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Legal Affairs:
The Fragility of Our Freedoms in a Time of Terror
(May 5, 2004)
The Supreme Court's oral arguments in the "enemy-combatants" case underscore the fragility of our freedoms, and of our lives, in this scary new century. By Stuart Taylor Jr.
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More from National
Journal.
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D.C.
Dispatch | May 12, 2004
Legal
Affairs
The Perils of Torturing Suspected Terrorists
Does the use of coercive interrogation techniques lead inevitably to abuses such as those committed at the Abu Ghraib prison in Iraq?
by Stuart Taylor Jr.
....
The abuses at the Abu Ghraib prison in Iraq stand out for their
pointlessness as well as their cruelty. Done in the name of collecting
intelligence about insurgents, this brand of brutality has surely created
more of them. Sodomy with a chemical light, threats of rape, a female
soldier posing gleefully next to a stack of naked male prisoners, beatings
with a broom handle, to say nothing of the possible murders: These are the
techniques of sadistic amateurs, not of intelligence experts. That's why
their criminality is so obvious.
But the photographs of Abu Ghraib have also forced into the spotlight
some hard questions with less obvious answers. Reports have surfaced since
2002 of U.S. forces torturing or near-torturing prisoners in Afghanistan,
with at least two possible homicides. But President Bush and Defense
Secretary Donald Rumsfeld have previously ignored such abuses while
disdaining the international-law rules designed to prevent them. Meanwhile,
Congress and the public have averted their eyes from questions such as
these:
How can we get potentially lifesaving information from suspected
terrorists without trashing human rights and staining our souls? Is torture
ever morally justifiable? Is it ever legal? Should it be legal? What about
less extreme forms of coercive interrogation, which range from polite but
persistent questioning to covering prisoners' heads with black hoods,
keeping them naked in cold, damp cells, depriving them of sleep, denying
them adequate food, forcing them into uncomfortable "stress" positions, and
threatening to kill them or their families? Does the use of such coercive
interrogation techniques—which the Pentagon appears to have authorized in
at least some contexts—lead inevitably to crimes such as those at Abu
Ghraib?
Here are some proposed answers.
- Torture may be justified in rare, mostly hypothetical cases. It is
tempting to say that torture is always wrong, period. Beating prisoners
unconscious, breaking their bones, burning them with hot irons, shocking
them with cattle prods, pulling out their fingernails, or similar practices
are viscerally horrifying to civilized people and condemned by the moral
codes of all civilized societies.
But what about the "ticking-bomb" hypothetical used by law professors
to confound their students: If the government captures a Qaeda terrorist
known to have planted a bomb timed to explode in a crowded area within three
hours, would it not be justifiable to try to do whatever it takes to get the
location out of him?
And what about Qaeda leaders such as Khalid Shaikh Mohammed, who
appears to have directed the 9/11 attacks and who knew of many planned
attacks at the time of his capture last year? Such cases "pose one of the
strongest arguments in modern times for the use of torture," Mark Bowden
wrote in The Atlantic Monthly last October, because "getting at the
information they possess could allow us to thwart major attacks, unravel
their organization, and save thousands of lives."
And what about the Qaeda member caught by Philippine intelligence
agents in 1995 in a Manila bomb factory? Defiant through 67 days of savage
torture—most of his ribs broken, cigarettes burned into his private parts
—he finally cracked when threatened (falsely) with being turned over to
Israel's Mossad. And he revealed the so-called "Bojinka" plot to crash 11
U.S. airliners and 4,000 passengers into the Pacific, to fly a private
Cessna full of explosives into the CIA's headquarters, and to assassinate
Pope John Paul II.
- Even so, torture is almost never justifiable in real life. There are
at least three reasons. First, it will rarely if ever be knowable in advance
that torturing a particular suspect is likely to save innocent lives. Many
suspects have no information of great value. Even leaders such as Shaikh
Mohammed may have only stale information, or may not break, or may concoct
false leads, or may be more susceptible to less brutal interrogation
techniques designed to create a sense of dependency and trust.
Second, official approval of torturing a few especially "high-value"
suspects would lead in practice to the torture of dozens or hundreds of
others—including innocent civilians mistakenly suspected of terrorism—while unleashing the most sadistic impulses of those involved. The horrors
of Abu Ghraib were openly celebrated by the perpetrators despite clear
criminal prohibitions. Imagine what would happen without such prohibitions.
Third, using torture might well cost many more American lives than it
would save, by feeding the rage of those who see Americans as sadistic,
hypocritical, anti-Muslim imperialists and thus driving more recruits into
the terrorist murder brigades—as the Abu Ghraib barbarities have surely
done.
- Torture is always illegal, and should be. Both federal and
international law are crystal clear in banning any and all use of torture—including torture of terrorists—although the law is unavoidably ambiguous
in defining torture. The United Nations Convention Against Torture, which
the Senate ratified in 1994, with Congress providing criminal penalties for
violators, bans intentional infliction of "severe pain or suffering, whether
physical or mental." Military law contains similar prohibitions. And
President Bush pledged in June 2003 to lead the world in "prohibiting,
investigating, and prosecuting all acts of torture," although, after Abu
Ghraib, his words have a hollow ring.
Should the law recognize an exception for cases involving ticking
bombs or terrorist kingpins such as Shaikh Mohammed? No, because there is no
tolerable way to finish this sentence: "Torture is prohibited except when
... " That's why Israel's Supreme Court, which has wrestled long and hard
with the moral quandaries at the intersection of terrorism and torture, has
banned all forms of torture, including the violent shaking of captives. At
the same time, the Israeli court has condoned other types of coercive
interrogation and has suggested that there might be an "emergency
conditions" defense for any cases in which security personnel honestly
believed that illegal use of force was the only way to prevent imminent
terrorist murders.
The best way to minimize the conflict between the need for aggressive
interrogation and the prohibitions of human-rights law may be to define
"torture" narrowly enough on a case-by-case basis to leave considerable
leeway for tough, coercive interrogation short of excessive brutality.
- Coercive interrogation of suspected terrorists is arguably legal but
should be strictly controlled. The 1949 Geneva Conventions, as incorporated
by the U.S. military's Law of Land Warfare, ban "any ... form of coercion"
or "unpleasant or disadvantageous treatment" to get information from
prisoners of war. These laws give even broader protection to
noncombatants.
But the Bush administration claims that these rules do not apply to
terrorists. This view, although disputed by many human-rights activists and
scholars, seems right. (The administration has been quite wrong, however, in
denying detainees who claim to be POWs or noncombatants a chance to present
their evidence to military tribunals, as the Geneva Conventions clearly
require.) As a legal matter, terrorists and others who target civilians are
"unlawful combatants" with no right to the elaborate protections of the
Geneva Conventions. As a practical matter, undue fastidiousness in
interrogating terrorists could lead to the preventable murders of thousands
of people.
Far from being unduly fastidious, some of our military and
intelligence personnel have used brutal coercion, up to and including
torture, on large numbers of prisoners who were apparently not terrorists.
The only way to control such excesses is to make it clear that from now on,
they will not be tolerated. And the only way to do that is to impose tough
criminal penalties on those responsible and to end the careers of those who
have turned a blind eye or fostered a culture of lawlessness. Whether the
latter category includes Rumsfeld is a question that Bush should carefully
consider and that Congress should investigate.
I have so far ducked the hardest question of all: where to draw the
line between prohibited torture and permissible coercion. The honest answer
is that the locus of that line may vary from one case to the next. If, as
seems quite possible, Shaikh Mohammed was held naked and hooded in a
cramped, bone-chilling cell, prevented from sleeping, and forced into
uncomfortable positions to get him to talk, I would approve, and I would
strain to avoid calling it torture. When the same is done to ordinary Iraqis
who may or may not be anti-American insurgents, it is an outrage, and it
would be odd to quibble with those who call it torture.
This is, I confess, unfortunately inconsistent. But which of the
alternatives would you prefer? A government-sanctioned torture system? Or a
free pass for captured terrorists to keep their murderous secrets?
What do you think? Discuss this article in the Politics & Society conference of Post & Riposte.
More from National
Journal.
More on politics
and society in Atlantic Unbound and The Atlantic
Monthly.
Stuart Taylor Jr. is a senior writer and columnist for
National Journal and a contributing editor at Newsweek. This
column appears every week in National Journal, a weekly magazine
covering politics and government published in Washington, D.C.
For
information on National Journal Group publications, see NationalJournal.com.
Copyright © 2003 by The Atlantic Monthly Group. All
rights reserved.
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