SINCE the release of Khalid Shaikh Mohammed's dramatic confessions, moral outrage at the extent of his crimes has been mixed with doubts. Can his claims be trusted? What if he confessed to more than he really did, either because of a vain desire to be remembered as the big terrorist mastermind, or because he was ready to confess anything in order to stop the water boarding and other "enhanced interrogation techniques"?
While the scope of Mr. Mohammed's crimes is clear and horrifying, it is worth noting that the United States seems incapable of treating him even as it would the hardest criminal - in the civilized Western world, even the most depraved child murderer gets judged and punished. But any legal trial and punishment of Mr. Mohammed is now impossible - no court that operates within the frames of Western legal systems can deal with illegal detentions, confessions obtained by torture and the like. (And this conforms, perversely, to Mr. Mohammed's desire to be treated as an enemy rather than a criminal.)
It is as if not only the terrorists themselves, but also the fight against them, now has to proceed in a gray zone of legality. We thus have de facto "legal" and "illegal" criminals: those who are to be treated with legal procedures (using lawyers and the like), and those who are outside legality, subject to military tribunals or seemingly endless incarceration.
Mr. Mohammed has become what the Italian political philosopher Giorgio Agamben calls homo sacer: a creature legally dead while biologically still alive. And he's not the only one living in an in-between world. The American authorities who deal with detainees have become a sort of counterpart to homo sacer: acting as a legal power, they operate in an empty space that is sustained by the law and yet not regulated by the rule of law.
Some don't find this troubling. The realistic counterargument goes: The war on terrorism is dirty, one is put in situations where the lives of thousands may depend on information we can get from our prisoners, and one must take extreme steps. As Alan Dershowitz of Harvard Law School puts it: "I'm not in favor of torture, but if you're going to have it, it should damn well have court approval." Well, if this is "honesty," I think I'll stick with hypocrisy.
Yes, most of us can imagine a singular situation in which we might resort to torture - to save a loved one from immediate, unspeakable harm perhaps. I can. In such a case, however, it is crucial that I do not elevate this desperate choice into a universal principle. In the unavoidable brutal urgency of the moment, I should simply do it. But it cannot become an acceptable standard; I must retain the proper sense of the horror of what I did. And when torture becomes just another in the list of counterterrorism techniques, all sense of horror is lost.
When, in the fifth season of the TV show 24, it became clear that the mastermind behind the terrorist plot was none other than the president himself, many of us were eagerly waiting to see whether Jack Bauer would apply to the "leader of the free world" his standard technique in dealing with terrorists who do not want to divulge a secret that may save thousands. Will he torture the president?
Reality has now surpassed TV. What "24" still had the decency to present as Jack Bauer's disturbing and desperate choice is now rendered business as usual.
In a way, those who refuse to advocate torture outright but still accept it as a legitimate topic of debate are more dangerous than those who explicitly endorse it. Morality is never just a matter of individual conscience. It thrives only if it is sustained by what Hegel called "objective spirit," the set of unwritten rules that form the background of every individual's activity, telling us what is acceptable and what is unacceptable.
For example, a clear sign of progress in Western society is that one does not need to argue against rape: it is "dogmatically" clear to everyone that rape is wrong. If someone were to advocate the legitimacy of rape, he would appear so ridiculous as to disqualify himself from any further consideration. And the same should hold for torture.
Are we aware what lies at the end of the road opened up by the normalization of torture? A significant detail of Mr. Mohammed's confession gives a hint. It was reported that the interrogators submitted to waterboarding and were able to endure it for less than 15 seconds on average before being ready to confess anything and everything. Mr. Mohammed, however, gained their grudging admiration by enduring it for two and a half minutes.
Are we aware that the last time such things were part of public discourse was back in the late Middle Ages, when torture was still a public spectacle, an honorable way to test a captured enemy who might gain the admiration of the crowd if he bore the pain with dignity? Do we really want to return to this kind of primitive warrior ethics?
This is why, in the end, the greatest victims of torture-as-usual are the rest of us, the informed public. A precious part of our collective identity has been irretrievably lost. We are in the middle of a process of moral corruption: those in power are literally trying to break a part of our ethical backbone, to dampen and undo what is arguably our civilization's greatest achievement, the growth of our spontaneous moral sensitivity.
This article was published in The New York Times OP-ED Saturday, March 24, 2007.