, 5th or 6th Amendment right because they thought it was the only way to get evidence or that they actually did get evidence of a crime.  We, as a country, do not countenance such an  argument.  This type of post-hoc rationalization for the use of torture are is dangerous to a country of laws.

By releasing the documents, the focus then will einevitably shift to whether torture gave us actionable information.  My guess is that the documents will be inconclusive as to whether we got any actionable information. Once in that arena, if President Obama were to prosecute Bush officials, it would look dangerously close like he was prosecuting mere policy differences.  President Obama and his Administration do not believe that torture works and the Bush Administration does and he is just prosecuting because of these differences.

The only relevance those documents could have is if Congress were to take up a proposed law that would allow torture.  Only then would it matter whether torture actually works.  But as to whether waterboarding is torture and whether the Bush DOJ committed crimes for their legal opinions, it is not relevant whether it worked.  Any discussion of its effectiveness is just a distraction.

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