Bookplanet: book on the torture debate, with many voices

THE TORTURE DEBATE IN AMERICA, by Karen J Greenberg (editor)
Reviewed by Andrew Goldsmith, School of Law, Flinders University, Adelaide, Australia andrew.goldsmith@flinders.edu.au

This volume of essays and materials follows on from an earlier publication, THE TORTURE PAPERS, edited by Karen Greenberg and Joshua Dratel (2005). In light of the earlier book, this volume attempts to capture and reflect the range of public debates and perspectives upon the issue of torture that the disclosure of, and ready access to, internal government memoranda relating to the use of torture and other coercive methods of interrogation in the Global War on Terror (GWOT) has helped to facilitate. While not exclusively so, the contributors to the volume are mainly lawyers, both practicing and university-based; some of them have served in government positions prior to or during the GWOT; others have had the opportunity to reflect upon certain issues from their positions in different universities. The book emerges under the auspices of New York University Law School’s Center on Law and Security – a number of the Law School’s staff is represented in the collection. The general lawyerly focus of the book is leavened by some contributions from well-informed investigative journalists (for example, Dana Priest) and from those interested in broader questions of ethics and political morality (for example, David Luban, Stephen Holmes, and Joyce Dubensky). In addition to presenting the transcript of a Panel Discussion, “Torture: The Road to Ahu Ghraib and Beyond,” there are twenty chapter length essays, as well as a number of “Relevant Documents,” including the Bybee-Gonzales memorandum of August 1, 2002, and the Levin-Comey memorandum of December 30, 2004.

Under the theme of torture, a number of aspects are examined by the contributors. The book chapters are organized into four sections; Democracy, Terror and Torture; On the Matter of Failed States, the Geneva Conventions, and International Law; On Torture; and Looking Forward. These themes enable the contributors to bring a variety of disciplinary and practical perspectives to bear on the broader theme, while using the published torture memoranda as a framework providing coherence to the collection.

One of the principal strengths of the collection is the field of contributors. The field is broader than the ‘usual suspects’ one might predict on such a controversial issue. While the collection as a whole presents many more criticisms of current and recent US tactics in GWOT than it does supportive viewpoints, the flow is not all one way. It has managed to achieve this by drawing both insiders and outsiders together to examine a range of pertinent questions under the rubric of torture. [*497] One significant contributor in this regard is William Taft IV, a legal adviser in the Department of State from 2001 to 2005. Other contributors to offer either an insider perspective or one at odds in some respects from many of the more critical contributions include Heather MacDonald, a writer and commentator, and Andrew McCarthy, a former prosecutor and employee of the Department of Justice. In bringing together such a range of opinions from a distinguished and well-informed group of contributors, the collection succeeds in minimizing the elements of shrill stridency and uninformed speculation, often in combination, that can be found in commentaries on this issue. Having said this, in many cases, the individual contributions do not show signs of considering earlier drafts of other contributions to the book, with the result that there is a silo-effect. In other words, while the volume manages admirably to represent a range of views, apart from the panel discussion, there is no dialectical element to the book, reflecting an intense engagement between contributors. While I am asking to set a high benchmark here for exercises of this nature, it remains hopefully the direction in which future exercises might develop, building upon the platform of greater transparency and analytical capacity that has evolved recently, due in large measure to the relative availability of key policy and operational documents.

Another question that the book leaves open, or at most is dealt with in passing in a few individual chapters, is the significance of the wider setting, in particular the public mood and opinion upon these questions, for debates around torture. It is relatively easy to see the US government’s flirtation with torture and other coercive measures post-911 as an expression of political whim within what some critics see as a grand imperialist mission to defeat terrorism everywhere. A more complex examination would seek to explain the form of interrogation and detention arrangements in places such as Guantanamo Bay today and in the recent past, in terms of public expectations about how the GWOT should be conducted and the tough political choices (at least in some instances) that follow. This in turn might lead to an examination of how public fear of future terrorist attacks is played out, and manipulated, in political discussions. Analysts who fail to acknowledge the political realities surrounding these issues run the risk of being unpersuasive and indeed seen as irrelevant. Similarly, those who make their case purely or largely by reference to political or moral principle, without grounding their arguments in the practicalities of the situations in which potential users of torture methods find themselves, are likely to go unheeded. One of the ironies presented by Dubensky and Lavery’s contribution on finding religious resources for condemning torture (in Chapter 8) is that today’s American reservist serving in Iraq in a military prison is probably more familiar with Biblical injunctures and prescriptions than with Kantian philosophy. If true, those seeking to influence behavior among participants within the GWOT in a positive direction would be better off to focus on the religious propensities of those serving on both sides of the conflict, rather than [*498] invoking more rarefied (and secular) notions of human rights.

What is meant by torture, and the different ways in which it might be used in GWOT, remain issues around which greater clarity is needed. While much can be gained from reading these contributions in relation to these questions, there is scope for greater analytical precision. Much of the characterization of torture today in the GWOT draws directly or indirectly upon a diverse range of applications within the history of torture, including its use as part of systematic repression and elimination of political opponents in countries such as Chile and Argentina in the 1970s and 1980s. Moreover many recent accounts tend to focus upon the physical manifestations of torture, giving less regard to the psychological impacts of certain detention regimes. The intense debates within the US administration around what degree of physical harm or pain amounted to “torture” – and which was therefore prohibited under domestic as well as international law – certainly lent weight to this analytical focus. The use of methods of torture within the context of interrogation , and within the context of war-like operations involving unconventional combatants, are issues that sometimes get overlooked or too readily analogized with other contexts in which torture has been used. One suspects that for many critics of current field interrogation methods in GWOT, the measure is how interrogations in ordinary criminal cases are routinely handled. Whether this comparison is an appropriate one is rarely asked or addressed. It surely is a matter warranting further examination and, like many questions arising in this vexed area, would benefit from better empirical understanding. One of the underlying difficulties analysts confront in this area is being able simply to pose some of the difficult questions that are not merely of technical interest, but also of potentially enormous moral and practical significance. The ‘unspeakable’ nature of the subject-matter for some commentators limits, rather than enhances, useful debate. However, a refusal to engage with certain questions hardly seems likely to lead to a modification or abolition of certain objectionable practices. It would seem to make more sense to accept that there are ‘hard choices’/‘lesser evil’ elements that arise in GWOT, and deal with them in a transparent, reasonable way.

This point applies not least to the question “does torture work?” This leads to further crucial questions, especially, “what is meant by torture?” and “under what circumstances, or for what purposes?” I have suggested that the particular context for asking this question is, or rather, ought to be, interrogations of suspected combatants and their associates in war-like operations. The objective in many such situations is clearly related to collecting intelligence, rather than eliciting evidence for a criminal prosecution, though both objectives may coexist in some cases. So does torture work in these cases? For many contributors to this collection, this point is not the central one of their argument. But it can hardly be ignored. The answer cannot be divorced from the circumstances of the GWOT, and hence from the objectives [*499] of useful analysis. Yet when the issue does occasionally arise, the point is often made that confessions under torture often lead to unreliable statements, especially where those being tortured are in fact innocent (so-called ‘false positives’). However, the fact that “sometimes” or indeed “often” statements obtained through extreme methods are unreliable does not negate all tactical objectives, especially because it seems clear enough (and intuitively true) that sometimes even the threat of inflicting pain is sufficient to elicit reliable, useful information that may save lives or lead to the dismantling of terrorist operations.

Ultimately, these questions cannot remain unanswered or left on the basis of faulty assumptions. Such practical issues will always be subject to reality checks, informally if not formally, even if it is left to field operatives out of public view to draw their own different conclusions from some of the glibber assessments provided by critics of these measures. Once we have informed assessments of what is being proposed in an area such as interrogation of suspected combatants in the GWOT, including the likely utility of particular methods under consideration, public discussion is likely to deliver better, legitimate outcomes than has been the case previously. We can, as part of the torture debate, look at these proposals alongside some of the other contextual considerations relevant to the debate. Some of the contributors to this book have rightly drawn attention to the damaging impact upon non-US perceptions of US actions against terrorism, and their counterproductive consequences, of events such as the abuses at Abu Ghraib prison. A number has also questioned the idea that torture can be regulated, restricted narrowly, as some like Alan Dershowitz have famously asserted. Certainly, history largely favors the sceptics’ argument. This book goes a long way to raising a range of pertinent normative and doctrinal questions in relation to torture and associated matters; it also goes some way to looking at contextual questions and practical issues. With any luck, some of the tough empirical issues implied within many of these discussions, as well as further conceptual clarification, will become the subject-matter of further scholarly investigation.