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.
