Posted on 02/12/2005 1:30:17 PM PST by freeholland
The opposition to the President’s nomination of Alberto R. Gonzales as Attorney General focused the attention of Congress, and America, on allegations that Mr. Gonzales’ authored an advisory memorandum for the president that at least implicitly approved the torture of prisoners in the War on Terror for the purpose of obtaining information.
The broad claims of Democrats who opposed his nomination were that any opinion supporting the use of psychological or physical pain or duress for the purpose of eliciting information from a prisoner, or detainee, i.e., torture, mild or severe, is wrong, and should have disqualified Mr. Gonzales from appointment as Attorney General.
Then on Wednesday, February 2, 2005, the San Francisco Chronicle published (Page B9) in its Open Forum an excellent article by Robert J. Delahunty, professor of law at St. Thomas University in Minnesota, and John C. Yoo, professor of law at the University of California at Berkeley, entitled “Geneva Convention Isn’t the Last Word.”
The abstract of it is that the Geneva Convention was, and is, a treaty adopted to provide for the humane treatment of civilians and prisoners of war in formal wars between the authorized and uniformed military forces of legitimate nations, and that the rise of “pseudo-states” that sustain terrorism, and richly-funded multi-national non-governmental organizations that perpetrate terrorism, and do not care a whit about the Genera Convention, are making the Geneva Convention obsolete. I urge you to read it. Search the SF Gate website, www.SFGate.com, or go to http://sfgate.com/cgi-bin/article.cgi.
This, and the debate over Gonzales’ nomination, prodded me to reconsider the presumption that it is never proper for a civilized nation to use torture. And it changed my mind. To illustrate, let me tell you a story.
Wednesday morning, about nine o’clock. It’s a beautiful day, severe clear and a light but bracing breeze off the Pacific Ocean. The Bay is the deep blue of dark sapphires, the whitecaps effervescent. The morning rush hour traffic into San Francisco is abating, and a quarter million people who commute from out of town are at work, most of them downtown in the Financial District.
Suddenly, in the lower, east-bound level of the tunnel through Yerba Buena Island that links the east and west spans of the Oakland Bay Bridge, the tractor of a tanker truck explodes as the bomb next to the driver is triggered. The truck swipes against the tunnel wall and then careens left across five lanes as it overturns, breaking up, and thirty thousand pounds of gasoline burst into flames. Dozens of cars and light trucks behind it, too close and too fast to stop, slam into the flaming wreckage and quickly ignite. The vehicles farther back are able to stop, not without a lot of jostling, but they’re trapped by the traffic behind them, and that by the traffic further back. In less than a minute the jam is a quarter mile long, and the flames spread quickly from one exploding gasoline tank to the next, as hundreds of drivers and passengers burn in their cars. Soon Interstate 80 eastbound will be a parking lot for miles, and it will take days to reopen the tunnel.
Two minutes later a semi loaded with firewood explodes and swerves sharply across the Golden Gate Bridge, spilling 30,000 pounds of firewood. A small bomb strapped to a drum of diesel fuel sets it ablaze, igniting the wood now tumbling out of the wrecked trailer and across the bridge. Dozens of cars going in both directions slam into the overturned truck and each other, closing the Golden Gate, at least for hours.
On Highways 280, 101, and 1, southbound, three other big rigs overturn and their flammable cargoes burst into flames. On BART, the Bay Area Rapid Transit System, briefcase bombs in the front cars of two ten-car trains, one going east, one west, in the transbay tunnel between San Francisco and Oakland explode. The force rips the cars apart, they jump the tracks and buckle between the tunnel walls, as the cars behind them plow through and collapse against each other at eighty miles an hour. Most of the people aboard are already dead or dying. In less than ten minutes, all six major routes of escape from San Francisco are shut down.
Even before this news permeates through the Mayor’s office, the police department, the FBI, and other agencies, a 911 operator punches up a flashing line. The voice on the phone says, “Listen to me. There is a bomb in San Francisco. It is a nuclear bomb. It will explode today. You will die. God is great.” The line goes dead. The operator’s face blanches white, and she calls her supervisor to listen to the tape.
Seconds later a priority e-mail arrives on computers at the Mayor’s office, the police department, the FBI, FEMA, the Chronicle, the Examiner, the major radio and TV stations, with the same message.
Quick response teams swing into action in minutes, rounding up everyone on their watch lists, no warrants, no knocks, blow the doors down and make the arrest. In the home of Abdullah Hussein, reputedly a distant cousin of Saddam Hussein, the teams hit pay dirt: the laptop that sent the emails warning of the bomb, with Hussein’s fingerprints on it.
At the police station, Abdullah Hussein is waiting in an interrogation room as Special Agent Barbara Pelosi enters and sits down across from him. “Please,” she says, “There is a message on your computer about a nuclear bomb in San Francisco. Do you know anything about it?”
“Of course,” replies Abdullah, “but I won’t tell you.”
“If you don’t,” says Special Agent Pelosi, “and if it explodes, many people will die, thousands, maybe hundreds of thousands. Including me, and you. You must tell us where it is and how to disarm it.”
“That is the point,” replies Abdullah. “We will die. And many others. I will be a martyr and go to paradise. You are an infidel and will go to hell. God is great!”
“Oh, my,” says Barbara.
She leaves for the hall. “I can’t get anywhere with him,” she confides miserably to everyone standing around. “I don’t know what to do!”
“Gimme a few minutes,” growls Special Agent Savage, and into the interrogation room he goes, locking the door behind him. There is a long minute of silence, and then a scream, then another, long curses in English and Arabic and howls of rage and pain. Ten minutes later, Special Agent Savage emerges.
“Call the Bomb Squad, Babs,” he barks, “Let’s roll, I got it.”
Special Agent Barbara Pelosi looks into the interrogation room and nearly faints. Abdullah is handcuffed and strapped to a chair, still conscious, moaning in pain, his neck and ears blistering with cigarette burns, his hair dripping and steaming from the scalding coffee poured slowly over his head, and several fingers smashed to pulp and shards of bone, a bloody hammer on the floor in the corner.
An hour later, Lieutenant Hannity clips the wires on the battery that powers the bomb’s timer and detonators. “How bad?” asks Captain Limbaugh. “I’d guess one to two kilotons,” replies Hannity, “enough to blow out one, maybe two square miles, kill maybe two or three hundred thousand immediately, another one or two hundred thousand later from secondary injuries and radiation poisoning. I think I need a drink . . .”
Question:
Under this hypothetical, was Special Agent Savage morally wrong to use torture - the calculated infliction of severe psychic or physical pain and suffering - to interrogate Adbullah Hussein?
There are two possible answers, Yes, and No.
If your answer is No, we agree.
If your answer is Yes, you have made a profound, and profoundly disturbing, moral and philosophical decision. You have decided that the comfort and equanimity of one terrorist is more important than the lives of a half million San Franciscans.
Conversely, you have decided that the lives of a half million San Franciscans are less important, and of less value, and deserve less protection and less respect, than the comfort and equanimity of one terrorist.
The moral and philosophical implication of deciding that the use of torture to interrogate those with information that might save the lives of innocent people is never permissible is to decide that the comfort and equanimity of terrorists and criminals is always more important than the lives and safety of their victims.
But, you say, this is an extreme example. Yes, I reply, but a plausible one, at least a possible one. But I’ll give you a less extreme example.
Your nine-year old daughter has been kidnapped, raped, mutilated, and tied to a tree, left in the woods to die, cold, in great pain, humiliated, terrified, sobbing, and alone. Through a combination of good police work and good luck, the police have the perpetrator - he’s a serial killer, he’s done this before, they know him. He has a record, he’s out on parole, and knows he has nothing to gain by talking. It’s his third strike, and it’s life in prison or death no matter what he does. But it’s a matter of pride not to tell the cops anything. He hates cops.
Is it morally permissible for the police to use psychic or physical torture to try to extract the location of your daughter from this guy in time to save her life?
If you say No, you have decided that the comfort and equanimity of this criminal is more important than the life of your daughter. I wonder how you are going to explain this decision to your wife, your husband, your girl’s grandparents, brothers, sisters, yourself when you look in the mirror . . .
I do not suggest that the use of severe psychic or physical pain to elicit information should be common. I think there is a very specific protocol that can and must be used to decide when it is appropriate, and this is it:
1. The person to be interrogated must be reasonably certain to have information about terrorist or criminal activity which threatens to cause death or great bodily harm to another;
2. The information is reasonably certain to be necessary or useful in preventing or defending against such threat of death or great bodily harm to another;
3. The infliction of pain must be no greater than is reasonably necessary to elicit the information, so that the level of pain suffered is controlled by the person to be interrogated - if he wants it to stop, all he has to do is tell us what he knows - and since his knowledge is of terrorist or criminal activity that threatens the life of one or more others, he has no moral right to conceal it;
4. The interrogation must be stopped immediately if it becomes reasonably certain that the person does not know what he was thought to have known, and cannot assist in the prevention of or defense against a threat of death or great bodily harm to another;
5. Torture should not be used to elicit information about past acts, which cannot be undone, but only as a means to prevent future harm;
6. There is no other reasonable, practical, or readily available means to obtain or attempt to obtain the same information, or effectively prevent or defend against such terrorist or criminal activity.
i.e., if you can do it without torture you should; but if torture is your best or only option, or is an indespensable tool to be used to protect the intended future victims of terrorism or crime, it is at least morally proper, and perhaps morally imperative. That is, there may be circumstances in which it would be immoral to refuse to use torture, psychic and physical duress, as an interrogation tool in the attempt to save others from a threat of death or great bodily harm.
But, the Eighth Amendment prohibits cruel and unusual punishment, you say. I agree, but this is not punishment for past acts - it is interrogation, under extreme circumstances, for the purpose of preventing future acts, when there is no other effective remedy.
There is a deep-seated and profound fear of the use of torture, the infliction of psychic or physical pain as a means of interrogation, even in time of war, and there should be. This is not something to be done lightly.
But a moral and philosophical decision that the comfort and equanimity of terrorists and criminals is more important than the lives and safety of their victims is morally and philosophically repugnant to civilization.
Indeed, I think a moral and philosophical decision that the lives of their victims are less important than the comfort and equanimity of terrorists and criminals is morally and philosophically as barbaric as anything can be.
While anyone can be forgiven, perhaps, for making it unthinkingly, since the idea of torture is also repugnant, only a true sociopath can honestly make and hold to this decision after thinking through its implications.
Absolute repudiation of the use of torture as an instrument of interrogation, at all times and under all circumstances, emasculates civilization. It is a kind of unilateral disarmament, and does nothing to deter terrorists and criminals from acts of terror and crime.
But, you say, our use of torture will encourage terrorists and criminals to do the same. I reply, they already do. They do not need, or ask, our encouragement. Hundreds of thousands of bodies have been disinterred from the killing fields of Iraq; the evidence is already overwhelming.
Terrorists and criminals are, by definition, those who willfully inflict unjustified death and pain and suffering on others, either for personal gain or satisfaction or power, or for the advancement of some ideological cause, or for convenience, or from simple disregard of the lives and rights of others. I do not think those who decapitate Americans, Asians, Europeans, on video to broadcast on Al Jazeera while chanting the praises of Allah, or who drive truck bombs into crowded streets in Baghdad, or plant bombs in resort hotels and on trains, or fly airliners into tall buildings, spend much time contemplating the morality or immorality of torture, or the fine points of the Geneva Convention.
About the Writer: Raymond Kraft is a lawyer and writer living and working in Northern California. Raymond receives e-mail at rskraft@vfr.net.
Good article. It particularly goads me with the MSM talks about the Geneva Convention in regards to the terrorists in Iraq. Sawing non-combatant people's heads off means you don't get to be protected by the document.
I agree.
The truly mind-boggling thing is that no one either at the hearing or in the press seriously questioned the assertion (Which is all that is) or the ethical and moral underpinnings of such a groundless and non-sensical cause and effect.
L
Thanks. Great article.
Was the hammer used to splat his gonads?
ping
The government should have tortured Richard Jewell and made that terrorist scum sing.
bttt
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.