“Torture” or “coercive interrogation”?

by Sanford Levinson

When giving talks on the topic of torture, I almost always begin them by mentioning the response of a good friend—a senior editor of a major university press—when I told him that Oxford was going to publish the book that I edited, Torture: A Collection. “Who,” he asked, “wants to read a book about torture?”

I mention this not only to convey my continued gratitude to the Oxford University Press for its willingness to publish the book, but also to recognize the basic truth behind my friend’s comment. Torture is indeed very difficult to think about in any systematic way, especially if one is invited to consider the possibility that there might be certain circumstances where torture could be justifiable.

Yet we are forced to think about it—and to read books and articles about it—because the Bush Administration has through multiple acts of ineptitude made it one of the central topics of debate in the world today. Louise Arbour, a former Canadian judge who is now the United Nations High Commissioner for Human Rights, told the United Nations on December 7 that “Governments are watering down the definition of torture, claiming that terrorism means established rules do not apply anymore.” The United Nations press release on her remarks further describes her as calling “on all Governments to reaffirm their commitment to the absolute prohibition of torture by condemning torture and cruel, inhuman or degrading treatment and prohibiting it in national law.” There can be little doubt that the “government” she is most trying to speak to is our own. And, not at all coincidentally, Secretary of State Condoleeza Rice is spending most of her time on her current tour of European capitals defending the United States with regard to the issue of “rendition,” the technical term for sending suspected terrorists to other countries for interrogation. The most notorious case involves a German national who was undoubtedly the victim of a mis-identification by which he “was disappeared” to Afghanistan for five months and, he alleges, tortured in a CIA camp there before being abruptly released in the Albanian countryside and told that no one would believe his bizarre story. (The use of such a peculiar verb form of “disappear” is a legacy of Chile and Argentina, where suspected terrorists “were disappeared” by the fascist governments of those two countries in the 1970s and early ‘80s.) For good reason, the German government believed him, and Secretary of State Rice has apparently conceded the American error. She has also repeatedly insisted, as has President Bush, that the United States does not tolerate torture.

“Torture” stands as a placeholder for the ultimate cruelty by which one human being can treat another. Indeed, one way of understanding torture is that it conveys to its victims that they are not really human beings inasmuch as they have no rights at all, no entitlement to whatever respect we ordinarily believe one human being owes to another simply by virtue of their sharing that elemental status. To defend torture appears to be the equivalent of defending barbarism, period.

It thus understandably outrages many people to hear suggestions that torture might ever be justified, as a “lesser evil” in order to prevent some great, even catastrophic, evil. Such persons deny in effect that torture can be the subject of a legitimate debate. To say that there are genuinely two sides to the issue entails “respecting,” even if not agreeing with, those on opposite sides of the debate. One might compare our response to someone who wishes to “debate” whether the Holocaust happened. The proper response there, I believe, is to refuse the invitation, precisely because it is not open to rational debate, any more than is the proposition that the earth is flat.

But I do not believe this is true with regard to the issue of torture. I do believe that a morally serious individual can countenance the possibility that under some very restrictive circumstances, a responsible political leader might legitimately choose to authorize the torture of someone believed to possess important information that, if known, could forestall a terrible event. I equally believe that a morally serious person can disagree with this and defend what, after all, the United States has formally adhered to when it ratified the United Nations Convention Against Torture and Other Inhuman and Degrading Acts: “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 for torture” (emphasis added).

I am proud that Torture: A Collection contains both Ariel Dorfman’s passionate and eloquent statement–“I can only pray that humanity will have the courage to say no, no to torture anytime, anywhere, no to torturing anyone, not to torture”—and Richard Posner’s laconic reply that “[n]o one who doubts [that torture is permissible when the stakes are high enough] should be in a position of responsibility.” One obviously cannot agree with both, but one should accept the view that both are valuable participants in a debate worth having.

Ironically, acceptance of such positions as Dorfman’s or that of the United Nations (and the U.S. inasmuch as it ratified the UN Convention) make it all the more important to provide explicit definitions of “torture” or of “inhuman and degrading acts” also prohibited by the United Nations Convention. It is far easier to get common assent that such vague terms are objectionable than to agree on what they actually mean and how we tell, for example, when the line has been crossed from acceptably “coercive interrogation” into the unacceptable realm. As we are told, “the devil is in the details,” and nowhere is this more true than with regard to the devilish notion of torture itself. When President Bush and Condoleeza Rice say that the United States “does not torture,” what precisely are they saying? Unless we know what they mean by torture, these statements are almost literally meaningless.

No one, for example, accuses the United States of placing suspects in medieval racks and screws. If that is what one means by torture, then Bush and Rice are undoubtedly correct. The contemporary debate involves not the rack and screw, but, rather, such practices as “waterboarding,” described in a leaked CIA document in the following way: “The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.” Amazingly, the position of the United States is that this does not constitute “torture.” Even more amazing, of course, is that representatives of the United States continue to assert that all detainees are treated “humanely” even though it is clear beyond reasonable doubt that “waterboarding” has been used by the CIA. Such arguments are evocative of Humpty Dumpty and his insistence to Alice that words mean simply whatever he chooses them to mean.

Similar questions are raised with regard to the well-documented practice of “rendition,” by which suspected terrorists are sent to various American allies whose interrogation practices are even more latitudinarian than our own. To its disgrace, the Senate, when ratifying the United Nations Treaty, rejected the United Nations Convention requirement that “No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture” and substituted the words “if it is more likely than not that he would be tortured.” This operates as an open invitation to lawyerly nitpicking inasmuch as the United States apparently claims that it is sufficient to get “diplomatic assurances” that countries known to use torture will forego such methods with regard to the suspects being sent to these countries. As more than one reporter has asked, why exactly is the United States so eager to “render” suspects to these countries rather than to question them ourselves if we do not believe they will be subjected to rougher forms of interrogation than we are legally authorized to use? Is this the ultimately in “outsourcing,” the use of putative allies to do what the United States is unwilling to take responsibility for? The Administration has not come close to giving a good answer to this question.

The United States is not, as a matter of fact, willing to engage in a serious debate about torture and other “highly coercive” means of interrogation. It either implausibly denies that it is engaging in torture by defining the term in unacceptably restrictive ways, or simply declares that national security prohibits any discussion of what interrogation methods actually are deemed acceptable. The position of the Bush Administration is ultimately some mixture of Humpty-Dumptyish wordplay and a plea to “trust us.” But the Administration has absolutely forfeited any entitlement to be trusted on such issues by its well-documented record of lying, evasion, and cover-up with regard to the interrogation practices in Afghanistan, Iraq, and secret CIA sites.

Sanford Levinson is the author of Torture: A Collection and Professor of Law, University of Texas Law School and Professor of Government, University of Texas at Austin.