The Grand Inquisitor
At one level the debate over the use of torture in the War on Terror is moot. The United States military has a long operational history of forgoing possible practical advantages in favor of upholding certain national values. The most obvious modern example are rules of engagement in the use of fires. During the recently concluded assault on Fallujah and in current operations in Iraq, military restrictions on the use of firepower around mosques or populated areas are enforced with the foreknowledge that such steps will result in statistically higher casualties to troops. This practice follows long historical precedent. The policy of precision daylight bombing during World War 2; the tendency toward 'No First Strike' during the Cold War and even the restriction on political assassinations in the Carter years are all examples of unilateral renunciations of military advantage.
As Eugene Volokh pointed out, framing the debate over torture in purely moral terms blinds us to other issues that it raises. Unless it is wholly pointless and sadistic, torture is the act of substituting the torment of one person for another; the suffering of a suspect to prevent the suffering of the presumed victim. This characteristic makes the legalization of torture appealing even to intelligent people like Alan Dershowitz. His characterization of the need for a 'torture warrant' to find a way out of the predicament of the 'ticking time bomb' underscores the fungibility of suffering in the starkest terms. The absolute refusal to employ torture under any circumstances is inevitably the acceptance of the suffering of victims whose death or dismemberment could have been prevented by its use. Yet accepting the legitimacy of torture, however extreme the circumstances, carries with it the danger of what Eugene Volokh called the 'slippery slope': the embrace of an abhorrent principle to satisfy the exigencies of the moment.
The way out of this logical prison may lie in appreciating the similarity between restraints on torture and restrictions on dealing out death on a battlefield on which innocents may be present. Time and again a military commander must give orders which will result in the statistically certain death of civilians in order to combat the enemy. He never admits to its desirability -- never embraces the abhorrent principle -- but instead binds himself to a process designed to reduce these evils to the practical minimum. It is a position made tenable only by the rejection of absolutes: on the one hand to maintain the principle against harming innocents while at the same time accepting the existential need to defeat the enemy. It is often a world of compromise and sometimes of fiction. But it is real enough. Americans pay the price of humanity with actual red blood.
Two things flow from this observation. The first is that sacrosanct principles are upheld even at great cost. Limits on allowable behavior are imposed even in the presence of a literally ticking bomb. As pointed out earlier, the US has a long history of accepting the consequent suffering of its men as a price for prosecuting war under nationally accepted principles. If Iraq is not proof of that, then Vietnam certainly was. But the second is that the preservation of those sacrosanct principles is never carried to the point where action becomes impossible. Upholding national values must never come at the cost of defeat and extinction; must never become 'a death pact'. Hence abstract rules of engagement are meaningless; they acquire a significance only in their practical effect. This implies that the debate on torture, if is to have any relevance, cannot simply be a carping or grand restatement of principles. They must meaningfully determine what American fighters are allowed or not allowed to do with the specificity that even now controls the use of force in Iraq.
The danger is that the confirmation hearings of Attorney General nominee Alberto Gonzales will in the end leave the entire question of interrogating prisoners undefined or stuck in the 19th century idealisms of the Geneva Convention. There must be definite guidance on whether it is permissible to require more than the name and rank and serial number of a captured terrorist; and if so how far one may go. It should be understood that any restrictions imposed must be carried out to the letter, even if these restrictions almost certainly result in the deaths of American soldiers and innocents, because that is what rules of engagement do. That realization should make policy makers craft their restrictions very thoughtfully; something alas, which they rarely do. Just as the torturer who claims that he serves a higher cause stands on false ground so too must the man who advocates gentleness with terrorists accept that the pursuit of his moral good will often be bought by the suffering of children. On every battlefield men have tried to strike a balance between saving their lives and saving themselves; and the choice though hard is before us.
I am not at all convinced that putting panties on a prisoner's head constitutes torture in the context of the War on Terror; nor should sleep deprivation, some physical violence and other types of intimidation be ruled out of bounds. But neither is it persuasive to argue that standing at the telephone receiver while an Egyptian interrogates a "rendered" prisoner in Cairo not torture, though legally it may not be. That is the weasel-world toward which a pious acceptance of unrealistic rules of war leads us to.
We ought to be manly enough to authorize the use of a certain amount force on terrorist suspects, but only to the degree consistent with our deepest national values. To strike a balance between the need to maintain certain principles without paying too much for it in terms of military advantage; remembering what cost in blood must be paid for keeping the national conscience clean. It is a cup that will not pass away. We will be called to account not only for our management of captives but also for whether we allowed them to kill the innocent while they grinned insolently before us. Both the tortured prisoner and the child blown to pieces by a terrorist bomb will accuse us on the Last Day. About the only thing we can do is our best. But there is no weaseling out, no escape from choice.