THE INTERROGATION TECHNIQUES used by the Bush administration in the war on terror, says the editorial page of the New York Times, have “dishonored” our history. Have we, the paper asks while wagging its finger, become “a nation that tortures human beings and then concocts legal sophistries to confuse the world”? Even if one does not share the accusatory purposes of the Times, millions of thinking Americans are wondering if the use of torture in our battle with al Qaeda is ever legitimate.
But what exactly is torture? International treaties in force, including the Torture Convention, ban its use. But torture itself remains difficult to define. This was a point driven home in the testimony given in his confirmation hearings by Michael Mukasey, President Bush’s nominee for the position of Attorney General.
At a number of junctures, Mukasey offered categorical opposition to the use of torture, noting that the president cannot authorize it because it “is barred both by statute and by the Constitution.” He stated specifically that it “is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else.”
But at another moment, Mukasey backed away from such precision about the practice known as waterboarding: “I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional” (emphasis added). One senator obligingly explained what the procedure entails–“putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning.” Mukasey would not budge beyond his uninformative syllogism that “If it amounts to torture, it is not constitutional.”
Mukasey is a clear-thinking jurist. Why this reticence? The opponents of torture paint the issue in black and white. Given what they see as at stake, i.e., nothing less than the integrity of the U.S. Constitution, U.S. law, and international law–not to mention the moral conduct of members of our armed forces and intelligence agencies, and the American “image”–they contend that we should almost certainly err on the gentle side of interrogation.
As someone who finds torture repugnant and antithetical to everything we stand for, I sympathize with that view, as surely do most Americans. But the matter, alas, is not so simple. Almost everyone, left and right, seems to agree that there are rare occasions where we might need to make an exception, and be ready to resort to harsh methods. The obvious case is the so-called “ticking time bomb.” Yet even here, where the justification for harsh measures appears far more clear cut, we run into complexity.
For what exactly is a ticking time bomb? Does this term refer to any captive who has knowledge of an imminent terrorist plot? Or does it refer to someone who has knowledge of others who might know of such a plot? As we move from firsthand to second- and even third-hand knowledge of a plot, drawing a line becomes progressively trickier. And does it matter how many lives are at stake and whose? Must we not torture if we are talking about a possible IED on a road traversed by our troops in Iraq, and should we definitely torture if are talking about finding a nuclear device known to be hidden in the basement of, say, a Lebanese restaurant in New York and timed to go off in 24 hours?
Even if we define the ticking time bomb quite narrowly–as someone who has first-hand knowledge of a specific plot–a vicious epistemological circle will almost always arise: How can the interrogators know, before they subject a prisoner to torture, that the prisoner really does have knowledge of the bomb that is about to go off? The answer is that they won’t. They will have to torture him first to find out. We are back at square one.
Andrew Sullivan, one of the shrillest critics of harsh methods of interrogation in the war on terrorism–he has denounced President Bush, Dick Cheney, and Donald Rumsfeld as “war criminals” for their treatment of al Qaeda suspects–has a way around this. He would seem to permit torture in the Lebanese restaurant case, but only if we “know–not just suspect–but know that a detainee knows where [the nuclear device] is” (Sullivan’s emphasis). But he calls this a “one in ten million, never-happened-in-human-history, infinitesimal chance” scenario. What is more, he still believes that the officials who engage in and/or authorize torture in such an incident should be convicted of war crimes (although he allows that if their decision “were retroactively seen as the correct judgment, their sentence might be commuted”). In other words, if he is making an exception, it is narrow to the vanishing point.
But the real world is already throwing problems at us that are far messier than such far-fetched scenarios. How should we have dealt with a figure like Khalid Sheikh Mohammed, a key planner of 9/11 and also a key planner, almost certainly, of unknown follow-on attacks that might have come on a grander scale had he not been apprehended in Pakistan in 2005. Was he a ticking time bomb? If he would not talk voluntarily, was it right to subject him, as the CIA evidently did, to waterboarding? And what about the names in his phonebook of hitherto unidentified operatives–found in alphabetical order next to those of known and deceased or incarcerated figures like Mohammad Atta or Zacharias Moussaoui? Might they have been ticking time bombs, too? And with what urgency and what methods should they have been interrogated if and when they were caught?
This is not a purely theoretical question. Just earlier this week, President Bush, speaking at the National Defense University, pointed to the reality that “often the only source of information on what the terrorists are planning is the terrorists themselves.” He attributed to CIA interrogations of captured terrorists “critical intelligence” that has helped us to stop a number of major attacks, “including a plot to strike the U.S. Marine camp in Djibouti, a planned attack on the U.S. consulate in Karachi, a plot to hijack a passenger plane and fly it into Library Tower in Los Angeles, California, [and] a plot to fly passenger planes into Heathrow Airport and buildings into downtown London.”
If Mukasey ducked in the face of the perplexities of the issue, and in the face of a catalog of disasters averted about which he was surely briefed, he is hardly alone, nor is he the worst offender. At the September 26 Democratic presidential debate, the moderator, Tim Russert, posed a stark question: “Imagine the following scenario. We get lucky. We get the number-three guy in al Qaeda. We know there’s a big bomb going off in America in three days, and we know this guy knows where it is. Don’t we have the right and responsibility to beat it out of him?”
Barack Obama responded by declaring that we cannot “have the president of the United States state as a matter of policy that there is a loophole or an exception where we would sanction torture.” He then shifted, in the very same breath, to state that “there are going to be all sorts of hypotheticals, an emergency situation, and I will make that judgment at that time.” In other words, he wants to preserve the very same loophole for which he lambastes President Bush.
Hillary Clinton was seemingly much clearer, declaring that “As a matter of policy, [torture] cannot be American policy, period.” But buried in this unequivocal statement is a lawyerly loophole, evident in the carefully constructed caveat, “as a matter of policy.” But still, she came close to standing her own previous position on its head. On an earlier occasion, she had held that there were “very rare” instances in which severe interrogation methods might be necessary and that the United States needs “lawful authority” to engage in them in cases involving an “imminent threat to millions of Americans.”
Hillary’s reversal here–and it is only a partial reversal–brings us back to the vicious circle. How would she know that the person she wants to torture has the knowledge she is seeking? And why authorize torture only when the lives of “millions of Americans” are at risk? What about thousands or hundreds or ten?
The line-drawing here is immensely difficult. If it were simple, we wouldn’t be debating the question so fiercely. But what is galling is the sanctimony and the moral grandstanding of those who would ban harsh interrogation methods absolutely–except in those instances when they would authorize them themselves.
Gabriel Schoenfeld, senior editor at Commentary magazine, blogs at commentarymagazine.com.
