But sometimes the cold realities of the world we live in today pierce clear and indisputable holes through even those most perfect absolutes of the philosophical and the abstract. In such circumstances the crystal clear sky we create in our reasoned rumination quickly becomes beset by little gray clouds produced by the ubiquitous problems inherent within human civilization. What was decided with certainty in our classrooms, lecture halls, parlors, dining rooms, institutions of government, books, and editorial pages is no longer so.
Torture is such an issue. Western civilization as a whole, but the United States specifically and most prominently, faces an existential threat from Extremist Islamic terrorism. This terrorism seeks to kill as many innocent lives as possible, to inflict as much physical destruction as possible, and to incubate maximum suffering. Its barbaric intents and effects are of the same nature as torture, and in fact it is nothing more than torture on a much larger and more horrific scale. That those who endeavor to perpetrate it have no regard for their own life in the pursuit, and seem to glorify their own death, presents a unique and daunting challenge to any society who must protect themselves from it.
It is this context and reality that serves as a thick, gray cloud challenging and, in my view, refuting the philosophical and abstract certainties we have reached as a society regarding torture.
Do not misunderstand me. I by no means assert that torture is generally an acceptable form of interrogation. With most of those unlawful illegal combatants we capture on the battlefield and in the preponderance of situations torture is not and should not be an option. Period. But to create a blanket, absolute ban on torture no matter the circumstances and the implications could ultimately result in the loss of innocent life, possibly on a massive scale. As the columnist Charles Krauthammer has pointed out, "However rare the cases, there are circumstances in which, by any rational moral calculus, torture not only would be permissible but would be required (to acquire life-saving information)."1
These rare instances would entail an imminent atrocity. We have all heard the hypothetical, or some variation of it. A weapon of mass destruction has been planted in a major American city and in a short period of time it will be detonated. A terrorist with knowledge of the bomb—where it will be detonated, who will detonate it, when it will be detonated—is incarcerated at the American military base at Guantanamo Bay, Cuba. He is not talking, and has no intention of doing so. None of the legal, acceptable, and humane interrogation techniques are working, nor will work. The weapon could be detonated at any minute. Whole streets stand in impending danger of being destroyed. Millions of dollars stand to be lost. Worst of all, thousands of innocent people, simply going about in the routine of their daily lives, are likely to be killed or maimed. Their deaths will have a devastating effect on the secondary victims of the attack as well, the friends and family members of those lost.
You are responsible for interrogating the incarcerated terrorist who possesses the information that can prevent all of this. What do you do?
In circumstances such as these, can we truly say, in good conscience, that torture is always impermissible? Does this not confirm that, though it is morally impermissible most of the time, it is not so all of the time. If that interrogator can ascertain needed life-saving intelligence from the obstinate terrorist through torture, should he not do so? Can it possibly be morally repugnant to torture a terrorist with knowledge when doing so can help save innocent human life?
I cannot hold that it is. And I think that most people, confronted with this same scenario, would so concur. Only one with a naive and misbegotten moral and ethical code could find that torturing a terrorist—actively involved in plots to reap mass destruction upon innocent peoples—to save innocent life is morally wrong. In such a situation, to not do everything possible to save those lives would be the moral wrong, not torture.
The true question society must debate and resolve is not whether torture is permissible in these rarest of circumstances, but under which circumstances it is. Given the obviously cruel nature of it—or as Mr. Krauthammer has termed it, "the monstrous evil that is any form of torture"—and its oppressively heavy moral implications, those circumstances must be strictly defined and strictly enforced.
The "monstrous evil" that torture represents logically mandates that it be employed only in the most dire and impending circumstances. It must be a last resort, used only after all other available means have been attempted and have failed. To be justified, torture must be the only possible method through which an impending act of terror may be thwarted through the collection of the requisite intelligence. Essentially, there has to be a ticking time bomb, not one with a short fuse; and all other means must have been tried. Torture is only to be the last, desperate attempt.
Just as important in deciding which circumstances torture is to be prescribed under is specifying who in the chain of command has the ultimate authority to make that decision. It should not be those directly responsible for the interrogation. If given this discretion, there would be no real opportunity for oversight over the process by America’s elected officials, those who are directly accountable to the American people. Accordingly, the very top of the chain of American government—the President of the United States—should be the lone American official capable of making such a decision. It might also be wise to craft a provision which would mandate that a congressional committee—likely the Intelligence committee—be apprised in a classified basis of the situation, either prior to authorization or post facto.
No doubt most presidents and public officials would likely be uncomfortable with such a singular and oppressively solemn responsibility. But, quoting from Mr. Krauthammer once more, these officials are "responsible above all for the protection of their citizens, [and] have the obligation to tolerate their own sleepless nights by doing what is necessary—and only what is necessary, nothing more—to get information that could prevent mass murder." Besides, I would assume that a president would rather endure a sleepless night over having to authorize torture than endure one following a terrorist act which may have been prevented through torture.
In cases where the bomb is ticking to the extent that there is no time for an appeal to the president, I would adopt Krauthammer’s provision that an interrogator be provided the authority to act on their own with a mandatory post facto review by an independent body to follow within the next twenty-four to forty-eight hours. Granted, with the specter of a possible review and sanction looming over them an interrogator may decline to act in an attempt to cover themselves from any possible prosecution in the future, even where torture is self-evidently justified and required. This prospect however, is outweighed by the protection against abuse provided by the post facto review.
Those who would actually be charged with executing the torture must be highly trained and thoroughly screened and vetted. It is an absolute necessity that they be the elite of the elite in American intelligence. They have to be competent to handle the obvious stress and pressure of torturing an individual. They must be of the soundest mind.
As a means of review, there should be more than one of the qualified interrogators present.
Any American intelligence officer who does torture an individual without authorization must be prosecuted and punished to the full extent of the law. This might be the most important provision we can craft on the issue. There are few crimes greater and more heinous than torture, and the sanction for its violation should be commensurate to that fact. Without such a penalty, we would forfeit many of the benefits and protections of the provisions I outlined above.
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All of this is certainly an unpleasant conversation to have and a rather obnoxious question to decide. And some may seek to avoid it by simply clinging to the notion that torture is ineffective anyway. This would obviously be an easy resolution to the moral crisis the topic presents, but it does not seem to be true. There are documented incidents of torture actually being effective.
Those who would still refuse to condone torture under any circumstance, despite all of the above, are certainly admirable in their intent. He who refuses to harm another human being no matter the circumstance or effect is certainly a saint among us. But this does not change the fact that such a stance is grossly naive and self-paralyzing if adopted by a besieged society as a whole. Sometimes torture is the lesser of two evils. If we decline to defend ourselves, and adopt the necessary means in defending ourselves, we inexorably decline to protect innocent life. Quoting from Mr. Krauthammer one last time, "One should be grateful for the saintly among us. And one should be vigilant that they not get to make the decisions upon which the lives of others depend."
Moreover, I do not see how one can assert that we should always be compelled to treat an individual humanely when doing so will allow that individual and his ilk to perpetrate the most inhumane, barbaric acts on scores of innocent individuals. It would be too tragically ironic if an act of senseless murder was allowed to be carried out on a mass scale because we were unwilling to adopt some unusually terrible measures with one or a couple of the perpetrators to prevent it. If the choice is forced upon us how can we as a society stand idle and allow scores of innocents to fall prey to unspeakable barbarities instead of enacting some barbaric measure with individuals who are not at all innocent to prevent it? In such circumstances, I think it is clear what we must do, as odious as it may be.
We all wish that the bitter realities of our world would never put us in this position. But we do not live in such a world. In this age of terrorism, torture may be a necessary evil to be utilized—in the most limited, strictly defined and enforced circumstances possible—to save the lives of countless innocents. Sometimes in the most severe of instances the act of torture is the most moral thing to do; when, that is, the only other option is to remain idle as an act of bloody savagery is perpetrated.
Our society’s absolute objection to rendition in all circumstances in the philosophical and abstract—noble as it is—does not stand up to the occasional realities of the world we inhabit.
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1. Charles Krauthammer, The Truth about Torture, The Weekly Standard, December 5, 2005, at 21.
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