Tortured Logic

The lighter side

and

The darker side.

So Be It?
The dangers of defining “torture” down.
BY BRET STEPHENS (WSJ)

It all but goes without saying that torture, properly defined and in nearly every circumstance, is wrong. But what do you make of the following statement, from a recent editorial in the Economist: “Dozens of plots may have been foiled and thousands of lives saved as a result of some of the unsavory practices now being employed in the name of fighting terrorism. Dropping such practices in order to preserve freedom may cost many lives. So be it”? The subject of torture is again in the news thanks to a front-page story last week in the New York Times. It claims that in 2005 the Justice Department issued secret legal memorandums authorizing what the paper calls “severe interrogations,” even after the administration had apparently renounced such methods. President Bush responded to the Times’s story, as he has previously, by insisting “this government does not torture people.” But the editorial writers at the Times were not impressed: “Is this a nation,” they asked, “that tortures human beings and then concocts legal sophistries to confuse the world and avoid accountability before American voters?”Two significant questions arise from this debate. First, what do we really mean by the word “torture”? And second, is the “So be it” standard put forward by the Economist a persuasive one?

The first question is not just a hairsplitting one, although a lot of hair gets split when government lawyers are asked for their opinion. Torture is a word that preserves its moral force only when used precisely and consistently to denote uniquely barbarous acts. “The needle under the fingernail” is one example. Simply to mention it causes most people instinctively to shudder.

By contrast, “slaps to the head,” among the examples cited by the Times of the administration’s “brutal” methods, doesn’t come close to meeting any plausible definition of torture. The other examples–“hours held naked in a frigid [50 degree Fahrenheit] cell; days and nights without sleep while battered by thundering rock music; long periods manacled in stress positions; or the ultimate, waterboarding”–come progressively closer to the line, and perhaps they cross it. But how do we tell?

A useful benchmark was offered by a landmark 1978 decision laid down by the European Court of Human Rights. In Ireland v. the United Kingdom, which dealt with Britain’s (extrajudicial) treatment of members of the Irish Republican Army, the court concluded that the following methods did not amount to torture:

“(a) Wall-standing: Forcing the detainees to remain for periods of some hours in a ‘stress position,’ described by those who underwent it as being ‘spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers.’

“(b) Hooding: Putting a black or navy colored bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation.

“(c) Subjection to noise: Pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise.

“(d) Deprivation of sleep: pending their interrogations, depriving the detainees of sleep.

“(e) Deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the center and pending interrogations.”

Remarkably, the European Court reached this careful judgment despite the fact that the “five techniques were applied in combination, with premeditation and for hours at a stretch” and that some of the detainees sustained “massive” injuries. The court’s reasoning wasn’t meant to excuse the behavior of British authorities, which it rightly described as “inhuman and degrading.” But by maintaining the “distinction between ‘torture’ and ‘inhuman or degrading treatment,’ ” the court sought to preserve the “special stigma [attached] to deliberate inhuman treatment causing very serious and cruel suffering.”

These distinctions are not “legal sophistries,” as the Times would have it. They are a juridical necessity to ensure that our definition of torture does not become so diluted as to render its prohibition unenforceable. But the abuse of the word does have its rhetorical uses: As with the militant anti-abortion movement, which believes that every abortion is murder and thus that every abortionist is a “murderer,” the Times editorialists and their fellow travelers would characterize anyone who favors so much as touching a hair on 9/11 mastermind Khalid Sheikh Mohammed’s head as “pro-torture.” This isn’t argument. It’s moral bullying.

For the record, count me as one who does not object to the interrogation to which KSM was reportedly subjected, including waterboarding. This is not because I take the use of waterboarding lightly (although I have a hard time concluding that a technique, however terrifying, to which CIA officers are willing to subject themselves experimentally can properly be counted as torture). It’s because I take the threat posed by KSM seriously.

That makes it difficult for me to subscribe to the “So be it” line of reasoning. Taken seriously, it says that the civilized world would be better off sustaining a nuclear 9/11 than tarnishing its good name, that righteous victimhood is a finer thing than an innocent life saved through morally compromised methods, and that self-preservation is not the most fundamental requirement of democratic life.

In nearly all conflicts, even existential ones, limits should be observed, and it’s worth thinking through where exactly the limits lie. But when the moral trade-off comes down to KSM waterboarded in order to extract actionable intelligence, or some mother’s child murdered, it’s not a tough call. And no amount of inflated, imprecise and tendentious allegations of torture should change that.

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