"Zero Dark Thirty" revives a contentious debate....
My assessment: ZDT is an Oscar caliber film. It is superbly photgraphed, acted, keeping a steady pace. The emphasis is on the search, with the raid, starkly choreographed, almost an anti-climax. License is taken: (a) waterboarding was not used on the detainees whose interrogations are depicted, though other EITs were used on them; (b) some of the interrogation practices depicted were used at Abu Ghraib, but not at Guantanamo nor at CIA black (secret) sites; (c) the role superbly played by Jessica Chastain--that of the chief analyst who spent a decade hunting bin Laden--was vastly inflated for dramatic purposes. Tellingly, at one point in the film more proof that bin Laden is at the compound in Abbotabad is requested, to support ordering a raid. An agent answers that we no longer can use interrogation to get info from detainees.
Chastain did not meet the real-life undercover CIA analyst she portrays. At last night's Golden Globe Awards Chastain said this as to her not having met the CIA analyst on which her film character is loosely based:
If I were to have met her I would've put her in danger of going to prison. It's a very difficult time, and she's an undercover agent who is really good at her job. I feel safer knowing that she's out there taking care of us.
Chastain's comment shows a commendable concern for others notably absent in Quentin Tarantino's view--to be documented in my "Violence & Tinseltown" LFTC post tomorrow (the link goes live by 9 AM Tuesday).
Moreover, the film goes to great lengths to show the passionate dedication of CIA & special ops personnel pursuing bin Laden. Frequent reference is made to 3,000 innocents murdered on 9/11. The opening scene is a dark screen with the voices of victims trapped in the collapsed World Trade Center towers conversing with their would-be rescuers.
In ZDT the courier who helps US intel locate Osama bin Laden is waterboarded, depicted graphically in the film. Which revives the debate about the legality & morality of the procedure. Interestingly, Bigelow was interviewed on CBS (5:53) about her film, and when the news anchors used "torture" to refer to waterboarding, Bigelow responded with "enhanced interrogation." (Bigelow, a self-declared pacifist, subsequently used "torture" in a later interview--link added to my original post on 1/16.)
The CIA has stated that the film is not accurate on several matters, focusing on the inflated credit given the CIA sleuth played by actress Jessica Chastain.
As to legality of EITs, there is specific authority, in the Code of Federal Regulations: Title 8 CFR sec. 1200.18. In pertinent part, it provides:
(a) Definitions. The definitions in this subsection incorporate the definition of torture contained in Article 1 of the Convention Against Torture, subject to the reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention.
(1) Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the inst igation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
(2) Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture.
(3) Torture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Lawful sanctions include judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty, but do not include sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture.
(4) In order to constitute torture, mental pain or suffering must be prolonged mental harm caused by or resulting from:
(i) The intentional infliction or threatened infliction of severe physical pain or suffering;
(ii) The administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(iii) The threat of imminent death; or
(iv) The threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the sense or personality.
(5) In order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering. An act that results in unanticipated or unintended severity of pain and suffering is not torture.
(6) In order to constitute torture an act must be directed against a person in the offender's custody or physical control.
(7) Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.
(8) Noncompliance with applicable legal procedural standards does not per se constitute torture.
NOTE: the boldfaced text covers all four subheadings (4)(i)-(iv). The key common concept in (4) is "prolonged mental harm." Waterboarding causes intense mental harm--fear of imminent death by drowning--but for a few tens of seconds (usually 30 to 40). This is brief, if extreme, distress.
Hence, under US law waterboarding does not amount to torture, because the harm it inflicts is brief, NOT prolonged. And under the US Constitution's Supremacy Clause US law trumps foreign law such as that of the EU or UN (under which all EITs clearly are deemed torture). Only when the US has expressly waived US law by duly ratified treaty would international norms apply as law of the land.
Although the White House declined to rule out the possibility that EITs played a role in locating OBL, a new Senate report (6,000 pages, unreleased, adopted by Democrats over Republican objections) maintains the contrary. But in his prior incarnation as CIA Director, SecDef Leon Panetta specifically said that EITs may have played a role (14:53--discussion at the 8-1/2 - 9-1/2 min. mark), in an interview shortly after OBL's takeout. Ex-CIA terror interrogator Jose Rodriguez has detailed how EITs (but not waterboarding) did indeed play a role in finding OBL; he also said that the film inaccurately portrays waterboarding, which in real life is less harsh than is shown for dramatic effect on screen. But if it cannot definitively be proven that enhanced interrogation played a role in finding OBL, one may reasonably infer that in fact it did (whilst others infer the contrary). George Will opines that ZDT properly informs viewers graphically as to what harsh techniques were employed, that they may judge issues of morality & necessity associated with EITs.
Many viewers of the film likely will conclude that enhanced interrogation worked. ZDT got highly favorable notice from the New York Sun, a frequent Obama critic. Enraged at that prospect, Senate Democrats plan to investigate the CIA's disclosures to the film's makers. Also, it appears that the name of at least one member of SEAL Team Six, though not a participant in the raid, was given to filmmakers by a government official. This may also be investigated.
The toxic political fallout over ETIs cost director Kathryn Bigelow an Oscar nomination, though the film is in contention. If ZDT wins, it will only be the 5th time in 25 years that the director of the best film did not also win. In last night"s roster of Golden Globe Awards winners, ZDT was passed over, but Jessica Chastain won Best Actress; she is also nominated for a Best Actress Oscar. (Best Picture went to Argo & Best Director to Ben Affleck for Argo--like Bigelow, Affleck was shut out of the 2013 Best Director Oscar, though Argo is nominated for Best Picture--for my take see my LFTC post on the film.)
Violence Note. ZDT is not, by today's standards, exceptionally violent. There are some low-level violent episodes in the interrogation scenes, some terror attacks that are not overly gory and the raid scene, while gritty & seemingly realistic, has modest violence at most. Ironically, a half dozen of the film previews before the feature were cartoonish hyper-violent trailers, thus making ZDT seem tame by comparison.
Bottom Line. With time perspective and emotions long since dialed down, a more rational debate over interrogation techniques may be the hidden benefit of the film. The film's creators surely oppose as "torture" all EITs. But their audience may see matters in a different light, with the film's connecting EITs to finding & killing OBL.
Letter from the Capitol, LFTC, National Security, Foreign Policy, Conservative Politics