Sunday, June 6, 2004

Is Torture Always Bad?

Question: A terrorist has planted a nuclear device somewhere in New York City (or Washington, D.C.). The terrorist has been apprehended and interrogated but will say only that the device will go off in 12 hours. It will kill at least several million people and destroy the economic hub of the United States. He will not say where it is. Should he be forced by whatever means necessary, including torture, to divulge the information? The scenario is frighteningly plausible, and the question is urgent. Under the current Geneva Accords torture is explicitly prohibited as a means of extracting information no matter how desperate the circumstances:

"This convention bans torture under all circumstances... In particular, it declares that no state of emergency, other external threats, nor orders from a superior officer or authority may be invoked to justify torture."
(See Part I Article I of UN Convention Against Torture).

We need a national discussion on whether the rules proscribing torture, drawn up in 1949 for a world which knew nothing of suitcase nuclear bombs or biological weapons, should be revised, and we need it soon. Next year may be too late. We need also to reexamine the definition of torture itself. 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..."

This definition seems to leave a lot of unanswered questions. Is the use of chemicals which cause no pain or suffering considered torture under this definition? What about sleep deprivation which, though it causes suffering, inflicts no permanent injury? Was what our soldiers did at Abu Ghraib torture? Should the army officer who threatened an Iraqi with his sidearm and then fired it beside his head to frighten him into revealing information about the location of roadside bombs have been dismissed from the service? His action saved the lives of his men and did no lasting injury to the prisoner. To be sure, it entailed some mental distress on the part of the terrorist suspect, but if imposing mental suffering constitutes torture shouldn't solitary confinement also be banned? Or, for that matter, why shouldn't forced confinement of any sort be proscribed? Surely such confinement causes serious mental anguish in many prisoners.

Of course torture should be prohibited as a means of punishment, as should any application of pain carried out for trivial reasons, but saving human life is orders of magnitude more serious than these. Exceptional cases require exceptions. The possibility for abuse is inherent in any exception, but the imperative of saving lives far outweighs, or should outweigh, the squeamishness we might feel at the prospect that someone might abuse those exceptions.

Alan Dershowitz, of all people, makes some important suggestions about the rules of warfare in general, and about torture in particular, in a column he wrote for the Baltimore Sun on May 28th. His key points:

First, democracies must be legally empowered to attack terrorists who hide among civilians, so long as proportional force is employed. Civilians who are killed while being used as human shields by terrorists must be deemed the victims of the terrorists who have chosen to hide among them, rather than those of the democracies who may have fired the fatal shot.

Second, a new category of prisoner should be recognized for captured terrorists and those who support them. They are not "prisoners of war," neither are they "ordinary criminals." They are suspected terrorists who operate outside the laws of war, and a new status should be designated for them - a status that affords them certain humanitarian rights, but does not treat them as traditional combatants.

Third, the law must come to realize that the traditional sharp line between combatants and civilians has been replaced by a continuum of civilian-ness. At the innocent end are those who do not support terrorism in any way. In the middle are those who applaud the terrorism, encourage it, but do not actively facilitate it. At the guilty end are those who help finance it, who make martyrs of the suicide bombers, who help the terrorists hide among them, and who fail to report imminent attacks of which they are aware. The law should recognize this continuum in dealing with those who are complicit, to some degree, in terrorism.

Fourth, the treaties against all forms of torture must begin to recognize differences in degree among varying forms of rough interrogation, ranging from trickery and humiliation, on the one hand, to lethal torture on the other. They must also recognize that any country faced with a ticking-time-bomb terrorist would resort to some forms of interrogation that are today prohibited by the treaty.

It's worth reading the whole thing.