May 17, 2007

The Problem of Torture

In the most recent Republican debate, there was an interesting exchange between the three leading candidates concerning the issue of torture. The hypothetical question was placed to the candidates that there had been suicide bombings in the U.S., and a fourth suicide bomber had been caught, and was believed to have information about more attacks to come in the near future. What, if in the Oval Office, would each of these candidates instruct their subordinates to do?

John McCain: If I knew for sure that they had that kind of information, I, as the president of the United States, would take that responsibility. That is a million-to-one scenario. But only I would take that responsibility. The use of torture -- we could never gain as much we would gain from that torture as we lose in world opinion. We do not torture people. When I was in Vietnam, one of the things that sustained us, as we went -- underwent torture ourselves, is the knowledge that if we had our positions reversed and we were the captors, we would not impose that kind of treatment on them. It's not about the terrorists, it's about us. It's about what kind of country we are. And a fact: The more physical pain you inflict on someone, the more they're going to tell you what they think you want to know. It's about us as a nation. We have procedures for interrogation in the Army Field Manual. Those, I think, would be adequate in 999,999 of cases, and I think that if we agree to torture people, we will do ourselves great harm in the world.

Rudy Giuliani: In the hypothetical that you gave me, which assumes that we know there's going to be another attack and these people know about it, I would tell the people who had to do the interrogation to use every method they could think of. It shouldn't be torture, but every method they can think of --[Q: "Water-boarding?"] -- and I would -- and I would -- well, I'd say every method they could think of, and I would support them in doing that because I've seen what -- (interrupted by applause) -- I've seen what can happen when you make a mistake about this, and I don't want to see another 3,000 people dead in New York or any place else.

Mitt Romney: Yeah, first of all, let's make sure that we understand that the key in electing the next president is to find somebody who will make sure that that scenario doesn't ever happen, and the key to that is prevention. We've all spent a lot of time talking about what happens after the bomb goes off. The real question is, how do you prevent the bomb from going off? And that's what I spent my time doing as a governor over the last four years, and serving on the Homeland Security Advisory Council. And that means intelligence and counterterrorism. Now we're going to -- you said the person's going to be in Guantanamo. I'm glad they're at Guantanamo. I don't want them on our soil. I want them on Guantanamo, where they don't get the access to lawyers they get when they're on our soil. I don't want them in our prisons. I want them there. Some people have said, we ought to close Guantanamo. My view is, we ought to double Guantanamo. We ought to make sure that the terrorists -- (applause) -- and there's no question but that in a setting like that where you have a ticking bomb that the president of the United States -- not the CIA interrogator, the president of the United States -- has to make the call. And enhanced interrogation techniques have to be used -- not torture but enhanced interrogation techniques, yes.

I hope the Democrats get asked similar kinds of questions in their upcoming debates. The question is really unfair to the person who has to answer it.

No one sane has ever suggested that we simply turn terrorists loose or that we should not try to get all the information we can out of them. I for one expect the government to do all that is within its power to protect me and my fellow Americans from the bad guys, which includes hunting down and killing said bad guys. And all three of these candidates are clearly in strong agreement with those sentiments. (In point of fairness, I don't doubt that even the Democrats would agree, at least in principle, with those ideas.)

But when the question becomes one of "torture," the ethical waters start to get muddy, very quickly. Because in emphasis, if not necessarily in actual policy, Senator McCain has two extremely good points. The first is moral -- we are simply not the kind of a people who should, can, or do condone actual torture. The second is practical -- we cannot rely on the evidence that would be obtained through torture, especially given a short time frame in which to use that information.

Now, let's think about what torture is. The Geneva Convention defines torture as:

...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 or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

U.S. law defines torture similarly, as "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."

Right away you can see a problem. How to tell whether "severe" pain or suffering is being inflicted, or the kind of pain and suffering "incidental to lawful sanctions"? The Geneva Conventions don't offer much guidance, but our own law purports to offer a definition of "severe mental pain or suffering" as the mental effects of:

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) 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;
(C) the threat of imminent death; or
(D) 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.

Is water-boarding torture under this definition? Yes, I don't think there's serious doubt about that. (Why the focus on water-boarding as opposed to anything else a captor might do to a prisoner, I don't particularly know.)

Did Hizzoner endorse water-boarding? Well, not exactly; Giuliani failed to specifically condemn it but he did say whatever was being done to question the suspect should not cross the line into torture. Did McCain specifically condemn it? Actually, no; he referred to the Army Field Manual, which was recently amended to prohibit water-boarding. What about Romney? He actually didn't answer the question about torture at all; instead he made gratuitous condemnations of basic civil liberties in the context of questioning captured terrorists. Romney also endorsed "enhanced interrogation techniques" but failed to parse out how "enhanced interrogation techniques" are different than "torture."

At the end of the day, my lawyer's training tells me the question is one of whether a prisoner's sensations are of "severe pain" or "incidental discomfort." And it's not a quantum jump from one to the other; it's a continuum, with no readily-identifiable benchmark along the way to say, "This far and no farther." And to make things more complex, as we all know, different individuals have different tolerances for pain -- some people can tolerate having their teeth drilled by the dentist with no anesthetic. (That's not me, by the way; I'm a dental wimp.) But even for such people, a Marathon-Man style interrogation session would obviously be torture.

The real problem is that such a question causes us to confront the basic moral schism of modern society: utilitarianism versus deontology. No person who claimed to be following anything close to the Golden Rule would condone torture, ever, under any circumstances. But no person sensitive to the plight of thousands, maybe even hundreds of thousands, would shrink from doing whatever was necessary to prevent their harm. So the real problem with torture as an ethical and legal question is that it makes us confront a place where our ethical system rests on opposing foundations.

No universally morally acceptable answer to the question can be given. The question is a trap, a variant of the ethical game "Do good ends justify bad means?"

One way out of the trap is to deny that our prisoners are human beings. This we should be unwilling to do, for the reasons Senator McCain points out. Another way out of the trap is to try to define with greater precision what does or does not cross the line into the intentional infliction of "severe" pain. I think that was where Mayor Giuliani was starting to go, but time and political constraints prohibited any kind of a detailed or thoughtful analysis that is meaningful in any way. But playing semantic games and engaging in misdirection, like Governor Romney did, is not helpful at all -- that doesn't address the conundrum.

But the real way out of the trap is to point out that the game is rigged -- and falsely. Torturing our prisoners is a bad idea because it won't really save any lives. We need not confront whether torture is a useful but ethically repugnant thing to do because it really isn't all that useful for getting reliable information in the first place. If it doesn't really give us good, reliable information, then we aren't really going to save any lives by doing it.

So I think McCain took the high road here, to his credit. Giuliani was going down that road but probably hasn't thought about that angle as deeply as McCain -- which makes sense, given that McCain was personally the victim of torture during wartime, and Giuliani was at Ground Zero feeling the effects of a failure of intelligence to prevent a disaster. Romney offended me by sneering at civil rights; there is no reason to think that we could not afford basic due process to any terrorist prisoner, in an appropriately secure criminal forum, without compromising national security. Romney has made a false choice between liberty and security -- and he didn't even have to make it to answer the question.

And I also think that the choice between utilitarian and deontological ethical imperatives here is a false one, too. While it turns out that torture is not so easy to define, we are right to shy away from it even in extreme circumstances.

UPDATE (5/22/07): Matt Yglesias offers a surprisingly powerful definition of torture: If the KGB did it to extract false confessions, it's torture. He also points out that the association of torture with authoritarian regimes is more than a mere correlation; while this ought to be obvious, it's good to be reminded of that fact.


Paul Champagne said...

Is water-boarding torture? As a former infantryman I would say no. Discomfort and fear are not the same as pain. In the definitions you provided, most of the things done to me in basic training would have been considered torture.

Transplanted Lawyer said...

Thanks for your comment, Paul!

Isn't the point of waterboarding to make the subject believe he is going to be drowned? If so, it seems to me that it falls within the scope of 18 USC § 2340(2)(C).