The debate over the use of torture has taken a new and disturbing turn, as prominent Democrats seek to bring criminal charges against key members of the previous U.S. administration. More over, Baltasar Garzón, who has for several years been using his position as a Spanish judge to further leftist causes, has now seen an opportunity to open criminal investigations against America, joining the Islamists in their strategy of “lawfare” against the Great Satan.
Of course, politicians can commit crimes and should be held to account for them. But policies that run counter to this or that UN convention are not necessarily crimes within the jurisdiction of a state, and when these policies are adopted by the organs of government after due deliberation and with sincere regard to the public interest it is only in exceptional circumstances that those who execute them could be regarded as criminal. The correct response in those exceptional circumstances is to put an entire government and its supporting network on trial, as the Allies put the Nazi regime on trial at the end of World War II, and as Eastern European governments have tried in vain to put the Communist Party on trial in recent decades.
If we don’t follow those principles, then just about every government in the world today could be charged with crimes, and each administration could be hauled before the courts by its successor. This would lead to a breakdown of trust between the parties and the first steps toward civil war of the kind often seen in South America. And it would cause politicians to retreat entirely from those difficult decisions that the national interest requires them to make, for fear of ending up in jail. It goes without saying that this will be an encouragement to the nation’s enemies. And it ought to be equally obvious that it will lead to an escalation, rather than a diminution, in the worldwide violations of human rights.
On the other hand it is necessary to be clear about the fundamental question, which is when, if ever, torture might be justified, and to what extent. No decent person condones the torture of the innocent. But no decent person condones the imprisonment of the innocent either, or the subjection of the innocent to distressing interrogations or harsh regimes. English law contains an ancient commonlaw right, secured by the writ of habeas corpus (soon to be canceled by the corpus juris of the EU), which compels those who would imprison, interrogate, or punish us in any way to accuse us first before a valid court of law, and to bring proof of our guilt. If the punishments include torture, which once they did, at least it would be on the assumption that only the guilty are tortured. And are there no crimes for which torture is an appropriate punishment? What about the crimes of Hitler or Stalin? How many think that Othello ends with an injustice, when Iago is taken away to torture, in order that his motives be known?
Behind the liberal protests against the harsh treatment of enemies, I sometimes sense the view that all war crime has its origin in us. Bad things are certainly done by Americans in war. But the victims of American ill treatment frequently make loud noises in the worldwide media; the victims of the Syrian mukhabarat utter loud noises too, but these noises are never heard outside the place where they occur. That distinction says a lot about the real difference between “them” and “us,” and about the kind of enemy we are now confronting.
In the case of Guantanamo, we are not dealing with torture used as a legal punishment. People held there have been held as prisoners of war. The rules of habeas corpus were said not to apply. However, there had been no declaration of war, and the prisoners have all denied that they were at war or under orders. The only way to conceive of their imprisonment therefore is as part of a preemptive strategy. There is no such thing, in English and American law or in natural justice, as preemptive punishment. Even if I know you are going to kill someone, I would be committing a crime by imprisoning you to prevent this.
So the first question is: when preemptive action is justified, against whom and how? I don’t regard imprisonment, harsh interrogation, and the milder forms of torture as so very different from each other that you can say: of course one is allowed but not the other. We are in a very difficult area here. All of those actions involve an invasion of individual rights. And this invasion has been justified by the Bush administration on grounds of public utility. By doing this, it was claimed, we obtain the information necessary to prevent crimes so dreadful that our actions are justified by the result. Is that ever true? If so, might it be true in the present case? If it is true in the present case, could it be that torture of the guilty is necessary to prevent far worse crimes against the innocent? And what if we are not sure that the victim is even guilty?
Some people think that utilitarian reasoning is never sufficient to override an individual right. Such people would have to conclude, not merely that we should not torture, but that we should not imprison or harshly interrogate the people captured in the course of the “war on terror.” There is a lot to be said for this position, and I think there are hints of it in President Obama’s response—he believing that we must be seen to stand by the principles that distinguish us, and in particular by the respect for individual rights which is so eminently lacking in the conduct of the terrorists who threaten us. But is it, in the circumstances, a realistic strategy? Christians are taught to turn the other cheek to those who strike them. But this does not entitle the person who is guardian of a child to turn the child’s other cheek to the bully who has struck her. Governments, like parents, are responsible for protecting those in their charge. They have to use whatever violence is necessary to achieve this aim, within the constraints of natural justice. In the Middle Ages philosophers and jurists discussed what this involved. When is a war just, and what are the just means of conducting it? What if your enemy does not make war in a just manner, taking hostages, killing civilians, arbitrarily inflicting maximum suffering for the sheer joy of it? Aquinas thought that you must not be the first to take hostages or threaten civilians, but that up to a point you are entitled to retaliate, provided your purpose is to compel the other side to fight fair.
But that brings us back to the general difficulty that we are confronting. There is no “other side,” just a lot of individuals who have declared war in their hearts against the Great Satan. The existing strictures, enshrined in the Geneva Conventions, simply don’t specify what to do in this case. Nevertheless, the moral sense is not silent: all of us, when growing up, learned to distinguish situations in which “fair fighting” was the only rightful response from the “no holds barred” emergency. And when a government encounters such an emergency, through no fault of its own, it must draw on the reserves of moral sense that we all acquired on the children’s playground. It must feel free to imprison and interrogate people who are serious suspects, and interrogation might have to be harsh if it is to protect the innocent from atrocities. In the immediate aftermath of 9/11 the United States government felt called upon to act in ways that would not be sanctioned by the legal and moral principles that constrain its normal conduct. For it had been presented with vivid evidence of a dangerous and implacable enemy, with no moral scruples and no regard for innocent life. In such cases harsh retaliation is sometimes the only option—the only way of fulfilling the obligation that lies on every government to protect the citizens under its charge.
However, we may well wonder whether the conditions still endure in which it is reasonable and morally justified to override the rules of fair fighting. The situation today is not that of the immediate aftermath of 9/11. Plans may well be afoot to blow up a Western city with a nuclear bomb, or to spread contagious and lethal infections. But our approach should be to guard against these dangers, if we can, within the legal and moral norms of democratic government. In particular we must devise a strategy of longterm defense which will enable us not only to abide by habeas corpus, so that all punishments are administered, if at all, only after due process of a valid court of law, but also to enforce the law against torture. If we cannot do that, then we will live beneath a permanent cloud of distrust and recrimination, unable to believe in our own goodwill.
As that suggests, however, torture has been pushed to the top of the political agenda only now, when a shared sense of security makes the moral high ground safe. It is only because of the success of the war on terror that Americans can take a principled stance in opposition to it, safely expressing sentiments that, in the wake of 9/11, would have seemed as selfindulgent to liberals as they seem to conservatives today. One way for the liberal critics to avoid the painful recognition of this truth is to put President Bush and his administration in the dock alongside al Qaeda. This kind of “moral equivalence,” which furthers the cause of America’s enemies, makes the flight from reality look like a deeper confrontation with it. The liberal view of history is once again confirmed, with all disasters laid at the door of unprincipled conservatives, and the liberal vanguard leading ever onward toward the light.