When Torture Is Necessary

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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From the perspective of Israel, whose high court quite sensibly permitted in a 1998 ruling the use of “moderate physical force” in the interrogation of terrorist suspects, there is something both impressive and slightly surreal about the debate on torture that has been going on in the United States. Impressive because, at least in part, its intellectual level – one thinks, for example, of the recent exchange between Charles Krauthammer, writing in The Weekly Standard, and Andrew Sullivan, taking issue with him in The New Republic – has been very high. In Israel, which has known similar arguments over the years, they rarely have risen above the level of journalistic advocacy.


And yet the terms of this debate, particularly in the “anti-torture” camp, have also tended to be so abstract as to seem detached at times from all reality. This is a point that Charles Krauthammer, with whom I find myself in agreement on most things, makes well.


“Torture” has become a catchword for a wide variety of different methods for extracting information by inflicting duress on a prisoner. Apart from being unpleasant to one extent or another, there is not a great deal in common between having one’s face slapped, being deprived of sleep, being falsely told that one will be executed in an hour, having one’s fingernails torn out, being “waterboarded,” being made to sit for long hours naked or with one’s head in a sack, having electric shocks delivered to one’s genitalia, and being exposed for long periods to loud music.


If all of these are “torture,” we can only say that torture can sometimes be excruciatingly painful and sometimes not hurt physically at all, and that its severity may not stand in any proportion to its physical discomfort. Who would not rather go without sleep than live through an hour convinced it is his last? Indeed, if torture is anything that is barred by the McCain amendment as the “cruel, inhumane, or degrading” treatment of prisoners, the very fact of being imprisoned, which is a degrading experience in itself, might be considered torture,too.


This isn’t quibbling. It’s pointing out that interrogators of suspected or actual terrorists have at their disposal an extremely wide range of possible techniques, all of which are “cruel, inhumane, or degrading” to some degree, and that unless one or more of them are used, the chances of getting information from anyone are minimal. If you are an Al Qaeda operative bound for prison anyway, why rat on your comrades when nothing bad will happen to you if you don’t?


Any law against torture that remains on the level of generalities without telling interrogators specifically what they may or may not do is next to worthless. And yet because no legislator will ever write such a law (“the slapping hand must be bare and may apply up to x dynes of force”), no anti-torture legislation will ever be very useful.


Moreover, although a great deal of torture is pure sadism for which there is never the slightest justification, torture sometimes, as Mr. Krauthammer points out, produces results – and as ugly as torture may be, it may be evil not to resort to it under certain circumstances, variations on which are easily imaginable. The person who would willingly let innocent people die because he refuses to torture a known terrorist in possession of information that might save them is himself a moral monster. Such behavior is like that of the pacifist who declines to use force against a mass murderer shooting people in the street because his idealism forbids him to do it.


The suggestion has frequently been made that the use of torture should be limited to the so-called “ticking bombs,” i.e., interrogated prisoners who know things about terrorist acts that are imminently about to be committed. Yet this, too, is making rules for real situations on the basis of unreal abstractions. How shall we define “imminently?” Within the next hour? The next day? The next week? And if our interrogee can lead us to a terrorist cell that is planning a bus bombing in two weeks, must we then decide that he is no longer “ticking” and that the cell should be allowed to proceed unhindered? What possible law could draw sensible limits in these matters?


Alternately it has been proposed, among others by a distinguished jurist like Alan Dershowitz, that the solution to the problem is to have “torture warrants,” on the order of search warrants, that would be issued by courts in specific cases where security forces or police think they are merited. (Without wishing to steal Mr. Dershowitz’s thunder, I might observe that I myself suggested this some 15 years ago in a column in The Jerusalem Report.) Yet since judges would in any case have to rely almost entirely on what they were told by those asking for the warrant, the danger of them becoming a mere rubber stamp would be great.


In the final analysis, the question of torture in cases involving the possible saving of human life is not as amenable to legislation as a legalistically oriented society like America would like to believe. The only reasonable determining factor in how best to interrogate terrorists is a combination of human intelligence, human decency, and common sense at the operative level of police and security forces themselves.


Needless to say, such forces require outside supervision. Yet it would make more sense for this to consist of making sure that they have responsible heads and chains of command that can set and enforce stringent guidelines for the application of “moderate physical force” than of simply forbidding it.



Mr. Halkin is a contributing editor of The New York Sun.


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