The Torture Administration
Those who want to relax the laws against torture often make the "ticking bomb" argument: that if a prisoner may know the location of a bomb set to go off shortly, torturing him is justified to save lives. If captors believe that, they may well resort to forceful interrogation. But to write such an exception into the rules invites the systematic use of torture. I had a lesson in the danger of the ticking-bomb argument years ago in Israel. I was interviewing Jacobo Timerman, the Argentine publisher who was imprisoned and tortured by the military regime that for a time took over Argentina. (Intervention by the Carter Administration saved Timerman's life; on release from prison he immigrated to Israel.) Timerman turned the interview around and asked me questions about torture, positing the ticking-bomb situation. I tried to avoid the question, but he pressed me to answer. Finally, I said that I might authorize torture in such a situation. "No!" he shouted. "You must never start down that road."
Americans are not immune from evil; no people are. We know now that American soldiers, improperly led, can beat to death prisoners they have in their minds dehumanized. What can we do to limit the evil?
Investigation is one idea, widely endorsed. An independent body like the one that carried out the 9/11 investigation could tell us much that we do not know: not just an authoritative account of the wrongs done but a timeline of the official opinions and actions that opened the way for them. But I think a more effective solution would be the appointment of a special prosecutor. He or she would have the power not just to find the facts but to prosecute the wrongdoers. For we must not forget that not only treaties but criminal laws forbid the torture, mistreatment and humiliation of those we take in conflict.
It is unimaginable that President Bush would agree to a special prosecutor for war crimes if ever the public and Congress grew exercised enough to demand one. But you never know about history. The other day, on the sixtieth anniversary of the Nuremberg prosecution of Nazi officials, Scott Horton recalled that Nuremberg established the principle of command responsibility for abuse--and punished those who wrote legal memorandums counseling German officials to ignore the conventions protecting prisoners.
The chief American prosecutor at Nuremberg, Justice Robert H. Jackson of the Supreme Court, warned that "the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well."
Horton said the moment of historical reckoning for American officials may come. "A number of key Bush officials," he wrote, "are more likely to be the Pinochets of the next generation--blocked from international travel and forever fending off extradition warrants and prosecutors' questions."