Is Torture Ever Justified? | The Torture Question | FRONTLINE

Is torture ever justified in a post-9/11 world? FRONTLINE gathered a group of legal thinkers to answer this question. Several of them had studied the torture question together for a joint project between the Harvard Law School and Harvard's Kennedy School of Government. That group issued a report, "Preserving Security and Democratic Freedoms in the War on Terrorism," which attempted to establish some limits and a process for oversight and accountability for the use of "highly coercive measures" -- tactics sometimes called "torture lite."

FRONTLINE asked respondents the following questions:

Related Link
Preserving Security and Democratic Freedoms in the War on Terrorism
Here is the report from Harvard's Long-Term Legal Strategy Project. It encourages the attorney general to recommend, and the president to then provide, specific highly coercive interrogation (HCI) techniques to Congress. No person would be subject to those techniques unless interrogators established probable cause in sworn written affidavits that would be made available to congressional intelligence committees.

The project's report was also published as a book, Protecting Liberty in an Age of Terror, in September 2005 by MIT Press. Here is the book's chapter on coercive interrogations. Reproduced with permission of MIT Press.

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?

Oren Gross

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.

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.

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]."

Sanford Levinson

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.

Juliette Kayyem

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.

Tom Parker

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.

Earlier this year, the Harvard project gained interest among some members of Congress. Rep. Jane Harman (D-Calif.) planned to introduce legislation based on the report, which she said was needed to lift the "fog of law" that the administration had created for soldiers and intelligence officers on the ground. But the report never specified what it meant by "highly coercive interrogation" (HCI) techniques, short of torture. What techniques should be allowed, and under what circumstances?

Michael Traynor

Bureaucratization of torture is not the answer. I do not accept the premise that there is a "fog of law" or the mistaken analogy to the "fog of war," which is a shorthand reference for excusing errors of human judgment in the heat of battle. The fog of bureaucracy and the attendant secret processes and so-called presidential "findings" contemplated in the Harvard report are no substitute for principles of international law, U.S. law and military standards.

Juliette Kayyem

When I talk to interrogators … the one aspect of U.S. interrogation efforts that they do discuss -- whether torture, or HCI, or even just the patient conversation that most believe is the best form of interrogation -- is the utter lack of professionalism in our efforts. What I mean by that is that interrogation is a skill, not a legal standard, and part of wanting tighter command and control is so that there is a cadre of professional, authorized interrogators who are performing this delicate, and so potentially abusive, skill.

Sanford Levinson

"Highly coercive interrogation" is, of course, a term of art, and many would say of very dark arts, indeed. At the very least, it means more than what American police can legitimately do to someone arrested with regard to a heinous crime. So the obvious question is: How much more? I am not entirely clear whether [the] Harvard proposal would allow "cruel, inhuman or degrading" methods of interrogation under extremely restricted conditions, or whether "highly coercive" stops short of this.

"Highly coercive interrogation" might be thinkable if, and only if, there is a high degree of confidence that the U.S. indeed has a "high-value" personage, where value is measured in part by a high probability of knowledge about the overall operations of a relevant terrorist organization. … It remains all too possible that Congress will authorize modes of interrogation and fail to require adequately tight command and control that will leave the situation little, if any, better off. After all, we are where we are today in part because of the Senate's [failure to be more specific in its] definition of torture when it ratified the United Nations Convention against Torture.

David Rivkin

While all coercive interrogation involves some unpleasant aspects, it is appropriate to draw some important lines. The reason I oppose torture, for example, is because no matter what are the stakes involved, using it would fundamentally degrade our society and political system; this is the price we cannot pay, no matter how ticking some time bomb may be.

On the other hand, I would be prepared to support the levels of coercion that are being used in other spheres of military life, e.g., basic training. I certainly oppose it even in the so-called ticking time bomb scenarios, again for the reasons advanced by Oren. … The real issue, which we have not unfortunately come to grips with, is what techniques, falling well short of torture, can we use in interrogating captured unlawful enemy combatants, who, as a matter of law, are not entitled to Geneva-level POW protections?

I have not seen anybody respond to my question as to why we cannot agree that at least the type of psychological and physical intimidation coercion that is routinely meted out in basic military training cannot be employed in interrogating unlawful enemy combatants. If it is not inhumane or degrading, at least in the context of military life, to yell at recruits, dramatically alter their diets, sleep patterns and physical environment -- all of this to break down the patterns and habits of "soft" civilian life and turn them into warriors -- then I do not see how it would be inhumane or degrading to do so with unlawful enemy combatants.

The only conceivable argument in opposition to my point is that things would get out of hand; that by prescribing some tough interrogation techniques, the interrogators would get more and more savage because at least some detainees would be able to resist even the toughest of the permissible techniques. Frankly, I am not impressed with this slippery slope argument. To begin with, if it were correct across the board, we should ban all coercive and rigorous training techniques. The reality teaches us that while things do sometimes get out of hand, and hazing escalates into real violence, most drill sergeants and combat instructors follow the rules. Indeed the military as an institution is uniquely positioned and trained to prevent slippery slope problems.

Tom Parker

Personally, I think we are fooling ourselves if we think there is any such thing as "torture lite." What do you do when the sterilized needle doesn't work? The well-established dynamic of physical coercion will push interrogators to greater and greater excesses as they encounter resistance or are placed under pressure to produce results. I am sorry to say Americans are no different than anyone else. If you let the genie of abuse out of the bottle you won't easily be able to put it back. The progression from physical abuse to sexual abuse that we saw in Abu Ghraib is a common feature of most abusive detention regimes.

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posted oct. 18, 2005