The Debate on Torture: War Against Virtual States
Levinson, Sanford
SEPTEMBER ii revealed what is likely to be a pervasive reality of twenty-first century life: what Philip Bobbit (in The Shield of Achilles) calls the rise of "virtual states," not linked to...
...Thomas Nagel, for example, attempts to defend "absolutism" against its utilitarian critics by writing as follows: [L]et me try to connect absolutist limitations with the possibility of justifying to the victim what is being done to him...
...This question takes on special import because of a debate that began shortly after the attacks: is it legitimate to torture suspected terrorists in order to gain information about future actions...
...Moreover, the addition by the United States of a requirement that mental harm be "prolonged" also offers more than enough opportunity for apologists to deny that some act constituted "torture" because the mental harm lasted "only" a week, or a month, or three months...
...If it did, then one would certainly expect it to be used with some frequency, especially in extreme situations, with attendant publicity about its efficacy...
...Dershowitz and others have sometimes used a "ticking time bomb" hypothetical, about which two things can be said...
...So we are forced to play the student in Philosophy 101, where Kantian deontologists contend with utilitarians as to the propriety of lying to Nazis or killing a single innocent in order to save the world...
...November 21, 2002) If the books under review are reliable, the answer seems to be yes...
...We are in a war of the decent against the indecent...
...It is apparently a common view that not only does the Constitution not follow the flag, but that this is also the case for all other American laws...
...Perhaps law cannot speak fully during time of war...
...An extremely attractive response is simply to deny the efficacy of torture...
...Yet Senator John D. Rockefeller IV, the ranking Democratic member of the Senate Intelligence Committee, is quoted by the Times reporters as suggesting "that the United States might consider turning over Mohammed [a high official of al-Qaeda captured in Pakistan] to a country that does not have legal restrictions against torture...
...Unless the state engages in elaborate cover-ups of alleged instances of torture, sooner or later lawsuits will be filed, at least within the United States, and, given the possibility of "universal jurisdiction" over torturers, within any country that wishes to prosecute those accused...
...Torture is . . . contrary to every relevant international law . . . . No other practice except slavery," wrote Henry Shue almost a quarter century ago, "is so universally and unanimously condemned in law and human convention...
...The opening editorial answered in effect "no," and a longer "special report" extended the analysis...
...any variation in punishment, based on the level of culpable evil, takes away from the element of strict liability...
...State officials would then be giving their formal imprimatur to actions that the various Conventions condemn without exception...
...Similarly, if one subjects an unwilling child to a painful surgical procedure, one can say to him, "if you could understand, you would realize that I am doing this to help you...
...This serves, he argues, to legitimize torture and "changes the background of ideological presuppositions and options much more radically than its outright 86 n DISSENT / Summer 2003 advocacy" This is definitely a serious intellectual position...
...Second, the person whom the state proposes to torture should be in the courtroom, so that the judge can take no refuge in abstraction...
...January 26, 2003) But, asks Jacoby, "what if, in an extreme case, torture is the only way to extract information that would save thousands of lives...
...If one wishes a more religious source, one might cite the 1252 declaration by Pope Innocent IV that heretics deserved torture...
...A decision by the United States to employ some forms of torture, no matter how limited the circumstances, would shatter the taboo...
...As already noted, I cannot in good faith endorse such absolutism inasmuch as I accept some version of Walzer's argument...
...But this is nothing more than sick humor, because no morally serious person would defend the general propriety of torture...
...Interestingly enough, Justice Barak cited Ireland v. United Kingdom, in which the European Court of Human Rights assessed methods of interrogation used by the British in Northern Ireland, which included "protracted standing against the wall on the tip of one's toes...
...Moreover, the meaning of the words I have italicized is even more subject to debate than the scarcely self-evident language of the United Nations itself...
...But even this claim concedes the legitimacy of engaging in some kind of cost-benefit analysis, which for some people is itself horrendous: for it rejects the absolutism of the imperative, "do not torture," and accepts the possibility that torture might be acceptable...
...Any such country, therefore, will have to wrestle with the extent to which it is willing to listen to the story of the torturer, as well as to the person tortured...
...Jacoby was heavily influenced in his column by a remarkable discussion of the propriety of torture published in the Economist of January 11, 2003...
...Anyone who has experienced this desire knows that not even hunger or thirst are comparable with it...
...The first is Jeff Jacoby, a conservative columnist for the generally liberal Boston Globe: "The civilized world condemns torture as irredeemably barbaric...
...As John Conroy, writes, "[T]hroughout the world torturers are rarely punished, and when they are, the punishment rarely corresponds to the severity of the crime...
...conformity with "international laws and accords" and the consequences thereof...
...Don't we have to keep torture available as a last and desperate option...
...If we accept the language of the various treaties quoted above, the nature of the categorical prohibition against torture requires that one be an absolutist, for the treaty language explicitly rejects even the slightest deviation from the absolute ban...
...I I F WE CANNOT use torture ourselves as a method of self-defense, then "we" (that is, the government of the United States, acting in the name of "We the People") might simply pass on or, in the language of the trade, "render" the hapless suspects to our less fastidious allies—most of whom, of course, including Egypt, Jordan, and Morocco (but not, interestingly, Pakistan) are among the 130 parties to the international treaties prohibiting torture...
...THE DEMOCRATIC PARTY is so anesthetized that it appears unwilling to lead any serious political discussion about the policestate methods defended by the Bush administration and its apologists...
...One could even say, as one bayonets an enemy soldier, "It's either you or me...
...The only way to guarantee silence is to adopt what is said to be the practice of professional killers and to kill all eyewitnesses to a crime, explaining that it's "professional, not personal...
...But, of course, these are not the only voices in the debate, and I conclude with two strong arguments against those of us who seem willing to violate this most basic of all prohibitions...
...Walzer draws on both Machiavelli and Max Weber for his analysis...
...But nobody who defends the pragmatic necessity of unacknowledged torture would move to this next step...
...Emphasis added] (Torture," Philosophy and Public Affairs 124 [1978] ) This argument is quite similar to that adopted by the Israeli Supreme Court, which left open the possibility that an interrogator accused of torture or inhumane acts could employ the necessity defense, which excuses criminal liability with regard to "any act immediately necessary for the purpose of saving the life, liberty, body, or property, of either himself or his fellow persons, from substantial danger of [imminent] serious harm . . . absent alternative means for avoiding the harm...
...But if one regards torture as a uniquely dreadful phenomenon, there is a temptation to view "merely" inhumane and degrading treatment as potentially permissible, even though it is also prohibited under the Convention...
...One need not believe that he is being physically tortured in order to suspect that his treatment is probably in violation of the standards of human dignity enunciated by the Israeli and European Courts...
...But one might suggest as well that anyone against whom a torture warrant is issued receive a significant payment as "just compensation" for the denial of his or her right not to be tortured...
...As Pincus explained, it can refer to anything from the use of so-called truth drugs* to application of one or another method of torture...
...As early as October 21, 2001, Walter Pincus wrote in the Washington Post of the increasing frustration felt by federal law enforcement officials at the refusal by various persons detained in the wake of the attacks to disclose information they were presumed to have...
...Making the judge complicit in torture would have certain consequences...
...An important contribution to Artiz's self-image as an honorable man was apparently provided by Catholic priests, who believed that the "dirty war" was also very much a "just war...
...It is obvious that the primary reason for holding them is not punishment but information...
...Dana Priest and Barton Gellman, in the Washington Post on December 25, 2002, report on the interrogation practices Americans regard as permissible in Afghanistan...
...No one who doubts that this 8o n DISSENT / Summer 2003 ARGUMENTS is the case should be in a position of responsibility" [Emphasis added] Posner is scarcely unaware of the duty of judges to protect people against being tortured...
...A similar story by Jess Bravin in the April 26, 2002 Wall Street Journal quoted a teacher at an Army "interrogation school" who tells his students that the job for which he is training them "is just a hair'sbreadth away from being an illegal specialty under the Geneva Convention...
...I wouldn't rule it out...
...How much should it matter whether lawyers define what from the prisoner's perspective is endless solitary confinement as X, i.e., torture, or X minus a? In any event, one can only describe as a lie the statement of White House spokesman Ari Fleischer that "[t]he standard for any type of interrogation of somebody in American custody is to be humane and to follow all international laws and accords dealing with this type subject...
...This comes close to the position of Ivan Karamazov, who refused to respect, let alone worship, a God who would kill an innocent child even if that would save the entire world...
...Indeed, every lawyer knows that if a given activity X is prohibited, then the task is to define the act of one's client as X minus a, where a is something the lack of which means, arguably, that one is not doing X at all...
...These were, however, sufficient violations of "human dignity" as to be impermissible...
...Adam Shatz's essay in the New York Review of Books on the Algerian struggle for independence in the 1950s concludes by asking, "Was torture [by the French] effective...
...HARVARD LAW SCHOOL professor Alan Dershowitz, in his book Why Terrorism Works, offers as an example of torture's "working": a 1995 episode when "Philippine authorities tortured a terrorist into disclosing information that may have foiled plots to assassinate the pope and to crash eleven commercial airliners carrying approximately four thousand passengers into the Pacific Ocean, as well as a plan to fly a private Cessna filled with explosives into CIA headquarters...
...One might well wonder if its use would constitute torture, as against invasion of privacy...
...We are staring into an abyss, and no one can escape the necessity of a response...
...In these cases, one may be genuinely grateful for the Courts' willingness to take seriously the notion of "inhuman and degrading" treatment, whether or not it constitutes torture...
...But more to the point, in the wake of 9/11, a serious discussion has begun in the United States and elsewhere among members of the general public and the legal profession about the propriety of torture as a means of ferreting out information about terrorism...
...Assessing the behavior of countries that have ratified a variety of antiDISSENT / Summer 2003 n 79 ARGUMENTS torture conventions and those that have not, she found that at best "the differences in average levels of human rights ratings for ratifiers versus nonratifiers are small...
...3) the threat of imminent death...
...At times they are held in awkward, painful positions and deprived of sleep with a twentyfourhour bombardment of lights—subject to what are known as 'stress and duress' techniques...
...If one wants to know the names only in order to punish the prisoner's past acts, where there is no plausible fear of future violence, then I agree that torture should remain absolutely unacceptable...
...Even if one is normatively drawn to this version of "Don't ask, don't tell," the practical difficulty is that the victims of torture, if they are left to live, will almost undoubtedly wish to invoke some kind of ex post legal process, whether by seeking the criminal punishment of their torturers or suing for civil damages for violation of their legal right not to be tortured...
...Andrews University in Scotland...
...Both took note of argu ments by Dershowitz and other "defenders" of torture (in extreme circumstances...
...But we really have no idea how reliable torDISSENT / Summer 2003 n 8 ARGUMENTS ture is as a way of obtaining information...
...One might be that certain judges would simply stand down, because of their adherence to the absolute proscription of the practice...
...We send them to other countries so that they can kick the [expletive] out of them...
...E. Don't ask, don't tell: that is, maintain the prohibition at a formal level but .. . The last three responses involve the public concession that there are some circumstances—limited to genuinely "hard cases" involving the necessity of procuring information about significant dangers—in which torture or other "inhuman or degrading" treatment is conceivably justified and its perpetrators therefore excused from criminal DISSENT / Summer 2003 n 8 5 ARGUMENTS liability...
...The officials say the most effective interrogation method involves a mix of psychological disorientation, physical deprivation, and ingratiating acts, all of which can take weeks or months...
...The most obvious deviation from this general rule is warfare, where elaborate rules have been constructed over the ages to permit the killing of combatants and even to permit the killing of innocent civilians if it is the "unintended consequence" of a legitimate attack on military targets...
...DISSENT / Summer 2003 n 87 ARGUMENTS Mark J. Osiel makes this point very powerfully in his study of Argentinian torture during the "dirty war" in the 1970s...
...And, the compensation could be increased if it turned out that the person tortured had no significant information to give the authorities...
...covering of the suspect's head throughout the detention (except during the actual interrogation...
...I wouldn't take anything off the table where he is concerned, because this is the man who has killed hundreds and hundreds of Americans over the past ten years.'" There appears to be no major American political figure who believes that it really matters that American policy is in direct contravention of international law—and of American law insofar as treaties are the "law of the land...
...To accept a "catastrophe exception" to what would otherwise be absolute limitations makes it all the more important to clarify what we mean by "catastrophe...
...Similarly, whether or not the judge actually puts the hood over the head, he should have no doubt that he is collaborating in what even Argentinian torturers recognized as presumptively evil activity...
...Torturers are not necessarily the obvious sadists one would, in some perverse sense, like them to be...
...Emphasis added] (Quoted in Unspeakable Acts, Ordinary People, by John Conroy) It may be, alas, that this degree of scrupulousness, assuming that the above examples are not physical torture, is best explained by the realization that torture is indeed inefficacious, as suggested earlier, compared to the methods described by Caballero...
...Unlike the latter, which would be "too shocking" for most people to accept, "the mere introduction of torture as a legitimate topic allows us to entertain the idea while retaining a pure conscience...
...111 Yale Law Journal 1935 [2002...
...For better and, most definitely, for worse, the United States is the "new Rome," the giant colossus bestriding the world and claiming to speak on behalf of good against evil...
...So, the argument runs, if it is permitted to kill an enemy combatant, why should it not be equally legitimate to torture him or her after capture, since torture, on this account, is less dire than the permitted killing...
...He summarizes his conclusions by asking "[w]hy has the law not faced the fact that administrative massacre is often committed by people who are not vicious, insane, malicious, disconnected interpersonally, or coerced by a totalitarian state...
...That is the side America and its allies must choose...
...The way to win this war is not to adopt our enemies' evil methods...
...conceding that torture might on occasion be efficacious, the journal's editors concluded that for the democratic West, any such gains would be outweighed by greater harm...
...T]orture enabled the French to gather information about future terrorist strikes and to destroy the infrastructure of terror in Algiers...
...88 n DISSENT / Summer 2003 the evidence that persuaded the judge that this is one of the rare cases justifying the warrant...
...Indeed, this is one of the handful of human rights treaties that the United States has signed...
...one of the strongest counts in the indictment against Saddam Hussein, for example, is the use of torture in his prisons...
...Support for this depressing conclusion comes in Oona Hathaway's empirical attempt to answer the question, "Do Human Rights Treaties Make a Difference...
...His answer is the same as that offered by the philosophers Nagel and Shue: "No...
...with regard to torture, though, all that law needs to do is whisper, given the remarkably categorical ban on torture that it contains...
...This clearly requires that we must confront head-on exactly where the line is to be drawn...
...Consider the definition of "torture" offered by the United Nations in Article I of the Convention: For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official . . . . It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions...
...Conroy's explanation is derived from the very title of his excellent book Unspeakable Acts, Ordinary People...
...Unless one is a Kantian, it is hard to understand why one would embrace this position...
...This scarcely avoids legitimizing at least some acts of torture if we truly accept the possibility of acquittal, suspension of sentence, or gubernatorial and presidential pardons of what would be perceived as "morally permissible" torture...
...Whatever divisions have been exposed by George W. Bush's war against Iraq, few people deny the legitimacy of doing whatever we can to defeat virtual states such as al-Qaeda...
...Emphasis added] Just as religious belief is alleged to be at its highest in foxholes, the plausibility of Machiavelli's and Weber's critiques of moral absolutism seems to be strongest when the state, as the political embodiment of an otherwise decent society, is fundamentally at risk...
...Zizek condemns Dershowitz's view as "extremely dangerous" insofar as "it gives legitimacy to torture, and thus opens up the space for more torture...
...The "Torture Warrant" If one accepts the absolutism of the prohibition, then the answer to the question above is, "Nothing," save redoubled efforts to assure compliance...
...I suspect that most of us would accept killing an innocent (or, far more to the point, torturing someone who is reasonably perceived as decidedly non-innocent) to save, say, ten thousand people and, perhaps, even to save "only" the three thousand people who perished on September 11...
...SEPTEMBER ii revealed what is likely to be a pervasive reality of twenty-first century life: what Philip Bobbit (in The Shield of Achilles) calls the rise of "virtual states," not linked to any particular territory or traditional Westphalian state, which possess sufficient access to weapons of mass destruction to wage war against the United States— and, of course, other states—even as they are impervious to ordinary modes of military deterrence or retaliation...
...Such grandiose plans could easily have been dismissed prior to September 11, but not now...
...or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality (Emphasis added) 0 0 NE NEED NOT be a lawyer to recognize that the language of the initial Convention and that added by the Senate are significantly different...
...Although he does not cite Hannah Arendt's "banality of evil," exemplified by Adolf Eichmann, his analysis is much the same, if not, in some sense, even more depressing...
...The first two suggestions above are directed to minimizing the occurrence of torture warrants through structuring the procedure attendant to their issuance...
...Part of the responsibility attached to being such a colossus may be the need to accept certain harms that lesser countries need not accept...
...The spirit of a sleep-deprived prisoner, Begin writes, Is wearied to death...
...In any event, anyone who accepts the necessity of linedrawing—and that must mean anyone who thinks seriously about this topic—must be willing to defend awful conduct that comes right up to the line...
...In this case, the element of hypocrisy that is involved in the cogniscenti's being aware that the reality of legal practice is different from what the naïve outsider might believe is amply justified by the reinforcement of the undoubted virtue of an ethic of no-torture...
...It entered into force in 1987 and has since been ratified by 130 states...
...But the ex ante assignment of such a price, especially if it is substantial and paid to everyone who is tortured, might serve to limit the incidence of torture...
...If one believes in the probability of what might be termed the underenforcement of the norm against torture— and any other view is willfully naive— then we should take seriously Dershowitz's suggestion that we look at torture from an ex ante perspective rather than the presumptively inadequate ex post one.* To be sure, we can wonder if there really are a sufficient number of detached magistrates to withstand the blandishments of the state, but perhaps there are ways to correct for deficiencies on this score...
...Make him stand up, don't let him sleep, keep him naked and isolated, put rats and cockroaches in his cell, give him bad food, serve him dead animals, throw cold water on him, change the temperature...
...A. Deny the basic premise, that is, the efficacy of torture, and, therefore, maintain the prohibition because it is costless to do so...
...And even political liberals such as Dershowitz seem willing to countenance the use of torture in some (rare) instances rather than adhere to the language of international law and its unequivocal condemnation of any and all torture...
...Indeed, the government of the Netherlands has explicitly stated to the United Nations its "objection," that the "understanding" of torture by the United States "appears to restrict the scope of the definition of torture under article 1 of the Convention...
...This is a very powerful case, and much in me wishes to endorse it without further ado...
...Note, though, that even the Economist fudges by endorsing "vigorous questioning short of torture...
...Let jus 82 n DISSENT / Summer 2003 tice be done though the heavens fall...
...Pressure" is, to put it mildly, a loaded term...
...If one abandons a person in the course of rescuing several others from a fire or a sinking ship, one could say to him, "You understand, I have to leave you to save the others...
...The Conventions appear to require that torture be a strict liability offense, with no possibility of justification...
...But to argue for such distinctions is to reject the "absolutism" that Nagel wants to defend...
...If torture is in fact inefficient, then one must be a sadist to defend it...
...One might say that accepting the legitimacy of even one instance of "efficacious" torture is morally disastrous...
...Many years ago Meir Dan-Cohen introduced the idea of what he called "acoustic separation" of laws as understood by the general public and as understood by those actually charged with implementing them...
...Such a Mafia-like code of silence will never be maintained...
...One reason for believing this, alas, is precisely the unwillingness of states, including the United States, Great Britain, and Israel, among others that could no doubt be cited, to prosecute as criminals those who engaged in violations of the relevant prohibitions...
...First, unlike the authorizations to engage in wiretaps of alleged foreign agents, which are granted by a secret court, all torture warrants should be public, with written opinions that can be subjected to analysis even if the opinion cannot specify all *This discussion assumes, of course, that there is time to procure a warrant...
...The morale of the West in what may be a long war against terrorism would be gravely set back: to stay strong, the liberal democracies need to be certain that they are better than their enemies .. . There is room for discussion about what the lines [of interrogation] should be...
...A key question, however, is what we mean by the words "whatever we can...
...C. Analogize torture to some behavior that is, at least on occasion, justified...
...it is a cruel assault upon the defenseless...
...What all this means, to use American constitutional language, is that not even the most compelling state interest can justify deviation from the prohibition: "no torture...
...We now turn to the antithesis, beginning with the fact that a number of parties to the Torture Convention have been accused of committing torture, while others have explicitly been found by courts to have engaged in the "cruel, inhuman or degrading treatment" also covered by the Convention...
...It turns out to be surprisingly hard to avoid granting some element of the "legitimacy" condemned by Zizek, unless one resolutely believes, in the face of all the evidence, that any and all known events of torture will be prosecuted with significant severity...
...Indeed, "essays . . . which do not advocate torture outright, [but] simply introduce it as a legitimate topic of debate, are even more dangerous than an explicit endorsement of torture...
...But the point, surely, is that numbers and what might be termed the "existential" degree of danger count...
...In combat the other person one kills is still a threat when killed and is killed in part for the sake of one's own survival...
...Emphasis added) Consider now the "understanding" (which some other states say is equivalent to a "reservation") voted by the U.S...
...In Our Name It is vitally important that we discuss what is being done in our name...
...The Israeli Supreme Court, in a decision invalidating a number of standard operating procedures of the Israeli security services, nonetheless agreed that the use of some of these procedures "in the past has led to the thwarting of murderous attacks...
...And accepting the legitimacy of even one act of torture, under the most extraordinary circumstances, is indeed to junk the prohibition...
...The judge should be fully aware of his or her personal complicity in the act of torture...
...A variety of responses to what has suddenly been recognized as a potentially costly, rather than merely symbolic, prohibition are possible...
...Perhaps the very notion of "just compensation" is offensive in such contexts, especially if it suggests that the compensation is simply the amoral "price" that the state pays for torture...
...Welcome to the Desert of the Real, 2002) It follows, then, that Zizek is vehemently opposed to essays such as this one, which attempt to analyze the propriety of torture and, implicitly or otherwise, suggest its possible legalization...
...Catastrophe" must be taken seriously as a limiting condition, rather than as a rhetorical term to be evoked whenever something appalling happens...
...There is at least cause to believe that the ban on torture and, even more so, on "cruel, inhuman or degrading treatment," is just one more example of the legal realist insight that one should look to law-in-action rather than law-on-the-books to determine the actual legal order...
...That is, the law in some meaningful sense speaks differently depending on the extent to which one is inside or outside the domain of its implementation...
...One hopes that this is correct, for if it is, the problem essentially vanishes, always subject to the caveat that the justification for torture is in fact the need for information...
...Surely no self-respecting state would preserve itself by losing its soul...
...However, any such policy of "rendering" violates the UN convention, as ratified by the U.S...
...And recall that those suspects who do not cooperate after this treatment are "rendered" to allied countries that presumably use even harsher methods...
...If torture never achieves its purpose and, indeed, is harmful not only to the victims but even to the police themselves (since false confessions lead them to stop looking for the actual perpetrators), then the obvious question is why any rational police officer would ever engage in it...
...But this seems an odd argument inasmuch as one can imagine explaining to the victim that it is necessary to know the names of the confederates in order to prevent the possibility of significant harm to innocent people...
...Among these latter countries are Great Britain and Israel, though almost no one believes that other signatories, such as Egypt or Turkey, to name only two, could conceivably survive strict scrutiny of their practices...
...One can only wonder, for example, what methods of interrogation are being visited upon Jose Padilla, who is being held absolutely incommunicado in a federal facility in Virginia, refused the right to speak to a lawyer or to anyone else—a denial formerly associated only with totalitarian governments...
...The question is whether it is ever, even in a single instance, justified, not whether it is always or even often justified...
...Can anyone imagine that an alleged terrorist claiming to have been tortured by or with the knowledge of American officials could win a jury trial for damages in the United States today, even assuming that one could surmount various immunity defenses that might prevent ever getting to the jury...
...But often the victims of torture will indeed be unattractive, and the alleged torturers will often be able to argue sincerely that they were acting to protect society...
...At the very least, I strongly agree that the United States must be willing to bear significant costs— greater than many other countries—before it accepts the possibility of torture...
...It was Weber who emphasized, when discussing what is required of someone who chooses "politics as a vocation," that one ought to accept the priority of an "ethic of responsibility" (for the good of the community) over an "ethic of ultimate ends" (let justice be done even if the heavens fall...
...But how does one get information from people who are unwilling to talk—assuming that they do possess relevant information, itself an arguable proposition...
...Dershowitz, a noted civil libertarian who, nonetheless, rejects the absolutism of the prohibition, suggests that the best alternative, once one accepts the possibility of even one instance ARGUMENTS of "legitimate torture," is to require that the state first procure a "torture warrant" explicitly authorizing the activity...
...I classify this approach as similar to the "Don't ask, don't tell" slogan made infamous by President Bill Clinton in his compromise concerning gays and lesbians in the military...
...It is, perhaps, a dreadful play on words to describe torture as too painful to think about...
...This applies whether X is insider trading, corporate fraud, violation of a test-ban treaty, or torture...
...The United States fully accepted Article 2(2)'s provision that "[n]o exceptional circumstances whatsoever, [emphasis added] whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture...
...Resort to torture could conceivably stave off a catastrophe...
...Obviously, there are many instances of torture that are totally inefficacious by any measure...
...A vivid cover asked, "Is torture ever justified...
...First, there is no known example of this actually occurring, in the sense of having someone in custody who knew of a bomb likely to go off within the hour...
...Their saving grace, if that is the right word, is to feel suitably guilty about violating what most people wish were an "absolute" prohibition...
...As a March 9, 2003, article in the New York Times put it, Some American and other officials subscribe to a view held by a number of outside experts, that physical coercion is largely ineffective...
...I am allowed to use all means in my possession" in interrogating a suspect, a senior Moroccan intelligence official said . . . "You have to fight all his resistance at all levels" . . . (March 4, 2003) One anonymous American official told the Washington Post, "We don't kick the [expletive] out of them...
...Conroy, op...
...Senate when rati fying the Convention: The Senate's advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Convention: (a) That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffer84 n DISSENT / Summer 2003 ing and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering...
...Even if one accepts the legitimacy of capital punishment, the state is generally not permitted to kill anyone who has not been convicted of a specific crime...
...D. Deny that one is engaging in torture: that is, maintain the prohibition but proclaim as well that whatever one is doing does not constitute a breach...
...As the Economist has written (January 11, 2003), discussion in the United States has been all too "desultory...
...H H OW, THEN, should we, whether lawyers or simply citizens, try to synthesize these two realities: first, the absolute prohibition against torture and other inhuman and degrading acts and, second, the obvious fact that not only is it occurring, but also, just as significantly, serious and thoughtful people appear to justify it...
...The European Court held that use of these methods did not constitute torture, but, since together they did treat the suspects in an "inhuman and degrading manner," they were prohibited nonetheless...
...One method under consideration, he wrote, "is extraditing the suspects to allied countries where security services sometimes employ threats to family members or resort to torture...
...If we give up the no-torture taboo, then why shouldn't any other country in the world proclaim its freedom from the solemn covenant entered into through the DISSENT / Summer 2003 n 89 ARGUMENTS UN Convention...
...There is a special reason for the United States, among all countries, to choose adherence to the no-torture "taboo...
...So what is to be done as one approaches this particular moral Rubicon...
...Yet, as both journalists and philosophers emphasize, it is of ARGUMENTS extraordinary importance in defining who we are as a people and how seriously we take our most solemn commitments...
...Consider also the implications of the fact that Judge Richard Posner, who sits on the Seventh Circuit Court of Appeals, has recently written that "only the most doctrinaire civil libertarians (not that there aren't plenty of them) deny [that] if the stakes are high enough, torture is permissible...
...exposing the suspect to powerfully loud noise for a prolonged period and deprivation of sleep, food and drink...
...as quoted] Do we prefer to be fed self-serving pabulum or to engage in a serious debate about the actual degree of U.S...
...That is precisely what has been happening and . . . what will happen...
...Torturers sometimes lose their jobs, but they rarely go to jail...
...Pain alone will often make people numb and unresponsive," said Magnus Ranstorp, deputy director of the Center for the Study of Terrorism and Political Violence at St...
...With regard to the effectiveness or futility of torture, we have only anecdotes and counter anecdotes...
...Though many authoritarian regimes use torture, not one of even these openly admits it...
...It is worth mentioning here that even such a noted anti-utilitarian as the legal philosopher Charles Fried recognizes the legitimacy of a "catastrophe exception...
...Thus in one notable case where the Israeli Supreme Court courageously declared illegitimate the methods of interrogation em ARGUMENTS ployed by Israeli security services against suspected Palestinian terrorists, the Court declined to affix the label "torture" to the various forms of pressure, including vigorous "shaking" of the body, extended placement of suspects in extremely uncomfortable seating positions, and sleep deprivation...
...But one cannot really say while torturing a prisoner, "You understand, I have to pull out your fingernails because it is absolutely essential that we have the names of your confederates...
...As if this were not sufficient, in 1984 a United Nations conference drafted an equally categorical and even more specific "Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment...
...It is not clear that there genuinely exists anything that could plausibly be described as the fabled "truth serum...
...As a matter of fact, no country actually admits to engaging in "torture" as a systematic public policy...
...According to intelligence specialists familiar with CIA methods, those who refuse to cooperate are sometimes kept standing or kneeling for hours, in black hoods or spray-painted goggles...
...There is no way to avoid the moral difficulties generated by the possibility of torture...
...On one side of that line stand societies sure of their civilized values...
...There are, however, some analysts who reject not so much this limited repudiation of absolutism as the publicity of the concession...
...ASECOND CONSIDERATION iS equally significant: if one is motivated to minimize the instances of ostensibly legitimate torture, as Dershowitz is, then one should certainly address the possibility that the requirement of a warrant, coupled with strict liability and severe punishment for any torturous activity that occurs without a warrant, would generate less deviation from the basic prohibition of torture and other inhumane and degrading actions...
...One can defend such an approach by quoting the old maxim about hypocrisy being the tribute that vice pays to virtue...
...One must, therefore, wrestle with the response of the legal system to the almost inevitable public aspect of torture...
...We dare not cross the line that separates the two...
...Only in this way, in the very inability or prohibition to elevate what we had to do into a universal principle, do we retain the sense of guilt, the awareness of the inadmissability of what we have done...
...You have to engage people to get into their minds and learn what is there...
...Article 7 of the International Covenant on Civil and Political Rights explicitly states that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment," and Article 4.2 of the Covenant, just as explicitly, states that "[n]o derogation" from Article 7 is permitted...
...He should know that he is, therefore, potentially at risk if a later court finds the grant of the warrant to be unreasonable...
...If an implausible denial that torture can ever be effective is one polar response, then the opposite pole must be inhabited by anyone who argues that Aristotle was right in embracing torture as a method of extracting evidence...
...The prohibition against torture expresses one of the West's most powerful taboos—and some taboos (like that against the use of nuclear weapons) are worth preserving even at heavy cost...
...Even with regard to the latter, it is easy to argue that it is not the infliction of pain and suffering that is prohibited, but only "severe" pain and suffering, and one can presumably have good-faith disagreement as to the relevant measure of severity...
...He had earlier ruled, with regard to allegations of torture by the Chicago Police Department, that "even a murderer has a right to be free from torture...
...Menachem Begin vividly wrote of his own torture as a young man in the Soviet Union, which involved sleep deprivation...
...Exemplary in this regard is the Slovenian social theorist Slavoj Zizek, who writes in criticism of those who prefer "honesty" over "hypocrisy" with regard to the possibility of engaging in torture: [W]e should . . . paradoxically stick to the apparent "hypocrisy": OK, we can well imagine that in a specific situation, confronted with the proverbial "prisoner who knows" and whose words can save thousands, we would resort to torture—even (or, rather, precisely) in such a case, however, it is absolutely crucial that we do not elevate this desperate choice into a universal principle: following the unavoidable brutal urgency of the moment, we should simply do it...
...Do they endorse the legitimacy of a war without legal or moral limits, where prudence alone constrains decision makers, or must the "war against terrorism" be conducted within recognized limits, even if this increases the risk of incidents such as September 11...
...The detainees resisted such standard blandishments as plea bargaining, cash, or relocation in the federal witness program...
...Senate, which explicitly prohibits not only "direct" torture but also a signatory's sending of prisoners to countries where torture is likely...
...If torture includes, analytically, the notion of infliction of severe pain or psychological distress, then it is not clear how injection with a truth serum would fit, unless one places perhaps undue weight on the distress caused by the knowledge that one had in fact ratted, albeit involuntarily, on one's comrades or friends...
...This returns the discussion to square one, and we are forced to confront the legitimacy of torture if one has very good grounds for perceiving the person, even if individually "neutralized," as part of a network that constitutes a continuing threat to innocent people...
...Thus, write Eric Lichtblau and Adam Liptek in the New York Times, Washington is known to have turned terrorist suspects over to countries like Egypt, Jordan, and Morocco that are more willing to use more aggressive questioning, what human rights lawyers have called torture, in efforts to break suspects...
...The torturer inflicts pain and damage upon another person who, by virtue of now being within his or her power, is no longer a threat and is entirely at the torturer's mercy" Presumably, though, the defender of torture would dispute the premise that the captured prisoner is DISSENT / Summer 2003 n 83 ARGUMENTS no longer a threat, at least if the prisoner possesses important information about the future conduct of his fellow terrorists...
...He concentrates much of his analysis on Alfredo Artiz, a naval officer "who led one of the most notorious abduction squads," but who was described as "an English gentleman" by one of the prisoners he tortured...
...In good dialectical fashion, one should begin with the thesis...
...SANFORD LEVINSON is professor of law and government at the University of Texas Law School and author of the forthcoming collection of essays, Wrestling with Diversity (forthcoming, Duke University Press...
...Instead, refuge is taken in the fact that interrogations "occur at isolated locations outside the jurisdiction of American law...
...Fried's evocation of "killing an innocent person" to "save a whole nation" seems hyperbolic inasmuch as it would reject the legitimacy of torture even to prevent a repetition of the attack on the World Trade Center, which did not genuinely threaten the "whole nation...
...But at what price to our selfrespect...
...Thus he concedes, in the context of discussing a postulated situation "where killing an innocent person may save a whole nation," that "it seems fanatical to maintain the absoluteness of the judgment, to do right even if the heavens will in fact fall...
...After writing that "[m]ilitary officials say torture is not an option," Times reporter Eric Schmitt notes that these same authorities add that "under the Geneva Convention, anything short of torture [emphasis added] is permissible to get a hardened Qaeda operative to spill a few scraps of information that could prevent terrorist attacks...
...This involves what might be termed the "contagion effect" if the United States is widely believed to accept torture as a proper means of fighting the war against terrorism...
...where he explicitly endorses the necessity of having political leaders who are willing, in dire circumstances, to engage in horrendous actions, including torture...
...B. Revise one's basic view of the norm itself, that is, junk the prohibition...
...An "experienced FBI agent" is quoted saying that it could get to the point "where we . . . go to pressure...
...We must be as attentive, intellectually and emotionally, to "inhuman and degrading" acts as to "torture," lest we fall victim to what I have termed the X minus a phenomenon...
...War and Massacre," in War and Moral Responsibility, ARGUMENTS Marshall Cohen, Thomas Nagel, and Thomas Scanlon, eds...
...Even the International Committee of the Red Cross, which has special responsibility for monitoring compliance with the Geneva Conventions, concedes It'he Geneva Conventions are not specific to the point of listing whatever forms of interrogations are or are not permissible...
...In Eichmann's case, no one can believe that the Jews in any conceivable sense deserved their fate...
...Second, should one in fact be faced with such a situation, anyone who believes that torture is acceptable with a warrant would, I suspect, waive the requirement when time is truly of the essence...
...his legs are unsteady, and he has one sole desire: to sleep, to sleep just a little, not to get up, to lie, to rest, to forget...
...One cannot even imagine carrying out methodologically sophisticated tests except in a totalitarian society...
...A June 16, 2002, story in the New York Times, "There Are Ways to Make Them Talk," focuses on the way we already treat captured alleged terrorists or "enemy combatants...
...One virtue of this response is that it appears "tough-minded," unlike what some might deem merely "moralistic" arguments that we should adhere to the prohibition even if adherence imposes serious costs on innocent people...
...Can one admit that even the most absolute rules are made to be broken, at least on occasion, but nonetheless maintain as well that it is so important to express the absolutism, because of the values it implies, that any such breaking should take place out of public view (or the space occupied by public discussion...
...The Americans didn't accept physical torture...
...2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality...
...No doubt, many readers may think that I have betrayed the cause of human rights by indicating my respect for Dershowitz and the arguments he offers...
...And part of that responsibility, in effect, is to bear the opprobrium of a community that wants to believe itself unequivocally committed to the values that the politician is ready, in the community's genuine interests, to violate...
...CONSIDER THE comment of a Honduran torturer, Florencio Caballero, describing interrogation techniques he was taught by American military personnel at an army base in Texas and that he took back to Honduras: They taught us psychological methods—to study the fears and weaknesses of a prisoner...
...But this is an empirical question: what approach to torture, among those outlined above, best reduces or eliminates it actual occurrence...
...Henry Shue analyzed such arguments a quarter century ago and argued that "torture is . . . not analogous to the killing in battle of a healthy and well-armed foe...
...It is illuminating that Shue, even as he insisted that all acts of "torture ought to remain illegal," nonetheless added immediately that "anyone who sincerely believes such an act to be the least available evil" should be placed in the position of needing to justify his or her act morally in order to defend himself or herself legally . . . . Anyone who thinks an act of torture is justified should have no alternative but to convince a group of peers in a public trial that all necessary conditions for a morally permissible act were indeed satisfied . . . . If the situation approximates those in the imaginary examples in which torture seems possible to justify, a judge can surely be expected to suspend the sentence...
...Our very size and power may require that we limit our responses in a way that might not be true of smaller countries more "existentially" threatened by their enemies than the United States has yet been...
...Yet, he would presumably agree with an American official, with supervisory responsibility over suspected terrorists captured in Afghanistan, who was quoted as saying, "If you don't violate someone's human rights some of the time, you probably aren't doing your job...
...Justice Antonin Scalia has recently argued that a judge is sufficiently complicit in the act of capital punishment so that no judge who believes that capital punishment is immoral should remain on the bench in such cases...
...Given the gravity of the terrorist threat, vigorous questioning short of torture—prolonged interrogation, mild sleep deprivation, perhaps the use of truth serum—might be justified in some cases . . . . But there is a line which democracies cross at their peril: threatening or inflicting actual bodily harm...
...INSTEAD, I WOULD adopt some version of the view articulated by Michael Walzer in his essay "The Problem of Dirty Hands," (War and Moral Responsibility, op...
Vol. 50 • July 2003 • No. 3
