A Bridge Too Far

September 19, 2006

The American President has proposed congressional legislation to “clarify” the rules that its military and intelligence services must follow in the interrogation of prisoners captured in America's “War on Terror.”  The moral framework of the debate would seem clearly framed by the conflicting values of our humanity as a society versus the security needs of a nation “at war.”

The “ticking bomb” is one of the major arguments recently put forth to justify outright torture.  This is a scenario in which a terrorist is caught after planting bombs in a major American city.  Only he knows the deactivation codes.  Only he knows where the devices are planted.  The President argues that under such a circumstance, the suspect's rights to fair treatment are superseded by the public's expectation of security.  Many Americans would tolerate the pulling of a few fingernails, perhaps a bit of high voltage to the plotter's genitalia, maybe a little water-boarding, at least if it allowed authorities the intelligence needed to defuse the threat in time to save American lives.

While emotionally persuasive, the ticking bomb scenario is rhetorically flawed.

For one thing, the hypothetical case would be a one-in-a-million instance against the backdrop of routine investigation and established police methods used everyday in America and around the world.  Law that regulates interrogation must necessarily be predicated within one or two standard deviations of the bell curve norm and not framed against what-if outlying hypothetical cases.

Another problem with the ticking-bomb justification for torture is the necessary subjectivity for when torture must be employed.  Remember that it is a ticking bomb, and the decision of when and how to torture devolves on the spot to the beat cop--ostensibly--that stumbles across the circumstance.  There is no time for consulting with superiors, authorities, or legal institutions.  The subject must be tortured then and there in order to save lives.  But of course what may comprise a ticking bomb to one officer, however, may more closely resemble a stale doughnut to another.  The United States has historically granted the judiciary the authority to provide protections against illegal search and seizure and other potential abuses by law enforcement.  This helps to remove subjectivity from the process and to regulate universal fairness.  The ticking bomb scenario turns the humane evolution of our legal system itself on its ear and in effect converts the beat cop into a potential role for which his training does not qualify him.

Finally, the ticking bomb scenario, precisely because it is a one-in-a-million circumstance presents officers that choose to violate the law a reasonable defence if they are subsequently prosecuted for misconduct.  If officers were to extract the information with a savage beating, defuse the bomb, and save the day, there is not a Prosecutor alive that would go after the torturers, who would in all likelihood be seen as heroes by average Americans. 

The ticking bomb scenario has been quietly supplanted by a new rationale from the defenders of torture.  The President, his press staff, and some administrative bag men, most lately Director of Defence John Negroponte in an op-ed piece in today's New York Times, state that the measure is needed to provide “clarity,” about what interrogators can and cannot do, among other things like stripping defendants from the right of habeas corpus, the right of a defendant to see the evidence against him.  The president argues that the language penned in 1949 is vague and subjective, and that our boys need it spelled out so they can know where to draw the line.

The phrase to which the President objects is contained with Article 3 of the Geneva Conventions and consists of 10 words:

Outrages upon personal dignity, in particular, humiliating and degrading treatment

The president makes the obvious point that this language does not specify the boundaries between accepted and illegal practices in the detention and interrogation of its war prisoners.  Opponents of the measure argue that this language was original language was intended to be non-specific to protect the measure from obsolescence in a changing world.  Both points are reasonable.  The torture-advocates favoring the proposed legislation are unlikely to dispute that outfitting enemy in women's underwear, and other practices made infamous from the Abu Ghraib exposure, is indeed humiliating and degrading treatment.  But the existing language nevertheless leaves a grey zone in terms of how prisoners can be ethically persuaded to divulge intelligence important to the cause of the jailers.  Some codification of what is permissible and what is not, on the surface would indeed appear reasonable.

Here the waters of this debate become muddied by three factors:  1) the intrinsic definition of torture itself; 2)  The US War Crimes act of 1997, which in fact codified the terms of the Geneva Convention, essentially in its original wording, into American Law; and finally, 3) the Bush administration's sustained contention that Congress empowered him in war powers' legislation to essentially break American law and abrogate international treaties with apparent impunity.

From Webster´s Third International Dictionary,

Torture:  1) the infliction of intense pain (as from burning, crushing, wounding) to punish or coerce someone :  torment or agony induced to penalize religious or political dissent or nonconformity, to extort a confession or a money contribution, or to give sadistic pleasure to the torturer <no one shall be subjected to torture, or to cruel, inhuman, or degrading treatment or punishment, UN Declaration of Human Rights> . . . “

There is general consensus that the wilful infliction of intense pain constitutes torture.  However, it is the torment and agony, part that is subject to the parsing of torture that is at the heart of the American debate.  The legislation's torture proponents argue that methods that do not include intense pain may be absolved as being above the boards.  It was for this particular nuance that the authors of Article 3 invoked the term outrages upon human dignity, and asserted that humiliation and degradation, even in the absence of physical pain, cannot be dismissed from the execrable pantheon of what torture "is."  Though the president has been tight-lipped about specifics, lest American enemies gain an advantage, they are thought to include enforced nakedness, subjection to extremes of heat and cold, sleep deprivation, open-handed slaps, shaking, and continuous exposure to blaring music.  In a humanitarian concession, the President draws the line at the use of police dogs, mock executions, and simulated drowning.

In June of this year the United States Supreme court, in Hamdan v Rumfeld declared that America's al-Qaeda enemies enjoyed protections under Geneva.  Team Bush's contrived “illegal combatant” status, history has revealed, was largely a way to get around Geneva in order to justify illegal detention and torture in its war.  The Court's decision had two major consequences.  1) It meant America had to change either its methods or its laws; and 2) It stripped an illusion of legal immunity from thousands of American military and civilian officials, career and elected, bringing a whole class of America's warriors against terror under the cloud of war crimes suspicions.

America's stake in the war on terror, the President would have the American public believe, depends on the CIA's ability to use humane forms of torture as needed in our interrogation of uncooperative terror suspects at home and especially overseas.  The President even threatened that he would shut down the entire “CIA program” if the legislation was not passed.

Of course if open-handed slaps can't be excused from war crimes class, there aren't likely to be CIA staff exactly standing in line at CIA for face-slapping shifts at black sites around the world.  Similarly, their bosses are likely to discourage open-hand slaps should there this interrogation method be generally associated with war crimes rather than sanctioned under the proposed Torture Lite legislation.  Finally, if an open-handed slap cannot pass muster as an alternative interrogation method, then politicians themselves will be less likely to condone such methods.  Before long, the United States would stop slapping detainees, which arguably it should not be doing in the first place.

Interrogation technicians are likely to debate the pros and cons of aggressive methods for the remainder of history, but there is a clear consensus that torture is no silver bullet.  While torture may indeed produce important intelligence on occasion, it also generates false confessions and fictitious leads, so operationally speaking, its potential value is a bit of a mixed bag.  Tellingly, to date the Bush administration has not produced a single documented example of how the use of alternative interrogation methods have concretely saved a single innocent life.  Many law enforcement professionals have come out to proclaim that as a method, torture simply does not work, irrespective of its attendant morass of moral and ethical issues.

The military sidestep the whole moral question in a very practical manner.  If America tortures the enemy it captures, how can it expect the enemy to not torture captured Americans?  It's simple and devolves ultimately probably from the do-unto-others Judaeo-Christian ethos of interpersonal fairness.  This is not a new quandary.  The Geneva Conventions were enacted to cover precisely the circumstances in play today.  Once the Supreme Court declared captured combatants protected under Geneva, the administration's jig was up.   As Team Bush now pushes for amendment of the War Crimes Act retroactively to cover its backside and to strip due process safeguards and institutionalize torture to chart a path toward prosecution of charter al Qaeda members prominently in custody, America is at a cruel nexus.  As the president would have us believe, in order to bring sweet justice to the 9/11 malefactors in out custody, America must first strip the defendant's of rights and stack the decks against them in kangaroo courts in Cuba. 

If only the nation's civilian leadership and a wide swath of rank and file in the military and intelligence services were not liable for past war crimes, Bush could make a course correction in line with Hamdan, and the United States could continue to prosecute its various wars without need for this ridiculous Torture Exclusion Act and amendments to otherwise settled law.  He could either bite the bullet and expose some methods and sources in a truly transparent trial or the 911 architects, or he could let them languish at Guantánamo till hostilities cease, or till hell freezes over, whichever comes first.  Neither of these alternatives would require us to subvert national principles, but neither of these would protect those involved from future criminal liability either.

It is important to parse definitions and to clarify things if they are muddy.  And it is vital that as a nation we tackle the issues of our day to arrive at a national strategy for success that adequately balances self-interest in all of its complexity.  At the end of the day, however, it all gets very simple morally on this debate.  Either we are a nation that condones torture and denies due process at our whim, or we are a nation that protects civil liberties and respects universal standards of fair treatment.  The debate riveting America today hearkens back to earlier periods of record when similar circumstances on the global and national stages produced such documents as the American Constitution and the Geneva Conventions in the first place. 

Bush predicated his interrogation methods over the past five years on the presumption that Geneva didn't apply, and Hamdan v Rumsfeld in effect opened criminal liability to a whole class of civil servants and military personnel, including the President himself.  Torture legislation cannot indemnify the administration from its war crimes, but one supposes that if the President is able to enforce his personal comfort level with torture upon the US Congress and the American public, it will go a long way toward a tacit ratification of all his other methods as well.  Perhaps with this, he will be able to somehow cobble together a modest legacy.

Then again, perhaps that illusion, like the codification of torture itself, is simply a bridge too far.

This is an editorial.  This is only an editorial.  Had this been an actual fact you would have been advised to withdraw to your nearest fact shelter to await further instructions.  We repeat.  This is only an editorial.

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