Members of this roundtable:
Juliette Kayyem is a lecturer at Harvard's Kennedy School of Government and is a co-author, along with Philip Heymann, of the report that came out of the Harvard joint project.
Oren Gross is a professor at the University of Minnesota Law School and is an expert on the Middle East and the Arab-Israeli conflict. In his writings, Gross advocates a ban on torture, but he would allow the forgiveness after the fact of public officials who used torture in emergency situations. Some call his proposal "OAF," or "outlaw-and-forgive."
Sanford Levinson is a professor at the University of Texas at Austin and is the editor of the 2004 book, Torture: A Collection.
Tom Parker is a fellow at Brown University and was an adviser for the Harvard project. For six years in the 1990s, he was a counter-terrorist investigator in Great Britain. He contributed an appendix to the Harvard report on Britain's experience confronting terrorism in Northern Ireland.
David Rivkin is a lawyer in Washington D.C., and has served in the Reagan and George H.W. Bush administrations. He writes frequently on law, defense and foreign policy.
Michael Traynor is a San Francisco lawyer who served on the advisory board of the Harvard project. He wrote a letter of dissent to the project's authors disagreeing with their recommendations on coercive interrogations.
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The classic example in the debate is whether a "ticking time bomb" terrorist should be tortured. It assumes that a person has information that could save hundreds, thousands, even hundreds of thousands of lives. If that person is in custody, how far should authorities be willing to go to obtain that information?
Catastrophic cases are rare. Yet they are not hypothetical. When they do occur they present decision-makers with truly tragic choices. The standard example in this context is the ticking bomb in the mall. It is the German case of September 2002, involving the kidnapping and murder of 11-year-old Jakob von Metzler, and the threatening by the police of his kidnapper with torture.
Editor's Note: Three days after Metzler's kidnapping, police watched a man collect the ransom and arrested him. The suspect toyed with his interrogators about the location of the boy and the police chief allowed his officers, in a written order, to torture. After he was threatened with pain, it took only 10 minutes for the suspect to reveal the location of the boy, who was already dead.
I would offer the following brief observation here: First is that, in my opinion, to deny the use of preventive interrogational torture in such circumstances may be as cold hearted and immoral as it is to permit torture in the first place. It is cold hearted because, in true catastrophic cases, the failure to use preventive interrogational torture will result in the death of innocent people. Upholding the rights of the suspect will negate the rights, including the very fundamental right to life, of innocent victims.
To deny the use of preventive interrogational torture in such cases is also hypocritical: experience tells us that when faced with serious threats to the life of the nation, government -- any government -- will take whatever measures it deems necessary to abate the crisis. An uncompromising absolute prohibition on torture sets unrealistic standards that no one can hope to meet when faced with extremely exigent circumstances.
Such unrealistic standards would either be ineffective or be perceived as setting double standards. To quote from Michael Walzer, sticking by the absolute prohibition on torture, no matter what, reflects a "radicalism of people who do not expect to exercise power … ever, and who are not prepared to make the judgments that this exercise … require[s]."
I have become dubious about ticking bomb hypotheticals, for a variety of reasons: There are, I think, no known cases of genuine "ticking bombs." The German case is the closest case, and there are two things worth noting about it: A) It has nothing whatsoever to do with national security, and B) The number of lives at stake was one. My own view, as a parent and grandparent, is that I would in fact want the police to do "whatever it took" to get relevant information about my child or grandchild, yet my view as a disinterested citizen is that it is probably a good idea that the German law is as it is, and that it is legitimate, in effect, to sacrifice the [life] of an innocent child rather than breach the no-torture rule.
On the other hand, if we are talking of a situation where there really is a good reason to think that, say, 100,000 lives are threatened, then I am not such a purist. But, furthermore, I don't think the bomb need be "ticking." If one believed that there was reliable evidence of a plot to place a nuclear device in Chicago, then I might consider (at least) "highly coercive interrogation" in order to save those innocent lives. I really don't know where the "break point" comes for me, i.e., whether it's 10; 100; 1,000; or 10,000 innocent lives. But I do know that I have a break point.
I would, incidentally, continue to be a "purist" regarding gaining information about, say, attacks on U.S. troops in Iraq or Afghanistan. For better or worse, the essence of the Geneva Conventions is that POWs can't be forced to give anything more than name, rank and serial number. Military professionals accept the fact that there are limitations on gaining information that might in fact save soldiers' lives. But I don't know that civilians necessarily can be asked to bear the same risks, especially if the numbers get relatively high.
I'm also a skeptic of the likelihood of the ticking time bomb scenario, though I watch Kiefer Sutherland and "24" with enthusiasm every season. But, to not engage that possibility, however unlikely, leaves those who want to regulate and who believe that the present legal background has been so corrupted by this administration's interpretation with the option to simply wish that remote possibility away -- I don't think that can work with the public or with Congress.
The German example involved a kidnapper motivated by nothing more consuming than financial greed. Terrorists are mostly cut from different cloth. They are usually hard men and women who believe strongly in what they are doing. Some embrace martyrdom. Not everybody talks, and even when they do, how sure can you ever be that under torture you got the right information? The subject just has to screw up his courage for one last lie at the end and he ensures payback. An attractive prospect for a torture victim.
So he sends you to the wrong place as the clock runs down or gives inaccurate information about how to defuse the device. The bomb explodes -- what do you do then? Torture him in retaliation pour encouragez les autres? Logic would suggest making an example of him so that the specter of torture is enhanced for the next occasion it is needed.
Torture does not guarantee success (just ask the Gestapo) but using it does guarantee that you will find yourself in some very unattractive company.