Torture for Intelligence in the Post-9/11 World

November 10, 2004

Unedited transcript prepared from a tape recording

9:45 a.m.	Registration
10:00	Panelists:	Jean Bethke Elshtain, University of Chicago
		Sanford Levinson, University of Texas Law School
		Kim Scheppele, University of Pennsylvania Law School
		John Yoo, AEI and University of California–Berkeley
	Moderator:	John C. Fortier, AEI
Noon	Adjournment

Proceedings:
MR. FORTIER:  [In progress.] -- lively and important subject, very serious subject, that is, torture for intelligence in the post-9/11 world.

We're here today, of course, because of September 11th, thinking through some questions that we might not have talked about as publicly before September 11th, but we are here in particular because of a new book, a new collection of essays that has been put together, edited by one of our panelists, Sanford Levinson.  It's "Torture:  A Collection," and this really truly is a credible collection of essays from people across many different academic disciplines and outside of academia as well.  It includes essays by Jean Elshtain, who is with us here as well, Alan Dershowitz, Michael Walzer.  You see on the cover some of the highlights, Ariel Dorfman, Elaine Scarry, just people who would represent a very large political spectrum on this issue, and, again, cutting across many different academic sub-fields.

It is literally just out.  It can be found in bookstores.  Oxford University Press is the press, and I guess normally I would recommend at this time of year this as a stocking stuffer, although maybe the subject is a little tough for your children, but certainly a book that you should take very seriously.

What we'll do today is we have four panelists, I'll do some introduction of the panelists.  Each will make a relatively short presentation.  Really, we don't want it to exceed 15 minutes so that we have time for some discussion amongst ourselves and then to the audience.

So let me begin at the end of the table here with the editor of the collection, Sanford Levinson.  He holds the W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law at the University of Texas, professor of law, also a political scientist, professor of government.  He's the author of a number of books:  "Constitutional Faith," a classic in law and political science matters; "Processes of Constitutional Decisionmaking," "Wrestling with Diversity," "Constitutional Stupidities, Constitutional Tragedies."  He has written on a wide range of constitutional matters.  Also we have worked with Sandy on a number of matters, on the Second Amendment, of presidential succession.  His interests are extremely wide-ranging.  He has also been a visiting professor at Harvard Law School, NYU, and is a member of the American Law Institute.

John Yoo is a visiting fellow at AEI.  I don't know if I have that title right, but he is mostly known sitting at the University of California's Boalt Hall School of Law, has previously been a clerk for Supreme Court Justice Clarence Thomas, also served in the Senate as general counsel to the Judiciary Committee, and at the Office of Legal Counsel where he had occasion to work extensively on the issues that we are discussing today.

Kim Scheppele is professor of law, political science, and sociology at the University of Pennsylvania.  She had spent an earlier time at the University of Michigan in several of those departments.  She has held the Arthur Thurnau Chair as associate professor of political science there, too, and has written widely on constitutional law, on matters of foreign relations, and is the author of "Legal Secrets, Equality, and Efficiency in the Common Law," as well as numerous other Articles in legal journals.

And then just so that I feel comfortable with another non-lawyer on the panel, I'm going to turn to Jean Elshtain, who really needs very little introduction but is one of our leading students of ethics, religion, public policy.  She is the Laura Spelman Rockefeller Professor of Social and Political Ethics in the Divinity School at the University of Chicago.  Her books are many, but they include "Public Man, Private Woman:  Women in Social Thought," "The Family and Political Thought," "Meditations on Modern Political Thought," and the list goes on.  She serves on a number of places, the Board of Trustees of the Institute of Advance Study at Princeton and the Board of Trustees of the National Humanities Center and Board of Directors of the National Endowment for Democracy.  She is a contributor to the book, and what I'm going to do is begin by turning to Sandy, who can give us his thoughts both on the subject but also give us a little bit of an overview of the collection as a whole.  Then I will turn to Jean, to Kim, and to John Yoo.

Sandy?

MR. LEVINSON:  The first thing I want to do is to offer really deepest thanks to John and to the AEI for arranging this.  I will tell a story against interest with regard to John's comments about this book as a stocking stuffer.

When I mentioned to a good friend who's an editor of the Harvard Press that Oxford was going to publish this, he expressed a little bit of surprise because--and I think this is a quote--"Who wants to read a book about torture?"  And that's a very real truth, that one of the reasons I'm so grateful to you for arranging this is that going back to a really marvelous issue in January of 2003 at the Economist, which included a very dramatic cover, and there were several stories in that issue about the issue of torture, one of the points the editors of the Economist made is that, A, there were already very serious questions to be raised with regard to methods of American interrogation in Afghanistan; and, B, that the debate, such as it was, in the United States was "desultory."  And that certainly was true.  One of the aims of this book was to help generate more of a debate in this country.  Now, in a very grim sense, we were helped along by Abu Ghraib, and that led Oxford, for example, to speed up the publication of this.  In its catalogue, it's listed as a December book.  They literally rushed it into publication, for which I'm grateful.  But to quote myself in an article in the Village Voice just after the photographs were released, what I said there is that the only thing surprising was the photographs because, in fact, there had been articles in the Washington Post, the New York Times, the Economist, and the Wall Street Journal, all obviously very mainstream publications, talking particularly about methods of interrogation in Afghanistan, which led basically to no response by people in the political world.

And this, I will say, is a bipartisan lack of response, that in an early article that I wrote in the University of Texas Law Review, I quote Jay Rockefeller, Democratic Senator from West Virginia, with regard to a given episode where we captured somebody, and the issue was rendering that person to another country, really for the purpose of being tortured.  And what Rockefeller said is, look, this is a very bad person, we should do whatever is necessary.  And maybe that's a defensible position.  No doubt we will talk about that later this morning.  But what certainly struck me is that a Senator, a long-time Senator who had voted to ratify the UN Convention which says very explicitly that it is a violation of international law to render people to countries where they might well be tortured, he just didn't care.

If one looks at the recently concluded presidential campaign, for their own interests neither the President nor Senator Kerry thought it appropriate to bring up this issue.  And I've ended up quite critical of Jim Lehrer, in particular, a very, very fine journalist, usually, but in a debate devoted by and large to Iraq, of the 90 minutes I'm quite confident that 75 of them were on Iraq, not once did he bring up this issue.

So what I fear is that we are returning to the condition that the Economist described of basically wanting to sweep this under the rug, which is why I'm so grateful to you, so genuinely grateful for your organizing this.

Now, with regard to what the book is designed to do, you basically got it exactly right.  It was designed to bring together some of the most interesting people, both in this country and abroad, some of whom had already written on torture.  Richard Posner, for example, had reviewed Alan Dershowitz's book in the New Republic.  Both of them, therefore, were natural choices.  Jean I've had the pleasure and privilege of knowing now for about 20 years, and she was one of the people--and she recently published a book on the response to terrorism.  And I was very interested in what she might have to say about torture.  You know, she can speak for herself, but I think it's fair to say that she had not written about this before.  And this was an occasion, frankly, to force her to put down on paper her response to what are really very, very tough issues.

You know, just to kind of--I won't go down all of the 16 or so authors, but they do include a spectrum not only of positions but also of disciplinary interests, as you point out.  Oona Hathaway, for example, who teaches at Yale Law School, has a very interesting, basically empirical article.  A hundred and thirty countries have signed the UN Torture Convention.  Many of them engage in torture.  So what is it that leads countries to sign these conventions?  And the most chilling statistic she comes up with is that there may be a negative correlation between countries that sign such treaties and their actual behavior, partly because of difficulties in monitoring.  No country in the world affirms that it tortures.  It's a cheap gesture to sign the United Nations Convention, particularly if you can feel fairly secure that there will be no means of genuinely enforcing it, either through internal police work or through international law.

So her essay doesn't take a position on the merits, though, like everybody in the book, she is opposed to torture.  Nobody thinks torture is good.  The debate is whether there are very, very specific constraints, circumstances under which can be a lesser evil.  And if you answer yes to that question, that is, there are certain specifiable circumstances where it could be a lesser evil, then the debate is, well, what role, if any, should legal institutions play with regard to regulating that evil.

So that there's been a huge controversy, for example, swirling around Alan Dershowitz's view that if torture is ever to occur, it should occur only after the issuance of what has come to be called in the debate a torture warrant.  Jean takes significant exception to that idea.  I forget the particular adjective you use with regard to Alan's idea--

MS. ELSHTAIN:  "Stunningly bad."

MR. LEVINSON"  "Stunningly bad," yes, I think that's right.  But Jean does agree with Alan that there may be certain specific circumstances under which one should contemplate torture.  So there are multiple debates going on in this book.

John Langbein, who's probably the leading historian--also at the Yale Law School, the leading historian of torture in the Middle Ages, has kind of a historical overview and points out that torture was a thoroughly integrated part of the law in the Middle Ages, particularly in European systems, having to do with the law of evidence and why it is you needed to get confessions.  And as one moved to other systems of evidence that included, for example, much more sympathy with circumstantial evidence rather than confessions, you no longer need confessions.  And there are other arguments as well as to why torture drops out.

I would mention a very interesting essay by Mark Osiel who has written a trilogy of books on Argentina, and what is most challenging about his essay is his argument, you know, perhaps alas, that torturers are not necessarily sadistic, fanged monsters; rather, in Argentina, they were people who had been persuaded by officials of the state and the church that this really was necessary in order to uphold both state and society.  And this debate certainly links with some of the response to Abu Ghraib where one immediate and--you know, I put in scare quotes--attractive response is to say, well, these are simply rotten apples who are indeed sadistic or indeed immoral, rather than kids, in many cases, who, in fact, believe they're serving the country.

Now, it may be hard with Abu Ghraib to believe that, but in a certain sense, Abu Ghraib is a diversion because what's much, much more important is what has not been photographed but has been described in a number of articles, the interrogation methods in Afghanistan, in Iraq, and elsewhere.

Richard Posner's essay is notable for two particular points.  First, he says in--I'm a big fan of his writing overall because he's absolutely, you know, courageous in willingness to say whatever is on his mind.  And so what he says is that he would not want somebody in the highest position of leadership who was not at least on occasion willing to torture.  But, on the other hand, he takes Alan Dershowitz very much--actually like Jean, he takes Dershowitz very much to task for the idea of torture warrants because he thinks that could dangerously regularize and normalize torture.

Jerome Skolnick has an essay that's worth mentioning on American interrogation practices, police practices, and also hovering over this is prison practices, because I think that one of the connections that has been missed with regard to Abu Ghraib is between American prisons and interrogation or--not interrogation.  Much of what was done at Abu Ghraib had precious little to do with interrogation.  The Schlesinger Commission report--and in addition to my own book, let me also urge you, for those who have peculiar tastes in Christmas presents, Mark Danner--there's a collection called "Torture and Truth," which is also being published imminently, that has some of his own essays from the New York Review of Books, which are really very good, but what really makes this book essential is that it has the leaked documents from the OLC, the Schlesinger Commission report, a fascinating report by two Army generals, Jones and Fay.  And one of the most fascinating single features of the Schlesinger Commission is actually an appendix in which they refer to the so-called Zimbardo experiments done at Stanford in the early '70s where Phil Zimbardo arbitrarily divided a sociology class into two groups, one designated as prisoners, the other designated as prison guards.  It was supposed to go on for two weeks, a social psychology experiment.  He stopped it after six days because the students who were arbitrarily assigned the role of prison guards were becoming very, very abusive toward their classmates who had arbitrarily been assigned the role of prisoners.  And the Schlesinger Commission correctly, I believe, infers from this that it's absolutely essential to have command and control over people who are put in positions of prison guards or interrogators.  And one of the things that comes through with regard not only to the Schlesinger Commission but also the Fay-Jones report is the--I don't want to say utter absence of effective command and control in Iraq, but it's pretty close.  And indeed, as I will say in a review that's coming out in the L.A. Times in a couple of weeks, one comes out of these reports with enhanced respect for the American military because I think their own response to Abu Ghraib is extremely critical of the lack of professionalism for all sorts of reasons.

Very last point.  My own essay does discuss, at least in part, some of the OLC memos, and I hope we'll have a chance to talk more about this during the discussion section.  But I would make a couple of quick points.

The first is that the UN Convention that the United States did ratify is what I would describe as Kantian in its basic language.  I mean, a lot of this takes you back to Philosophy 101 sorts of questions.  So Article 2-2 of the Convention is no exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability, or any other public emergency may be invoked as a justification of torture.

One question that is raised is simply kind of a policy question.  Is it wise ever to adopt Kantian public policies and not allow some out for what lawyers are trained to call compelling interests?  Oren Gross, a professor at the University of Minnesota, has an essay in the book in which he argues, I think quite persuasively--maybe not completely convincingly at the end of the day but quite persuasively--that it is a good idea with regard to torture to adopt this absolutist language.

On the other hand, if one adopts this sort of absolutist language, then I think that one is well on the way to understanding the memos from the Office of Legal Counsel that I personally find--as an American I find objectionable in a number of ways, but as a lawyer I can understand them in some ways, because if you're told you can never under any circumstances engage in torture, then the incentive becomes very, very high to offer such an extreme notion of torture that you say, look, we're not doing this, we're not, for example, imposing "excruciating pain" for a prolonged period; we're doing something else, which may very well be inhuman and degrading.  But one of the peculiar ways this debate has been shaped is through focusing entirely on torture, and if one can talk of both sides in this debate, that is, the Bush administration and its critics, there is a kind of shared agreement in a way that the most important issue is discussing whether this is torture.  So John and some of his colleagues for the Bush administration have offered definitions of torture that I confess I find quite appalling.  But as I say, I think the purpose of the argument is to say we're not doing this, and anything less than that isn't torture.  On the other hand, some of the critics of the Bush administration also are determined to describe whatever is being done as torture, and it seems to me with regard, for example, to the photographed behavior at Abu Ghraib, it may very well not constitute torture, though I'm certainly confident that it constitutes inhuman and degrading activity, and that really ought to be enough and, in fact, does violate the UN Convention.  But as I say, the debate has become in a sense peculiarly focused, that kind of it's torture or we can relax.  And I think that it's certainly worth talking about torture, and I do hope that people buy the book.  But I also think that the debate should also focus on inhuman and degrading sorts of interrogation and whether we as a society want to license those as methods of interrogation.

MR. FORTIER:  Jean Elshtain.

MS. ELSHTAIN:  Good morning.  Thank you.  I'm going to work with a text, in part because I want to keep very close track of my time.

As you heard, I'm a political philosopher, not a lawyer, so I will be approaching these questions from the perspective of political philosophy.

When I was in graduate school and the question of torture came up, a dilemma was usually presented to the students in order to help them to think about the issue.  Now, it usually went like this:  A bomb has been planted in an elementary school building.  You know that much.  But you don't know which building.  A known member of a terrorist criminal gang has been apprehended.  The authorities are as close to 100 percent certain as human beings can be in such circumstances that the man apprehended has specific knowledge of which school contains the deadly bomb, which is due to go off within the hour.  He refuses to divulge the information as to which school, and officials know they cannot evacuate all of the schools in the city, thereby guaranteeing the safety of thousands of school children.  So it follows that some 400 children may well die unless the bomb is disarmed.

Are you permitted to torture a suspect in order to gain the information that might spare the lives of so many innocents?  The circumstances are desperate.  The villain is thoroughly villainous.  The probability that he knows where the bomb is planted is, as I've already suggested, about as close to certainty as human beings can get in those circumstances.  It's also undeniably the case that were the police to see this man attempting to run into the school bomb in hand, he could be shot outright.  Is it not, therefore, acceptable in this rare instance to torture him to gain the information?

Now, what usually followed from the presentation of this or some other vivid hypothetical was a discussion of options within the framework of the two dominant competing moral philosophies of modernity--Sandy has already talked about one--Kantian deontology or sort of Benthamite utilitarianism.

Now, the deontologist says never, one is never permitted to use another human being as a means to an end.  A person is an end in himself, not a means to any end, including the end of sparing these school children.

The utilitarian, who would say, with apologies to those who are utilitarians out there because this is perhaps over-simple, but the utilitarian would say the greatest good for the greatest number would be served by torturing the terrorist and saving the school children.

So the way it was usually presented, you got to vote for either Kant or for Bentham.

Now, most of the time I found myself standing with neither, and I didn't explore systematically why.  When Sandy asked me to do this essay, it gave me the first opportunity to really turn my attention to this question.  And I think the reason that I stood with neither was that there was something in the tradition, the theological tradition in which I was reared that emphasized one's concrete responsibility to one's neighbor, and I'm going to call that "neighbor regard," concern for the neighbor.  Where would one's responsibility lie in this circumstance--with the innocent or with the guilty?  With school children who cannot defend themselves or with a prisoner who is, of course, implicated in the danger to those school children, but who at that moment clearly cannot defend himself either?

Now, let me leave this particular dilemma for a moment in order to explore this neither-nor in a little bit greater detail.  My argument is that while deontology, Kantianism, makes something called torture impossible--we still have to think about what torture is--utilitarianism makes it too tempting.  There is another problem, and that lies in the word itself.  Sandy has already touched on this.  Is a shouted insult a form of torture, a slap in the face, sleep deprivation?  What about a beating to within an inch of one's life, electric prods on the genitals, pulling out fingernails, cutting off an ear or a breast?

All of us surely would place every violation on this list, beginning with beating and ending with severing body parts, as a form of torture and, thus, forbidden.  I dare say there would be few arguments there.  But let's turn to the question of, say, sleep deprivation or shaking, threatening.  Do they belong in the same torture category as bodily amputations and sexual assaults?

There are those who do, in fact, argue that shouted insults belong in the category of torture.  But surely this makes a muddle of the category, that is, if everything from a shout to the severing of a body part is torture, then the category seems to me so indiscriminate as to not permit of those distinctions on which the law and moral philosophy rest, or should.

If we include all forms of coercion or manipulation within torture, then we move in the direction of a kind of indiscriminate moralism and legalism.  And at the same time, we may, in fact, deprive law enforcement, both domestic and international, of some necessary tool that it needs in an often violent and dangerous world.

Now, to reflect further on this issue, I went back to what is by now a classic essay in political philosophy by Michael Walzer, a friend of both Sandy's and mine, in an important essay--I think it goes back to the '70s, doesn't it, Sandy?

MR. LEVINSON:  And it's in the book.

MS. ELSHTAIN:  And it's in the book.  Walzer references St. Augustine's "melancholy soldier, who understood both that his war was just and that killing even in a just war is a terrible thing to do."  If the war is just and the person one kills is, like oneself, a combatant, we do not charge the soldier when he comes home from the war with the burden of having murdered.  That would be an act of injustice.  But it is appropriate that the soldier feel the burden of what he has done all the same.

Now, Walzer pursues this thought further by noting that St. Augustine, again quoting, might have thought it wrong to torture in a just war, and later Catholic theorists have certainly thought it wrong.  Moreover, the politician I am imagining thinks it wrong, as do many of those who supported him.  Surely we have a right to expect more than melancholy from him now.  Walzer, by the way, here is hypothesizing that a political leader has ordered a man tortured in order to protect civilians who might otherwise die in an apartment building that's been booby-trapped.

Now, when he ordered the prisoner tortured, continuing with Walzer, he committed a moral crime and he accepted a moral burden.  Now he is a guilty man.  His willingness to acknowledge and bear his guilt is evidence and it is the only evidence he can offer us both that he is not too good for politics and that he is good enough.  That's the end of the quote.

He is good enough to do what is wrong but necessary in order to provide for the common defense to protect the citizens he has a particular responsibility to protect, and he is guilty, as he should be and as any decent person would be, at what he felt compelled to do given the vocation of statescraft.

Now, this imagined response of the political leader eschews the exculpatory stratagems of utilitarianism that would enable the leader to torture but keep his hands clean at the same time, nor, you will have noticed, is Walzer's imagined political leader a strict Kantian who must do the right thing even if thousands of innocents die, rather like the person Kant imagines who is forbidden under Kantian deontology to tell a lie even if it means turning a friend, hidden about his house, over to a murderer.  You can't tell a lie, so you have to turn your friend over to be killed.

Now, as I noted above, there is an alternative.  Although Walzer doesn't name it, he describes it.  One begins with a rule-governed activity.  Such rules are moral guidelines.  There may be situations that are not anticipated by those guidelines and that are so serious, so dire in their potential consequences, they may require overriding the rule in this instance.  The rule in question is not set aside, canceled, or annulled.  One is obliged to acknowledge violation of the rule and to offer reasons for why in this circumstance the rule is temporarily overridden.  So you're not being coy about it.  You're acknowledging, in fact, what you have done or are doing.

The overriding of a rule should never be easy.  It should, in fact, be in extremis, or close to it.  And one overrides the rule in recognition that a moral wrong does not make a right, but it might bring about a less bad or more just outcome.

Now, let's recall the hypothetical scenario I sketched at the beginning about the bomb in the school.  Ask yourself who you would want in a position of judgment at that point:  a person of such stringent moral and legal rectitude that he or she would not consider torture because violating his or her own conscience is the most morally serious thing a person can do; or a person aware of the stakes and the possible deaths of hundreds of children who acts in light of this harsh necessity and orders the prisoner tortured?  The second leader does not rank his or her purity above innocent human lives.

The irony, of course, is that the leader who demurs in the name of living up to a moral code we likely share with him or her becomes directly complicit in the deaths of hundreds of thousands--or hundreds in this case, maybe in some cases hundreds of thousands--but hundreds of innocents.  Parents, grandparents, siblings of the children will likely curse his or her name, and they would be right to do so.

Now, rule mania and the moralism that flows from it aims to insulate the statesperson from any tragic dimension to his or her craft.  If one just follows the rules, one's conscience is clear.  But the root of concrete responsibility or neighbor regard that I've been talking about suggests a more difficult path.  Remember the political leader who has approved torture as a way to elicit information that may save the lives of hundreds of children does not thereby sanction or normalize torture.  Torture remains a horror and, in general, a tactic that is forbidden.  But there are moments when this rule may be overridden.

The refusal to legalize and to sanction something as extreme as torture is vitally important, so it follows, as you've already heard, my view that Alan Dershowitz's suggestion that there may be instances of legitimate torture and that those about to undertake it are obliged to gain a torture warrant to sanction their activity is a stunningly bad idea.  They should not seek to legalize it.  They should not aim to moralize it--normalize it, nor morality it.  They should not write elaborate justifications of it as if there were a tick list one could go down and if a sufficient number of ticks appear, one is given leave to torture.  The tabooed and the forbidden, the extreme nature of this mode of physical coercion must be preserved so it never become normalized as just the way we do things in our society.

I think I have a few more minutes, do I not?  A couple more minutes, all right.

So the concrete moral regard approach then rather than putting a question if you're a person in charge, well, what's the absolutely right thing for me to do, how do I keep my hands clean, instead puts the question, What is to come?  What will happen, you know, if we don't do something to prevent this horrible situation from playing out, you know, the full scenario which would lead, as we've already heard, to the deaths of innocents?

Now, I'm not going to have time to go into detail about the rest of what it is I have to say in this piece, but it has to do with that question of how we really understand torture and the whole issue of whether, in fact, sleep deprivation, let's say, belongs in the same category as the horrors, the physical horrors that I talked about.  I suggest that we need to find ways to discriminate between these kinds of activities in order to bring some clarity to the situation without ever making torture, the things that are now called torture--the sleep deprivation and so on--without ever making that seem simply normatively acceptable.

There's obviously a lot of details here that one would need to go into to make that case with the robustness that it would need to be made.  But let me just conclude because my time is running out, and that is, if we condemn what in the essay I wind up calling Torture 2 and say we need a different name for it, that is, the slap in the face, sleep deprivation, and so on, I prefer "coercive interrogation."  If we condemn that outright and say under no circumstances is it ever permitted and we put it in the same category as the horrors that I already mentioned, then it seems to me we lapse into a kind of legalistic version of pietistic rigorism in which one's own moral purity is ranked above all other goods.  I think that's also a form of moral laziness because one repairs to a code rather than grappling with a terrible moral dilemma.  And where I wound up after my grappling is that one is willing to pay a price and, if necessary, to incur moral guilt when the lives of others are at stake.

MR. FORTIER:  Kim Scheppele.

MS. SCHEPPELE:  Thank you.  I first want to explain what I'm doing on this panel, apart from the fact that Sandy prevailed on me to think about this topic.  What I tend to do is to work on the constitutional law of other countries and, in particular, I work on the constitutional last of post-communist countries.  Yesterday, as you know, was the 15th anniversary of the fall of the Berlin Wall, and for the last 15 years I've been actually thinking about this question of how societies make a transition from non-rule-of-law states into rule-of-law states.  Little did I know that I would actually start to contemplate what happens when countries go in the reverse.

Since 9/11, I've been very interested in America's response and the response of other well-established constitutional democracies to the threat posed by terrorism.  And, in fact, I've been teaching a course at the University of Pennsylvania Law School since 9/11 called "Terrorism and Democracy," looking at the ways in which countries that have established a series of constitutional and human rights-based principles are now thinking about ways to make exceptions to them.

And I must say that looking at the post-communist constitutional transformation and the American one really strike me as being two aspects of the same thing.  And I'm always struck when I go to Moscow--I lived in Moscow last year, and all these judges were saying to me:  How can America justify what it's doing?  And I must say it was very interesting to try to explain this to Russian judges.

I'm also almost done with a book called "The International State of Emergency" because I think what's happened since 9/11 is that a number of countries have used the opportunity of terrorism to basically pull themselves away from their prior constitutional principles in a way that isn't really a war.  I think the war on terrorism is a really misleading metaphor.  I think what's happened is that a number of states, America among them, have basically gone into a state of emergency, and this is happening in a lot of different countries in parallel ways.  That's a different story.

What I want to do today is just focus on the torture example because in many ways it's the clearest case of how the unthinkable has become thinkable in societies that I think didn't used to imagine themselves as entertaining this kind of proposal.

Now, discussions about torture typically start with the same hypothetical, and it's a variant on the one that Jean talked about.  The entire literature is full of, you know, imagine there's a terrorist in the middle of Manhattan who has planted a nuclear bomb that's set to go off within some very short amount of time.  You capture him.  You're faced with this moral dilemma.  Do you torture him to get the information that allows you to defuse the bomb, thereby saving the lives of hundreds, thousands millions?  Or do you stand on principle and sacrifice multitudes?  This problem is sort of out there in the literature.  And, of course, when it's put that way, the decision seems absolutely easy.  You know, of course, you would torture.  Only those who are completely immune to grotesquely bad consequences would not.

So from there, it's a simple proposition to argue that since you would torture in that case, it can't be true that you would never torture, as international lawyers and human rights advocates would have it.  And once you've established that there's some point at which the tradeoff between lives saved and techniques used can occur, the debate then shifts to how big the consequences have to be before torture can be justified.  So the hypothetical has wedged us into this position of admitting that torture is sometimes a legitimate tactic.  And then when you shift this over to the war on terrorism, the urgency and immensity of the war on terrorism--which, like I said, I think is the wrong way to describe it--tends to tip the scales in favor of torture.

Now, I want to resist this slide into consequentialism today for a couple of reasons.  One is I would be willing to mount the defense on moral grounds.  I think Jean has done a fabulous job of weighing this out, and I agree with her analysis quite completely.  I also would be willing to defend this on legal grounds.  The international convention against torture, as Sandy said, is really quite absolute and binds even the United States, which is a signatory, and it has no circumstances under which you can derogate or make exceptions to the convention.  Even though the United States attached a number of reservations to this treaty when it signed it that allows the U.S. to have a more cramped definition of torture than the rest of the civilized world, it still, I think, means that the U.S. can't do the things that even it thinks of as torture.

I find the public reaction to these leaked memos of the Office of Legal Counsel particularly interesting because, while I agree with Sandy that one can see the legal attractiveness of the argument, you know, sort of taken in space, the public reaction really encourages me that even now there is a revulsion to using these kinds of techniques.  So I think there's a legal argument here, too.

But I'm not going to make either the legal or the moral argument today.  In fact, I'm going to rely on my other disciplinary background, which is as a sociologist, because what I want to argue is that the hypothetical that everyone uses to think about torture has a number of things that are just wrong with it, and that in the real world we will never encounter a situation that comes remotely close to this hypothetical, and that the context in which torture is now being justified or torture is now being discussed are really not like that hypothetical at all.

So what is the real-world situation in which torture is being contemplated?  Well, we're talking about interrogators who are faced with the decision to torture a detainee in the war on terrorism.  We're typically talking about detainees who have already been isolated from a situation, who are being held in some isolation at some remove from the context.  We don't know about whether there's a ticking time bomb.  We don't know anything very specific.  And so what I want to do is to go through some aspects of this hypothetical and show you why I think the hypothetical doesn't hold and, therefore, why I think it would be really inadvisable to countenance a policy about torture.

The first thing is that, unlike in the hypothetical, the interrogators who really confront this question are not moral agents making individual decisions as sort of independent moral agents, even as I think is true in Jean's analysis.  Instead, the interrogator will typically be following rules about when torture is permitted, rules of a bureaucracy in which the interrogator is in a subordinate position following established procedures.  The real-world question that arises then is not whether we personally would torture in the Manhattan nuclear bomb case, but instead whether as a society we could, in fact, design rules that would limit torture to the kinds of situations in which we think it's justifiable.  And I think it's actually hard to impossible to design such rules.

So what would the rules look like?  Well, you could say imagine there's a terrorist with a nuclear bomb in the middle of Manhattan, and you go through the hypothetical.  Well, there would be a thousand such, I imagine, and it would be very hard to specify them in that level of detail.

So what else could you do?  Well, you could do what the Department of Defense has already done, and that is, they say, that Don Rumsfeld's memo of April 16, 2003, basically says when you find someone whom you think might be an appropriate candidate for these extremely coercive interrogation methods, ask us.  It's rather like Dershowitz's torture warrant.

But if you're in the kind of situation where you could stop everything and go ask the Secretary of Defense or, for that matter, go ask a judge, you wouldn't be in a situation like the hypothetical, because I think what's really crucial to the hypothetical is that this threat is imminent, it's massive, and there are no other choices.  Okay.  So already stopping the action and going to ask I think means that you're not in this kind of world.

Also, those of you who know Hayek's argument about central planning, I can't resist making it in this context.  As everybody knows, it's very difficult to get subtle nuanced information to the center for the purposes of central planning.  And the same thing is going to happen with these warrants as I think what happened in other, you know, doomed central planning schemes.  You simply need to know too much detail about the individual circumstance to know whether torture would be warranted, and you can't convey that kind of nuance to the center.

So then what else could you do to design these rules?  Well, you could give rules to, you know, either military interrogators or CIA agents to use torture in the field.  And, in fact, there's one place in which these kinds of rules have been attempted, and these are the rules for the use of deadly force that police departments have.

Now, what's very interesting about those rules for deadly force and actually, interestingly enough, unless something has changed in the last year, the military itself has no rules for the use of deadly for for self-defense.  So it hasn't even tried to do these kinds of rules.  But what's very interesting when you look at police use of deadly force is that every single instance can be second-guessed, and in virtually every case where the police have ever used deadly force, there's an investigation.  Whoever does it is put on suspension.  But even if they're following the rules, there is a massive amount of second-guessing, and even if someone claims the rule as a defense, it turns out that they're often wrong.

What we tend to know from the way police departments work is that even given sort of relatively strict rules about use of deadly force, it tends to be overused, that if you know there's this possibility, people in the heat of the moment will tend to make the calculation in favor of actually using deadly force when, in fact, lesser tactics might be used.  And all you have to do is look at the police force reports around the country to see that that's true.

So all of those things make me think that it's just very hard to design rules of this kind that would limit torture to the very few and special cases in which we think it might be justified.

There's also something else which gets me to think this, and that is, if we look at how rules function in a bureaucracy, even assuming you could design the rules correctly to isolate these very few cases where torture would be justified, we know a few things from the evidence -- [tape ends].

-- interrogation techniques already authorized have been used.  So one thing we know is that they tend to move geographically.  We know already that the Defense Department had authorized the use of a special set of techniques for Guantanamo, and then as soon as one of the people in Guantanamo got transferred to Iraq, the techniques got transferred as well.  And so one of the things that happens in a bureaucracy is that people move around, and if you learn that you can do something in one position, it's almost irresistible to take it with you.

The other thing we know from seeing the evidence that's come out in the war on terrorism is that rules that have been authorized for the CIA seem to have drifted over into the Department of Defense because in the concrete context of Iraq, where the CIA interrogations were going on in the same prisons managed by the Department of Defense, the military folks look at this and say, well, we're fighting the same war, how come they're allowed to do this, but we're not?  And so at least the Schlesinger report and some of the other reports that have come out indicate that these techniques have moved.

Finally, I think we also know in bureaucracies--and one way to see it is actually in the Foreign Intelligence Surveillance court decision that originally turned down John Ashcroft's proposal to change the standards for getting FISA warrants.  One of the reasons why that court was so reluctant to go along with the thing that Ashcroft was proposing was precisely because they said more than 100 applications for FISA warrants had been misleading, where they found out later that criminal investigation was the primary goal of these warrants, which is exactly what the court was not allowed to grant.  And the fact that they had gotten so many false warrant requests was getting them to be more nervous about this.

So all of these practical examples tend to--I think should lead us to believe that even if we were to be able to design rules, which I think we can't, we should be very nervous about letting them loose in a bureaucratic setting where there's all these sort of incentives for movement and overuse.

Just a couple other quick things about the hypothetical because I think the bureaucratic thing is the most important.  But the second thing is that the hypothetical presupposes that interrogators will know for sure, or as close to sure as possible, that the consequences of their not torturing are both monumental and imminent.  And I think, again, in the war on terrorism, one of the things that we've seen is that oftentimes the threat is it's generalized, pervasive, and serious, but it's not certain, monumental, and imminent, which is to say there's a threat out there somewhere, but I think in most of these cases there's really no sense that the threat is as monumental and imminent as the example indicates.  And this is along several different dimensions.  How many lives would be lost?  How certain is it?  How imminent are these losses?  All of those things are often uncertain, and part of the reason why they're uncertain is because we have to look at where in a concrete case interrogators get the information from.

So what if the interrogator gets an anonymous phone call saying there's a bomb in a high school in New York City or something?  Or suppose that the interrogator has been given translation of a document that says literally the chicken will lay the egg at 3 o'clock, and then they're told we think the egg is a bomb?  Or suppose that somebody spots on a website that there is a threat or that there's a plan to detonate a nuclear explosive in Manhattan?  Or what if the detainee himself brags during detention that he was planning such a thing?

None of those things, I think, establish the level of certainty that you need to get to in order to think that you're in a situation like the ticking bomb case.

Third, the ticking bomb case presupposes that the person you have before you is the one who actually has the information to defuse the threat.  And I think there, too, it's very rarely ever the case that an interrogator will know for certain that this person--or know with reasonable enough certainty that this person, if they spill the beans, will actually spill the relevant beans.  For example, in Guantanamo, there was a piece in the International Herald Tribune a couple of weeks ago where one of the original members of the military legal team set up to work on the prosecutions in Guantanamo said, "It became obvious to us as we reviewed the evidence that in many cases we'd simply gotten the slowest guys on the battlefield as opposed to high-value targets."  And so there's a real question about whether in the war on terrorism we're apprehending the right folks, and remember, the folks in Guantanamo were the ones against whom the most coercive techniques had been authorized.

There's also something else we know, I think, at least about how al Qaeda works, which is that it tends to be very decentralized and compartmentalized.  So even if you get someone who's a high-value target, it's quite unclear that they're the sort of person who actually will know the operational details necessary to defuse whatever the equivalent is of the ticking bomb.

Let me just mention one last thing about this hypothetical.  Does torture work?  Well, we don't know if torture works.  There have been no controlled experiments, for obvious reasons, but there's certainly enough anecdotal evidence that indicates that people who were tortured will say anything that it takes to get the interrogation to stop.  So even assuming that you could design the rules, that they could be carried out well, that you knew for certain that the situation was monumental and imminent, that you had the right person, there's still the question about whether the information you would concretely get in any real situation would be worth the moral dilemma.  Even if information acquired through torture is sometimes accurate, that's not good enough because I think that you would really have to demonstrate a kind of extraordinary level of accuracy to justify the moral seriousness of all of this.

So I think that all of these things say that the hypothetical, while compelling and while the thing that gets us to believe that there are some circumstances in which torture would be justified, is very likely to arise in real life, and that if you look at the context in which the U.S. Government is thinking about justifying either coercive interrogation or torture and we don't, I think, need to necessarily get into the terminological differences, the idea is to use torture for high-value targets already moved to another location and isolated over long periods of time.  We're talking about interrogations that go over years.  And these are not things that come anywhere close to the kind of hypothetical that I was outlining here.

I've also been struck by, even in the Office of Legal Counsel memo, what was being justified there was not the use of these highly coercive techniques in these few circumstances.  Instead, the Office of Legal Counsel memo reads just like the Army field manual, and there are people in the room who will know far more about this than I do.  But techniques are divided into permissible and impermissible.  There isn't an attempt to say you can use these techniques only under the following circumstances.  And so the OLC memo justified coercive interrogation methods in general, not just for high-value targets, not just in ticking time bomb cases and so forth.

So all of this leads me to believe that the discussion on torture and the very real circumstances in which we can see these techniques being tempting and being used are not anywhere close enough to the hypothetical to justify their use.

Thank you.

MR. FORTIER:  John Yoo.

MR. YOO:  Let me also join the other panelists in thanking John for putting the panel together, and I agree very much with Sandy that this is a debate that we haven't had in the public discourse, and it's one that's useful to have.

I do wonder, not to defend Jim Lehrer, but I wonder whether the debate, at least in the political level, already happened and it's over in the sense that, well, maybe Jim Lehrer didn't ask questions in the debate, but certainly Senator Kerry had every opportunity to raise this as an issue in the presidential campaign and did not.  I tried to find, actually, an example where he even mentioned this as a problem, and I didn't see--nor did I see really the Democratic Party as a whole do it in any of the political campaigns.

So, you know, you could draw several lessons from that.  One question I just have is whether--you know, we had a big debate over it over the summer on, you know, TV and in newspapers and so on.  And I wonder whether the presidential election was actually a sign that the American people were satisfied with, you know, one, the military investigations in Abu Ghraib but not inquiring further into asking what the CIA was doing exactly.  And maybe that's the settlement we've reached in the political system.  That's just sort of what I took away from the presidential campaign.

Second, I just want to make clear I'm not going to or intend to reveal any information that I came to know when I was at the Justice Department.  So please don't take anything I say as revealing any kind of secret or classified information because I wouldn't want to give the Attorney General an excuse to prosecute me on his way out the door for violating any kind of secrets act.

The last thing is let me--but, you know, one thing you can tell, I think, from at least the timing of when these questions were asked and when the memos were written is I don't think these questions are hypothetical in the sense the other panelists have talked about.  Let's make them more concrete.  So the government captures people like Abu Zubaida, who was at the time the number three person in al Qaeda, who was second only to Osama bin Laden and Dr. Zawahiri, and allegedly did have intimate operational details of almost every covert plan that al Qaeda was up to at that time.

The government captures Ramzi bin al-Shibh, the planner of the September 11th attacks, who also proved responsible for attacks going on after September 11th in Europe and the Middle East.  And it captures Khalid Sheikh Mohammed, who becomes the number three person and the operational planner for al Qaeda after Abu Zubaida is captured.

So I think the actual dilemma or the questions are far more concrete than sort of the hypotheticals that were raised, and I think it's not just one bomb that people might be looking for.  For example, if you get a successful interrogation of these figures, you could learn the details of multiple plots.  And it may be the case that that information was used successfully stop us.  We would never know.  Right?  I mean, the whole point of it, if our security services are doing their jobs, would be that we really wouldn't know until much, much later, hopefully after this war is over, whether those interrogations were successful and led to the interdiction of some of these plots.

So let me just make three comments--one about the law, one about policy, and then one about the constitutional issues.  In this case, I only lay claim to being a lawyer, and I'm not going to try to discuss philosophical issues or political science issues, so forgive me for playing true to my role.  Everyone else seems to be afraid of debating with lawyers on this panel, but I'm happy to say I'm a lawyer, and that's all I'm going to try to do.

First is the United States did sign a torture convention, and it does place a bar on torture.  There are several things to observe about the torture convention.  One is it does not contain a clear definition of what torture is.  Right?  I mean, I think everyone should agree on that.  And so the question is:  What do we have to do to comply with the torture convention?  The lawyers have to ask, you know, what is torture?

And I thought one of the odd responses to the summer's disclosures was that some people were extremely upset that there were even memos like this at all, that the government even asked the question, What is torture?  I actually kind of agree with Sandy, if this is the point he was trying to make, is that I would think it's--or Jean.  I think it would be irresponsible if our government had never asked in the first place and had sort of operated in this kind of ambiguous, quasi-legal, quasi-political world without ever trying to find out what the laws that Congress has passed or that the Senate and President agreed to even meant.

The second thing I'd point out is that the Congress implemented the torture convention by federal statute.  It passed something called the torture statute, which is much more detailed than the treat itself.  Right?  And the torture statute defines torture as something that's specifically intended to inflict severe physical pain or suffering.  And then it goes on to say mental pain or suffering is also prohibited, is prolonged mental harm caused by--and then there are various subsets, including mind-altering drugs, threats of harm to third parties, and techniques designed to disrupt the senses or the personality.

So the same thing I'd say, at least in terms--as we're doing our job as lawyers, is those are the definitions that Congress passed.  So when we get into this question of is torture something that's prolonged mental harm or not prolonged, that's not a decision that was made by the executive branch.  That was an effort to interpret a standard that Congress enacted by statute.  And even congressional definition, what does severe physical pain mean?  Congress didn't actually define that term at all.  And so if you look at the OLC memo, what it does is it tries to go through various court decisions for guidance because there have been some interpretations of the statute by federal courts, and they've been pretty severe.  Nothing seems to amount to a slap in the face or a push or a shove or stress positions, for example.  No court has held that those are torture or amount to severe physical pain.

The third observation I'd make about the torture convention is that the other class--and I think this is really what we're talking about when we talk about American interrogation policy in the past or the future, and what we really need to have a debate about is the class of what's been referred to as cruel and inhuman and degrading treatment, which is supposed to be treatment that's sub-torture.  It's stuff--it's treatment that does not rise to the level of torture.  And the point I'd make there is that the United States did not implement that requirement by statute, so the United States Congress made it a criminal offense to commit torture with those definitions.  It did not make it a criminal offense nor did it implement in any way by statute that part of the torture convention relating to degrading and inhuman treatment.

And, in fact, the reason Congress did that and the Senate did that and the President did that was because they said that phrase is so ambiguous that we're unsure what that exactly means.  And the United States pointed to decisions in Europe where European courts have founds things to be degrading or inhuman which they believe the United States would never agree to.  So, for example, there's a decision that's discussed in the memo where I believe it was in Germany, prison authorities had refused to grant a transsexual operation to a prisoner, and the European Court of Human Rights had held that to be cruel and inhuman treatment.  Right?  And in the Senate, and President Reagan and the Senate that negotiates the treaties said the United States is never going to agree to that as being a legally binding obligation of the United States Government in signing this treaty.  So, you know, the Reagan administration was foresighted in many ways.

The third thing I'd say is the Geneva Convention also provides standards for the treatment of prisoners of war, and those standards prohibit torture.  They also prohibit cruel and inhuman treatment.  Also, in terms of interrogation, in many ways I think have perhaps stricter requirements than perhaps our Bill of Rights does.  They do not--they require a prisoner of war to only provide name, rank, and serial number.  Not only that, but they prohibit the government or the detaining power from treating people who refuse to answer questions any differently than people who cooperate.  So under the Geneva Convention, you are forbidden from--I would assume, from doing some of the things we hear about in Guantanamo Bay, by putting people who cooperate into better prison conditions or better food or putting them into open barracks or open playing fields or having recreational time.  There's no--under the Geneva Convention, it is prohibited to use incentives, positive incentives as well as negative incentives, to try to get detainees to cooperate with you.

So let me just turn to questions of--and let me add, the President found that members of al Qaeda are not covered by the Geneva Convention.  And I think one thing we're talking about now and have to think about for the future is what set of rules are we going to apply to people not covered by the Geneva Conventions but also not covered by the Bill of Rights, because I didn't hear anybody here say--I might be mistaken, but I didn't hear anyone say that Khalid Sheikh Mohammed or Abu Zubaida ought to be given Miranda warnings and the right to an attorney and ought to be, you know, arraigned in federal district court within a certain amount of time after arrest.

There are some people in--some groups that have said that, but I haven't heard anyone here say that.  That's a possible choice--that's a possible set of rules that we could have used.  That's the set of rules we used before September 11th towards all terrorists.  But maybe what we need to have a debate about is, you know, we're not going to use the Bill of Rights criminal justice system, we're not going to use the traditional Geneva rules because they don't apply to non-state actors.  So what is the set of rules we're going to apply?

So let me turn to the question of policy.  What is it exactly that interrogators want to do?  From the media reports and from the statements of government policy, I don't think that people are talking about the extreme forms of physical torture that Jean listed, that are listed in some of our own federal court decisions about torture.  I think what people are talking about is this class of degrading and inhuman treatment.  Right?  The primary ones seem to be sleep deprivation, letting someone only sleep six hours a night; stress positions, making someone stand in a room for long periods of time; long periods of isolation, you know, being isolated from other prisoners for long periods of time, like 30 days or 60 days; physical labor; and then there's a system of rewards and incentives I mentioned at Guantanamo Bay.

Before the discussion, I'd just throw a question to the panelists and see if they want to answer it during the discussion period.  Do people on the panel think any of those things are torture?  Because I think those are the things that the CIA or the military want to do.  Not cruel and inhuman and degrading treatment, but are those things torture?

The other thing I'd point out, you know, this is something that other countries have tried.  Kim is quite right, this is something that's been done in other constitutional democracies, namely, Israel and Great Britain in dealing with their own terrorist threats.  Their own courts did not find that these kind of techniques were torture except when they were applied in continual, extreme ways.  And certainly, obviously, any of these things, if taken to the extreme, could constitute torture, but the ways that they've been discussed in the memos or in public discussion, are those torture?

I don't think they are.  I think they do fall into the class of degrading treatment.  The question is whether--do we want to in the war on terrorism--and I think the next thing to talk about is why is this war on terrorism different.  In this war on terrorism, this new kind of conflict against a new kind of enemy, do we want to--unfortunately, I think in the initial stages of that conflict still, do we want to take that whole list of options off the table as things that government is precluded from doing.

So the second question is:  Why is this conflict different and might justify use of these kind of techniques?  First, I think there is something different about this kind of conflict versus other kinds of conflict.  I think in the Geneva Convention type of conflict, nation state to nation state, conflict between regular armed forces, first of all, you're often fighting with conscripts who are not--who have been drafted, who are not really interested in fighting, who often don't have that much valuable information when they're captured in the field.  Right?  Often, nowadays our military gets a lot of information through what would, you know, be technical means, through surveillance, through intercepts, and doesn't rely so much on the interrogation of prisoners.

But the same thing is the idea of the Geneva Conventions is that once someone is removed from the conflict, they are to be still regarded as honorable soldiers and are to retain their rank, their uniforms, their military organization.  They live in barracks.  They cook their own food.  The only thing they're doing is they're sitting on the sidelines because they're just out of the fighting and they're not to be returned to the fighting.

I think the war on terrorism is quite different.  First of all, we're not fighting a nation state.  We're not fighting a nation state certainly that signed the Geneva Conventions.  We're fighting a non-nation state that does not appear to want to follow any laws of war.

The second thing is the need for information I think is tremendously higher with regard to this conflict than other conflicts because the enemy does not fight in regular units, does not wear uniforms, does not attack using conventional weapons that you would traditionally be able to detect through surveillance.  I think the primary--unfortunately, perhaps the only way that a September 11th style attack can be prevented before it occurs is through interrogation.  I think the kind of operatives   (?)   are just very different in terms of their knowledge than the traditional kind of conscript detainee in a normal Geneva Convention fight.

So, for example, it's almost as if we were still fighting World War II and we captured the number three guy in the German military in 1942.  I think that's the kind of level of information that some of these detainees have and the kind of point in the conflict where we are.

The last thing I'd point out is temporal imminence I think also has--and Sandy, unfortunately--I gave a paper at Texas two weeks ago, and he listened to me drone on about this for 45 minutes.  But temporal imminence is different.  Right?  The self-defense rules were written--the self-defense rules we have today were written in the mid-19th century by Daniel Webster, and they were written for a time when military conflict was not swift and quick and as highly destructive as it is today.  But even under those rules applied to nation states, it seems to me temporal imminence, the standard that people are using to use force and self-defense is different when the enemy conceals itself.  Right?  It does not wear uniforms, hides in civilian populations, and launches surprise attacks against civilian targets.  Does the quality of temporal imminence really have the concrete nature it used to have?  And shouldn't we think of things like windows of opportunity instead when we have a window to act against terrorists even though the attack that they may be planning is not right about to happen.

So I think under those--those are the considerations I think that we ought to think about, ought to be debating when we're coming to the kind of standards we're going to apply to interrogation in the future.

Let me just--to end--I think it have one minute.  Just to end, just to make the constitutional points, you know, because I think a lot of the debate over the summer occurred about one small passage in the memos, which was:  What would happen if the President did feel it necessary to violate the torture statute because as commander-in-chief in extreme circumstances he thought it necessary to actually violate the statute?  Right?  You know, no great supporter of President Bush, you know, Senator Schumer I think said in a hearing that he didn't think any American would doubt that the President ought to use torture in that kind of circumstance if there were a bomb and we had a high-level al Qaeda leader, that the President ought to violate the statute.

And I think, contrary to what was said over the summer, I think this is an important and an unsettled constitutional issue whether the Congress can violate congressional statutes in order to perform what he thinks is necessary as commander-in-chief in the middle of war.  You know, I tend to think that the President can do so and that he can be subject to impeachment for violating the statutes.  Other people think not.  The only thing I'd point to as the most nearly related debate is about the War Powers Resolution.  Right?  That's a statute that Congress passed to prevent the President from using force for longer than 60 days.  President Clinton was the first President that I know of who actually violated its terms.  I didn't hear a lot of constitutional law scholars complaining that President Clinton, you know, could not violate the War Powers Resolution in order to wage war in Kosovo.

I think lots of--almost every President--I think every President has actually denied the constitutionality of the War Powers Resolution and denied the ability of Congress to use statutes to prohibit--to restrain the use of the President's commander-in-chief in power once triggered.  My answer--and this is certainly from my academic--is that we have a political system where Congress has its funding powers, has a lot of different powers it can use to change executive branch war-making policy.  And I think--and this will end where I started.  And I think we haven't seen that.  Congress has not passed a statute prohibiting the use of these kind of interrogation techniques.  Instead it has allowed the military justice system to go forward and to convict people for the wrongs in Abu Ghraib.  But there's been no effort, as far as I'm aware, by Congress to actually pass a statute even starting to try to cut off funding or restrict the CIA from using these kind of interrogation techniques.  Some people have proposed it, but Congress has not passed it.

So, you know, I'll leave it there.  After the election, you know, we may say we want rules and we think Congress might be the leading institution, but Congress doesn't want to do it, as far as I can tell.  And if that's the case, then I think the policy we have now is the one that will continue in the future.

MR. FORTIER:  We're going to have a little discussion here among the panel.  Let me say a few things to provoke some discussion.  Let me first pass through John's question.  John had asked what about some of these other methods of interrogation, sleep deprivation, things that fall perhaps short.  Do they constitute torture?  And anybody can jump in on that.  But I also hope that maybe John and Sandy could have a little discussion about Sandy's characterization of OLC memos as perhaps raising up the level of what would constitute torture in order to sort of get around absolute prohibitions, whether that was some of the intent behind these memos to the extent we can talk about that.

MR. LEVINSON:  With regard to sleep deprivation, I confess that I am inclined to view extended sleep deprivation as torture.  One of the quotes in my own piece in the book is from Menachem Begin, who was, in fact, tortured when he was still a young man in the old Soviet Union.  The spirit of the sleep-deprived prisoner--and now I quote--"is weary to death, his legs are unsteady, and he has one sole desire to sleep, to sleep just a little, not to get up, to lie, to rest, to forget.  Anyone who has experienced this desire knows that not even hunger or thirst are comparable with it."

And so reading that and imagining myself being in a situation of extended sleep deprivation, not simply one or two nights but for 30 or 60 days, or whatever it would be--you know, we don't need to quibble about exactly how long--yes, I mean, I'm willing to rise to the bait, as it were.  But then that does raise the other question which is clearly hovering our entire discussion:  Does that mean that it simply absolutely should never be done?  Does it constitute a lesser level of torture than the infliction of excruciating pain?  But I'm more comfortable, frankly, saying, yes, this is torture.  But are there circumstances under which we should allow it?  And then we get into some of the discussions that Kim especially raises as to how would one construct an administrative procedure that we might have any confidence in, then to do it--then to dismiss the issue definitionally.

I don't know if John would agree with my motivational analysis, but it does seem to me that we're in substantial agreement that kind of the objective point of the OLC memo is to differentiate between torture and merely--and I do find offensive the use of the word "merely" from the OLC memo--merely inhuman and degrading sorts of actions.  And it does seem to me--I mean, as a lawyer whose living is spent on teaching the young how to make effective use of weasel words, like "imminent," "severe," "prolonged," and the like--I mean, I've taught Professional Responsibility, and those of you who are lawyers know that there's been a debate for years about whether and when lawyers have a duty to disclose the imminent criminal misconduct of their clients, and what the rules of professional responsibility have come down to is, yes, some states like Texas say you have to disclose; other states say you have a permission to disclose.  But they always use the magic word "imminent."

So the standard hypothetical is your client comes in and says, "I am so angry at"--usually--"my ex-spouse," or it could be "my boss"--"that I'm going to go and use this gun to kill him."  And kind of everybody agrees that you can disclose that.  And what if it's a toxic waste dump where nobody's going to die imminently.  It's simply that over the next X years, far more people will get sick and die than might otherwise be the case.  Well, "imminent" is just a wonderful way by which lawyers can say, well, that's not the madman with a gun case, this is something else and I have a duty to be loyal to the client.

Incidentally, I do want to say with regard to John's talk, although I am very critical of the OLC, I think John is absolutely correct in saying that one also ought to be very critical of the United States Congress and, from my perspective, the Reagan administration or the Clinton administration, that it's too easy to put all of the onus on John and his colleagues because that's false to the organizational and legal situation.  He did have a statute to interpret, and whether we agree entirely on the interpretation that OLC gave, it's certainly clear that the weasel words are there.  And any lawyer would have to confront them.

MR. FORTIER:  Jean, and them Kim.

MS. ELSHTAIN:  I'll take the bait also on John's question.  The gravamen of my piece and I believe that a chunk of the argument is that, as I indicated, we do make a muddle of the category torture and the horror that it tends to evoke, the moral horror, if we put everything from, you know, bodily amputations to a shouted insult in the same category, that one simply has to find a way to make certain crucial distinctions that are not just legal distinctions but are also moral distinctions and how we evaluate the gravity of some of these different sorts of activities.

So I would not put sleep deprivation--unless, you know, one could start to discriminate if it goes on for months or something.  But then is it torture, or does it belong under this other category of cruel and degrading treatment?  And then what sorts of moral issues and legal issues come into play if it's in that category rather than in the category of the prohibited or as prohibited as something can be prohibited, which would be the extreme forms of physical harm and inflicting of pain that we know all too much about from history.

So I would, in fact, not put the kinds of coercive interrogation techniques that we've been talking about into the torture category, which doesn't mean that they're then morally or legally home free, but it does mean that one has to then think about--and I think Kim is very helpful here--what happens when certain coercive interrogation techniques, if they become too readily normalized, then perhaps the kind of moral queasiness that should be attendant upon--even some of those sorts of techniques perhaps gets lost as it gets increasingly bureaucratized.

Now, fortunately for me, I'm not the person that has to sort all of that out in an institutional context, but I do think--and my talk was as much a criticism of the state of moral philosophy as it was anything else--that moral philosophers have made it far too easy on themselves to stand in some sort of lofty realm above it all and come up with rather easy condemnations of everything under the vast rubric of torture, as I said, putting together things that I don't think belong in the same category.  And that is just not terribly helpful, I think.

So when you start to grapple with some of the hard cases, and the grappling that I talk about is the sort of moral grappling, then you realize that the kind of moral laziness I characterize, where you just did a remove and issue in the sort of dicta from above it all that that's just not terribly helpful.  It doesn't help us as citizens to think about these issues in a discriminating way.

MS. SCHEPPELE:  Yes, I just want to say one thing on sleep deprivation.  One of the things we know about it is that one of its consequences is that people hallucinate.  And so if the goal of this method is to try to get accurate information, it strikes me as being just a very bad idea.

But I want to address something in John's legal argument because--and first to say I do think that the Office of Legal Counsel should have written a memo about what torture means.  My objection isn't to writing the memo.  My objection is to what the memo says, and not just, I think, because I disagree with it, because I think it's actually bad lawyering, and let me explain why.

It's true, as John says, that only this part of the torture convention that's about torture and not cruel, inhuman, and degrading treatment was made a federal criminal offense.  And from this the Office of Legal Counsel concludes that anything that falls short of torture, like sleep deprivation, like stress positions and so forth, is, therefore, nothing legally.

Now, I think that's just wrong.  I think that's wrong as a matter not just of international law where it's clearly wrong, but it's also wrong as a matter of American domestic law, because the other little bit of international law that Congress saw fit to make a federal criminal offense was--it is a federal criminal offense to commit a grave breach of the Geneva Conventions.  And as John said, one of the things the Geneva Convention does is it says you can't do cruel, inhuman, and degrading punishments.  In fact, if anything, the Geneva Convention is somewhat clearer about what that means than the Torture Convention is.  And so it is a federal criminal offense to do these things, and I think that's why the Office of Legal Counsel had to try so hard to say that the Geneva Conventions don't apply to al Qaeda.  Right?  That's the legal reason why that--because if the Geneva Conventions don't apply, then there's no grave breach in treating with cruel, inhuman, and degrading interrogation methods any of these high-level al Qaeda folks.  So it's a double punch here.  The Geneva Convention memo and the torture memo work together to create the space in which there is no law.  And I think that, first of all, that empty space is an illusion.  I think it's actually bad lawyering and it's something that everybody who works in international law who's not at great pains to say it doesn't apply thinks that there isn't an empty space of legal regulation of this cruel, inhuman, and degrading punishment category.

And so my objection to the Office of Legal Counsel memos is that they try to neutralize these two ways in which international law did get put by Congress into federal criminal law.  And you have to do it in those two ways to create the empty space in which these interrogations can happen.

MR. YOO:  Let me respond to that briefly.

First of all, you'd have to agree under American law that portions of treaties are not self-executing.  Right?  And so there are portions of treaties which are not binding federal law within the United States.  Right?  That's a doctrine we've had since Chief Justice Marshall.  And so the question is:  Are there portions of the Torture Convention which are not binding federal law in the way that Congress implemented the torture statute?  Congress did not implement the cruel, inhuman, and degrading--and that's true, too.  That's a fact, too.

So what you're arguing is that the Torture Convention, the parts that Congress decided not to implement because it thought they were too vague and ambiguous still have some domestic binding legal effect within the United States.

Now, I think it is fair to say that that is an open question.  You may have your view and other people may have their--it's by no means settled and universally agreed that that has to be the case, that that treaty actually is binding federal law.  My view is that it's not because Congress could have implemented it and it did not.

The question about the Geneva Convention, you know, one thing I'd point out is the timing of the Geneva Convention decision is well before this.  It's well before any of these people are captured.  I don't think it was taken with regard to interrogation.  I think the government had to make a decision in the war on terrorism very early on as to what the conflict was and what the status of the people who were being captured were, the status of people who are being fought are, irregardless of interrogation needs or not.

I'll just give you one practical reason why.  What do you do with the people who are captured?  What is their status?  Because regardless of interrogation, how do you house them?  The Geneva Convention prohibits putting people in individual cells.  They have to be put in open barracks, where, you know, I would think al Qaeda members would kill any collaborators who happened to live in the same barracks, right?  Not to mention the prison guards if they could get their hands on them.

So the government had to make a very early decision about the Geneva Convention status, just in trying to figure out how to detain the individuals without regard to interrogation.

Also,  (?)   question as to whether they were criminal defendants at all, right?  Because the government could--you know, some international human rights lawyers say basically you're either a Geneva Convention prisoner of war or you are a criminal defendant and get all the protections of the Bill of Rights.

Let me add a last thing, and I think this is more of a lawyer's concern, and I share it often, too.  Why is it impossible to imagine that there is an area of conduct that is not governed by the legal system.  Right?  I mean, why is it impossible for us to conceive of that?  And what I'd point to are--this is something that has existed historically, this category.  What were pirates?  What were slave traders?  What were bandits and, you know, basically private mercenaries?  This is a topic the United States has dealt with in its history, during the Civil War, during the war of the Barbary Pirates, and traditionally, historically, under the laws of war, these types of groups were considered outside the protections of the laws of war generally because they didn't follow the laws of war themselves.

So the real question is:  Do we think of the Geneva Convention and Torture Convention as replacing that traditional category of people who by their conduct were so bad, that would not obey any civilized standards themselves, that they were not to be given the protections of the laws of war?

MS. ELSHTAIN:  Just very quickly on this, very short and quick, and that is that I think John has touched on something important, and that is that even as there can be considerable moral ambiguity on a whole range of tough questions, it seems to me that there can be some legal ambiguity as well.

We don't like legal ambiguity.  We're a very legalistic people.  So we want to rush in and to have a law to cover every possible circumstance.  And I think what we've come to understand is that that is impossible and may not be desirable because it eliminates the space for political judgment, so it strikes--or it seeks to do that, it seems to me, in many circumstances.

So without taking a stand on any specific part of this very interesting discussion between John and Kim and Sandy, it strikes me that perhaps the burden, John, of your argument, as well as of mine, suggests that there may just be some areas here that we don't know how to cover exhaustively, either in a legal sense or in a moral philosophy sense, and that perhaps we've lost so much confidence in politics and the way politics functions, confidence in our leaders, both congressional and executive, that we are loath to leave any free play for them to make the kinds of decisions that need to be made, especially in times of crisis.

But I'm tossing that out as a possible suggestion of the dynamic that may be in play here.

MR. FORTIER:  Now we'll turn to some questions--

MR. LEVINSON:  Let me make three very quick points.  With regard to the self-executing nature, that's not something I know much about, but I see Marty Letterman in the audience, and I think he knows much more about that argument than I do, and I hope he participates.  But there is the Due Process Clause and the Cruel and Unusual Punishment Clause of the Eighth Amendment, and so I don't think it requires much difficulty to say, even in the absence of the statute, there would be at the very least a constitutional tort.

Now, as you point out in some of your writings, the Eighth Amendment has been interpreted as covering only punishment.  And what we're really talking about is interrogation for purposes of gaining information.  And so you do get into a genuine lawyer's question as to whether that means that you can do just whatever you want, so long as you describe what you're doing as other than punishment, or whether the Eighth Amendment would apply even in what a lawyer might define in a technical sense as a non-punishment situation.  So I think to that extent, it kind of doesn't matter that Congress  (?)   statute.

With regard to the Army field manual and the like, one of the things that I found most fascinating with regard to the Jones-Fay report, which gave me tremendous confidence in the United States Army--it's a terrific report, whatever side you happen to be on with regard to specific issues--is that it was a terrible idea to locate the prison in the field of action.  The field manual says that you have prisons in the rear lines.  Now, there's an obvious problem with regard to Iraq.  Where are the rear lines?  But I presume Kurdistan would be that.  And one of the things that comes through this over and over again is what I at least discern as anger on the part of these two senior military officials at the violation of the army's own notions, so that you have the difficulties of protecting the prisoners, you have the difficulties in protecting the army personnel themselves.  Putting aside the symbolism of choosing Abu Ghraib, it was also a terrible idea for other reasons.

The very last point, and this continues the conversation that John and I began in Austin a couple of weeks ago.  The discussion of emergency power I think is a very, very important discussion.  I have been recently reading a great deal of the work of Karl Schmidt, who was by far the most interesting and able of the German legal theorists during the 1920s.  He also ended up as the chief legal apologist for the Nazi takeover, and for very, very good reasons that discredited him as the abominable person that he was.  But what he wrote about emergency powers and whether one can always have the rule of law during time of emergency is very much worth reading and wrestling with.  As I've told a number of my academic colleagues, I think Schmidt might turn out to be the most influential legal theorist of the 20th century, more, say, than Ronald Dworkin or some other contenders.

And there's also a very fine book written by Clinton Rossiter just after World War II called "Constitutional Dictatorship" that raises some of these same issues, and I think John and I still would have some significant differences of opinion, but the issue of presidential power can't be decided by reference to kind of shibboleths that the President always has to be faithful to the law.  Abraham Lincoln certainly wasn't, and he gets the memorial that's about a mile from here.  And one really does have to wrestle with these questions, and I think both of us agree--I think all of us agree that these have simply not been discussed in a serious way by political leadership beginning with the candidate I supported, who, not surprisingly, was Senator Kerry.

MR. FORTIER:  Okay.  We're going to turn to questions from the audience.  One other issue I'm not going to ask about but I think has been lingering here in the panel is about the regularization of policy in regard to this, whether there should be warrants or whether this has to be something of a more broad-based set of administrative guidelines given the widespread nature of it.  I'm not asking that question, but you can address it maybe in the context of another question.

I'm going to go right here.

MS. PRIEST:  I'm Dana Priest with the Washington Post, and I didn't want to ask a theoretical question but a very practical one.

Unlike the information that we have from the Fay report and all the other military reports, we know not only what the legal discussion was, but we know now what all the interrogation techniques were at one point and how they changed and why they changed.  But we don't have that other second part of the puzzle for the CIA.  We know the August OLC memo was written for them, but we don't have the techniques that they have laid out for their field officers.  And unlike what John Yoo says, that it probably doesn't include the extremes, we know at least that you left out in your list -- [blank spot] -- which is feigning drowning.

So my question to you is:  How important in trying to come to grips with the new war on terrorism is it important to actually get those techniques and to discuss them publicly, in Congress or wherever, given the fact that what the agency would say is then you're giving the enemy [inaudible]?  What is your opinion on that?

MR. YOO:  First of all, this is not something that--this is not a conflict between sort of open government principles and the need to fight a covert-style war.  It's not unique to interrogation, and there is a political system that's designed to handle that through the intelligence reform after Iran-contra affair.  Under that system, the executive branch has to notify -- [tape ends].

-- within that definition.  So, I mean, I think our political system already has decided on a process for making these kind of decisions and notifying other branches of it.

Now, the finding process is still governed by--you know, is still classified, and so Congress made the choice that the intelligence agencies could go to Congress and explain these kind of activities, but that still Congress would be bound by restrictions on classified information, too.  And that's the--I mean, you could say we should have chosen something different.  Maybe we should have more open disclosure of exact tactics that the CIA is using generally.  I mean, it's not just interrogation.  Just to give another example, use of force, you know, targeted--sometimes called assassination or targeted killing.  I think your paper has reported, I think extensively, that the executive branch has a list of al Qaeda people that the CIA is authorized to kill on sight.  That's not something that's--you know, we don't have a public discussion on who should be on the list and who shouldn't be on the list or whether the list should exist.  But I'm sure that was disclosed--you've reported, I think, that that was disclosed to Congress, too.  I would not doubt that's where you got the information from them in the first place.

But that's the choice our system made, right?  I mean, we could have a different system, but I think that still allows for inter-branch and checks and balances on these kind of activities by the CIA, at the same time balancing it with the desire, I think a very valid desire, not to reveal in the middle of an ongoing conflict information that could be of use to the other side.

Let me just add one final point.  I think in this kind of conflict, that kind of information is especially harmful for disclosure because obviously if you capture someone like Abu Zubaida, it would seem to me that al Qaeda, being the very capable, smart bunch of people that they are, would immediately roll up all the projects that he knew about, especially if they know what kind of interrogation techniques we're using.  Suppose they would say, look, you know, these folks have a manual on how to defeat interrogation, and they have a lot of familiarity with our government and the way it works.

Suppose they see things on that list that they did not prepare for for resistance?  Right?  They might assume, well, the minute this guy is captured, they're going to find out about all the plans he knows about, and they'll stop--and that will prevent our ability to capture and prevent--you know, capture more al Qaeda operatives and prevent more attacks.

MS. ELSHTAIN:  Very quickly, Dana, it seems to me that the burden of my argument would be that, in fact, it is important for us as citizens to have some clear notion of what techniques are being brought to bear, not in any specific case but in general, and how these are being understood, what is, if you will, being permitted and in what kinds of circumstances, in order that we can make the determination as to whether indeed it belongs in the category of torture or if it belongs in some other category, and if it's in some other category, the circumstances under which it might be permitted.

As I said at the beginning, I'm not a lawyer, and I don't have to sort this all out legally.  But it seems to sort it all out conceptually.  That's the kind of information that one would require.

MR. LEVINSON:  You know, I think greater transparency is very important on this.  Immediately after Abu Ghraib, the President said this is not the real America.  These were, you know, basically rotten apples.  But going back to your magnificent article on December 26, 2002, we know that these things were occurring--you know, not necessarily the Abu Ghraib sorts of things, but highly coercive methods of interrogation.  So when the President says this isn't what we do, when Ari Fleischer said this isn't what we do, the unkind way of describing that is as a lie.  And I think that's one of the things that corrodes confidence.  As Jean mentioned, there is a real debate to be had.

Phil Heymann, who is the co-chair of a project at Harvard, who has been looking into what our policies should be, says that it's very important--not that, obviously, we're transparent about who we've captured.  Nobody thinks that is required.  But that precisely because we are talking about the United States violating central notions of morality and of law, perhaps justifiably, but violating what have come to be thought as central notions--after all, one of the central justifications of the war in Iraq is to defeat the torturer; that if in our name people are going to do these sorts of things, then the President should take responsibility for it.  Somebody should take responsibility for it.  And it may be that we, the people, will end up ratifying this.

I have less confidence than John does in the Senate as an alert watchdog on this, partly because I think one of the most dismaying things that has happened over the last year is that torture has become a partisan political issue.  There is--and I think it is just dreadful--a Republican Party position of circling the wagons and defending the administration, and the Democrats on occasion will show some backbone, but, frankly, not enough.  You're absolutely right that Senator Kerry never addressed this issue.  But it would seem to me that if anything should be a nonpartisan issue, it would be a discussion of what sorts of practices should be committed in the name of the United States.  And, obviously, people can disagree about what those practices are.  But the whole world knows about them.

So it's not that we've kept them a secret.  It's that we really don't want to address them in a serious way.

MS. SCHEPPELE:  Just very quickly, I just want to say that I agree with this point that I think we need to have the public discussion about techniques, but for a slightly different reason than the other panelists have said, and that is that one of the other important audiences for American policy is our allies and countries elsewhere.  And one of the things I'm very worried about, because I work in these parts of the world, is when the U.S. appears to be justifying policy that include targeted assassinations and torture and so forth, other countries then feel free to use this justification as well.

And so I think it's actually quite important to have the discussion and to have the public limits, because I think it's very hard for us then to criticize what other countries do when they seem to be doing the same thing that we are.

MR.           :  This question is for Jean Elshtain.  Your very provocative statement, Torture 2, is very intriguing and I think it's a subdivision of the just war theory.  But to bring this erudite and totally enlightening discussion a little bit down to earth, I'd like to refer to a visit of my son to Afghanistan.  He's an officer in the Navy, and he went over--this was before things happened in Iraq.  He went over to look into interrogation techniques for captured terrorists.  And he quickly came to a very simply decision that Torture 2 that was acceptable to him was sleep deprivation.  And I want to say that he was brought up in a family whose father was steeped in the just war doctrine and had a degree, a Ph.D. in theology and ethics from Yale University.

So could you elaborate a little bit more on your Torture 2?

MS. ELSHTAIN:  Well, Mr. LeFevre (ph), you correctly discerned the just or justified war tradition and the form of moral reasoning that's constitutive of it sort of lurking in my discussion.  The Torture 1, Torture 2--Torture 1, you'll recall, was the absolutely forbidden, and the Torture 2, which I said should not be called torture, are forms of coercive interrogation.  There are still conditions that are placed on its potentially justifiable use.  But even in circumstances in which one may, let's imagine, justifiably deploy some of these techniques, you never claim that you are thereby engaged in a moral good; that is, there are always moral regret attached to these circumstances and the taking of responsibility for them.  And I think that form--without going into the details of the form of moral reasoning involved, it is a form of moral reasoning--and I was rushing at the end of my presentation--that argues you do have normative rules and restraints, but that on occasions--and you have to specify those occasions and give reasons--they may be overridden without being annulled, that is, the norm where the rule still pertains.  And that's the worry that I had, as I indicated, about Dershowitz's Torture 1 idea because it makes normative that which I argue should always minimally be a matter of an exception and a form of moral regret.

So I probably haven't time to go into more detail than that, but it is that characteristic form of moral reasoning that seeks to keep touch with what's happening, you know, on the ground, so to speak and in the real world, so that you're not just hovering, as I indicated, above it, making