Arguments in favor of the use of torture tend to follow the same script. There is a ticking bomb. It is set to go off soon. We have the suspect in custody and we have no time for the niceties of law. What do we do?
The answer? Inflict pain, searing, brutal and debilitating pain, and promise to make the pain stop if the suspect provides the information needed.
This is the essential argument outlined by philosopher Michael Levin in his 1982 essay, “The Case for Torture,” and still pushed by supporters of what we have euphemistically come to call “enhanced interrogation techniques.”
Levin posits the following scenario: A “terrorist has hidden an atomic bomb on Manhattan Island which will detonate at noon on July 4” unless a set of demands is met. He is caught two hours before the bomb is to detonate and, “preferring death to failure, (he) won't disclose where the bomb is.” Following due process, he says, will take too long and “millions of people will die.”
“If the only way to save those lives is to subject the terrorist to the most excruciating possible pain, what grounds can there be for not doing so?” he asks. “I suggest there are none.”
He then provides a moral balancing test. The millions of lives like to be lost if the bomb explodes “surely outweigh constitutionality” and “letting millions of innocents die in deference to one who flaunts his guilt is moral cowardice, an unwillingness to dirty one's hands.”
So torture you must, he says. He then takes it a step further:
“Once you concede that torture is justified in extreme cases, you have admitted that the decision to use torture is a matter of balancing innocent lives against the means needed to save them. You must now face more realistic cases involving more modest numbers.”
And once you do, he says, you will see that “Paralysis in the face of evil is the greater danger.”
Levin’s essay, however, is based flawed logic. The end game he pictures – useful intelligence that will save American lives – is a mirage. It assumes that the terrorist being tortured is going to give you what they call “actionable intelligence” or what we would call reliable information. Studies have shown that’s unlikely. That means that the torture he views as necessary at that moment may be nothing more than a colossal – and deadly – waste of time.
Why do I bring up a 31-year-old essay? Because the torture debate is far from over.
Witness the praise for a film like Zero Dark Thirty, which portrays the brutality of torture within a larger context of information gathering. It is nasty, to be sure, the film seems to be saying, but look what can come of it – the assassination of America’s most-wanted terrorist, Osama bin Laden.
That’s what makes the April 16 release of a report from the non-partisan Constitution Project so important. “The sweeping, 577-page report,” as described by the New York Times, “says that while brutality has occurred in every American war, there never before had been ‘the kind of considered and detailed discussions that occurred after 9/11 directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.’”
The report (which can be found at <http://detaineetaskforce.org>), compiled by a bipartisan panel that was co-chaired by a former Bush administration official, said it “is indisputable that the United States engaged in the practice of torture,” that “the nation’s highest officials bear some responsibility for allowing and contributing to the spread of torture” and that engaging in torture “damaged the standing of our nation, reduced our capacity to convey moral censure when necessary and potentially increased the danger to US military personnel taken captive.”
“Democracy and torture cannot peacefully coexist in the same body politic,” the report said. “The Task Force also believes and hopes that publicly acknowledging this grave error, however belatedly, may mitigate some of those consequences and help undo some of the damage to our reputation at home and abroad.”
In response, John Bolton – who served both as US ambassador to the United Nations and as under-secretary of state under President George W. Bush, called the report "completely divorced from reality.” He told the Associated Press that the various interrogation procedures had been "lawyered, and lawyered again, and lawyered again."
"The whole point of the Bush administration's review of the techniques was so that no one would be tortured," he told the AP. "The intention was precisely the opposite."
I would argue – as would the Constitution Project report and numerous others conducted in recent years – that the lawyering had nothing to do with preventing torture. It was, instead, a way of creating a legal framework to allow it. Bush administration lawyers, as the Constitution Project points out, “provided legal guidance … that seemed to go to great lengths to allow treatment that amounted to torture.”
“To deal with the regime of laws and treaties designed to prohibit and prevent torture, the lawyers provided novel, if not acrobatic interpretations to allow the mistreatment of prisoners,” the report says. This lawyering, the report says, was “aimed primarily at giving the client – in this case, administration officials – what they wanted to hear.”
And what they wanted to hear was that torture was legal. The release of the Constitution Project’s report should trigger a much broader public debate not only over whether torture should be legal, but whether it works and whether it can ever be morally permissible.
Levin, in arguing that it can be justified, also makes the tacit argument that it is effective. The preponderance of evidence says otherwise. Let’s have the discussion.
Hank Kalet is a poet and journalist in New Jersey. Email firstname.lastname@example.org; blog, kaletblog.com; Twitter, @newspoet41.
From The Progressive Populist, May 15, 2013
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