Several years ago, I began work on a project that I fancied to be both hypothetical and academic. In the aftermath of September 11, a number of commentators, including one prominent member of the legal academy, advanced the proposition that interrogation by torture in pursuit of terrorists should be viewed as permissible under the United States Constitution when undertaken with procedural safeguards. In an article published in 2003, I argued that these commentators were legally sloppy and morally obtuse: no matter what procedures accompany it, interrogation by torture is both at odds with settled constitutional law as it is and profoundly inconsistent with the legal system as it should be.
The issues provoked by the topic of torture are the subject of ongoing debate, not least because new disclosures, sometimes with accompanying leaked government documents, seem to be published almost every day. The year 2004 almost literally ended with the December 30, 2004, publication by the Justice Department’s Office of Legal Counsel (OLC) of a brand new memorandum on the subject, designed to supplant the now notorious August 1, 2002, mem-orandum to White House Counsel Alberto Gonzales. The New Year began, not altogether coincidentally, with the consideration by the Senate Judiciary Committee of President Bush’s nomination of Gonzales to succeed John Ashcroft as the Attorney General of the United States. Not surprisingly, the issue of torture dominated the testimony.
My contribution to this symposium seeks to accomplish two things. First, I want to engage in a dialogue with Professors Levinson and Kreimer about the problems of defining torture and the law’s response to torture. My contentions are that, contrary to Professor Levinson’s suggestion, we should not seek to limit the category “torture,” and that, contrary to Professor Kreimer’s argument, law in fact fails to regulate torture. More precisely, I argue that law provides less of a constraint on torture, properly defined, than most people probably assume. Second, I want to use that dialogue as the launching point for a more open-ended exploration of torture and the more general problem of state violence. To that end, the last section of this essay considers with broad strokes some of the possible reasons for law’s failure to regulate torture adequately.
Discussions about torture often start with this hypothetical: Imagine that there is a terrorist in the middle of Manhattan who has planted a nuclear bomb set to go off within hours. You capture him and are faced with a moral dilemma. Do you torture him to get the information that will allow you to defuse the bomb, thereby saving the lives of millions of people? Or do you stand on principle and sacrifice multitudes?
The purpose of this piece is to shed some light on the way the intelligence community operates, to describe how legal rules shape some of its most sensitive work, and to offer a perspective on the way the Central Intelligence Agency (CIA or Agency) fits into the debate about interrogation and torture. The debate is not about, and indeed cannot be about, whether our government should conduct torture. The answer to that question is and must be, by law and standards of human decency, no. As recently as March 2005, CIA Director Porter Goss reiterated the Agency’s position that it is bound by the laws banning torture and that the Agency adheres to those laws. But at a level deeper than the denials and the blanket statements, there is a difficulty that cannot be avoided. That difficulty lies not in the abstract form of the question, but in the real, on-the-ground scenarios that develop where interrogations are taking place. What can an interrogator do? When can she use deception, discomfort, fear, fatigue, punishment, physical contact, and similar tactics?