Wednesday, January 23, 2013

Watching "Zero Dark Thirty"

In the story "Zero Dark Thirty" tells, torture contributes to the successful hunt for Osama bin Laden. The controversy over whether this story is historically accurate is intriguing for its political intensity, and worth discussion on that ground alone, but in the end the answer to the question “who learned what and how” in the pursuit of bin Laden by no means is an answer to the question of whether torture can actually be justified.
First, the controversy over the facts. In a December 19,2012 letter to Michael Morell, Acting Director of the CIA, Senators Feinstein, Levin and McCain cited a finding of the Senate Select Committee on Intelligence in its study of the role torture had played:
The CIA did not first learn about the existence of the UBL [Osama bin Laden] courier from CIA detainees subjected to coercive interrogation techniques. Nor did the CIA discover the courier's identity from CIA detainees subjected to coercive techniques. No CIA detainee reported on the courier’s full name or specific whereabouts, and no detainee identified the compound in which UBL was hidden. Instead, the CIA learned of the existence of the courier, his true name, and location through means unrelated to the CIA detention and interrogation program.

But at least in most respects the film does not contradict this account. The film may portray the interrogators as having first learned of the courier’s existence from a tortured detainee – and if the film does tell the story in this way, that would be inconsistent with the first element of this Senate committee’s finding. But the film in fact makes clear that the courier’s identity was not learned from anyone’s revelation under torture. Instead, according to the film the courier’s identity was found in a file that had been overlooked for many years; none of the people tortured had referred to the courier by anything except a nom de guerre, and no one had provided his whereabouts. The CIA analyst who discerns the centrality of this elusive figure does so by recognizing a pattern of nondisclosure – men who revealed other things remained discrete about the courier, and that very lack of disclosure emphasized his importance.

The Senators’ letter also quotes confirmation of the Committee’s finding that Leon Panetta provided in a letter to Senator McCain in May 2011. Panetta wrote:
… no detainee in CIA custody revealed the facilitator/courier’s full true name or specific whereabouts. This information was discovered through other intelligence means.
Again, the film’s account does not contradict this statement. What the film says is that interrogations, including interrogations with torture, provided evidence of the courier’s existence and – through silences – pointed to his importance. What Panetta wrote does not contradict this account, nor (except, as noted, in one significant respect) does the Senate Committee’s finding. 

It seems clear that the facts about what the interrogations elicited can be spun in very different ways. It is interesting that the Senate Committee and Secretary Panetta construed the facts in a way that minimized the role that torture played. That reading supports a commitment to turn away from torture as an instrument of war.  Perhaps there are some within the CIA who have a different agenda, meant to vindicate the reputation of an agency tainted by the practices of the Bush years. It seems pretty clear -- as the Senators’ letter emphasizes – that the CIA talked with the filmmakers, and it seems reasonable to infer that the story the film tells is the story the CIA told. One might also infer that the Senators, who have labored hard to remove torture from US anti-terrorism efforts, feel blindsided by the story the CIA seems to have told to the filmmakers and that the film has now told the world. 

But, second, what does this controversy prove? To me the argument seems somewhat misguided. I don’t doubt that people who are tortured will often reveal information – they have agonizingly good reason to do so. No doubt they will also often distort what they say in any way they believe they can get away with, or give up some information but hold onto other more vital facts, and no doubt they will also sometimes invent facts either as diversions or as desperate efforts to please their tormentors. All of these make the information derived from torture suspect, but to me it is simply implausible to believe that no accurate information is elicited this way.

If the torture of Al Qaeda detainees really produced a telling pattern of nondisclosure of information about this courier, though, that’s actually quite odd. On this account, torture failed again and again to elicit this information; apparently a series of Al Qaeda detainees were able to draw the line against revealing this particular set of facts. If that were so, it would actually be some indication of the inefficacy of torture. Or perhaps what the pattern of nondisclosure means is not that the detainees somehow all resisted this last revelation, but rather that none of them had this information to disclose – which might indeed have suggested, tellingly, that Al Qaeda was very tightly controlling access to this information. But the film also tells us that the CIA inferred that bin Laden was in his refuge because more women than men were visible in surveillance photos of the building; the missing man, they inferred, could be bin Laden. That inference makes no sense at all, because Muslims can be polygamous (as bin Laden himself was). The presence of more women than men therefore didn’t demonstrate the existence of a missing man at all. It seems possible that the CIA analysts were right, but for the wrong reasons – and perhaps the pattern of silence about the courier was not so much a pattern as an inspired guess on the part of the investigators.

In any case, the issue about torture shouldn’t be whether it ever produces useful information. Rather the question should be whether the sometimes useful, sometimes useless or misleading, information is worth the price. One part of that calculus is the question of whether the same information could have been obtained in other ways – as the movie tells us that the crucial detail of the courier’s real name was. Another part, a crucial part, is the question of whether the harm done to the country by its embrace of torture outweighs – in moral terms, and in pragmatic terms as well – the value of whatever revelations torture might have produced. I think we should demand far more proof than the story this film tells (even assuming it is entirely accurate) to overturn the lesson that torture is wrong.

The film tells a version of the story of how the U.S. killed Osama bin Laden. It does not tell us whether we might have achieved that objective better by other means. It does not even tell us whether achieving that objective ultimately mattered. It’s worth remembering that the hunt for bin Laden was certainly not a “ticking bomb” situation, where – as in “24” – only immediate, horrible acts could forestall even worse impending disaster. The day I watched the film was the day of the bloody end of a hostage crisis in Algeria, where Islamic militants -- not necessarily even Al Qaeda affiliates but perhaps a group split off from Al Qaeda -- seized the In Amenas natural gas plant in an operation presented to the world as a response to French military intervention in Mali against other Al Qaeda members or allies. Do we live in a more secure world because of Osama bin Laden’s death, achieved – if the movie is accurate – in part through the use of torture? It is not easy to reassure oneself that we do.

Wednesday, January 16, 2013

Human rights law, in South Africa and Israel

Why has Israeli public interest law not succeeded in contributing to the end of Israel's occupation of the West Bank?

One possibility is that the strategy by which the lawyers shaped their work was mistaken. Daphna Golan and Zvika Orr, two Israeli scholars with deep roots in public interest advocacy themselves, have recently suggested this in an incisive and dismaying article,  "Translating Human Rights of the 'Enemy': The Case of Israeli NGOs Defending Palestinian Rights," 46 Law & Society Review 781 (2012). Golan and Orr write that:

Depoliticization of the work of Israeli NGOs has proved ineffective, not merely in terms of the ongoing and increasing human rights abuses in the Occupied Territories, but also in terms of the way in which the NGOs are commonly perceived by the Israeli public, legislators and government. (809)

They conclude:

[W]e propose that contemporary attempts to silence the translators of human rights violations [that is, public interest advocates] should signal to activists the need to reconsider some of their current depoliticized strategies and to think of new ways to broaden the understanding of their role in leading a process of fundamental change, which not only will ensure that the occupation complies with international law but will end the military occupation of Palestinian territories. (810)

Given how far Israeli politics have moved away from a commitment to finding a negotiated solution to the problem of the Occupation, it is entirely understandable that"activists' general feeling ... is one of despair and powerlessness to bring about a fundamental and deep change." (808) But I'm not sure that the reason for this state of affairs is that the public interest activists made strategic mistakes, or indeed that they made strategic mistakes at all.

To take the last point first: sometimes the good guys don't win. The forces driving Israeli and Palestinian politics away from negotiation and perhaps to endless confrontation and injustice are deep and powerful. Terror, anger and growing religious fundamentalism may simply be too much for any strategy to overcome. If the advocates of a different course have not succeeded, that may not show that they made any mistakes. Legally speaking, meanwhile, it seems to me that Israeli advocates have actually done rather well – not ending the Occupation, of course, nor ridding it of injustice, but winning judgments in a number of important cases that imposed some genuine constraints on the Israeli government.

I'm also not sure that pursuing a depoliticized strategy was a mistake. I must emphasize that I don't say this based on an understanding of Israel, of which I'm just a concerned observer. But I was struck by Golan and Orr's explanation of the difference between the impact of anti-apartheid lawyering in South Africa and the results of public interest efforts in Israel. They write that "law played a central role in the struggle against apartheid. Yet in South Africa the struggle for legality and basic civil rights was inseparable from the overall political struggle." (796)

It is certainly true that legal efforts against apartheid were part of a much broader social and political movement. But that alone may only remind us that in South Africa the movement against apartheid grew stronger and the government's resistance lost conviction. The larger politics broke against apartheid; within Israel, politics have not broken against the Occupation. Without a strong political movement to link with, activists' options are limited.

It's also not quite right to say that the legal efforts in South Africa were "inseparable" from the political struggle. In one sense, certainly, this statement is correct: the lawyers advocating for human rights were seeking goals that the movement broadly shared. But in that sense I think Israeli activists are also aligned with the political struggle against the occupation.

In another sense, however, many South African anti-apartheid lawyers did their work in ways that were distinct from the political struggle. The most important public interest law organization of the day was the Legal Resources Centre (LRC), which was co-founded and led by Arthur Chaskalson. (I wrote in this blog, with sorrow, about my friend Arthur’s death last fall.) Arthur, an absolutely determined foe of apartheid, nevertheless shaped the LRC as an organization expressing the highest traditions of the bar – legalist traditions rather than explicitly political ones. LRC lawyers, and I think anti-apartheid lawyers in general, challenged apartheid in its own courts by making the arguments that the South African legal system permitted. It was, I think, in good part their ability to present themselves as acting within the bounds of the system that contributed to their legal successes.

I wonder if Israeli human rights lawyers have been the victims not of strategic mistakes but of too much success. In South Africa, as apartheid ground on through the 1980s, no one thought the courts were an institutional force opposed to the government; what was remarkable was that occasional liberal judges, and even occasional conservative judges, ruled against the government. The victories may have meant more because they were more grudgingly yielded by the judicial system. As a result, one can speculate – though only that – that supporters of apartheid may have found these victories more unsettling than Israelis committed to the Occupation do. One can also speculate that the legal system in South Africa was so plainly unsympathetic to the anti-apartheid cause that no one really needed to argue about whether the lawyers fighting against apartheid in the courts were or were not fundamentally aligned with the political struggle.

Israeli activist lawyers, in contrast, have had the good fortune – and perhaps the mixed blessing – of appearing in courts committed to binding Israel to the rule of law. Perhaps the result has been to make the rule of law appear more politically charged than it did in South Africa, and perhaps the result is that when political winds turned against Palestinians those same winds began to blow at the edifice of law. Perhaps conservative Israelis now find it easy to write off the zone of legalist rights-consciousness as simply a political project. (David Remnick writes in “Letter from Jerusalem: The Party Faithful,” in this week’s New Yorker (Jan. 21, 2013), at 42, that Israel’s “[r]ight-wing politicians have long railed against what they see as the dominance of leftist élites in the media, academic, human-rights organization, and, especially, the Supreme Court – the nemesis of the far right – but they do so now from an unassailable position of power.”) And yet it would have been very hard indeed for lawyers to resist the courts’ receptivity to their arguments.

For all these reasons I’m not convinced that Israel’s public interest advocates have made mistakes. It might still be the case that the right move for lawyers now is to become more overtly political. "Politicization" exists on a spectrum, and some shift by Israeli lawyers may prove fruitful. I'd only say that shifting too far may be a mistake; the moral resources of the rule of law are powerful levers, not lightly to be put down. But I certainly don’t know what the best course now is, and I don’t at all envy the Israeli scholars and lawyers who after years of dedicated and difficult effort must wrestle with the question of how to challenge an occupation that has not ended but grown more entrenched over the 45 years it has been in place.