Koubi layered his deception so thick that his subjects never knew exactly when their interrogation ended. After questioning, captives usually spent time in a regular prison. The Israelis had bugged the prison with a system that was disguised well enough to appear hidden but not well enough to avoid discovery. In this way prisoners were led to believe that only certain parts of the prison were bugged. In fact, all of the prison was bugged. Conversations between prisoners could be overheard anywhere, and were closely monitored. They were an invaluable source of intelligence. Prisoners who could hold out through the most intense interrogation often let their guard down later when talking to comrades in jail.
To help such inadvertent confessions along, Koubi had yet another card to play. Whenever an interrogated subject was released to the general prison, after weeks of often grueling questioning, he was received with open arms by fellow Palestinians who befriended him and congratulated him for having endured interrogation. He was treated like a hero. He was fed, nursed, even celebrated. What he didn't know was that his happy new comrades were working for Koubi.
Koubi calls them "birdies." They were Palestinians who, offered an incentive such as an opportunity to settle with their families in another country, had agreed to cooperate with Shabak. Some days or weeks after welcoming the new prisoner into their ranks, easing his transition into the prison, they would begin to ask questions. They would debrief the prisoner on his interrogation sessions. They would say, "It is very important for those on the outside to know what you told the Israelis and what you didn't tell them. Tell us, and we will get the information to those on the outside who need to know." Even prisoners who had managed to keep important secrets from Koubi spilled them to his birdies.
"The amazing thing is that by now the existence of the birdies is well known," Koubi says, "and yet the system still works. People come out of interrogation, go into the regular prison, and then tell their darkest secrets. I don't know why it still works, but it does."
Big Daddy Uptown
Most professional interrogators work without the latitude given the CIA, the FBI, or the military in the war on terror. A policeman's subjects all have to be read their Miranda rights, and cops who physically threaten or abuse suspects—at least nowadays—may find themselves in jail. Jerry Giorgio, the legendary NYPD interrogator, has operated within these rules for nearly forty years. He may not know all the names of the CIA and military techniques, but he has probably seen most of them at work. Known as "Big Daddy Uptown," Giorgio now works for the New York County district attorney in a cramped office in Lower Manhattan that he shares with two others. He is a big man with a big voice, thinning gray hair, a broad belly, and wide, searching greenish-brown eyes. He is considered a wizard by his former colleagues in the NYPD. "All of us of a certain generation came out of the Jerry Giorgio school of interrogation," says John Bourges, a recently retired Manhattan homicide detective.
"Everybody knows the Good Cop/Bad Cop routine, right?" Giorgio says. "Well, I'm always the Good Cop. I don't work with a Bad Cop, either. Don't need it. You want to know the truth? The truth is—and this is important—everybody down deep wants to tell his or her story. It's true. No matter how damaging it is to them, no matter how important it is for them to keep quiet, they want to tell their story. If they feel guilty, they want to get it off their chest. If they feel justified in what they did, they want to explain themselves. I tell them, 'Hey, I know what you did and I can prove it. Now what are you going to do about it? If you show remorse, if you help me out, I'll go to bat for you.' I tell them that. And if you give them half a reason to do it, they'll tell you everything."
The most important thing is to get them talking. The toughest suspects are those who clam up and demand a lawyer right at the start. Giorgio believes that once he gets a suspect talking, the stream of words will eventually flow right to the truth. One murderer gave him three voluntary statements in a single day, each one signed, each one different, each one slightly closer to the truth.
The murderer was Carlos Martinez, a hulking former football player who in May of 1992 killed his girlfriend, Cheryl Maria Wright, and dumped her body in New York, right at the Coliseum overlook off the Henry Hudson Parkway. Since many young female murder victims are killed by their boyfriends, Giorgio started looking for Wright's. Martinez phoned Giorgio when he heard that the detective wanted to ask him some questions. Giorgio had pictures of Wright with Martinez, and in all the pictures the young beau had a giant head of Jheri curls. But he showed up in Giorgio's office bald. The detective was immediately more suspicious; a man who worries that somebody might have seen him commit a crime generally tries to alter his appearance.
Here is how Giorgio summarizes what turned out to be a very long and fruitful conversation:
"I was at home last night," Martinez said. "She did call me."
"She wanted me to pick her up. I told her, 'I'm watching the Mets game; I can't pick you up.'"
That was it. Giorgio acted very pleased with this statement, thanked Martinez, wrote it up, and asked the young man to sign it. Martinez did.
Then Giorgio stared at the statement and gave Martinez a quizzical look.
"You know, Carlos, something about this statement doesn't look right to me. You two had been going out for, what? Seven years? She calls you and asks you to pick her up at night where she's just gotten off work. It's not a safe neighborhood, and you tell her no? You mean a ball game on TV was more important to you?"
The question was cunning. The detective knew that Martinez was trying to make a good impression; he definitely didn't want to leave Giorgio with any unresolved issues to play in his mind. So it concerned him that his first statement didn't sound right. Giorgio's question also touched Martinez's sense of chivalry, an important quality for many Hispanic men. It wouldn't do to be seen as ungentlemanly. Here was a young woman who had just been brutally killed. How would it look to her family and friends if he admitted that she had called and asked him for a ride and he had left her to her fate—for a ball game on TV? The question also subtly suggested an out: The neighborhood wasn't safe. People got hurt or killed in that neighborhood all the time. Maybe Martinez could admit that he had seen Cheryl on the night of the murder without directly implicating himself. No one ever accused the former footballer of being especially bright. He rose to Giorgio's bait immediately.
He said, "Jerry, let me tell you what really happened." ("Note," Giorgio says proudly, "already I'm Jerry!") Martinez now said that he had left his place to pick Wright up after work, but they had gotten into an argument. "She got mad at me and told me she didn't need a ride, so I waited until she got on the bus, and then I left." ("Look, now he's the picture of chivalry!" Giorgio says happily.)
"Let me take that down," Giorgio said, again acting pleased with the statement. He wrote it out neatly and asked Martinez to look it over and sign it. Martinez did.
Again Giorgio squinted at the paper. "You know, Carlos, something is still not right here. Cheryl was a strikingly beautiful girl. People who saw her remembered her. She's taken that bus home from work many nights, and people on that bus know who she is. And you know what? Nobody who rode that bus saw her on it last night."
(This was, in Giorgio's words, "pure bullshit." He hadn't talked to anybody who rode that bus. "Sometimes you have to just take a chance," he says.)
Again Martinez looked troubled. He had not allayed the detective's suspicions. So he tried again. "Okay, okay," he said. "This is really it. Let me tell you what really happened. Cheryl called, and I left to pick her up, but I ran into a friend of mine—I can't tell you his name—and we picked her up together. Then Cheryl and I got in this argument, a big fight. My friend got fed up. So we drove away, up Broadway to 181st Street, and stopped at the McDonald's there. He pulled out a gun, my friend, and he told me to get out of the car. 'Wait here,' he told me. 'I'm going to get rid of your problem.' Then he left. I waited. Then he came back. He said he had gotten rid of my problem."
Giorgio nodded happily and started to write up statement No. 3. He acted troubled over the fact that Martinez refused to name the friend, and the young man quickly coughed up a name. Giorgio's lieutenant, who had been watching the session through a one-way mirror, immediately got to work tracking down Martinez's friend. By the time the third statement had been written up, signed, and nestled neatly on top of the other two, Giorgio had a new problem to pose to Martinez: it seemed that his friend was in South Carolina, and had been for some time.
"We never did get to finish the fourth statement," Giorgio says. "Martinez's family had hired a lawyer, and he called the station forbidding us to further question his client." It was, of course, too late.
Captain Crunch Versus the Tree Huggers
On a spring morning in the offices of Amnesty International, in Washington, D.C., Alistair Hodgett and Alexandra Arriaga were briefing me on their organization's noble efforts to combat torture wherever in the world it is found. They are bright, pleasant, smart, committed, attractive young people, filled with righteous purpose. Decent people everywhere agree on this: torture is evil and indefensible.
But is it always?
I showed the two an article I had torn from that day's New York Times, which described the controversy over a tragic kidnapping case in Frankfurt, Germany. On September 27 of last year a Frankfurt law student kidnapped an eleven-year-old boy named Jakob von Metzler, whose smiling face appeared in a box alongside the story. The kidnapper had covered Jakob's mouth and nose with duct tape, wrapped the boy in plastic, and hidden him in a wooded area near a lake. The police captured the suspect when he tried to pick up ransom money, but the suspect wouldn't reveal where he had left the boy, who the police thought might still be alive. So the deputy police chief of Frankfurt, Wolfgang Daschner, told his subordinates to threaten the suspect with torture. According to the suspect, he was told that a "specialist" was being flown in who would "inflict pain on me of the sort I had never experienced." The suspect promptly told the police where he'd hidden Jakob, who, sadly, was found dead. The newspaper said that Daschner was under fire from Amnesty International, among other groups, for threatening torture.
"Under these circumstances," I asked, "do you honestly think it was wrong to even threaten torture?"
Hodgett and Arriaga squirmed in their chairs. "We recognize that there are difficult situations," said Arriaga, who is the group's director of government relations. "But we are opposed to torture under any and all circumstances, and threatening torture is inflicting mental pain. So we would be against it."
Few moral imperatives make such sense on a large scale but break down so dramatically in the particular. A way of sorting this one out is to consider two clashing sensibilities: the warrior and the civilian.
The civilian sensibility prizes above all else the rule of law. Whatever the difficulties posed by a particular situation, such as trying to find poor Jakob von Metzler before he suffocated, it sees abusive government power as a greater danger to society. Allowing an exception in one case (saving Jakob) would open the door to a greater evil.
The warrior sensibility requires doing what must be done to complete a mission. By definition, war exists because civil means have failed. What counts is winning, and preserving one's own troops. To a field commander in a combat zone, the life of an uncooperative enemy captive weighs very lightly against the lives of his own men. There are very few who, faced with a reluctant captive, would not in certain circumstances reach for the alligator clips, or something else.
"It isn't about getting mad, or payback," says Bill Cowan, the Vietnam interrogator. "It's strictly business. Torturing people doesn't fit my moral compass at all. But I don't think there's much of a gray area. Either the guy has information you need or not. Either it's vital or it's not. You know which guys you need to twist."
The official statements by President Bush and William Haynes reaffirming the U.S. government's opposition to torture have been applauded by human-rights groups—but again, the language in them is carefully chosen. What does the Bush Administration mean by "torture"? Does it really share the activists' all-inclusive definition of the word? In his letter to the director of Human Rights Watch, Haynes used the term "enemy combatants" to describe those in custody. Calling detainees "prisoners of war" would entitle them to the protections of the Geneva Convention, which prohibits the "physical or mental torture" of POWs, and "any other form of coercion," even to the extent of "unpleasant or disadvantageous treatment of any kind." (In the contemptuous words of one military man, they "prohibit everything except three square meals, a warm bed, and access to a Harvard education.") Detainees who are American citizens have the advantage of constitutional protections against being held without charges, and have the right to legal counsel. They would also be protected from the worst abuses by the Eighth Amendment, which prohibits "cruel and unusual punishment." The one detainee at Guantánamo who was discovered to have been born in the United States has been transferred to a different facility, and legal battles rage over his status. But if the rest of the thousands of detainees are neither POWs (even though the bulk of them were captured during the fighting in Afghanistan) nor American citizens, they are fair game. They are protected only by this country's international promises—which are, in effect, unenforceable.
What are those promises? The most venerable are those in the Geneva Convention, but the United States has sidestepped this agreement in the case of those captured in the war on terror. The next most important would be those in the Universal Declaration of Human Rights, which asserts, in Article 5, "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." There is also the Convention Against Torture, the agreement cited by Bush in June, which would seem to rule out any of the more aggressive methods of interrogation. It states, in Article I, "For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." Again, note the word "severe." The United States is avoiding the brand "torturer" only by sleight of word.
The history of interrogation by U.S. armed forces and spy agencies is one of giving lip service to international agreements while vigorously using coercion whenever circumstances seem to warrant it. However, both the Army and the CIA have been frank in their publications about the use of coercive methods. The Kubark Manual offers only a few nods in its 128 pages to qualms over what are referred to, in a rare euphemism, as "external techniques": "Moral considerations aside, the imposition of external techniques of manipulating people carries with it the grave risk of later lawsuits, adverse publicity, or other attempts to strike back." The use of the term "strike back" here is significant; it implies that criticism of such unseemly methods, whether legal, moral, or journalistic, would have no inherent validity but would be viewed as an enemy counterattack.
Bill Wagner, the former CIA agent, remembers going to the Agency's three-week interrogation course at "The Farm," in Williamsburg, Virginia, in 1970. Until it was shut down, a few years later, it was considered the Agency's "premier course," Wagner says, and only the best recruits were invited to take it. "To say you had been through it was a real feather in your cap."
Volunteers played the role of captives in return for guaranteed space in a future session of the coveted course. They were deprived of sleep, kept doused with water in cold rooms, forced to sit or stand in uncomfortable positions for long periods, isolated from sunlight and social contacts, given food deliberately made unappetizing (oversalted, for instance, or tainted with a green dye), and subjected to mock executions. At least 10 percent of the volunteers dropped out, even though they knew it was just a training exercise. Wagner says that many of those who had served as victims later refused to take the course and victimize others. "They lost their stomach for it," he says.
Several years after Wagner took the course, he says, the Agency dropped it entirely. The scandals of the Nixon years put the CIA under unprecedented scrutiny. Over the next three decades spying schools and most human-intelligence networks were gradually dismantled. The United States itself was losing its stomach for hands-on intelligence gathering—and with it, interrogation.
Nobody experienced the effects of this shift more dramatically than Keith Hall, who earned the nickname Captain Crunch before he lost his job as a CIA agent. Now he describes himself as "a poster child for political correctness." He is a pugnacious brick of a man, who at age fifty-two is just a thicker (especially in the middle) version of the young man who joined the Marines thirty years ago. After his discharge he earned a master's degree in history and international relations; he took a job as a police officer, because he craved a more physical brand of excitement than academia had to offer. His nickname comes from this craving.
The CIA hired Hall immediately after he applied, in 1979, because of his relatively rare combination of academic and real-world credentials. He was routed into the Investigation and Analysis Directorate, where he became one of the Agency's covert operators, a relatively small group ("about forty-eight guys, total," Hall says) known as the "knuckle-draggers." Most CIA agents, especially by the 1980s, were just deskmen.
Hall preferred traveling, training, and blowing things up, even though he felt that the rest of the Agency looked down its patrician nose at guys like him. When the U.S. Embassy in Beirut was bombed, on April 18, 1983, eight of the seventeen Americans killed were CIA employees. There were going to be plenty of official investigations, but the Agency wanted one of its own. Hall was selected to carry it out.
"They flew me to Langley on one of their private planes, and delivered me to the seventh floor," he says. "They told me, 'We want you to go to Beirut and find out who blew up the embassy and how they did it. The President himself is going to be reading your cables. There is going to be some retribution here.'"
Hall was honored, and excited. This was a mission of singular purpose, of the highest priority, and he knew he was expected to get results. Having been a police officer and a Marine, he knew that the official investigations had to build a case that might someday stand up in court. His goal was not to build a case but just to find out who did it.
He slept on rooftops in Beirut, changing the location every two nights. It was a dangerous time to be an American—especially a CIA officer—there, and Hall kept moving. He worked with the Lebanese Special Security Force, and set up a computer in the police building.
Hall says he took part without hesitation in brutal questioning by the Lebanese, during which suspects were beaten with clubs and rubber hoses or wired up to electrical generators and doused with water. Such methods eventually led him to the suspected "paymaster" of the embassy bombing, a man named Elias Nimr. "He was our biggest catch," Hall says—a man with powerful connections. "When I told the Lebanese Minister of Defense, I watched the blood drain out of his face."
Nimr was a fat, pampered-looking twenty-eight-year-old, used to living the good life, a young man of wealth, leisure, and power. He came to the police building wearing slacks, a shiny sport shirt, and Gucci shoes. He had a small, well-trimmed moustache at the center of his soft, round face, and wore gold on his neck, wrists, and fingers. When he was marched into the building, Hall says, some of the officers "tried to melt into the shadows" for fear of eventual retribution. Nimr was nonchalant and smirking in his initial interview, convinced that when word got back to his family and connections, he would promptly be released.
When Hall got a chance to talk to him, he set out to disabuse Nimr. "I'm an American intelligence officer," he said. "You really didn't think that you were going to blow up our embassy and we wouldn't do anything about it, did you? You really should be looking inside yourself and telling yourself that it's a good idea to talk to me. The best way to go is to be civilized ... I know you think you are going to walk right out of here in a few minutes. That's not going to happen. You're mine. I'm the one who will make the decisions about what happens to you. The only thing that will save your ass is to cooperate." Nimr smiled at him dismissively.
The next time they met, Nimr wasn't in such good shape. In this case his connections were failing him. No one had roughed him up, but he had been kept standing for two days. Hall placed him in a straight-backed metal chair, with hot floodlights in his face. The agent sat behind the light, so that Nimr couldn't see him. Nimr wasn't as cocky, but he was still silent.
At the third interrogation session, Hall says, he kicked Nimr out of his chair. It was the first time anyone had physically abused him, and he seemed stunned. He just stared at Hall. He hadn't eaten since his arrest, four days earlier. But he still had nothing to say.
"I sent him back to his cell, had water poured over him again and again while he sat under a big fan, kept him freezing for about twenty-four hours. He comes back after this, and you can see his mood is changing. He hasn't walked out of jail, and it's beginning to dawn on him that no one is going to spring him."
Over the next ten days Hall kept up the pressure. During the questioning sessions he again kicked Nimr out of his chair, and both he and the Lebanese captain involved cracked him occasionally across the shins with a wooden bat. Finally Nimr broke. According to Hall, he explained his role in the bombing, and in the assassination of Lebanon's President. He explained that Syrian intelligence agents had been behind the plan. (Not everyone in the CIA agrees with Hall's interpretation.)
Soon afterwards Nimr died in his cell. Hall was back in Washington when he heard the news. He assumed that Nimr had been killed to prevent him from testifying and naming others involved in the plot. Armed with tapes of Nimr's confession, Hall felt he had accomplished his mission; but several months after finishing his report he was fired. As he understood it, word had leaked out about torture sessions conducted by a CIA agent, and the U.S. government was embarrassed.
None of the men charged was ever prosecuted for the bombing. Hall believes that the United States may have paid dearly for backing away from his investigation and letting the matter drop. William Buckley, who was Hall's station chief, was subsequently kidnapped, tortured, and killed. He was among fourteen Western civilians kidnapped in Beirut in 1984. In October of the previous year, 241 American servicemen were killed in the bombing of their barracks at the Beirut airport. Some analysts believe that all these atrocities were committed by the same group, the one Hall believes he unearthed in his investigation. Still bitter about it nineteen years later, Hall says, "No one was punished for it, except me!"
Hall sees the loss of his career as dramatic proof that the CIA sold out to the "tree huggers" two decades ago, and points with scorn to a directive from President Bill Clinton that effectively barred intelligence agents from doing business with unsavory characters. The full-scale U.S. retreat from the uglier side of espionage is well documented—but has, by all accounts, been sharply reversed in the aftermath of 9/11.
"People are being very careful, very legal, and very sensible," one former top intelligence official says. "We are not inflicting intense pain, or doing anything damaging or life-threatening. We are once again asking, 'How do you take people down a series of steps in such a way that it has an impact?' That's the only game in town."
Despite the hue and cry over mistreatment of prisoners at Guantánamo, two former Pakistani inmates there—Shah Muhammad and Sahibzada Osman Ali—told me that except for some roughing up immediately after they were captured, they were not badly treated at Camp X-Ray. They both felt bored, lonely, frustrated, angry, and helpless (enough for Shah Muhammad to attempt suicide), but neither believed that he would be harmed by his American captors, and both regarded the extreme precautions (shackles, handcuffs, hoods) that so outraged the rest of the world as comical. "What did the American soldiers think I could do to them?" asked Sahibzada, who stands about five feet eight and weighs little more than 150 pounds. Indeed, the lack of fear at Camp X-Ray no doubt made it more difficult to sort out foot soldiers from dedicated terrorists.
The perfect model of an interrogation center would be a place where prisoners lived in fear and uncertainty, a place where they could be isolated or allowed to mingle freely, as the jailer wished, and where conversations anywhere could be overheard. Interrogators would be able to control the experience of their subjects completely, shutting down access to other people, or even to normal sensation and experience, or opening that access up. Subjects' lives could be made a misery of discomfort and confusion, or restored to an almost normal level of comfort and social interaction within the limitations of confinement. Hope could be dangled or removed. Cooperation would be rewarded, stubbornness punished. Interrogators would have ever growing files on their subjects, with each new fact or revelation yielding new leads and more information—drawn from field investigations (agents in the real world verifying and exploring facts gathered on the inside), the testimony of other subjects, collaborators spying inside the prison, and surreptitious recordings. The interrogators in this center would have the experience and the intuition of a Jerry Giorgio or a Michael Koubi.
Serious interrogation is clearly being reserved for only the most dangerous men, like Sheikh Mohammed. So why not lift the fig leaf covering the use of coercion? Why not eschew hypocrisy, clearly define what is meant by the word "severe," and amend bans on torture to allow interrogators to coerce information from would-be terrorists?
This is the crux of the problem. It may be clear that coercion is sometimes the right choice, but how does one allow it yet still control it? Sadism is deeply rooted in the human psyche. Every army has its share of soldiers who delight in kicking and beating bound captives. Men in authority tend to abuse it—not all men, but many. As a mass, they should be assumed to lean toward abuse. How does a country best regulate behavior in its dark and distant corners, in prisons, on battlefields, and in interrogation rooms, particularly when its forces number in the millions and are spread all over the globe? In considering a change in national policy, one is obliged to anticipate the practical consequences. So if we formally lift the ban on torture, even if only partially and in rare, specific cases (the attorney and author Alan Dershowitz has proposed issuing "torture warrants"), the question will be, How can we ensure that the practice does not become commonplace—not just a tool for extracting vital, life-saving information in rare cases but a routine tool of oppression?
As it happens, a pertinent case study exists. Israel has been a target of terror attacks for many years, and has wrestled openly with the dilemmas they pose for a democracy. In 1987 a commission led by the retired Israeli Supreme Court justice Moshe Landau wrote a series of recommendations for Michael Koubi and his agents, allowing them to use "moderate physical pressure" and "nonviolent psychological pressure" in interrogating prisoners who had information that could prevent impending terror attacks. The commission sought to allow such coercion only in "ticking-bomb scenarios"—that is, in cases like the kidnapping of Jakob von Metzler, when the information withheld by the suspect could save lives.
Twelve years later the Israeli Supreme Court effectively revoked this permission, banning the use of any and all forms of torture. In the years following the Landau Commission recommendations, the use of coercive methods had become widespread in the Occupied Territories. It was estimated that more than two thirds of the Palestinians taken into custody were subjected to them. Koubi says that only in rare instances, and with court permission, did he slap, pinch, or shake a prisoner—but he happens to be an especially gifted interrogator. What about the hundreds of men who worked for him? Koubi could not be present for all those interrogations. Every effort to regulate coercion failed. In the abstract it was easy to imagine a ticking-bomb situation, and a suspect who clearly warranted rough treatment. But in real life where was the line to be drawn? Should coercive methods be applied only to someone who knows of an immediately pending attack? What about one who might know of attacks planned for months or years in the future?
"Assuming you get useful information from torture, then why not always use torture?" asks Jessica Montell, the executive director of B'Tselem, a human-rights advocacy group in Jerusalem. "Why stop at the bomb that's already been planted and at people who know where the explosives are? Why not people who are building the explosives, or people who are donating money, or transferring the funds for the explosives? Why stop at the victim himself? Why not torture the victims' families, their relatives, their neighbors? If the end justifies the means, then where would you draw the line?"
And how does one define "coercion," as opposed to "torture"? If making a man sit in a tiny chair that forces him to hang painfully by his bound hands when he slides forward is okay, then what about applying a little pressure to the base of his neck to aggravate that pain? When does shaking or pushing a prisoner, which can become violent enough to kill or seriously injure a man, cross the line from coercion to torture?
Montell has thought about these questions a lot. She is thirty-five, a slender woman with scruffy short brown hair, who seems in perpetual motion, directing B'Tselem and tending baby twins and a four-year-old at home. Born in California, she emigrated to Israel partly out of feelings of solidarity with the Jewish state and partly because she found a job she liked in the human-rights field. Raised with a kind of idealized notion of Israel, she now seems committed to making the country live up to her ideals. But those ideals are hardheaded. Although Montell and her organization have steadfastly opposed the use of coercion (which she considers torture), she recognizes that the moral issue involved is not a simple one.
She knows that the use of coercion in interrogation did not end completely when the Israeli Supreme Court banned it in 1999. The difference is that when interrogators use "aggressive methods" now, they know they are breaking the law and could potentially be held responsible for doing so. This acts as a deterrent, and tends to limit the use of coercion to only the most defensible situations.
"If I as an interrogator feel that the person in front of me has information that can prevent a catastrophe from happening," she says, "I imagine that I would do what I would have to do in order to prevent that catastrophe from happening. The state's obligation is then to put me on trial, for breaking the law. Then I come and say these are the facts that I had at my disposal. This is what I believed at the time. This is what I thought necessary to do. I can evoke the defense of necessity, and then the court decides whether or not it's reasonable that I broke the law in order to avert this catastrophe. But it has to be that I broke the law. It can't be that there's some prior license for me to abuse people."
In other words, when the ban is lifted, there is no restraining lazy, incompetent, or sadistic interrogators. As long as it remains illegal to torture, the interrogator who employs coercion must accept the risk. He must be prepared to stand up in court, if necessary, and defend his actions. Interrogators will still use coercion because in some cases they will deem it worth the consequences. This does not mean they will necessarily be punished. In any nation the decision to prosecute a crime is an executive one. A prosecutor, a grand jury, or a judge must decide to press charges, and the chances that an interrogator in a genuine ticking-bomb case would be prosecuted, much less convicted, is very small. As of this writing, Wolfgang Daschner, the Frankfurt deputy police chief, has not been prosecuted for threatening to torture Jakob von Metzler's kidnapper, even though he clearly broke the law.
The Bush Administration has adopted exactly the right posture on the matter. Candor and consistency are not always public virtues. Torture is a crime against humanity, but coercion is an issue that is rightly handled with a wink, or even a touch of hypocrisy; it should be banned but also quietly practiced. Those who protest coercive methods will exaggerate their horrors, which is good: it generates a useful climate of fear. It is wise of the President to reiterate U.S. support for international agreements banning torture, and it is wise for American interrogators to employ whatever coercive methods work. It is also smart not to discuss the matter with anyone.
If interrogators step over the line from coercion to outright torture, they should be held personally responsible. But no interrogator is ever going to be prosecuted for keeping Khalid Sheikh Mohammed awake, cold, alone, and uncomfortable. Nor should he be.