05/24/2009 05:12 am ET Updated May 25, 2011

Arguing Whether Torture "Works" Is a Dangerous Dialogue

It is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of their leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the peacemakers for lack of patriotism and exposing the country to danger. It works the same in any country."--Hermann Goering.

Let me begin by stating that I agree with the President's decision not to prosecute CIA officials who participated in the illegal interrogations, but urge the investigation, and prosecution if adequate evidence found, of professionals--lawyers and physicians--and higher ups, for reasons to be addressed in another article.

But, I am concerned on a deeper level about what the "debate" has focused upon.

The political dialogue on the Bush Administration's torture policy seems inappropriately focused on whether it "works". Can anyone seriously contend that there is a yes-or-no answer to that question? With some people, in some situations, it probably does work to get accurate actionable information, in others it clearly does not, and in others it is counterproductive, providing misinformation.

There is, morevoer, no absolute yes-no to whether other, non-torture, techniques would have resulted in the same information--good, bad, indifferent--from the interrogation. Although the data appears to favor strongly the non-torture techniques, it is not absolute. Thus, "I thought it would work and was necessary", could be exculpatory on the "does it work?" theory.

That discussion is eerily similar to the post-war refutation of the Nazi's claim of "Jewish responsibility" for the ills of European society as their "justification" for the genocide. There undoubtedly were certain events that people who sported the Jewish faith had a hand in that negatively impacted some people. Just as certainly, there were Protestants and Catholics who had their hands in acts considered inimical to others' interests. So what? Even supposing the Nazis had had some historical facts on their side--would that have justified the extermination of 6 people with similar surnames, not to mention 6 million?

Or, if one prefers, try the Serbians' attacks on Muslims in Bosnia, based on the assertions that the Ottoman Empire installed regimes centuries ago that gave those who converted to Islam certain lands and privileges. Is that likely to be true? At least to some degree, probably yes. Now fast forward to the 20th Century: is there any link to a rational or moral justification of war crimes by Serbians against Bosnian Muslims?

If the answer is, as I hope, "no", then the dialogues about genocide or atrocities in the same breaths as historical facts meant to justify those acts risks elevating those acts to plausible-but-wrong as opposed to reprehensible, unconscionable and unjustifiable.

Back to the torture dialogue. The point is not that the scale of abuse or terror in these torture cases are even close to the same scale as those horrific events. Rather, that the structure of the arguments to justifiy the acts by those who engaged in them bear resemblance, and it is sometimes easier to show the pitfalls of those arguments by examining more extreme examples.

The United States of America ratified the Geneva Convention. Now, I know Geneva is in Switzerland, not in the United States, and thus can be deemed foreign, but our (American) Constitution actually says that even non-American treaties, when ratified, have the full force of law.

Torture was not outlawed because it did or did not work. It was outlawed so that those who practiced it were put on notice that they would be punished because the world had decided to set certain standards of human behavior.

Yes, there are hypothetical questions that can be posed that make the torture question difficult. If a nuclear device were to detonate in 30 minutes, a co-conspirator were in custody, and there were no time to use more effective (non-torture) techniques...but, these hypotheticals are just that, they never happen like that, and our legal and moral compass ought not be sacrificed or even compromised by dreamed up circumstances.

Let us stop the discussions about whether torture works, and turn it to the question of whether any Administration has the power to flout the law by calling it "quaint."