It was once pithily observed that when a solution was found to the Irish Question, the Irish changed the question. And so it is with some members of the intelligence community, congressman and lawyers. They twitter at the idea of defining torture–in an ‘age of terror’, that would be unbecoming of law enforcement. It would ‘bind their hands’ and undercut their effectiveness. So they pose questions in place of answers, because for them, an answer is already clear: torture is legitimate.
Standing astride the grave, gazing at death, the torturer is somehow absolved by a question of supreme emergency: he or she is saviour, a heavy burden to discharge, for sure, but done in a higher interest. ‘Should we not sacrifice one for the hundred thousand?’ In what often sounds like a pornographic sound bite, terror talk immediately turns to ‘dirty bombs’ in down town Manhattan. One person suffers so that others might live.
The issue of torture in the United States is a legal contortionist’s exercise: the answer to the question is another question, and forth. The issue of results or effectiveness is never brought up, because that answer is also known: Torture does not work. Torture not merely diminishes the torturer and the tortured; it diminishes the truth. Confessions extracted under such processes are highly unreliable, but then again, process in law is everything.
It all comes down to language. In Waterboarding Mukasey’s response (October 30) to the Democratic senators of the appointing committee, waterboarding was ‘over the line’ and even personally ‘repugnant’ but that should not make one sentimental: ‘Hypotheticals are different from real life and in any legal opinion the actual facts and circumstances are critical.’
A scholar once attributed the Holocaust in part to an outcome of bad language: the language itself is altered to erase an identity, to erase existence. Placing the brakes on clarity frees one from obligations. If you have problems with one set of circumstances, define it out of existence. Don’t call it extermination, call it ‘pacification’; don’t call it assassination, call it ‘selective targeting’. The Daisy Cutter sounds like an obscure gardening device. Killing and maiming can be clean–no one need mention it. With ‘waterboarding Mukasey’, we are wading again, as ever, in the treacherous waters of a murky language.
Take PBS’s Jim Lehrer Newshour on Thursday, where a discussion took place on the subject, chaired by Ray Suarez. One of the interviewed was a regular, Neil Livingstone. PBS tends to advertise him as a terrorism ‘expert’. (What next, a genocide advisor?) Certainly, Livingstone came with the interrogator’s package of agitprop, just as he did when the Abu Ghraib scandal made world headlines. The president needed a ‘full tool kit’ and those human rights protesters in Washington were stealthily removing the tools–not all instances of special interrogations were torture. We should resist circumstances of defining them.
Baulking at existing laws on the subject (the Geneva Conventions), he reminded Suarez of his days as a graduate law student, when he considered the infuriating nature of international law. Why? It was mesmerising in its vagueness. Evidently, it was not a subject that bound him for too long: he soon got into the business of interrogations himself. From that, he moved into consultancy and terrorism ‘expertise’.
Torture thrives on grey areas, which is why international law prohibits it. Some lawyers, Alan Dershowitz prominent amongst them, accept it, because law, like the ‘war on terror’, allows itself the vice of vagueness. The facts effectively interpret the law, rather than law interpreting fact. Just as Bush speaks about an invisible, sometimes non-existent enemy, the interrogator with his ‘tool kit’ is seeking an invisible, non-existent truth. But Mukasey has a punt both ways: if it is torture, it is unconstitutional, but he refuses to commit. This was a sufficient concession for the Republicans, notably Lindsey Graham of South Carolina: ‘When [Mukasey] said the technique was repugnant to him personally, it made me feel better.’ Such are the vagaries of ‘real life’.
BINOY KAMPMARK is a Commonwealth Scholar at Selwyn College, Cambridge. He can be reached at firstname.lastname@example.org