This week’s Senate Report on the CIA hasn’t settled the question of torture once and for all, as Bruce Anderson has pointed out. When we talk about the heroes of the Resistance, our deepest admiration is reserved for the fighters who didn’t give away their secrets under torture, so the claim that the CIA’s enhanced interrogation techniques did not result in any useful intelligence is rather surprising: it’s too morally neat.
British law has never condoned torture (though the Tudors found ways round that), and when the Italian philosopher Cesare Beccaria was trying to reform the European criminal justice system, Britain was already setting a good example:
When Beccaria published his famous treatise On Crimes and Punishments in 1764, there were, it is said, only three European States in which prisoners and important witnesses at criminal trials were not examined under torture; they were England, Sweden and Prussia. Elsewhere the system was more or less taken for granted. It is the glory of Beccaria that he altered that state of mind, and caused to be recognised throughout Europe what had hitherto been little seen outside the three named countries, viz., that evidence wrung by torture is worthless, and that the process of wringing it is a monstrous wrong, since a large proportion of its victims must be innocent persons.
These propositions may seem nearly self-evident. But they will always tend to be ignored by such servants of the State as are primarily concerned not to do justice but to secure convictions—a concern which used in many countries to be that of the judges, and must always and in any country remain, in varying degrees, that of the police.
There’s a difference, though, between using torture to exact confessions and using it to get intelligence out of someone. Either way, it’s a grim business. When he joined the army in 1949, Geoffrey Strickland found officers breezily recommending torture to young recruits and lecturing them on the best techniques:
The purpose of the torture was solely to obtain valuable information from an enemy who treated British prisoners at the very least harshly. The methods employed were devised to inflict the maximum discomfort and pain while leaving as few as possible traces visible to the eyes of any visiting Red Cross official. One way was to force water down a prisoner’s throat and strain the walls of his stomach, though this required considerable practice and skill. Another was to hold him near a hot stove. And one could simply beat him up, having first wrapped him in wet blankets, which would reduce the risk of externally visible bruises. There have been worse tortures obviously, but these seemed bad enough.
He spent the next few decades trying to draw attention to the story, but without much success. One academic told him the public conscience needed to preserve a certain innocence:
If morality is the choice of a lesser evil, then torture itself may be morally unobjectionable, however grim the necessity and dangerous the precedent. Yet to condone torture on such occasions may amount in practice to condoning torture in general and even when its use is unnecessary or gratuitous. To say ‘No, some things are wrong in themselves, whatever their immediate consequences’ may be justified in the long run, even on utilitarian grounds. Should the public, in any case, know what is being done in its name or was the eminent academic right about the public conscience? If the public knows, the knowledge will either ensure that the practice is stopped which is fine if it ought to be stopped — or generate even greater secrecy on the part of those responsible and leave us more or less where we are now.
After the September 11th attacks, the priority was stopping another attack, but Paul Robinson argued that some of the methods employed went against everything we were fighting for:
Already in this country we have David Blunkett with his plans for ‘pre-emptive detention’, secret trials and the indefinite imprisonment of suspects on evidence which the Home Office has admitted might come from torture in other countries. The slippery slope from Blunkettism to state terrorism is but a short one, and if we do not start the fight against it now, we may find we have lost already.
Despite Tony Blair’s bizarre rantings, terrorism does not pose an ‘existential’ threat to our society. Our civilisation is under threat, but not from terrorists, whose power is extremely limited. Only we ourselves can destroy the values that we cherish and which make us great. We must hold on to the principles that guarantee our superiority — our respect for the innocent, for due process and for justice. If we stand firm, we can never be defeated.
One of the people Robinson attacked was the lawyer Alan Dershowitz, who hit back with a letter in the next edition:
Paul Robinson’s purported description of my views on torture are a complete fabrication, as anyone actually reading my extensive body of writing on this subject can attest. I am against torture as a normative matter. As an empirical matter, however, I recognise that it is going on beneath the surface and under the radar screen. In order to bring this problem to the surface, so as to make those employing torture accountable, I have proposed that under no circumstances should torture ever be permitted without a judicial warrant. I do not ‘recommend’ the insertion of sterilised needles under the fingernails. I simply used that as an illustration of the kind of non-lethal torture that might be considered under a torture warrant proposal.
Dershowitz didn’t spark nearly as much controversy as John Yoo, who became known as Professor Torture after arguing that the president should be in charge of deciding how far interrogators could go when questioning suspects. Alasdair Palmer met him in 2007:
Given his reputation, I was a little nervous about meeting John Yoo. I half-expected to encounter the kind of man who bites the head off a chicken each morning, and who has electrodes at the ready in his office. In reality… Prof. Yoo is gentle and reticent, and listens without interrupting. He’s polite, courteous and not yet 40. He gives the impression of being a conscientious academic eager to find out what the law is and to ensure that it is never flouted.
Flouting the law is, however, precisely what he stands accused of doing by writing the Torture Memo. ‘I reject that criticism totally,’ he says. ‘Everything I did was carefully crafted to make sure that it was consistent with the existing legislation. My obligation was to make sure that what the President did was lawful, and I took the obligation very seriously.’
In the memo, he’d written that ‘acts must be of an extreme nature to rise to the level of torture… To amount to torture, an act must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure or even death.’ He gave examples of forms of treatment he did not think constituted torture, including kicking someone, forcing him to stand against a wall, subjecting him to noise and depriving him of sleep:
It is all very specific, and very unpleasant. Even if he’s right about what American law permits, wouldn’t it just have been better left unsaid? ‘That was simply not an option,’ Yoo asserts. ‘The CIA wanted — needed — a definitive answer to the question: how far can we go? They had specifically requested a legal opinion. They had captured senior al-Qa’eda operatives who were not responding to being asked questions politely. CIA officers needed to know what, legally, they were entitled to do to them to get them to talk. They knew these guys had information on what al-Qa’eda was planning. If the CIA could get that information, they could save lives. But they also wanted to be sure they would not end up going to prison for doing so.’
‘No question about it,’ he says. ‘Look, death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them. I don’t see how it can be reasonable to have an absolute prohibition on torture when you don’t have an absolute prohibition on killing. Reasonable people will disagree about when torture is justified. But that, in some circumstances, it is justified seems to me to be just moral common sense. How could it be better that 10,000 or 50,000 or a million people die than that one person be injured?’
Alasdair Palmer had actually taken a similar line a couple of years earlier, arguing that our views on shoot-to-kill were inconsistent with our views on torture:
While all torture is certainly horrible, not all of it has to be ordered by thugs or inflicted by sadists. One of the most effective techniques of interrogation is said to rely on sleep deprivation. Sleep deprivation is classified as a form of torture, which it is, and is prohibited under European law. It seems extraordinary that we are willing to shoot terrorist suspects in order to save lives, but not to deprive them of sleep.
He cites several examples of where torture has foiled terrorist plots, including an al-Qa’eda plan in 1995 to crash 11 aeroplanes carrying 4,000 people into the Pacific. One US interrogator Chris Mackey (a pseudonym) wrote a book arguing that effective interrogation had become impossible as a result of the outright ban on torture under international law:
Mackey notes that American soldiers managed to obtain an al-Qa’eda manual on interrogation. That manual stated that ‘the Americans will not harm you physically’ because ‘they are not warriors’. The manual added that anyone captured by the Americans ‘must tempt them into striking you. And if they do strike you, you should complain to the authorities immediately…. You could end an interrogator’s career, and prompt a Red Cross investigation, if you could show a bruise or a scar.’ Chris Mackey reports that the most depressing thing for the US interrogators in Afghanistan at the time (2002) was the manual’s accuracy. It was correct in its account of how al-Qa’eda members would be treated by the Americans. The truth was, as one of Mackey’s co-interrogators commented, ‘You could lie to us, refuse to talk, switch your story from one session to the next, and there wasn’t a damn thing we could do about it.’ There is no doubt that non-lethal torture techniques such as sleep deprivation, stress positions and hooding produce reliable information much more quickly and effectively than just asking politely.
In the war on terror, we will need those techniques to save innocent lives as much as we need shoot-to-kill. The judges’ prohibition of all forms of torture has produced a ban on even discussing the use of any interrogation technique which might be effective. Although that helps the judges and us believe in our own moral integrity, it is not a safe way to protect ourselves from the terrorists who want to kill us.
When it comes to torture it is too easy to separate people into goodies and baddies – organisations like Amnesty International tend to dismiss as unrealistic any scenario where torture is the way to save hundreds of lives, but that is not responsible. The moral questions those scenarios illustrate need to be discussed. It’s no good to lump people like Dershowitz and Yoo in with the people responsible for the torture at Abu Ghraib. Public wrath can easily extinguish all debate about torture while black sites, renditions and other crimes go on under the radar.