Saturday, September 30, 2006

Is Torture Really That Hard To Understand

Apparently so.... The inspiration for my last comment was a blog post in which the author explained why he didn't speak out on the subject of torture.
The case of torture is a good example of the limits of my knowledge. For the reasons outlined by Charles Krauthammer, I do not believe that torturing captured terrorists to obtain information is always wrong as a matter of principle. But I don't have anything original to add to his moral argument, so I haven't blogged about it. In any event, I don't think that arguments about intrinsic morality are enough to resolve the issue. To me, the crucial question is whether we can effectively confine the use of torture to the rare cases where I believe it to be justified and prevent it from "spilling over" onto non-terrorist prisoners (as probably happened at Abu Ghraib), ordinary criminals, or even innocent civilians. A second important question is that of how much valuable information can really be obtained through torture that we could not get otherwise. Because I don't know enough to give a compelling answer to these two crucial questions, I don't have anything useful to contribute to the debate over the issue.
I deem that paragraph reasonable in part, and unreasonable in part. But then, anybody who cites a demagogue like Charles Krauthammer as an authority probably shouldn't be claiming any appreciable understanding of the issue under discussion.

The Krauthammer editorial divides the world of war prisoners into three categories:
First, there is the ordinary soldier caught on the field of battle. There is no question that he is entitled to humane treatment. Indeed, we have no right to disturb a hair on his head. His detention has but a single purpose: to keep him hors de combat. * * *

Second, there is the captured terrorist. A terrorist is by profession, indeed by definition, an unlawful combatant: He lives outside the laws of war because he does not wear a uniform, he hides among civilians, and he deliberately targets innocents. He is entitled to no protections whatsoever.
But, Krauthammer adds, we're going to treat him pretty well anyway because we're so nice. (I'm not sure how that helps us if, say, a civilian contractor working in Iraq is captured - under Krauthammer's dichotomy as he's not an "ordinary soldier" he must be a "captured terrorist" entitled to no protections whatsoever. Does anybody recall how Krauthammer reacted to the atrocity in Fallujah?) And then Krauthammer collapses his house of cards:
Third, there is the terrorist with information. Here the issue of torture gets complicated and the easy pieties don't so easily apply. Let's take the textbook case. Ethics 101: A terrorist has planted a nuclear bomb in New York City. It will go off in one hour. A million people will die. You capture the terrorist. He knows where it is. He's not talking.

Question: If you have the slightest belief that hanging this man by his thumbs will get you the information to save a million people, are you permitted to do it?
This is a wonderfully stupid example, evidencing perhaps only that Krauthammer watches too many action movies. If in fact you know that you have captured a terrorist who has specific knowledge that will let you save a million lives, and he won't talk, I think we're in a situation where the vast majority of people would agree that a tipping point has been reached, and we can use pretty much any means of interrogation to try to get that information. The odds of this actually occurring? Pretty much zero.

But why is it different if we suspect that an "ordinary soldier" has equivalent knowledge, which if obtained could save hundreds of thousands or millions of civilian lives? What if the soldier has information which would enable us to disable key defense systems of the enemy state, bringing a quick end to a war that would otherwise drag on for years with high levels of civilian casualties? What if the soldier has information which would enable us to disable or destroy key offensive weapons systems, such as a network of nuclear-tipped missiled which are aimed at our major cities? What if the soldier has information which would enable us to prevent an enemy military assault on one of our cities? We torture the terrorist to get that type of information, but let the "ordinary soldier" enjoy the quiet dignity of a POW camp that is in complete compliance with the applicable Geneva Conventions?

Krauthammer further explains, sure, that the nuclear aspect is fanciful - but that you should also be able to torture to find out about the terrorist's knowledge of a possible car bomb at a coffee shop. This is supposed to make his rationale for torture more sensible? Then he speaks of the valuable information that might be tortured out of somebody like Khalid Sheikh Mohammed. This is supposed to help us understand why, if captured, the Chairman of the Joint Chiefs of Staff should be excluded from torture?

Please don't get me wrong, here - I know that, despite his effort to couch his argument such that it might appear otherwise, Krauthammer is not trying to actually differentiate when torture should and should not occur. Instead, he is trying to set up a framework through which he can argue that the nation states he likes, which are embroiled in conflicts with forces not part of a state military, cannot torture our troops, but why we can torture theirs. It's a contextual argument - the U.S. in Iraq and Israel in the occupied territories. It's a legalistic argument - if you accept his interpretation of the Geneva Conventions, we're not breaking the law in torturing anybody who is not an "ordinary soldier" and are in no way hypocritical when we decry the wrongful touching of even a single hair on one of our soldier's heads. And it sidesteps moral questions about torture through this narrowing of the context in which he argues for torture to occur.

Krauthammer does propose limits on torture, but gives his full blessing to the torture of "(1) the ticking time bomb and (2) the slower-fuse high-level terrorist (such as KSM)". How do you know somebody is a ticking time bomb? You guess? You torture them a bit until they admit to being a ticking time bomb, then torture some more until they tell you where the bomb is (whether or not it exists)? And again, if we can torture their captured leaders to determine "terroristic" plans, why can't the other side torture our leaders to determine what we define as military plans?

Krauthammer's best - no, his only - example of the "ticking time bomb" relates to a Palestinian who, a dozen years ago, was tortured until he revealed the location of a single Israeli hostage, who was recovered. How exactly is this Palestinian a "ticking time bomb"? I won't argue that recovering the hostage unharmed was anything but a good thing. But is there any evidence or precedent which would have suggested that those holding him hostage had any intention to do him harm, as opposed to attempting to use him as a bargaining chip for a prisoner exchange? This is the best and only example? (Yet you would have to be pretty darn stupid to believe that this was the only incident where somebody was tortured on the suspicion that they might be a ticking time bomb.)

Moving from Krauthammer's situational sophistry to the blindingly stupid, let's take a look at the confusion of Jonah Goldberg:
I think it is a perfectly defensible and honorable position to claim that waterboarding, sleep deprivation etc. amount to torture. I don't think I agree with that view. But I certainly believe it is made in good faith. But the good faith ends when the same people then issue blanket and sweeping assertions that the people who want to legalize those actions are simply pro-torture. If the legalizers were simply pro-torture they would favor hot pokers, iron maidens, finger-nail-yanking and the rest. And the people supporting the use of waterboarding (in a tiny number of cases) aren't doing that. Not only do they think they're not in favor of torture but they objectively oppose things they consider to be torture. So even on the "anti-torture" crowds' own terms, the worst that could legitimately be said is that Bush wants to legalize "some torture" while banning most kinds of torture.
We can reasonably assert that for most people, a more accurate term than "pro-torture" would be "in favor of the minimum level of psychological and physical coercion that will cause a suspect with potentially highly valuable information to provide accurate disclosure of that information." For some, they would just as soon use the hot pokers and don't much care what the prisoner knows - they endorse torture for torture's sake - but the're peripheral to this debate.

Goldberg carefully detailed his list of "things that aren't torture" as "waterboarding, sleep deprivation etc." - I'm not sure that even the Bush Administration remains willing to share his "it's not torture" perpsective on waterboarding. But I will guarantee that I can create a context in which Mr. Goldberg will agree that sleep deprivation constitutes torture, if he's willing to undergo the type of sleep deprivation regimen we're talking about in this context. Or, for that matter, waterboarding.

Further, in a true "ticking timebomb" case - Krauthammer's nuclear bomb in NYC - I don't think that anybody is going to get into the niceties of whether or not we can use "finger-nail-yanking". If what we're really doing is drawing the outline for what constitutes reasonable interrogation of a suspect, we're doing something quite apart from determining the outer bounds of what we can or should do if we truly have a "ticking time bomb" in custody. And this implicates Krauthammer's complaint about the (now-abandoned) ban on torture once proposed by Senator McCain - it means you have to break the law in such a case. I think the Senator McCain of that time would have responded that yes, you have to break the law, but if you do so justifiably you will be protected by virtue of the President's pardon power, and that people are far less likely to cross the line if they risk prosecution. Does Goldberg truly believe that we can't use "finger-nail-yanking and the rest" to save a million civilians from nuclear incineration? If he does, what makes him different than those on the "other side" of the debate, other than his drawing a slightly different line on what constitutes permissible versus impermissible interrogation? If not, then in fact he doesn't stand by the distinctions he describes.

As for "iron maidens".... Where Krauthammer seems to get his understanding of the terrorist threat from action movies, what is Goldberg watching? Conan the Barbarian? The Beastmaster? I am at a bit of a loss as to how an iron maiden could truly be used to obtain useful information from a suspect - let's see... we inflict mortal wounds and while the subject exsanguinates we'll ask some questions. Brilliant. I can understand how somebody might be psychologically intimidated if shown an iron maiden and convinced that if he doesn't talk he'll be placed in it, but I somehow doubt that Goldberg would object to such a use.

Fundamentally, what Goldberg is arguing is that he favors methods of interrogation which are neat and clean - where you don't have to mop anything more offensive than perhaps some urine or excrement from the floor afterward, and the suspect doesn't end up with lacerations, avulsions, hematomas, puncture wounds or broken bones. Torturers of the modern world have long been aware of these western sensitivities to blood and guts, and have devised tortures which leave a prisoner looking reasonably physically sound to an outside visitor.

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