Thank You, CIA Tape-Destroyers and Mr. Kiriakou

The back-to-back revelations about destroyed tapes of CIA-led interrogations and confirmation (albeit second-hand) of waterboarding by a former CIA agent has elevated the discussion of torture, and our national policy (politics), beyond the blogosphere.

Evidence: the Sen. Kit Bond (R-MO) comparison of waterboarding and torture to swimming. (By the way, he sticks to the "we aren't doing it anyway" Administration talking point.)

All citizens should be asking themselves, "When, if ever, is torture OK? What is our government doing in our names? And are we OK with it?" This is too important to leave to closed door discussions among those in power. And it's too important to leave to knee-jerk responses.

The question of torture is often shunted off to ethicists and moral philosophers and not a few lawyers. In a comment on a prior post on this topic, a reader tosses out a modified "ticking bomb" scenario and dares "lefties" to answer:

Suppose you have a child and that child is being held hostage by Al Qaeda. Your child will be beheaded by noon the nest day but the CIA captures an Al Qaeda suspect who is high up in AQ and it’s highly likely he knows where she’s being held. Do you waterboard or do just walk away?

These are the questions that most lefties avoid. I’m sure you or any other lefty will not answer the question directly. But, that’s the question on the table. Go.

The Ticking Bomb
This hypothetical -- a variation on the ticking bomb scneario -- appears designed to elicit an emotional response; it is both simplistic and unrealistic. It bears no correlation to the interrogation of Abu Zubaydah, which was a fishing expedition; there was no imminent danger, no ticking bomb.

Moreover, this hypothetical is further compromised by the actors: parents would not be in a position to make this decision. Furthermore, their emotional involvement is the reason that in a "normal" kidnapping professionals take over and parents are relegated to the sidelines. Finally, our options are usually not bi-polar (waterboard or walk away).

In the classic ticking bomb hypothetical, the torture of one person (the bad guy) is positioned against against saving thousands, a form of cost-benefit analysis. The person having to make the difficult moral choice is a law officer. This is recurring dramatic theme in popular culture (think Clint Eastwood, Bruce Willis, Mel Gibson) where a) we (the audience) know that the bad guy has the needed information (no ambiguity) and b) the hero successfully saves the innocent(s) in less than 120 minutes.

But real life is not as black-and-white as Hollywood. Moreover, the hypothetical is fraught with flaws:

It presumes that there is a bomb that will explode if not neutralized; the suspect knows where the bomb is located and the bomb has not been moved since the suspect’s arrest; the suspect will provide the necessary information if and only if tortured; the information will enable us to discover and disarm the bomb in time, and so forth. (pdf, p 58)

Also, research does not support the unstated thesis that torture elicits actionaable information. Rebecca Evans (pdf, p 57) reports that the literature suggests "coercive interrogations tend to elicit unreliable intelligence more than they do useful information." Moreover, “many old hands in the business have pointed out that abusing prisoners is not simply illegal and immoral; it is also remarkably ineffective.”

Finally, Kieran Healy shows us the danger of the slippery slope hidden behind the ticking bomb scenario:

If you get me to agree to torturing someone when there’s a ticking bomb, then how hard is it to get me to agree to the following case: we’ve picked up ten guys for questioning but only one of them has the true information. We don’t know which one, so we have to torture the lot. Isn’t torture still justified?

What About Public Opinion?
The BBC reports that most people (59%) around the world are "opposed to torture even if its purpose is to elicit information that could save innocent lives from terrorist attack," that is, even in the ticking-bomb scenario.

In the US, only 36% said "some degree of torture should be allowed if it provides information that saves innocent lives." And how do you know if that information will be forthcoming ... in advance? We aren't living with pre-cogs like those in Minority Report.

Contrary to my reader's suggestion that political idealogy predicts how someone feels about torture, I offer this from the Virginia Law Review (pdf, p 1426 )

Alan Dershowitz suggests that torture should be regulated by a judicial warrant requirement. Liberal Senator Charles Schumer has publicly rejected the idea “that torture should never, ever be used.” He argues that most U.S. senators would back torture to find out where a ticking time bomb is planted. By contrast, William Safire, a self-described “conservative . . . and card-carrying hard-liner[],” expresses revulsion at “phony-tough” pro-torture arguments, and forthrightly labels torture “barbarism.” Examples like these illustrate how vital it is to avoid a simple left-right reductionism.

To sum, most people reject expeditious torture and apologists can be found in both parties.

The Law
What does our Constitution say? It forbids -- forbids -- "cruel and unusual punishment." That should be the end of story.

The US Senate ratified the UN Convention Against Torture, which became effective on 26 June 1987; today 142 nations have ratified it. Although the US is one of those nations, we ratified it with plenty of caveats. Here are two: We do not consider ourselves bound by Article 30. And although the UN declaration defines torture, we insert our own definition ("the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm...")

So where does leave me in regards to the challenge about the alleged terrorist versus child? I reject the hypothetical because it is unrealistic and bears no relation to the circumstances under which some US leaders are attempting to justify torture. The question as posed is a "gotcha," not unlike another classic: "When did you stop beating your wife?"

As to the classic torture-one-to-save-many scenario, I think the law should make it clear (since we seem to think that the Constitution is unclear) that torture is illegal. The Senate tried to do this (96-2) in 2004. Therefore, any instance of our government torturing people in our names must be made public via a trial. At the trial, let any extenuating circumstances be brought forward as part of the defense.

And charge not the lowest-level employee but the highest ranking official who authorized the act.

For more reading:

• By The Power of Stipulation: I Have The Power!
• Issue Summary: Geneva Conventions
• Liberalism, Torture and the Ticking Bomb (pdf)
• 'Rendition' Realities
• Summary Analysis of CIA Torture Tapes Scandal
• Torture: Ethics v Law
• U.S. Religious Leaders Condemn Torture by the Bush Administration
• What Is Waterboarding?
• Torture and Democracy, buy the book
• Torture: Does It Make Us Safer? Is It Ever OK? A Human Rights Perspective, buy the book
• Torture and the Ticking Bomb, buy the book
• Why Terrorism Works, buy the book