TCS Daily

How Should We Coerce Life-Saving Information from Terrorists?

By Michael Rosen - January 11, 2005 12:00 AM

Of the hundreds of memoranda White House Counsel and Attorney General nominee Alberto Gonzales has sent and received in his career, none has provoked as much controversy as the infamous "torture memo" of August 2002.

That memo -- authored by then-Assistant Attorney General and current Ninth Circuit Court of Appeals judge Jay S. Bybee -- furnished legal justification for the use of certain coercive interrogatory techniques not rising to the definition of torture under domestic or international law.

For soliciting and possibly implementing the memo's recommendations, Gonzales came under withering attack from editorial pages and Democratic senators alike. All this despite the Department of Justice's recent issuance of a superseding memorandum that stepped back from Bybee's position.

Tomes have already been written about the Gonzales confirmation hearings, the torture memo, the legality of certain practices, and whether or not captured terrorists deserve the protections of the Geneva Convention; I don't wish to cultivate already well-plowed ground.*

Instead, I take as a given that some coercive measures will and should be implemented in certain interrogatory situations, although we must weigh the importance of the information we seek against the damage our methods inflict on human dignity. As such, this article examines the moral and legal implications of two potential approaches that investigators could follow in seeking information from imprisoned terrorists: Alan Dershowitz's torture warrants and Mark Bowden's necessity defense.

In his 2002 book Why Terrorism Works, Harvard law professor and "defense counsel to the stars" Alan Dershowitz outlines the strategy he believes Western states should follow in confronting the terrorist scourge. Perhaps his most novel -- and hotly disputed -- suggestion is that interrogators seek a judge-issued "torture warrant" before using physical tactics to grill captured terrorists.

Dershowitz confines the availability of such warrants to the famous "ticking time-bomb" situation in which thousands of lives, in imminent peril, could be saved by extracting information from a prisoner, if only the interrogators could force it out of him. His prime example of a putatively acceptable tactic involves sticking a sterilized needle under the detainee's fingernail -- exceptionally painful for a short time but with no lasting effect.

Dershowitz's rationale, as he described it to CNN's Wolf Blitzer, is that "if torture is going to be administered as a last ought to be done openly, with accountability, with approval by the president of the United States or by a Supreme Court justice."

The beauty of Dershowitz's plan lies in its honesty. In a sense, the idea of seeking a torture warrant comports nicely, if grotesquely, with the best American political notions of openness and accountability; much like a search warrant, an officer seeking information must consult with a high official, judicial or executive, before infringing a suspect's constitutional rights. The Dershowitz "sunshine policy" helps minimize abuses through independent review of interrogatory techniques.

Heather Mac Donald, in a must-read article in City Journal, bolsters Dershowitz's approach with her report that military interrogators in Afghanistan and Cuba specifically requested permission from Secretary of Defense Donald Rumsfeld to engage in certain techniques. (Incidentally, the tactics they sought to employ, according to Mac Donald, were worlds milder than anything reported in the press. One such request sought authorization to offer a detainee a Cadbury's Dairy Milk chocolate bar as a reward for providing information, a measure proscribed under the Geneva Convention as an "incentive for cooperation.")

On the other hand, the very openness of the torture warrant begets a range of problems. First, placing sensitive information in the hands of the judiciary -- even in the discreet chambers of a Supreme Court justice -- presents a risk of discovery or exposure. As the recent leaks from the BALCO baseball steroids scandal illustrate, even those in a grand jury room, bound by law to keep a matter confidential, can slip up.

Second, openly embracing torture, even as a last resort, would be a PR disaster for the United States. Our credibility on human rights issues would all but cease to exist, as would our leverage in reforming the practices of countries engaging in much more egregious forms of torture.

Third, obtaining a torture warrant would become a difficult and lengthy process in situations when time is of the essence. While investigators petition the Supreme Court, the ticking time-bomb may detonate. In these respects, the torture warrant idea captures the worst of both worlds.

By contrast, if Dershowitz shuns what he calls "the way of the hypocrite," Mark Bowden wallows in it. In a landmark article in the October 2003 Atlantic Monthly, Bowden presents a hands-on account of "The Dark Art of Interrogation." Bowden, the author of Black Hawk Down and Killing Pablo, detailed the interrogation of Khalid Sheikh Mohammed, Osama bin Laden's onetime close associate. He comes to the conclusion that under certain circumstances, some coercive physical methods -- hooding, sleep-deprivation, shoving -- should be allowed. (Bowden's account, like Mac Donald's, casts doubt on the alleged severity of the methods employed at Guantanamo and elsewhere. Unlike Mac Donald, however, Bowden sees some connection between Abu Ghraib and the torture debate).

But Bowden resists the allure of the torture warrant, arguing that under Dershowitz's scheme we must beware a slippery slope. Bowden asks: "How can we ensure that the practice does not become commonplace -- not just a tool for extracting vital, life-saving information in rare cases but a routine tool of oppression?"

Instead, he opts for the following formulation: "Candor and consistency are not always public virtues. Torture is a crime against humanity, but coercion is an issue that is rightly handled with a wink, or even a touch of hypocrisy; it should be banned but also quietly practiced." A thorough verification must accompany any interrogation to ensure that the information is reliable and that the detainee isn't simply feeding his captors what they want to hear in order to avoid pain.

The way this would play out in the real world, says Bowden, closely resembles the practice in Israel where the Supreme Court in 1999 outlawed coercive tactics altogether. Yet with an ever-present terrorist threat looming in the background, Israeli interrogators occasionally violate the torture ban and pay the consequences afterward, in court. Under this approach, the investigator must weigh the risks involved in coercing information and not doing so: will the information save lives? If not, could I go to jail for shoving or "water-boarding" the prisoner? Will any executive official take the political heat that would attend prosecuting me? If I'm prosecuted, can my behavior be excused by the exigencies of the moment?

The advantage of Bowden's system of post-facto justification resides chiefly in the uncertainty it produces. Unlike the torture warrant system where a detainee knows that his captors must obtain approval before administering any coercive measures, in Bowden's world the prisoner never knows for sure what the interrogator will do. This uncertainty alone provides the questioner significant leverage.

In addition, the "necessity defense" method retains secrecy when appropriate -- i.e. at the time of the interrogation -- but subjects the conduct to public opinion and judicial review after the emergency has passed.

On the other hand, the winking hypocrisy of Bowden's approach in some measure undermines the force of law itself and could harm America's image abroad. Furthermore, placing on the shoulders of a low-level interrogator, rather than a judge or high official, the burden of deciding whether or not to coerce information could become overwhelming and subject to abuse. It could also promote a fundamental conservatism among investigators: if their careers are on the line with every choice of tactics, the risk-averse among them will choose to do nothing.

Thus, neither Dershowitz's nor Bowden's methods are perfect. But both offer helpful insights into the intersection between our ideals and our needs. At a time when terrorists are attempting to acquire the means for increasingly devastating attacks, government officials would do well to consider the two suggestions.

Michael M. Rosen, a TCS contributor, is an attorney in San Diego.

* End note: I can't resist pointing out the fundamental difference, lost on many in the media, that the Convention Against Torture outlines between torture and "other acts of cruel, inhuman, or degrading treatment" that do not amount to torture. There are a host of cases in the International Court of Justice, the European Court of Human Rights, and several U.S. appellate courts distinguishing the two. While excusing certain actions as merely "cruel, inhuman, or degrading" hardly occupies any moral high ground, it is critical to use the precise legal term "torture" only when appropriate.

Also, it's important to note the extreme unlikelihood that the August 2002 memo, or any of Gonzales' stewardship as White House counsel, had anything to do with the Abu Ghraib atrocities. As Heather Mac Donald observed in her City Journal article, the memo was authored in response to a request from CIA interrogators, not the Defense Department, and it's highly improbable that anyone at the Pentagon knew of its existence until it leaked in mid-2004, well after Abu Ghraib became public.


TCS Daily Archives