The Point | Waterboarding: A clarification

Few subjects I have written about in this column in 2007 provoked such an outpouring of response as the one last week about the waterboarding of al-Qaeda leader Abu Zubaydah.

In a nutshell, I argued that torture in all its forms should be banned, but that in some instances, as with the waterboarding of Zubaydah, it is defensible. The trial and punishment of those who break the law is always subject to the discretion of prosecutors, juries and judges. In rare cases, such as Zubaydah's, in which a coercive method is employed to prevent a greater wrong, the interrogators involved should not be prosecuted.

Many readers found this outrageous. I received the usual cascade of comment from the Sandbox School of Argument, the name-callers and those whose idea of persuasion is to state their own opinion loudly - lots of capital letters, bold type and underlinings. Several responders belong to the Ostrich School; they won't be reading this because they have forsworn reading anything I ever again write, presumably on the assumption that if you ignore opinions you don't like, they go away.

Most of the responses were polite and thoughtful, and some actually agreed with me. The biggest confusion stemmed from my apparent failure to state the argument above clearly, because many were outraged by my presumed willingness to "allow" torture. So I will try to approach the same point in a different way.

When researching this topic in 2003 for an essay in the Atlantic, I met an impressive young woman in Tel Aviv named Jessica Montell. She headed a human rights organization called B'Tselem, which had successfully sued the Israeli Defense Forces to ban all forms of coercive interrogation.

Here is how Montell framed the same point:

"If I as an interrogator feel that the person in front of me has information that can prevent a catastrophe from happening, I imagine I would do what I would have to do in order to prevent that catastrophe from happening. The state's obligation is then to put me on trial for breaking the law. Then I can come and say: 'These are the facts that I had at my disposal. This is what I believed at the time. This is what I thought it was necessary to do.' I can evoke the defense of necessity, and then the court decides whether or not it's reasonable that I broke the law. . . . But it has to be that I broke the law. It can't be that there's some prior license for me to abuse people."

I suspect Montell would prefer to see the interrogators of Zubaydah prosecuted, at which point they could raise the defense of necessity. I argued that if official accounts of Zubaydah's history of mass murder, and of his handling during questioning, were true (and various investigations are under way), then his interrogators should not even be charged.

Another school of thought took me to task for placing such a risky burden on interrogators. One former military interrogator wrote that the ban I proposed "would put brave men and women who are charged with protecting us in the untenable situation of breaking the law for doing what's right and necessary."

But placing interrogators in such legal jeopardy is the only way to prevent large-scale abuses. In a perfect world, one where military interrogators were all scrupulously responsible and bright, you could prescribe certain rules governing the use of coercive methods and could feel confident that they would be employed only where appropriate, and only to the extent necessary. We don't live in that world. As anyone who has ever worked in a large organization knows, there are many people with responsibility who will seize upon any opportunity to abuse it. I believe something very much like this has happened with the Bush administration's effort to authorize "aggressive methods." It had the same effect such efforts always have had: It unleashed the sadists at Abu Ghraib and elsewhere.

There is a good passage in E.L. Doctorow's novel

The March

, about Sherman's march through Georgia, that speaks directly to the difference between soldiering in the abstract vs. soldiering in the real world. As the huge Union Army approaches Atlanta, a young woman is forced to choose between abandoning her bedridden father and fleeing the advancing troops or staying and trying to protect her home. She bravely stays. Her fears are allayed when an officer with an advance guard announces that she has nothing to fear, and even positions a private at her gate to protect the house from invasion. Then the noble officer leaves - all is right with the world in his mind. Hours later, as the vast army flows past, the private tires of his mission. He sees friends among the passing troops and goes off with them. The marauding troops that follow invade the house and trash it.

This is fiction, yet it is apt for the situation. Armies are not perfect engines. Certain rules, no matter how well-considered and intended, are impossible to enforce. Conscientious leaders must consider not just the abstract, but also the real. In an army where hundreds, if not thousands of men and women will be interrogating prisoners, there will be those who given the slightest opportunity will abuse their power. Human nature being what it is, there is a natural tendency for abuses to occur when one man is given complete authority over another; when men are at war, dealing with prisoners they dislike or even hate (and who hate them in turn), whose languages and customs are foreign, the abuses will be widespread and severe.

There is ample historical precedence for this tendency, and even fascinating psychological experiments that have demonstrated it. The only practical way to curb abuses in prisons is for guards and interrogators to have strict, clear, rigorously enforced limits. That's why I believe that any interrogator who employs coercive methods ought to be mindful that his actions are crossing a serious line, and that he had better have compelling reasons for doing so.

One of the best arguments against mine did not fault either my reasoning or my blackened soul. It questioned the wisdom of allowing any exceptions, even defensible ones, because of the impact it has on the moral stature of the United States.

There is no question that something important is lost when we as a nation accede to tactics considered reprehensible. One correspondent asked: "What is the harm done to the citizens of the country whose agents have a policy that allows torture?" This correspondent argued that we ought to accept impending tragedy in the name of honoring a high-minded policy.

In my column, I raised the example of the German police chief who threatened a captured kidnapper with torture because he refused to reveal where he had buried alive his 12-year-old victim. The kidnapper promptly gave the location. The German police chief lost his job for making the threat.

It may well have been more noble on some level for him not to have made the threat, but I prefer a less rigid concept of morality. I would not have fired the police chief, or prosecuted him. I agree completely with his actions, even though torture is repulsive. The boy's life matters more than my rectitude or peace of mind.