Is Torture Ever Justified?

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If press accounts are to be believed, things began to get complicated when the U.S. Government felt itself to be in a situation at least somewhat analogous to our classic “ticking bomb” scenario. The terrorist attacks of September 11, 2001, had killed more Americans than had died at Pearl Harbor in 1941. The terrorists of al-Qa’ida were still “out there” someplace plotting further mayhem and hoping to inflict as many casualties as possible, the United States seemed to suffer from a terrible weakness in its intelligence and security services’ ability to identify and address the threat, and no one knew where and when the terrorists would strike next. Within a few months, however, some good intelligence work led to the capture of two or three of al-Qa’ida’s senior leaders, including Abu Zubaida and Khalid Sheik Mohammed (a.k.a. “KSM”). What did they know about future attacks, and how far could the authorities go in trying to find out in order to prevent additional “9/11s”?

The U.S. Government’s answer seems to have been to try to draw a line around the classic “ticking bomb” scenario; it was by no means an apologia for torture tout court, but instead a policy that condoned harsh techniques only in rare and carefully-bounded circumstances. The Central Intelligence Agency (CIA) proposed, the Justice Department developed a legal rationale for, and the White House approved a program whereby certain “high value targets” in CIA custody could be – with top-level approval – subjected to some extremely harsh interrogation methods, most notably waterboarding: a sort of simulated drowning that seems all too terrifyingly real to the victim. (Let’s leave aside the question of whether such techniques in fact amounted to “torture” under existing U.S. or international law. For present purposes, the ethical question is more interesting than the legal one.) These methods were apparently to be permitted only in a mere handful of cases among the thousands of enemy combatant and suspected terrorist detainees swept into American hands in Afghanistan and elsewhere. This treatment was to be reserved only for terrorists held secretly in CIA custody in “black” detention centers hidden in one or more locations around the world, and would be used only in the most compelling cases – for prisoners such as Abu Zubeida and KSM – whose situation was felt most closely to approximate the “ticking bomb” scenario.

Enter bad luck, and bad management. Sloppy oversight of improperly trained troops at the Abu Ghraib prison in Baghdad led to the orgy of abuses so memorably caught in photographs taken with such disgusting glee by the perpetrators themselves.  These crude excesses – sometimes involving large groups of ordinary prisoners at a time and in no way related to information-gathering or any other intelligible purpose save the simple indulgence of sadism – were, conceptually, a world away from the application of coercive interrogation in rare and extreme cases that had been approved in Washington, and there does not appear to have been any connection between such approval and the animalistic sadism at the Baghdad prison. Nevertheless, as details of the high-level approval of harsh techniques for those CIA cases started to come to light during the worldwide furor over Abu Ghraib, it was generally assumed abroad and in the media that everything had been official policy.

As a result of this conflation of the mass abuses at Abu Ghraib with the entirely separate and unrelated CIA-run and Washington-approved interrogation of prisoners such as Abu Zubaida and KSM, the “torture debate” in America has not really had to struggle with the moral questions presented by the “ticking bomb” question. Because essentially no one could fail to condemn any policy that swept Abu Ghraib within its ambit, and because it appeared that Bush Administration policy had done so, the public debate largely ducked the really hard questions. The public has never really had to grapple with the more “ticking bomb”-type assumptions behind the CIA program.