Towards a Definition of Torture (and America)
By Fredric Smoler
“An innocent's life is at stake. The bad guy you have captured possesses information that could save this life. He refuses to divulge. In such a case, the choice is easy.” Charles Krauthammer, The Washington Post, May 1, 2009.
When my friends were going to law school in the early 1970s, I heard and on one occasion read about a striking piece of professorial bullying: the professor would ask a 1L whether he or she thought torture unacceptable under all circumstances, and the student would predictably assure the professor that he or she certainly did. Then, in what was often reported as an exuberant, even gleeful tone, the professor would unfold the hypothetical: the nuclear weapon concealed somewhere downtown, the timer ticking away, the terrorist who alone knows the location of the concealed device in police custody, and notoriously sensitive to very low voltages—what were we then obliged to do? What advice would the student offer?
It was the hypothetical nowadays known as the ticking bomb, the one that appears in pretty much every episode of 24 (where torture is as infallible as it is ubiquitous), and it exercises a remarkable recurring fascination on apologists for torture. Forty years ago, the students never seemed to have had a good answer, and the professor effortlessly scored whatever point had been at issue—perhaps that the law often involves balancing tests, and that absolutist ethics are not for grownups. The anecdotes, which had a pretty clear Cold War as well as post-colonial context—torture had been used in Algeria, and had recently returned to the Greece of the Colonels, after having made a striking appearance in post-Goulart Brazil, also other places in Latin America, and in South Vietnam. The ticking bomb hypothetical anticipated two trends visible in much recent polemical writing about torture: some of the interlocutors were having much too good a time, and the ticking bomb was a substitute for thought as often as it was a spur to thought.
I remember finding the stories of the swiftly crumbling absolutism of the 1Ls irritating, and wondered why the students didn’t offer equally aggressive counter-hypotheticals: what if the terrorist is peculiarly sensitive to the protracted rape, torture and murder of baby girls, but only when done not by anonymous CIA contractors, but by tenured professors of law? What if the serial slow and agonizing murder of a mere fifty female toddlers would do it, to save the teeming population of Spokane? What would the professor then advise? What if the terrorist is sentimental about Paris and Lyon, and upon the nuclear destruction of one of them will give up the location of the bombs concealed in more populous Shanghai and Canton? This was, of course, a species of l'esprit de l'escalier; I hadn’t had to face the apparently irresistible bullying sophistries of law professors, and could never be sure how I’d have behaved on the spot. Also, in framing the counter-hypothetical I was having a bit too much fun myself, not least because the problem the hypothetical tried to address was not quite so easily banished. As it happens, the counter-hypothetical, which I had thought a reductio ad adsurdum to be deployed against vulgar utilitarianism, was unwittingly apposite: it combined techniques then employed, or soon to be employed, by actual regimes. Pinochet’s interrogators flogged toddlers in front of the young mothers they were interrogating, and Saddam’s interrogators showed films of women raped by regime interrogators to husbands, siblings and parents.
The continuing fascination with the ticking bomb scenario remains remarkable, because it is not clear that a ticking bomb scenario on such a scale—and to achieve the rhetorical effect, scale matters--has ever occurred on American soil, nor a ticking nuclear nor massively lethal WMD of a more exotic kind, radiological, chemical or biological, on anyone’s soil. Yet the apologists still wheel out that ticking bomb, every time; they seem less interested in finding an improbable nuclear bomb than in first setting a precedent, then extending it very far indeed. The elements of the original hypothetical were carefully chosen: low voltage, and a weapon capable of killing hundreds of thousands, perhaps millions. It is probably a moral and rhetorical mistake to say that you will never countenance anything that can be called torture under any circumstances, because that move keeps the ticking bomb crowd very confidently in the game, and risks eroding the will of some reasonable people to outlaw the torture that has actually happened, where exponentially fewer lives have been at stake. Note that the ticking bomb scenario is no longer the same one deployed in the palmy days of law professors who had seen The Paper Chase one time to many: last week Charles Krauthammer thought torture the only moral choice when a) any bomb is ticking, not just a WMD and b) “the extraction of information from a high-value enemy in possession of high-value information likely to save lives.” That last one is a large and ominously imprecise category: can we therefore torture a commander of Iraqi irregulars to locate the likely but not inevitable snipers’ posts in Falluja? That implied calculus is a version of where the German Army wound up in its last couple of world wars, and where the Israelis and the Americans are at least accused of being now. Minimizing your own military casualties is always a laudable goal, but the slope is very notoriously slippery.
It is worth working out why most of us are unwilling to countenance certain things in war, or in counterinsurgency campaigns. If we are not part of the ticking bomb crowd we nowadays tend to say, very quickly, that torture does not and cannot work, because the tortured will say not the truth but rather whatever brings a relief from pain; we insist that “enhanced interrogation” saved no lives, or very few, or none that we can prove were so saved. But that argument implies that if it can be shown that torture, or “enhanced interrogation”, does sometimes work, our objection will significantly weaken, and the relevant history shows that torture’s effectiveness can sometimes be demonstrated. Many cells of the French resistance asked members to try to hold out for twenty-four hours, the theory being that a day’s notice would let others go to ground, and that asking for more than twenty-hour hours was to ask the improbable. French torturers themselves managed to roll to up a number of FLN cells in Algiers—where there really were ticking bombs—through effective use of torture, so a good argument against torture has to work even if torture itself sometimes also works.
The ticking bomb hypothetical seeks to overcome a now centuries-old inhibition and intuition, because as acts of state violence go torture almost uniquely disgusts us, but it is worth thinking about why torture so horrifies most of us even if we suspect that it does often work. The answer may not be immediately obvious, because people who can pretty confidently justify the Hiroshima bomb and the Hamburg firestorm, in each of which tens of thousands of innocent civilians died, are at least strongly tempted to draw the line at torture, where in theory only one very possibly guilty man suffers. Looking into the darkest corners of one’s heart, probable guilt does seem to matter--how many object every bit as strenuously to the first hundred waterboardings of the man who planned 9/11, with the blood of thousands of innocents on his hands, as he does to the torture of wholly innocent people swept up in the fall of the Taleban? Still, guilt does not decide the case, for few are willing to make protracted torture the legal punishment for mass murder. But why does torture disgust more of us than area bombing does? At a very tentative guess, this is our Enlightenment legacy much reinforced by the Second World War and its aftermath: we had proudly abolished torture in most of the West, the Nazis brought it back, indeed sometimes gloried in it, and torture became a synechdoche for the whole of the Nazi anti-Enlightenment project, as well as for the grossest perversion of the Enlightenment project, when the Lubyanka became a synechdoche for Stalinism. We further associate torture with what we took to be the most vicious Cold War satrapies—North Korea, Argentina—and with the Mukhabarat states of the Middle East, and with Iran, both the Savak and its Islamist successors. If you grew up hearing about the Gestapo and spent your politically formative years reading the reports from Amnesty International, torture seemed the greatest evil, peculiarly shameful when supported or ignored by one’s own government. Torture was the bright line. In a related way, the glories of the WWII partisan war made it hard to object too strenuously to post-WWII terrorists who pretended to be the French Resistance, and who also pretended that their enemies were the Gestapo—for after all, in that greatest of moral dramas, some of the best fought had without uniforms, and their enemies, the worst of men, had tortured them.
But if detesting every conceivable instance of torture more than the firebombing of Hamburg is not necessarily logical, the loathing of torture is, for most of us, extremely vivid. Many people who had supported the Iraq War wavered when the photos of Abu Ghraib came out; had we gone on to lose that war, rather than see its outcome again in doubt, my guess is that Abu Ghraib would have explained much of that result. It is important to distinguish what a decision to refrain from “enhanced interrogation” will probably achieve from what it will almost certainly not achieve: when we are told that the use of torture exposes American troops to torture in turn, someone is being economical with the truth. It is fatuous to think that Americans were tortured by Japanese or North Koreans (or North Vietnamese) or Lebanese only because Americans had acted similarly, and first. Our restraint will nonetheless achieve something precious: it will let more of us feel that we stand for an order more obviously and indisputably worth defending, which is no trivial gain.
It is also worth deciding what, exactly, we should vow never to do, or at least never to boast of being willing to do. For example, it was never reasonable to debate whether waterboarding was torture, and a very little familiarity with our more recent history would have shown as much. Although we had ourselves used a version of the technique in the Philippines early in the 20th C., by 1947 the United States had convicted and imprisoned a Japanese officer, Yukio Asano, for abuses of an American civilian that included a version of waterboarding, and we included charges of what would now be called waterboarding in other cases against Japanese accused of torture. The United Kingdom executed Japanese who carried out versions of waterboarding during World War II, and Norway tried Germans for similar activities. The State Department has condemned variants of the practice when it has been carried out by foreign governments, and we condemned its use against American POWs by the North Koreans and North Vietnamese. The people in the Bush Administration who claimed that waterboarding was not torture seem to have been either grossly dishonest or peculiarly incompetent.
On the other hand, abiding by the letter of many current interpretations of our legal obligations about torture may be harder to reconcile with historical practice which we did not then and may not now condemn. The United Nations Convention Against Torture’s definition of torture includes inflicting any severe mental suffering for the purpose of obtaining information, which gives the lie to those repeated assurances that with their backs to the wall in 1940, Great Britain nonetheless shunned torture. In 1940 Great Britain staged mock executions of Abwehr and SD agents to encourage other captured agents to give up information, which they did, and to significant effect. Many UN Treaty interpreters, especially those from recently non-belligerent states, consider such a practice torture. Nominal specialists may well interpret the United Nations Convention Against Torture in ways we find at best peculiarly and destructively limiting, and we will probably have to choose between allowing people who have little imagination of and perhaps less sympathy for our predicament to dictate our tactics, or pursuing a now-very-easily-mocked unilateralism. We might do best to attend most closely to the experience of people who have long been in a situation more closely resembling the one in which we may long be mired. So the Israelis bear watching, and in the last few year the Israeli high court, which exists in a society that does face ticking bombs, has moved against interrogation by means of what the Israelis called “moderate physical pressure,” including stress positions, one of the techniques American interrogators used through 2005. The Israeli legal decision still allows interrogators the theoretical defense of necessity, but the burden of proof is on the interrogator.
That said, did the Bush Administration uniquely degrade us by the fashion in which it made war? Before agreeing too quickly, it may be worth looking hard at what we thought acceptable in the 1940s, when we agreed on how high the stakes were. That earlier generation attacked civilian populations on a pretty grand scale, and our current willingness to kill civilians is significantly less than that shown by our immediate ancestors. We certainly seem to treat most Americans of Middle Eastern origin better than we once treated almost all Americans of Japanese origin (or than we treated some Americans of German origin in 1917 and 1918), and we accord infinitely more liberties to citizens who in the 20th C. might well have been considered enemy Fifth Columnists. When we caught enemy combatants out of uniform in our previous wars, we often simply executed them.
How about killing prisoners who surrendered in uniform? We did it more often during the Second World War than we do it now. We did it against enemies who had shown themselves likely to perfidiously feign surrender—the Japanese—and we did it in reprisal against German troops. What about torture? A friend writing a history of the Battle of the Atlantic recently told me about what he was pretty sure had been the torture of a German U-boat commander taken prisoner in the Battle of the Atlantic. I am not sure how often American troops tortured prisoners during World War II, and I suspect it was fairly rare—but I do know that American interrogators tried to beat confessions out of the men accused of committing the Malmedy Massacre after the war was over, and I have seen similar allegations about similar events. What about other treatment of prisoners that fell short of torture but was not by our modern standards exemplary? As I wrote in First of the Month in 2005, I once met a former GI who had helped stop the First SS Panzer Division in the snows of Belgium, and recollected taking a prisoner, a 17-year-old boy. A Dutch interrogator slapped the boy, stuck a pistol in his eye, and barked out a question, and the boy spat in the Dutchman’s face. The American infantrymen all froze, and then the Dutchman slapped the boy again, knocking him to the ground, and, thankfully, that was the end of it, but it seemed clear that had the interrogator shot the German boy, few would have been absolutely astonished, perhaps because the First SS Panzer division had very recently committed a significant number of massacres in the Ardennes. But even without that possibly-extenuating history, was that slap, and that death threat, torture? By the terms of the UN Convention, the pistol in the eye probably was, but conflating the action with an Argentine interrogator using a blowtorch, or an Iraqi interrogator using a video camera and a rape couch, or a German using a dentist’s drill, may not be the most sensible way to frame some urgent questions.
Those questions include the relationship between what we have just done (the methods euphemized as “enhanced interrogation”) and what we rightfully abominate as torture, and how we should now think about ourselves in the light of what we have done. We may want to make some distinctions and abolish others, among the latter the distinction a few Justice Department lawyers invented between an act we prosecuted when it was done to our own, and the legality of that act when we inflicted it on others. An admittedly disquieting distinction we might insist upon is the one those same Justice Department lawyers attempted: between ugly, harsh and degrading treatment, and torture. We need this distinction not only because common sense requires it—after all, enhanced interrogation included slaps and loud noises—but because we ought to maintain a rational estimate of our moral worth in comparison to that of our adversaries; a society that does not think itself worth defending is at a marked disadvantage in a protracted contest with startlingly cruel and committed enemies. This is all the more important because a crucial distinction eroded between 2002 and 2005. Fairly estimating how much it eroded matters, and saying that there is now no moral difference between ourselves and our enemies remains contemptible, either very stupid or very dishonest, which is to say, on a par with the reasoning of those Justice Department lawyers who claimed that water-boarding wasn’t torture.
From May, 2009
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