Our law reflects that sentiment. Title X, §1003 of the Detainee Treatment Act of 2005 mandates that "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment."1 That is clear as glass. No individual detained by the United States of America can be tortured by any official or officer of the United States of America in any place, at any time, under any circumstances.
But there is a problem with this, or at least an issue that the text of the statute does not address. Senator John McCain, one of the chief sponsors and proponents of the Act, raised it in an essay for Newsweek in 2005. While torture is unquestionably awful, "[w]hat do we do if we capture a terrorist who we have sounds reasons to believe possesses specific knowledge of an imminent terrorist attack?"2 Is it possible that it would be morally justifiable to torture that terrorist if it allows us to thwart that terrorist attack? At the very least, this conundrum challenges the legal and moral absolute our republic has constructed regarding torture in the form of the Detainee Treatment Act.
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. 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 in these circumstances that we are compelled to revisit and reconsider the question of torture and the policy we have created regarding it. I argue that the Detainee Treatment Act’s absolute proscription of torture, though generally prudent and admirable, is overly and unnecessarily broad. We should proscribe torture generally, but not in all circumstances.
It is certainly hard to disagree with Andrew Sullivan: "By endorsing torture–on anyone, anywhere, for any reason–we obliterate the very values we are trying to promote."3 But is it not possible that in extreme circumstances torture might be the lesser evil? That is, if the other evil is the death of scores of innocent lives in a terrorist attack? 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)."4
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.
In circumstances such as these, can we truly say, in good conscience, that torture is always impermissible, as we do in the Detainee Treatment Act of 2005? 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. In such a situation, to not do everything possible to save those lives, in my view, would be the immoral wrong, not torture.
The question we must debate and resolve is not only whether torture is permissible in extremely rare circumstances, but also what circumstances those are.
Given the obviously cruel nature of it—or as Mr. Krauthammer has termed it, "the monstrous evil that is any form of torture"5—and its oppressively heavy moral implications, those circumstances must be strictly defined and strictly enforced.
I would limit torture to be only permissible in "ticking time bomb" scenarios. Granted, it is hard to give an exact definition for what circumstances would qualify as such a scenario. However I would adopt the formula crafted by the supreme court of Israel, as described by Harvard Law professor Alan Dershowitz. Torture may be defensible "if an interrogator honestly and reasonably believe[s] that the only way to prevent an attack was to apply moderate physical pressure."6
I am not advocating a lethal form of torture in such circumstances, for such would defeat the purpose of torturing the individual in the first place, which is to compel him to divulge intelligence that would allow the U.S. to prevent a terrorist attack and save innocent life.
The "moderate physical pressure" spoken of by the Israel court also seems vague and open to interpretation, manipulation and abuse to me. What I mean by torture permissible in these circumstances are procedures such as waterboarding, sleep deprivation, climate and conditional manipulation, injection of truth serum, etc. Non-lethal practices, but ones which place the detainee in a state of pronounced duress.
But to reiterate, these would only be justifiable in the scenario quoted above. The attack has to be impending, beyond the planning stage and into the execution stage, where all the plans have been made and all that is left is to carry out the attack. Then, and only then, would I find the torture of a terrorist justifiable. Torture is the absolute last resort, after all other available means have been attempted and have failed.
I believe the Detainee Treatment Act should be amended to this effect. Senator McCain, who does acknowledge the possibility of the scenario and the justifiability of torture in it, does not. Instead of changing the law to allow for torture in a "ticking time bomb" scenario, he would leave an absolute proscription of torture in place. "To carve out legal exemptions to this basic principle of human rights risks opening the door to abuse as a matter of course," he argues, "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."7
This is certainly a reasonable argument, but I would nevertheless reject it. There is no question that carving out a codified exception to the Detainee Treatment Act’s blanket ban might open the door to abuse, but I believe this is outweighed by the deleterious consequences neglecting to do so might incur. With the specter of a possible prosecution and imprisonment looming over them, an interrogator may decline to act in an attempt to cover themselves from any risk of future prosecution, even where torture is self-evidently justified and required. As self-evident as it may be to the interrogator, it is never guaranteed that an overly zealous prosecutor or a judge and jury will see it that way after the fact.
Professor Dershowitz’s approach, and the approach he quotes from President Clinton, would be the one I would adopt. Instead of carving out no legal exception to the Detainee Treatment Act’s complete proscription and relying upon the individual interrogator to take the law into their own hands when they deem it to be necessary, with only the possibility "authorities and the public [will]...take this into account when judging his actions and recognize the extremely dire situation which he confronted," interrogators should be given legal protection, not fleeting possibilities. Codification is needed. Whenever torture is to be used, or any interrogatory technique approaching it, there ought to be "explicit approval from the president...such a ‘torture warrant’ approach would force the president to specify precisely what is allowed and what is not."8
This route is the only one which insures accountability. As Professor Dershowitz also points out, "some forms of torture have been, are being and will continue to be used by democracies in extreme situations, regardless of what we say or what the law provides."9 By compelling the issue of a warrant by the president, it helps insure that it will only be used in those truly extreme "ticking time bomb" cases because the president and the president alone will be held to answer for and justify the decision to issue the warrant, not only politically but legally as well if we adopt the proposal advanced by President Clinton, which I endorse. He "would permit the president to make a finding in a case [such as the ‘ticking time-bomb’ scenario], and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court."10 A warrant based on a presidential finding and judgment along with a post facto judicial review insure both accountability and independent review.
*****
The concerns with and objections to codifying an exception to Title X §1003 of the Detainee Treatment Act of 2005, as outlined by Senator McCain, are valid. They are outweighed, however, by the benefits of doing so. Mandating that the President issue an individual warrant, enumerating which specific procedures are to be used, with a post facto review by the FISA Court has the advantage of insuring that torture or excessive interrogation tactics such as waterboarding are limited to only the most extreme "ticking time-bomb" scenarios and that those who are conducting the interrogation are given the legal justification to do so.
As Professor Dershowitz acknowledges, torture is likely to be carried out in at least rare circumstances anyway. By amending the Detainee Treatment Act of 2005 to codify certain instances where it is permissible, we would help insure that it is done so in concurrence with a legal process and not in a surreptitious, winked at manner outside of the law.
1. Detainee Treatment Act, 10 U.S.C. §§ 1001-1006 (2005).
2. Sen. John McCain, Torture’s Terrible Toll, Newsweek, Nov. 21, 2005, at p. 34.
3. Andrew Sullivan, The Abolition of Torture, New Republic, December 19, 2005, at 19.
4. Charles Krauthammer, The Truth about Torture, The Weekly Standard, December 5, 2005, at 21.
5. See Id.
6. Alan Dershowitz, Stop Winking at Torture and Codify It, Los Angeles Times, June 13, 2004, at M5.
7. McCain, supra
8. See Id.
9. Alan Dershowitz, Commentary, Torture and Accountability: ‘Torture Warrants’ are a necessary evil–even Bill Clinton Agrees with Me Now, Los Angeles Times, October 17, 2006, at B. 13.
10. See Id.
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