The Ethics of Torture

As promised, the podcast in commemoration of the Nuremberg War Crimes Tribunal is now available. In "The Ethics of Torture", I sat down with Dr. Darius Rejali (Political Science, Reed College) to talk about the ethical and political implications of the Military Commissions Act of 2006. This act was promoted by the Bush administration as a result of last year's Hamdan decision before the Supreme Court which held that the inital plan for military tribunals for "unlawful enemy combatants" was unconstitutional. Some system needed to be put in place to allow such detainees to be processed--the result is the MCA.

Dr. Rejali is very clear about what the MCA would allow--the kinds of treatment to which detainees at Abu Ghraib were subjected would most likely be legal. What is most striking about this is that this standard is one rejected internationally. The United Nation Convention Against Torture, ratified by the U.S. in 1994, defines torture "as severe physcial or mental pain or suffering." In 2002, the U.S. Department of Justice, in a memo to the President, sought to define the threshold of "severe" this way: torture "must be equivalent in intensity to the pain accompanying serious physcial injury, such as organ failure, impairment of bodily function, or even death." As Dr. Rejali pointed out in the podcast, this threshold was developed based on Medicare studies, not on analysis of torture or interrogation techniques.

Below this threshhold would be "coerceive interrogation". Here there are two important distinctions. Coercion might be 1) lawful or 2) inhuman and degrading. In 1999, the Israeli Supreme Court ruled that certain forms of coercion fit under the latter distinction, including making a detainee stand in a painful position for hours, sleep deprivation,hooding, shaking detainees vigorously, or exposing them to extreme hot or cold.

The MCA appears to include with the distinction of lawful coercion what might be called "humiliating or degrading" techniques, i.e. forcefully removing a Muslim woman's veil, forcing a devout Muslim to drink alcohol or engage in sexually explicit behavior, or destroying a Koran in front of them. A question might be: what would such techniques hope to accomplish as a legitimate part of "the war on terror"? Is there a possiblity that this will do nothing but intimidate and alienate populations, rather than win their "hearts and minds" over to the U.S. cause?

For me, what was most stunning about this conversation with Dr. Rejali was the moment when he listed various coercive techniques that might now be regular parts of interrogation under the MCA and then pointed out that the list was from Gestapo manuals of interrogation. The MCA raises the question of our identity as a democratic society. Are WE the kind of people who do THAT? Michael Ignatieff argues that if we take the democratic identity argument against torture seriously, then we must be prepared to realize that there might be large numbers of our fellow citizens who will willingly trade liberty for security. Choosing torture might be a democratic perogative.

During our off air conversation, Dr. Rejali pointed out that many studies indicate people are not so easily swayed and the numbers in favor of torture is not yet a majority of the public. Democracies can be illiberal and dangerous--this is the worry behind Plato's worries over this kind of government. But in a liberal democracy such as the United States, we have tradition of suspicion about government having too much power over the "life, liberty, and property" (to use John Locke's phrase) of its citizens. The danger is that the MCA opens up the possibility for the government to strip American citizens of various forms of civil protections. This should be a tremendous worry considering that there seems to be very little proof that torture, or even coercion, works in any kind of way to make people more secure.