If You Want to Defend Torture, Start By Admitting That It's Torture

Going back a few weeks, George Will wrote an editorial with a number of similarities to Richard Cohen's piece on the morality of torture, particularly in the manner in which Will substitutes his experience in a movie theater for fact-based argument. Will opens with the sympathetic quotation of Col. Nathan Jessep, Jack Nicholson's character from A Few Good Men,

“I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide and then questions the manner in which I provide it.”

That diatribe was, of course, the lead-in to the film's Perry Mason moment, when Jessup confesses to ordering the abuse of an enlisted man who ended up dead. Will seems particularly taken with the quote, "You [expletive] people... you have no idea how to defend a nation", never mind that Jessup is addressing a military court martial. Sure, it's a movie and Jessup's speech is directed at the movie audience, but his on screen attack is directed at other military officers. Jessup's honor falls short of helping the two enlisted men who carried out his directive avoid being prosecuted for murder. If Will's argument is that there should be no checks on men who believe themselves to be acting in the best interest of the nation, Jessup by this point having rejected the opinions of every other officer who suggested an alternative to the Code Red, having excused himself from the confines of the Marine Corps' regulations and Uniform Code of Military Justice, having happily allowed two enlisted men to be looking at lengthy prison terms for carrying out his orders, and having repeatedly perjured himself on the stand and repeatedly disparaged the other military officers involved in the legal proceeding, he has every right to attempt that argument. But were Will to explore some of our nation's history, including how we came to have a civilian in the role of Commander in Chief, he might come to realize that in fact a Colonel, even one who is extraordinarily self-assured, even one who is doing important work, is and should be answerable to higher authorities.

Switching over to Zero Dark Thirty, Will informs us,

Viewers will know going in how the movie ends. They will not know how they will feel when seeing an American tell a detainee, “When you lie to me I hurt you,” and proceed to do so.

Frankly, "When you lie to me I hurt you," makes for better film than "When I think you have information you're not sharing, I'll keep you awake for 180 hours," but... call it poetic license. But contrary to Will's suggestion, most viewers will have seen plenty of dramatizations that involve torture, including torture committed by Americans. Kiefer Sutherland (whose character disagreed with Jessup's approach in A Few Good Men) made something of a career of it in his series, "24". Another season, another ticking time bomb. The difference is that this is supposed to be "based on a true story", and that unlike other films based upon true stories this one is... I don't know... more graphic? Easier to confuse with a documentary?

As is his wont, Will likes to overstate the benefits of torture, blithely reciting the claims of various Bush Administration officials about how tidbits of relevant information were gleaned from the torture of Khalid Sheik Mohammed, including "the nickname of a trusted courier of bin Laden". Will implies a straight line from the disclosure of that nickname in 2003 to the killing of Bin Laden some eight years later. That's not exactly a ringing endorsement of the "ticking timebomb" defense. We cannot know at this juncture whether the nickname of Bin Laden's courier would have been obtained from Mohammed without the use of torture, but we can reasonably conclude that either the name was not of much help to the investigation or that Mohammed poured out so much information under torture that the key to finding Bin Laden was buried in a mountain of irrelevant disclosures, with wild goose chases taking priority over the identification of the courier.

The question of whether torture "works" depends both on the tactics the torturer is willing to use, and also upon the torturer's goal. For example, let's say I want to know what the enemy is up to, and I have 100 enemy operatives in custody. If I am willing to torture all of them, I can start looking for commonalities among their disclosures. Sure, there's a chance that they will have been fed misinformation and not have the information I'm looking for, but odds are I'll learn something useful. Or I'll be able to test their stories and, if my information is good, use torture to punish what I believe to be errors or inaccuracies in the hope that the subject will become terrified of being caught in a lie. It's similar to the manner in which police divide suspects and interrogate them separately, then lie about what the other suspects have said or disclosed in order to try to trick the others. Except with torture. Sure, I may end up torturing people to try to get them to disclose something that they know nothing about, and if I'm not careful I can inadvertently feed them the answers to the questions that will stop the torture and mistake their new answers for actionable intelligence, but if I torture enough people in enough circumstances I will get names, locations, and other information that turn out to be valid. And if I break down the wrong door, shoot the wrong person, pick up and torture an innocent person based upon a bad tip, well, "I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide and then questions the manner in which I provide it."

Similarly, I may not care if the person I'm torturing tells the truth. I may want that person to lie. To pose for propaganda pictures or a film, to make or sign a confession to crimes, or to simply be too frightened to ever stand against me or my regime in the future lest he again be picked up and tortured.

Will lectures us,

Viewers of “Zero Dark Thirty” can decide whether or which “enhanced interrogation” measures depicted — slaps, sleep deprivation, humiliation, waterboarding — constitute, in plain English, torture. And they can ponder whether any or all of them would be wrong even if effective.

Sorry, but that's a cop-out. We would not see the situation as ambiguous if a police agency used those techniques to elicit confessions from a criminal suspect, particularly if it were an American citizen being tortured by a police agency in the developing world. We would not see the situation as ambiguous if those techniques were being applied to a U.S. solider in enemy custody. Let's not forget how few seconds it took for Christopher Hitchens to change his position from "waterboarding can't be that bad," to "it's torture." (For the record, sixteen.) If somebody were to put a bag over Will's head, strip him naked, transport him to a remote location, and apply the techniques he describes, I'm somehow not thinking that his subsequent column would be so deferential, "my readers can decide for themselves if the 'enhanced interrogation' measures I describe constitute, in plain English, torture". He would have an opinion.

Will shouldn't be so afraid to take a stand. After all, if these techniques were simply another form of acceptable interrogation, we wouldn't need the euphemisms and we wouldn't be talking about "tough choices" or quoting Colonel Jessup for the principle that "anything goes in the name of freedom". No small part of the reason we're still having this discussion is that men like Michael Mukasey and Bush Administration lickspittles like Marc Theissen refuse to acknowledge the truth of what we were doing, while prominent commentators like George Will provide them with cover. How can he talk about "facing up to what we did" if he's not even willing to hang a name on it?

Proceeding With Military Tribunals is the Politically Safest Approach

I've heard it suggested that, having given up on trying to convince Congress to stop blocking the closing of Camp Delta or the trial of suspected terrorists in federal court, President Obama will pay a political price for trying Khalid Sheik Mohammed before a military tribunal.

No. He won't. He'll get a political benefit.

Seriously, is there even one person in the United States for whom this is the issue that will cause him to... I guess stay home, or vote for a third party candidate? I'm reminded of surveys on the death penalty that show a population roughly split on its application in the abstract, but where you can get @90% consensus in favor of the death penalty when you ask about a specific, notorious criminal (Ted Bundy, Jeff Dahmer, John Wayne Gacy, etc.) This is no different. The general public is perfectly content with the idea of giving the detainees at Guantanamo Bay the proverbial "fair trial before they're convicted." A military tribunal? Close enough to fair, and it's the verdict that counts.

If we're honest about it, there is no realistic chance that Khalid Sheik Mohammed would be acquitted in a civilian trial. That was a line of nonsense pushed by the political right to smear the President as being "weak on terror". His chances of acquittal at a military tribunal are less and, although he may have have a better chance on appeal from a conviction at a military tribunal, it's the conviction that counts. A high profile set of convictions going into the election season with the political right unable to do anything but grumble that "the convictions would have happened sooner if he hadn't had so much faith in our nation's system of justice". Criticism from the left? Sure, it will happen, but who is going to be paying attention? Most Democratic politicians and opinion leaders will talk up the convictions, and most Democratic voters won't care about the lack of due process at a military tribunal any more than they cared when Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996. Given the likely tone of the media coverage, most will probably think it's a good thing.