Friday, November 18, 2005


This torture, no torture debate needs some direction. Too bad the listener cannot ask questions. Right now we have the Senate saying 90-9, “[No] cruel, inhuman or degrading [treatment of prisoners]”. Vice President Cheney is saying, let us exempt agents of the CIA when the acts are done on foreign soil. President Bush is saying, “We do not torture.” Some critics are saying that the President and Vice President are contradicting each other.

What the critics say does not necessarily follow. Even if the President and Vice President were talking about the same conduct, they may be consistent. It may be that we do not torture, as that term is defined by Alberto Gonzales, the Attorney General. Or it may be that some of us have tortured, as Gonzales defines the term, but that we have quit and have been prosecuted. Then the President’s assurances would be accurate.

It may be that Vice President Cheney is talking about “torture” as that term is used by the President (and the Attorney General), in which case Cheney may be asking Congress to exempt the CIA on foreign soil, from prosecution for torture. If such is the case, there is an inconsistency between what the President is saying and what the Vice President is asking. However, if the Vice President is seeking an exemption from prosecution merely for cruel, inhuman or degrading treatment of suspected terrorists, there would be no inconsistency. Merely exempt the CIA from prosecution for treatment of terrorists in a cruel, inhuman or degrading manner on foreign soil. We can still say we do not torture.

One problem, as Defense Secretary Rumsfeld points out, is that other countries in the civilized world may contend that a violation of the convention against cruel, inhuman or degrading treatment, is indeed “torture,” or may constitute “torture,” even though the treatment does not amount to “torture” under the latest revision of the definition by Attorney General Gonzales.

What is more likely than not, is that the President and Vice President and the Attorney General, are all on the same page, and that literally there is no inconsistency between the remarks of Bush and Cheney. President Bush says we do not torture, and that can reasonably be taken to mean that we do not torture as that term has been defined by Alberto Gonzales. Vice President Cheney says in effect, we do use cruel, inhuman or degrading treatment of suspected terrorists; but we do it by the CIA and on foreign soil. Let us continue, as we need to do it for our defense. It would seem that there is no inconsistency, and that the critics are wrong to say so.

It is another matter if the critics want to step up and say that Gonzales was wrong on his definition, that any reasonable person knows that he was wrong, that the President knows that he was wrong, and that the President is not being forthcoming when he says, “We do not torture.” The critics would then be accusing the President of trying to mislead us regarding our policy in the treatment of alleged terrorists. The critics could also say that the watered down torture treatment of “cruel, inhuman or degrading treatment” is something we do not want to tolerate, not even by the CIA on foreign soil. Then we would have the issues defined and could have an intelligent debate, without name calling.

As we understand it, we have treaties (specifically, “Geneva Conventions”) by which we agree, (1) we will not torture prisoners of war; and (2) we will not treat any prisoner in a “cruel, inhuman or degrading” manner. It is important to keep those two prohibitions separate in our minds, as the debate progresses.

Let us not confuse the issue by simply saying, “We do not torture.” Do we use the techniques of sleep deprivation, the near-drowning, the electric prod, the foreign object inserted, the chaining to concrete floor in fetal position in waste? We did do so at Abu Grab [sic], did we not? That is, did not some rogue, out of control United States military people at a low level of command, at that prison, on some isolated night shift, perform some of these techniques? Let us be specific when we say we do not torture. It would seem that the electric prod, for example, or the near-drowning, which would cause discomfort; or the sleep deprivation technique, or the chain to floor in waste technique, which might induce temporary psychosis, would not be torture under the Alberto Gonzales definition. Would they not be “cruel, inhuman or degrading” treatment?

What if the Senate had defeated by 90-9, this new legislative “thou shalt not?” Would we say then that the techniques described are moral under the circumstances? Since the Senate passed this new “thou shalt not,” should we now say that the techniques are immoral under the circumstances? Should we ask for an exception for the CIA on foreign soil (does it matter whether it is by Sgt. England in a military lockup in the mainland USA, or a nameless CIA in a secret prison in foreign territory)?

How about under the “ticking dirty bomb” scenario, would the techniques described be moral under those circumstances? Would torture as defined by Attorney General Gonzales be justified under the “ticking dirty bomb” scenario? Would it require an amendment of some Geneva convention, a treaty which we have signed and ratified?

Would it be best if we came on forthrightly and advocated an amendment, to allow “torture straight up” in certain cases, and let someone (who?) decide the cases? If the application for the warrant were signed by the Secretary of Defense, and approved by the Supreme Court, would a warrant authorizing straight-up torture be justifiable? If our treaties do not allow it, that would be another problem, but assuming that we could get around the treaties, would we want it?

Can we rationally discuss these matters, even debate these policies? We need not identify our political persuasion (though you must see that the writer is a liberal). We could start by identifying the issues. First, all seem to agree that we should not torture (even if they do not agree as to whether we have been torturing). Fine; no torture. Next, let us define our term. What do we mean by torture? We are familiar with some of the interrogation techniques that are criticized. It would help if we would take these techniques, one at a time, and examine and explain them, and then decide whether they are “torture” as we use the term.

Once we define torture (think of it as a small circle), then we can proceed to define the term “cruel, inhuman or degrading,” which is a large circle which includes the torture. We do not suppose that very many Americans object to interrogation by any technique which is not cruel, inhuman or degrading.

To get here, to allow interrogation at all, we have to agree that these detainees are not prisoners of war, otherwise the Geneva conventions would apply. As we understand it, the Geneva prisoner of war convention bars interrogation, period. That is what Alberto Gonzales thought was "quaint" in todays war on terror. (Some misunderstood him, we believe, and thought he was saying that the Geneva conventions were "quaint."

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