Two related issues are in the forefront as Congress heads out of town for the campaign stretch leading up to the November elections - should we legalize torture and has the Iraq invasion and occupation created more terrorists and caused more terrorism.
To consider these issues we need to ask ourselves two fundamental questions.
1. What is torture? The word “torture” comes from the Latin for twisting or breaking, the same root as the word “tort” as in the Bush so-called “tort reform”. Just as Bush obtained legislation limiting the liability of doctors who wrongfully injure their patients, he now wants to limit the liability of American interrogators who use torture. The Bush justification for limiting the rights of injured patients was that some patients make frivolous claims, inflating malpractice insurance premiums and causing doctors to stop treating patients. The Bush justification for legalizing the use of torture is that some persons accused of being terrorists may have information that can prevent future terrorist attacks and that can only be obtained by torture. The possibility there could be one frivolous patient or one key source of terrorist information is enough for Bush to sanction tortious conduct against all the patients and all the suspects.
A Sense theme is that of the continuum - a line from one end to the other. The continuum for how to obtain information to prevent terrorist attacks runs from cash rewards at the nice end, to endangering vital organs and inflicting likelihood of imminent death at the other. The Geneva Conventions are international agreements that draw the line of unacceptability at an agreed middle point. Bush wants American law changed to push the Geneva line more toward the “mean” end.
2. Who are the terrorists? People who use terrorism as a tactic are terrorists. Terrorism is intimidation of civilians. The 9/11 hijackers intimidated Americans. The recent Israeli retaliation against Hamas in Lebanon intimidated civilians, as did the Hezbollah rocket launches into Israel. Bush said those who “harbor” terrorists will, in effect, be treated as terrorists. The people of Fallujah found that out. Insurgent terrorists hide among the population, as they are doing now in Iraq and as the resistance forces did under the Nazi occupations in Europe. Consider this timely terrorist continuum, from innocent to evil: bystanders, inadvertent shielders, sympathizers, mistaken identities, passive harborists, active harborists, occupation resisters, assassins of supporters of occupying forces, assassins of occupying forces, intimidators of all the foregoing groups in reverse order, with intimidators of innocent bystanders being the most evil. Where should the line of allowable torture be drawn on this continuum? Bush seems to think only bystanders are innocent, though they might become “collateral damage” if they are standing too close to anyone else.
The most credible voices in the current debate are those with experience in the subject and who are not running for election or subject to prosecution for use of illegal torture. International law scholars, military law experts and former military commanders overwhelmingly agree that the Geneva Conventions should be honored and there is no need for the US to embrace torture. As Colin Powell pointed out, using torture gives up the moral ground. As a practical matter, torture yields false information that masks whatever might be useful. Non-tortuous tactics have a proven record of success.
Bush implies that torture has already prevented attacks. This also implies he has been breaking the law, which should surprise no one, since Bush asserts he is commander-in-chief in a “war on terror” with extraordinary war powers to do whatever he wants to “defend America from terrorists”. The claim of prevention cannot be verified, Bush says, because presenting evidence would tip off other terrorists to the fact that we are using torture, and enable them to better resist it. The snake oil salesman cannot reveal the ingredients, lest the serpent be wizened.
As for the “ticking time bomb scenario”, the premise is that we have reliable information that such a bomb is ticking and that the person being interrogated actually knows how to stop it and torture is the only way to get the information from that person. In that scenario, relying on torture is a great gamble that can only pay off if the premises are all true and the torture actually timely yields a true answer. I expect such a terrorist would have anticipated torture and would be prepared to yield a wild goose chase answer. I also expect that such a substantial plot would be intricately designed so that once started, nobody would actually know how to stop it. We need to prevent this scenario from actually coming into being, by earlier intelligence and interrogation techniques of proven effectiveness, rather than by relying on counterproductive torture.
The second issue is more easily addressed. There should be no doubt that the Iraq invasion and occupation has created more terrorists and caused more terrorism, as verified by the just released National Intelligence Estimate. A short while back the question being debated was whether Iraq was part of the Bush so-called War on Terror. The answer is yes, because the American invasion and disastrous occupation of Iraq has provided a fertile ground for terrorists. But the more fundamental answer is that it should not have been.