The editors at National Review urge us to stop and think about what we are doing in adopting the McCain amendment and its blanket ban on "torture." Here are some key paragraphs in their editorial:
So, what is torture? Under CAT and U.S. law, it is the infliction of "severe pain or suffering." Bush critics like to ignore the word "severe" and pretend that subjecting a detainee to any pain is torture. It is not. While most people instinctively know what they consider torture - fingernails pulled out, electric shocks, beatings - defining what rises to the level of cruel, inhuman, and degrading treatment is a trickier question. What, then, do McCain and his colleagues think of those methods that aren't included in the manual but don't necessarily constitute CID?
That's the key question. Given the way the debate is now playing out, if McCain's amendment becomes law it will be interpreted as banning almost every coercive interrogation technique. In dealing with captured terrorists, we will then be able to apply only methods formulated to deal with conventional soldiers in a different sort of conflict than the one that faces us now. This is folly.
The most constructive path forward would be for Congress to put aside legalisms and empty phrases and work its way through interrogation practices, starting with the least controversial. Is dietary manipulation "cruel"? Are cold rooms? Is sensory deprivation? Is being made to stand for hours? How about an "attention grab," i.e., shaking a detainee? Sleep deprivation? A belly slap? We think these methods would all pass muster in any rational debate, provided they are applied within reason (there is a difference between standing for two hours and twenty hours).
Then Congress could make its way to the most aggressive techniques, such as water-boarding, which simulates drowning. It has reportedly been effective in breaking high-level al Qaeda detainees within seconds, but is a practice with which most people would be uncomfortable. It is at least close to the line of what constitutes torture, and is certainly "cruel" in almost every circumstance.
But circumstances matter. Even some of the most fervent backers of McCain, including McCain himself, say we should torture someone in a ticking-bomb scenario, where saving a U.S. city depended on doing so. Such scenarios are unlikely in the extreme, but there are other exceptional cases that are more probable: for instance, the capture of a top-level al Qaeda operative who may have knowledge of a coming attack or know the whereabouts of Osama bin Laden.
To deal with such cases, the president should be able to sign a finding - on the model of a finding authorizing an assassination - to use an extraordinary method like water-boarding. The definition of CID depends on context. While water-boarding may be unacceptably cruel if applied to 69,990 of the roughly 70,000 people we've detained since the war on terror began, there are perhaps ten top-level captives in whose cases water-boarding doesn't "shock the conscience," to employ the phrase often used in defining CID. Requiring presidential authorization in these cases would ensure accountability while shielding from criminal exposure the agent charged with obtaining information that could save lives.
The use of water-boarding and stress positions, etc. is unacceptably cruel only if the measure is used for wicked ends, i.e. to punish, to amuse, to inflict suffering for the sake of suffering. This is what torture is throughout most of the world, and this is why it is evil. Harsh measures employed, however, to save lives and which cease the moment they are no longer necessary is in a completely different moral category. Indeed, to conflate them is to commit the fallacy known as undistributed middle: Because two acts share a common feature they are considered to be in all important moral respects the same. Thus the execution by the state of a serial killer is often claimed to be morally identical to the crimes committed by the killer because in both cases someone is being killed. This is silly, of course, but it is, unfortunately, a common error.
To be sure, we need to be more vigilant than we have been in preventing the use of cruel, inhuman and degrading practices, such as occured at Abu Ghraib, but we should not prohibit the use of what are called "harsh measures" altogether without defining precisely how it is we are constraining ourselves. We need to know exactly what we mean by words like "cruel", "inhuman", and "degrading" before we tell the world that we will not resort to them. Is it cruel or inhuman to deceive a terrorist into thinking he's going to die when in fact he's not? Is it degrading refuse to allow a detainee unsupervised lavatory privilege?
We must also allow for the use of extraordinary measures in extraordinary circumstances. To say that we would never, ever use a particular method of interrogation like water-boarding no matter what the exigencies might be, is both foolish and immoral. It is foolish because although the technique is terrifying it causes no real harm and it is immoral because it places a higher premium on the welfare of a murderer than it does on the lives of his victims.