Saturday, January 5, 2008

Rethink the concept of morality

COMMENTARY

Bowden: Rethink the concept of morality

Mark Bowden, SPECIAL TO THE PHILADELPHIA INQUIRER

Few subjects I have written about provoked such an outpouring of response as a recent column on 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 in which a coercive method is employed to prevent a greater wrong, the interrogators involved should not be prosecuted.

Torture isn't always wrong

Many found this outrageous. Most of the responses were polite and thoughtful, and some actually agreed with me. The biggest confusion stemmed from my failure to state my argument clearly; 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 the topic in 2003 in Tel Aviv, I met Jessica Montell. She led 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 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, are 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. There are many people with responsibility who will seize upon any opportunity to abuse it. I believe something 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.

Armies are not perfect engines. Certain rules, no matter how well-considered and intended, are impossible to enforce. In an army where hundreds, if not thousands, of men and women will be interrogating prisoners, there will be those who will abuse their power. Human nature being what it is, there is a natural tendency for abuses to occur when one man has complete authority over another, and when men are at war, dealing with prisoners they dislike or even hate, whose languages and customs are foreign, the abuses will be widespread and severe.

The only practical way to curb abuses in prisons is to for guards and interrogators to have strict, clear, rigorously enforced limits. That's why 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 exceptions, even defensible ones, because of the impact on America's moral stature.

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?," and argued that we ought to accept impending tragedy in the name of honoring a high-minded policy.

I raised the example of a 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 with his actions, even though torture is repulsive. The boy's life matters more than my rectitude or peace of mind.

Bowden is the author of 'Black Hawk Down' and 'Guests of the Ayatollah: The First Battle in America's War with Militant Islam.'

Source: statesman

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