The Parsing of Torture:  A Bridge Too Far

September 19, 2006

The American President has urged congressional legislation to “clarify” the rules that 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 to center upon conflicting values of our humanity as a society versus the security needs of a nation “at war.”

The “ticking bomb” is one of the hypothetical arguments posited in favor of outright torture.  In this scenario 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  The President argues that under such a circumstance, the suspect's rights to fair treatment are superseded by the public's expectation of security.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 hypothetical outliers.

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 plot.  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 may more closely approximate 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 evolved principles of our legal system 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 defense 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 edged out by a new paradigm from the defenders of torture.  The president, his press staff, and some administrative bag men, most lately Director of Defense, 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.  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 in 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 the language was intended to be non-specific to protect the measure from obsolescence in a changing world.  Both points are reasonable.  The torture-advocates are unlikely to dispute that blindfolding naked men with women's underwear or leashing them at the neck and making them to crawl like a dog, 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 open to interpretation about what is and is not permissible.  Some codification of what is permissible and what is not, on the surface would 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 1996, which codified the terms of the Geneva Convention into American law; and finally, 3) the Bush administration's contention that Congress bestowed upon him extraordinary powers in war legislation that essentially authorizes him to 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 at the heart of the torture-parsing central to this debate.  The legislation's torture proponents argue that methods that do not include intense pain may be absolved as being above the boards of actual torture.  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 pantheon of torture.  Though the president has been tight-lipped about specifics--lest American enemies gain an advantage--the proposed methods 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, President Bush has apparently drawn 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. Rumsfeld 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 the Human Resources department for face-slapping shifts at black sites around the world.  Similarly, their bosses are likely to discourage open-hand slaps should this method not become 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.  Who knows?  Maybe in time, the United States will quit slapping its detainees, something it arguably 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.  A handful of law enforcement professionals have emerged to claim that as a method, torture simply does not work, irrespective of its attendant morass of moral and ethical issues.

The military sidesteps 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 911 malefactors in our custody, America must first strip the defendants of their most basic legal rights as human beings in a kangaroo court in Guantánamo. 

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 war crimes under existing law, 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 proposed Torture Exclusion Act and opportunistic amendments to the War Crimes Act.  The president can either bite the bullet and expose some methods and sources in a truly transparent trial of the 911 architects, or he can let them languish at Guantánamo till hostilities cease, or 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 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 unified 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 particular 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. 
 

Bush predicated his interrogation and detainment methods over the past five years on the presumption that Geneva didn't apply, and Hamdan v. Rumsfeld in effect has opened criminal liability to a whole class of civil servants and military personnel, including the president himself.  Torture legislation cannot indemnify the administration from allegations of war crimes, but one supposes that if the president is able to empress 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 oversee the execution of 911 conspirators following summary military tribunals and will 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.

EDITORIAL HOME