Monday, October 22, 2007

The effectiveness of coercion and torture

Yesterday I wrote what many of us have known for a long time: that torturing people to extract information does not make us more safe. This post by Steve Bergstein provides actual proof. Here is an extended excerpt from his post:

In addition to this blog, I also maintain a legal blog covering the civil rights decisions of the United States Court of Appeals in Manhattan. Last week, my eyes lit up when I checked the daily decisions and saw that one case involved a guy who claimed he was forced to confess to a crime that he did not commit. This scenario surfaces from time to time for murders and other crimes, but this case was different because it involved the crime of the century: the 9/11 hijackings which launched this country into a new era.

The long and the short of it was that an Egpytian national, Abdallah Higazy, was staying in a hotel in New York City on September 11 and the hotel emptied out when the planes hit the towers. The hotel later found in the closet of his room a device that allows you to communicate with airline pilots. Investigators thought this guy had something to do with 9/11 so they questioned him. According to Higazi, the investigators coerced him into confessing to a role in 9/11. Higazi first adamantly denied any involvement with 9/11 and could not believe what was happening to him. Then, he says, the investigator said his family would go through hell in Egypt, where they torture people like Saddam Hussein. Higazy then realized he had a choice: he could continue denying the radio was his and his family suffers ungodly torture in Egypt or he confesses and his family is spared. Of course, by confessing, Higazy's life is worth garbage at that point, but ... well, that's why coerced confessions are outlawed in the United States.

So Higazy "confesses" and he's processed by the criminal justice system. His future is quite bleak. Meanwhile, an airline pilot later shows up at the hotel and asks for his radio back. This is like something out of the movies. The radio belonged to the pilot, not Higazy, and Higazy was free to go, the victim of horrible timing. Higazi was innocent! He next sued the hotel and the FBI agent for coercing his confession. The bottom line in the Court of Appeals: Higazy has a case and may recover damages for this injustice.

As I read the opinion I realized it was a 44 page epic, too long for me to print out. I blogged about the opinion while I read it online and then posted the blog as I ate lunch. Then something strange happened: a few minutes after I posted the blog, the opinion vanished from the Court of Appeals website! I had never seen this before, and what made all the more strange was that it involved a coerced confession over 9/11. What the hell was going on?

I let some other legal bloggers know about this, particulary the How Appealing blog and Appellate Law and Practice. They both ran a commentary on the missing opinion. Then someone sent How Appealing a PDF of the decision (probably very few of them were floating around since the opinion was posted for a brief period of time) and How Appealing posted the decison.

Then things got even stranger. The Court of Appeals actually phoned How Appealing to request that he remove the opinion from his website since it contained classified information. The Court said that a revised opinion would come out the next day without the classified information. How Appealing actually refused to remove the opinion. Through it all, hundreds of people came to my legal blog to see my summary of the opinion. It was either my blog or printing out and reading a 44 page epic.

The next day, the Court of Appeals reissued the Higazy opinion. With a redaction. The court simply omitted from the revised decision facts about how the FBI agent extracted the false confession from Higazy. For some reason, this information is classified. Just as the opinion gets interesting, when we are about to learn how an FBI agent named Templeton squeezed the "truth" out of Higazy, the opinion reads at page 7: "This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy's statements were coerced."

So the opinion, while interesting, is much less interesting because now we don't know how the FBI extracts false confessions from people. Looking at things from another angle, we don't know how the FBI gets suspected terrorists to tell the truth. Except that we do know this, because the opinion is still available from the How Appealing website. The horse is out of the barn, and the classified portion of the opinion is embedded in the Internet for all eternity. Not only is this decision not to remove the premature opinion now a subject of debate (people tend to think that How Appealing did the right thing in keeping the opinion available), but now we can see the part of the ruling that the Court redacted:

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny” and would “make sure that Egyptian security gives [his] family hell.” Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.”

Higazy later said, "I knew that I couldn't prove my innocence, and I knew that my family was in danger." He explained that "[t]he only thing that went through my head was oh, my God, I am screwed and my family's in danger. If I say this device is mine, I'm screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.”

Higazy explained why he feared for his family:

The Egyptian government has very little tolerance for anybody who is —they’re suspicious of being a terrorist. To give you an idea, Saddam’s security force—as they later on were called his henchmen—a lot of them learned their methods and techniques in Egypt; torture, rape, some stuff would be even too sick to . . . . My father is 67. My mother is 61. I have a brother who developed arthritis at 19. He still has it today. When the word ‘torture’ comes at least for my brother, I mean, all they have to do is really just press on one of these knuckles. I couldn’t imagine them doing anything to my sister.

And Higazy added:

[L]et’s just say a lot of people in Egypt would stay away from a family that they know or they believe or even rumored to have anything to do with terrorists and by the same token, some people who actually could be —might try to get to them and somebody might actually make a connection. I wasn’t going to risk that. I wasn’t going to risk that, so I thought to myself what could I say that he would believe. What could I say that’s convincing? And I said okay.

That's how they do it, folks. If a foreign national is suspected of terrorist activity, the FBI will threaten to have a brutal foreign government punish his family. And punishment in a place like Egypt is not like punishment here. Punishment here consists of solitary confinement and a very long prison term. Punishment over there is torture.

Now granted, physical torture was not applied in this case. The FBI did not go to work on Higazy with pliers and a blowtorch, but the results would have been the same if they had instead of just threatening to torture his family. What would you have done if you had been in this situation? Imagine if you were separated from your family and repeatedly told that your son was going to have his toenails ripped off, holes drilled through his hands with an electric drill, or his genitals crushed in a vice if you didn't say what your captors wanted to hear. What would you have confessed to? I know what I would've done.

Coercion and torture will make almost anyone confess to being the Easter Bunny. People will say and do anything to make the pain stop or to eliminate the threat. They will say whatever the "interrogator" wants to hear, whether it is the truth or not. Obviously, this does not help further our national interests on many levels. This is the lesson that our intelligence community should have learned from the Soviets and East Germans. Instead, they learned new and exciting techniques for applying pain.

So after the FBI went through all the effort to coerce Higazy into making a false confession, we find that they wasted a lot of time that could have been better spent tracking down real leads. I'll say it again for the hard of comprehending: torture does not make us safer. In the entire history of the world, the "ticking bomb" scenario that the wingnuts love to postulate has probably never happened. The assumption is that the person being tortured actually knows something pertinent, which we can see by the example above is patently false. Jack Bauer is a fictitious character in a television show and should not be used as a role model.

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