The torture debate: Just say no

Some would say that the very title of this post indicates the depravity to which our country has sunk: are we seriously, in 2005, discussing whether it’s all right for us to sanction torture of prisoners?

Others would say that it’s a post-9/11 world, and desperate times demand desperate measures.

“Thou shalt not torture” should be, in my opinion, about as close as there is to a moral absolute. I agree with Andrew Sullivan when he writes:

I draw the line at cruel, inhuman and degrading treatment of people who are defenseless. And I draw the line at conflating the guilty with the innocent. Right now, we are crossing both lines – and severely damaging our cause because of it.

Admittedly, the prohibition on “degrading” treatment (contained in the Senate anti-torture bill sponsored by John McCain) could be construed broadly so as to prohibit even psychological techniques that do not cause physical pain. Perhaps that part of the bill needs some fine-tuning and clarification. But it simply won’t do to say that “we do not torture,” and then to say, in the next breath, that we can’t ban torture because it would tie our hands in extracting information.

A few things to ponder. First, torture reduces a human being (the one being tortured) to a subhuman level, when his existence is defined entirely by physical pain and suffering. Second, it degrades the torturer accordingly; and it creates the very real danger that at least some of the torturers will enjoy it, particularly if they have been primed to see the one being tortured as an evil person getting his just deserts. Never underestimate the dark corners in the human soul.

There is, of course, the classic “but what if we’ve captured a terrorist who knows the location of a nuclear bomb set to go off in a major city in 24 hours” scenario.

Kevin Drum deals with that. So does Stephen Green (Vodkapundit). Both essentially come to the same conclusion, summed up by Green:

A) That’s unlikely as hell. B) Torture still might not get us any usefull information. C) If it somehow did, then there’s probably not a DA who would indict our torturer, and there’s certainly no jury that would convict.

I should note that (C) seems to invalidate the anti-torture argument, since it implies that it’s sort of okay to torture sometimes, and to get away with it. In practice, though, the deterrent would still exist, since any would-be torturer would know that if the torture doesn’t reveal any useful information, he (or she) is in major trouble.

By the way, let’s not forget what a “ticking time bomb” exemption would likely mean in practice. Let’s say that we do know that there’s a nuclear device planted in a major American city. How likely is it that in the panic, some innocent guy — maybe more than one — would get grabbed and tortured by mistake? And how likely is it that the list of acceptable circumstances for torture would broaden to include less extreme scenarios?

Also, let’s not forget that none of the prisoner abuse allegations so far has involved this kind of scenario. In fact, there’s absolutely no evidence that the “coercive interrogation” techniques some defend have produced any useful information at all.

And yet we have people defending torture; some openly, such a few commenters on Stephen Green’s thread, and some euphemistically such as the Wall Street Journal editorial page, which prefers to speak of “aggressive interrogations.” The Journal‘s editors would have us believe that such things as exposure to extreme heat or extreme cold, or even “waterboarding” (which induces a drowning sensation) are not really physical torture but “psychological techniques designed to break a detainee.”

Paradoxically, I think that for some people in what one might call the anti-anti-torture faction, this is a moral issue rather than a pragmatic one. They’re offended by what a few of Stephen Green’s commenters call “moral preening” on the part of those denouncing torture. They think the absolutist opposition to torture comes from weaklings who don’t have the fortitude to do what needs to be done, and who would rather allow a lot of innocents to die than dirty their hands (not literally, but by having nasty things done in their name).

In an excellent column at reason.com, Julian Sanchez makes an interesting point:

Even if we believe torture—or, if you prefer, “aggressive interrogation” that occasionally leaves the suspect a habeas corpse—is likely to produce useful intelligence rather than whatever story the questioner wants to hear; even if we believe that it is only ever used against the most vile; there is something odd about the rhetorical frame in which torture apologists operate. Implicit in many of their arguments is the notion that there’s something contemptibly fainthearted about those who want to hew to the principles of basic decency fit for a nation that styles itself primus inter pares of the world’s liberal democracies, even if foreswearing the most brutal tactics means accepting some additional risks. The apex of resolute manliness, on the other hand, consists in begging the government to dilute traditional liberties at home and ape our enemies’ barbarism abroad, if only we might feel a bit safer.

That said, some liberals probably exaggerate the extent to which the torture scandals are contributing to anti-American sentiment in the Arab and Muslim world. If the Abu Grahib debacle did not exist, the America-haters would no doubt have invented it. And I think that The Washington Post‘s Richard Cohen fails to appreciate the irony when his Jordanian driver Bassam tells him how appalled he is by the abuse and degradation of Muslims at Abu Grahib and Guantanamo: far worse abuses, after all, are common under most Arab regimes. (Was Bassam equally appalled by Saddam Hussein’s atrocities?)

But while that should be an issue for Bassam, it should not be an issue for us. “We’re not as bad as Saddam Hussein” is hardly a standard to measure ourselves by.

Saying no to torture probably won’t make America-bashers love us any more. But it will certainl make things easier for America’s supporters around the world. And besides, this isn’t about being loved by our enemies or even our friends; it’s about respecting ourselves.

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17 Comments

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17 responses to “The torture debate: Just say no

  1. Mark B.

    Great post,Cathy! For my part, I don’t give a damn how “good” or “bad” we look to others – I just know that I don’t want to live in a country that thinks that torturing people they don’t like is OK. The people who justify torturing suspected terrorists or “sympathisers” are quite likely the sort of people who will justify using the same approach on me if I get in their way.

    One question for the pro-torture crowd – why is it that when the North Vietnamese used a lot of the same techniques on US POWs, it was torture, but when we use them on our adversaries, it’s “aggressive interrogation?”

  2. Revenant

    Hm. My point of view is that torturing somebody isn’t nearly as bad as killing them.

    We have the legal and, in my opinion, moral right to execute anyone we capture in the act of waging a terrorist war against us — e.g., fighting out of uniform and hiding among civilians. So in my opinion we have the right to torture them instead, if we decide that that is the more utilitarian use to put them to.

    The arguments against pursuing that course of action are, it seems to me, pragmatic ones rather than moral ones. People, for whatever reason, more readily accept “I shot a terrorist” than “I tortured a terrorist”. Torture therefore has a substantially negative public relations impact, if it is used. We should therefore refrain from using it in all but extreme cases.

  3. Dean

    We have the legal and, in my opinion, moral right to execute anyone we capture in the act of waging a terrorist war against us — e.g., fighting out of uniform and hiding among civilians. So in my opinion we have the right to torture them instead, if we decide that that is the more utilitarian use to put them to.

    At the peril of invoking Godwin, you know who else in recent memory employed this sort of tactic, don’t you? The two most prominent that I can think of are Nazi Germany and Stalinist Russia. By your argument, the Nazis were morally right to torture and kill thousands of people suspected of being French resistance or Yugoslav or Russian partisans.

    I find such an argument violently repellent.

    The United States is not like Nazi Germany, true. But it is more like Nazi Germany now than it was five years ago. And that should disturb you.

  4. Revenant

    At the peril of invoking Godwin, you know who else in recent memory employed this sort of tactic, don’t you?

    France. :)

  5. Revenant

    Sorry, you deserve a more substantial response.

    The tactics you ascribe to the Nazis and Stalinists were actually pretty common at the time (not that that makes them any better, of course). The Brits used them on the Irish, for example. The Nazis and Stalinists differed primarily in the *scale* on which they carried out the acts. Where the Brits tortured, say, hundreds, and killed dozens, the Nazis tortured and killed millions.

    The second point I’d like to make is that I was referring to the torture of known, not suspected, terrorists. I don’t think we ought to round up lots of Arabs and beat them silly on the off chance that one of them knows something (and I don’t think we’ve been doing that either). But if we catch a guy with an AK-47 and a bag of pipe bombs, that’s something else entirely.

    Thirdly, the reasons for which something is done matter. Everyone who is not a complete pacifist agrees on that point, because any war involves killing a lot of people (something which would, in normal circumstances, be horribly wrong). Let’s say terrorists attack our forces and then retreat into a civilian population. Would it be right of us to pursue, knowing that civilians will probably die in the process? I think the answer is “yes”. Now suppose we caught one of the terrorists during their attack. Would it be moral to torture him in order to force him to reveal where his friends have gone? I think that the answer has to be “yes” as well — doing so lowers the risk of loss of innocent life and increases the chances of defeating the terrorists.

    The Nazis and Soviets tortured people in the service of a greater evil. I am arguing that there are cases for which it is acceptable to do it for a greater *good*. And yes, I know the Nazis and Soviets thought they were serving a good purpose too (or at least said they did). But I feel comfortable saying that a peaceful, terrorist-free democracy is Good and a totalitarian police state (peaceful or not) is Evil, and I doubt anyone here seriously disagrees with that.

  6. Rainsborough

    It’s naive to suppose that a country can embrace a POLICY of torture when necessary without seriously jeopardizing its status as a liberal democracy. Thousands of men and women must be trained in the infliction of pain. It will be easy (as we know from what we’ve already done) to cross the line from torture intended to extract information to torture intended to avenge and pour encourager les autres. Yet all this must kept behind closed doors, hence legislative and judicial checks, as well as ordinary bureaucratic-executive-branch legalities are forgotten and behind closed doors, without accountability, princes of darkness do whatever they deem necessary. It isn’t possible to torture in a small or limited away, any more than it’s possible to implant a cancer in the body and confine it to one spot.
    It’s not surprising, then, that the hypocrisy of which the U.S. now stands accused, and the enormity of its crimes (three dozen known dead at the hands of Cheney’s minions, thousands of victims, acknowledged innocents still confined, laws twisted beyond recognition, habeas corpus–the core of the rule of law–in shreds) –it isn’t surprising that the United States is now reviled more widely and intensely than before.
    Don’t think of those already disposed against us and in thrall to a benighted religious outlook. Think of those educated to appreciate the ideals of humanity and reason that are laid out in the preamble to the Constitution and the First, Fourth, Fifth, Sixth, –and Eighth–Amendments, that were exemplified when Washington at Trenton sternly ordered his men not to mistreat their prisoners. Think of that, then think how all this–the dearest part of our patrimony– has been traduced by Cheney’s embrace of the necessity of torture and the creation of netherworld beyond publicity and legality it has already created, a world where (as Durbin rightly said) the victims cannot be differentiated from those of the Nazis. Think how hollow it sounds when we admonish the Badr gang for the mistreatment they subject their prisoners to. But think first of the Muslim who would defend what is finest in his religious tradition, who has read Kant and Beccaria, who had thought that America could be relied to stand at his side in upholding the essential principles of humanity, that America breathed life into phrases like “the dignity of man.” Think then how demoralized and disarmed he must feel when in dispute with his Islamist opponent, and that opponent points to something dredged up from Cheney’s netherworld.
    But then what we have done to our friends abroad is as nothing to what we have done to ourselves. Imagine ourselves in conversation in Cairo or Amman or Baghdad, and think what we cannot deny was done, and done in our name. It’s not only that we can’t help our friends, it’s that we must as Americans acknowledge our own shame at what has become of us.

  7. Revenant

    the enormity of its crimes (three dozen known dead at the hands of Cheney’s minions, thousands of victims, acknowledged innocents still confined, laws twisted beyond recognition, habeas corpus–the core of the rule of law–in shreds)

    Crimes? If the three dozen were, in fact, terrorists, then the appropriate term is “a nice start”, not “an enormous crime”. It is only a crime if they were noncombatants.

    Let’s be very clear on something: under international law and the laws of war, people caught waging war out of uniform are entitled to a hearing before a military tribunal — nothing more. If it is determined that they were in fact guilty of waging war in this manner, they may be shot.

    They have no right to a trial. They have no right to be treated as prisoners of war. If we catch someone fighting while dressed as a civilian and respond by throwing them into a cell for the duration of the war, we are treating them in a manner which is far kinder and more humane than that to which they have any moral or legal right. What they have a moral and legal right to is a short hearing before US Army officers, followed by a bullet in the head.

    So enough about “habeas corpus”. Habeus corpus does not apply to war and never has. The only people entitled to it, in this conflict, are US citizens captured within the United States of America. The grand total of such people captured and jailed to date is two, both of whom have received hearings in court.

  8. Rainsborough

    It’s well established, a centerpiece of the law of war, that captured personnel are to be treated humanely. The United States, until the Cheney crew took over, was a cheerleader for this provision, as are most professional military men, for obvious reasons.
    Its rationale is compelling: once they are captive, enemy personnel are not a source of harm to our troops, hence the occasion for killing them is removed.
    If they are to be killed, it’s first necessary –or was regarded as necessary, till lately–to give them a fair hearing, that is, the provide sufficient reason to support the conclusion that they have committed an offense that requires the punishment of death.
    Consider one fairly well documented death in detention, that of General Mowhoush at the hands of interrogators at a base on the Iraq-Syria border.
    General Mowhoush was not exactly a detainee. He voluntarily walked into to a Forward Operating Base hoping to negotiate the release of his sons. He was then himself detained and interrogated
    At first, Mowhoush was somewhat cooperative. Orders were issued that the gloves be taken off. After several hours of a private session, where the gloves weren’t on, he was put in a “stress position” that caused other detainees to look on “with heads bowed and solemn looks on their faces.” Mowhoush then told his captors he had been humiliated and ceased to be cooperative.
    At the end, General Mowhoush was stuffed in a sleeping bag, wrapped in electric cord, and pummeled to death. It’s true that the officers in charge thought that such treatment had been authorized by those to whom they reported, who in turn thought it had been authorized in Washington–as it had been (the abstract terms in their memos did in fact encompass what was done on the Syrian border outpost), though the officials there would honestly say they didn’t have in mind what was done to Mowhoush. But those on these on the scene apparently don’t agree with Revenant that they might as well have put a bullet through Mowhoush’s head and put out a press release as to what they’d done. Instead, one account reports, “military officials issued a news release stating that the prisoner had died of natural causes after complaining of feeling sick.”
    As I understand reveant’s preferred policy, it is to designate certain persons as fitting into a category such that they can be appropriately be given summary justice and then executed, or, if those who have detained them so determine, can be subjected to kinder treatment–torture of whatever variety those in control of the detainee decide upon.
    Among the questions this proposal raises: is mere summary justice good enough when those who are found guilty are to be subject to cruel, inhumane and degrading treatment and to instant execution? If the punishment is of this magnitude, wouldn’t one want to take extraordinary care to ensure that those subjected to it are guilty?
    Guilty of what? Just what crimes are to make the detainee liable to this extreme treatment?
    What’s the point? Is to extract information about future acts? Is to punish for previous offenses?
    Who’s to do the mistreating? Under what authority? What special training are they to receive?
    I find it appalling that we now have a president who says we don’t torture and that even many of his defenders know that this isn’t so and so reach for excuses for torture. I think it not quaint at all, but a political and diplomatic imperative, essential to the security of the nation, that America once more look to be a nation that can be relied upon to stand for principles of decency and humanity, to whose tender mercies the helpless and defenseless would always turn first. I also think we would all do well to remember that under any reasonable and defensible understanding of elementary morality, justifications for doing harm to others are hard to come by. And that the first rule of civilization is to permit such harm only under color of law.
    It is appalling beyond measure that the leader of the free world now not only thinks but instigates the unthinkable.

  9. Revenant

    It’s well established, a centerpiece of the law of war, that captured personnel are to be treated humanely.

    It is a centerpiece of the law of war that captured SOLDIERS are to be treated humanely. It is well-established that a person caught fighting against you while disguised as a civilian is subject to execution.

    To the best of my knowledge, the Iraqi soldiers we caught were accorded prisoner of war status and treated accordingly. The people we have held as illegal combatants are being held thus because they are illegal combatants. This is not a new category; what is new is the part where we don’t execute them for their crimes.

    Its rationale is compelling: once they are captive, enemy personnel are not a source of harm to our troops, hence the occasion for killing them is removed.

    You’ve almost got it, actually. The rationale for granting protection to people who fight according to the laws of war — e.g., in uniform, without using civilians as cover, against an enemy army — is to encourage people to fight under those conditions. If we treat terrorists and war criminals the same as we treat enemy soldiers, what reason do enemy soldiers have for not acting like terrorists and war criminals? You need both the carrot and the stick, not just indiscriminately-distributed carrots.

  10. Rainsborough

    Common Article 3 of the Geneva Convention of 1949 reads in part:
    In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

    (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘ hors de combat ‘ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
    To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

    (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

    (b) taking of hostages;

    (c) outrages upon personal dignity, in particular humiliating and degrading treatment;

    (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

    (2) The wounded and sick shall be collected and cared for.

    The United States is also party to the Torture Convention.

    I might note that General Mowhoush was not found guilty of anything by any lawful body. He certainly was not caught killing American soldiers while dressed as a civilian.
    Some of our detainees have been discovered (by means of what habeas corpus proceedings are still permitted under American law) to have been found innocent. Yet they are still detained.
    It’s agreed, I believe, that most of those picked up in sweeps in Iraq are not guilty of any offense, but are only suspect because of their sex, age and place of residence.
    Is it good policy–assuming it were permitted under international and domestic law–for the United States to torture and kill all illegal combatants? If so, just how do we define this category? And how we to go about ascertaining that a detainee qualifies for this status? Is to treat another human being with a modicum of decency to offer him a carrot?

  11. Cathy Young

    Let’s not forget that a lot of the people in U.S. custody in Iraq, at least, are not terrorists or insurgents; the estimates of how many of them are wrongfully arrested are quite high.

  12. Rainsborough

    “Perfidy,” “feigning of civilian, non-combatant status,” is a prohibited act–a war crime–in international law. No penalty is prescribed.
    There must be due process, as Common Article 3(d) of the 1949 Conventions forbids “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

    As to the question whether non-POWs are protected:

    Article 75 of Additional Protocol I (1977):

    1. In so far as they are affected by a situation referred to in Article 1 of this Protocol (including international armed conflicts and “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination”), persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. …

  13. bearblue

    What I don’t understand is why they are keeping the folks that, via military tribunal, have been found innocent.

    These people should have been immediately removed from the regular prisoner population at the very least. And then sent home (even if inconvenient for us) on the ASAP.

  14. Cathy Young

    bearblue — agreed. That is a very disturbing aspect of what’s going on.

  15. Revenant

    Rainsbourough,

    Captured insurgents are not noncombatants, nor are they soldiers who have laid down their arms. They are therefore not covered by Article 3. And the court referred to is, in our system, a military tribunal; our courts have upheld this.

    Article 75 is not relevant, as the insurgents do not meet any of the listed criteria.

  16. Anonymous

    (Was Bassam equally appalled by Saddam Hussein’s atrocities?)

    The difference, I think, is that Saddam was known to be an appalling person, whereas the U.S. wishes to be thought of as a force of liberation and freedom. Finding out that one’s “liberators” differ only in degree undermines moral authority. If innocents are going to be tortured, sure, a difference in degree matters, but it isn’t exactly something to jump for joy over.

  17. Steven

    I’m anti-anti-torture because of all the non-torture — say, “fake menstrual blood”, one obsession of Andrew Sullivan’s — that gets lumped in. “Threatening” somebody with a harmless fluid with the claim that it is another harmless fluid is not torture. And as long as the anti-torture advocates claim that clearly non-torture actions are torture, I cannot come to any other conclusion that they don’t actually care about real torture. They are just weilding a convenient cudgel to attack the United States, the war, or the Bush Administration, and I do not trust that they care about any secondary consequences of their attacks enough to trust their policy recommendations.

    This does not mean I endorse torture; it merely means I am not willing to follow the policy recommendations of those who are claiming to oppose it.

    As far as unlawful combatants:

    U.S. law, binding international law and precedent of three hundred years, and consistent American precedent from the American Revolution to present is: If you are caught in a war zone, in arms and not in uniform (with one minor exception), you are subject to summary execution at the convenience of the capturing power. No trial, no appeal, no recourse to the law, whether you are called a “saboteur”, a “franc-tireur”, or an “unlawful combatant”. All you get is a hearing, in front of military officers and without recourse to counsel, to decide if you actually were caught in arms out of uniform in a war zone.

    The United States is specifically not a party to the 1975 Additional Protocols to the Geneva Conventions; we rejected them. They are accordingly utterly irrelevant.

    Now, General Mowhoush was not subject to summary execution under international law; his rights as a POW were violated.

    Furthermore, it does not mean I endorse torture of these unlawful combatants. But all they are entitled to is a firing squad or a stout hemp rope, not habeas corpus.

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