“Only the Necessary”

By Branley Thompson Elkins

Any community’s arm of force—military, police, security—needs people who can do the necessary evil, and yet not be made evil by it. To do only the necessary, and no more. To constantly question the assumptions, to stop the slide into atrocity.

--Lois McMaster Bujold, Barrayar (1991)

When Bujold wrote those words, she wasn’t thinking about the War on Terror. This was before anybody here had heard of Osama Bin Laden, before the first attack on the World Trade Center, before the embassy bombings in Kenya and Tanzania, before the U.S.S. Cole – and ten years before 9/11.

Bujold, through her heroine Cordelia Naismith Vorkosigan, was expressing a more universal truth – the kind most of us forget in the heat of the moment, and some of us forget altogether. That truth has been brought home in recent debate over the use of torture in the war on Islamic Jihadists. The terms of that debate have clouded the real issue.

If you pay any attention to the news, you know about Guantanamo, secret prisons abroad and “renditions” of suspects to the tender mercies of secret police in other countries. Defenders of President Bush insist that torture and drumhead military courts are absolutely necessary; his opponents insist that he is merely manufacturing excuses for such measures in a cynical grab for absolute power.

Make no mistake about it: we face a determined enemy. Compared to the Jihadists, the Communists we fought during the Cold War were models of rationality. They knew that nuclear war would destroy the Soviet Union as well as the United States. None of them would have nuked New York out of mere spite. Jihadists wouldn’t hesitate – if they could get the bomb from a future Iran, or steal one from Pakistan, they’d use it.

Moreover, the fanaticism of the Jihadists has nothing to do with American politics or policies. Read Lawrence Wright’s The Looming Tower, which traces the history of the movement from the writings Sayyid Qutb, an Egyptian intellectual who redefined fundamentalism, to Bin Laden himself – the son of a privileged family in Saudi Arabia – and his right-hand man Ayman al Zawahiri, another Egyptian radical who was tortured in prison (“He went in as a doctor and came out as a butcher,” Wright remarked recently).

Like Sergei Nechayev, a Russian whose “Catechism of a Revolutionary” (1869) inspired generations of left-wing fanatics, the authors of Jihadism are monomaniacs. Qutb hated women, never marrying because he couldn’t find one “pure” enough. Zawahiri, long before 9/11, was promoting the doctrine that it was righteous to murder Muslims well as infidels – any Muslim who cooperated with a secular régime, even by registering to vote, was “apostate.” This inspired a bloody civil war in Algeria – again, long before 9/11.

There isn’t any real difference between the Jihadists and the leftist radicals who think they can save the world by blowing up the nearest Starbucks – except that there are a lot more of them. And there isn’t any way of appeasing them, as Britain and France and the Netherlands have learned to their cost. The worst that can be said about Bush is that he has played into their hands by doing exactly what they wanted him to do, from the invasion of Iraq to the attempt to scrap the Geneva conventions and due process of law.

We could pull our troops out of Iraq tomorrow. We could transfer all the prisoners at Guantanamo to Club Fed, feed them Saudi delicacies like roasted lamb’s heads and let them watch Al Jazeera 24 hours a day. We could let them all go scot free, the big fish as well as the small fry, and they’d soon be busying themselves about how to kill the Pope for daring to suggest that they are violent, kidnap and torture Danish cartoonists, or sneak a dirty bomb into Manhattan.

In the current congressional debates about treatment of Jihadist prisoners, there have been specious arguments. One is that torture is invariably necessary to get the truth, when most authorities agree that it is nearly always worthless – producing only lies that the torturers want to hear. Another is that we can’t afford to tamper with the Geneva conventions because our enemies would retaliate in kind – as if North Korea and Vietnam, let alone the Jihadists, had ever treated American prisoners humanely. Scandals like Al Ghraib have gladdened the hearts of Jihadists, and to embrace their methods would gladden them even more.

The real issue isn’t what we do to the Jihadists, but what we do to ourselves. If we make it legal to simply declare someone a terrorist (as authorized by the Patriot Act) without any evidence or appeal, and have him imprisoned incommunicado without anyone knowing what's become of him, where will it end? President Clinton could have used the same power to "disappear" Paula Jones or Monica Lewinsky. President Bush has the authority to do the same to, say, some witness to him playing AWOL from the Air National Guard.

If it’s all right to torture terrorist suspects, why shouldn’t it also be okay to torture ordinary criminal suspects? If there can be special courts and secret evidence for terrorists, why not for everyone? And the pressure for such abuses isn't coming only from the political Right. Liberals are enamored of preventive detention for sex offenders who have completed their sentences: imprisonment for what they might do rather than what they have done. Preventive detention laws, often imposed by colonial powers, have been used to suppress opposition to Third World dictators. Is that what we want here? What kind of a country do we want to have? What kind of a people do we want to be?

When Bush revealed that top-ranking Jihadists had been transferred to Guantanamo from secret prisons abroad, he argued that only special military courts were adequate to deal with them, because they could use evidence obtained by torture. Yet at least some of these men could easily be tried in ordinary criminal courts and convicted of conspiracy to murder thousands on the basis of their own boastful statements – some recorded on videos broadcast by Al Jazeera. Even Bin Laden himself, Lawrence Wright has recently suggested (New York Times, 9-22-06), could be tried by a Shariah court in Saudi Arabia for the murders of countless Muslims, and executed as an apostate – a more humiliating death than Bush could ever give him.

As for the small fry, let them be declared criminals and tried in criminal courts, with the usual safeguards and rules of evidence. Those claiming alibis or mistaken identities should have a chance to clear themselves. Those shown on good evidence to actually be combatants could be treated as we have always treated prisoners of war – and if they're still being held ten years later because the Jihadists won't make peace, they'll have nobody to blame but themselves. But let's not have any Orwellian "illegal combatants," secret prisons, "renditions," kangaroo courts and, especially, torture.

And yet, and yet….

Let’s say, for the sake of argument, that torture is sometimes necessary. That is the argument of Judge Richard A. Posner, a conservative who has outraged liberals with a new book called Not a Suicide Pact: The Constitution in a Time of National Emergency. But his argument is that it may be necessary to flout the Constitution and the law – not that either the Constitution or the law should be abrogated. To explicitly legalize torture and other abuses of human rights would give the government a blank check, and inevitably lead to unchecked abuses and even tyranny.

Here’s how I’d frame the unwritten law: any government official – military, FBI, CIA, whatever – engaging in torture or other abuses of the law would have to assume personal responsibility for whatever he did or ordered done. He would be subject to the severest criminal penalties, regardless of his motives. Because of this, he would have to be exceedingly cautious in violating the law, doing so only when in his considered judgment there was no alternative to prevent another 9/11 or to capture and/or kill top Jihadist leaders.

If he turns out to be right, to have done “only the necessary” – if torturing a prisoner exposes a plot and saves hundreds or thousands of lives, if it leads to beheading the Jihadist leadership, he can get a pardon. If he’s wrong, he gets 20 years to life in the slammer. Period.

Sept. 24, 2006