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 time bomb” is one of the major arguments for alternative methods of interrogation.  This is a scenario in which a terrorist is caught after planting bombs in a major American city.  Only he knows the deactivation codes that can be used to disarm the devices.  Only he knows where they are.  The President argues that under such a circumstance, the suspect's rights to fair treatment are superseded by the public's expectation of security.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 waterboarding if it allowed authorities the intelligence needed to defuse the threat in time to save American lives.

While emotionally persuasive, the “ticking time bomb” is rhetorically flawed.

For one thing, the hypothetical case would be a one-in-a-million case against the backdrop of routine investigation and police and intelligence practices throughout America and around the world.  The one-in-a-million case should not be the basis for rules to apply to all other investigative circumstances.

Another problem with the ticking-bomb proponents is that the decision of when to torture becomes a subjective one contingent upon the law enforcement officer that stumble across it.  Remember that it is a ticking bomb.  There is no time for consulting with superiors, authorities, or legal institutions.  The subject must be tortured then and there to save the day.  What may comprise a ticking bomb to one officer, however, may not to another.  The United States has granted the judiciary the authority to provide protections against illegal search and seizure and other potential abuses that can arise in criminal investigation and police work in general.  This helps to remove subjectivity from the process and to regulate universal fairness. 

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 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 displaced by a new rationale from the measure's supporters.  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 they can and cannot do.  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 the line is drawn.

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 make explicit the boundaries between accepted and illegal practices in the detention and interrogation of its enemies.  Opponents of the measure argue that this language was intended to be non-specific to protect the measure from obsolescence in a changing world.  Both points are reasonable.  The torture-advocates behind the proposed legislation are unlikely to dispute that outfitting enemy in women's underwear, and other practices made notorious 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; and 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 unabridged Third International Dictionary of the English language,

Torture:  1) the infliction of intense pain (as from burning, crushing, wounded) 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 infliction of extreme 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 this debate.  The legislation's 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 decency, and asserted that humiliation and degradation, even in the absence of physical pain cannot be dismissed from the 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, but 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 Geneva Convention protections.  Team Bush had contrived the “illegal combatant” status shortly following its Afghanistan invasion in an effort, history has since revealed, specifically to get around the Geneva Convention restrictions against inhumane methods of detention and interrogation.  This had two major consequences.  It meant America had to change either its methods or its laws.  And it stripped an illusion of legal immunity from thousands of American military and civilian officials, career and elected, from prosecution under law for war crimes.

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 face-slappers exactly standing in line at CIA for shifts at black sites.  Similarly, their bosses are likely to discourage open-hand slaps should there be a criminal liability associated with slapping detainees around during interrogation.  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.

Interrogation technicians are likely to debate the pros and cons of aggressive interrogation methods for the remainder of history, but torture is no silver bullet.  Torture produces false confessions and fictitious leads, and to date the Bush administration has not produced a single documented example of using torture to save innocent lives.  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 practical way.  If America tortures the enemy it captures, how can it expect the enemy to not torture captured Americans?  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 jig was up.   As the bushies try to amend the War Crimes Act retroactively and to strip due process safeguards and institutionalize torture to protect themselves and chart a path toward prosecution of charter al Qaeda members in custody, America is at a cruel point, in which prosecution of the men somehow requires America to foreswear protections enshrined into our nation's national mantra of liberty and justice.

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 correction in line with Hamdan, and the United States could continue to prosecute its various wars without The Torture Exclusion Act of 2007 becoming law.  He could either bite the bullet and expose some methods and sources in a truly transparent trial, 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 vital that 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.  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 past and present.  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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