For Yhtomit ONLY

t h e n e w r e p u b l i c P d e c e m b e r 1 9 , 2 0 0 5 19

ing the legalization of full-fledged torture by the United States under strictly curtailed conditions. We stand on the brink of an enormously important choice—one that is criti- cal, morally as well as strategically, to get right.

This debate takes place after three years in which the Bush administration has defined “torture” in the narrowest terms and has permitted coercive, physical abuse of enemy combatants if “military necessity” demands it. It comes also after several internal Pentagon reports found widespread and severe abuse of detainees in Afghanistan, Iraq, and elsewhere that has led to at least two dozen deaths during interrogation. Journalistic accounts and reports by the In- ternational Committee of the Red Cross paint an even darker picture of secret torture sites in Eastern Europe and innocent detainees being murdered. Behind all this, the grim images of Abu Ghraib—the worst of which have yet to be released—linger in the public consciousness.

In this inevitably emotional debate, perhaps the greatest failing of those of us who have been arguing against all tor-

sure, a $50 rule for identity theft would be more difficult. Identity thieves target not only credit cards, but also car loans, home loans, and bank accounts, as well as identifica- tion and travel documents. When credit cards are stolen, consumers simply call the issuer of their card. With iden- tity theft, the responsible party is far less clear. The compa- ny or agency that lost the data? The institution that made the loan or issued false documents? Credit reporting agen- cies? Some federal agency?

Although there are challenges in designing such a sys- tem for identity theft, the idea is still promising: Have the big organizations in the middle of the system address the fraud, and don’t let all the costs fall on innocent victims.

For any solution to work, it must dramatically shift lia- bility to data owners while better protecting consumers. The bills before Congress fail on this front. Business inter- ests want to keep using data to grow profits, and they will continue to lobby in favor of self-regulation, as they have for years. Homeland security officials want to use more data to aid counterterrorism efforts, and politicians want to use more data to win elections. What will it take for Congress to do the right thing? Maybe the best thing that could happen would be for someone to take Leahy’s lost data problem one step further and actually steal his identity, too. And, while they’re at it, they should also steal Senator Bill Frist’s identity—just to ensure biparti- san support. J

W hy is torture wrong? It may seem like an obvious question, or even one beneath discussion. But it is now inescapably before us, with the introduction of the McCain Amendment banning all “cruel, inhuman, and degrad-

ing treatment” of detainees by American soldiers and CIA operatives anywhere in the world. The amendment lies in legislative limbo. It passed the Senate in October by a vote of 90 to nine, but President Bush has vowed to veto any such blanket ban on torture or abuse; Vice President Ch- eney has prevailed upon enough senators and congressmen to prevent the amendment—and the defense appropria- tions bill to which it is attached—from moving out of con- ference; and my friend Charles Krauthammer, one of the most respected conservative intellectuals in Washington (and a New Republic contributing editor) has written a widely praised cover essay for The Weekly Standard endors-

by agreeing to bolster security: have outside security audits every other year for the next 20 years, encrypt stored and transported data, set time limits on how long data is stored, and install better wireless security. Congress should take a page from BJ’s settlement and push to strengthen security for institutions that handle large amounts of data. While compliance will cost money up front, the investment will help reduce the costs of lost data in the future and increase consumer confidence.

At least one of the bills in Congress envisions giving the FTC an additional $60 million per year to help identity theft victims. But this is a pittance compared with the billions lost to identity theft every year. Congress is also considering al- lowing consumers to freeze access to their credit reports. Un- der credit freezes, which are already allowed in a dozen or so states, no new credit can be issued under an individual’s name until the consumer lifts the freeze, a much stronger protection than fraud alerts or notification requirements.

But Peter Swire, chief privacy counselor under President Clinton, has suggested what might be the most compelling solution—a $50 cap and automatic dispute resolution for identity theft losses, similar to the basic anti-fraud provi- sions for credit cards. If a criminal steals your credit card number, the card issuer pays for unauthorized purchases above $50 and investigates disputed charges. Once credit card companies were put on the hook for fraud losses in the 1970s, they found ways to cut fraud dramatically. To be

Saving the United States from a totalitarian future.

The Abolition of Torture by andrew sullivan

20 d e c e m b e r 1 9 , 2 0 0 5 P t h e n e w r e p u b l i c

News—describes that process in plain English: “The pris- oner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.” The ABC report then noted, “According to the sources, CIA officers who subjected themselves to the wa- terboarding technique lasted an average of 14 seconds be- fore caving in. They said Al Qaeda’s toughest prisoner, Khalid Sheikh Mohammed, won the admiration of inter- rogators when he was able to last between two and two and a half minutes before begging to confess.”

Before the Bush administration, two documented cases of the U.S. Armed Forces using “waterboarding” resulted in courts-martial for the soldiers implicated. In Donald Rums- feld’s post–September 11 Pentagon, the technique is ap- proved and, we recently learned, has been used on at least eleven detainees, possibly many more. What you see here is the deployment of a very basic and inescapable human reflex—the desire not to drown and suffocate—in order to destroy a person’s autonomy. Even the most hardened fa- natic can only endure two and a half minutes. After that, he is indeed “broken.”

T he entire structure of Western freedom grew in part out of the searing experience of state- sanctioned torture. The use of torture in Europe’s religious wars of the sixteenth and seventeenth

centuries is still etched in our communal consciousness, as it should be. Then, governments deployed torture not only to uncover perceived threats to their faith-based autocracies, but also to “save” the victim’s soul. Torturers understood that religious conversion was a difficult thing, because it necessi- tated a shift in the deepest recesses of the human soul. The only way to reach those depths was to deploy physical terror in the hopes of completely destroying the heretic’s autono- my. They would, in other words, destroy a human being’s soul in order to save it. That is what burning at the stake was—an indescribably agonizing act of torture that could be ended at a moment’s notice if the victim recanted. In a state where theological doctrine always trumped individual liberty, this was a natural tactic.

Indeed, the very concept of Western liberty sprung in part from an understanding that, if the state has the power to reach that deep into a person’s soul and can do that much damage to a human being’s person, then the state has extin- guished all oxygen necessary for freedom to survive. That is why, in George Orwell’s totalitarian nightmare, the final or- deal is, of course, torture. Any polity that endorses torture has incorporated into its own DNA a totalitarian mutation. If the point of the U.S. Constitution is the preservation of liberty, the formal incorporation into U.S. law of the state’s right to torture—by legally codifying physical coercion, abuse, and even, in Krauthammer’s case, full-fledged tor- ture of detainees by the CIA—would effectively end the

ture and “cruel, inhuman, and degrading treatment” of de- tainees is that we have assumed the reasons why torture is always a moral evil, rather than explicating them. But, when you fully ponder them, I think it becomes clearer why, con- trary to Krauthammer’s argument, torture, in any form and under any circumstances, is both antithetical to the most ba- sic principles for which the United States stands and a pro- found impediment to winning a wider war that we cannot afford to lose.

T orture is the polar opposite of freedom. It is the banishment of all freedom from a human body and soul, insofar as that is possible. As human beings, we all inhabit bodies and have

minds, souls, and reflexes that are designed in part to pro- tect those bodies: to resist or flinch from pain, to protect the psyche from disintegration, and to maintain a sense of self- hood that is the basis for the concept of personal liberty. What torture does is use these involuntary, self-protective, self-defining resources of human beings against the integri- ty of the human being himself. It takes what is most invol- untary in a person and uses it to break that person’s will. It takes what is animal in us and deploys it against what makes us human. As an American commander wrote in an August 2003 e-mail about his instructions to torture prisoners at Abu Ghraib, “The gloves are coming off gentlemen regard- ing these detainees, Col. Boltz has made it clear that we want these individuals broken.”

What does it mean to “break” an individual? As the French essayist Michel de Montaigne once commented, and Shakespeare echoed, even the greatest philosophers have difficulty thinking clearly when they have a toothache. These wise men were describing the inescapable frailty of the human experience, mocking the claims of some seers to be above basic human feelings and bodily needs. If that frailty is exposed by a toothache, it is beyond dispute in the case of torture. The infliction of physical pain on a person with no means of defending himself is designed to render that person completely subservient to his torturers. It is de- signed to extirpate his autonomy as a human being, to ren- der his control as an individual beyond his own reach. That is why the term “break” is instructive. Something broken can be put back together, but it will never regain the status of being unbroken—of having integrity. When you break a human being, you turn him into something subhuman. You enslave him. This is why the Romans reserved torture for slaves, not citizens, and why slavery and torture were inex- tricably linked in the antebellum South.

What you see in the relationship between torturer and tortured is the absolute darkness of totalitarianism. You see one individual granted the most complete power he can ever hold over another. Not just confinement of his mobility—the abolition of his very agency. Torture uses a person’s body to remove from his own control his con- science, his thoughts, his faith, his selfhood. The CIA’s definition of “waterboarding”—recently leaked to ABC

t h e n e w r e p u b l i c P d e c e m b e r 1 9 , 2 0 0 5 21

ture,” and “outrages upon personal dignity, in particular hu- miliating and degrading treatment”—even when dealing with illegal combatants like terrorists. That is why the Dec- laration of Independence did not restrict its endorsement of freedom merely to those lucky enough to find themselves on U.S. soil—but extended it to all human beings, wherever they are in the world, simply because they are human.

Nevertheless, it is important to addressKrauthammer’s practical points. He is asking usto steel ourselves and accept that, whether welike it or not, torture and abuse may be essential in a war where our very survival may be at stake. He pre- sents two scenarios in which he believes torture is permissi- ble. The first is the “ticking bomb” scenario, a hypothetical rarity in which the following conditions apply: a) a terrorist cell has planted a nuclear weapon or something nearly as devastating in a major city; b) we have captured someone in this cell; c) we know for a fact that he knows where the bomb is. In practice, of course, the likelihood of such a scenario is extraordinarily remote. Uncovering a terrorist plot is hard enough; capturing a conspirator involved in that plot is even harder; and realizing in advance that the person knows the whereabouts of the bomb is nearly impossible. (Remember, in the war on terrorism, we have already detained—and even killed—many innocents. Pentagon reports have ac- knowledged that up to 90 percent of the prisoners at Abu Ghraib, many of whom were abused and tortured, were not guilty of anything.) But let us assume, for the sake of argu- ment, that all of Krauthammer’s conditions apply. Do we have a right to torture our hypothetical detainee?

According to Krauthammer, of course we do. No respon- sible public official put in that position would refuse to sanc- tion torture if he believed it could save thousands of lives. And, if it’s necessary, Krauthammer argues, it should be made legal. If you have conceded that torture may be justi- fied in one case, Krauthammer believes, you have conceded that it may be justified in many more. In his words, “Once you’ve established the principle, to paraphrase George Bernard Shaw, all that’s left to haggle about is the price.”

But this is too easy and too glib a formulation. It is possi- ble to concede that, in an extremely rare circumstance, torture may be used without conceding that it should be le- galized. One imperfect but instructive analogy is civil dis- obedience. In that case, laws are indeed broken, but that does not establish that the laws should be broken. In fact, civil disobedience implies precisely that laws should not be broken, and protesters who engage in it present themselves promptly for imprisonment and legal sanction on exactly those grounds. They do so for demonstrative reasons. They are not saying that laws don’t matter. They are saying that laws do matter, that they should be enforced, but that their conscience in this instance demands that they disobey them.

In extremis, a rough parallel can be drawn for a presi- dent faced with the kind of horrendous decision on which Krauthammer rests his entire case. What should a president

American experiment of a political society based on in- alienable human freedom protected not by the good graces of the executive, but by the rule of law.

The founders understood this argument. Its preeminent proponent was George Washington himself. As historian David Hackett Fischer memorably recounts in his 2004 book, Washington’s Crossing: “Always some dark spirits wished to visit the same cruelties on the British and Hes- sians that had been inflicted on American captives. But Washington’s example carried growing weight, more so than his written orders and prohibitions. He often reminded his men that they were an army of liberty and freedom, and that the rights of humanity for which they were fighting should extend even to their enemies. . . . Even in the most urgent moments of the war, these men were concerned about ethical questions in the Revolution.”

Krauthammer has described Washington’s convictions concerning torture as “pieties” that can be dispensed with today. He doesn’t argue that torture is not evil. Indeed, he denounces it in unequivocal moral terms: “[T]orture is a terrible and monstrous thing, as degrading and morally cor- rupting to those who practice it as any conceivable human activity including its moral twin, capital punishment.” But he maintains that the nature of the Islamofascist enemy af- ter September 11 radically altered our interrogative options and that we are now not only permitted, but actually “morally compelled,” to torture.

This is a radical and daring idea: that we must extinguish human freedom in a few cases in order to maintain it for everyone else. It goes beyond even the Bush administra- tion’s own formal position, which states that the United States will not endorse torture but merely “coercive inter- rogation techniques.” (Such techniques, in the administra- tion’s elaborate definition, are those that employ physical force short of threatening immediate death or major organ failure.) And it is based on a premise that deserves further examination: that our enemies actually deserve torture; that some human beings are so depraved that, in Krautham- mer’s words, they “are entitled to no humane treatment.”

Let me state for the record that I am second to none in decrying, loathing, and desiring to defeat those who wish to replace freedom with religious tyranny of the most brutal kind—and who have murdered countless innocent civilians in cold blood. Their acts are monstrous and barbaric. But I differ from Krauthammer by believing that monsters re- main human beings. In fact, to reduce them to a subhuman level is to exonerate them of their acts of terrorism and mass murder—just as animals are not deemed morally re- sponsible for killing. Insisting on the humanity of terrorists is, in fact, critical to maintaining their profound responsibil- ity for the evil they commit.

And, if they are human, then they must necessarily not be treated in an inhuman fashion. You cannot lower the moral baseline of a terrorist to the subhuman without be- traying a fundamental value. That is why the Geneva Con- ventions have a very basic ban on “cruel treatment and tor-

22 d e c e m b e r 1 9 , 2 0 0 5 P t h e n e w r e p u b l i c

always commit abuse. But at least we will have done all we can to constrain it.

K rauthammer’s second case for torture isequally unpersuasive. For “slow-fuse” de-tainees—high-level prisoners like Khalid SheikhMohammed with potentially, if not immediately, useful intelligence—Krauthammer again takes the most ex- treme case and uses it to establish a general rule. He con- cedes that torture, according to almost every careful stu- dent and expert, yields highly unreliable information. Anyone can see that. If you are screaming for relief after a few seconds of waterboarding, you’re likely to tell your cap- tors anything, true or untrue, to stop the agony and terror. But Krauthammer then argues that, unless you can prove that torture never works, it should always be retained as an option. “It may indeed be true that torture is not a reliable tool,” he argues. “But that is very different from saying that it is never useful.” And if it cannot be deemed always use- less, it must be permitted—even when an imminent threat is not in the picture.

The problem here is an obvious one. You have made the extreme exception the basis for a new rule. You have said that, if you cannot absolutely rule out torture as effective in every single case, it should be ruled in as an option for many. Moreover, if allowing torture even in the “ticking bomb” scenario makes the migration of torture throughout the military likely, this loophole blows the doors wide open. And how do we tell good intelligence from bad intelligence in such torture-infested interrogation? The short answer is: We cannot. By allowing torture for “slow-fuse” detainees, you sacrifice a vital principle for intelligence that is uni- formly corrupted at best and useless at worst.

In fact, the use of torture and coercive interrogation by U.S. forces in this war may have contributed to a profound worsening of our actionable intelligence. The key to intelli- gence in Iraq and, indeed, in Muslim enclaves in the West, is gaining the support and trust of those who give terrorists cover but who are not terrorists themselves. We need hu- man intelligence from Muslims and Arabs prepared to spy on and inform on their neighbors and friends and even fam- ily and tribe members. The only way they will do that is if they perceive the gains of America’s intervention as greater than the costs, if they see clearly that cooperating with the West will lead to a better life and a freer world rather than more of the same.

What our practical endorsement of torture has done is to remove that clear boundary between the Islamists and the West and make the two equivalent in the Muslim mind. Saddam Hussein used Abu Ghraib to torture innocents; so did the Americans. Yes, what Saddam did was exponentially worse. But, in doing what we did, we blurred the critical, bright line between the Arab past and what we are propos- ing as the Arab future. We gave Al Qaeda an enormous pro- paganda coup, as we have done with Guantánamo and Bagram, the “Salt Pit” torture chambers in Afghanistan,

do? The answer is simple: He may have to break the law. In the Krauthammer scenario, a president might well decide that, if the survival of the nation is at stake, he must make an exception. At the same time, he must subject himself—and so must those assigned to conduct the torture—to the con- sequences of an illegal act. Those guilty of torturing another human being must be punished—or pardoned ex-post-fac- to. If the torture is revealed to be useless, if the tortured man is shown to have been innocent or ignorant of the in- formation he was tortured to reveal, then those responsible must face the full brunt of the law for, in Krauthammer’s words, such a “terrible and monstrous thing.” In Michael Walzer’s formulation, if we are to have dirty hands, it is essential that we show them to be dirty.

What Krauthammer is proposing, however, is not this compromise, which allows us to retain our soul as a free re- public while protecting us from catastrophe in an extremely rare case. He is proposing something very different: that our “dirty hands” be wiped legally clean before and after the fact. That is a Rubicon we should not cross, because it marks the boundary between a free country and an unfree one.

Krauthammer, moreover, misses a key lesson learned these past few years. What the hundreds of abuse and tor- ture incidents have shown is that, once you permit torture for someone somewhere, it has a habit of spreading. Re- member that torture was originally sanctioned in adminis- tration memos only for use against illegal combatants in rare cases. Within months of that decision, abuse and tor- ture had become endemic throughout Iraq, a theater of war in which, even Bush officials agree, the Geneva Conven- tions apply. The extremely coercive interrogation tactics used at Guantánamo Bay “migrated” to Abu Ghraib. In fact, General Geoffrey Miller was sent to Abu Ghraib specifically to replicate Guantánamo’s techniques. Accord- ing to former Brigadier General Janis Karpinski, who had original responsibility for the prison, Miller ordered her to treat all detainees “like dogs.” When Captain Ian Fishback, a West Point graduate and member of the 82nd Airborne, witnessed routine beatings and abuse of detainees at deten- tion facilities in Iraq and Afghanistan, often for sport, he tried to stop it. It took him a year and a half to get any re- sponse from the military command, and he had to go to Senator John McCain to make his case.

In short, what was originally supposed to be safe, sanc- tioned, and rare became endemic, disorganized, and brutal. The lesson is that it is impossible to quarantine torture in a hermetic box; it will inevitably contaminate the military as a whole. Once you have declared that some enemies are sub- human, you have told every soldier that every potential detainee he comes across might be exactly that kind of prisoner—and that anything can therefore be done to him. That is what the disgrace at Abu Ghraib proved. And Abu Ghraib produced a tiny fraction of the number of abuse, torture, and murder cases that have been subsequently re- vealed. The only way to control torture is to ban it outright. Everywhere. Even then, in wartime, some “bad apples” will

t h e n e w r e p u b l i c P d e c e m b e r 1 9 , 2 0 0 5 23

administration with barely the blink of an eye. Isolation, psychological disorientation, intense questioning, and any number of other creative techniques are possible. Some of the most productive may well be those in which interroga- tors are so versed in Islamic theology and Islamist subcul- tures that they win the confidence of prisoners and pry in- formation out of them—something the United States, with its dearth of Arabic speakers, is unfortunately ill-equipped to do.

Enemy combatants need not be accorded everyprivilege granted legitimate prisoners of war; butthey must be treated as human beings. This meansthat, in addition to physical torture, wanton abuse of their religious faith is out of bounds. No human freedom is meaningful without religious freedom. The fact that Koran abuse has been documented at Guantánamo; that one prisoner at Abu Ghraib was forced to eat pork and drink liquor; that fake menstrual blood was used to disori- ent a strict Muslim prisoner at Guantánamo—these make winning the hearts and minds of moderate Muslims far harder. Such tactics have resulted in hunger strikes at Guantánamo—perhaps the ultimate sign that the coercive and abusive attempts to gain the cooperation of detainees has completely failed to achieve the desired results.

The war on terrorism is, after all, a religious war in many senses. It is a war to defend the separation of church and state as critical to the existence of freedom, including reli- gious freedom. It is a war to persuade the silent majority of Muslims that the West offers a better way—more decency, freedom, and humanity than the autocracies they live under and the totalitarian theocracies waiting in the wings. By en- dorsing torture—on anyone, anywhere, for any reason—we help obliterate the very values we are trying to promote. You can see this contradiction in Krauthammer’s own words: We are “morally compelled” to commit “a terrible and monstrous thing.” We are obliged to destroy the village in order to save it. We have to extinguish the most basic principle that defines America in order to save America.

No, we don’t. In order to retain fundamental American values, we have to banish from the United States the totali- tarian impulse that is integral to every act of torture. We have to ensure that the virus of tyranny is never given an opening to infect the Constitution and replicate into some- thing that corrupts as deeply as it wounds. We should mark the words of Ian Fishback, one of the heroes of this war: “Will we confront danger and adversity in order to preserve our ideals, or will our courage and commitment to individual rights wither at the prospect of sacrifice? My response is simple. If we abandon our ideals in the face of adversity and aggression, then those ideals were never really in our posses- sion. I would rather die fighting than give up even the small- est part of the idea that is ‘America.’ ” If we legalize torture, even under constrained conditions, we will have given up a large part of the idea that is America. We will have lost the war before we have given ourselves the chance to win it. J

and the secret torture sites in Eastern Europe. In World War II, American soldiers were often tortured by the Japan- ese when captured. But FDR refused to reciprocate. Why? Because he knew that the goal of the war was not just Japan’s defeat but Japan’s transformation into a democracy. He knew that, if the beacon of democracy—the United States of America—had succumbed to the hallmark of to- talitarianism, then the chance for democratization would be deeply compromised in the wake of victory.

No one should ever underestimate the profound impact that the conduct of American troops in World War II had on the citizens of the eventually defeated Axis powers. Ger- mans saw the difference between being liberated by the Anglo-Americans and being liberated by the Red Army. If you saw an American or British uniform, you were safe. If you didn’t, the terror would continue in different ways. Ask any German or Japanese of the generation that built democracy in those countries, and they will remind you of American values—not trumpeted by presidents in front of handpicked audiences, but demonstrated by the conduct of the U.S. military during occupation. I grew up in Great Britain, a country with similar memories. In the dark days of the cold war, I was taught that America, for all its faults, was still America. And that America did not, and constitutively could not, torture anyone.

If American conduct was important in Japan and Ger- many, how much more important is it in Iraq and Afghani- stan. The entire point of the war on terrorism, according to the president, is to advance freedom and democracy in the Arab world. In Iraq, we had a chance not just to tell but to show the Iraqi people how a democracy acts. And, tragical- ly, in one critical respect, we failed. That failure undoubted- ly contributed to the increased legitimacy of the insurgency and illegitimacy of the occupation, and it made collabora- tion between informed Sunnis and U.S. forces far less likely. What minuscule intelligence we might have plausibly gained from torturing and abusing detainees is vastly out- weighed by the intelligence we have forfeited by alienating many otherwise sympathetic Iraqis and Afghans, by deep- ening the divide between the democracies, and by sullying the West’s reputation in the Middle East. Ask yourself: Why does Al Qaeda tell its detainees to claim torture regardless of what happens to them in U.S. custody? Because Al Qae- da knows that one of America’s greatest weapons in this war is its reputation as a repository of freedom and decency. Our policy of permissible torture has handed Al Qaeda this weapon—to use against us. It is not just a moral tragedy. It is a pragmatic disaster. Why compound these crimes and er- rors by subsequently legalizing them, as Krauthammer (ex- plicitly) and the president (implicitly) are proposing?

Will a ban on all “cruel, inhuman, and degrading treat- ment” render interrogations useless? By no means. There are many techniques for gaining intelligence from detainees other than using their bodies against their souls. You can start with the 17 that appear in the Army Field Manual, test- ed by decades of armed conflict only to be discarded by this