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Yom Shlishi, 6 Tishri 5778
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A Tortured Response
(2007)

The confirmation of Michael Mukasey as U.S. Attorney General appeared to be an unusually non-controversial issue, until he refused to take a specific position regarding the use of waterboarding as an interrogation technique. Mukasey has been confirmed and sworn in as Attorney General, but the issue of waterboarding and torture is hardly going to go away.

What's the Problem

Waterboarding is a technique by which water is forced into a person's lungs, causing the intense sensation of drowning. The process is apparently not life-threatening, but rather deeply anxiety provoking and extremely uncomfortable. Is this torture?

Viewed in one way, torture is an inherently subjective notion. While everyone would probably agree that stretching a victim's limbs on a rack is definitely torture, only some people would concur that—say—watching a few hours of the Shopping Network is as well.

At some point, for the sake of both law and civil order, we wish to draw the line between torture and coercion. The classic television show "Homicide," would often depict the protagonist detectives drawing a confession or valuable information out of a suspect being held in the interrogation room. They used a variety of methods: "good cop/bad cop," repetitive questioning, brow-beating, sweet talking, veiled threats, among others. It is possible that the suspect might have felt tortured. At no point, however, would the detectives think that they were inflicting torture, nor would that have occurred to us, the viewers. If, on the other hand, the detectives began to slam the suspect's head against the wall, or put a cocked gun against his forehead, we would probably agree that they were crossing some line.

In his testimony, Judge Mukasey characterized waterboarding as repugnant. Further, neither the White House nor any of the Senators who supported his confirmation made any effort to suggest that the technique was otherwise. The question at hand is not waterboarding, or any other technique that might fairly be described as torture. The question is whether there is a circumstance in which it can be defended for being employed.

Contra Dershowitz

While, in the end, I wish to state that torture techniques such as waterboarding are indefensible, I need to work through this concern. Otherwise, all I will have done is express a firmly stated feeling, and not an argument. Let us first agree that the sort of "torture" of interest here are the techniques for which there has been consensus that they are impermissible. We can argue about playing loud music or shining bright lights in the middle of the night, for example, or of forms of intense humiliation, such as the pictures we saw of the prisoners in Abu Ghraib. There are indeed indistinct lines where some action moves into torture. Waterboarding, however, does not fall into that nether region. It has been recognized as a form of torture for decades.

Can, however, a non-lethal torture technique, such as waterboarding, be condoned in some circumstance? This is the question proposed over the years by the esteemed law scholar Alan Dershowitz. His thinking on the subject has most recently been forwarded in an opinion piece published on November 7 (2007) for the Wall Street Journal.

In brief, Dershowitz believes that torture in certain narrowly defined circumstances is warranted. He is highly critical of the current Administration for, among other things, not being clear and forthcoming regarding a probative use of certain techniques. And he is equally critical of the Democratic opposition for being so unyielding in their condemnation of the technique.

In his WSJ article, Dershowitz notes the apparently unlikely success Rudolph Giuliani is enjoying in his effort to become the Republican Presidential nominee, a success Dershowitz places mostly on his aggressive foreign policy stance. While he does not believe Democratic contenders ought to emulate Giuliani, he neither believes that they can afford to be so dismissive of the dangers that are being highlighted.

To this end, Dershowitz approves of a position he ascribes to former President Clinton: that of a strictly monitored and narrow exception to the prohibition against torture. He cautions that the use should be limited to "ticking bomb" situations, in which the physical assault on a suspect is measured against the lives that can be saved. He further suggests that the President would have to take personal responsibility for the act, particularly if it were to be found unwarranted after the fact by a FISA (Foreign Intelligence Surveillance) court.

Prof. Dershowitz is a thoughtful individual. He is attempting to combine both legal and political insights and social realities into crafting what he would hope to be a pragmatically moral policy. Although I disagree with him, one cannot dismiss his argument out of hand. To begin, he notes that, while the American public might not require the Rambo/Dirty Harry attitude of a Rudy Giuliani, they want assurances that their President is interested in protecting them from foreign attack. The collapse of the World Trade Center towers was truly unnerving. We simply do not want that to happen again, and thus, the concept of a judicious use of some otherwise repugnant torture technique seems not only acceptable but wise.

I would add that Dershowitz's contention here is not merely political; it is also moral. You might want to assert that waterboarding is torture (to which Dershowitz would say 'yes'), and torture is torture, and therefore should never be employed. The rejoinder is: on what grounds. The argument is, to this point, a matter of aesthetics or feelings. A torture technique such as waterboarding offends my sensibilities—to use Mukasey's term, it is "repugnant"—but does one determine ethical stands on feelings? Of course, waterboarding causes pain, but do not all forms of punishment, whether execution, incarceration, or even the proverbial "slap on the wrist"? Dershowitz is employing a classic moral argument of balancing costs and benefits. He is convinced that the cost of utilizing waterboarding, or some similar technique, is more than balanced by the benefit of all the damage that would be forestalled.

In order to argue against this position, we must assert that this is not the case; the cost is indeed greater than the benefit. Dershowitz anticipates this response. Countering the notion that torture never yields useful information (a torture victim, the line goes, will say about anything, in order to make the pain stop), he gives two examples. The first is the success of Nazis in getting information out of members of the French Resistance. The second is a reputed case in which Israelis extracted information regarding the intent of a suicide bomber who was planning to blow himself in a synagogue on Yom Kippur.

The examples are strange. Appealing to Nazi activities in order to support one's argument! Well, actually, if one is going to claim that torture can be successful, then the empirical evidence has to be drawn from an entity that actually engaged in torture. We can recognize that Dershowitz is hardly endorsing the Nazis in any shape or form. Yet, the example remains highly suspect. The Nazis, while certainly eager to learn the identities of other members of the Resistance, were not dealing with a 'ticking time bomb.' Further, they were not particularly interested in surgical operations. Their torture almost certainly yielded the naming of names—some, but probably not all, were actual members of the Resistance. The Nazis would have had no compunction against treating everyone named as enemies. Yes, one can concede, there is valid information drawn from the application of torture, but it remains very difficult to determine how to distinguish it from any invalid revelations.

The case of the Israelis is problematic as well. Dershowitz concedes that he has no idea what techniques they employed. Whatever they were (more on this below), they were successful, but I find it to be a stretch for Dershowitz to assume that the Israelis must have employed some form of torture. Dershowitz is undoubtedly right when he suggests that one cannot claim that torture never works. The considered opinion of people with long experience in interrogation techniques is, however, that torture is singularly unreliable as an information gathering tool. The examples given serve in no way to counter this considered opinion.

Why (Not) Torture?

It should be emphasized that Dershowitz's argument is very narrow and focused. He believes that there are occasions when the US government is going to feel constrained to employ a technique like waterboarding, and that it should be open and above-board about the possibility of this circumstance. The impetus behind this position is that, while such techniques are vile, they might work. Note, as suggested above, this is mostly an article of faith. The two circumstances Dershowitz provides come nowhere close to supporting his claim in the viability of some form torture in a 'ticking bomb' situation. Why does he have such faith?

The answer might be that, if torture does not work, what would? If, indeed, a suspected terrorist ringleader were to be captured, and there was reason to believe that in a day or two, a major operation was about to be launched, can anyone provide a more reliable method of extracting critical information that does not involve such unpalatable means of inflicting pain? So, here is the nub of the problem. Torture might not work with respect to the information that is being sought, but nothing else probably will either. In a situation filled with only bad choices, the pain-inflicting technique might well be the least worst.

In the final analysis, the position Dershowitz is espousing—as careful and as finely honed as he is attempting to be—represents an act of desperation. Since all else has failed, we might as well try a little torture. This, I would suggest, is a very slender thread on which to hang a policy. The benefits are simply not worth the cost. For the uncertain possibility of acquiring useful information, one pays both politically and morally. It becomes increasingly difficult for the U.S. to assert uncivilized or inhuman behavior on the part of another nation or entity. Once any circumstance of torture is legitimized, short of Nazi-like cruelty, any circumstance can be rationalized. The important and valuable weapon of international condemnation is lost.

Torture is fundamentally a method of discharging anger, satisfying revenge and asserting absolute domination over a subject, rather than being a method of extracting information. Its purpose is to belittle and degrade a person, to establish in no uncertain terms who is boss and who is powerless. The technique might provide a brief sense of superiority and its attendant feelings of satisfaction and pleasure, but ultimately it demeans both the 'interrogator' and the subject. Think of the American military jailers at Abu Ghraib. Everyone—the personnel, the army, the nation, as well as the prisoners—lost.

Fear is a Strong Forte

I think that one should understand sympathetically Prof. Dershowitz's position. He recognizes all the negative aspects of torture. In particular, he argues that when a nation is not forthright about its use of certain extraordinary techniques, such as waterboarding, it only reaps the worst of both worlds: it is assumed to be using them, and further, it permits speculation that the use is more widespread and indiscriminate than it might be. In this circumstance, if there were indeed a probative value in utilizing the technique, it is overwhelmed by the political and moral condemnation that arises from the appearance of malfeasance.

Dershowitz, moreover, appreciates the domestic political ramifications. We, as individuals, families and communities, want safety. There have been explicit threats from foreign quarters, such as 'Al Qaida, and on September 11, 2001, those threats were made good. We have no choice but to take any further threats quite seriously. The terrorists must be stopped! In the shadow of the falling towers, we crave assurances that it will not happen again. The Administration (any administration!) thus concludes that it must wring information out of suspects, by whatever means necessary. And even if it actually does not work, they would not be held accountable, because at least they tried.

I would counter that once a situation progressed as far as relying on the interrogation of single suspect, no matter what techniques are used, it is probably too late. Extracting reliable information from one person is problematic without already having a good idea what constitutes reliability. Counterterror intelligence probably requires the development of multiple sources of information. It is labor-intensive, slowly developed, and certainly expensive. Waterboarding is purchasing satisfaction on the cheap.

[As an aside, while knowing nothing more than Dershowitz does, I would tend to believe that Israel did not employ any technique that would be considered torture in the example provided. Israeli intelligence works hard at developing multiple levels of information gathering so that resort to something like torture is not contemplated. In the recorded cases where there has been unnecessary infliction of pain, they have been more connected to resentment and frustration—and probably not a little bit of hate—with captured suspects, than with any need for information. The Israeli courts have been quite clear in their condemnation of these actions.]

Attorney General Mukasey might have thought he was being prudent and judicious in his response to the question about waterboarding. And Professor Dershowitz might be attempting to formulate a careful policy in the face of obvious political and psychological pressures brought about after 9/11. I, for one, believe they are simply wrong.