Conservatives Condone Torture, Liberals Don't

 
Let me make this perfectly clear—in my opinion, any society that condones and practices torture is a society in which the rights of all individuals are diminished. The rights of individuals and the goal of a just society are qualitative traits, not quantitative traits. If some people are deprived of those rights and if some people aren't part of the just society, then the "rights" don't exist and the society is not just. You can't have the right to fair treatment under the law in some situations but not in others. That's a mockery of justice.

Reuel Marc Gerecht is a former Central Intelligence Agency officer and a fellow at the Foundation for Defense of Democracies (FDD). The leadership of FDD consists of people like Newt Gingrich, Bill Kristol, Steve Forbes, and Joe Lieberman. They are "small-c" conservatives. Mostly Republicans, I think (including Lieberman, the Republican-in-all-but-name).

Last Saturday Gerecht wrote an opinion piece in The New York Times in defense of torture [Out of Sight].

He starts off by defending extraordinary rendition. This is the tactic of sending suspected criminals to other countries where they can be tortured and then returned to the USA. The idea is to be able to deny that the USA is in violation of its own Constitution and respect for human rights.

Mr. Obama will soon face the same awful choices that confronted George W. Bush and Bill Clinton, and he could well be forced to accept a central feature of their anti-terrorist methods: extraordinary rendition. If the choice is between non-deniable aggressive questioning conducted by Americans and deniable torturous interrogations by foreigners acting on behalf of the United States, it is almost certain that as president Mr. Obama will choose the latter.

Aside from the fact that torture is legally and ethically wrong, there's three other slight problems with this tactic. First, who are they trying to deceive? Is there anyone with an IQ over 50 that can be fooled by extraordinary rendition?¹ Second, there's very little evidence that torture works. Third, many innocent people have been tortured.

Canada is particularly sensitive about rendition because of Maher Arar. Arar, a Canadian citizen, was arrested in 2002 at Kennedy Airport in New York and send to Syria where he was tortured and confined for 10 months. He was subsequently released and the Canadian government has established that he is innocent [Canadian cleared of terrorism after rendition, torture in Syria].

We don't know how many other innocent people have been tortured but chances are the numbers are substantial. The problem with rendition is that the individuals are deprived of their right to face their accusers and prove their innocence. No respectable society should condone such behavior.

Gerecht then raises the standard canard that seems to be the last refuge of those who would violate people's rights.

However, troubles in Pakistan may well reverse Mr. Obama’s luck. He has said he intends to be hawkish about fighting Al Qaeda and the Taliban in Central Asia. So, let us suppose that he increases the number of Special Forces raids into Pakistan, and those soldiers capture members of Al Qaeda and their computers, and learn that the group has advanced plans for striking American and European targets, but we don’t know specifically where or when.

What would Mr. Obama do? After all, if we’d gotten our hands on a senior member of Al Qaeda before 9/11, and knew that an attack likely to kill thousands of Americans was imminent, wouldn’t waterboarding, or taking advantage of the skills of our Jordanian friends, have been the sensible, moral thing to do with a holy warrior who didn’t fear death but might have feared pain?

No, Mr. Gerecht, torture is not a sensible, moral thing to do. It is stupid and immoral.

Stupid because the chances of finding out useful information under such circumstances are slim to zip. Stupid because under the Golden Rule we are putting the lives of all of our citizens at risk when they are captured by the bad guys. Stupid because it is contrary to the very thing that we are supposed to be fighting for. Stupid because the Americans who carry out rendition can be, and should be, put in jail. (I would even advocate that those who advocate breaking the law as almost as guilty.)

Immoral because .... never mind, he wouldn't know morality if it bit him on the posterior.

This issue is important in Canada for another reason. Our recently appointed Liberal leader, Michael Ignatieff, has a somewhat checkered history of modest support for torture. Recently his writings have been more clear about his opposition to torture while pointing out the moral dilemma [If torture works ...]. I'm going to quote extensively from his essay because this is a man who will be Prime Minister of Canada.

It is difficult to think about torture honestly. In a recent article on the interrogation techniques employed by the US, the writer Mark Bowden observed that few "moral imperatives make such sense on a large scale, but break down so dramatically in the particular." The moral imperative—do not torture, any time, anywhere, in any circumstances—is mandated by the UN convention against torture and other cruel, inhuman or degrading treatment or punishment. "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency," says the convention, can "be invoked as a justification of torture." That terrorists themselves torture does not change these imperatives. Our compliance does not depend on reciprocity.

.....

Elshtain justifies coercive interrogation using a complex moral calculus of "dirty hands": good consequences cannot justify bad acts, but bad acts are sometimes tragically necessary. The acts remain bad, and the person must accept the moral opprobrium and not seek to excuse the inexcusable with the justifications of necessity.

My own work on "lesser evils" brings me close to the Elshtain position. I agree with her that necessity may require the commission of bad acts, which necessity, nevertheless, cannot absolve of their morally problematic character—but I still have a problem. If one enumerates the forms of coercive interrogation that have been judged to be inhuman and degrading by the Israeli and the European courts—hooding, holding subjects in painful positions, exposing them to cold or heat or ear-splitting noise—these techniques also seem unacceptable, though at a lower threshold of awfulness, than torture. Like Elshtain, I am willing to get my hands dirty, but unlike her, I have practical difficulty enumerating a list of coercive techniques that I would be willing to have a democratic society inflict in my name. I accept, for example, that a slap is not the same thing as a beating, but I still don't want interrogators to slap detainees because I cannot see how to prevent the occasional slap deteriorating into a regular practice of beating. The issue is not, as Elshtain implies, that I care overmuch about my own moral purity but rather that I cannot see any clear way to manage coercive interrogation institutionally so that it does not degenerate into torture.

So I end up supporting an absolute and unconditional ban on both torture and those forms of coercive interrogation that involve stress and duress, and I believe that enforcement of such a ban should be up to the military justice system plus the federal courts. I also believe that the training of interrogators can be improved by executive order and that the training must rigorously exclude stress and duress methods.

Two significant problems remain. First of all, there is the problem of the exceptional case, one where lives can be saved by the application of physical methods that amount to torture. "Ticking bomb cases" cannot be wished away. They might arise especially where an American or European city faced the threat of WMD. An outright ban on torture and coercive interrogation leave a conscientious security officer with little choice but to disobey the ban. In this event, as the Israeli supreme court has said, even a conscientious agent acting in good faith to save lives should be charged with a criminal offence and be required to stand trial. At trial, a defence of necessity could be entered in mitigation of sentence, but not to absolve or acquit. This is the only solution I can see that remains consistent with an absolute ban on torture and coercive interrogation. Let us not pretend that the enforcement of this rule would be easy. Where the threat could be shown to be genuine, it seems evident that few legal systems would punish such a conscientious offender. So an outright ban on torture creates the problem of the conscientious offender. This is a small price to pay for a ban on torture.

Does an outright ban on torture and coercive interrogation meet the test of realism? Would an absolute ban on torture and coercive interrogation using stress and duress so diminish the effectiveness of our intelligence-gathering that it would diminish public safety? It is often said—and I argued so myself—that neither coercive interrogation nor torture is necessary, since entirely lawful interrogation can secure just as effective results. There must be some truth to this. Israeli interrogators have given interviews assuring the Israeli public that physical duress is unnecessary. But we are grasping at straws if we think this is the entire truth. As Posner and others have tartly pointed out, if torture and coercion are both as useless as critics pretend, why are they used so much? While some abuse and outright torture can be attributed to individual sadism, poor supervision and so on, it must be the case that other acts of torture occur because interrogators believe, in good faith, that torture is the only way to extract information in a timely fashion. It must also be the case that if experienced interrogators come to this conclusion, they do so on the basis of experience. The argument that torture and coercion do not work is contradicted by the dire frequency with which both practices occur. I submit that we would not be "waterboarding" Khalid Sheikh Mohammed—immersing him in water until he experiences the torment of nearly drowning—if our intelligence operatives did not believe it was necessary to crack open the al Qaeda network that he commanded. Indeed, Mark Bowden points to a Time report in March 2003 that Sheikh Mohammed had "given US interrogators the names and descriptions of about a dozen key al Qaeda operatives believed to be plotting terrorist attacks." We must at least entertain the possibility that the operatives working on Sheikh Mohammed in our name are engaging not in gratuitous sadism but in the genuine belief that this form of torture—and it does qualify as such—makes all the difference.

If they are right, then those who support an absolute ban on torture had better be honest enough to admit that moral prohibition comes at a price. It is possible, at least in theory, that subjecting interrogators to rules that outlaw torture and coercive interrogation, backed up by punishment if they go too far, will create an interrogation regime that allows some interrogation subjects to resist divulging information and prevents our intelligence services from timely access to information that may save lives.

If there is a significant cost to an outright ban on coercive interrogation and torture, what can possibly justify it? Many of the arguments that human rights activists make in justification amount to the claim that torture shames their moral identity as human beings and as citizens, and that they do not wish such acts to be committed in their names. Other citizens in a democracy may not value their own moral scruple over the collective interest in having accurate security information, even if collected by dubious means. It may be obvious to human rights activists how to adjudicate these claims, but it is not obvious to me. That is, I do not see any trumping argument on behalf of the rights and dignity of security detainees that makes their claims prevail over the security interests (and human right to life) of the majority. The best I can do is to relate the ban on torture to the political identity of the democracies we are trying to defend—by claiming that democracies limit the powers that governments can justly exercise over the human beings under their power, and that these limits include an absolute ban on subjecting individuals to forms of pain that strip them of their dignity, identity and even sanity.

We cannot torture, in other words, because of who we are. This is the best I can do, but those of us who believe this had better admit that many of our fellow citizens are bound to disagree. It is in the nature of democracy itself that fellow citizens will define their identity in ways that privilege security over liberty and thus reluctantly endorse torture in their name. If we are against torture, we are committed to arguing with our fellow citizens, not treating those who defend torture as moral monsters. Those of us who oppose torture should also be honest enough to admit that we may have to pay a price for our own convictions. Ex ante, of course, I cannot tell how high this price might be. Ex post—following another terrorist attack that might have been prevented through the exercise of coercive interrogation—the price of my scruple might simply seem too high. This is a risk I am prepared to take, but frankly, a majority of fellow citizens is unlikely to concur.

I'm more skeptical than Ignatieff about the efficacy of torture. Just because lots of people do it does not sound like a good argument for defending the usefulness of torture.

Nevertheless, when it comes to the bottom line, I'm with Michael Ignatieff, "We cannot torture ... because of who we are." If there's a price to be paid for doing the right thing then I'm prepared to pay it and suffer the consequences.

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1. Apparently patriotic conservatives are easily fooled—that's why I set the cutoff IQ so high.

[Hat Tip: daimnation! via Canadian Cynic]