The Torture Photos and U.S. Double Standards on Freedom of Speech

(Cross-posted from, Jan. 25, 2015).

abughraibhoodJameel Jaffer had an excellent post on Just Security earlier this week, examining the apparent inconsistency in U.S. policy on freedom of speech. On the one hand, the U.S. government argued against self-censorship in response to threatened violence, in the context of Charlie Hebdo, and Sony’s distribution of the “The Interview”. On the other hand, the U.S. government was in Federal Court this week resisting requests that photographic evidence of U.S. detainee abuse and torture be made public.

The argument of the government is that disclosure of the pictures would make them available for use in propaganda, and would likely lead to violent reactions. In essence, the government wants to suppress information to prevent possible violent reprisals. Jameel Jaffer dismisses this argument well:

This is not a good argument for the suppression of the photographs. The same kind of argument could as easily have been made with respect to the Abu Ghraib photos, the Rodney King video, or the Eric Garner video. It could as easily have been made with respect to the Senate’s torture report—and, in fact, it was. And it’s not just that the argument gives those who threaten violence a veto over political debate; it gives the government a veto, too. To accept the argument, at least in the absence of a specific, credible threat directed against specific people, is to give the government far-reaching power to suppress evidence of its own misconduct. And the worse the misconduct, the stronger would be the government’s argument for suppression.

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The Fallacies of the Torture Debate

(Published in The Huffington Post, May 19, 2011)

The torture debate has once again seeped into the public discourse in America, and it has us focusing once again on all the wrong issues. Suggestions have been made that information that Khalid Sheikh Mohammed provided while being water-boarded helped lead the CIA to bin Laden’s door. This has prompted the likes of John Yoo (author of the notorious torture memos signed by Jay Bybee) and former Attorney General Michael Mukasey, to argue that the case for water-boarding has been vindicated. Others, including Senator John McCain, have refuted the assertions that the trail to Bin Laden can be traced back to so-called “enhanced interrogation techniques.” In short, the debate is once again centering on the question of whether torture is effective.

First, it should be noted that the debate misconstrues the effectiveness argument. Few people would assert that torture can never produce so called “actionable intelligence.” The point, made extensively by FBI interrogators and other specialists in the field, is that torture produces less reliable intelligence than traditional (and lawful) methods of interrogation, since the victim will say anything to avoid the pain, some of it true but much of it not, creating the problem of trying to distinguish between fact and fiction. Moreover, a policy of torture creates longer term strategic costs in the effort to win over hearts and minds, which ultimately makes it counter-productive and ineffective from a broader perspective.

The key point, however, is that effectiveness is entirely beside the point. We should oppose and reject the use of torture even if it could be shown that it is effective. To his credit, John McCain also makes this argument. For those who do oppose torture, it is a profound mistake to be engaging in this debate about effectiveness. First of all, the arguments get reduced to the overly simplistic and binary question of whether it ever works, which is of course vulnerable to attack — just one example of torture producing one piece of accurate intelligence tends to undermine the entire position. Hence the debate today. But more importantly, engaging in this debate tends to suggest that if torture were found to be effective, then perhaps we might have to use it. But we would not, or should not, so why get trapped in this debate? We ought to stick to the real reasons for our objections.

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