The Truth about Torture
It's time to be honest about doing terrible things.
Dec 5, 2005, Vol. 11, No. 12 • By CHARLES KRAUTHAMMER
Let's assume (and hope) that Khalid Sheikh Mohammed has been kept in one of these black sites, say, a cell somewhere in Romania, held entirely incommunicado and subjected to the kind of "coercive interrogation" that I described above. McCain has been going around praising the Israelis as the model of how to deal with terrorism and prevent terrorist attacks. He does so because in 1999 the Israeli Supreme Court outlawed all torture in the course of interrogation. But in reality, the Israeli case is far more complicated. And the complications reflect precisely the dilemmas regarding all coercive interrogation, the weighing of the lesser of two evils: the undeniable inhumanity of torture versus the abdication of the duty to protect the victims of a potentially preventable mass murder.
In a summary of Israel's policies, Glenn Frankel of the Washington Post noted that the 1999 Supreme Court ruling struck down secret guidelines established 12 years earlier that allowed interrogators to use the kind of physical and psychological pressure I described in imagining how KSM might be treated in America's "black sites."
"But after the second Palestinian uprising broke out a year later, and especially after a devastating series of suicide bombings of passenger buses, cafes and other civilian targets," writes Frankel, citing human rights lawyers and detainees, "Israel's internal security service, known as the Shin Bet or the Shabak, returned to physical coercion as a standard practice." Not only do the techniques used "command widespread support from the Israeli public," but "Israeli prime ministers and justice ministers with a variety of political views," including the most conciliatory and liberal, have defended these techniques "as a last resort in preventing terrorist attacks."
Which makes McCain's position on torture incoherent. If this kind of coercive interrogation were imposed on any inmate in the American prison system, it would immediately be declared cruel and unusual, and outlawed. How can he oppose these practices, which the Israelis use, and yet hold up Israel as a model for dealing with terrorists? Or does he countenance this kind of interrogation in extreme circumstances--in which case, what is left of his categorical opposition to inhuman treatment of any kind?
But let us push further into even more unpleasant territory, the territory that lies beyond mere coercive interrogation and beyond McCain's self-contradictions. How far are we willing to go?
This "going beyond" need not be cinematic and ghoulish. (Jay Leno once suggested "duct tape" for Khalid Sheikh Mohammed. See photo.) Consider, for example, injection with sodium pentathol. (Colloquially known as "truth serum," it is nothing of the sort. It is a barbiturate whose purpose is to sedate. Its effects are much like that of alcohol: disinhibiting the higher brain centers to make someone more likely to disclose information or thoughts that might otherwise be guarded.) Forcible sedation is a clear violation of bodily integrity. In a civilian context it would be considered assault. It is certainly impermissible under any prohibition of cruel, inhuman, or degrading treatment.
Let's posit that during the interrogation of Khalid Sheikh Mohammed, perhaps early on, we got intelligence about an imminent al Qaeda attack. And we had a very good reason to believe he knew about it. And if we knew what he knew, we could stop it. If we thought we could glean a critical piece of information by use of sodium pentathol, would we be permitted to do so?
Less hypothetically, there is waterboarding, a terrifying and deeply shocking torture technique in which the prisoner has his face exposed to water in a way that gives the feeling of drowning. According to CIA sources cited by ABC News, Khalid Sheikh Mohammed "was able to last between two and 2 1/2 minutes before begging to confess." Should we regret having done that? Should we abolish by law that practice, so that it could never be used on the next Khalid Sheikh Mohammed having thus gotten his confession?
And what if he possessed information with less imminent implications? Say we had information about a cell that he had helped found or direct, and that cell was planning some major attack and we needed information about the identity and location of its members. A rational moral calculus might not permit measures as extreme as the nuke-in-Manhattan scenario, but would surely permit measures beyond mere psychological pressure.
Such a determination would not be made with an untroubled conscience. It would be troubled because there is no denying the monstrous evil that is any form of torture. And there is no denying how corrupting it can be to the individuals and society that practice it. But elected leaders, responsible above all for the protection of their citizens, have the obligation to tolerate their own sleepless nights by doing what is necessary--and only what is necessary, nothing more--to get information that could prevent mass murder.
GIVEN THE GRAVITY OF THE DECISION, if we indeed cross the Rubicon--as we must--we need rules. The problem with the McCain amendment is that once you have gone public with a blanket ban on all forms of coercion, it is going to be very difficult to publicly carve out exceptions. The Bush administration is to be faulted for having attempted such a codification with the kind of secrecy, lack of coherence, and lack of strict enforcement that led us to the McCain reaction.
What to do at this late date? Begin, as McCain does, by banning all forms of coercion or inhuman treatment by anyone serving in the military--an absolute ban on torture by all military personnel everywhere. We do not want a private somewhere making these fine distinctions about ticking and slow-fuse time bombs. We don't even want colonels or generals making them. It would be best for the morale, discipline, and honor of the Armed Forces for the United States to maintain an absolute prohibition, both to simplify their task in making decisions and to offer them whatever reciprocal treatment they might receive from those who capture them--although I have no illusion that any anti-torture provision will soften the heart of a single jihadist holding a knife to the throat of a captured American soldier. We would impose this restriction on ourselves for our own reasons of military discipline and military honor.
Outside the military, however, I would propose, contra McCain, a ban against all forms of torture, coercive interrogation, and inhuman treatment, except in two contingencies: (1) the ticking time bomb and (2) the slower-fuse high-level terrorist (such as KSM). Each contingency would have its own set of rules. In the case of the ticking time bomb, the rules would be relatively simple: Nothing rationally related to getting accurate information would be ruled out. The case of the high-value suspect with slow-fuse information is more complicated. The principle would be that the level of inhumanity of the measures used (moral honesty is essential here--we would be using measures that are by definition inhumane) would be proportional to the need and value of the information. Interrogators would be constrained to use the least inhumane treatment necessary relative to the magnitude and imminence of the evil being prevented and the importance of the knowledge being obtained.
These exceptions to the no-torture rule would not be granted to just any nonmilitary interrogators, or anyone with CIA credentials. They would be reserved for highly specialized agents who are experts and experienced in interrogation, and who are known not to abuse it for the satisfaction of a kind of sick sadomasochism Lynndie England and her cohorts indulged in at Abu Ghraib. Nor would they be acting on their own. They would be required to obtain written permission for such interrogations from the highest political authorities in the country (cabinet level) or from a quasi-judicial body modeled on the Foreign Intelligence Surveillance Court (which permits what would ordinarily be illegal searches and seizures in the war on terror). Or, if the bomb was truly ticking and there was no time, the interrogators would be allowed to act on their own, but would require post facto authorization within, say, 24 hours of their interrogation, so that they knew that whatever they did would be subject to review by others and be justified only under the most stringent terms.
One of the purposes of these justifications would be to establish that whatever extreme measures are used are for reasons of nothing but information. Historically, the torture of prisoners has been done for a variety of reasons apart from information, most prominently reasons of justice or revenge. We do not do that. We should not do that. Ever. Khalid Sheikh Mohammed, murderer of 2,973 innocents, is surely deserving of the most extreme suffering day and night for the rest of his life. But it is neither our role nor our right to be the agents of that suffering. Vengeance is mine, sayeth the Lord. His, not ours. Torture is a terrible and monstrous thing, as degrading and morally corrupting to those who practice it as any conceivable human activity including its moral twin, capital punishment.
If Khalid Sheikh Mohammed knew nothing, or if we had reached the point where his knowledge had been exhausted, I'd be perfectly prepared to throw him into a nice, comfortable Manhattan cell and give him a trial to determine what would be fit and just punishment. But aslong as he had useful information, things would be different.
Very different. And it simply will not do to take refuge in the claim that all of the above discussion is superfluous because torture never works anyway. Would that this were true. Unfortunately, on its face, this is nonsense. Is one to believe that in the entire history of human warfare, no combatant has ever received useful information by the use of pressure, torture, or any other kind of inhuman treatment? It may indeed be true that torture is not a reliable tool. But that is very different from saying that it is never useful.
The monstrous thing about torture is that sometimes it does work. In 1994, 19-year-old Israeli corporal Nachshon Waxman was kidnapped by Palestinian terrorists. The Israelis captured the driver of the car used in the kidnapping and tortured him in order to find where Waxman was being held. Yitzhak Rabin, prime minister and peacemaker, admitted that they tortured him in a way that went even beyond the '87 guidelines for "coercive interrogation" later struck down by the Israeli Supreme Court as too harsh. The driver talked. His information was accurate. The Israelis found Waxman. "If we'd been so careful to follow the ['87] Landau Commission [which allowed coercive interrogation]," explained Rabin, "we would never have found out where Waxman was being held."
In the Waxman case, I would have done precisely what Rabin did. (The fact that Waxman's Palestinian captors killed him during the Israeli rescue raid makes the case doubly tragic, but changes nothing of the moral calculus.) Faced with a similar choice, an American president would have a similar obligation. To do otherwise--to give up the chance to find your soldier lest you sully yourself by authorizing torture of the person who possesses potentially lifesaving information--is a deeply immoral betrayal of a soldier and countryman. Not as cosmically immoral as permitting a city of one's countrymen to perish, as in the Ethics 101 case. But it remains, nonetheless, a case of moral abdication--of a kind rather parallel to that of the principled pacifist. There is much to admire in those who refuse on principle ever to take up arms under any conditions. But that does not make pure pacifism, like no-torture absolutism, any less a form of moral foolishness, tinged with moral vanity. Not reprehensible, only deeply reproachable and supremely impracticable. People who hold such beliefs are deserving of a certain respect. But they are not to be put in positions of authority. One should be grateful for the saintly among us. And one should be vigilant that they not get to make the decisions upon which the lives of others depend.
WHICH BRINGS US to the greatest irony of all in the torture debate. I have just made what will be characterized as the pro-torture case contra McCain by proposing two major exceptions carved out of any no-torture rule: the ticking time bomb and the slow-fuse high-value terrorist. McCain supposedly is being hailed for defending all that is good and right and just in America by standing foursquare against any inhuman treatment. Or is he?
According to Newsweek, in the ticking time bomb case McCain says that the president should disobey the very law that McCain seeks to pass--under the justification that "you do what you have to do. But you take responsibility for it." But if torturing the ticking time bomb suspect is "what you have to do," then why has McCain been going around arguing that such things must never be done?
As for exception number two, the high-level terrorist with slow-fuse information, Stuart Taylor, the superb legal correspondent for National Journal, argues that with appropriate legal interpretation, the "cruel, inhuman, or degrading" standard, "though vague, is said by experts to codify . . . the commonsense principle that the toughness of interrogation techniques should be calibrated to the importance and urgency of the information likely to be obtained." That would permit "some very aggressive techniques . . . on that small percentage of detainees who seem especially likely to have potentially life-saving information." Or as Evan Thomas and Michael Hirsh put it in the Newsweek report on McCain and torture, the McCain standard would "presumably allow for a sliding scale" of torture or torture-lite or other coercive techniques, thus permitting "for a very small percentage--those High Value Targets like Khalid Sheikh Mohammed--some pretty rough treatment."
But if that is the case, then McCain embraces the same exceptions I do, but prefers to pretend he does not. If that is the case, then his much-touted and endlessly repeated absolutism on inhumane treatment is merely for show. If that is the case, then the moral preening and the phony arguments can stop now, and we can all agree that in this real world of astonishingly murderous enemies, in two very circumscribed circumstances, we must all be prepared to torture. Having established that, we can then begin to work together to codify rules of interrogation for the two very unpleasant but very real cases in which we are morally permitted--indeed morally compelled--to do terrible things.
Charles Krauthammer is a contributing editor to The Weekly Standard.