"No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency," says the convention, can "be invoked as a justification of torture." That terrorists themselves torture does not change these imperatives. Our compliance does not depend on reciprocity.Fair enough. But few of us have dug deeply into the implications of this stand. Ignatieff takes this challenge on and in the end forced me to wrestle with some tough issues.
In the now notorious memos submitted by the office of legal counsel to the White House in 2002, these definitions were stretched to the point that the threshold for torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death." Any physical abuse below that standard counted as "coercive interrogation." Some forms of coercive interrogation, the lawyers admitted, might not be torture, but they would still be defined as "inhuman and degrading treatment."A definition of this difference is hard to pin down. And Ignatieff doesn't provide one. He is against lumping both together as a work-around this problem.
Clear thinking about torture is not served by collapsing the distinction between coercive interrogation and torture. Both may be repugnant, but repugnance does not make them into the same thing.He sees the path from coercive interrogation to torture as a continuum.
But at every ratchet of coercion, moral problems arise.At what sort of interrogation would he draw the line?
It might be lawful to deceive a subject under interrogation, by stating that all of his associates are already in detention when they are still at large. But other forms of deception can inflict excruciating psychological anguish. Threatening a subject with the imminent death or torture of those dearest to him may not leave any physical marks, but it rightly can constitute torture, not just coercion, in even the US Senate's definition.This leads to the region that leaves him most open to criticism. Even if the actual meaning of the words make it clear that he does not support torture itself.
Like Elshtain, I am willing to get my hands dirty, but unlike her, I have practical difficulty enumerating a list of coercive techniques that I would be willing to have a democratic society inflict in my name. I accept, for example, that a slap is not the same thing as a beating, but I still don't want interrogators to slap detainees because I cannot see how to prevent the occasional slap deteriorating into a regular practice of beating. The issue is not, as Elshtain implies, that I care overmuch about my own moral purity but rather that I cannot see any clear way to manage coercive interrogation institutionally so that it does not degenerate into torture.
On the issue of regulation, there are those—Alan Dershowitz, for example—who believe that banning torture and coercion outright is unrealistic. Instead, the practice should be regulated by court warrants. But judicialisation of torture, and of coercive interrogation techniques involving stress and duress, physical abuse, sleep deprivation and so on, could lead to torture and coercion becoming routine rather than an exception.
It seems clear from the dire experience of Abu Ghraib that outright prohibition of both torture and coercive interrogation is the only way to proceed. Rules for interrogations, with penalties in the uniform code of military justice, should be mandatory.
So I end up supporting an absolute and unconditional ban on both torture and those forms of coercive interrogation that involve stress and duress, and I believe that enforcement of such a ban should be up to the military justice system plus the federal courts. I also believe that the training of interrogators can be improved by executive order and that the training must rigorously exclude stress and duress methods.
First of all, there is the problem of the exceptional case, one where lives can be saved by the application of physical methods that amount to torture.... An outright ban on torture and coercive interrogation leave a conscientious security officer with little choice but to disobey the ban. In this event, as the Israeli supreme court has said, even a conscientious agent acting in good faith to save lives should be charged with a criminal offence and be required to stand trial. At trial, a defence of necessity could be entered in mitigation of sentence, but not to absolve or acquit. This is the only solution I can see that remains consistent with an absolute ban on torture and coercive interrogation. Let us not pretend that the enforcement of this rule would be easy. Where the threat could be shown to be genuine, it seems evident that few legal systems would punish such a conscientious offender.I don't see how this method won't fall into the same trap as the regulation of torture. It doesn't take too much imagination to see where Bush could see his way to pardoning torturers on almost any pretext. This is too easy a loophole to leave open.
"Permissible duress might include forms of sleep deprivation that do not result in lasting harm to mental or physical health, together with disinformation and disorientation (like keeping prisoners in hoods) that would produce stress."And Ignatieff's thoughts on what might constitute acceptable levels of torture are revealing. It's hard to imagine that he would find such coercive methods of interrogation acceptable if the were, say, applied to him."Page 242
If they are right, then those who support an absolute ban on torture had better be honest enough to admit that moral prohibition comes at a price. It is possible, at least in theory, that subjecting interrogators to rules that outlaw torture and coercive interrogation, backed up by punishment if they go too far, will create an interrogation regime that allows some interrogation subjects to resist divulging information and prevents our intelligence services from timely access to information that may save lives.