Is Torture Always Morally Wrong?

Safety is as much an American value as freedom.

Almost five years ago, I wrote a piece for the journal World Affairs that in the current climate of recrimination would no doubt be considered “pro-torture,” though my aim was to look rationally at a subject that tends to elicit emotional outcries rather than careful thinking. The report of the Senate Intelligence Committee has provided us with an abundance of new information that wasn’t available before (“rectal feeding” has now entered the public discourse), but on the essential moral and philosophical issues, it really has nothing new to say. About these essential issues the arguments never change. I’d like to examine a few of them in the light of the Senate report and the public controversy that has ensued.

Is torture morally wrong at all times and under all circumstances?

Like all absolutist views, this one offers great comfort to its proponents because it absolves them of the necessity of thinking through both the complexities and ambiguities of particular situations and the actual consequences of their positions. Adherence to absolute principle trumps any reflection on how the real world works. In this sense, the anti-torture position is the equivalent of the famous — and inhumane — doctrine Fiat justitia ruat caelum, “let justice be done though the heavens fall.”

The well-known “ticking bomb scenario” is a necessary component of any serious debate over torture. What should the President of the United States do if he learns that a bomb is set to go off in a big city and the authorities have in their custody a man who probably knows its location? Or to raise the stakes: the bomb is a nuclear weapon and the suspect knows “with a high degree of certainty” where it is. The moral high ground is not necessarily occupied by those who would oppose torturing him.

Critics of the ticking bomb argument contend that the scenario is a fraud, science fiction, because it would never arise in the real world. Can anyone be sure? We’re not imagining aliens from outer space. How many years will it be before terrorists are able to smuggle nuclear-armed suitcase bombs into the United States? No one knows.

That is the future, but even speaking of the recent past, authorities were faced with a version of the ticking bomb following 9/11. Every day the president was receiving a report called the “threat matrix,” listing every threat to the United States within the past 24 hours, including possible targets and perpetrators, along with assessments of each threat’s credibility. George Tenet, then the head of the CIA, stated: “I’ve got reports of nuclear weapons in New York, apartment buildings that are gonna be blown up, planes that are going to fly into airports. … Plot lines that I don’t know — I don’t know what’s going on inside the United States.” Fears were at their utmost not only in the days and weeks after 9/11 but also one year later, on the anniversary of the attacks.

In “The Terror Presidency,” one of the most nuanced insider accounts to emerge from this period, Jack Goldsmith, the head of the Office of Legal Counsel from October 2003 to June 2004, describes the nonstop arguments that were going on within the Bush Administration between those who wanted to take whatever steps they considered necessary against terrorism and those who were concerned about balancing security with legality. Goldsmith is one of the real heroes of this time. He stood up to the whatever-it-takes mentality of Dick Cheney’s office and the Department of Justice in an effort to achieve a proper balance. Nonetheless, he also concludes his book by saying that for generations to come, the presidency “will be characterized by an unremitting fear of devastating attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so. The threats have such a firm foundation in possibility, and such a harrowing promise of enormous destruction that any responsible executive leader … must assume the worst.” That is to say, torture may not only be part of our past, it may also be part of our future.

What do we mean when we use the word “torture”?

In August 2002, the Justice Department delivered an opinion to provide legal cover for the interrogations of the CIA and other government officials, the notorious “torture memo.” It limited the definition of torture only to the kind of pain “associated with a sufficiently serious physical condition or injury such as death, organ failure or serious impairment of body functions.” It seemed to permit activities — like burning someone with cigarettes or pulling out his fingernails — that are so clearly torture by anyone’s definition that it reminds us why normal people hate the obfuscatory legalisms of lawyers. Goldsmith called the memo a “blank check,” and he rescinded it when he was in a position to do so.

But however hamfisted and self-serving the torture memo was, it was wrestling with a question that has tended to get lost in the current commotion. Interrogations can include a wide range of unpleasantness, but not all of it would necessarily be labeled “torture.” Is shaking a suspect torture? Or slapping him? What about solitary confinement? It seems wrong, a distortion of language, to use the same word for playing loud music in a suspect’s cell and subjecting him to genital mutilation. That is why the Convention Against Torture, the international agreement signed by the United States in 1988 under President Reagan, made a distinction between torture as such and what it called “cruel, inhuman and degrading treatment” that was not torture. That is also why supporters of the Senate report speak broadly of torture and why the opponents prefer the phrase “harsh interrogations.” The language matters.