The Gray Area of Torture

Thu Nov. 17, 2005 6:25 PM EST

While a national debate rages over whether the United States should ever torture detainees in its custody, there is still no consensus on what torture actually is. This gray area has allowed the Bush administration to condemn the practice while simultaneously justifying practices that at the very least approach torture. Despite broad evidence to the contrary, President Bush has asserted "we do not torture." But the President's systematic obfuscation of the extent to which his operating definition of torture encompasses the Geneva Conventions' prohibition on "inhumane, degrading and humiliating" actions, misdirects the public debate away from the real issue: Does the US torture?

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In response to a the disclosure of the CIA's secret network of detainee facilities, the Pentagon recently released a new interrogation policy directive that barred the use of dogs for "acts of physical or mental torture" and "acts of physical or mental torture." But again, the absence of a definition of "torture" subtracts any substantive value from even this seeming broad prohibition.

A few weeks ago, Sen. John McCain passed an amendment prohibiting the "cruel, inhuman, or degrading treatment or punishment" of individuals in U.S. custody. Attached to several defense spending bills, its bipartisan supporters threaten to include it in every bill passed until it becomes law. If the amendment passes, it will make the military's adherence to the Geneva prohibitions more explicit. However, unless the definition and limits of torture are made public, delineating an explicit line between interrogation procedures and torture, then the current ambiguity will only continue to permit conduct that tests those limits—an experiment whose price will often be paid by innocent individuals who are detainees simply because they were in the wrong place at the wrong time. Unclear direction from the commander-in-chief trickles down to produce the degenerate procedures witnessed in the infamous Abu Ghraib photos.

Many current and former intelligence officials are uncomfortable with the administration's push to split legal hairs to justify torture as a tactic of war, not only because torture frequently produces unreliable intelligence, but also because it would imperil American soldiers—if they became prisoners themselves or if they were prosecuted for war crimes.

In contrast, David Gerlernter has argued that exceptions must be made to use torture to save innocent American lives. But in applauding Cheney's minority pro-torture stance as one displaying "integrity, leadership and moral courage," Gelernter ignores the denial and cover-up used to enact this supposedly principled stance. In fact, the administration is not claiming any such leadership at all. The debate brewing between Cheney and the ninety Senators who voted for the McCain Amendment isn't about what Gerlernter's concerned with—whether exceptions to torture are warranted under extreme circumstances. That's because the administration has denied that it would ever condone such tactics. Instead, it has attempted to preserve its right to torture while denying that torture could ever be associated with such a morally-upstanding nation—or president—as ours.

Against the humanitarian impulse that seeks to condemn torture absolutely, the administration claims that the new burdens of low-cost, high-impact transnational terrorism constitute a "different kind of war" to which new rules apply. Perhaps, but even giving him the benefit of the doubt—however doubtful, there is a case to be made that an inflexible and broad prohibition of torture inhibits US national security in a way that inhibits it from fulfilling its mission, the government has yet to put forth that difficult moral and political argument to the American people.

Ultimately it will be low-ranking soldiers who are held accountable for the carefully guarded ambiguities of executives. And it will be everyday Americans, minding their own business in their everyday lives, who will be targeted by accusations, and perhaps more terrorist attacks, based on an impression that the US has given up its moralistic rhetoric and turned to torture as a tool. It may be that a case can be made for exceptions to torture, but the case must be made, not skirted and then quietly assumed.

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