Daily Archives: November 30, 2005

More from the "anti-anti-torture" camp

I fully agree with John Cole: this is an outrage. Some in the “anti-anti-torture” contingent are using the fact that John McCain broke under torture when held captive by the North Vietnamese to rebut McCain’s own anti-torture argument — ostensibly as a demonstration that “torture works,” but also, I suspect, to subtly impugn the Senator’s character. Either way, it’s repulsive, and as Cole rightly points out, it’s also nonsensical: what McCain gave his captors was some totally useless information (e.g. the name of the ship he had served on) and a signed “confession” to war crimes.

As Cole says, more colorfully than I would:

People like the author of this piece, Carl Limbacher, should be put in a small room and beaten with a cane and waterboarded until they confess to being unmitigated assholes. This isn’t a defense of torture for use in extreme cases (the ‘ticking time bomb’ scenario)- this is a call for legalized sadism and brutality.

Or, as Andrew Sullivan says:

Just when you think the pro-torture right cannot sink any lower, they do.

Indeed. The torture debate is having a seriously degrading effect on the moral caliber of discourse among War on Terror supporters (of whom I count myself as one). It’s not doing much for the intellectual caliber of discourse, either. Even the eminent Thomas Sowell lapses into cliché, asking:

If a captured terrorist knows where a nuclear bomb has been planted in some American city, and when it is timed to go off, are millions of Americans to be allowed to be incinerated because we have become too squeamish to get that information out of him by whatever means are necessary? What a price to pay for moral exhibitionism or political grandstanding!

Sorry, but I think that trotting out the extremely improbable “ticking time bomb” scenario comes awfully close to “grandstanding,” too.

Charles Krauthammer, meanwhile, has a more thoughtful and nuanced article on the topic in The Weekly Standard. He agrees that “torture is a terrible and monstrous thing, as degrading and morally corrupting to those who practice it as any conceivable human activity,” but he also argues that some forms of this monstrous activity must remain permissible in extreme circumstances, and that our leaders must take this burden on their conscience in order to save lives. He outlines two exceptions: the “ticking time bomb” scenario, and the high-value, high-level terrorist who possesses a treasure trove of information about the terror network and the plots it’s gestating.

Unlike others in the anti-anti-torture camp, Krauthammer gives a specific example of a case in which torture “worked” and could have saved a life:

In 1994, 19-year-old Israeli corporal Nachshon Waxman was kidnapped by Palestinian terrorists. The Israelis captured the driver of the car used in the kidnapping and tortured him in order to find where Waxman was being held. Yitzhak Rabin, prime minister and peacemaker, admitted that they tortured him in a way that went even beyond the ’87 guidelines for “coercive interrogation” later struck down by the Israeli Supreme Court as too harsh. The driver talked. His information was accurate. The Israelis found Waxman. “If we’d been so careful to follow the [’87] Landau Commission [which allowed coercive interrogation],” explained Rabin, “we would never have found out where Waxman was being held.”

This is the kind of scenario that must be contended with when we argue about the absolute impermissibility of torture. (Though the eventual outcome — Waxman was killed by his Hamas captors during the rescue attempt, as was an Israeli officer — does, I think, raise more questions than Krauthammer allows. Could a subtler, less aggressive approach, such as using informants and surveillance, have resulted in a more effective rescue?) What would we want done in such a situation?

But Krauthammer’s argument, I think, has several weaknesses.

(1) In my opinion, he greatly overestimates the plausibility of the “ticking time bomb” scenario:

Sure, the (nuclear) scale is hypothetical, but in the age of the car- and suicide- bomber, terrorists are often captured who have just set a car bomb to go off or sent a suicide bomber out to a coffee shop, and you only have minutes to find out where the attack is to take place. This “hypothetical” is common enough that the Israelis have a term for precisely that situation: the ticking timebomb problem.

But Krauthammer gives no examples in which the Iraelis were able to defuse the “ticking time bomb” by using torture or “phsyical coercion.” It seems to me that if the attack is to take place withint minutes, coercive or painful methods will be particularly useless: the captured terrorist will tell the interrogators a fake story (possibly pre-planned in the event of capture), and by the time they realize they’ve been duped the bomb will have gone off.

(2) Accepting what Krauthammer calls “torture-lite” (presumably exposure to heat and cold, perhaps even waterboarding) in order to garner life-saving information raises a disturbing question: what if the “lite” version isn’t enough to break the detainee, and he still possesses highly valuable information? What then? Do we start pulling fingernails and administering electric shocks to genitals? Where on the slippery slope do we stop?

(3) Krauthammer criticizes McCain for citing Israel as an example of how one can fight terror without resorting to any degree of torture (physical coercion in interrogations was formally banned by the Israeli Supreme Court in 1999). In fact, he argues, since the start of the second Palestinian uprising in Israel, coercive tactics toward detaines have been commonly used under the radar, with widespread acceptance from the public. In this, Krauthammer relies on a June 2004 Washington Post article by Glenn Frankel. But the article demonstrates two things:

(a) While interrogations have become harsher since the start of the uprising, there has been no return to pre-1999 techniques that included physical abuse and borderline torture; today, Israeli interrogators rely primarily on psychological pressure and manipulation (including sleep deprivation).

(b) Allegations of physical abuse toward detainees in Israel in recent years — at least the ones mentioned in the article — involve abuse by soldiers, not interrogators (which, elsewhere in the article, Krauthammer himself says should never be permitted). The allegations, if true, are highly troubling, and suggest that acceptance of abuse “for a good cause” is likely to create a climate that fosters abuse with no tactical or information-gathering purposes.

4. Krauthammer opens his article by saying:

During the last few weeks in Washington the pieties about torture have lain so thick in the air that it has been impossible to have a reasoned discussion. The McCain amendment that would ban “cruel, inhuman, or degrading” treatment of any prisoner by any agent of the United States sailed through the Senate by a vote of 90-9. The Washington establishment remains stunned that nine such retrograde, morally inert persons–let alone senators–could be found in this noble capital.

Now, John McCain has great moral authority on this issue… His position deserves respect. But that does not mean, as seems to be the assumption in Washington today, that a critical analysis of his “no torture, ever” policy is beyond the pale.

Toward the end of the article, however, Krauthammer turns around and discovers a great irony: McCain’s position is not really “no torture, ever.”

According to Newsweek, in the ticking time bomb case McCain says that the president should disobey the very law that McCain seeks to pass–under the justification that “you do what you have to do. But you take responsibility for it.” But if torturing the ticking time bomb suspect is “what you have to do,” then why has McCain been going around arguing that such things must never be done?

As for exception number two, the high-level terrorist with slow-fuse information, Stuart Taylor, the superb legal correspondent for National Journal, argues that with appropriate legal interpretation, the “cruel, inhuman, or degrading” standard, “though vague, is said by experts to codify . . . the commonsense principle that the toughness of interrogation techniques should be calibrated to the importance and urgency of the information likely to be obtained.” … Or as Evan Thomas and Michael Hirsh put it in the Newsweek report on McCain and torture, the McCain standard would “presumably allow for a sliding scale” of torture or torture-lite or other coercive techniques, thus permitting “for a very small percentage–those High Value Targets like Khalid Sheikh Mohammed–some pretty rough treatment.”

But if that is the case, then McCain embraces the same exceptions I do, but prefers to pretend he does not. If that is the case, then his much-touted and endlessly repeated absolutism on inhumane treatment is merely for show. If that is the case, then the moral preening and the phony arguments can stop now, and we can all agree that in this real world of astonishingly murderous enemies, in two very circumscribed circumstances, we must all be prepared to torture.

All right, so maybe McCain makes his position sound more absolutist than it really is. Maybe a “no torture, ever” stance makes for a better sales pitch, and for nobler rhetoric, than “no torture, ever, except for some very rough treatment in some very extreme circumstances.” I can see why a real anti-torture purist would have a problem with that, but why does Charles Krauthammer? His article is titled, “The Truth About Torture: It’s time to be honest about doing terrible things.” But what — again, from Krauthammer’s point of view — do we have to gain from being honest? (And could this insistence on absolute honesty be a form of “moral preening,” too?)

I am more strongly opposed to torture than Krauthammer; but I am also enough of a realist to recognize that a firm “no torture” stand is likely to be qualified with some tacit acknowledgment that, under some strictly defined circumstances, some unpleasant things will happen under the radar. I find that vastly preferable to starting with the admission that “we must all be prepared to torture.” If we start with a “thou shalt not torture” moral absolute, we are likely to be extremely vigilant about lapses from this commandment, limiting them only to absolute necessity. If we start with the idea that torture is sometimes acceptable, that slippery slope is going to take us pretty low.

And finally, two more questions.

1. Does Krauthammer support or oppose the McCain legislation?

2. If, as Krauthammer apparently concludes, the McCain legislation would generally outlaw detainee abuse without completely tying our hands with regard to “coercive interrogation” in extreme circumstances, then what excuse did nine senators have to vote against it? And why shouldn’t we regard the Pro-Torture Nine as “morally inert” — or, to use John Cole’s phrase once again, as “moral cretins”?

More: Ramesh Ponnuru makes another excellent point at The Corner. If we adopt the position that torturing a terrorist in the hope of saving a city from nuclear destruction is okay, what’s to stop us from using the same moral calculus to justify torturing an innocent person? Responding to the argument that the torture of an innocent could never conceivably be required, Ponnuru points out: “But it is not at all hard to imagine guilty parties who would not break under torture but would break under the threat of someone else’s torture. This kind of scenario is not exactly unknown to the history of torture.” Are we prepared to achieve our objectives by using “coercive” techniques on a terrorist’s child?

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Retribution and "just deserts"

In a comment on my post about retribution and morality (in response to his own earlier post), Mark Kleiman draws a distinction between “retribution” and “just deserts”:

“Just deserts” is offender-focused: What ought this person to suffer? The extreme version of this is Kant’s, who says that the offender is owed punishment and that it would be unjust to the offender to forgo it. …

Retribution, by contrast, is victim-focused. Retributive punishment is a public demonstration that what was done to the victim was wrong, and that the victim was worth avenging. …

One function of public justice is to displace private vengeance, which is by its nature capricious, likely to misfire, and capable of producing a Hatfield-and-McCoy spiral. But if public justice is to displace private vengeance, then public justice must be done. If Pinochet’s victims and their families are to be asked to refrain from hiring private thugs to smash his kneecaps, then the public owes it to them to handle Pinochet in court, no matter how old and harmless he now is.

While I am highly sympathetic to the moral claims of victims of violence, I think there are several problems with overly victim-focused justice (and it’s a problem that manifests itself in such popular practices as victim impact statements at sentencing, or prosecutorial speeches describing the victim’s wonderful qualities).

1. Focusing on the “worth” of the victim may lead to grading crimes on the victim’s social standing, popularity, etc. Should the murder of a beloved husband and father, and a valued member of his community, be punished more severely than the murder of a friendless middle-aged bachelor? Unfortunately, a lot of studies show that the “merit” of the victim has an impact on the sentence given to a hypothetical offender, but I think that the criminal’s intent still plays a key part in determining appropriate punishment. Let’s take two hypothetical situations:

(a) A serial child molester is released after serving a ridiculously short sentence. A few days later, he is accosted and shot dead by the distraught parent of one of his victims.

(b) A serial child molester is released after serving a ridiculously short sentence. A few days later, he is accosted and shot dead by a mugger.

Without condoning vigilantism, I think most of us would give the distraught parent a lower sentence than we would the mugger, even though the victim — and the end result — is the same.

2. Victim-focused justice, strictly applied, would make no allowances for intent. If someone forgets about a lit stove and starts a kitchen fire that kills six people, the victims are just as dead as they would be if the fire had been started by an arsonist (and the victims’ relatives may be just as angry). But surely no one would advocate the same punishment for the negligent cook and the arsonist. Furthermore, in some cases we decide that the offender should be given a very mild punishment or none at all because his/her mental capacity makes him/her unable to fully understand the nature of the act.

3. Victim-focused justice would make the degree of punishment contingent on how forgiving the victim is (or how forgiving his or her relatives are). If a victim chooses to forgive her rapist — because of, say, religious beliefs, or the ideoogical conviction that criminals are really oppressed victims of society — it should have no impact on the rapist’s punishment.

The shift from private vengeance to public retribution means more than simply delegating vengeance to the state because it’s more practical. It also means a shift to the concept that the crime is an offense not just against the victim, but against society, or against the moral order. Walter Berns and other advocates of retributive justice argue that a crime disrupts the moral balance of the universe, which is then restored by punishment. This may seem like an overly abstract and metaphysical concept, but I think that such a notion of crime and punishment as moral calculus underlies a lot of our thinking on the subject.

Finally, Kant’s notion that it would be unfair to the offender not to punish him may seem quaint, but I will point out that in some cases, criminals who were not apprehended have turned themselves in because they were tormented by remorse and felt that being punished would salve their conscience.

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