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Khalid shaikh mohammed and torture { March 15 2003 }

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Terrorism interrogations and torture
Such brutality is not immoral
Last Updated: March 15, 2003

The recent arrest of alleged al-Qaida mastermind Khalid Shaikh Mohammed - reputed to have been the architect of several attacks on American interests around the world, including, most notoriously, destruction of the World Trade Center - raises the question of whether American agents can be involved, directly or indirectly, in torturing him for information that could save countless innocent lives.

The literature on torture is voluminous, most commentators concluding that torture is odious and unacceptable at all times and under all circumstances, especially in a democracy. But is it - especially in the case of a non-American citizen terrorist, like Mohammed, who was captured and is being held outside the territorial limits of the United States?

To answer this question, one must consider three separate questions.

The first is a practical one: Will torture produce reliable information? In other words: Will the subject say anything, no matter how true or false, to eliminate, or at least ameliorate, the pain he is experiencing? Most experts say torture usually does produce accurate information, especially if the torture applied is more psychological than physical, because the former technique better wears down resistance.

However, if the torture doesn't yield reliable information, it can be discarded - and American security interests are none the worse for the unsuccessful effort.

The second question is legal. Since no constitutional protections extend to enemy foreigners captured abroad, under American law there is no impediment to torturing Mohammed. It is a complex and open question whether the Geneva Convention applies to cases like Mohammed's - but in any event, nation states can (and do) violate the Geneva Convention when their national security is threatened, and free countries have an obligation to do so.

The third question is more troublesome, though its answer is not. The best way to frame the moral question concerning torture in general, and as it relates to Mohammed in particular, is through a hypothetical example - one that today, and in the case of Mohammed, may be uncomfortably close to reality.

Suppose that a known terrorist in FBI custody, whose information is deemed credible, won't disclose where in Washington he has secreted a "weapon of mass destruction" - say, a "dirty" nuclear bomb - set to detonate in two hours. The bureau is certain that the terrorist will never voluntarily reveal the bomb's location. In two hours, our nation's capital could be wiped from the face of the earth, our government decimated, surrounding areas irredeemably contaminated and the U.S. laid defenseless to unimaginable predation by our enemies.

There are two choices: We can do nothing and suffer the unimaginable consequences, or we can torture the information out of the terrorist. We can handle Mohammed with kid gloves, or we can jolt him with jumper cables.

There are those among us - Jimmy Carter-like pacifists and Ramsey Clark-type America haters come to mind - who would probably stand by idly and endure an atomic holocaust. But most people would doubtless opt for torture, albeit reluctantly.

These realists - and I suspect they are a large majority of the American public - would be correct. In approving the use of torture - or at least accepting it - they needn't suffer even a scintilla of moral guilt. Torture, of whatever kind, and no matter how brutal, in defense of human rights and legitimate self-preservation is not only not immoral; it is a moral imperative.

Sadly, in these days of morally equating dictatorial rogue regimes with legitimate democratic governments, the line that separates aggression from self-defense is too often blurred - even erased. The fact is that Mohammed and his terrorist ilk are, as they have proved more than once, aggressors sworn to destroy us. The fact is that we have a right to defend ourselves.

And the fact is that in that defense, we have the moral right - nay, the moral duty - to perpetrate on Mohammed (and any of his cohorts we can capture) any form of torture we deem necessary to save innocent lives.

Mohammed has danced to his own tune for too long. Now it's time for him to pay the band.

Henry Mark Holzer is a constitutional and appellate lawyer and professor emeritus at Brooklyn Law School.

A version of this story appeared in the Milwaukee Journal Sentinel on March 16, 2003.

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