The Case Against Torture

A New U.S. Threat to Human Rights

In case it's not enough to round up noncitizens and hold them in secrecy, eavesdrop on their conversations with lawyers, and abandon the civil protections of the courts for the obscurity and expediency of military tribunals, there's another way of pressing suspected terrorists to fess up: torture.

Some pundits have already slalomed down this slippery slope, whizzing right past U.S. obligations as a signatory to the UN Convention on Torture to argue that Americans need to give up our queasiness and do everything imaginable—even the unimaginable—to ensure homeland security.

There haven't yet been any presidential directives or pleas from the attorney general to allow such extreme measures. But some FBI investigators have been itching for heavier tools in their interrogations of alleged 9-11 material witnesses. As one experienced FBI agent told the The Washington Post, "We are known for humanitarian treatment. So, basically, we are stuck. . . . It could get to that spot where we could go to pressure . . . where we won't have a choice, and we are probably getting there."

There's no way to know whether, in fact, we have arrived at that place by now, though there have been some limited news reports of detainees complaining of sleep deprivation and manhandling. It's alarming enough that demands for torture have so nimbly made their way into decorous discourse. In modern instances in which torture has been sanctioned as an extraordinary measure to fight terrorists and subversives—recent-day Israel, 1970s and 1980s Argentina—it quickly became routine, even systematic, ruining untold numbers of innocent lives and, critics charge, corrupting the moral fiber of the culture. Nonetheless, some

Americans appear willing to entertain such heinous practices, prepared, perhaps, to let go of yet another defining principle of democracy in the name of defending it.

No surprise that calls for tough tactics are coming from the right: On CNN's Crossfire, Tucker Carlson moralized, "Torture is bad. Keep in mind, some things are worse. And under certain circumstances, it may be the lesser of two evils. Because some evils are pretty evil." Fox News led off a segment with the hyped-up announcement "Should law enforcement be allowed to do anything, even terrible things, to make suspects spill the beans? Joe DuPre reports. You decide."

But even some putatively liberal commentators have brashly raised the T-word. In a Los Angeles Times op-ed, civil libertarian Alan Dershowitz explained that the Constitution does not prohibit torture outright (never mind the UN convention and international law) and called for "torture warrants" that a judge would have to issue in each case. "If we are to have torture," he opined, "it should be authorized by law." And in an article titled "Time to Think About Torture," Newsweek's Jonathan Alter urged the U.S. do "something to jump-start the stalled investigation of the greatest crime in American history." He reasoned, stumblingly, that "even as we continue to speak out against human-rights abuses around the world, we need to keep an open mind about certain measures to fight terrorism, like court-sanctioned psychological interrogation. And we'll have to think about transferring some suspects to our less squeamish allies, even if that's hypocritical." In other words, take a cue from American business, and when you can't get the locals to do your dirty work, outsource.

Much of the panicked public would go along with some use of force in interrogations. According to a CNN poll conducted in early October, an astonishing 45 percent of Americans would not object to state torture if it extracted information about terrorism.

But that's a big if. There is no proof that torture works. Sometimes, according to a 1963 CIA training manual, it backfires: "If an interrogatee is caused to suffer pain rather late in the interrogation process and after other tactics have failed," the manual says, "he is almost certain to conclude that the interrogator is becoming desperate. Interrogatees who have withstood pain are more difficult to handle by other methods. The effect has been not to repress the subject, but to restore his confidence and maturity." On the other hand, those who cannot withstand pain will often say anything to make their abusers let up: admit to things they know nothing about, give the names of anyone they ever met, deliberately provide disinformation.

That was certainly the case during the Dirty War in Argentina, says Marguerite Feitlowitz, author of Lexicon of Terror: Argentina and the Legacies of Torture, a study for which she interviewed dozens of torturers and their victims. "Apart from being atrocious, inhumane, and against international law," she says, "torture doesn't yield much. It's just not effective." Indeed, that's one reason coerced self-incriminating testimony is not admissible in court—though in military tribunals, such as those President Bush has called for, such evidentiary rules would not apply.

The Israelis made much of their ability to use "moderate physical pressure" to save hundreds of lives in "ticking bomb" cases—that is, on occasions when a confession can lead directly to the prevention of an imminent attack. Nonetheless, according to Dr. Ruchama Marton, the founder of Israel's Physicians for Human Rights and coeditor of Torture: Human Rights, Medical Ethics and the Case of Israel, even the staunchest defenders of the most aggressive interrogation methods never provided details of a single specific case in which torture led to the immediate deactivating of a ticking bomb. "Anyway," Marton asks, "how long is it ticking? Is it going off in 10 minutes, or two hours, or three weeks? In reality, there is no such thing as a clear case of the ticking bomb."

The result is an ever expanding definition of those deemed legitimate to torture. The Israeli human rights group B'Tselem estimated that before torture was outlawed by their High Court in 1999, it was used by the security services against 85 percent of the Palestinians they interrogated—some 23,000 during the first intifada (1987 to 1994)—who were shackled to tiny chairs and left in agonizing positions, shaken violently, subjected to long stretches of blaring loud music and punishing bright lights, or deprived of sleep. (Just last week, the UN Committee Against Torture said that because of a loophole in the High Court ruling, certain types of questionable conduct continue and "slip through the net"; Israel denied that it uses torture, saying that it fights terrorism with "one hand tied behind its back.") In practical terms, says Marton, the likely result is not the prevention of terrorism, but its production: "The men are broken after the experience of being tortured. Their families feel the consequences and want to take revenge."

Torturers must dehumanize their victims in order to do their jobs, Marton and Feitlowitz agree, and typically they can find validation in the prevailing attitudes of the culture more generally. For instance, imagery and policies that depict criminals as depraved and irredeemable contribute to a climate in which U.S. guards feel justified in using electroshock stunbelts on inmates (a practice condemned as torture by Amnesty International last year); Feitlowitz's book details how the terminology of the Dirty War made barbaric deeds in Argentina palatable; the citizens who serve in Israel's army hear Palestinians described as vermin by some of the highest leaders of the land.

In turn, the abuse of human rights has corrosive effects on society at large. "If you turn the dignity of the human body and soul to rubbish when you are on duty," says Marton, "you can't help but bring that attitude home. You can't compartmentalize the violence. So Israeli men kill each other over a parking place. Or—as we've seen this year as the violence of putting down the new intifada has intensified—the number of rapes and domestic violence cases rises sharply."

Those calling for at least a consideration of torture against suspected Al Qaeda associates point out that in extraordinary times, extraordinary measures must be taken. But just as the guarantee to free speech needs to be invoked only when expression is being attacked, the UN Convention Against Torture is needed only when countries are tempted to use it. That's why Article 2 stipulates: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

And then, of course, there's the Constitution. In a Wall Street Journalop-ed, Jay Winik urges us to loosen our hold on civil liberties and protections now and worry about restoring them later. "When our nation is secure again, so too will be our principles," he promises. But the principles are in place precisely for times like these.

"Israel doesn't have a constitution," says Marton. "We don't have the tradition of civil rights. So you can say we are poor savages trapped in stupid and terrible ways of thinking and practices. But America, which we all look to for its 200 years of constitutional principles—what happened?"

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