Thinking About Not Thinking About Torture

Joseph Lelyveld: Interrogating Ourselves in The New York Times Magazine, June 12, 2005.

I approach this piece expecting to be irritated about it, and it ultimately didn't disappoint. Sure, that's partly a sign of the times: faux balance has decimated the foundation of what used to be called the "think piece". You can start with the cover, which asks, "Do all forms of intimidation constitute abuse?" and "Would you really be better off in a world where no interrogator ever bent the rules?" Such questions may be pertinent, but there's no ignoring the fact that they occupy the middle ground only after they tilt the table.

In the grand tradition of the faux balanced piece, Lelyveld begins by denouncing torture:

In order to get to the nub of the question of what we as citizens really expect and require of American interrogators facing supposed terrorists -- how far we're prepared to allow those asking the questions to venture into the dark realm of brutalization and coercion -- let's for argument's sake put aside the most horrific, shameful cases, those of detainees who died under interrogation: that of Manadel al-Jamadi, for instance, whose body was wrapped in plastic and packed in ice when it was carried out of an Abu Ghraib prison shower room a year and a half ago, where he'd been handcuffed to a wall; or Abed Hamed Mowhoush, who, elsewhere in Iraq, appears to have been thrust headfirst into a sleeping bag, manhandled there and then, finally, suffocated. By anyone's definition of torture -- even that of the Bush administration, which originally propounded (and later withdrew) a strikingly narrow definition holding that torture occurs only when the pain is ''of an intensity akin to that which accompanies serious physical injury such as death or organ failure'' -- these cases answer the question of whether torture has been committed by our side in what's called the global war on terror. No one steps forward to condone what's plainly illegal under United States and international law.

No one? Really? Just because no one in the administration or the military is willing to come forward and condone overtly illegal acts it doesn't mean no one does. Eugene Volokh rather famously expressed his admiration for public flogging and his wish we'd adopt it in the US, a position he later retracted, but not before Glen Reynolds clucked approvingly. That's two law professors and bloggers of influence. We can find a lot worse with a casual search of LGF, just as it's easy enough to find denunciations of torture followed by "on the other hand..." I'm sure I've subjected myself to more extremist ranting than Mr. Lelyveld has. More power to him. But that's also the reason why I'm no longer hoodwinked by the disclaimer.

Now, let me admit that following this Lelyveld uses most of his 8000 words to examine claims of the efficacy of torture and techniques he distinguishes as "torture lite". He will conclude early on that the case for torture "remains shaky even by the most amoral and pragmatic standard." He will use the 1999 Israeli Supreme Court decision which declared not just torture but all forms of "cruel, inhuman, and degrading treatment" illegal under Israeli law. He will suggest that that decision, while it may not always be followed strictly to the letter, has brought about a genuine change in their interrogation practices without diminishing their effectiveness.

Fair enough, I suppose. But we also get this dismissal of the idea that the United States, of all nations, ought to expressly disavow any such coercive practices as contrary to its principles:

For the same reasons, civil libertarians of all stripes -- those who would extend constitutional rights and the protections of international law to foreign detainees wherever they're held -- don't get much traction because they have no ready answer to the question of how this would make Americans safer. Specifically, they mostly don't say what kind of interrogation they would conduct, under what rules, if they were charged with preventing the next terrorist attack. Would they, for example, give presumed Al Qaeda terrorists Miranda warnings in Arabic about their rights to a lawyer and to remain silent?

So, just as "no one" condones the use of torture, no justification of a strict commitment to international law and human decency has managed to answer a strawman argument. Thus the sane observer straddles the fence--we've got to allow ourselves room to make Americans safer, even if there's no justification for claiming that torture would do so. This is the familiar, and ugly, face of faux balance--unreasonable, absolutist idealism vs. a somewhat ugly pragmatism which is undertaken mostly in sorrow because we exempted its worst abuses in the first paragraph.

But just as the case for torture doesn't need--or benefit from--an 8000 word examination of its effectiveness, the case for an absolutist disavowal of coercive interrogation does not require a blueprint or money-back guarantee of "safety". Both positions have their idealist side and both can lay claim to pragmatism. In the case of civil libertarianism it is that--stripped of the nonsensical idea that we'd be forced to treat enemies in wartime the way we treat suspected shoplifters at home--scrupulous adherence to international law and norms of humanity are the only way we will assure our safety in the future, if we are able to do so. Use of torture offers no guarantees of safety; it simply has adherents who will justify it with such. George Bernard Shaw once noted that hanging the wrong man will deter crime as surely as hanging the right one, but torturing forty innocents will not produce any useable intelligence, though it may produce forty new enemies. This is not an arcane argument, and there's no reason for it to be lost on Mr. Lelyveld.

Someone recently remarked that what the Nixon administration did it private the current one feels free to do in bright sunshine. There's no way to take a realistic look at the exceptions to our moral objection to torture without looking at the sum total of our moral pronouncements to the rest of the world. We have both practiced and condoned the torture in Vietnam, the Philippines, the Middle East, South and Central America, and in every case we had "compelling" reasons to justify its use. In every instance the temporal advantage became a long-term liability. We have squandered the moral argument to the point where we now believe we need only talk to ourselves, where American exceptionalism is no longer a product of exemplary behavior, but an excuse for its easy dismissal.