The scandal that wasn't: why haven't we confronted torture?

Mark Danner called it "the frozen scandal." He was talking about torture. "We're doing it; we know about it; we do not have legal or moral ways to confront it," he said. "We are stuck at revelation."

The editor of Torture and Truth (New York Review of Books, 2004), a volume of official government documents accompanied by his analyses, Danner was speaking at a New York Public Library panel discussion on "The Question of Torture." Over a thousand people had gathered on June 1 for this particular effort at "revelation."

The Bush administration has consistently denied that torture by U.S. forces in Afghanistan, Iraq, and Guantanamo Bay is officially sanctioned. Such practices that have been verified (for example, at Abu Ghraib) the administration attributes to loose cannons among the military's lower ranks. CIA outsourcing of U.S. detainees--incarceration in countries where torture occurs--has also been reported by Raymond Bonner in the New York Times, for example, and Jane Mayer in the New Yorker, and a paper trail linking policy and practice between the loose cannons in the ranks and the big cannons in the administration has been steadily emerging.

Still, public reaction, despite the impressive crowd that turned out for the panel discussion, remains tepid. The panelists, to be sure, appeared foursquare opposed to torture as such; but much of what they said may help explain the in-difference of many Americans to the cruel, and sometimes deadly, methods used to interrogate prisoners captured in the war on terrorism.

The evening's discussion revealed three obstacles to a more robust public reaction. First, there is ambiguity about what constitutes torture. Second, there is a predilection for focusing on what circumstances justify torture, which, in turn, generates the notion that a line can be drawn and maintained between acceptable and unacceptable practices. Third, the war on terrorism has lowered the barriers to the use of torture.

Do we know torture when we see it? Does "coercive interrogation" constitute torture? Mark Bowden, a journalist who has written extensively on the subject, consistently used that phrase without clarifying whether he would call it torture (see his "The Dark Art of Interrogation," Atlantic Monthly, October 2003). Since interrogation of prisoners is allowed, how intrusive or coercive can it be before, turning cruel and even deadly, it is against the law? He pointed, for example, to the case of Khalid Sheikh Mohammad, a high-level Al Qaeda leader captured in Pakistan in 2003. After some weeks in detention, Mohammad was said to be providing useful information to the United States. Bowden calculated that some measure of coercion had been used because in the war on terrorism "information is everything," and Mohammad, the head of Al Qaeda operations, was the man thought to have planned the 9/11 attacks. How should the need to prevent future terrorist attacks or to break up terrorist networks be weighed against the use (and abuse) of coercive methods?

Thus was the "ticking bomb" scenario introduced into the conversation. This well-worn hypothetical, unleashed by philosopher Michael Walzer in a 1971 essay in the journal Philosophy and Public Affairs, imagines a terrorist in custody who knows of a bomb timed to explode in the immediate future. Where is the bomb? In order to extract this information and save the lives of hundreds (or perhaps thousands) of innocent people, can the prisoner be tortured? The scenario has been the subject of infinite variations: the bomb could be nuclear; the attack could be with biological weapons; the people could be school children. Whether or not Mohammad knew about a "ticking bomb," what if he had information about men constructing one? Can he be tortured? Was he?

Elaine Scarry, Harvard professor and author of The Body in Pain (Oxford University Press), drew the obvious point: Talking about torture and parsing permissible conditions "makes it plausible." Once we can imagine circumstances that justify torture--even when, as with Walzer's example, it is hypothetical--the drift from the hypothetical and exceptional to the actual and routine is almost assured, especially in the context of terrorism. Furthermore, where abuse is the default position, as Bowden observed about prisons, especially military ones, and when the strictures on torture have been loosened, as they have been by the Bush administration, the panel agreed that torture was almost inevitable.

While in the hypothetical case it is always a high-level and well-informed terrorist who is the candidate for torture, in actual circumstances it is often low-level operatives--who may know a few names--who are abused. Or it may be simple detainees, not operatives at all, who quite likely know nothing.

Thus, the singular hypothetical justification for torture, whether a ticking bomb or a terrorist network, migrates down-ward with the results that have been reported in Afghanistan and Iraq. As Tim Golden's reports in the New York Times show (May 20 and 22), even the most casually arrested detainees may find themselves being tortured at the hands of U.S. military men and women who know little about interrogation and less about the legal restrictions on it.

The spread of abuse and torture after September 11, 2001, whether intended or not, had its genesis in the administration's decision to deny "enemy combatants" the protections granted prisoners of war under the Geneva Accords, as well as under U.S. constitutional and statutory law, the 1988 treaty banning torture, the U.S. Code (Sec. 2340, Title 18), the Torture Victims Protection Act, and the Laws of War. Aryeh Neier, the panel moderator, enumerated these overwhelming legal prohibitions. Yet detainees held without charges and often incommunicado have no protections, whether their interrogations are legitimate or abusive. In addition, other decisions and documents meant to clarify (and perhaps at times to obscure) the administration's real intentions seem to have contributed to the anything-goes attitude in U.S. prisons abroad.

Those who argue the merits of justified torture, Danner pointed out, forget that "torture is a strategy of weakness." The United States uses it because "we do not have political standing so that communities [where we are fighting] will come to us with information." Damage to our political and moral position grows as we continue to tolerate abusive practices, further diminishing our ability to gather intelligence.

Darius Rejali, the fourth member of the panel and author of the forthcoming Torture and Democracy (Princeton University Press), offered another, more ominous explanation. He conjectured that at least some of the motive and emotion that has permitted torture to take hold lies in the view that "democracy has made us weak; real men know what to do." And in our equal-opportunity military apparently real women do too. These are our fellow citizens; they have grown up in our culture and eventually they will be back among us. What then?

Why are we stuck? Why has a citizenry raised on images associating torture of prisoners with Nazi or criminal sadists not been demonstratively outraged at the idea that such torturers could be wearing American insignia and serving as our official representatives? Has the natural revulsion at the very thought of torture been overcome by the fear of another terrorist attack? Has the overwhelming prohibition of the law been successfully evaded by the simple device of calling detainees "enemy combatants" and keeping them in prisons abroad? Has the pressing need for information overtaken the subtle art of interrogation--asking questions and patching answers together bit by bit without benefit of torture? Why are those who believe that torture is an intrinsic evil and who want the law enforced inhibited by semantic niceties and philosophical hypotheticals?

Margaret O'Brien Steinfels is co-director of the Fordham Center on Religion and Culture.