There are three aspects to the debate over torture, two empirical and one normative, or moral. Empirically, does torture work? Can accurate, worthwhile information be extracted through torture? This question is hotly debated, but many current and former military personnel -- including America's most famous POW, John McCain -- emphatically say no.
In 2005, Senator McCain sponsored an anti-torture amendment to the defense appropriations bill in the Senate. A victim of torture at the hands of the North Vietnamese, he put it this way: "Subjecting prisoners to abuse leads to bad intelligence, because under torture a detainee will tell his interrogator anything to make the pain stop." Some people in the intelligence community argue otherwise, and the debate on this point continues.
The second empirical question is: Has the United States in fact committed acts of torture against some al-Qaida suspects? Is the technique of waterboarding, which American personnel have performed numerous times, a form of torture? The following statement is a detailed description of waterboarding:
"A towel was fixed under the chin and down over the face. Then many buckets of water were poured into the towel so that the water gradually reached the mouth and rising further eventually also to the nostrils, which resulted in his becoming unconscious and collapsing like a person drowned. This procedure was sometimes repeated 5-6 times in succession."
The above passage is not a description from one of the controversial "torture memos" or from a Red Cross report on Guantanamo. Rather, it is from testimony given at the Tokyo War Crimes Trials held by the Allies after World War II. The victim was a prisoner in the Japanese-occupied Dutch East Indies and the perpetrators were Japanese soldiers. It was deemed at the time that waterboarding was torture. The Japanese soldiers were convicted of war crimes.
This leads to the third, normative aspect of the torture debate. Even if torture does work under some circumstances and does elicit high-value information from suspected terrorists -- as former Vice President Dick Cheney argues happened at Guantanamo -- should its use nevertheless be prohibited because it is wrong?
According to international law, torture is never allowable, not even in an extreme emergency. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment -- which was negotiated by the Reagan administration and ratified by the U.S. Senate -- is clear on this. "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."
The Bush administration argued that the war on terror justified its use of extreme interrogation techniques. The two democracies that have faced the most terrorism within their own borders are Great Britain and Israel. The UK had to deal for decades with IRA attacks and more recently with Islamist terror cells. Israel has faced terrorist attacks on its civilians on-and-off for over 60 years. What do these countries have to say about torture? Rulings by their independent judiciaries are instructive.
Torture has long been illegal in Britain, even against terrorists. A few years ago, the Law Lords, Britain's highest court, went further and declared that any evidence obtained through torture in a foreign country, via "rendition," is inadmissible in British courts. As one of the Lords declared, "Statements obtained by torture are unacceptable. To rely on them is inconsistent with the notion of justice as administered by our courts."
In Israel in the late 1980s, the security services declared that mild forms of torture, what they called "moderate physical pressure," were permitted when it was believed that a detainee had knowledge of an imminent terrorist attack. This was known as the "ticking bomb scenario." But this changed with a landmark ruling by Israel's High Court of Justice in 1999. The court declared that torture techniques were illegal, even under extreme circumstances.
Ultimately, the "pro-torture" argument comes down to the assertion that "the ends justify the means." Cheney makes this argument with his demand that CIA documents demonstrating positive results from torture be declassified and released to the public.
Knowing to what extent waterboarding or other controversial techniques actually worked might be useful to the empirical debate over the utility of torture. But it adds little to the moral debate.
It is ironic that some prominent conservatives, who would normally assert that basic values are immutable, are arguing instead for situational ethics and moral relativism when it comes to torture. But no matter how hard one tries, one cannot credibly argue that, while waterboarding was a crime when committed by the Japanese in World War II, it is not a crime when committed by the United States in the 21st Century.
As Americans debate the merits of torture in an age of terrorism, the words of the Israeli high court from 1999 are worthy of consideration:
"This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and allow it to overcome its difficulties."
McCain too is quite eloquent on the question of the ethics and morality of torture: it's not about them, it's about us. "The enemy we fight has no respect for human life or human rights," he said in 2005. "They don't deserve our sympathy. But this isn't about who they are. This is about who we are. These are the values that distinguish us from our enemies, and we can never, never allow our enemies to take those values away."© RealClearPolitics.com