A Civil Debate on Torture
by Donald Devine
Issue 96 -November 21, 2007

How did torture end up deciding whether Michael Mulcasey would become the Attorney General of the United States? Had he not declared that “waterboarding”--or forcing a prisoner to feel like he was drowning--was “over the line” and “repugnant,” he would not have been confirmed. Even then, many Democrats were incensed that he did not declare it flat-out torture and the Bush Administration’s use of it illegal. Indeed, the question of torture has been the object of much moral posturing recently, kind of an all-purpose cudgel of the left to fight the “evil” George W. Bush--but there are real issues behind the rhetoric.

It used to be simple. Growing up in the old days of late World War II, Americans were socialized in the patriotic belief that we were the good guys, especially in time of war. The Japanese militarists were evil because we saw they used torture. We were good because we did not. A few years later, North Korean and Chinese troops used torture called “brainwashing” against our soldiers and that, again, told us where good and bad differed, even in a war we did not much otherwise understand. It was straightforward in the days of easy patriotism.

Later, we learned that U.S. troops did occasionally use torture in dire split-second battlefield conditions but we understood that was an emergency. Up to and including Vietnam, when actual torture or military excess took place and we found out, we condemned it. We denounced North Vietnam for breaking John McCain’s bones with torturous “stress positions” and also American excesses at Mai Lai (but supporting the later mitigation of Lt. William Calley’s sentence because it was in the heat of battle). When we heard of Vietnam hero Orson Swindle being kept awake for 20 days before breaking during his six years captivity we were sure it was torture and still certain this separated the good from bad guys even when we were in the midst of losing a war.

The pictures from Abu-Ghraib shocked that assurance, even among those who thought themselves rather worldly. Contrary to the America-is-always-wrong crowd, it was not official U.S. policy but the soldiers thought they had a go-ahead when the head of the Guantanamo detention camp visited them just beforehand. Then came the real shocker, the publication of the 2003 Justice Department memo that allowed interrogation procedures that caused pain up to the equivalent of a loss of a limb. This was necessary, according to former CIA director George Tenent, because of the danger posed by terrorists after the 9/11 attack and the effectiveness of aggressive interrogation in saving American lives. But most Americans thought the techniques went too far and the White House subsequently revoked the legal memorandum and issued a new one limiting the methods that were allowed.

The whole issue of torture is back with the partial leaking of a 2005 legal memo interpreting the new procedures as they applied to the CIA. The 2005 Detainee Treatment Act effectively excluded the military from forced interrogations by limiting it to procedures approved in the restrictive Army field manual. The CIA, however, was left free to use aggressive methods on un-uniformed terrorists so long as they did not constitute “torture”—that is, the intentional infliction of “severe pain or suffering”—or “cruel, inhuman or degrading” (CID) treatment. The new legal opinion apparently allowed slapping, hypothermia, sleep deprivation, stress positions, and waterboarding as not constituting torture or CID treatment.

Surely anything equivalent in force to military training cannot be considered severe, cruel or degrading as long as the age and physical and mental condition of the prisoner is considered. American members of a U.N. commission on human rights, David Rivkin and Lee Casey, consider a slap not severe but breaking one’s nose is. Maintaining an uncomfortable position is probably acceptable but if it was while naked, shackled to the ground and freezing, this “might be” unacceptable. Bret Stephens, columnist and editorial writer for the Wall Street Journal, maintains a needle under fingernails is obviously torture but “hours held naked in a frigid [50 degrees Fahrenheit] cell; days and nights without sleep while battered by thunderous rock music; long periods manacled in stress positions; or the ultimate waterboarding” only come “progressively closer to the line.”

Stephens insists that the greater good of avoiding terrorist attacks justifies even waterboarding. “Taken seriously, [refusing to use these aggressive techniques on such as terrorist mastermind Khalid Sheikh Mohammed] says that the civilized world would be better off sustaining a nuclear 9/11 [or having a mother’s child murdered] than tarnishing its good name.” He says in those circumstances, “it’s not a tough call.” But the U.S. considered waterboarding torture in the wake of World War II, condemning Japanese officers for its use. Lt. Chase Nielson described its use on him: “I felt more or less like I was drowning, just gasping between life and death,” similar to the description of other American and allied prisoners of war, uniformed and not. U.S. soldiers were court-martialed for using the “water cure” to extract information from Filipino guerillas during the American occupation of the Philippines after the 1898 Spanish-American War.

Even Stephens agrees “it is worth thinking through where exactly the limits lie.” Personally, waterboarding seems worse than the needle. McCain considers stress positions torture. Swindle insists sleep deprivation is real torture. It is complex but I do feel deeply that we must find out. We might start with the wisdom of last century Supreme Court Justice, Benjamin Cardozo. “Hard cases make bad law.” If a law is passed that broadly allows very aggressive interrogation for extreme situations, inevitably extreme becomes the norm. General rules of law just cannot cover all situations and still be reasonable. That is why Western-inherited Anglo-American common law is flexible--based on specific cases and circumstances, in theory at least--and Islamic law tries to cover everything and is rigid and unyielding so that following the letter of the law kills its spirit.

U.S. common slang puts it another way. “It is easier to ask forgiveness than permission.” In the extreme cases of nuclear 9/11 or the troops lurking over the hill or preventing a child’s death, if the consequences were obviously dire and the interrogation clearly necessary, prosecutors or juries will understand. If they do not and the law overcomes the spirit, the culture is sunk anyway. In any event, a civil discussion of torture is essential. We are the good guys and we should know what that entails as we face perhaps scores of years of confrontation with the notorious Sheikh and his mob.

Donald Devine, the editor of Conservative Battleline Online, was the director of the U.S. Office of Personnel Management from 1981 to 1985 and is the director of the Federalist Leadership Center at Bellevue University.