Torture, like terrorism, is an issue that does not admit easily of complexity. The same people who mocked George W. Bush for his “black and white” thinking on terrorism (“you are either with us or you are with the terrorists”) stand ready to accuse anyone who confesses any uncertainty about the issue—what tactics may be permitted in interrogating terrorist suspects, whether the CIA’s treatment of detainees crossed the line, whether to prosecute those who did—of “defending torture.”
At the same time, any attempt to impose legal limits on the war on terror, to hold to account those who may have broken the law in the prosecution of their duties, invites equally lurid accusations from the other side—of criminalizing policy differences, of demoralizing the CIA, even of aiding the terrorists. So it is a probable testament to the political independence, if not the political judgment, of the U.S. attorney general, Eric Holder, that he was willing to wade into this swamp. His boss may come to wish he hadn’t.
Holder’s decision last week to launch an inquiry, headed by special prosecutor John Durham, into allegations of CIA abuse of detainees under the Bush administration, has already drawn fire from both the left and right. Critics among human rights groups and Democratic activists are upset that the investigation will be confined to cases where interrogators went beyond the guidelines set down by White House lawyers in the Office of Legal Counsel—the infamous “torture memos”—and not to the lawyers themselves, or even their political masters. Meanwhile, critics to Holder’s right—notably the former vice-president, Dick Cheney, but also some Democrats—denounce the investigation as at best superfluous, at worst a partisan witch hunt.
But it’s hard to see what alternative Holder had. It is a fundamental tenet of law that those accused of crimes must be possessed of “the guilty mind”—it must be shown they knew they were breaking the law, or at the very least should have known. You can’t prosecute interrogators for following expert legal advice, and you can’t prosecute lawyers for offering it, however flawed it might have been. You can, however, prosecute where interrogators deliberately ignored or exceeded the guidelines—as a 2004 report by the CIA inspector general, also released last week, suggests—in violation of the statutory ban on inflicting “severe physical or mental pain or suffering.” And you can prosecute where a lawyer knowingly counsels actions that are against the law. But that’s a much harder thing to prove.
Indeed, it is a legitimate criticism of Holder that the cases of alleged detainee abuse most likely to come under scrutiny had earlier been referred to a task force of Justice Department prosecutors, admittedly under the previous administration. In all but one case they declined to prosecute, citing insufficient evidence. But nothing says their judgment cannot be reviewed, and in the fevered political climate surrounding the issue, there is something to be said for a little bipartisan redundancy. No, you don’t want each incoming administration investigating the last, or prosecuting those who acted in good faith on the basis of different beliefs, in this case about how best to defend the country. But neither is it plausible to think that such an emotive debate could just be left to lie, notwithstanding Barack Obama’s professed desire to “look forward, not backward.” If Durham reports, as he likely will, that he sees no grounds for prosecution, that is more likely to put the issue to rest.
That will disappoint those for whom the issue boils down to a simple catechism: torture is against the law. The Bush administration tortured. People who break the law should be punished. It will equally disappoint those enamoured of an even simpler catechism: torture works. Whatever works in the fight against terrorism is justified. Nothing should be allowed to detract from that task. Cheney himself defended the policy last weekend as “absolutely essential.”
Both sides yearn for moral clarity, which is understandable and indeed desirable. But clarity is not achieved by reductionism. It is comforting, on the one hand, to believe that “torture never works”—that, as it is often said, prisoners under torture will say anything to put an end to their suffering. But it bumps up against the uncomfortable fact that in some cases there is evidence that it does work. The Washington Post reported over the weekend that waterboarding—the harshest method used by the CIA, and the one most widely agreed to meet the definition of torture, though it was applied to only three subjects—was responsible for turning Khalid Sheik Mohammed, the mastermind of Sept. 11, into the CIA’s “pre-eminent source” on al-Qaeda. The source? The same 2004 inspector general’s report that prompted Holder’s inquiry.
Indeed, it would seem hard to explain, if torture is so ineffective at extracting information, why it is also so widespread. Possibly prisoners will say anything, including the truth.
On the other hand, even if they are induced to give up true information in some cases, how is it to be known whether they are telling the truth in any given case? (In fact, Mohammed told the Red Cross that much of what he told the CIA was untrue.) Or suppose they are. Is that enough to justify it? Is there not still some weighing required? Does the value of the information obtained outweigh the harm done—to the prisoner, to our own consciences? Could the same information not have been obtained by other, less repugnant ways? And of course, there is the little matter that, whether it works or not, torture is against the law.
Merely debating the efficacy of torture, in other words, does not get us very far—but neither does debating its morality, without regard to efficacy. The philosophy class example, of the prisoner with foreknowledge of a “ticking bomb” that will kill thousands, shows the weakness of both approaches. It requires a certain kind of moral obtuseness to insist that no use of torture could ever be justified, even where it would save thousands of lives. But is such a neat example ever likely to come up in the real world, and if it did, how could you know with certainty that your prisoner was it? You might have the wrong guy. He might not tell you anything. You might be too late. (Of course, there’s another sense in which it’s an academic question. No court would convict an intelligence agent whose actions saved thousands of lives, whatever the law may say.)
But is torture, itself, the issue? The question, for the most part, is not whether torture is justified, but how it is defined. The “torture memos,” despite the name, were in fact intended to define what was permissible under the law. Whether White House lawyers succeeded in drawing the line correctly, legally or morally, does not mean that no line need be drawn. Yet that is the unspoken premise of much commentary on the issue. All kinds of harsh tactics get lumped together as torture, from the merely unpleasant to the clearly appalling. Among the “abusive” practices listed in press accounts have been the provision of unappetizing food, or the use of female interrogators.
But the principle cannot be that interrogation subjects should be subjected to no discomfort or duress whatever. The very act of interrogating someone is highly stressful, implicitly coercive. As, for that matter, is imprisonment. The U.S. Army field manual’s rules on interrogation, while expressly forbidding many of the practices authorized under the Bush administration, also allows for tactics designed to disorient, confuse or demoralize the prisoner. Among the 18 listed “approach techniques,” for example, is the “emotional fear-up” approach, in which the interrogator “identifies . . . or creates” a fear in the subject, then links its elimination to his co-operation. The interrogator “must be extremely careful that he does not threaten or coerce” the subject. Still, he can make vaguely ominous statements such as, “you know what can happen to you here?”
What that ought to suggest is that it is not always obvious where the line is to be drawn, between a fear and a threat, between discomfort and abuse. How long can a prisoner be deprived of sleep, for example, before it becomes torture? Two days? Four? 11? The army field manual says a prisoner must be given at least four hours of continuous sleep every 24 hours. Is anything less than that torture?
One is acutely aware, in raising such concerns, of the slippery slope that beckons. “This is how it starts,” you think. You begin by making these nice distinctions and you end up justifying concentration camps. But this is also how it starts: by failing to make elementary moral distinctions. By treating every evil as if it were equivalent. We do have to draw lines. But we have to draw them with clear heads.
Of course, merely because something does not count as torture does not make it right. A practice may still be denounced as cruel and degrading even if it does not meet the strict legal definition of torture. It may be, as Michael Ignatieff has argued, that we should insist on prohibiting both, to give ourselves a moral buffer zone, as it were, a margin for error around the hard core of the clearly abhorrent. But that still does not relieve us of the responsibility of asking where that line should be drawn.
It may be that we will decide that some techniques which we would not otherwise countenance might be permissible, in view of the unique threat posed by modern macro-terrorism. It was also Michael Ignatieff, after all, who suggested some forms of “coercive interrogation” or duress might be permissible—mild sleep deprivation, say—while continuing to outlaw any “physical coercion or abuse.” For this he has been called an apologist for torture. Presumably, in due course, so will Holder.