The Gray Zone: Defining Torture

Article excerpt

Few issues divide people as deeply as the current controversy about torture. Slightly more than half of all Americans believe torture should be prohibited in the war on terror; slightly less than half believe it should not. People on both sides of this divide hold their positions with the kind of fierce tenacity we are more accustomed to encountering in debates such as the one that has raged for at least three decades over the right to abortion. The absolutism that prevails on both sides of the torture debate damages our ability to think and talk clearly about the issue.

The anti-torture camp insists that torture must be prohibited at all times and everywhere, and lends legal authority to this view by citing the Convention Against Torture (CAT), an international agreement that was signed by the United States in 1988 and ratified into American law in 1994. The convention requires that participating countries ban torture comprehensively, with no exceptions or extenuations.

CAT is a triumph of high-minded idealism. Yet can ethical people who cherish its principles allow no exceptions to a complete ban on torture? In fact, an all-star roster of legal thinkers--including Richard Posner, Alan Dershowitz, Walter Dellinger, Philip Heymann, Philip Bobbitt, and Sanford Levinson--believes there may be occasions when a president will have to step outside the law and use torture, or at least harsh interrogations. Why? Because of the ticking bomb.

Eventually, every discussion of torture arrives at the question of the ticking bomb. We are all familiar with this scenario. Law enforcement or military officials capture a terrorist who knows that a nuclear bomb is about to go off in a major American city. Isn't the president morally obligated to use torture against such a person in an effort to prevent mass murder?

The anti-torture camp hates the ticking bomb scenario. One law professor, Stephen Holmes, calls it "a utopian fantasy." Another, David Luban, says it's "an intellectual fraud." But in truth it's not that hard to imagine a situation in which the head of Homeland Security rushes into the Oval Office and tells the president that police are "pretty certain" a bomb is set to explode, and they're "fairly confident" they have a man who knows where it is. And it's probably the case that any president--whether George W. Bush or Barack Obama--confronted with such a choice would approve the use of torture rather than risk a catastrophe. And almost certainly a majority of Americans would support the decision.

Of all the ticking bomb examples, none is more directly relevant to the current debate than the case of Khalid Shaikh Mohammed. As the head of al-Qaeda's military committee and the reputed mastermind of the September 11 attacks, he possessed invaluable information--about the inner workings of al-Qaeda, its finances, and its future plans, including efforts to obtain weapons of mass destruction and plots already under way.

After Mohammed's capture in 2003, officials understood that time was of the essence, and after he failed to respond to direct questioning--"soon you will know," he initially told his captors, deepening their concern--interrogators employed harsher methods, methods that any but the most blinkered would call torture. Over a period of several weeks, he was kept naked, shackled, and isolated, deprived of sleep for up to seven and a half days at a time, and subjected to waterboarding one hundred and eighty-three times. Eventually, he opened up, revealing alleged plots to blow up the Brooklyn Bridge, poison reservoirs, detonate dirty bombs, and spread anthrax.

The usefulness of Mohammed's information is hotly disputed, with torture proponents believing that he was truthful at least some of the time and torture opponents dismissing him as a fabulist who told his tormentors what they wanted to hear. But clearly he embodies the alpha question in this debate: Does torture ever work? …