So on to the issue of torture.
I’ve wrestled and wrestled with the issue; torture is obviously bad, but what is it about torture that is so expressly bad – why is it worse than the death and suffering that comes in war, or in the daily violence police officers do as a part of their jobs?
In large part, it’s the fact of violence against captives; against the helpless, the unarmed, those incapable of resisting. But that didn’t get to the heart of what cleaves torture as an issue from violence as an issue. And why I – as someone who is decidedly not nonviolent – am so decidedly against and uncomfortable with issues of torture.
I came to an answer, as I usually do, in an unplanned realization while reading a book.I just read ‘Savage Century: Back to Barbarism’ by Therese Delpech, a French policy wonk and public intellectual. It’s an interesting, depressing book, written in the dense yet breezy style of the French public intellectual – think Ellul – and it is about how thin the veneer of civilization is, and how mistaken we all are for assuming it to be solid, and how at risk we are in the coming decades of that veneer wearing through.
The history of the last century showed the ease with which historical transformations of unprecedented violence could follow without warning on the heels of the best of times. As in Greek tragedy, crime engendered crime in the house of Europe, which twice set the rest of the world ablaze. From the experience, lessons were drawn for the reconciliation of the European nations. But what is now at stake is Europe’s capacity to assume international responsibilities in a deeply troubled world. And from that point of view, the internal lessons just mentioned are insufficient. The unprecedented historical eruption from which the entire twentieth century arose does not speak only for the madness of Europe and of national passions. It is evidence of a wider adventure concerning humanity as a whole: the sudden appearance of storms whose warning signs on the horizon we Europeans have too long pretended to ignore, storms no one can control once they have been unleashed. When such sudden acceleration of history occurs, it signals the defeat of political action, which can do nothing but run after events until it is swallowed up by them. If Europe has any message to transmit to the world, it is truly this one.
In passing, she recounts the brutality of the Nazis, the Soviets, Mao’s China, and North Korea.
In some cases, as in China, examination of the past remains taboo. How much attention, for example, has been given to the scenes of cannibalism that took place in the midst of the Cultural Revolution in Guanxi in 1968? A terrifying account of them, barely repeatable stories of horrors, can be found in ‘Steles rouges’ by Zheng Yi. We learn that students sometimes ate their teachers, not in the course of a famine like the one that ravaged Ukraine and the rest of the Soviet Union in the early 1930s, but because years of daily brutality had brought about the resurgence of cannibalism as an act of supreme cruelty. The author of the book barely believed the rumors circulating about the villages where instances of cannibalism had occurred. But after collecting many accounts of practices even more terrible than those that had been reported to him – in paroxysmic scenes, some victims were eaten alive – Zheng reached a despairing conclusion: “A people that has incited its children to eat human flesh like savages had no hope for the future!” Worse, the collective madness was not completely devoid of “rationality.” Many bureaucrats climbed the ladder of power by means of such demonstrations of revolutionary faith:
In the modern period, when progressive Chinese men of letters inveighed against of the misdeeds of cruel officials who built their careers on assassinations, they often used this expression: “he does not hesitate to stain the feather in his cap with human blood.” But this expression is not suitable in the case of Wang Wenliu and other cadres in Wuxuan. In fact, to guarantee their success, they were not satisfied with merely killing human beings, they also ate them.
None of those acts would have been possible had it not been for the years of public confessions and public executions in China that twisted moral sense and the concept of justice. Nor would these acts have been possible in the absence of terrible mass pressure, which tolerates no resistance whatsoever.
She is using them as examples of what can happen – of the beast outside the circle of firelight that represents modern civilization – but I realized something else in reading this.
Those societies could not operate without the level of – to us – insane violence – which maintained and even today in China and North Korea maintains public order. The camps were not an aberration in Nazi policy; they
So there are societies who exist only because of torture. Torture and the fear of torture – and death, and vanishing into ‘nonperson-ness’ in a distant camp – form the sole legitimizing principles of the society. And the relationship between the citizen whose person is secure from the state is fundamentally different from the relationship of the subject whose person is not.
We aren’t one of those societies. We never have been, due to the happy accident of English Common Law and the freedom provided by the wilderness.
And what that means is that we also know what we have to resist becoming. And pushing back on the issue of torture – being sure that we are on the right side of that line – is a damn good way to resist this.
This isn’t just happy moral talk over a pitcher at the campus pub. While I have no qualms with having our enemies fear us – the reality is that the manner in which we deal with them is watched by those not (yet) our enemies. Who have to decide on whose side to stand.
And here, I’ll go back to Boyd.
Observations Related To Moral Conflict
No fixed recipes for organization, communications, tactics, leadership, etc.
Wide freedom for subordinates to exercise imagination and initiative – yet harmonize within intent of superior commanders.
Heavy reliance upon moral (human values) instead of material superiority as basis for cohesion and ultimate success.
Commanders must create a bond and breadth of experience based upon trust – not mistrust – for cohesion.
and
Action:
Undermine guerilla cause and destroy their cohesion by demonstrating integrity and competence of government to represent and serve needs of the people – rather than exploit and impoverish them for the benefit of a greedy elite.*
Take political initiative to root out and visibly punish corruption. Select new leaders with recognized competence as well as popular appeal. Ensure that they deliver justice, eliminate grievances and connect government with grass roots.*
…
*If you cannot realize such a political program, you might consider changing sides.
As I finished this up tonight, I noticed a post in Memorandum that I think ties to this and is well worth reading.
It’s a post about Guy Fawkes at Harpers, which has gone kind of moonbatty in the last five years. But it’s a definite should-read. The author’s principles are sound, even if he’s somewhat blinded by BDS – and the failure of the Administration is to have left themselves open to this kind of criticism.
And it lets me cite a wonderful line from the movie ‘V for Vendetta’, which Littlest Guy wanted to see again ‘because it’s making me think’.
People should not fear their government, their government should fear the people.
More on this in a bit; I’ll piss many of you off by disputing what exactly constitutes ‘torture’.
“People should not fear their government, their government should fear the people.”
I respect you for the open and serious discussion of the issues, and I think I’m probably not far from full agreement with you, but…
I hope you do realize and have considered that the above statement isn’t really applicable. That is unless you think its a short step from torturing a foriegn agent to democide, this isn’t really a question of what the people should tolerate in thier agents doing to other citizens. It’s a question of whether we think we should treat foreign agents the same as citizens. There is a distinction here between ‘us’ and ‘them’ which needs at least acknowledging before your argument can realy be complete. I’m prepared to accept that there might be a connection between how we treat or worst enemy and are countryman, but you have to make it, because its equally clear that someone can be extremely cruel and ruthles and yet act quite differently and tenderly to those which draws a circle of community around.
Its still a dangerous line to walk. If you are willing to do things to enemies that you claim you wont to countrymen, what happens when you find a traitor in your midst? And those that aid the traitor, and those you arent so sure about but suspect. I know the slippery slope is probably the most common argument in cyberspace by far, but it still begs an answer.
celebrim –
First, it’s a rhetorical flourish, not an argument, so don’t give it more respect than it deserves.
But even so, I think there is a germ of truth in it.
The kind of governments I’m talking about are founded in fear, and in the acceptance and internalization of fear. That’s one root of legitimacy, but it isn’t ours.
And the problem with torturing foreign spies is that it’s damn hard to draw a bright line around who it’s OK to torture and who it isn’t. If necessity trumps all, at some point it’s necessary to torture political opponents – they succor the enemy who kills our soldiers, after all – and then the fantasy that the Arthur Silbers live in every day starts to look a lot more real to me.
I don’t want that.
A.L.
bq. Take political initiative to root out and visibly punish corruption. Select new leaders with recognized competence as well as popular appeal. Ensure that they deliver justice, eliminate grievances and connect government with grass roots.*
bq. *If you cannot realize such a political program, you might consider changing sides.
I love this quote! This is the precise reason I changed parties. I could no longer even envision the Democrats doing anything rather than feather their nests. Their disdain for the common man is solid. I know many will disagree with me. Also, the only person I see in the present race is Fred! who can begin to even appear somewhat normal.
Now as to the torture question. This is like many things in war, you must be able to do things that you may not normally do during peace. If there are exigent circumstances, bring out the pliers.
The one good scene in that white wash Syriana was the one when the guy has just taken out George Clooless’ fingernail, the first one. He says something like:
bq. Do you know what torture really is? (GC shrugs, if I remember right and looks quizzical.) No? Waiting for me to take the second one!
That is the thing, torture is mostly mental.
AL- Your references to Red China and the atrocities a mere 40 years ago tell the tale. And we are willing to do business with these folks? What the hell makes anyone think they cannot nationalize the fancy factories and steal the IP? And in the blink of an eye, they can and will. We must be stupid to go on consuming their goods after the dog food poisonings, lead paint on kids toys and whate ever the next one will be. What makes you think this is not organized? Huh, Pollyanna? Are we so stupid we are willing to see Hsu and the Klintoon Gangs campaign finance crimes as just an unfortunate mistake? Do they really consider us that stupid? (I think the answer is that the Clintons do, but that is another thread.) Or is it a pattern? (I think so. Two of the same do not a pattern make, but three do….)
I do NOT believe that foreign nationals have ANY protections in this country during a time of war unless their country is a signatory of Geneva. Is Afghanistan? Pakistan? Iraq? Iran? Nope. They reserve the right to be brutal towards us and so should we towards them.
BTW, good post. Ya’ll here are much smarter than this country boy.
Thanks….
When Italian Prime Minister Aldo Moro was kidnapped by the left-fascist Red Brigades, the Italian government rounded up Red Brigade leaders and considered torturing them to find out where Moro was being held. This was rejected, on the grounds that “Italy can survive the loss of Aldo Moro, but it can’t survive the introduction of torture.”
Note that is was not the torture of the individuals in question themselves that was weightier than the life of the Prime Minister, but damage done by the legal sanction of torture. I.e., the victim would be the law, not the Red Brigade leaders.
The consequence of that, though, was that they got Aldo Moro back dead.
It all depends on what consequence X is worse than torture. Charles Schumer is getting reamed by the Democratic Public Safety Committee for suggesting that X = “several thousand lives.”
I don’t see them attacking Al Franken, though. I’ll never forget seeing him advocate torture of al Qaeda suspects on the Bill Maher show shortly after 9/11, and the specific method he proposed was a red hot poker up the ass, which does some permanent damage. This was before torture was an issue, of course; Franken said he wanted to “Put it on the table.”
What if X = no more than the life of one little girl? Clint Eastwood tortured a guy in Dirty Harry to try to save a little girl’s life. Not exactly a Robert Redford movie, but I don’t recall the audience objecting.
Of course, Dirty Harry’s action was illegal, and for good reason. But there is such a thing as extra-judicial activity, sometimes called “going off the meter”.
But the idea of accepting secret torture is not very comforting, either. If the moral calculus is sound – and Al Franken sure as shit thinks so no matter what he says now – shouldn’t it be done openly?
The hypothetical Mark Buehner describes has a name–Jose Padilla, a U.S. citizen who was arrested on arriving back in the country at a Chigago airport, then denied the rights of a citizen on the basis that he was an Enemy Combatant. More precisely, on the basis that he was credibly accused of being an Enemy Combatant.
So talk of a slippery slope is very well justified, once we distinguish those with standing within our community (citizens, here) from those without it.
Some hypothetical good-and-competent government could make this tough decision and get it right every time. On the other hand, we’ll be stuck with the actual governments we actually get for the foreseeable future.
BTW, I don’t know if Padilla was tortured, or tortured under a definition of torture that I’d accept. But he was clearly deprived of his rights as a Citizen by administrative or executive action. So for the purposes of this discussion, it probably doesn’t matter.
The other question that ‘always’ comes up, and rightly so, is the Ticking Bomb. You caught the guy red-handed, you “know” he has the information that you need, and torture is the only way you can get it fast enough (torture-doesn’t-work is a pointless finesse here, of course if it doesn’t work here then you won’t use it). So if Armed Liberal’s position is absolute, then the answer to the Ticking Bomb is always, “No, no matter what the stakes, per Boyd, we lose more than we gain by extracting the information through torture.” The location of the sniper? bin Laden’s hideout? Which maternity ward the bomb is hidden in? Which Long Beach container the stolen nuke was smuggled in? Is there some point where expediency takes the reins?
A..L., Good post.
AMac – I assume, re “ticking bomb” that:
a. The situation described for “ticking bomb scenario” is a lightning striking type of situation, in terms of frequency.
b. If “lightning struck”, then I assume that the green light would be given to do what needed to be done, and forgiveness would be granted later.
c. No law can be written, codified on the basis of a ticking bomb scenario, as one makes cases based on 99.99 percent of activities that one actually encounters.
My own view is that all bets are off with nukes and probably also for other extraordinary (ABC) weapons.
Short of that, don’t torture. (And waterboarding is torture, as is anything equally or more severe.)
This implies increased friendly casualties and more jihad successes. OK, pay that price.
It also implies that enemy prisoners are worthless, and since they are illegal combatants anyway, and since there is no question of reciprocal codes of gentlemanly behavior, I have a solution for that: shoot them all.
Among the benefits of this course is that nobody in our camp, who we would recognize as being one of us, has the taint of a torturer. (Or not legitimately anyway: our very good friends on the far left will rave and smear as viciously as they can regardless.)
I don’t think we should authorize or permit people we ought to respect and have warm feeling for as neighbors, such as our soldiers, to do things that healthy instincts recoil at, things that violate good taboos.
Rendition is a soft spot in my position. I’m agin it but it makes some sense. If some of our implacable enemies are eager to torture other of our enemies for their own reasons, that does not taint us. They are not our brothers and we are not their keepers.
Re: #7 from hypocrisyrules – the problem with this in relation to the Americans is that the power of clemency lies with the President, and presidents for many years now have been negligent in using it. I think George W. Bush has been very bad in this respect. Before him, William Jefferson Clinton was also stingy with clemency till his infamous last day in office.
Because of this, there is every reason to fear that if you are not a crony of the current president you will be hung out to dry if your case is the least bit controversial.
In that case, the legal status of someone who does desperate things in a “lightning strike” situation, which ought not to be that big a deal within the well made American system, becomes a painful problem.
The best solution would be for American presidents to grant executive clemency much more often – as it does seem to be part of the job as it was designed – and with a less partial regard for personal and political associates. But how to get to that state of affairs I don’t know. Nobody’s going to run for that office and win on a promise of more pardons.
I’m not sure why waterboarding gets so much press; 40 hour standing sounds worse, there can be less dispute over the exact nature of the procedure, and they both came off the same list of techniques. I’ve been talked into supporting a ban on all of them. They are nowhere near bad enough to bring us down to our enemies’ level, but they are worse than we should countenance. Besides, the likely targets of the ticking bomb scenario are the heavily populated, largely Democratic cities that have already indicated they are willing to take that risk. I salute their courage, and wish them well.
Also, I’m keen to see what aspect of American military policy becomes beyond the pale next. I’m betting on indefinite detention.
_While I have no qualms with having our enemies fear us – the reality is that the manner in which we deal with them is watched by those not (yet) our enemies._
Yes, but unless those not-yet-enemies are in Europe, North America, Israel, Australia or Japan (and maybe one or two other civilized or semi-civilized places) they will consider mercy a weakness. Remember Osama’s “strong horse.” Savages (who comprise most of the world) may rail about torture for propaganda reasons, but they will ally themselves with whomever they believe will win, and because of their cultures, they will believe the most vicious will win. So I don’t think the case against torture can be made that way.
#7 h.r. —
bq. a. The situation described for “ticking bomb scenario” is a lightning striking type of situation, in terms of frequency.
I don’t think so. Or, it only seems that way once we can look back, through the retrospectoscope. Consider 9/11, and the howls of protest that [insert your Gov’t agency here] could have let this lightning-strike event happen. On 9/10, it wasn’t a case of the elephant ignored in the corner, it was a case of a herd of elephants throughout the house–only most of them were virtual, or far-off in time, or misinterpreted mice… which ones, if any, were the imminent lightning strikes?
Now, as then, there are a host of intercepted whispers that might or might not be lightning strikes. And a host of detained people, presumed terrorists or associates, who might or might not have useful, time-sensitive information on the ticking bomb (if it exists).
Under what conditions, if any, should we torture them?
For the sake of the discussion, assume that David Blue is correct in #9–no easy outs there.
(By the way, I don’t have answers to the questions posed in the thread. Right now, I’d go with the Italians and Schumer (Glen Wishard #5) and David Blue (#8). And I discount the “we’ll make them hate us” argument. “They” are people with their own agency; many of “them” will hate us no matter what, for their own reasons, e.g. Fred’s point in #11.)
I agree with hypocrisy, its a mistake to try to codify torture into law. If the need is so compelling as to make it unthinkable _not_ to torture, its going to be done one way or the other. Thats what the pardon is for. And i dont buy into the worrying about politics end of it- this _should_ be a political decision if anything ever was. This is far outside of ‘justice’, this scenario is about survival, and you just cant write enough law to cover these outlandish scenarios. Somehow i just dont see Jack Bouer rotting in prison because President X wont pardon him after he saves Manhattan from reaching twenty thousand degrees in less than a second. Almost by definition, if its worth breaking the law to torture someone it will be unthinkable not to pardon them. Our people _should_ be thinking along those lines, and if there is a question in there mind they shouldnt even think of doing it. The idea of the ticking timebomb scenario is that it is a no-brainer.
You should be willing to spend the rest of your life in prison to prevent what you are so sure is going to happen. Anyone that isnt patriotic and humanitarian enough to accept that shouldnt have the decision to torture or not to torture anyway.
That’s a good post mark. And I strongly suggest the mark Bowden articles on the atlantic, which is very nuanced on the issue of torture. What he right about the legality of torture before and after abu gharib says alot about the slippery slope of “allowed torture”.
My cousing recently read “1984” for the first time six months ago, and I was thinking about it yesterday. The ending of 1984 is heartbreaking, not because smith is caught, but because his soul is completely and utterly destoyed by the torture he endured. In many ways, the death of his soul is more damaging than his actual death would have been.
Even though what we do is nowhere near that, I think it’s important to consider torture from this angle; with everything we currently know about PTSD, it is possible to irreperably the psyche wihout causing permanent damage. Although I have no studies to back me up (and there never will be any, due to modern psychological studies guidelines) it wouldn’t surprise me if “drowning” promotes significant psychological damage on the same order of magnitude as rape and phsical torture.
Again, my greatest fear (a fear that has already been realized through rendition) is that we will torture individuals that we cannot prove are guilty, and that we will destroy the psyche of the innocent.
Great debate. I have been struggling with my own opinion on whether torture should ever be tolerated or condoned or sanctioned. I am much less concerned with what constitutes torture, as we see all manner of legal, sanctioned activities that can and should be considered torturous, but never will be.
(Any imprisonment that involves rape, sexual assault, etc., gang violence in inner cities, wanton and consequence free procreation, children’s TV, watching debates, just to suggest a few.)
Those who debate the issue thoughtfully mention the “ticking time bomb” scenario, consider torture against X number of lives as suggested by other commenters.
That can be compelling, except that I think that scenario would almost never materialize. Holding the captive, it is highly unlikely that you woudl know exactly what was imminent, what the full plan was, even how it was to be conducted, unless the prisoner (or one of his co-conspirators) had already blown the whistle on the plot.
The point is, I think every situation would end up far less conclusive. Maybe there’s a plot, maybe there’s an imminent threat, if we torture we may find out. And we may not, or there may not have been any there there, and we’ll never know whether the captive was stronger than our means, or the plot was called off, or if there was never any plot pending, or it was too far from fruition.
So I think I grudgingly buy off on AL’s premise here. Probably never quite worth the potential cost, and the slippery slope is built right in (the first step tilts at a 45 degree angle).
“First, it’s a rhetorical flourish, not an argument, so don’t give it more respect than it deserves.”
I know it isn’t an argument. But it was difficult to draw a sharp bright line between the rhetorical flourish and the thesis.
I’m not sure I see such a difficulty in drawing a sharp line between foreign enemies and citizens, or even between spies and sabatuers and enemy soldiers. If torture is wrong in all cases, I don’t think it is because there is a slippery slope involved. There are clear demarcations you can draw. I don’t see the easy fall from aggressively interrogating foriegn assassins to democide an a state whose legitimacy is built on the fear that its citizens have for it. For one thing, there isn’t alot of credible signs of actual fear on the part of this citizenry despite thier belief we’ve come to that precipice. For another, the whole of human history is one long story of treating your kith and kin differently than you treat the foriegner.
Now, I’m not saying either of those things makes it right and just. I’m just saying that the possibility of its all going terribly wrong doesn’t seem like much of an argument in this case. Being thrown into prison is one of the most terrible and cruel punishments I can imagine. I’d rather be flogged. I think I’d be willing to negotiate on the terms of worse things than that in preference. But the possibility of throwing an innocent man into that situation and taking away his freedoms, and indeed the fact that we must assume that this happens with some regularity (if perhaps not as much as in the movies), doesn’t deter me from advocating a society which jails people.
And just one other observation. I have no problem with torture being illegal, but sometimes leaders in crisis situation take matters into their own hands, knowing the consequences (here here to pardons).
An anecdote. Shortly before we mobilized for Iraq, I attended an MI conference at Huachuca. The Post Command Sergeant Major spoke of his son about to deploy to Iraq. He spoke of a LTC that had been found guilty of performing a mock execution on an Insurgent, leading to information that prevented an ambush of his unit.
He gave his son this advice.
You will see war, you may lose friends. As a leader, you may have to make a choice like this officer. You know right from wrong. You have high morals and strong values. Do what needs to be done, to save your men or achieve your mission. Do what you have to.
But then, if there are consequences to your actions, if someone holds your decision wrong, or hold you accountable.
Accept any punishment. Don’t try to deflect, blame ROE, accuse superiors.
Make the tough decisions, and be prepared to suffer any consequence.
That’s leadership; that’s selfless service; that’s heroism.
I’ve often reflected on the CSM, and the advice he gave his son. I hear a lot of things like this said by my MILBLOGGER friends.
In the end, I think we can legislate the ideal, but trust in our fine men and women in uniform to do what’s right, and have the integrity to stand (or fall) by their decision.
re Guy Fawkes: I believe the author is incorrect that it proves torture never works. Fawkes was caught red-handed. Upon realizing this, his co-conspirators decided not to lay low, but hurried with the second part of the plot which was to rally Catholics in an uprising. They stole 50 horses and got in a shoot out. In essence, outing themselves before Fawkes could do so (though I think he may have started giving a few names earlier). This may not prove that torture is moral, but it doesn’t prove that “torture never works.” If that was true, it would be a pretty easy argument to resolve.
Celebrim,
The difference (in my opinion) is that if you’re convicted, you have the chance of defending yourself. You get your day in court (which is not always a fair system, but at least a system exists) and even after your day in court, inmates have the opportunity to challenge their case through the court of appeals, because of bad evidence, new technology etc.
Innocent inmates that are beleived to be “the enemy” could be tortured without opportunity to argue their case. There are several Al-Jazeera reporters who have been jailed for 5 years in Iraq with no trial, no processing, and no communication with their families. I’m perfectly willing to accept that they were working with terrorist groups, but it has to be proven. Simply jailing someone on the battlefield is not grounds for torture (or indefinite holding).
One more observataion about the Gunpowder Plot. The plot was uncovered when Lord Monteagle, a Catholic, let authorities know that he had been warned away from Parliament. Barring this, it would appear that King and Parliament would have been blown up and England would have erupted into a civil war with Protestant killing Catholic and Catholic killing Protestant until all were satiated. Therein I think is the lesson to be drawn.
alchemist: To me, that cuts even harder to the core of the problem than the question of how much duress we can put them under.
To me the core question here is not, “What are the acceptable interrogation methods?”, but rather, “To what extent does the normal judicial process apply not just to a battlefield, but to the nebulous war against assassins who forgo and scorn the laws of warfare?”
Or in different terms, “Should we try to fight the war on terror as if it was a criminal matter?”
I’m fairly sure that on the battlefield, the presumption of innocence cannot be generally applied and the normal standards of ‘beyond a reasonable doubt’ are insane.
I’m not aware of reporters in Iraq. It’s my understanding that very different rules apply between the Afghanistan and Iraq conflict. I did know that we picked up one in Afghanistan who is being held in indefinite detention.
There are more questions I have about US detention policy than US interogation policy. As I said before, if you are going to lock someone up that is to me ‘torture’ by the loose standards which the word is bandied about these days. In particular, even if they are going to hold battlefield detainees without trial, there is a certain period after the value of holding them secretly and opaquely seems to be meaningless and even counterproductive. This part of US policy I do not understand even the reasoning behind, and I’d be far more uncomfortable with it if I didn’t know that hundreds and hundreds of detainees who make it even into the depths of the US detainment system do in fact get released.
Celebrim articulates my chief concern:
bq. _To what extent does the normal judicial process apply not just to a battlefield, but to the nebulous war against assassins who forgo and scorn the laws of warfare?_
I believe the rule of law that we enjoy cannot and should not be extended beyond the borders. (What is meant by “borders” is probably a complicated issue which I’ll skip for now) Everything else should be governed by rules of engagement.
If, however, we are going to extend domestic rule of law principles abroad, those principles should be extended to the protection of our men and women to their fullest. That means laws which impose criminal violations should be clear and not vague. A law prohibiting acts that shock the conscience does not IMO meet rule of law principles since its unclear what a judge or jury might find unconscienable. The law should, for example, prohibit waterboarding if that is what is intended. It also means that our men and women are presumed innocent.
I agree that dealing with an insurgency is more complex than a “criminal matter”, at the same time, lack of transparency breeds fear. It can be a good thing(lead some individuals to talk without torture) but it can also lead to general mistrust, contempt and anger by Iraqis.
I think one problem we have had in iraq is that abu gharib is assumed to be the standard by much of the iraqi populace. Not defining what we will do and what we won’t do has helped us any.
_the movie ‘V for Vendetta’, which Littlest Guy wanted to see again ‘because it’s making me think’_
If he’s interested in the movie, he might also like the graphic novel on which its based. I think the movie has problems, not the least of which is its glorification of torture as having liberating virtues. I think the graphic novel more clearly articulated that V was insane. The movie makes V way too heroic, and his justification for torture seems to stand uncontested in the narative. I believe his truly heroic act (which is not depicted in the movie) is that he orchestrates his own death to bring an end to his own destructive nature and make way for others to rebuild society.
I won’t even get started on the cast’s apparant belief that the movie justifies terrorism.
A.L.,
For me, it has always been more about the effects of torture on the torturer, and the torturing society… precisely because if I concentrate at that level, then torture should be so rare (or ideally non-existent) that I do not need to worry about the effect on the tortured.
There are slippery slope arguments to be made here. I do not spend my days and nights worrying about, as another respondant put it, the beast outside the circle of firelight that is civilization, but I do occasionally worry about it. I worry about it most right after a short, sharp shock like 9-11. I worry about it when I see something like Abu Ghraib, that reminds me how close even the best of us can come to that border. And I worry about it, paradoxically, when I see people contorting themselves over the issue of whether handling a holy book without ritually clean gloves constitutes torture as well.
I contend that, like pornography, torture may be difficult to define but in 99 out of every 100 cases, we know it when we see it… the first time. Maybe even the second time. The third? We may be desensitized. Failing to cater to obscure religious tenets is not torture. Smashing thumbs or electrocuting someone is. Is waterboarding? I don’t know– I’ve read the descriptions and I honestly cannot make my mind grasp that as torture, but then, I’ve never had it done to me nor seen it performed, and many smart people I know do consider it torture. That may be the 1% case, or I may be desensitized. I do not know.
So I contend further that Dadmanly (17) and Mr. Blue (9) are on the right track with talk of responsibility and clemency. In those cases, and especially combined with exigent circumstances, no pre-written book of law can cut so clean as to give a correct answer every time. Nor, even, can any individual conscience, but the conscience is the best guide to the situation… but the counter-balance to that must be the willingness to submit to the law afterwards. If it is important enough to torture someone, it must be important enough to go to jail for and gamble on clemency. I do not trust the man to torture who says, “Saving New York is worth torturing this man, but not worth gambling my career and/or personal liberty.” He who would torture must have a very, very high stake in the matter to keep his conscience focussed and active.
At the end of the day, that’s a lousy answer, I know.
But it is the only answer I have.
[quote]I think one problem we have had in iraq is that abu gharib is assumed to be the standard by much of the iraqi populace.[/quote]
And much of the American for that matter. But seeing that 20%+ of Americans think the government was behind 9/11, and Iraqi’s are prone to believing that we have air conditioners in our body armor, that Jews are stealing Iraqi boys and cutting them up for body parts, that we have mind-reading satellites, and any number of other even more bizarre things than that I’m not sure that there is anything that can be done about that. If you want to believe ‘Valley of the Wolves’ or the similar tripe that comes out of Hollywood, and if you believe that everyone else has been ‘taken in’, then there is nothing that can be done about it.
[quote]Not defining what we will do and what we won’t do has helped us any.[/quote]
It wouldn’t be believed even if it was.
I have no interest whatsoever in the argument that we should do this or that because then people will like/love/think well of us.
_I do NOT believe that foreign nationals have ANY protections in this country during a time of war unless their country is a signatory of Geneva. Is Afghanistan? Pakistan? Iraq? Iran? Nope._
Afghanistan, pakistan, iran and iraq all signed the geneva conventions. However, pakistan and iran did declare some loopholes they wouldn’t abide by, and you might choose to look those up and see if they’re important. USA did that too, we declared we wouldn’t follow GC in some insignificant ways.
hypocrisy:
There’s a lot of stuff that has to go into that quiet assumption. Who gives the green light to go outside of the rule of law, and to whom do they give it? How quickly and confidently does this happen, when some agency (who could be wrong) determines that there’s a nuclear bomb in New York City, and we don’t know where it is?
The French used to be the experts at this kind of thing back in the 50s. Their very good intelligence apparatus would detect a plot by OAS terrorists, and the pseudo-legal French Action Service would go to work. Not only torture, but kidnapping and assassination; whatever it took.
Charles DeGaulle survived two dozen assassination attempts, and the French Republic survived the now-defunct OAS. Not by those means alone, however. France was a police state in those days, on a par with Franco’s Spain. That was the kind of thing that Italy feared in 1978, more than they feared the Red Brigades.
But the Red Brigades and the OAS were not looking to spectacularly murder thousands of innocent people. (The Pal terrorists have ambitions of that sort, which the Israelis have contained with some effective extra-legal actions, for which they get very little forgiveness.) Al Qaeda isn’t just playing some kind of bloody-minded Marxist or fascist politics; their target is as many innocent people as possible and the target zone is almost anywhere.
Again, it all depends on what Consequence X is.
Leaving aside the fact that all the pertinent countries have signed, this is not true of the 1949 Geneva Conventions. (It was true during WWII, and was used by the Germans, who were signatories, to “justify” treatment of Soviet prisoners, who were not.) The 1949 Conventions contain many articles that apply regardless of whether the other party is from a GC country.
I wonder if Glen knows he’s exaggerating. Quiz: how many legal political parties were there in Spain and France, respectively. Quiz: How many political prisoners?
But it’s all about exciting the torture-lovers. Couldn’t you just buy some S&M porn instead?
In life, there are no “always” and no “nevers.” When the dust settles, all will have to answer to the face who looks at them from behind the mirror.
“But it’s all about exciting the torture-lovers. Couldn’t you just buy some S&M porn instead?”
I’m surprised it took this long for the inevitable trolling to start.
.bq But it’s all about exciting the torture-lovers.
AJL, an unusual “F” for comprehension of the preceding comments. Torture-lovers may be fun people to hang with, but they don’t seem to be dominating this discussion, yet.
This also weeds into the book “ordinary men: reserve police battalion 101”, on how ordinary civilians (already under the belief that Jews were evil) learned how to suspend their conscience and kill thousands of people.
Although it’s not perfectly comparable, I could still imagine situations were extended use of torture could desensitize someone to lean towards harsher interrogation techniques. It’s one reason why I think specific lines should be drawn. Anything more puts the torturers own neck on the line.
I see at least two problems with this – first the United States is so economically integrated that an attack on any major US city would have repercussions throughout the United States. The 9/11 attacks on Manhattan had economic repercussions that went far beyond the physical destruction of the Towers and costs tens of if not hundreds of billions of dollars in lost economic output alone.
The other problem is that you cannot assume that everyone in a major city is a Democrat who would rather that thousands of Americans were killed in an attack rather than water boarding or torturing a suspect to save their lives. Lots of people travel through or work in cities without living in them. Not to mention that the way political districts are drawn up, you could have a sizeable minority of people who aren’t of the sort that you are thinking of.
I won’t even get started on the cast’s apparant belief that the movie justifies terrorism.
Or how about the fact that the movie may be the most misogynistic film I’ve ever seen.
The female lead exists only to be personality wiped and replaced by the dominant male leads vision of the ideal female. And she buys into it without thought or question. If you need a fun essay topic do a compare and contrast between V and Stepford Wives.
On topic, I think AL’s on the right track and I’ve found the administrations take on the whole issue puzzling.
The whole advantage to the drain the swamp, neo-con strategy in the war on terror was engagement. By being in Iraq, the theory went, we wouldn’t need to do nothing but pit hardened operatives versus hardened operatives, we’d be directly engaging the terrorist support base.
The value of torture is far eclipsed by waving a stack of 20 dollar bills under the right noses. The hardcore operatives you catch in counter-intel won’t fall for that, the softer support base will.
Basic strategy, if your choices are bad, move the playing field.
Think of it as the surge writ large. Engage and open up better options.
At least I thought that was the strategy, why the administration is wasting so much political capital on an issue not relevant to the heart of their strategy is quite beyond me.
The core of the law enforcement approach is the interrogation room and the courtroom. The core of the engagement approach is seen in the photos Totten has been posting with US officers in rooms full of Iraqis talking about the day to day operation of a country.
It’s pretty obvious at this point which one yields better results, why do we insist on playing in the weeds?
The difficult question still is, though, as a moral person, if you have the opportunity to save 1 life, 100 lives, 1000 lives, by torturing – however that’s defined – one suspect person, should you do it, even knowing the implications of doing so if you are a representative of the American state?
Does it make a difference if the lives are as abstract as American, Afghani or Iraqi civilians of an unknown number at an unknown time and place, or as immediately urgent as your own life or the lives of your buddies?
If those lives are lost because you chose not to torture (and how would you ever prove that?), would it be a greater moral victory to have resisted the temptation to torture one or more suspect person in order to save those lives or would it be a greater real and moral failure by the people and agencies, indeed of the Social Contract, we’ve tasked to protect those people to have chosen not to employ all the necessary means to save those people?
And, even if we never actually torture, does the public knowledge of our ability and means to torture hold any deterrent value?
Jeeze, Give Me a Break!
All this B.S. about torture
IT IS SIMPLE!
A. If some bad guys have one. or more, of your LOVED ones wife, (mother, daughter, or what have you) where they were going to slowly die a very painful death and the ONLY way you could save them was by torturing a bad guys.
YOU TORTURE THEM!
OR
B. If some bad guys have one.or more,
WMD (Chem/Bio/Atomic) where many thousands, OR tens OR hundreds of thousands, (maybe even millions) were going die and the ONLY way you could find the WMD in time to stop them was by torturing a bad guys.
YOU TORTURE THEM!
And IF you would not torture them to get the information, you are not a person who deserves to live.
Anvd using the excuse you might be torturing the wrong people does not hold up as using “Brain Mapping” would solve that.
_I’m not sure why waterboarding gets so much press; 40 hour standing sounds worse, there can be less dispute over the exact nature of the procedure, and they both came off the same list of techniques._
Well, it’s partially because waterboarding is semi-controlled death – filling of mouth, sinus and lungs with water, often to the point of a prisoner blacking out or after. Stress positions, induced hypothermia, keeping someone awake for 3 days – none of these are designed to bring the person to the edge of death in the same way.
It probably has to do with the idea of what an American citizen is doing as well – shaking someone awake vs. holding a cloth over someone’s mouth and pouring water over it.
*Neil C. Reinhardt at #38*
_YOU TORTURE THEM!_
Don’t worry Neil – 24 will be back on in January, the writer’s strike won’t slow things down.
I’d like to think by then you can read up on any of the number of ways intelligence can be extracted from prisoners in the meantime, which often do not involve torture. Or, create a list of your top 10 ways to torture someone, and then compare it to lists of what have been done throughout history – see if you can beat them.
Dave, that gets to the ‘exact nature of the procedure’ point. The WaPo story last year quoted a 1968 story on the practice: “those who practice it say it combines the advantages of being unpleasant enough to make people talk while still not causing permanent injury.” A 2005 ABC story says cellophane is wrapped over the head; I don’t see how water gets in the lungs under those conditions, nor do I understand how KSM lasted over 2 minutes if the plastic was tight enough to prevent breathing.
In short, I don’t know exactly what the procedure as practiced today entails. Neither do you. Rather than make unprovable claims about how exactly waterboarding works, why not focus on why nothing like it should be done?
“In short, I don’t know exactly what the procedure as practiced today entails. Neither do you. Rather than make unprovable claims about how exactly waterboarding works, why not focus on why nothing like it should be done?”
While we are on this subject, it’s getting popular in the media to make the claim that waterboarding was practiced by the Spainish inquisition. For example, NPR made this claim in today’s morning show. This is not in fact true. The practice the Spainish inquisition used goes by versus names but was to force a cloth or funnel down the throat and then use this implement to force the person to swallow water until thier bellies became painfully distended and they suffer from water intoxication.
I have heard absolutely no reports that torture via the forced ingestion of large quantities of water is being employed, and conflating the two procedures is rather dishonest.
I suppose the relatively unsophisticated nature of my previous comment arose from my surfing over here from this similar thread at Volokh. There truly are people who support widespread torture (without quibbling about one procedure or another) out of some vague hope that it will defend America, and they are well-represented there if not here. Personally, I’d guess that some of them are perverts. All wrapped up in their 007 License To Kill and Torture make-believe world.
It’s only a matter of time before National Stormfront has its series on “If Jews had a Ticking Bomb”, if they haven’t written it already.
Torture is useful as a means of intimidation, although with most of the potential recruits for Al Qaeda and its ilk out of our immediate grasp, its effectiveness must be much less than in dictatorships where all the victims are near at hand. As a means of breaking Al Qaeda’s existing network, I am extremely skeptical. We do not have the resources to check all the nonsense we will obtain by torture (yes, with some truth mixed in). And whether torture will result in our facing a more popular and radicalized opposition, I suggest that is a no-brainer.
I am still waiting for someone here to admit we owe the Japanese POW guards an apology. Is this another issue (like preventative wars of choice) where we get to play by different rules?
_While we are on this subject, it’s getting popular in the media to make the claim that waterboarding was practiced by the Spainish inquisition. For example, NPR made this claim in today’s morning show. This is not in fact true. The practice the Spainish inquisition used goes by versus names but was to force a cloth or funnel down the throat and then use this implement to force the person to swallow water until thier bellies became painfully distended and they suffer from water intoxication._
The inquisition didn’t just do one thing. Didn’t they also have a system for dunking people underwater until they almost drowned?
They did what you say, and that isn’t what we call waterboarding. That isn’t an argument that they didn’t do waterboarding too.
The japanese did the water torture you describe also.
Hypocrisy —
Let me explain the real world consequences of McCain and other’s policy. NO ONE will make a move. There will be no Dirty Harry’s. Anyone pretending that someone will throw away their career for a lifetime in Leavenworth for possibly a pardon (a dim possibility), please contact me immediately. I can interest you in shares of the Brooklyn Bridge and some fine Nigerian investment opportunities.
As a practical matter we will, because Dems hold policy reins in Congress and the Media, adopt a Miranda Warning for all terrorists, foreigners included, even on the battlefield. This will result in massive loss of life, particularly if the US OR Israel decides they cannot live with the Iranian Nukes (and Iran retaliates with massive domestic terrorism via Hezbollah) OR Pakistan falls to bin Laden.
THEN we will have no choice but to go about the ugly business of killing everyone inside several countries, otherwise we will be hit again. A side-bar: we will also expel anyone Muslim, citizen or not, from this nation, and close all Mosques. People will do funny things when it’s survival at stake. I’d personally prefer to avoid that situation entirely but Dems and the Media are convinced if they close their eyes and pray really hard the bad men will go away.
Mr. Lazarus is a good example of how unserious the Left is. Pakistan teeters on the brink of bin Laden’s control and they worry about “torture.” He wants an apology to Japanese prison guards who were exceptionally brutal because we are not morally perfect. THAT is basically what the “torture” debate is all about … a utopian idiots desire for perfection impossible to achieve instead of focusing on survival.
We might of course avoid all use of coercion (the Left defines it as “torture”) if we say, used nukes on Iran’s nuclear weapons facilities and overtly threatened to wipe out Pakistan if bin Laden or the Taliban appeared to take control of their nukes or a nuke goes off in the US by “unknown forces.” It would neutralize bin Laden’s argument that we lack the will to use our weapons because of moral weakness (echoed by Ahmadinejad), put MAD fear into Pakistani peoples, and of course likely kill a couple of million Iranians. But if Mr. Lazarus is sincere about his wanting to abjure any “torture” this is certainly a way to do it. I think he is not sincere, he does not believe that the US faces any serious threat, or if it does that it deserves to be protected. Or that American lives are worth more than foreigners (the default position of the Left is the inverse). This is why the elitist, wealthy, and condescending Left generally fails in America btw. Their patriotism is questioned because they won’t take America’s side.
[Note the deception in the argument. No line is drawn between American citizens who are NOT agents of a foreign power in violation of the Geneva Convention — i.e. uniforms, badges, etc. and that of foreign terrorists captured on foreign battlefields. If the Left was serious it would ask lines be drawn by law to prevent charging US citizens as enemy combatants absent compelling evidence. Instead it has argued for a Miranda Warning and criminal law to apply to the battlefield. They have taken sides, with the other side.]
_Let me explain the real world consequences of McCain and other’s policy. NO ONE will make a move. There will be no Dirty Harry’s._
Jim (and others who try to oversimplify this issue), someday I hope you wake up and realize that the world is not an episode of 24. “Bad Guys” don’t wear nametags. Rambo is not going kill an entire army while getting only a single superficial wound. Torture is not always going to provide clear, collaborative evidence that gives us the exact location of Osama B.L (or of a ticking time bomb). And yes, if we condone torture, some mistakes will be made and we will accidently torture the wrong individuals.
Will torture work to gain some infomration? I’m sure it probably does. However, sometimes it fails, especially when an innocent “detainee” will concede anything to make it stop. Ditto in the cases of a low-level operative who knows few details (For example: look at torture in Saudi Arabia, which routinely produces false confessions). At the same time, it enrages moderate groups we need for allies.
If we torture, we will not neccessarily stop the next attack. If we do not torture, we will not neccessarily be attacked. Could one help the other? Theoretically, yes, but it’s a small part of the much larger war on terrorism. Therefore, insinuating that our only options are “torture or death” is grossly misleading.
It’s off topic, but I’m glad someone else has read Ellul. I run in academic circles and most “educated” people have never even heard of him. After years of thinking about his ideas, I’m still not sure I buy his main thesis. Yet, still I can’t dismiss it either.
As a non-violent fellow, Armed Liberal might not like the sentiment, but here goes.
Armed Liberal kicks ass.
_”Let me explain the real world consequences of McCain and other’s policy. NO ONE will make a move. There will be no Dirty Harry’s. Anyone pretending that someone will throw away their career for a lifetime in Leavenworth for possibly a pardon (a dim possibility), please contact me immediately”_
There is no reason to beleive the above is true. No one would throw their career away or risk time in prison if they were CONVINCED it was the only way to stop thousands of people’s imminent deaths? And if they aren’t convinced beyond a doubt, they _shouldnt_ be contemplating it. Thats the point of the ticking timbebomb thought experiment.
Somebody brought up the officer who staged a mock execution in the field in Iraq because he _knew_ the subject had information an a definite ambush. The army has damned strict rules about this kind of thing. Did this event not happen? Or did this officer accept the consequences of his action to save the lives of his men? Ya know, like a grown up?
Basically if everyone in the military and intelligence and government is as spineless as you are claiming, we are doomed no matter what and it wont matter a damn whether they are allowed to torture or not.
I’ve never been satisfied with the notion that we can write laws and assume that they will be broken when circumstances justify it. It seems like an abdication of moral responsibility. I think Hypocricyrules (#7) makes the point well that we can’t write laws for the rarest of circumstances. I’m just not persuaded . . .
_”I’ve never been satisfied with the notion that we can write laws and assume that they will be broken when circumstances justify it. It seems like an abdication of moral responsibility.”_
I disagree. One way of looking at it- our entire American system sprouts from the Declaration of Independence, which certainly had no standing in English law. If you subscribe to the idea that there is a natural law that can trump any law of man in certain circumstances, you can read that into the ticking timebomb scenario. The law of survival, if you will. We say all the time the Constitution isnt a suicide pact, but we dont try to legislate the specifics (which would seem to be impossible).
If you agree to the idea that under extreme circumstances it is moral to break the law, its just a matter of philosophy to decide when that line is permissable. If its permissable to stop a monarch from taxing you without reprensentation, one could argue it is allowed to stop a madman from murdering potentially thousands of people.
We are a nation of laws, not justice, as they say, but we are also a nation of compassion. Personally I am _far_ more comfortable relying on the good sense and courage of individual Americans (with the risk of a harsh punishment if they choose badly) then trying to legislate situations that are by definition disasters. One thing we do know for sure- any power and authority we give the government will grow and spread. One look at how often provisions of the Patriot Act have been used against drugs and other crimes as opposed to terrorism should prove that quite conclusively (despite assurances to the contrary).
Mark B:
I don’t disagree with the notion that there can be a moral duty to violate the law. I am questioning whether we, as a deliberative part of a democratic society, are performing our moral obligation to pass good laws. It would be as if we passed a law criminalizng murder, but left it to prosecutors, judges and juries to not convict in cases of self defense. Or left it to governors and presidents to pardon. Obviously, we pass laws recognizing that self defense is a valid form of murder.
I understand that the ticking time bomb scenario is a rarer circumstance than self defense. But it is foreseeable and I would argue that a number of Democratic and Republican policy initiatives partially assume that the scenario is a valid concern.
I think its also worth considering whether the benefits of a given policy on torture on world opinion are nullified when, as I believe McCain has indicated, that the anti-torture laws will be ignored on the basis of necessity.
I don’t pretend to have answers to any of this. I do think if there are such “strong disagreements”:http://nationaljournal.com/taylor.htm about whether waterboarding is torture and Congress believes the answer is important enough to withhold confirmation of an otherwise good Attorney General, Congress should step up to the plate and expressly outlaw waterboarding.
“The value of torture is far eclipsed by waving a stack of 20 dollar bills under the right noses. The hardcore operatives you catch in counter-intel won’t fall for that, the softer support base will.”
So much for the experts who say the biggest problem with the Hard Core Rat Bags is that they don’t take bribes.
Do you really think if its just a matter of dollars we wouldn’t have all the Hard Core Rat Bags in Jail or dead by now.
It is easy to forget that this argument started because the Bush Administration was trying lay down some definitions for its operatives.
I think the question of whether waterboarding constitutes torture is a seperate issue (I believe it is after further research, the _premise_ of the practice is to overcome the gag reflex and put water in the lungs, sounds like torture to me), part of the larger issue if defining torture in general. This should be our priority.
That being said, im not sure how we can even talk about legislating actual torture without a definition. And i’m still deeply opposed to the idea. I respect the difference of opinion on this, but personally i’m more comfortable with an acknowledged ambivalence towards breaking a law in a dramatic situation than the moral consequences of writing torture into law under _any_ circumstance. Like i said, government has an amazing way of getting a yard out of an inch.
Mark, #48
There is no reason to beleive the above is true. No one would throw their career away or risk time in prison if they were CONVINCED it was the only way to stop thousands of people’s imminent deaths? And if they aren’t convinced beyond a doubt, they shouldnt be contemplating it. Thats the point of the ticking timbebomb thought experiment.
There’s no reason to believe that’s true, but there is now every reason to believe we know where career vs millions of lives fall on Mr. Rockford’s priority list.
PD, #49
I’ve never been satisfied with the notion that we can write laws and assume that they will be broken when circumstances justify it. It seems like an abdication of moral responsibility.
Abdication or delegation. Similar, but not the same, and pretty much indistinguishable. But what else to do when faced with a situation so complex, but so important, that a pre-written law simply won’t handle it, and only hind-sight investigation will sort things out? That’s what punting it to the individual courts would do– allow a mechanism of hindsight.
Or put another way, failure to pass a law in this circumstance is not a moral failing, it is a practical failing.
Another thought- legislating could well inject lawyers in the actual decision making process. Just as theyve become involved in target selection for the military (to our everlasting regret at we learned in Afghanistan). We get into an devolvement of responsibility situation- ie if its clearly illegal the person on point either does it or doesnt… if it MIGHT be legal, well heck, the lawyers might as well tell me what they think. I dont think the people on the trigger would intentionally not make a move out of _fear_ of prison in ticking timebomb, but its only human nature to be less dynamic when responsibility is devolved, PARTICULARLY when lawyers are involved.
Or in short- its always easier to get forgiveness than to get permission.
I certainly don’t want more lawyers involved and I do appreciate a certain degree of ambiguity, but not on the definition of torture. I think we can probably define it better without creating a list of acts that fall on either side of the line. Perhaps one way to do it is put waterboarding to the vote. I think waterboarding is on the line and I suspect whatever decision is made about it would greatly clarify where that line was.
I also don’t think we stop at defining torture. I think “Professor Anderson”:http://kennethandersonlawofwar.blogspot.com/2007/11/stuart-taylor-on-waterboarding-and.html#links has it about right:
bq. _one central issue here is the question, raised several years ago on this blog, as to whether there is ever any room for situational ethics in the assessment of what may be done in interrogation. Specifically, I argued a couple of years ago that (a) torture, whatever that was defined to be, is always illegal, all times and all places and all persons, but that (b) coercive interrogation techniques short of torture might be permissible depending upon what you knew about the person under interrogation._
bq. _That is, if you knew for a certainty that you had KSM and knew to a certainty his role, one was entitled to do things to him, still short of torture, that one would not be permitted to do to someone about whom you knew nothing. I argued that as a matter of both consequentialist knowledge and deontological culplability; . . . it depends what you know about the person, the level of reasonably known culpability, and what is at stake prudentially, eg, thousands of lives._
I also think it depends on the environment. I think we should approach interrogation differently depending on whether it happens (1) on the field of battle, (2) in a covert operation in a foreign city, (3) in an in-between detention facility (Gitmo), or (4) in the U.S. I would have (1) controlled by the Army Field Manual and rules of engagement. I fear that we are moving towards a situation in which any involuntary interrogation under (4) would be Unconstitutional.
No, this argument started because the Bush Administration was trying to waive definitions for its operatives.
The White House has a quasi-definition: “If we do it, it isn’t torture.” John Yoo said the President could lawfully order a prisoner to watch his son’s testicles being crushed if the President thought it was necessary. Since torture is illegal and testicle-crushing is legal, we can conclude that under the Bush/Yoo theory of the Imperial Presidency, testicle-crushing is not torture. Our leaders are criminals. Is that so hard for us to understand?
I notice that Senator Kennedy has a bill to define torture, expressly including waterboarding, but its been sitting without any action since August 2, 2007:
(1) Forcing an individual to be naked, perform sexual acts, or pose in a sexual manner.
(2) Placing a hood or sack over the head of an individual, or using or placing duct tape over the eyes of an individual.
(3) Applying a beating, electric shock, burns, or other forms of physical pain to an individual.
(4) Subjecting an individual to the procedure known as “waterboarding”.
(5) Subjecting an individual to threats or at
tack from a military working dog.
(6) Inducing hypothermia or heat injury in an
individual.
(7) Conducting a mock execution of an individual.
(8) Depriving an individual of necessary food,
water, or medical care.
“S. 1943”:http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s1943is.txt.pdf
I’m not sure what the problem is with hoods. I might quible with the language here and there, but overall I think this is superior to the McCain version, assuming we are all willing to accept the consequences. Some of these things don’t even sound like interrogatin techniques at all and some of these (like food deprivation) would not seem to have anything to do with a ticking timebomb scenario.
_It would be as if we passed a law criminalizng murder, but left it to prosecutors, judges and juries to not convict in cases of self defense. Or left it to governors and presidents to pardon. Obviously, we pass laws recognizing that self defense is a valid form of murder._
That might be a useful analogy.
So, we don’t simply allow murder in self-defense. “Your Honor, it’s true I killed a little old lady in a wheelchair. But I thought she had a sawed-off shotgun in her lap. I thought she was a crazed murdering little old lady in a wheelchair who was about to murder me at random. I had no choice but to kill her first. It was self-defense.”
No, innocence by self-defense only works when they’re actually trying to kill you. And I understand some states require further that you take all reasonable steps to avoid the dilemma first. Like, if you know he’s after you and you have a workable way to leave the scene rather that wait for him to try to kill you so you can kill him, and you don’t leave, then it’s partly your responsibility.
So how about this for a torture law — you can do whatever you want to a suspect, including coercive techniques that maim or kill him, provided you get results that convince a jury that it was worth it.
The jury looks at the tape showing the interrogation and the prisoner’s death. They note the info he reveals, and the evidence that it was true, and how important it was. You truly stopped a nuke from going off in NYC, and here’s the nuke? No problem. Torture defending the USA.
But if the jury of your civilian peers doesn’t see that your results were worth what you did, then it’s illegal torture and you’re 100% liable.
It isn’t enough to torture with good intentions, you actually have to torture the right people and get the right results.
People who want it to be “legal” seem usually to want it to be legal no matter what. That looks to me like it’s just begging for abuse.
“Here’s the score, Missy. I’m going to torture your father to the point of death unless you’re _very cooperative_.”
“But my daddy isn’t any kind of terrorist!”
“I say there’s a suspicion he is, and that gives me the right to torture him. So the deal is, if you do _everything I say_, enthusiasticly, for the next six months I’ll go real easy on your daddy. Now get that bra off so I can see whether you’re worth dickering with.”
No. Do it more like self-defense. If a jury of random civilians sees the clear value of your results, it’s legal. Otherwise not.
I _really_ dislike the idea that torture produced evidence can ever see the light of day in a courtroom, under any circumstance. I don’t like the idea that torture can ever be legal, under any circumstance- particularly with the caveat that if your reason is good enough (however you want to determine it after the fact) its wasn’t illegal at all.
If you want to torture you should recognize that you are committing a major felony, and accept that as the price for saving lives. If you turn out to be correct (or at least have just cause) you will be pardoned, which critically does not infer a crime never occurred. Or failing that you could hope for jury nullification (if you are a civilian anyway).
Its a terrible thing, but is it any worse than asking our nuclear missile commanders to become genocidal murderers upon orders? I think the best argument is that if you have to do something really terrible but you believe its for the greater good, you must also accept that it will have a high price. Part of that greater good is the knowledge that our society must never accept what you are about to do, and can only forgive it in retrospect, but never set the precident of allowing it within the law.
Mark, I understand that you don’t like the idea of torture ever being legal.
But what about the guys on the other side, the ones who want it legal. Would they settle for it being legal when you’re right, and very much illegal when you’re wrong? Or does it have to be legal all the time?
_If a jury of random civilians sees the clear value of your results, it’s legal. Otherwise not._
I’m not sure that is a rule at all, or if it is, its called ends justify the means. I don’t believe ends always justify the means. Prior to the 1930s, the Supreme Court wouldn’t bat an eye if a tortured confession was read to a jury if the evidence otherwise indicated guilt. The implication of such a view extends beyond the people in the courtroom, and was particularly harsh on undesirables. The decision to exclude such confessions was not pragmatic, but it did have pragmatic implications. Policing required more “detection” and the usual suspects became at least slightly more prone to assist the police. I think it’s a gross exaggeration to extend these principles to foreign domains, but not irrelevant. If we similarly decide that we are going to restrict our interrogation practices, then we will need to develop new, more effective ways of destroying our enemies.
#62 from PD Shaw: “If we similarly decide that we are going to restrict our interrogation practices, then we will need to develop new, more effective ways of destroying our enemies.”
That doesn’t solve the problem unless the new, more effective methods are simple alternatives to the contraindicated practices (that is, it will always be A or B and not A and B), and unless the superior new alternatives, of which there is no sign, do fit our values.
I suggest it’s much more likely we have a tradeoff. If we back off of effective methods because of our values, the jihadists will do better, resulting in higher military and civilian casualties and costs.
I’ve said above what I think the appropriate trade-off is.
“If a jury of random civilians sees the clear value of your results, it’s legal. Otherwise not.”
_I’m not sure that is a rule at all, or if it is, its called ends justify the means._
Yes, of course. That’s what we’re talking about here.
One approach is to have torture always illegal, and if you see that it has to be done then you do it anyway and take the consequences, whigh might be mild if the President or the public or whoever sees how necessary it was. But you might get harshly punished.
My second proposal is just the same except we call it by different names. We say it’s OK when it’s absolutely needed, and you get the chance at your trial to establish that it was absolutely needed.
The third proposal I’ve almost-heard is that since it’s absolutely necessary it should be legal and there should be no penalties whatsoever for soldiers or CIA agents or FBI agents etc who torture people — whether or not they have the right suspects and whether or not they actually get anything useful. I’m not sure this is the proposal, I haven’t noticed anybody say it explicitly. They just say it’s necessary so it ought to be legal without mentioning the messy details.
Does anybody have a fourth suggestion?
How should the law work about this?
Alan Dershowitz says: get a warrant.
Whatever we decide to apply to foriegners will eventually be applied to an American like Padilla that is clearly a traitor. And from there on its anybody guess. We can tap dance around that elephant as much as we want, but historically speaking thats how governments behave, they expand the scope of their power.
This was a very good post, AL, and most of the comments are insightful and thoughtful.
My 2 cents, 1. The slippery slope argument must be addressed. 2. Once torture is institutionalized the enemy will engage in counter intel designed to defeat the tactic; example: provide some expendable flunky operative disinformation that he believes is real, set him up to be captured and tortured. While the “time bomb” is “ticking” we will be chasing down the wild goose of his torture extracted leads. 3. Our way of life is an adherance to an ideal. Death before dishonor (of the ideal). We don’t torture. We are civilized and we respect due process and human rights and dignity. 4. Torture won’t work on our worst enemies. Christians and lions come to mind.
P.S.; Pitty the admistration you refuse to critize doesn’t feel as you do and as many here do. Why not? What are they really all about?
“This was a very good post, AL, and most of the comments are insightful and thoughtful.”
Except the ones you disagree with.
_”What are they really all about?”_
I thought we’d already established that. Evil. Unabashed evil. Bush and Cheney watch videos of random brown people being waterboarded every Friday night. All the negatives you’ve pointed to in torture are positives to the admininstration- particularly chasing down wild geese. Because they enjoy it when Americans die and America becomes weaker.
Thats what you wanted to hear right? Lets take it as a given in your head and move on.
Mark Buehner and I have our annual agreement: comment 66 is dead on.
Happy anniversary AJL.
I may have the solution to all of this. What we need now is former candidate for Governor or Minnesota, Jonathan ‘The Impaler’ Sharkey.
Here is a presidential contender I can get behind.
“This”:http://www.upi.com/NewsTrack/Quirks/2006/01/31/vampire_candidate_arrested_on_ind_charges/8301/ should explain everything
_”As governor,” Sharkey said, “terrorists and criminals *will live in fear of me,* while the people of this state will be able to live fear free.”_
(Emphasis mine)
_”Any Terrorist who is caught in Minnesota while I am Governor, will find out what the true meaning of my nickname ‘The Impaler’ means. Right in front of our State Capital. Then Fed’s can take the terrorist’s body from the impaling stake.”_
The upside of having a vampire torture your terrorists is obvious- he’s not human, and therefore human rights dont apply.