The release of a report on the recent history of CIA torture during the so-called Global War on Terror offers a chance to reflect on the danger of expedient laws in both the US and New Zealand.
Nothing in the report discloses previously unknown torture techniques. The methods can be found on cursory Google searches and range from slapping, shaking and stress positions to water boarding and induced hypothermia.
While none of these techniques come close to anything like unbearable human pain, they nonetheless constitute a reasonable description of torture. The question is not why it was first authorised but why torture became routine.
One of the criticisms of the United States made by deceased al Qaeda leader Osama bin Laden was that the American project was only thinly covering a deep moral darkness. He wanted to goad the United States into unleashing the demons within to expose once and for all that it was not the shining city on a hill.
After revelations emerged that the CIA was using torture and “black sites” to house captured terrorists, Mr bin Laden’s claim appeared to have been true all along. The US had regressed to a primitive state in order to fight on the same level as its enemy.
It was more than just a moral defeat, it was a realisation that all ethical progress was vulnerable to loss at any moment. The US was not special after all.
In all the talk about torture and ethics, it has been forgotten why the US decided to use torture in the first place.
Whatever one thinks about former US President George W. Bush, the thought processes to allow such a practice was not made lightly and under extreme duress. He too knew that the legitimacy of the US government project rested on its assumed moral superiority. To authorise torture required serious thought on which morals of the US system he wanted to uphold.
The geopolitical and domestic context of that decision was one of intense fear, confusion and visceral feelings of vengeance throughout the country.
The 9/11 attacks were unprecedented and represented a deep intelligence failure. Whether the US intelligence community was incompetent or al Qaeda had gained superb counterintelligence techniques was unknown and that scared everybody. What else didn’t they know?
Al Qaeda was known to conduct attacks with a one-two punch. People in the US government with knowledge of the group knew something had to be done quickly about finding and thwarting the next attack before it happened.
Everybody - including people in New Zealand - was frightened after 9/11. If it could happen in the US, it could very well happen here. The top priority for Western nations quickly became gathering as much intelligence as possible to stop a follow-on attack.
This is exactly the reason the NSA also began their “mass surveillance” programme as well.
Considering the clear intelligence gap, nothing could be assumed and everything required a huge degree of purging. What could be trusted now if an attack such as 9/11 could slip through? The intelligence community needed to start from scratch to plug the holes and all methods had to be on the table - including torture.
That was when torture was extracted from the deepest corners of the nation’s basement to be used in those extreme circumstances in the goal of protecting the country.
As the days, months and years rolled on after 9/11, a more complete picture of al Qaeda’s capabilities slowly grew. A second strike never came, but no one knew whether that was due to intelligence successes or al Qaeda’s failure.
Torture wasn’t used because the US knew how to react to the disaster. It was used precisely because they were so confused and unsure.
The CIA report states that the benefits of using torture to stop the al Qaeda threat were vanishingly small. The problem was that somewhere along the way torture became a normative measure, rather than a temporary and unusual step.
However, intelligence officials were unwilling to think about closing down the programme because it was unclear exactly what was working. Getting rid of torture, they reasoned, might endanger the nation.
The lesson for New Zealand is that laws passed in extreme circumstances to deal with highly unusual environments are not by themselves the danger. The threat arises from the inattention of government officials to judge whether the evolving geopolitical threat environment justifies the continued operation of those laws.
In the case of the recently-passed “Foreign Fighters” bill, the extra powers given to the SIS and law enforcement agencies are relatively appropriate given the global circumstances. What cannot be allowed to happen is the retention of those powers beyond their present utility. This is what people mean by the necessity for robust oversight of intelligence agencies.
To do their jobs intelligence agencies need powers above what normal citizens often expect. The agencies are not full of people looking to manipulate the system for more power, they are subject to putting the bar balancing security and privacy where the public demands it be set.
Nevertheless special powers are attractive and often difficult to remove, especially from intelligence services.
The world will always be a scary, unpredictable place and people will always need protecting. But the key behind the CIA torture report is for the public to be vigilant of bureaucracies that convince themselves that particularly extreme measures should be routinised.
Whether turning torture into an accepted practice was a mistake or manipulation by the upper echelons of the US government is largely beside the point. The question at heart is which of the country’s collective morals a government must decide to prefer when defend its citizens?
All morals cannot be upheld at once but there is a fine line between being the protector and turning into the offender.