To the Editor:
Casting himself as a civil libertarian concerned with “real-world outcomes,” Andrew C. McCarthy resurrects Alan M. Dershowitz’s “torture warrant” idea, but with a twist [“Torture: Thinking About the Unthinkable,” July-August]. Like Dershowitz, Mr. McCarthy objects to those who “mouth . . . opposition to all torture while knowing full well that forms of it are occurring.” “By imposing an absolute ban on something we know is occurring,” he claims, “we promote disrespect for the rule of law in general and abdicate our duty to enact tailored and meaningful regulations.”
The solution, according to Mr. McCarthy, is not to allow any federal judge to issue a torture warrant, as Dershowitz advocates, but to create a specialized court for that purpose—something akin to the Foreign Intelligence Surveillance Act (FISA) court. Such a court, he contends, could “develop an expertise” on when torture is necessary for counterterrorist purposes.
Both the premise of Mr. McCarthy’s argument and his proposed solution are flawed. In fact, one does not “promote disrespect for the rule of law” by imposing a ban that some people still violate. Armed robbery, kidnapping, and rape all regularly occur, but no one believes that the absolute ban on these crimes undermines the law, or that it would be better to “regulate” them by, say, outlining when rape might be justified. Rather, these crimes prompt us to redouble our enforcement efforts. The crime of torture should be no different.
Indeed, if Mr. McCarthy were really concerned with “real-world outcomes,” he would worry about the legitimizing effect of ever officially authorizing torture. An absolute ban makes clear that torture is never justified, but a qualified regulation signals that torture might sometimes be acceptable. That permissive signal encourages more torture.
Israel provides a case in point. Its 1987 Landau Commission tried to regulate torture by justifying the use of “moderate physical pressure” in rare cases deemed necessary to prevent an imminent terrorist attack—the so-called ticking-bomb scenario that torture proponents love to invoke. But the ticking-bomb scenario is infinitely elastic, and Israeli interrogators aggressively exploited it. In the quest to save lives, they figured, why stop with the terrorist suspect himself? Why not torture his associates who might know something about an attack? And why stop with an imminent attack? Are the potential victims of future attacks not just as worthy of protection? The slope became very slippery. By the time the Israeli Supreme Court stepped in and called an end to this misguided experiment, in 1999, some 80 percent of Palestinian detainees were being tortured.
As for Mr. McCarthy’s faith in specialized national-security tribunals like the FISA court, it is misplaced at best. From 1993 to 2003, the FISA court considered 9,955 applications for wiretaps. It approved all but five. This blank-check approach to official national-security claims should hardly surprise us, because—as is required in national-security cases—the proceedings are closed and ex parte. Never hearing from anyone but the government, the court naturally defers to its claims of necessity. There is no reason to believe that a torture court, facing similarly urgent ex parte claims, would be any less deferential.
Human Rights Watch
New York City
To the Editor:
Under U.S. law, no torture is permitted—period. This is not the outcome Andrew C. McCarthy wishes. He wants the government to be able to torture—and to have justification for it. “Suppose,” he writes, “that a radiological bomb will be detonated momentarily in the heart of a major metropolis.”
In this set-up, we are asked to assume that thousands will die unless torture is practiced. But is Mr. McCarthy’s argument just quantitative? Though it might be less dramatic to “save” one life rather than thousands by resorting to torture, it would be no less justified according to his logic.
Next, in Mr. McCarthy’s scenario, we have on the one hand an imminent catastrophe (the ticking time bomb) and on the other hand a judicial procedure to obtain a legal warrant for torture, which cannot possibly be completed in time. We are asked to believe that at the critical moment the Attorney General will go before a judge, respond to questions, hear the decision, and then communicate it to the state’s torturers, who will then begin their legal acts—all within the framework of a crisis.
We are also asked to believe that this special judge will actually weigh whether to grant the warrant. What judge would choose to err on the side of the one for whom torture is proposed? If wrong, the judge faces the possibility of thousands dying because he did not grant the warrant. If he does grant the warrant and the torture victim has no information, only one innocent person will have suffered and there will be no publicity. Which risk is the experienced judge more likely to take?
And what happens if the “torture-lite” advocated by Mr. McCarthy is insufficient to produce the alleged information? Is he proposing that we simply give up and let those thousands die? What happens if the state’s licensed torturers then adopt more severe methods? Would Mr. McCarthy demand their prosecution for violation of the warrant?
Under the guise of tough practical thinking, Mr. McCarthy tries to have it both ways. But there is no clean, antiseptic manner to engage in torture.
To the Editor:
Andrew C. McCarthy’s claim that he is bringing “rationality” to a subject that has until now been mired in emotionalism is breathtaking in its arrogance. His accusation that human-rights activists are giving comfort to terrorists is truly beneath contempt. The use of torture by agents of the United States has been a colossal moral and political disaster. The revelations coming from the outing of the torture memos produced by the staff of the Justice Department have sickened many in the legal community, and remind one of the clever work of the judicial arm of the German state during the 1930’s.
The idea that the U.S. should contain terror by enshrining terror in its own legal system would not deserve a reply but for its appearance in Commentary. Mr. McCarthy offers nothing to support his contention that such corruption of this nation’s values would be justified. There have been no intelligence coups based upon the Abu Ghraib interrogations. The only noticeable result has been the debasement of our national character in the eyes of the world community. This, at a time when we are trying to “win the hearts and minds” of the very people our soldiers have been torturing.
There is nothing that Mr. McCarthy proposes in his essay that has not been done in the past when this country has confronted unconventional forces. We tortured and we terrorized and we lost. We lost on many levels.
To the Editor:
Exceptional circumstances in which persons are permitted to transgress the law are very difficult to define with precision. That is why the criminal law usually sticks with general prohibitions and allows for things like the necessity defense to cover and protect those who violate the law in good faith to prevent an evil of greater magnitude than the one the violated law was meant to deter.
I cannot imagine rules and regulations that would adequately cover every instance in which torture might be morally and legally justifiable; nor can I imagine a court authorizing torture as a matter of public record. I consider it preferable to do what most other nations do: have strongly worded laws prohibiting torture in general. When a violation occurs and is publicly revealed, the offending country can say, “It was a violation of our law and stated policy. The violators will be tried and punished.”
The decision whether or not to employ torture during interrogations should be left in the hands of a person whose judgment is trusted, who is not visibly connected with civilian authority, and who is willing to undergo the risk of criminal punishment if his necessity defense does not hold up in court. Hypocritical? Perhaps, but at least it is a workable solution. Mr. McCarthy’s solution is not.
Barton L. Ingraham
Santa Fe, New Mexico
To the Editor:
On the whole I liked Andrew C. McCarthy’s article, but it has two defects. First, he does not mention the argument of the great humanitarian, Jeremy Bentham, that torture should be permitted in cases of large-scale arson. This was the closest early 19th-century approximation to our problem with modern terrorists. If even Bentham made an exception for this particular crime, it is hard to argue that people who favor torture for terrorists are necessarily wrong. It should, of course, be pointed out that what Bentham was thinking of in connection with torture was much more painful than anything we have done in Iraq.
An argument against torture is that we could achieve the same ends simply by paying large sums of money for information. In order to use torture, you have to find someone who has information you want. If you offer rewards, these people come to see you voluntarily. The use of rewards for information has been an important part of British police techniques for centuries. I would argue that we should totally abandon torture, or simple mistreatment like that used in Iraq, but offer large amounts of money together with anonymity for information. This is not only more humane, it should be much more effective.
George Mason University
To the Editor:
Andrew C. McCarthy delves deeply into the reasoning for forswearing the use of torture, but somehow he misses the principal point. The United States should only consider giving up the use of this instrument if, and only if, it can extract a credible promise from its enemies to do likewise. Such agreements should be entered into on a case-by-case basis, and considered only when the outcome of such an agreement will not compromise the overriding goal of swift and decisive victory. Under present circumstances, our people, when held prisoner, are decapitated; our enemies, by contrast, are protected from the rigors of prison life.
To win the war, the administration is going to have to take the gloves off. The alternative is to lose the war, or more precisely not to win it. In that case, we should prepare ourselves for new and deadly attacks within the borders of the United States, and the rise of leadership with far more Draconian proposals than my own.
James H. Fink
To the Editor:
In his clear, concise discussion of the legal issues related to torture, Andrew C. McCarthy makes two critical points. First, the war on terror is not war as envisioned by the drafters of the Geneva Convention. For them, “war” meant the world wars: conflicts of unparalleled destruction, to be sure, but fought by the regular armed forces of nation-states and directed by men who, however ruthless or hateful, could generally be expected to act on the basis of rational calculation. In formulating and adopting the rights and responsibilities of combatants, there was little reason to consider or address phenomena like the suicidal “holy warrior,” whose goal is to achieve reward in heaven by killing “infidels” on earth.
Second, there are humanitarian considerations on both sides of the issue. Critics of America’s conduct of the war have too often been allowed to seize the “humanitarian” label—claiming that the United States has somehow “lost its soul” in pursuing al Qaeda, the Taliban, or Saddam Hussein. But the war on terror (whether in Afghanistan or Iraq) is not a war of conquest or national aggrandizement. It is being fought to prevent the wholesale butchery of innocent men, women, and children. That is a humanitarian consideration of the very highest order, and it is time the “human rights” community acknowledged this in something other than meaningless platitudes condemning “terrorism in all its forms.”
In fact, as Mr. McCarthy also makes clear, absolutes do not wear well in this area. Torture is illegal, and its use is repugnant to American values. Not all coercion, however, constitutes “torture,” and there are circumstances in which most people would even countenance the use of torture to achieve a greater good—as with the proverbial nuclear bomb hidden somewhere in Manhattan.
Like Alan M. Dershowitz, Mr. McCarthy suggests institutional reforms that would regularize (and thereby limit) the use of extreme measures. As he acknowledges, even proposing such changes would result in a storm of criticism from Europe and the Muslim world. And, however hypocritical these attacks plainly would be, they are a legitimate (if not necessarily an overriding) concern for U.S. policy-makers. Moreover, with the war only in its fourth year, it is probably too early for fundamental changes in the judicial system like the creation of a National Security Court.
The danger Mr. McCarthy identifies—that our courts will be compromised or corrupted by efforts to accommodate their processes to meet an unprecedented terrorism threat—is real. Other democracies have established courts and procedures for terrorism cases and have not lost their liberties—or their souls—as a result. Great Britain is a notable example, where special courts were created to deal with the threat of IRA terror. If the war with al Qaeda and its allies is to last for many more years or decades, then structural changes will have to be made—and it is time to start talking about those changes and the form they might take. Mr. McCarthy’s thoughtful piece is an excellent contribution to this critical national discussion.
Lee A. Casey
David B. Rivkin, Jr.
Andrew C. McCarthy writes:
My critics fault me for endeavoring to bring the practical world to bear on a subject so fraught with emotion and piety. Frank Miata, indeed, is himself particularly emotional in his condemnation. Not surprisingly, however, neither he nor any of my other critics is willing to wrestle with the question I posed: assuming current law were not an issue, if there were a ticking bomb, would you permit thousands of people to be slaughtered despite the fact that you might be able to prevent their demise by the non-lethal, court-authorized torture of a terrorist? I know what my own answer would be: although I fully agree that torture is repugnant and contrary to our values, I believe it would be more repugnant willfully to allow the mass murder of moral innocents in order to vindicate a value protecting the right of the morally guilty to remain pain-free.
This debate is not about recognizing values, it is about weighing them when they collide. I do not think, for example, that Mr. Miata’s passion on the subject of torture means he does not care about innocent life, nor would I accuse him of “debas[ing] . . . our national character” when he accords what I regard as insufficient weight to innocent life. These are excruciating choices. Though I disagree with them, I respect the position of Mr. Miata, my former colleague Kenneth Roth, and Harold Nelson that torture should never, ever be permissible. What I am unwilling to do is to relieve them of the burden of their choice. And in that calculus I am far less concerned than Mr. Miata about winning hearts and minds or about the sensibilities of the so-called “world community.” I want to save innocent lives.
It is not enough to state the obvious: that torture is bad. Killing is also bad. But we permit the death penalty to punish murderers, we unavoidably kill innocent civilians in prosecuting a just war, and, on 9/11, we were poised to shoot down civilian airliners, piloted by terrorists but loaded with innocent passengers, in order to prevent the murder of thousands more innocents should those planes have been permitted to strike their targets. These are judgments about revered but competing values that responsible officials have to make. Refusing even to acknowledge them by claiming that torture is simply unthinkable is a cop-out.
When it comes to weighing choices, I did not attempt to draw support from Jeremy Bentham’s utilitarian defense of torture, as Gordon Tullock suggests I might have done, because I do not agree with it. I do not think torture can be justified by raw arithmetic: for example, that the torture of one person is justified to save one hundred. By that measure, any kind of physical abuse could be justified, including the torture of moral innocents (as by threatening to kill a terrorist’s children in order to coerce information). I am in favor of a serious discussion about appropriate moral limitations. “Anything goes” is even less worthy than an absolute prohibition.
Kenneth Roth is a civil libertarian by any definition, but his critique of my position is flawed and his own claims are unpersuasive. For starters, he has my basic argument wrong. I contend that (a) torture should not be the subject of a flat ban and (b) acknowledging its place but tightly regulating its use will result in less torture than occurs now. He conflates these two points, suggesting that my argument against a ban is based on a calculation that since torture cannot practically be prevented, we might as well legalize it. That is simply wrong.
I am in favor of a limited resort to torture not because I have thrown up my hands at the possibility of outlawing it effectively but because I believe there are extreme cases in which it is warranted—that is, where it is a lesser moral evil than idling while innocents are mass-murdered. Having come to that conclusion, I believe that expressly legalizing but heavily regulating it in extreme cases is not only more honest but would better ensure that torture is a rarity than what we have now (and what Mr. Roth prefers): an absolute proscription that we know is being violated.
Mr. Roth disdains my argument that permitting the law to be flouted promotes disrespect, but his own argument is hollow. We are well aware, he says, that the law against rape is violated, and yet we maintain it. But rape laws are vigorously enforced; when they are violated, the rapists are pursued. I was talking about a situation in which laws are on the books but not vigorously enforced, as when we nominally proscribe drug trafficking but do not enforce the ban on marijuana possession. This “wink and nod” tolerance results in more crime because it informs a society that the authorities are not serious. Thus, there is not only a great deal of marijuana use but creeping increases in other minor drug use as well as in crimes of distribution. If we banned only what we were committed to enforcing, there would be less drug crime overall.
Mr. Roth’s mention of robbery actually reinforces my point. We have an absolute ban on robbery, but we also permit the government, under a court-issued warrant, to break into a person’s home and seize evidence. If the police engage in lawless searches, they are subject to prosecution and civil suits. Few would argue that the well-established search-warrant procedure has produced a slippery slope of greater police misconduct. I think torture could be handled analogously. This is not to say that I am urging that torture be “legalized” in the manner of, say, alcohol consumption. It should be banned as robbery is banned, but with the caveats that in extremely rare instances a court may permit it, and that if it occurs outside those parameters it must be robustly prosecuted.
I have more faith than Mr. Roth does in the FISA court. The fact that it has authorized a high percentage of wiretap and search requests is not surprising: the Justice Department vets all applications, and its standards are so demanding that many requests are rejected without the FISA court’s ever hearing about them. Also, the applications Mr. Roth is referring to have a fairly low threshold of proof: namely, probable cause that the subject is an agent of a foreign power. It is unusual to locate such a subject—fewer than a thousand applications a year is not many in a country of 300,000,000—but when it happens it is not hard to establish probable cause, and all the judge is being asked to permit is eavesdropping or a search. Torture warrants would be far rarer, the Justice Department would be an effective gatekeeper, and because the stakes would be higher, judges would be more exacting.
Along these same lines, Harold Nelson is evidently unfamiliar with how courts work. As for his point about timing, emergency procedures are already in place for applications for wiretaps and searches, so that authorization can be sought in minutes. Would courts be cowed? Federal judges today faithfully apply the Constitution to such requests even though the terrorist threat enormously increases the risk to public safety of a refusal to authorize. Pressure in a terror age is the nature of the beast, but the agents, prosecutors, and judges who bear it function quite well, with appropriate deference to the principles they are sworn to uphold.
I am gratified by the number of people who read my essay and took the time to respond so thoughtfully. In particular, I thank Lee A. Casey and David B. Rivkin, Jr. for their kind words and characteristically sharp analysis regarding the inaptness of applying old principles, based on assumptions that no longer hold, to a new form of war with a new type of enemy—one in whose hands these old principles have become weapons.