Adam Ash

Your daily entertainment scout. Whatever is happening out there, you'll find the best writing about it in here.

Wednesday, December 14, 2005

US Diary: Torture (1) Cheney vs. McCain (2) the role of doctors taking part (3) the 'ticking bomb' rationale exploded

1. On Torture: A Defining Moment -- by Ray McGovern

Senator John McCain and his Senate colleagues have provided Congress a chance to redeem itself in a small but significant way for its craven abdication of responsibility three years ago, when it gave the president what Senator Robert Byrd warned would be a "blank check" for war on Iraq.

With some remarkable help from then-White House Counsel Alberto Gonzales and hired hands at the Justice Department, Vice President Dick Cheney and Defense Secretary Donald Rumsfeld stretched that blank check to include authorization for torturing detainees by CIA and US military personnel. McCain, himself a victim of torture in Vietnam, is trying to bring the US into compliance with international norms, while the Bush administration is trying desperately to leave the door open for CIA and contract interrogators to act beyond those norms without threat of prosecution.

McCain has tacked onto the defense authorization and defense appropriation bills an amendment that would require Defense Department personnel to observe the strictures in the Army Field Manual for Intelligence Interrogation. As for CIA and other non-defense department personnel, the amendment would prohibit "cruel, inhuman, or degrading" treatment of detainees "regardless of nationality or physical location." Cheney has been waging an open campaign to defeat or alter the amendment. He lost the first round when, despite Herculean efforts on his part, 89 senators joined McCain in voting for it.

This presents a direct challenge to Cheney, and to the president who, one assumes, is being kept informed. The House versions of the defense bills do not include the McCain language, so final agreement on the torture provision is now in the hands of conferees from the House and Senate working to resolve differences between the bills. On Monday, President George W. Bush said he was "confident" that agreement could be reached with McCain, but Democrat Senator Carl Levin said the House so far has refused to accept McCain's language and that this was "unacceptable" to the Senate.

No effort has been made to disguise what is behind the opposition to McCain. Even Republican Senator Lindsey Graham, a lawyer who has been a moderate on this issue, has conceded that the "problem" is to find a way to protect interrogators who go too far. To this non-lawyer at least, it does not seem possible to square this circle. I am still trying to accustom myself to the fact that, alongside the we-do-not-torture rhetoric, our country has for the first time in its history openly embraced the use of torture.

Who Will Blink, Cheney or McCain?

Supporters of the Cheney school of thought have been taking to the airwaves using the bogus "ticking-bomb doomsday scenario" rationale to, well, rationalize torture. And this seems to be having some impact. According to an AP-Ipsos poll conducted in late November, 61 percent of Americans surveyed believe torture is justified at least on rare occasions; only 36 percent said it can never be justified. A January 2005 poll conducted by Poltronics involving over two thousand telephone interviews found that 53 percent of Americans thought some torture is acceptable, with 37 percent opposed. That poll also found that 82 percent of FOX News Channel viewers said that torture is acceptable in "a wide range" of situations.

And so, incredible though it may seem, torture survivor McCain runs the risk of appearing soft on torture with the Republican base, whose support he will need if he hopes to win the Republican nomination in 2008. Accordingly, despite the strong support he enjoys among Senate colleagues and despite his uncompromising stance until now, there seems a good chance that McCain will acquiesce in compromise wording - words that would enable the administration to assure CIA and contract interrogators that they will enjoy legal protection if they keep "the gloves off," as erstwhile CIA counterterrorism chief Cofer Black described the CIA's approach post-9/11.

From the administration's point of view, "enhanced interrogation techniques" have certainly come in handy in promoting the war in Iraq and the "war on terror." We now know, for example, that the bogus information included in President Bush's key speech of October 7, 2002, just three days before the Congress voted on the war, about Iraq training al-Qaeda operatives in explosives and chemical weapons was extracted from the captive Ibn al-Shaykh al-Libi by the Egyptian interrogators to whom we "rendered" him. Al-Libi has since recanted, claiming his statements were coerced.

And when then-Attorney General John Ashcroft needed to advertise a success in the "war on terrorism," José Padilla was produced on the basis of the testimony of none other than 9/11 mastermind Khalid Shaikh Mohammed, whose interrogation included waterboarding. Padilla's "dirty bomb" charge was dropped after he spent over three and a half years in prison.

It's Torture Just Watching

My contemporaries and I can scarcely believe what we are watching. While I admire Senator McCain for taking a stand, it strikes me as odd, for example, that he cites damage to the US image abroad as the primary reason why torture should be banned. Our tarnished image is a serious problem, but it is, in my view, among the least compelling of a long list of reasons to throw torture out of our toolbox. Others that come to mind, in ascending order of importance, are:
Torture puts our own troops, as well as those of other countries, in jeopardy of "reciprocal" treatment.

Torture brutalizes not only the victim but also the brutalizer. (Talk, as I have, to those who took part in, or merely witnessed, torture in Iraq or Afghanistan.)

Information acquired by torture is notoriously unreliable. Experienced interrogators know that torture is as likely to yield misinformation as accurate information, since torture victims will say anything to stop the pain. In the past, torture fell into disuse primarily because it did not work.

Torture is morally wrong. It inhabits the same category as slavery, genocide, rape, incest - always, intrinsically wrong. Civilized societies have long opposed torture since it is widely recognized as an intolerable affront to the inherent human right to physical integrity and personal dignity. That is why there are so many laws against torture. It is not wrong because it is illegal; it is outlawed because it is wrong.

The Supreme Crime

The use of torture before and after the invasion of Iraq points to an even larger crime - the attack on and occupation of Iraq for reasons other than those given. The war is, pure and simple, a war of aggression. The post-WWII Nuremberg Tribunal, largely a creature of the United States, declared:

"To initiate a war of aggression ... is the supreme international crime differing from other war crimes in that it contains within itself the accumulated evil of the whole."

UN Secretary General Kofi Annan has called the war illegal, as have the International Commission of Jurists and the preponderance of legal experts around the world. As for the "accumulated evil of the whole," torture comes immediately to mind. There is no getting around it. Torture is a war crime; a crime against humanity. And, assuming the polls have it right, part of that accumulation is the fact that a majority of our fellow citizens have been frightened into believing that it is permissible to dehumanize others to the point of torture.

Our country's leaders, including those who represent us in Congress - indeed, all of us - must open our eyes and step out of what Nazi war criminal Albert Speer called "moral contamination." We are only too willing to let our institutions do our sinning for us.

At the Nuremberg Trial, Speer, number three in the wartime Nazi hierarchy, was the only defendant to accept full responsibility not only for his own actions but also for those of the regime. Speer said he had become "inescapably contaminated morally":

"I did not see because I did not want to see ... there is no way I can avoid responsibility ... It is surprisingly easy to blind your moral eyes. I was like a man following a trail of bloodstained footprints through the snow without realizing someone had been injured."

Letter to John McCain

Last week, 33 of us retired intelligence officers sent a letter to Senator McCain expressing strong support for his amendment to reinforce the ban on cruel, inhuman, and degrading treatment of detainees by US personnel around the world. McCain's office has distributed the letter widely on the Hill, and a press release was issued, but so far mainstream media seem to have missed it. The letter says, in part:

"Those who press for 'flexibility' to abuse prisoners have been willing to forsake both effectiveness and our values as a nation on the misguided belief that abusive treatment will produce vital intelligence. But interrogation in the real world rarely resembles what we see on television and in the movies ... Thankfully, the choice between our values and success against the terrorist enemy is a false one. We must not be seduced by the fiction that adherence to our ideals is what stands between our great nation and the security it deserves."

Much depends on whether Senator McCain will stand on principle and resist watering down his amendment. Such a display of integrity would certainly set him apart these days in Washington.

(Ray McGovern works for Tell the Word, the publishing arm of the ecumenical Church of the Saviour. A veteran of 27 years in CIA's analysis directorate, he is now a member of the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS).


2. The Silence of the Doctors -- by Jonathan H. Marks
 
    It was called the "water cure." But it was dosed out liberally to those who weren't sick. Unfortunate recipients were held by the neck beneath a water tank. The tap was turned on, and they were forced to swallow the gushing stream - or to choke within an inch of death while trying. Another variation used tubing to siphon water from a kerosene can into a detainee's nostril. Sworn testimony records the use of this tactic in the presence of a doctor. It was, after all, a "cure." When the detainee still refused to talk, the doctor would ratchet up the treatment, ordering a second tube to be placed in the detainee's other nostril and a handful of salt to be thrown into the water. Anyone who's ever had sea water up his or her nose will know just how pleasant that would have been.

    This interrogation tactic comes not from the "war on terror" but from the war in the Philippines more than 100 years ago. There too the abuses were justified by the need to combat troublesome local "insurgents." The enemy was "not civilized" and did not deserve to be treated according to the rules of civilized warfare. The water cure is, of course, the precursor to a more recent interrogation technique known as "water boarding." And the participation of the physician is an early example of American medical personnel being co-opted into an egregious and unlawful military mission. The doctor's presence did not restrain the interrogator's excesses; on the contrary, he actively fueled them.

    After 9/11 some American healthcare personnel were once again asked to step into the breach and help Army interrogators conduct aggressive interrogations. They have, among others, Maj. Gen. Geoffrey Miller - former camp commander at Guantánamo Bay - to thank for this. Miller considered the participation of Behavioral Science Consultation Teams - known colloquially as "Biscuits" - to be an "essential" part of the interrogation process. Having introduced the first Biscuit to the Guantánamo facility in late 2002, Miller urged the deployment of a similar team at Abu Ghraib in late 2003. These Biscuits were staffed at various times by psychologists and/or psychiatrists.

    The Defense Department has acknowledged that several Biscuit staff were sent to Fort Bragg, North Carolina, for training at SERE school - short for Survival, Evasion, Resistance and Escape. This is where American soldiers are taught how to resist their captors. Training is based on exposure to abusive tactics, some tantamount to torture, delivered by fellow soldiers. (That these tactics are designed to break detainees and procure false confessions - not to produce intelligence - appears to have been overlooked by the Administration when it decided to deploy them in the "war on terror.") At SERE school, Biscuit healthcare personnel acquired a grounding in the now well-publicized techniques of hooding, prolonged isolation, stress positions, sleep deprivation and exposure to loud noise and temperature extremes - techniques often used in combination.

    They brought this knowledge back to Guantánamo Bay, where - according to an internal Army report - they offered opinions on the character and personalities of detainees, advised on interrogation plans and approaches, and provided feedback on interrogation technique. Army documents also record that Biscuit personnel sometimes sat in on interrogations. Notably, the name of a Biscuit psychologist appears in the interrogation log of Guantánamo detainee Mohammed al-Qahtani. According to that log - a copy of which was obtained by Time magazine - Qahtani was questioned for eighteen to twenty hours per day for forty-eight out of fifty-four consecutive days in late 2002 and early 2003. During that time, he was subjected to an array of tactics that included exposure to temperature extremes, barking military dogs, strip searches, stress positions, being led around on a leash and being forced to stand naked in front of women. In addition to these measures - many of which were held "legally permissible" in a recent Army report - a medical corpsman forcibly administered three and a half bags of intravenous fluid. Qahtani was refused a promised bathroom break and, when he became desperate, he was told to go in his pants.

    Before this interrogation regime, Qahtani had been subjected to 160 days of isolation and - according to a letter of complaint sent by the FBI to the Pentagon - he was "evidencing behavior consistent with extreme psychological trauma." Not surprisingly, this trauma was compounded by the deleterious impact the interrogation tactics had on Qahtani's physical health. On one occasion, his heartbeat became so slow - just thirty-five beats per minute instead of the normal sixty to 100 - that he had to be hospitalized. On at least two occasions, his temperature dropped to a life-threatening ninety-five degrees.

    Aggressive interrogations like those endured by Qahtani were based on a model that seeks to employ extreme levels of stress in order to erode established patterns of behavior, such as resistance to questioning. One of the functions of Biscuit health professionals is to help interrogators tailor interrogation "stressors" to the personality of each detainee - particularly "high-value detainees." In one example - reported by Neil Lewis in the New York Times - interrogators were told by a Biscuit that a detainee's medical files recorded his severe phobia of the dark, and the Biscuit suggested ways that fear could be manipulated to make the detainee cooperate.

    Much ink has been spilled - by me and others - explaining why these practices violate fundamental rules and protections found in both the laws of war and international human rights law. These two bodies of law prohibit most of the aggressive interrogation strategies deployed in the "war on terror" - and mandate the humane treatment of detainees. The Administration has tried its best to circumvent these laws. It argues, for example, that the ban on cruel, inhuman and degrading treatment doesn't apply to foreigners outside the United States - a position the McCain amendment seeks to overturn. This amendment is all the more important in light of the Defense Department's new Interrogation Directive. The directive was greeted warmly in the press with headlines like "Pentagon: Detainees Must Be Treated Well" (AP). It prohibits the use of military dogs and requires interrogations to be humane and in accordance with "relevant" international law (whatever that may be). But read the fine print: It also expressly provides that Defense Secretary Rumsfeld or his deputies may authorize interrogations that do not meet either of these basic criteria.

    When medical personnel are involved in interrogation, medical ethics should also have something to say. And when the Administration plays around with legal rules, it is all the more important for the medical establishment - and its members - to take an ethical stand. Medical ethics should embrace and reflect the fundamental protections found in human rights law and the laws of war, as the UN has recognized. According to a resolution of the General Assembly adopted without dissent in 1982, it is a "gross contravention of medical ethics" for health professionals to be complicit in torture or cruel, inhuman or degrading treatment. They are also required not to use their knowledge and skills to assist with an interrogation that may adversely affect a detainee's health and is not in accordance with international law. Medical personnel who helped design and monitor aggressive interrogations like those of Qahtani have undoubtedly fallen afoul of this ethical mandate.

    But ethical constraints can and should go beyond the requirements of law. The World Medical Association has acknowledged this and holds that - even in times of armed conflict - it is unethical for physicians to weaken the physical or mental health of a human being "without therapeutic justification." Its codes also emphasize that detainee medical records are presumed to be confidential. This presumption - universally acknowledged as being vital to patient trust and effective medical care - was violated by the routine exploitation of medical records during interrogations at Guantánamo. The association's rules also prohibit force-feeding hunger-strikers - a rule now broken daily at Guantánamo. Although the Defense Department has denied the shocking claim that a finger-thick nasogastric tube was reused without sterilization in order to feed different detainees at the facility, it readily admits that force-feeding is occurring.

    The Pentagon has recently taken steps to alleviate concerns about the involvement of medical personnel in abuse. In June it issued new medical "procedures" for detainees in US custody. These prohibit healthcare personnel from participating in interrogations not in accordance with "applicable law." But what law is "applicable"? More pertinent, what law is applicable according to an Administration that does not shy away from developing its own highly permissive formulations of legal doctrine? In September the Defense Department issued a further "special text" stating that Biscuit members should not have access to medical records "except as needed to maintain safe, legal and ethical interrogations." But anyone familiar with previous abuses must have concerns about how that constraint will be enforced. In October the Pentagon flew officials from several health professional organizations to Guantánamo. Like the typical Defense Department tour of Guantánamo, it was a six-hour visit. Guests were armed with packs of information and given multiple briefings, but they were not permitted to talk to detainees - a prohibition that recently led UN human rights experts to cancel their Guantánamo visit.

    These measures may not have had the effect the Administration hoped for. Following the Guantánamo trip, Dr. Steven Sharfstein, president of the American Psychiatric Association, stated publicly that it was "inappropriate" for psychiatrists to serve on Biscuits. The APA's board is soon expected to adopt changes to its rules that will make this official policy. Sharfstein's concerns extend beyond aggressive interrogations. In his view, all Guantánamo interrogations are tainted by the detention of the subject in legal limbo and, more than that, he doesn't want his members participating in or advising on any inherently deceptive interrogation tactics.

    Other groups - not least, Physicians for Human Rights and Physicians for Social Responsibility - have also been vocal in their condemnations of medical participation in abusive practices at Guantánamo Bay and elsewhere. The responses of two of America's core medical professional organizations, the American Medical Association and the American Psychological Association, however, raise serious concerns.

    The performance of the AMA - the organization that spoke out so firmly in response to the abuses of Nazi doctors - has been especially shocking. After the Guantánamo tour, it declined to make its representative on that trip, Dr. Audiey Kao, available to the New York Times for comment. The AMA was also slow to express support for the anti-torture McCain amendment, doing so only after other medical groups had spoken out and its silence became embarrassing. One reason for the AMA's lack of resolve is its members' concerns about other issues - topics more relevant to their daily practice. Hundreds of resolutions are brought by members every year on issues ranging from tort "reform" to Medicare. But only two resolutions in the past year addressed the interrogation issue. The result was a decision in November to commission a report from the AMA's ethics body, which won't appear until June 2006 at the earliest. That concerns about the level of Medicare reimbursements - currently under consideration on the Hill - are preventing the AMA from speaking out on an issue that goes to the heart of what it means to be a physician (whether for fear of offending the government or exhausting the group's political capital) should be a source of shame.

    The American Psychological Association has been quicker to act, producing guidance drafted by its Presidential Task Force in June. But the task force was stacked predominantly with psychologists who work or have worked for the military - in some cases at SERE school. Although the resulting guidelines require psychologists not to facilitate torture or cruel, inhuman or degrading treatment, they adopt as a "touchstone" US rules and regulations as "developed and refined" in the "war on terror." Despite the association's subsequent support of the McCain amendment, this makes psychologists' ethical constraints appear dependent upon the Administration's manipulation of legal doctrine and, in particular, on its views about the scope and content of the ban on cruel, inhuman and degrading treatment. Just as important, the task force also failed to require psychologists to respect the fundamental human rights of detainees established in international law. Rather than giving psychologists firm guidelines, the task force tells them to be mindful of factors that "require special ethical consideration" when consulting on interrogation. But leaving psychologists to make ad hoc decisions in military scenarios - when they are dependent on others for information and have neither the time nor the competence to assess it - is not a good recipe for preventing future abuses. Since the Defense Department has deployed psychologists rather than psychiatrists on Biscuits recently - sensing, perhaps, that their ethical constraints may not be as rigorous - it is especially important that the shortcomings in these guidelines be addressed.

    But all bodies within the medical establishment should lay down rules that directly address the participation of their members in the design and monitoring of interrogations. Clear rules drafted with real-world scenarios in mind are vital if we are to empower medical personnel to say no when asked to participate in future abuses.

    Moving forward, however, also requires looking back. At least four Guantánamo detainees have lodged a complaint against Dr. John Edmondson, head of the facility's Naval hospital. They allege that physicians under Edmondson's supervision made medical care contingent on cooperation with interrogators, that they witnessed and participated in abuse and that they shared medical information with interrogators to expose detainees' weaknesses. The Medical Board of California has refused to entertain the complaint on procedural grounds. The board says it can't consider the complaint because the alleged conduct occurred outside its jurisdiction, on a military base. By that rationale, a lawyer could be guilty of serious misconduct in California and still practice at the New York bar. This point has not escaped Scott Sullivan, the attorney representing the detainees. He has asked the California courts to compel the Medical Board to hear the complaint. That it should come to this is more than unfortunate.

   Although it is the job of the medical community to regulate its own, and to call to account the few who threaten to tarnish the reputation of the many, a full and independent investigation into detainee abuses and the role of medical personnel in those abuses is also needed. An "assessment" report of detainee medical activities made public by the Army Surgeon General in July raised more questions than it answered. What did the seventy-four medical personnel - in Iraq alone - who admitted witnessing interrogations actually see? What do the detainees who were the subjects of those interrogations - and who were not interviewed for the report - have to say about the involvement of those personnel? More generally, how were some medical personnel co-opted into a policy of detainee abuse after 9/11? Demanding answers to these questions is essential, not just for the integrity of the medical community but for the health of our democracy.


3. Torture for Dummies: Exploding the "ticking bomb" argument -- by Michael Kinsley

What if you knew for sure that the cute little baby burbling and smiling at you from his stroller in the park was going to grow up to be another Hitler, responsible for a global cataclysm and millions of deaths? Would you be justified in picking up a rock and bashing his adorable head in? Wouldn't you be morally depraved if you didn't?

Or what if a mad scientist developed a poison so strong that two drops in the water supply would kill everyone in Chicago? And you could destroy the poison, but only by killing the scientist and 10 innocent family members? Should you do it?

Or what if an international terrorist planted a nuclear bomb somewhere in Manhattan, set to go off in an hour and kill a million people. You've got him in custody, but he won't say where the bomb is. Is it moral to torture him until he gives up the information?

Questions like these have been pondered and disputed since the invention of the college dorm, but rarely, until the past couple of weeks, unstoned. Now the last of these golden oldies—about the terrorist who knows where the bomb is set to go off—is in the news. Not because it has happened, but because of Sen. John McCain's proposed legislation forbidding the use of torture by the United States government.

It feels strange even to have to use the term "proposed legislation" about a subject like this. When you think of all the things the law forbids, with varying degrees of success, it is hard to believe that torture by public officials isn't on the list. But yes, according to the Bush administration, no law prevents our government from torturing (at the very least) nonuniformed noncitizens outside the United States. And the Bush folks like it that way. But others, including many congressional Republicans, don't.

That hypothetical terrorist with a nuke is central to the most (maybe the only) articulate argument against the McCain bill. The argument, made by Charles Krauthammer in the Weekly Standard, is, in a nutshell: 1) No rational moral calculus could possibly justify sacrificing a million innocent lives in order to spare the would-be mass murderer a few minutes of pain. And 2) once you accept that torture would be justified in one situation, avoiding the use of torture on other situations is no longer a moral imperative. The question becomes where you draw the line.

In law school, they call this second point, "salami-slicing." You start with a seemingly solid principle, then start slicing: If you would torture to save a million lives, would you do it for half a million? A thousand? Two dozen? What if there's only a two-out-of-three chance that person you're torturing has the crucial information? A 50-50 chance? One chance in 10? At what point does your moral calculus change, and why? Slice the salami too far, and the formerly solid principle disappears.

Krauthammer stops at two slices. In addition to the terrorist-with-a-nuke, he also would torture a high-level terrorist to get information that is needed on a "slower fuse." When there is less urgency, he says, "the level of inhumanity" of the torture should be "proportionate to the need and value of the information." He has sundry other requirements involving procedures for authorizing torture and keeping the military out of it. This last one is not because (based on recent experience) he doesn't trust soldiers with truncheons and electrodes, but because he believes that the military should not be tainted by the sordid business of torture.

Krauthammer's proposed rules are fairly restrictive. That is a selling point: They are far from a wholesale endorsement of torture whenever it might prove useful. They acknowledge the humanity, even the human rights to some degree, of torture subjects. They aspire to no more torture than is necessary in any particular case. If these rules were enforced as punctiliously as their author lays them out, the U.S. Government might not find itself torturing a lot more people than it is torturing already, under various legal theories or none at all. And let's face it, we live with what's going on now. Most of us don't like it. But few of us are doing much to stop it.

But where do Krauthammer's rules come from? They have no obvious connection to the reasoning he uses to endorse torture in principle. They are just his opinion. This makes their careful limits more alarming than reassuring. There is no reason to suppose that if Krauthammer's reasoning was accepted, the result would be Krauthammer's rules. Once we are rid of the childish notion of an absolute ban on torture, there is no telling where adult minds may take us.

The trouble with salami-slicing is that it doesn't stop just because you do. A judicious trade-off of competing considerations is vulnerable to salami-slicing from both directions. You can calibrate the viciousness of the torture as finely as you like to make sure that it matches the urgency of the situation. But you can't calibrate the torture candidate strapped down before you. Once you're in the torture business, what justification is there for banning (as Krauthammer would) the torture of official prisoners of war, no matter how many innocent lives this might cost? If you are willing to torture a "high level" terrorist in order to save innocent lives, why should you spare a low-level terrorist at the same awful cost? What about a minor accomplice?

Or what about someone wholly innocent? It's hard to imagine a situation where someone who refuses to supply life-saving information could be considered "innocent." But it's not impossible. (Suppose the terrorists have his wife. …) In this cold, hard world, allegedly facing a challenge greater than any the civilized world has faced before, would you torture an innocent individual for five minutes in order to spare a million innocents from death? These would be wartime deaths, many of them more painful and grotesque than the laboratory torture you are sparing one lone individual. If you say yes, go ahead and torture an innocent person, you have pretty much abandoned the various exquisite moral distinctions that eased your previous abandonment of an absolute ban on torture. But if you say no, my own moral hygiene, or my country's, forbids the torture of an innocent individual, even if the indirect but predictable consequence is a million human deaths, you are more or less back in the camp of the anti-torture absolutists whose simple-minded moral vanity you find so irritating.

So Krauthammer's second argument—that once you abandon an absolute rule against torture, there is no obvious moral stopping point—"proves too much" (in another lovely law-school phrase). It can be used to discredit any nonabsolutist torture policy, including Krauthammer's own.

Torture is like almost every other issue: It involves trade-offs between the rights of individuals and the needs of society. In his own proposed rules, Krauthammer makes some strange trade-offs. How many lives would he give up in order to relieve the military of the onus of torture? And where will he find morally pre-damaged patriots better suited to the task? Do CIA agents deserve to be told that torturing people is a "monstrous evil" that is too "inhumane" for uniformed soldiers, but just perfect for them?

It is not fatal to Krauthammer's or any other person's particular set of torture rules that they draw lines more exact than evidence or reason can justify. Drawing bright lines in foggy situations is what the law does. But good rules need to be defensible against salami-slicing in a more general way. The strength of an absolute ban on torture—or an absolute rule of any sort—is its relative immunity from salami-slicing, both in theory and in practice. It is hard to explain why you would torture a teenager abducted into a terrorist gang if this would save a dozen lives, but would not torture a uniformed military officer in order to save a thousand. It is not hard to explain why you would not torture anybody at all. The argument may be wrong, but at least it is clear. The policy—just don't do it—is hard to misunderstand, making it easier to teach and enforce. And the principle can be consciously abandoned but it can't easily erode.

But what about Krauthammer's conundrum? Will you eschew torture even when a few minutes of it, applied to a very bad person, would save a million lives? One answer is that the law wouldn't really be enforced in such an extreme situation. McCain himself has hinted at this, as Krauthammer points out, and Andrew Sullivan fleshes out the point in a reply to Krauthammer published in the New Republic. This may well be true as a prediction, and tempting as a moral argument, but ultimately not good enough. Surely every law should at least aspire to be enforced. Or—an even more modest standard—a law should not depend on unenforceability for its very justification. Furthermore, a law expresses a social norm even apart from its enforcement. If the hypothetical situation ever arises, something will happen. What do we want that something to be?

There is yet another law-school bromide: "Hard cases make bad law." It means that divining a general policy from statistical oddballs is a mistake. Better to have a policy that works generally and just live with a troublesome result in the oddball case. And we do this in many situations. For example, criminals go free every day because of trial rules and civil liberties designed to protect the innocent. We live with it.

Of course a million deaths is hard to shrug off as a price worth paying for the principle that we don't torture people. But college dorm what-ifs like this one share a flaw: They posit certainty (about what you know and what will happen if you do this or that). And uncertainty is not only much more common in real life: It is the generally unspoken assumption behind civil liberties, rules of criminal procedure, and much else that conservatives find sentimental and irritating.

Sure, if we could know the present and predict the future with certainty, we could torture only people who deserve it. Not just that: We could go door-to-door killing people before they kill others. We could lock up innocent people who would otherwise be involved in fatal traffic accidents. Civil libertarians like to believe that criminals get their Miranda warnings and dissidents enjoy freedom of speech because human rights are universal. But if we knew for sure that a newspaper column by Charles Krauthammer would lead—even by a chain of events he never intended and bore no responsibility for—to World War II, wouldn't we be nuts not to censor it? Universal human rights would make no sense in a world where everything was known and certain.

This is not to say that Krauthammer's killer hypothetical could never happen. It is to say that morality does not require us to build a general policy on torture around a situation that is not merely unlikely in real life, but different in kind from the situations we are likely to face in real life. What we would do or should do if this situation actually arose is an interesting question for bull sessions in the dorm, but not a pressing issue for the nation.

Every day American forces in Iraq and elsewhere probably inflict more pain on guilty and innocent people than officially designated American torturers would do in a year, even if Bush and company were free of any legal restriction. That pain is not necessarily unjustified (although I believe it is). But it makes the whole debate about officially designated "torture" artificial and symbolic, not to say deeply hypocritical. And yet supporters of the administration, the war, and the practice of torture have not leaped to embrace this argument, for some reason.

1 Comments:

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