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On Obama and Ill-Treatment: Interdisciplinary Policy Against Torture’s Return

Abstract

By executive order—later passed into law—President Obama closed legal loopholes used to justify torture by his predecessor. Less often discussed, his administration also instituted scientific research into the most effective interrogation techniques. This dual-track approach already demands the use of two different methods to properly discuss the policy, and in this article, a third is put forward for a fuller interdisciplinary view. That is to say, although there are notable shortcomings, scientific and legal developments will be explored to illuminate how he also clarified a moral stance for the nation. Put all together, this article will show that Obama indeed achieved laudable steps towards preventing the reintroduction of torture.

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Notes

  1. 1.

    Chair of the Committee, Senator Diane Feinstein, came to a personal conclusion that some detainees were “tortured” and the evidence was “overwhelming and incontrovertible,” (SSCI Report 2014, Forward: p. xii).

  2. 2.

    There is a worthwhile recent trend of integrating law and ethics (e.g., Finkelstein et al. 2012; Ohlin et al. 2015; Bhuta et al. 2016). Yet the addition of empirical validity brought by scientific research renders the approach utilized here slightly different.

  3. 3.

    Other sources might include the following: Bernstein 2015; Brecher 2007; Luban 2014; Scarry 1985; and Shue 1978.

  4. 4.

    Bentham’s quasi-mathematical “felicific calculus” includes seven variables: intensity, duration, certainty or uncertainty, propinquity or remoteness, fecundity, purity, and extent. However, as it has been said that applying this formula is impractical or “artificial” (Mitchell 1918), it is simplified and argued here that the scientific research carried out under Obama indeed elucidates the tendency to increase happiness.

  5. 5.

    It is admittedly contradictory to the public view described in "Legality" that President Obama has preserved a copy of the full report in his presidential library—but it is to remain classified for 12 years (White House 2016). This is accentuated by fact that CIA “inadvertently” destroyed two of its own copies (Isikoff 2016).

  6. 6.

    Mitchell suggests there was a systemization in the CIA program he designed, but it should be noted that he had no previous interrogation experience for comparison (Mitchell J with Harlow B, 2016). Nonetheless, one report claims this was indeed human experimentation (Physician for Human Rights 2017).

  7. 7.

    Rejali makes this point most clearly in his discussion of the CIA Phoenix Program: “[E]ven if torture was completely effective, the database indicates that it would still be unreliable as a source of information because the way individuals are chosen in insurgencies guarantees many prisoners with no information. But it seems plausible that torture compounded the selection errors: the ignorant fingered the innocent and deceived the torturers, and the innocent was then interrogated or terminated” (2007: p. 472).

  8. 8.

    “Absent a sharp break with ethical and legal principles that have governed human subjects research for generations, comparative-effectiveness studies using suspects for whom harsh, real-world consequences loom are not possible” (Bloche 2017).

  9. 9.

    This author has been invited to be a member of the Advisory Council and attended a gathering at the European Union Delegation to the United Nations in New York: “Roundtable Meeting on Developing a Model for Investigative Interviewing by Law Enforcement Officials and Attendant Procedural Safeguards” (June 8, 2017).

  10. 10.

    Although this is often cited to silence critics, Rejali’s extensive analysis of the events concludes, “[t]he French gained accurate intelligence through public cooperation and informants, not torture” (2007: p. 481).

  11. 11.

    It should also be noted that another essential element of Kant’s categorical imperative is that individuals are never to be used as a means to an end; each being must be treated “as an end in itself” (2002: p. 45–56). Of course, torturing a person for information would render them nothing more than a means to an end.

  12. 12.

    American Convention on Human Rights, Art. 5 (22 Nov. 1969), O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 (entered into force 18 July 1978); European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 3 (20 March 1952), European Treaty Series No. 5, 213 U.N.T.S. 221 (entered into force 18 May 1954); African Charter on Human and Peoples’ Rights, Art. 5 (27 June 1981), OAU Doc. CAB/LEG/67/3 rev. 5, 1520 U.N.T.S. 217 (entered into force 21 Oct 1986); Arab Charter on Human Rights, Art. 8 (22 May 2004), reprinted in 12 Int’l Human Rights Report 893 (2005) (entered into force 15 March 2008).

  13. 13.

    While torture persists worldwide, there is now a preference for techniques that leave no mark or “stealth torture” (Rejali 2007: p. 33–402). Until the Trump campaign, there has been next to no recent full-throated argument for outright torture.

  14. 14.

    For in-depth analysis of the OLC Torture Memos, see Paust (2009).

  15. 15.

    Unfortunately, the change applied solely to the CAT as the Obama administration declared earlier the same year that this was not the case for the International Covenant on Civil and Political Rights (Human Rights Committee 2014: ¶4(a)). This occurred despite internal efforts at the highest level (Koh 2010).

  16. 16.

    This, of course, refers to the challenge posed by the ticking bomb scenario—the quandary of whether the torture ban should be contravened if life-saving information is known to exist inside the mind of a detained prisoner. For a more direct and sharp refutation, see Brecher (2007) and Luban (2014: p. 43–107).

  17. 17.

    At the same time, we should not overlook the fact that a US citizen is currently being held without access to a lawyer in Iraq (Lederman 2017) and Gina Haspel—known to have directly participated in parts of the torture program and destroyed evidence—has been nominated to be the Director of the CIA (Hawkins 2018). Of course, the Haspel nomination sharply clarifies Obama's failure of accountability.

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Barela, S.J. On Obama and Ill-Treatment: Interdisciplinary Policy Against Torture’s Return. Hum Rights Rev 20, 1–21 (2019). https://doi.org/10.1007/s12142-018-0511-9

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Keywords

  • Torture
  • Ill-treatment
  • Interdisciplinary
  • Efficacy
  • Legality
  • Morality