Making them talk: the moral debate

Some say 9/11 justifies coercion; others call that a slippery slope.

The harsh treatment of "high value" detainees in the war on terror has triggered a wide-ranging debate over the legal, political, and diplomatic implications of Bush administration policies. But lost in this debate has been a deeper question: Are American actions moral?

By authorizing coercive interrogation measures against certain prisoners overseas, the Bush administration has made clear that it believes it has a higher duty to attempt to force some individuals to reveal information that might help prevent future terror attacks.

Critics say this hard-line approach aimed at extracting actionable intelligence helped set the stage for the abuses at Abu Ghraib prison. But aside from the abuses uncovered in Iraq, many question whether it is ever moral to use the intentional infliction of pain to force someone to talk.

Indeed, the Fifth Amendment to the US Constitution, which bars the government from eliciting forced confessions, represents the collective moral judgment of the nation's Founders that such tactics violate the fundamental rights of individuals (at least in criminal cases within the United States).

But others say the Sept. 11 terror attacks have presented new challenges. In a world in which a single terrorist armed with a weapon of mass destruction could kill thousands in an instant, aggressive interrogation tactics are seen as a justifiable act of national self-preservation.

"One cannot question that in the broadest sense morality lies on the US side in this overall conflict, but that doesn't mean that any means can be used to serve those broader moral ends," says Brad Berenson, a former associate counsel to President Bush. "Americans have to recognize that the threats to the country are exceptionally grave and that our adversaries are exceptionally depraved," he says. "In order to be successful, we need to be tough and do everything within the limits of the law."

Whether the administration's interrogation policy complies with international law is a subject of debate among legal experts. Many analysts say the policies are both illegal and immoral. "I do not believe that the attacks on 9/11 and the horrendous loss of life have created such a change in our moral fiber that we will cast aside the law and use any means to survive," says Scott Silliman, executive director of the Center on Law, Ethics, and National Security at the Duke University School of Law in Durham, N.C. "Running throughout the American spirit is the desire to maintain that moral high ground."

Administration supporters say the government's policies have not compromised the moral high ground. US officials are not attempting to justify the kinds of abuses uncovered at Abu Ghraib prison, and they are not seeking approval to use torture. Rather, the administration has authorized aggressive interrogation tactics within an overall policy of treating detainees humanely, these supporters say.

"We are facing people who reject any notion of restraint," says David Rivkin, a Washington lawyer who served in the Reagan and first Bush administrations.

He says the way enemy combatants are treated depends on how they act prior to being captured. Those who engage in activities that violate the laws of war - such as launching terror attacks on civilians or carrying out acts of sabotage - are not entitled to the protections of prisoners of war under the Geneva Conventions. "You will be treated humanely - no one is going to pull your fingernails out - but you don't get all the benefits of prisoner-of-war status," Mr. Rivkin says. Among those benefits to POWs is a ban on coercive questioning.

Some analysts say any interrogation process that permits a measure of physical abuse puts US officials on a slippery slope. While a short and slight level of physical abuse (such as being subject to cold, darkness, loud noise, or sleep deprivation) may not qualify as torture, it does not take long for such treatment to cross the line, analysts say.

"It is extremely dangerous to take the position that we will do what we have to to get this information and we will let the person attempting to extract the information decide the when, how, and what," says Scott Horton of the New York City Bar Association, which recently released a report critical of the government's overseas interrogation tactics. Mr. Horton says such an approach "has a history of moral disaster."

In 1999, the Supreme Court of Israel confronted similar issues in a string of cases brought by Palestinian detainees alleging torture. In analyzing the question, the Israeli high court considered a hypothetical example referred to as the ticking time-bomb scenario. It is often cited as an answer to qualms about using coercion in terror cases.

The scenario: A captured terrorist reveals that he has planted a time bomb in a crowded market. The explosion will kill scores of men, women, and children unless information is quickly obtained about the device's location. But the terrorist refuses to reveal the location.

Should authorities exert whatever "pressure" is necessary - up to and including torture - to obtain the information? Or should strict adherence to the rule of law and human rights shackle the hands of those seeking to save innocent lives?

The Israeli justices ruled 9 to 0 that the law does not permit physical abuse during interrogations. A reasonable interrogation, the high court said, is free of physical abuse; free of cruel, inhuman treatment; and free of any degrading handling.

"This is the destiny of democracy," wrote Supreme Court President Aharon Barak. "Although democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand."

Despite the 1999 ruling, the most recent human rights report on Israel by the US State Department says that 80 complaints of alleged torture were filed in 2003 against Israeli security officials. In addition, the report quotes human rights groups as saying that not a single Israeli security agent has been criminally charged with torture or abuse of detainees in "the past several years."

Analysts say the ticking time-bomb scenario, while compelling, is extremely unlikely to occur. Its persuasive power rests in two key facts: first, that a number of people will die unless quick action is taken and second, that the terror suspect knows how to prevent those deaths.

"In a lot of cases when our people detain folks in Iraq or Afghanistan in the war on terror, we don't have that certainty," says David Perry, a professor of ethics at the US Army War College in Carlisle, Pa. As a result, the use of coercive interrogation raises the possibility of inflicting pain on innocent individuals, he says.

"The interrogation of someone like a terrorist suspect can be a real ethical dilemma," Mr. Perry adds. "The available options may all be bad in some way."