Meanwhile, in torture news, two fascinating items from the morning paper. In an effort to gather evidence against 9/11 suspects at Guantanamo that can’t be tossed out, the Dept. of Justice and the Pentagon in 2006 put together what they call a ‘Clean Team’ to re-collect the evidence without using any coercive measures. Clean Team investigators, according to the Times, ‘had not been briefed on earlier interrogations by the C.I.A. using harsher tactics,’ but it is presumed they will, with their Clean skills, collect the same information as what we should now infer was the government’s Dirty Team.
And Justice Antonin Scalia—in remarks that were clearly meant to bait but are nevertheless still the on-the-record statements to a reporter of a Supreme Court judge’s interpretation of the constitution—claimed that constitutional provisions against ‘cruel and unusual punishment’ don’t automatically apply if the cruel and unusual treatment is not intended to punish but to collect information.
I chose the word ‘fascinating’ because the two stories knock the justifications out from under each other. If, as the existence of a Clean Team indicates, the U.S. has faith that information can be obtained without coercive techniques or torture, then that treatment—like the waterboarding of KSM and friends—isn’t needed for information gathering. If it is permitted because it does not count as punishment, then we cannot explain it as a form of justice. All that leaves is that we wailed on them for wailing’s sake, like we did with Maher Arar: just to show we’re mad, to show we’re tough, to show we could.