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The Gray Zone: Defining Torture

F ew issues divide people as deeply as the current controversy about torture. Slightly more than half of all Americans believe torture should be prohibited in the war on terror; slightly less than half believe it should not. People on both sides of this divide hold their positions with the kind of fierce tenacity we are more accustomed to encountering in debates such as the one that has raged for at least three decades over the right to abortion. The absolutism that prevails on both sides of the torture debate damages our ability to think and talk clearly about the issue.

The anti-torture camp insists that torture must be prohibited at all times and everywhere, and lends legal authority to this view by citing the Convention Against Torture (CAT), an international agreement that was signed by the United States in 1988 and ratified into American law in 1994. The convention requires that participating countries ban torture comprehensively, with no exceptions or extenuations.

CAT is a triumph of high-minded idealism. Yet can ethical people who cherish its principles allow no exceptions to a complete ban on torture? In fact, an all-star roster of legal thinkers—including Richard Posner, Alan Dershowitz, Walter Dellinger, Philip Heymann, Philip Bobbitt, and Sanford Levinson—believes there may be occasions when a president will have to step outside the law and use torture, or at least harsh interrogations. Why? Because of the ticking bomb.

Eventually, every discussion of torture arrives at the question of the ticking bomb. We are all familiar with this scenario. Law enforcement or military officials capture a terrorist who knows that a nuclear bomb is about to go off in a major American city. Isn’t the president morally obligated to use torture against such a person in an effort to prevent mass murder?

The anti-torture camp hates the ticking bomb scenario. One law professor, Stephen Holmes, calls it “a utopian fantasy.” Another, David Luban, says it’s “an intellectual fraud.” But in truth it’s not that hard to imagine a situation in which the head of Homeland Security rushes into the Oval Office and tells the president that police are “pretty certain” a bomb is set to explode, and they’re “fairly confident” they have a man who knows where it is. And it’s probably the case that any president—whether George W. Bush or Barack Obama—confronted with such a choice would approve the use of torture rather than risk a catastrophe. And almost certainly a majority of Americans would support the decision.

Of all the ticking bomb examples, none is more directly relevant to the current debate than the case of Khalid Shaikh Mohammed. As the head of al-Qaeda’s military committee and the reputed mastermind of the September 11 attacks, he possessed invaluable information—about the inner workings of al-Qaeda, its finances, and its future plans, including efforts to obtain weapons of mass destruction and plots already under way.

After Mohammed’s capture in 2003, officials understood that time was of the essence, and after he failed to respond to direct questioning—“soon you will know,” he initially told his captors, deepening their concern—interrogators employed harsher methods, methods that any but the most blinkered would call torture. Over a period of several weeks, he was kept naked, shackled, and isolated, deprived of sleep for up to seven and a half days at a time, and subjected to waterboarding one hundred and eighty-three times. Eventually, he opened up, revealing alleged plots to blow up the Brooklyn Bridge, poison reservoirs, detonate dirty bombs, and spread anthrax.

The usefulness of Mohammed’s information is hotly disputed, with torture proponents believing that he was truthful at least some of the time and torture opponents dismissing him as a fabulist who told his tormentors what they wanted to hear. But clearly he embodies the alpha question in this debate: Does torture ever work? If it doesn’t, then the entire issue is moot.

Social science is of no help here. At the end of 2006, the Intelligence Science Board released a report with the bland and unassuming title Educing Information . The board had been set up in 2002 to provide the intelligence community with the best information available on a range of scientific and technical issues. It described Educing Information as “a primer” on what we know about interrogation and intelligence gathering.

The unhappy truth, the authors conclude, is that we don’t know very much. If there’s a leitmotif running through the volume’s ten scholarly papers, it’s that we have “little rigorous information” about the effectiveness of different interrogation techniques. This should hardly surprise us. After all, experiments carefully measuring various levels of pain inflicted on humans stand well beyond the ethical pale of modern scientific research. Moreover, experts—lawyers, politicians, and the public in general—can’t even agree on a definition of torture. The most we can do is examine the anecdotal evidence and practice what the report calls “casual empiricism.”

 

S uch an approach, it seems to me, leads to only one conclusion: Torture does work. Not at all times, in all places, and against all victims, but with a frequency that should shake the confidence of anyone who believes otherwise. The evidence, anecdotal though it may be, comes from too many sources covering too many situations over too many historical eras to be dismissed.

I am looking right now at a book called Red Orchestra , about an anti-Hitler resistance group in Berlin. The author, Anne Nelson, tells us that when members of the group were captured and tortured, some of them confessed, implicating others. At least one man committed suicide to ensure that he wouldn’t name names. His friends believed his death saved many lives.

Members of the French underground during World War II were urged to endure the pain for forty-eight hours, enough time so that any information they might possess would be rendered useless. Opponents of the French colonialists in Algeria were encouraged to hold out for twenty-four. It is risible to imagine a cell member in occupied France or colonial Algeria telling his comrades not to worry because torture doesn’t work.

Mark Bowden’s 2003 Atlantic Monthly article, “The Dark Art of Interrogation,” puts forth a veritable catalogue of examples of effective torture, provided by people Bowden interviewed personally. A Marine captain who had served in Vietnam told him of attaching electrical wires to the testicles of a Vietcong soldier to make him reveal possible ambush sites. “The minute the crank started to turn,” the captain said, “he was ready to talk.” After the 1983 bombing of the Marine barracks in Lebanon, the CIA used torture to track down the perpetrators; an agent Bowden spoke to had no doubts about its effectiveness. And the former chief interrogator for Israel’s General Security Services told Bowden that with “sufficient duress” even the hard cases will likely break.

Even if torture does work, however, those opposed to it make a number of other arguments. They often say that if the United States tortures prisoners, it endangers American servicemen captured by the enemy. This has been Colin Powell’s position. Yet as has been pointed out on more than one occasion, our most recent enemies—the North Koreans, the North Vietnamese, and now Muslim extremists—have required no excuses to mistreat their captives.

Opponents also say that torture provides a recruiting tool for al-Qaeda; that our allies won’t cooperate with us if we torture; that torture is such a morally corrosive practice that it damages the practitioners almost as much as the victims. These are legitimate matters for debate. But no person in a position of power can depend on them to guide policy because there is no way of testing their validity, and in the end a president faced with the ticking bomb scenario will make his decision based on pragmatic, cost-benefit considerations. Will the information gained from torture or other harsh methods be worth more than the price that may have to be paid? In the classic case of the ticking bomb, the answer is obvious—it’s a no-brainer.

 

T here is, finally, one anti-torture argument that rises above the particulars of cost-benefit analyses. It insists that torture is simply wrong. Decent people and decent countries do not engage in it under any circumstances, whatever the consequences, and that’s really all there is to it.

This absolute moral position will end any debate if based on religious conviction. But more often, in our secular age, such a position will be grounded in a human rights philosophy based on American Enlightenment principles. Torture is illegitimate, many believe, because it violates American values and traditions.

Ideals are one thing, the reality of American history quite another. There is, in fact, a well-established American tradition of torture. The definitive text on it is Torture and Democracy by Darius Rejali, himself an opponent of torture. He sees “a long, unbroken, though largely forgotten history of torture in democracies at home and abroad.” What the torture techniques of democracies have in common is that they leave no lasting marks on the victims, no proof. Rejali calls this “clean torture.”

Electroshock began in democracies, and it was in the United States that interrogators first used rubber hoses to administer beatings that left no bruises. Sleep deprivation and stress positions (the “third degree”) were once common practices of American police.

It’s not only the police who have tortured or used other harsh methods. The U.S. military has, too. During the war in the Philippines at the beginning of the twentieth century, American troops employed the “water cure,” a forerunner of waterboarding. During the Vietnam War, torture was probably even more extensive. Whatever its professed ideals, the United States has tortured in the past. It has tortured in the near-present. And should needs arise and circumstances dictate, it will probably torture in the future.

But if the anti-torture absolutist can look naive, the pro-torture absolutist can look repulsive. The assertion that torture “is basically subject to perception,” and that “if the detainee dies you’re doing it wrong,” captures the heartless inhumanity of torture in an age of terror. Those words come from a top CIA lawyer speaking at the Guantánamo Bay detention center in October 2002 during a meeting to discuss interrogation techniques. Detainees in U.S. custody did, in fact, later die. In 2008, Senator Carl Levin asked the world “how on Earth” the American government arrived at such a state of affairs. How, indeed.

The sense of panic that gripped the country after September 11 may have been even greater inside the White House. Threats of additional attacks were flooding in. No one knew anything. And because anything seemed possible, Bush administration officials promised to do whatever was necessary.

Their language became extreme, reflecting the extremity of the situation. All that mattered, as Attorney General John Ashcroft told Robert Mueller III, the head of the FBI, was stopping the next attack. In a meeting of intelligence officials in March 2002, George Tenet, the director of central intelligence, declared: “There’s nothing we won’t do, nothing we won’t try.” The president himself told Bob Woodward: “Whatever it takes.”

This crisis attitude continues to echo in Dick Cheney’s many comments in the current torture debate, and in the statements of other pro-torture absolutists. Where national security is concerned, all is permitted. Public safety trumps any other consideration.

But is there no action that is unacceptable, even in the name of national security? Is there any point in the process of torture or harsh interrogations where we should—where we must—stop?

For “Cheney’s Cheney,” there was no stopping point. When David Addington, the vice president’s legal counsel and longtime associate, was in a position of influence, he was ready to override Congress, ignore allies, and defy international law to pursue his notion of national security. “We’re going to push and push and push,” he said, “until some larger force makes us stop.” Addington had an ally in John Yoo, the Justice Department lawyer now famous for his memos arguing that illegal torture be defined so narrowly as to permit just about any kind of cruelty. When challenged, Yoo, with the courage of consistency, was willing to push his position to the breaking point. The Constitution, he said, gave the president the authority to torture young children.

Among those willing to countenance torture, the most crucial questions have always been about limits. When the Pentagon tried to ram through a policy of harsh interrogations that included the use of dogs, nudity, and waterboarding, it faced a near-revolt from lawyers inside the military, who believed the tougher methods might violate federal law.

Attorneys get paid to think about limits, and they came to represent the “larger force” standing in the way of David Addington and other national security and pro-torture absolutists. Despite their impeccable right-wing credentials, doubters inside the administration resisted the absolutist views emanating from the vice president’s office. Inside the Bush White House, therefore, the real battlefield of the torture debate became the law and the limits it imposed.

Sometimes the Bush White House simply chose to ignore the law. This was its practice with extraordinary rendition, or the sending of a prisoner to a foreign country for detention and questioning. By 2005, Human Rights Watch reported, more than one hundred prisoners had been sent to other countries. Detainees who were later released told of the cruelest kind of treatment—electroshock, genital mutilation. One doesn’t have to accept all their claims to grasp Washington’s intent to evade the law against transporting a prisoner to a country “if it is more likely than not that he would be tortured.” The favored countries for rendition were an international rogues’ gallery of human rights abusers: Egypt, Morocco, Syria, Jordan, Uzbekistan, Afghanistan.

There is, in any case, a fundamental question about the legality of torture that never goes away. When do interrogation techniques become so harsh that they cross the line and become torture, and therefore illegal? We can all agree about genital mutilation, but is shouting at a suspect an act of torture? Shaking or slapping him? Playing loud music? Solitary confinement? There are, in fact, no clear answers except at the extremes; there are only opinions, which is why that CIA lawyer who said torture was “subject to perception” was, to a certain extent, not really wrong.

CAT makes a distinction between torture per se and “cruel, inhuman, or degrading treatment.” And while it condemns both, it only bans the first outright. When the United States ratified CAT, it narrowed the definition of torture and emended the definition of “cruel, inhuman, or degrading” to prohibit only those methods that, under the Constitution (as interpreted by U.S. courts), “shocked the conscience.” The phrase is elastic enough to allow American interrogators to engage legally in practices that most of the world condemns as torture, and such legal latitude went a long way toward giving the Bush administration the free hand it wanted. Then its lawyers, led by Yoo, went several steps further.

In a series of memos written under Yoo’s guidance, the Justice Department gave a green light to troublingly harsh interrogation techniques that ordinary people, employing ordinary language, would unfailingly call torture. The most notorious of these memos, issued in August 2002, defined torture only as “pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.”

As the Senate Armed Services Committee later concluded, senior White House officials had simply “redefined the law” for their own ends. One member of the committee, Senator Lindsey Graham, a Republican from South Carolina and a former military attorney, said that many in the administration viewed the law as “an impediment to our safety.” And in its recently released report on the memos, the Justice Department’s Office of Professional Responsibility condemned Yoo for “intentional professional misconduct,” while Deputy Attorney General David Margolis declared more moderately that even if he did not break the law, “Yoo’s loyalty to his own ideology and convictions clouded his view.” The Cheneys, Addingtons, and Yoos, it could be said, were prepared to destroy the law in order to save it.

 

S o where does all this leave us? How does someone caught between the pro- and anti-torture camps reconcile the conflicting values of security and human rights?

First, I would say, by acknowledging that under certain limited conditions, torture—or harsh interrogation techniques, which blur the boundaries of legality—may be necessary in the world we inhabit. Ticking bombs are not mere figments of an authoritarian imagination. To assure national security, a president may have to bend or break the law—much as Abraham Lincoln did during the Civil War when he suspended habeas corpus and imprisoned thousands without benefit of due process.

This remains an uncomfortable position in a nation that believes it is governed by laws, not men. Thus, at present, a healthy debate has burgeoned again about whether the law should be changed to allow torture under exceptional circumstances. Alan Dershowitz has famously proposed that courts be permitted to issue torture warrants, similar to search warrants. Philip Bobbitt has offered a variant on Dershowitz, suggesting boards of “responsible people,” rather than courts—“not a judge so much as a jury”—be given this power. Others have proposed that the president be allowed to authorize harsh interrogations after issuing a finding to Congress explaining his reasons. Still others, who accept the idea that torture may sometimes be warranted, resist the notion of bringing it within the scope of the law. Harvey A. Silverglate, a civil liberties lawyer who has debated Dershowitz on torture warrants, writes, “We should think twice before entirely divorcing law from morality.”

Experts line up on both sides of this issue. But ultimately this is a procedural argument, not a substantive one. It doesn’t reach to the heart of the torture debate. If Dershowitz’s or Bobbitt’s proposal were adopted, a judge or panel would have to decide when to torture and what the limits should be. If the matter were left to the president and his advisers, they would have to make those decisions on their own, without benefit of legal protection. Either way, the question remains: If we accept the occasional necessity of torture, where exactly do we draw the line? How do we avoid the slippery slope?

 

T here are some encouraging facts in this otherwise depressing business, instances where reality seems to comport with what we would like it to be. In most cases, torture is not the best means of obtaining information; interrogators are better off establishing a rapport with a prisoner and eliciting what they want to learn through “soft,” conversation-based techniques. Again, as with so much else about this subject, no firm statistics exist. But the anecdotal evidence is strong. Some estimates indicate that as many as ninety percent of detainees during World War II responded to direct questioning; in the cases of Vietnam and the Gulf War, the figure increases to ninety-five percent. Even the medieval interrogators of the Inquisition believed they obtained better results through solitary confinement than through torture.

But rapport-building nullifies itself when the clock is running. Building a relationship with a prisoner takes patience, guile, endurance—and plenty of time. It may be the best method for slow-moving police work, but as one of the papers of the National Science Board explains, it has “little applicability to a ticking-bomb or otherwise time-constrained investigation scenario.” For the Khalid Shaikh Mohammeds we capture in the future, more brutal methods seem called for.

Yet even if time constraints increase the possibility of torture, they also place a limit on it. There is no sense in continuing to inflict pain after the information the detainee may possess has lost its usefulness. Even the Gestapo eased up on French resisters after forty-eight hours. In an actual ticking bomb scenario, the interrogators’ window of opportunity is very small. If a prisoner has knowledge of, say, al-Qaeda’s military structure or financial connections, there is less urgency. Nonetheless, the acceptable period for torture can never be indefinite.

A second limit concerns prisoners awaiting interrogation. In wars of counterinsurgency and counterterrorism, everyone on the ground is a potential enemy. Still, torture isn’t appropriate in most situations—and not just for moral reasons. When an army is trying to win hearts and minds, it’s counterproductive to beat up a teenage boy to find out about his older brother who may have a bomb. Harsh interrogations should be reserved only for high-value detainees whose information could make a significant difference in the war. The number of candidates for torture will always be very small.

And even with these high-value detainees, there have to be limits on the interrogations themselves—although determining just what those limits are becomes the hardest task of all. For even as it’s difficult, if not impossible, to draw a clear line between the harsh methods that qualify as torture and those that do not, it’s equally difficult to define a clear limit on the kind of techniques that should be permissible. Everything depends on the particular circumstances.

The political theorist Michael Walzer, struggling with a similar issue, concluded: “We want political and military leaders to worry about costs and benefits. But they have to worry ; they can’t calculate.” Likewise, we may not be able to calculate in any precise manner what the limits of torture should be. But we want interrogators to know that there are limits. Much of the criticism of the Bush White House came from the perception that the people in charge never worried about such things.

In fact, the Bush administration, even as it pushed for total freedom of action, did prescribe limits on interrogations. The CIA had precise—even punctilious—rules on how long a prisoner could be doused with water, how loud the noise could be that was piped into a prisoner’s cell, and exactly how long a detainee could be kept in a box. Waterboarding, although it has become central to the torture debate and rouses the strongest passions, was used on only three prisoners, and not at all after 2003.

Those unalterably opposed to torture feel such careful distinctions of pain and discomfort seem to demand the adjective “Kafkaesque.” Yet anyone who accepts the occasional necessity of torture or harsh interrogations has to think about rules, even those that seem bizarre when taken out of context. It’s possible to view waterboarding as a valid technique under some circumstances and still believe that using it on someone one hundred and eighty-three times “shocks the conscience.”

As we now know, the limits that were propounded were not always adhered to. The White House’s macho shouting proved louder than the government lawyers’ whispered reservations. Subordinates in the field kept getting mixed messages, or no messages at all. We’ve seen the result of this muddle quite literally: the pictures from Abu Ghraib have burned into our collective consciousness.

Nevertheless, it’s important to note that the abuses of Abu Ghraib were not “the tip of the iceberg” (as Human Rights Watch has called them). No one approved of them; they had nothing to do with official American policy. The Pentagon lawyer who first promulgated the rules for harsh interrogations, which included nudity, stress positions, and the use of dogs—the very things we saw in the photographs—was horrified when she learned about Abu Ghraib and called it “anarchy.” No one defended what happened at Abu Ghraib then and no one defends it now—which is why it has no place in the torture debate, except as an illustration of how incompetent leaders can let matters get out of hand.

Conditions were different at Guantánamo Bay military prison, where oversight was firmer and rules closely followed. If the reports of government investigators can be believed, interrogators there adhered almost completely to the authorized guidelines. Of twenty-four thousand interrogations conducted there over a three-year period, only three cases of substantiated abuse were uncovered, and they involved only high-value detainees. In all three cases, the interrogators were disciplined for excesses. We have to be clear: Guantánamo is not Abu Ghraib.

 

W hen elected, President Obama vowed to close Guantánamo within a year of taking office. But he has reneged on that promise. Even if he does succeed in closing the prison, he has made other decisions along these lines that show more continuity with, rather than difference from, Bush administration policies. He is continuing the program of extraordinary rendition (although with promises from cooperating governments that the treatment of prisoners won’t be unduly harsh). Like his predecessor, he intends to use military commissions to try some detainees. He has resisted releasing additional Abu Ghraib photographs. He accepts the policy of indefinite detention.

His differences with the Bush White House are clearest with regard to the crucial subject of torture. One of his first acts as president was to issue an executive order bringing all interrogations, those by the CIA as well as by the military, under the guidelines of the Army Field Manual. The manual, revised in 2006, now specifically prohibits hooding, nudity, waterboarding, and other methods that were employed during the Bush years.

And yet what if an occasion arises that seems to demand harsh interrogations? What if there is another September 11? Or, short of catastrophe, what if the United States captures the highest of high-level enemies?

In late January, authorities seized the number two Taliban leader, Mullah Abdul Ghani Baradar. He remains in the gentle hands of the Pakistanis, thus sparing the American government the decision of how harshly to interrogate him. But what if we caught Osama bin Laden himself? Or his second-in-command, Ayman al-Zawahiri? How would an Obama administration go about questioning them? We simply don’t know. Yet we can well imagine that the moral calculus of national security would tilt the White House heavily toward the sort of decisions that would make Dick Cheney smile.

Barry Gewen is an editor at the New York Times Book Review.

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