Torture By Any Other Name

Last December, the Senate Intelligence Committee released the Study of the Central Intelligence Agency’s Detention and Interrogation Program– an exhaustive report detailing the “enhanced interrogation” techniques practiced by the Central Intelligence Agency during the Bush presidency. According to this report, the CIA misled Congress, the Whitehouse, and the public regarding the scope, brutality, and efficacy of these techniques, calling some commentators to deem the techniques “torture.”

How the Justice Department will respond to these findings is unclear. When asked whether the administration would follow up on these findings or seek to prosecute offenders, President Obama responded that the country should “look forward as opposed to backwards.” Part of the president’s reluctance to rely on the report stems from the fact that the new Republican congress is unlikely to prioritize a report demonizing policies that many republicans favor. The Study, however, is still an important record of CIA wartime practices and may serve as important precedent in future conflicts.

The dichotomy between modern “enhanced interrogation”- which includes practices like “water boarding” where the detainee is subjected to pain without incurring physical damage- stems from the evolution of historical attitudes toward torture. For most of human history, the practice of torture was an acceptable form of extracting information and/or punishing prisoners. Indeed, denouncing torture as immoral or inhumane is a fairly modern concept. World War II brought forth unprecedented level of barbarism toward prisoners of war (POWs). Of the many crimes that the Nazis and Imperial Japan were prosecuted, war crimes and crimes against humanity were paramount.

After the horror of that war, public attitudes towards torture changed. After the war, the United States signed the Geneva Convention– a series of treaties that established a baseline level of humane treatment all signatories must afford prisoners of war. Finally, the United Nations Convention Against Torture explicitly defined “torture” to erase ambiguity over its commission:

Torture is any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Cornell Law Professor Jens Ohlin explained that the international definition of torture is a functional definition, and not a laundry list of acts. In other words, “torture” is an act that satisfies several characteristics- specifically, the intentional infliction of severe pain or suffering (physical or mental) to achieve a purpose. Again, the United States has signed on to many international treaties prohibiting torture. Under domestic law, the Federal Anti-Torture Statute essentially codifies the definition above and prohibits the practice of torture.

According to the Study, many enhanced interrogation techniques, including waterboarding and rectal feeding, clearly falls under the definition of torture.[1] Additionally, influential legal scholars have argued that torture is a legal, national security tool. The esteemed Richard Posner stated that “torture should be used- and will be used- to obtain information” in response to an existential threat. But critics of the practice point out that the efficacy of these techniques is integral to any legal justification, and point to the Study’s consistent mantra that practices like waterboarding do not yield reliable intelligence.

It is therefore revealing to see the Whitehouse’s unwillingness to pursue this topic and congressional schism over its self-gifted white elephant- the Study. After all, the Executive Branch has ample authority and obligation to investigate further, but it won’t; the Study could have condemned the CIA’s techniques on moral grounds rather than their ineffectiveness, but it didn’t. Indeed, the non-prosecutory mood in the United States astounded the European community, whose European Court of Human Rights have heard cases involving the member states that harbor the detention sites used by the CIA. The reservation of both branches reflects the mixed view of the American public toward torture: “we find the practice abhorrent and barbaric, but we are unwilling to rule them out completely.” Evidently, the public and its leaders want to be realistic and idealistic at the same time.

To the extent that legal opinions eventually mirror public sentiment, the legality of the interrogation techniques in the United States, then, rests on two variables: the nature of the threat and the effectiveness of the techniques employed. Past practices such as waterboarding have been justified or criticized by officials primarily on these two variables. This likely will continue in the future. As foreboding as it may seem, torture indeed can be – and will be if necessary – justified. A country in an existential crisis, whether real or perceived, could rarely afford morality.