Torture's Terrible Toll

I don't mourn the loss of any terrorist's life. Nor do I care if in the course of serving their ignoble cause they suffer great harm. They have pledged their lives to the intentional destruction of innocent lives, and they have earned their terrible punishment in this life and the next. What I do mourn is what we lose when by official policy or official neglect we allow, confuse or encourage our soldiers to forget that best sense of ourselves, that which is our greatest strength--that we are different and better than our enemies, that we fight for an idea, not a tribe, not a land, not a king, not a twisted interpretation of an ancient religion, but for an idea that all men are created equal and endowed by their Creator with inalienable rights.

Now, in this war, our liberal notions are put to the test. Americans of good will, all patriots, argue about what is appropriate and necessary to combat this unconventional enemy. Those of us who feel that in this war, as in past wars, Americans should not compromise our values must answer those Americans who believe that a less rigorous application of those values is regrettably necessary to prevail over a uniquely abhorrent and dangerous enemy. Part of our disagreement is definitional. Some view more coercive interrogation tactics as something short of torture but worry that they might be subject to challenge under the "no cruel, inhumane or degrading" standard. Others, including me, believe that both the prohibition on torture and the cruel, inhumane and degrading standard must remain intact. When we relax that standard, it is nearly unavoidable that some objectionable practices will be allowed as something less than torture because they do not risk life and limb or do not cause very serious physical pain.

For instance, there has been considerable press attention to a tactic called "waterboarding," where a prisoner is restrained and blindfolded while an interrogator pours water on his face and into his mouth--causing the prisoner to believe he is being drowned. He isn't, of course; there is no intention to injure him physically. But if you gave people who have suffered abuse as prisoners a choice between a beating and a mock execution, many, including me, would choose a beating. The effects of most beatings heal. The memory of an execution will haunt someone for a very long time and damage his or her psyche in ways that may never heal. In my view, to make someone believe that you are killing him by drowning is no different than holding a pistol to his head and firing a blank. I believe that it is torture, very exquisite torture.

Those who argue the necessity of some abuses raise an important dilemma as their most compelling rationale: the ticking-time-bomb scenario. What do we do if we capture a terrorist who we have sound reasons to believe possesses specific knowledge of an imminent terrorist attack?

In such an urgent and rare instance, an interrogator might well try extreme measures to extract information that could save lives. Should he do so, and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation which he confronted. But I don't believe this scenario requires us to write into law an exception to our treaty and moral obligations that would permit cruel, inhumane and degrading treatment. To carve out legal exemptions to this basic principle of human rights risks opening the door to abuse as a matter of course, rather than a standard violated truly in extremis . It is far better to embrace a standard that might be violated in extraordinary circumstances than to lower our standards to accommodate a remote contingency, confusing personnel in the field and sending precisely the wrong message abroad about America's purposes and practices.

The state of Israel, no stranger to terrorist attacks, has faced this dilemma, and in 1999 the Israeli Supreme Court declared cruel, inhumane and degrading treatment illegal. "A democratic, freedom-loving society," the court wrote, "does not accept that investigators use any means for the purpose of uncovering truth. The rules pertaining to investigators are important to a democratic state. They reflect its character."