Tortured Logic, by Erin M. Kearns and Joseph K. Young (introduction)

Why Some Americans Support the Use of Torture in Counterterrorism

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Erin M. Kearns and Joseph K. Young

INTRODUCTION What Impacts Public Perception of Torture in Counterterrorism?

Should any American soldier be so base and infamous as to injure any [prisoner] . . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require.

Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause . . . for by such conduct they bring the shame and disgrace and ruin to themselves and their country.

—GEORGE WASHINGTON, CHARGE TO THE NORTHERN EXPEDITIONARY FORCE, SEPTEMBER 14, 1775

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s George Washington’s words illustrate, Americans were debating the treatment of enemy soldiers even before the founding of the United States. Washington, a general and the first president of the Republic, makes both a moral and a strategic argument against mistreatment. The issue of torture is legally settled in the United States.

Domestically, torture is forbidden under the Eighth Amendment. Furthermore, the United States Criminal Code prohibits torture.1 Internationally, torture is prohibited under the Universal Declaration of Human Rights, the Geneva Conventions, and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, among others.

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Opinion polls suggest that an overwhelming majority of Americans support basic political rights, such as freedom of expression and assembly.

Even contentious rights, such as a minimum standard of living, receive support among the American public.2 What many observers would seem to know anecdotally, however, is that when the country is under threat Americans are often willing to trade more security for fewer civil and political rights.3 After the terrorist attacks of September 11, 2001, or the attack on Pearl Harbor on December 7, 1941, a majority of Americans supported policies they were unlikely to have supported during peace time.

More recently, Colonel Tony Nadal, who served in Vietnam, stated succinctly, “So the enemy is my enemy, until he’s my prisoner, then he’s my responsibility.” Part of this responsibility is how to treat people who we have detained.

Given the long history of humane treatment of the detained enemy, why do some people support torture, and under what conditions, whereas others do not support this practice? This is the central question motivating our book.

One easy answer is that people’s views are fixed and unmovable. Similar to views on abortion or other controversial social policy issues, some suggest that our beliefs about torture are inflexible. The problem with this claim is that views on torture have fluctuated a great deal.4 Within the United States, public support for torture varies across demographics,5 time,6 and how the question is worded.7 Globally, public support for torture varies greatly as well. In a 2015 Pew Research Center survey, support for torture in one’s own country ranged from roughly 15 percent for Argentines and Ukrainians to more than 70 percent for Lebanese and Ugandans. Here, too, support for torture in one’s own country often differed from support for torture in the United States.8 These polls demonstrate that—at least for some—support for torture is fluid and context dependent. For others, however, support for torture may be fixed.

Some have argued that a majority of Americans support the use of torture or enhanced interrogation.9 A 2017 Pew Research Center study found that roughly half (48 percent) of Americans felt that torture was “acceptable under some circumstances” but that the other half (49 percent) oppose this action.10 In the Pew study, a majority of men and Republicans supported the use of torture. In 2016, the International Red Cross global survey found that 46 percent of Americans supported the

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use of torture to extract information from an enemy combatant, and only 30 percent disagreed with its use.11 In 2005, after the Abu Ghraib scandal, only 38 percent of those polled supported torture if it could prevent a future terrorist attack.12 By 2009, a Washington Post/ABC news poll found that support for torture in interrogations had risen to 48 percent. Political scientist Paul Gronke and colleagues aggregated polling on support for torture in the United States from July 2001 to July 2009.13 They argue that a majority of Americans oppose the use of torture or enhanced interrogation and that majorities of Marines and Army soldiers also oppose the use of these techniques.

Political scientists Joan Blauwkamp, Charles Rowling, and William Pettit took issue with public polling on torture support after the 2014 Senate Torture Report was released.14 In a survey-embedded experiment, they found that support for torture varies widely depending on how the question is framed. For example, a slim majority support torture when it is framed as a response to 9/11, whereas nearly two-thirds of participants oppose torture when it is framed as sleep deprivation.

So, do a majority of Americans support or oppose torture? Does it matter? We are, in some ways, going to sidestep these questions. What really matters for our purposes is this: whether support for torture among Americans is 20 percent or 60 percent, opinions can change. As the above examples show—depending on time period, how questions are asked, and a number of other factors—there is a great deal of variation in support for the use of torture in the United States. A skeptic might argue that this variation is just an artifact of the many ways the question has been asked over different surveys and different years. If this were accurate, then our attempts to shift opinion on this issue will not work.

Major events such as 9/11 seem to change people’s beliefs and actions.

In the aftermath of that major attack, support for torture in response likely rose. A few years later, photographs from Abu Ghraib prison in Iraq showed American servicemembers abusing prisoners in their custody.

These photographs drew public outrage; Abu Ghraib likely shifted opinion away from the use of so-called torture-lite techniques once people could visualize the horrors involved. Aside from unexpected events, can media influence decisions? What about messages from elites? Especially elites that share similar ideological beliefs. When a Democratic politician suggests torture is an acceptable tactic to gather information from a terrorism

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suspect, does that influence a liberal person more than a conservative?

Is support for torture conditional on the ethnicity of the person being subjected to the punishment? Or is it conditional on the person’s religion?

For our study, we want to know whose views on torture are fixed and whose are fluid. For those with more fluid views on torture, when and why do they change? Is it related to personal factors? Major events? Context? And how much do opinions change?

It is important for academics to understand support for public policies to see why and when these policy decisions will be made. For policymakers, it is helpful to know why opinions on seemingly fixed issues change substantially in relatively short time periods.

In this book, we argue that people are inclined to support torture as a natural response to meet violence with more violence, but we propose that support for torture can be constrained and swayed in predictable ways. We expect that support for torture is influenced by whether or not it works, what type of torture is used, who is being tortured, how salient threats are, and one’s own political views.

WHAT IS TORTUR E?

Unlike defining terrorism,15 more scholarly and public consensus can be found around defining torture, and differences in definitions between various governmental and nongovernmental bodies are minimal. We use the UN Convention Against Torture (UN-CAT) definition of torture as our guideline.

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.16

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There are several important pieces to highlight in this definition. First, to be torture, the pain involved can be physical or psychological. As political scientist Darius Rejali details,17 much of the more recent torture perpetrated by democratic countries does not leave scars and is sometimes referred to as torture lite. We consider an act as torture if it inflicts pain through stress positions, exposure to extreme temperatures, exposure to extreme sounds, et cetera, as well as the more conventional forms that inflict extreme pain, such as punching or removing fingernails. Again, this pain can be physical or psychological. We examine variations in how people support an act based on this difference in the following chapters, but we do not rule out an action as torture if it is only psychological. Second, to be torture, the pain must be inflicted either by or with the consent or acquiescence of a public official. In short, we are not examining why serial killers torture their victims, nor are we examining the reasons rebel groups or nonstate actors use torture. This phenomenon is worthy of study, but we are interested in state-sanctioned or state-allowed personal integrity rights violations. These are actions that citizens in any political system, but especially in a democracy such as the United States, should be able to influence through support or opposition.

Finally, the UN-CAT defines ill treatment as “other acts of cruel, inhuman or degrading treatment or punishment, which do not amount to torture.�18 Torture and ill treatment are acts that both state and nonstate actors can perpetrate.19 Throughout history, torture has occurred both inside and outside of state-sanctioned behavior (such as lynchings in the U.S. South by the Ku Klux Klan during the late nineteenth and early twentieth centuries).20 However, for the purposes of this book, only torture by state actors is examined and discussed.

Some politicians and members of government in the United States attempted to redefine torture after the events of 9/11. Lawyers for the George W. Bush administration argued that actions in which military and intelligence officers have engaged do not meet the definition of torture or that laws against torture do not apply to detention centers overseas. The so-called Bybee memos attempted to redefine torture and argued that the use of enhanced interrogation techniques such as sleep deprivation and waterboarding21 (which had long been considered torture) may not constitute torture and are permissible in the war on terror. U.S. Attorney General Alberto Gonzales argued that the Geneva Conventions did not apply to the war on terror because it was a new kind of war. Gonzales also stated

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that U.S. laws against torture did not apply to detention centers overseas that, in his view, were not subject to the due process protections of the U.S. Constitution.22 In an August 1, 2002, memo written for the attorney general by Assistant Attorney General Jay Bybee, he argues that for an act to constitute torture . . . it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.23

This is a fairly narrow definition of what constitutes torture, and it provided a great deal of flexibility for an administration wanting few restrictions on acceptable interrogation practices. President Bush claimed that allowing the CIA to use any method necessary in interrogations was essential to the war on terror.24 For our purposes, it is not important whether enhanced interrogation is or is not torture. More important for us is whether people believe there is a difference between the two terms. We piloted chapter 1’s survey with both “torture” and “enhanced interrogation techniques” and found no difference in support when we use these terms interchangeably. In chapter 3, we specifically ask participants about their level of support for a variety of techniques and found little difference in support for techniques that might be more commonly associated with enhanced interrogation than with torture. In sum, respondents in our experiments largely consider torture and enhanced interrogation synonyms and we use them as such. In the actual experiments, we used the term torture but we would, based on the pilots and interviews, expect results to be identical if we used the term enhanced interrogation.

We hope what we mean by torture is clear when we use the term. Next, we discuss a brief history of the use of torture in the United States that focuses on the state-sanctioned use of torture.

A BRI EF A MERICA N HISTORY OF TORT UR E

The United States has long thought of itself as exceptional. Sometimes that exceptionality is due to amazing innovation, progress, or concern for

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human rights. The United States has also been exceptionally violent. Some scholars credit the high levels of violence in the United States compared to other developed democracies to the culture of honor in the American South,25 to the availability of guns in the United States,26 to guns in the hands of the wrong kind of people,27 and to many other factors.

The United States, to the storied time of the Founding Fathers, was brutal to native populations.28 Mass killings, forced displacement, and torture were commonplace among colonial Americans and the native populations. Torture, in this context, was not about gathering information but was used as punishment or deterrence. One factor cited as slowing down the eventual westward expansion of the nascent United States was the brutality of the Comanche people,29 who were known to torture, murder, and disfigure any male adversary and enslave any female. A nomadic people, they could not afford to take prisoners and benefited from having settlers fear them. Historian Wayne Lee argues that part of the reason for brutality among both the native populations and the European settlers was the difference in accepted norms of warfare across continents.30 Lee claims that this uncertainty for colonists created a dichotomy between brothers (other Europeans) and barbarians (Native Americans), with the latter group receiving the most inhumane treatments.

In this milieu, what has been the history of state use of torture? The trans-Atlantic slave trade and the massive system of slavery in North America led to the brutal treatment of enslaved African people that ranged from whippings to killings. We could have, and many scholars have, written an entire volume detailing the violence associated with the system of slavery in the United States.31 Historians John Hope Franklin and Loren Schweninger suggest that torture in this system was often used as punishment for resistance.32 They detail a story of an enslaved woman who questioned the master’s treatment of other enslaved people. As punishment, the master sold the enslaved woman’s children to another plantation far away. Other examples of whipping, torture, and intense violence against enslaved people often coincided with insurrection or rumors of insurrection from enslaved individuals or groups. In this context, torture served as punishment or deterrence not information gathering, which it is often associated with in modern times.

The conclusion of the Civil War formally ended the system of slavery but did not end other means of violence toward both Native and African

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Americans. In the early 1900s, the United States turned to consolidating state and global concerns and began to establish a global empire as the power of Great Britain and other European countries began to wane. One of the sites of U.S. imperialism was the Philippines, which attempted a revolution and independence from Spain and then from the United States around the turn of the century. Filipino resistance was often unconventional and employed guerrilla tactics. Similar to other nonconventional battles for independence, such as that of Algeria, counterinsurgents used harsh tactics. Torture as a tool for information gathering was detailed in the conflict. For example, testimony in subsequent congressional hearings about the conflict stated that the water-cure33 was used “in order to secure information of the murder of Private O’Herne of Company I, who had been not only killed, but roasted and otherwise tortured before death ensued.�34 In World War II, Americans were more often the subjects of torture.

The Japanese government took tens of thousands of U.S. prisoners and subjected many to torture from water-curing to operations without anesthesia to other depraved experiments. The United States was usually more measured with enemy detainees, and incidents of torture were notable in their infrequency. Historian Philip Lundeberg detailed one instance in which American authorities tortured a German submarine crew to extract information about future missile attacks.35 Japanese soldiers were told of potential harsh treatment of POWs by Allied forces, which may have prompted kamikaze attacks by Japanese pilots. In the aftermath of World War II, the United States and its allies sought to build global institutions to mitigate future violence, and the Geneva Conventions of 1949 were developed to establish humane treatment of adversaries during war. They do not necessarily outline treatment during times of peace. It has been a cornerstone of both codified and customary international law that there is an inherent difference between what is deemed acceptable in times of peace versus times of war,36 and this became an important point of debate later in the U.S. Global War on Terrorism.

During the Cold War in the 1950s and 1960s, the CIA experimented with tools we would define as psychological torture, or clean torture.37 As Rejali details, clean torture has been the preferred and most frequently used approach by developed democracies in the modern era such as France and the United States.38 For example, MK-Ultra was an illegal

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CIA mind control experiment used on U.S. and Canadian citizens in an attempt to alter the subject’s brain state through drugs, sleep deprivation, and other tactics.

At the same time, American soldiers in Korea were exposed to debilitating torture at the hands of their communist captors. The U.S. Air Force’s SERE (Survival, Evasion, Resistance, and Escape) program used information from these detainees to reverse engineer their interrogations to train future soldiers to endure and resist similar treatment.39 With the Cold War winding down in the late 1980s, torture became less of an issue.

The optimism about global affairs in the 1990s was brought to a halt on September 11, 2001. Many Americans were blindsided by the most destructive terrorist attacks in the history of humanity. Policymakers and many other Americans were uncertain about how to handle a nonstate adversary that operated as a transnational network. U.S. policymakers and the military knew how to fight large conventional opponents but struggled with both the strategy and tactics of dealing with Al-Qaeda and the Taliban. The Bush administration declared a Global War on Terrorism that critics and supporters claimed had no boundaries and an indefinite time horizon. Utilizing this “war” paradigm, some politicians and members of the media in the United States told the public that punishment—including methods such as enhanced interrogation techniques—is necessary to control the behavior of terrorists, to gather actionable intelligence, and to protect our national security.40 In 2003, at the outset of the Iraq War, the Bush administration had an easy conventional military victory over the Iraqi regime, but that was followed by an unconventional insurgency that avoided conventional pitched battles.41 When military casualties among the United States and its coalition partners began to mount, the Bush administration asked the military to ramp up intelligence collection efforts to thwarting insurgency.

Meanwhile, suspected Al-Qaeda and Taliban members and sympathizers collected from Pakistan, Iraq, and Afghanistan were detained around the world—most notoriously at the U.S. military base in Guantanamo Bay, Cuba. News stories began to leak about rough treatment of Guantanamo detainees and detainees at Bagram Air Force base in Afghanistan. In late 2003, the Associated Press reported on detainee mistreatment at the Abu Ghraib detention facility in Iraq. These and other stories did not gain much public attention until April 2004, when an episode of 60 Minutes42 coupled

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with a New Yorker article43 exposed pictures of the prisoner abuse, which spurred a large scandal over how the military was prosecuting the war.

Since 9/11, torture has been an increasing part of public discourse.44 Amplified discussion has led to an uncertain conventional wisdom that more people in the United States support torture than is actually the case.45 The lack of awareness of torture in the United States prior to 9/11 has led to an (incorrect) assumption that torture is now more prevalent worldwide.

Although the public was largely unaware of it, torture has been widely practiced around the world and in the United States since World War II despite the conventions and treaties prohibiting it. Amnesty International found that 96 countries practiced or tolerated torture in 1996.46 By 2000, 150 countries had used ill treatment and torture in the previous three years.47 In 2010, Amnesty International reported that 111 countries used ill treatment and torture.48 Contrary to the general assumption that torture is more commonplace today, Amnesty International’s reports indicate that there was a significant reduction in the number of torture regimes and in the number of torture allegations in the decade after 2001. Nonetheless, many countries, including the United States, have continued to use torture despite signing treaties against this practice. As Rejali notes, the types of torture have varied as the United States and other democracies have increasingly used nonscarring physical and psychological techniques, but their use of torture has not declined.49

WHY TORTURE ?

Torture violates most national and international laws, but it persists in the United States often in the name of counterterrorism. Countries use terrorism to justify the use of torture, or at least to turn a blind eye to torture.50 Scholarly literature on the topic identifies two types of torture that are used in the name of counterterrorism: interrogational torture and deterrent torture. Interrogational torture aims to extract information and is seen as “preventative.�51 Deterrent torture aims to discourage similar acts of terrorism by raising the cost of engaging in this form of violence.52 Interrogational justifications have been the strongest motivation for torture throughout recent history. This presupposes that the individual

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being tortured possesses information and that this information will only be divulged via torture.53 Political scientists Leonard Wantchekon and Andrew Healy state that torture can be a rational action for both the state and the individual torturer to extract information.54 Building on classical criminology theory, the decision to commit a crime, including torture, is influenced by an evaluation of its rationality (costs/benefits) and utility (usefulness). Criminologists Derek Cornish and Ronald Clarke emphasize bounded rationality to explain law breaking, the idea that rationality is constricted by the information available, and that behavior is ultimately about utility.55 In response to terrorism in which information is constricted, torture can be appealing as a way to gather intelligence that potentially prevents future attacks because it is quick and has a low financial cost.56 It is unclear, however, whether torture is effective for gathering information (an issue we discuss in more depth later in the chapter).

According to classical deterrence theory, crime is a choice based on weighing costs and benefits, and increasing the costs is likely to deter the action. The idea of deterrence has been applied to a range of criminal offenses, including terrorism.57 Philosopher Christopher Tindale discusses deterrent torture as a mechanism to raise the costs of terrorism to individuals in an attempt to dissuade future offenders.58 Some argue that terrorists are rational actors,59 and others argue that terrorists are more altruistic and are more concerned about their larger goal and less worried about their own physical punishment than a traditional criminal may be.60 Deterrence theory assumes that punishment deters offenders and that humans are rational and self-interested. The expected utility of perpetrating a terror attack is a function of the perceived probability of being punished, anticipated benefits, and severity of the penalty if caught. Because terrorists have collective goals, however, deterrence involves more than the impact on an individual. To date, deterrence research has largely focused on the cost-benefit analysis of crimes at the individual level as opposed to the group level.61 In addition, deterrence sometimes fails not only to deter future acts of violence but leads to increased incidents of the very crime deterrence is trying to reduce.62 In the post-9/11 context, torture has often been justified as a quicker, more efficient approach to defeating the ticking time bomb scenario. In an interview with us on September 14, 2018, Tony Lagouranis, a former

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Army interrogator who served in the Iraq War and was stationed at Abu Ghraib prison in 2004, argued that in post-9/11, you don’t have a ticking time bomb scenario. But post-9/11, where we’re under siege, we have to infiltrate these cells. . . . So if you have someone in custody who you believe has information, then your resource is his mind and your access to it . . . with torture you’re going to scramble that information. It makes it very hard for him to recall or to describe things if he’s sleep-deprived, or if he has hypothermia, or whatever other ways you’re going to perturb his psyche, right? So you’re destroying your own information base . . . that’s a problem. . . . This is somebody that you want to continue to have a relationship with to continue to get information. . . .

You want to cultivate this source. It’s just really, really bad intelligence work to do this [torture].

As this former interrogator highlights, torture is a poor form of information and intelligence gathering. Rather, torture is likely to compromise memories, scramble cognitive function, and decrease the likelihood that a person would cooperate with interrogators in the future.

IS TORTURE EFF ECT I V E?

The reasons states have used torture vary over time and context, and depending on what the goal of using torture might be, what it means for torture to be “effective” may change. If the purpose of torture is punishment, it can be quite effective at inflicting unbearable pain on an individual. Even clean torture, such as exposure to extreme temperature—one of the tools used on Abu Zabaydah, a high-value Al-Qaeda detainee held in a CIA so-called black site and then transferred to Guantanamo—can be extremely painful when an individual is subjected to it for long periods of time. Torture was effective at deterring enslaved people from revolting and for punishing them for attempting an insurrection. It is less clear whether torture is effective at deterring other behaviors, such as terrorist attacks.

Political scientists James Igoe Walsh and James Piazza found evidence that respecting human rights reduces terrorist attacks at a cross-national

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urveys show that nearly half of Americans think that torture can be acceptable for counterterrorism purposes. Why do people persist in supporting torture—and can they be persuaded to change their minds? Erin M. Kearns and Joseph K. Young draw upon a novel series of group experiments to understand how and why the average citizen might come to support the use of torture techniques. They find evidence that when torture is depicted as effective in the media, people are more likely to approve of it. They also examine who changes their opinions and how, demonstrating that only some individuals have fixed views while others have more malleable beliefs. Bringing empirical rigor to a fraught topic, Tortured Logic has important implications for understanding public perceptions of counterterrorism strategy.

“In this compelling and salient book, Kearns and Young inject needed experimental evidence into discussions about why and under what conditions the public supports the use of torture in the service of counterterrorism. A must-read for any serious student or scholar of counterterrorism.”

—James A. Piazza , Pennsylvania State University

“Kearns and Young use clever experiments and careful interviews to provide compelling evidence that public support for torture depends on context. That public support for government violence is so malleable should be of great interest—and potential concern—to social scientists and policymakers alike.”

—Courtenay R. Conrad , coauthor of Contentious Compliance: Dissent and Repression Under International Human Rights Law

“Tortured Logic is written by two stellar researchers, one a political scientist and the other a criminologist, which gives this book a strong interdisciplinary perspective. Together, the two authors bring an array of skills that make them well suited to produce a volume of this caliber.”

—Victor Asal , University at Albany, State University of New York

Erin M. Kearns is an assistant professor in the Department of Criminology and Criminal Justice at the University of Alabama.

Joseph K. Young is a professor at American University with a joint appointment in the School of Public Affairs and the School of International Service.

Cover design: Lisa Hamm ISBN: 978-0-231-18896-8

Columbia Studies in Terrorism and Irregular Warfare

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COLUMBIA UNIVERSITY PRESS / NEW YORK CUP.COLUMBIA.EDU PRINTED IN THE U.S.A.