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March 08, 2008

Comments

I think you miss the biggest problem with torture and capital punishment. When we torture, we damage ourselves, we demonstrate to ourselves that we will stoop to barbarism when it suits us. When we kill in retribution, we become killers ourselves.

It is bad to have the abyss look into you, whether "you" are a person or a polity.

I would like to hear more on how Israel, which is very much a target of terrorism, views the effectiveness of torture to promote its safety. I have heard that they have abandoned it, but can neither cite or judge the sources for this claim.

(Questioning the effectiveness of torture is separate from the argument Publius made that it is not administrabile. I strongly agree with him.)

Bang on correct. The one thing that gives me pause about my opposition to the torture policy is when I read that Khalid Sheikh Mohammed was waterboarded. I was working at my office on Wall Street the morning of 9/11; my emotional reaction to hearing that KSM was tortured is something along the lines of "Wish I'd been there to watch him suffer." My rational reaction is disgust, but understanding that it might have some utility.

But I see nothing in this discussion, ever, that guarantees the bar will be set at the very high level where those repellent techniques might be understandable. I have a second concern as well. If we can be fairly sure that only "high-value targets" will suffer the most extreme measures, if and only if lesser measures fail to elicit information, that's one thing. But opening the door to that sort of monstrous behavior might somewhat justify that the more coercive and unpleasant of those "lesser measures"--sleep deprivation, temperature extremes, stress positions, et al--will be applied to the poor schmuck who has a similar name to a suspect and has the bad luck to be out in the path of some patrol.

Given all this and the relative ease with which allowance of torture can deteriorate into a "banality of evil" context--an Abu Ghraib--the only responsible course is to ban its use altogether.

When we torture, we damage ourselves, we demonstrate to ourselves that we will stoop to barbarism when it suits us.

Right on. This is where the argument begins and ends, as far as I'm concerned.

There is no conclusive pragmatic or utilitarian argument against torture. There will always be circumstances in which, net/net, it's quite useful.

The purely moral argument against torture is no longer taken seriously here in the USA. Nowadays, all the serious people feel obliged to carefully consider the pros and cons of torture as a legitimate tool of the state. To not do so is a selfish indulgence in quaint and outmoded scruples.

The reason torture is wrong is that it is wrong. It's not wrong because it does or doesn't work, because the folks we torture are guilty or innocent, or because other folks will think less of us if we engage in it. It's wrong because it's wrong, and we engage in it, we are wrong.

Thanks -

I think there are a bunch of successful arguments against torture: the moral one mentioned above, the administrative one publius makes, and also the "does it even work?" argument. I don't think I have to rank them: they all work, and they only strengthen one another.

Good post.

@dajafi: You do yourself a bit too much credit to claim that your reaction "I wish I'd been there to watch him suffer" has anything to do with utility.

Okay, rereading dajafi's post, I see that I misread it at first: s/he claims that "recognizing that torture might have utility" is part of his/her rational response.

It's just as likely that 'recognition' of the possible utility of torture is a rationalization of his/her first emotional, irrational response.

I'm on record as not being a purist about arguments that work, when something as fundamental as torture is at stake.

But I do urge those who grasp the moral argument not to be silenced from making it because some are trying to potray it as the unserious, soft, hippie, somehow un-respectable argument.

The uneasiness of russell and others with the quick rush to the pragmatic argument is the justified fear that without a moral grounding, the argument moves to ever narrower and more meaningless terrain. This is something I addressed in the aftermath of passage of the Military Commissions Act, one of the most shameful actions ever undertaken by any U.S. Congress.

And it's the concern at the heart of my favorite Fafblog post, Wake Up.

So, though I counsel against purism, I'm very far from believing that there's not a ranking among the arguments.

Fafblog July 2004:

It's so easy to kind of sweep it all under your brain an think "Well theres nothin more to be said an nothin more to think about it" cause let's face it nobody wants to think about their government participating in horror.

An right now the level of torture talk has gone from
"Torture: Bad!" to
"Torture: Bad, But Not As Bad As Saddam Hussein" to
"Torture: Bad, But What About Ticking Bombs?" to
"Torture: Bad, But Not Necessarily Proof That The People Who Ordered Torture Are Bad" to
"Torture: We Still Talkin Bout Torture?" to
"Torture: Bad?"

An before we get to
"Torture: Sorta Like Mowin Your Lawn"
I think we should try as hard as we can to wake up.

Atlantic.com has several excellent article on the torture dilemma and they make things a little more difficult than the purist " "torture is never justifiable" position. The ticking bomb scenario DOES make coerced interrogation justifiable. Anti-torture advocates tend to hand wave away that scenario, by saying it NEVER happens. In reality, " ticking bomb" scenarios DO happen. One example:

At the time, Colombo was on "code red" emergency status, because of intelligence that the LTTE was planning to embark on a campaign of bombing public gathering places and other civilian targets. Thomas's unit had apprehended three terrorists who, it suspected, had recently planted somewhere in the city a bomb that was then ticking away, the minutes counting down to catastrophe. The three men were brought before Thomas. He asked them where the bomb was. The terrorists—highly dedicated and steeled to resist interrogation—remained silent. Thomas asked the question again, advising them that if they did not tell him what he wanted to know, he would kill them. They were unmoved. So Thomas took his pistol from his gun belt, pointed it at the forehead of one of them, and shot him dead. The other two, he said, talked immediately; the bomb, which had been placed in a crowded railway station and set to explode during the evening rush hour, was found and defused, and countless lives were saved. On other occasions, Thomas said, similarly recalcitrant terrorists were brought before him. It was not surprising, he said, that they initially refused to talk; they were schooled to withstand harsh questioning and coercive pressure. No matter: a few drops of gasoline flicked into a plastic bag that is then placed over a terrorist's head and cinched tight around his neck with a web belt very quickly prompts a full explanation of the details of any planned attack.

http://www.theatlantic.com/doc/200201/hoffman

Those who want to discuss the issue without illusion should read the Hoffman article, as well as the Mark Bowden article " The dark Art of Interrogation" before resorting to such simple platitudes as " Torture is always wrong" , " Torture never works" etc.
Bowden's article takes seriously the slippery slope argument, too. He comes down saying that coercive interrogation should be informally allowed but not made legal.

I once got stuck in a cave in a highly uncomfortable position in 56 degree temperatures while laying in a pool of water. It took about 3 hours for my compatriots to get the necessary gear together and find somebody small enuf to reach me in order to extricate me. When they finally did get me out I was somewhat hypothermic and in extreme pain from the position I had been in... But psychologicaly, it was no big deal. I did not know when, but I had always known it would end, that my freinds would get me out.

Another time, I spent about six hours in a fecal matter encrusted (the ceiling had s*** on it, as well as tp and other things I could not identify) jail cell that was about 95 degrees (it was February and I had been arrested after working in the cold and snow so I had on full winter time gear) and the cockroaches were as big as my thumb (literally). At about the 3 hour mark, I was stark raving mad. I was seriously thinking about ways to get out of the cell (including but not limited to: "bang my head across the bars of my cell... blood, lots of blood, that's the key, then they'll HAVE to take me to the hospital... No, they'll just lock me up in the looney bin afterwards. Maybe if I...") By the time I finally got out, I would have done ANYTHING they wanted.

2 days later when I called the local paper I was shaking so bad I could hardly hold the phone while talking to the reporter... Begging her not to use my name but I could not bear the thought of "Maurice the doughnut thief" spending another day in that jail (I talked to her the next day, they would not let her in to inspect the jail for 4 hours... then, miraculously, it was "OK")(at least Maurice was living in somewhat sanitary conditions)

What was the difference in the 2 situations? Physically, the first was far worse (if my compadres had not been able to find someone small enuf, maybe even life threatening) but the 2nd turned me into a blithering idiot. Why?

Knowledge (power). In the first situation I was at the mercy of the laws of nature, hard, fast and unforgiving. But I knew the rules, and I could deal with that. In the 2nd... What were the rules? Oh yeah. "Don't piss us off" How do I do that? They would not say.

Look, I am not saying that either of these situations were even closely analogous to torture (nobody cared or wanted me to say anything), but they are demonstrative of how frail the human psyche is.

What makes torture, torture? Knowledge (power)... or the lack there of.

I think there are a bunch of successful arguments against torture: the moral one mentioned above, the administrative one publius makes, and also the "does it even work?" argument. I don't think I have to rank them

With respect, I beg to differ.

The administrative argument holds right up until the time you have an effective administration.

The "does it even work?" argument holds right up until the time it actually does work, which is highly likely to be often enough to be useful.

Torture is wrong because it is an utter violation of the human integrity of the person being tortured, of the hands-on torturer, and of the people who approve of it. IMO, that is of greater priority than the other arguments, because without it, the others have only incidental weight.

Anti-torture advocates tend to hand wave away that scenario

I'm one, and I don't.

It's entirely possible that not torturing people that we hold will someday cost the lives of innocent people. It may well have already happened. Since AFAIK we've never embraced torture until now, I'd even say that it's highly likely that it has. This is not the first time in our history that we've been subject to organized political violence.

So be it. Conjure up your worst scenario -- suitcase nuke in Times Square on New Years Eve, what have you. God damn it to hell, so be it.

We're all going to go sometime. How the hell do you want to live while you're here? What kind of people do we want to be? At some point you have to draw a line in the sand.

It's been said before, and I'll say it again. This nation has faced far worse threats than we currently face from Islamic terrorists, and we did so without embracing torture as a sanctioned form of intelligence gathering and security enforcement. What the bloody f*$% has happened to us?

We could probably put a very large dent in drug trafficking in this country if we subjected drug dealers to public drawing and quartering.

We could probably make a big dent in criminal gangs if we rounded up the leaders of the top ten gangs and burned them alive on TV.

Got a mafia problem in your city? Round up their kids and kill one a day until the offenders surrender.

We could put a big dent in illegal immigration if we took one of every ten immigrants currently moldering away in county jails and crucified them at half mile intervals along the US/Mexico border.

Why not? Lives could be saved. We could devise a pretty good administrative regime. We'd punish some innocents, but our objective would be met.

We don't do any of these things. The utilitarian calculus doesn't enter into it. We don't do them because they're wrong.

Thanks -

two wrongs don't make a right.

killing and torture are wrong.

it is in the nature of democracy that it combats evil with one hand tied behind it's back. it does so because it is right.

I have nothing to add, just wanted to say, great post, publius, and great comment, russell.

tom p: Look, I am not saying that either of these situations were even closely analogous to torture (nobody cared or wanted me to say anything), but they are demonstrative of how frail the human psyche is.

Torture isn't about making people talk.

Torture is about making people suffer and obey.

The purpose for which torture is justified as utilitarian rationalisation is usually "What if we need information out of this prisoner and they won't talk?" - and that "purpose" quite literally only works in a comic-book. (Or a TV show on that kind of intellectual moral level.)

Arguing against the "utilitarian" justification for torture is often more successful than arguing that torture is wrong. But it is both. This is the black cat explanation of the UN Convention on Torture, do you suppose people would pay any more attention if it were translated into LOLCAT?

I meant, translate the UN Convention Against Torture into LOLCAT. After all, look at the initials. ;-)

stonetools: In reality, "ticking bomb" scenarios DO happen. One example:

"Reality" = "Grisly stories told to a reporter by a policeman to show how, contrary to the wimpy reporter's ideals, the tough policeman's brutality toward [suspected] criminals ended up saving everyone. In his stories about himself."

Who's hand-waving again?

And what Russell said. Thanks, Russell.

@ hob:

You don't like that example, look at the Bowden account which denote other "ticking bomb"scenarios. They DO happen. INSISTING that they NEVER happen, over & over again, isn't going to work, except on the playground.Try reading the articles.

@russell

We're all going to go sometime. How the hell do you want to live while you're here? What kind of people do we want to be? At some point you have to draw a line in the sand.


Would you be OK with that your scenario if YOU are in NY at the time the bomb went off? How about your parents or children? Do you really hold the lives of the innocent that cheaply in the maintainance of abstract principle?
One could argue that war is so evil and horrifying that we should never fight wars at all. But surely, SOME wars are worth fighting.
During WW2, we engaged in the area bombing of German and Japanese cities, including the nuking of Hiroshima and Nagasaki. I think we can all agree that those acts were much worse than water-boarding some terrorists.
I'm not arguing that the line need not be drawn. I'm argue that we draw it in a different place.

Anyway, your scenario is academic. in the real world, if there was a suitcase nuke in NYC and we had a terrorist in hand who had info about it, we would torture away, and when the crisis was averted, everyone, including the head of the ACLU, would heave a sigh of releif, and President Obama would pardon the interrogators, if they were even prosecuted.

Nell, I don't disagree with anything you wrote in characterization of my comments.

Nor am I proud, particularly, to admit that I don't have a problem with even a ghoul like KSM being tortured.

But my point, which I perhaps should have made first and then offered the counter-arguments rather than vice-versa, is that the downsides to any official/legal toleration of torture--the "lesser" abuses thus enabled, the administrative difficulty, the questionable utility, the partial dehumanization of everyone involved--are so significant that the only pragmatic policy is to ban it entirely.

Hope that's clear enough.

In the real world a terrorist that would know when and where the nuke will explode would likely (if there were just a few hours left) tell lies long enough (each will cost a bit of time to "unverify") for the thing to go off (and take him him and the torturers with it).

You are probably right that in a real event torture would be applied and that (if successful) a pardon would follow. But that would be the way to go because it would clearly state that the torture is not a legitimate "tool" and that those that use it are held accountable (and severly punished should it turn out to be a false alarm).
A policeperson that shoots a suspect will (at least on paper) be investigated and has to justify the action or face the consequences. For torture at least the same standard should apply.

Would you be OK with that your scenario if YOU are in NY at the time the bomb went off? How about your parents or children? Do you really hold the lives of the innocent that cheaply in the maintainance of abstract principle?

Yes and yes.

It's not an abstract principle. Ask anyone who's been tortured.

It is, in fact, far less abstract than most of the ticking bomb scenarios that folks cite. We actually do torture people, right now, and seek to make doing so a matter of national policy.

It's not abstract at all.

One could argue that war is so evil and horrifying that we should never fight wars at all.

We're not talking about war. We're talking about torturing people who are held by us.

During WW2, we engaged in the area bombing of German and Japanese cities, including the nuking of Hiroshima and Nagasaki. I think we can all agree that those acts were much worse than water-boarding some terrorists.

This isn't WWII. We're not engaged in more or less total war against an alliance of fascist nations. The situations are not comparable.

And, in fact, when we *were* engaged in more or less total war against an alliance of fascist nations, we did not embrace torture as a way of gaining information from those of our enemies who we had captured. It's highly likely that, at some point, we paid for that policy in American lives.

If you want to approach the War On Terror under the terms of WWII, then we should begin an aggressive military invasion of north-west Pakistan, followed by an extended military occupation. If you caught me on the right day, you could probably sell me on that.

But that's not what's on the table. What's on the table is brutalizing people who are held by us, hors de combat, in the interest of extracting information from them. We have imprisoned people, including Americans, for doing that, including at times of war.

Everyone always says that everything changed after 9/11. I agree. Among other things, 9/11 presented a challenge to our commitment to basic human rights and the rule of law. In my very humble opinion, we've shown ourselves to be only too willing to chuck it all if it will save us from the Muslim boogeyman hiding under our beds.

We've had enemies before, we've been the targets of political violence before, and Americans, including innocent Americans, have lost their lives violently before. To my knowledge, this is the first such time that we've ever considered embracing torture as a legitimate instrument of national security.

It makes me ashamed.

Thanks -

@Hartmut

At least you accept, as russell, etc. do not, that coercive interrogation is morally justifiable in certain real world situations. All this high flown " Torture is NEVER acceptable" and " ticking bomb scenarios NEVER happen" rhetoric that we get on this website is simply wishful thinking as the detailed Atlantic.com articles make clear.
In terms of the best legal scheme to deal with this problem, an outright ban certainly is morally the most clean-cut and pleasing. But shouldn't we just just carve out explicitly a " ticking bomb " exceptioin, since in real life , we all know that interrogators would be encouraged or ordered to twist away if that was required to get the job done. Professor Alan Dershowitz spoke of torture warrants- would that be a better scheme than us pretending that interrogators can NEVER torture under ANY circumstances?
I would hasten to add that we are probably;y talking about the very rare scenarios - for right now. But if Al-queda were to organize a Tamil Tigers/IRA-type bombing campaign in which bombs were going off regularly in DC metro stations at rush hour and in DC restaurants downtown and hundreds of people were dying, then I think that hilzoy, russell, etc , would have a lot of explaining to do as to exactly why we should not be coercing terrorists to protect the innocent.

You can postulate circumstances where it might make sense to a person's tribal instinct to torture some captives. Although it's clearly illegal. Hell, people have conjured up circumstances where they thought genocide was acceptable, as a form of self-defense.

Just like the use of poison gas, we've agreed not to torture captives both because it's who we are -- go ahead, call George Washington a bleeding heart simpleton -- and because we want others to apply those rules as well. They won't always follow them, to be sure. But, you know, we don't repeal the laws against burglary because someone breaks into a house and steals stuff. (We don't even break into their house and steal stuff from them).

@russell:
"We're not talking about war. We're talking about torturing people who are held by us."

Whatever you believe, I'm certain that al-Queda believes that they are at war with the United States and that their various bombing attacks are part of their campaign.

"We're talking about torturing people who are held by us."

Well, we are not doing that just for fun, but for the purpose of eliciting info about future attacks. We presumably water boarded KSM and others to elicit such info. Now there have not been further attacks. That may have been because of the info gained as a result of those interrogations. We will presumably find that out if KSM is put on trial. If that were to be the case, then we owe those interrogators our thanks, not prosecution and incarceration.

"And, in fact, when we *were* engaged in more or less total war against an alliance of fascist nations, we did not embrace torture as a way of gaining information from those of our enemies who we had captured."

Are you certain that we did not do that informally? I'm not. And as I have pointed out, firebombing hundreds of thousands of Germans and Japanese civilians to death as a deliberate policy sounds worse to me than coercing a limited number of terrorists. I guess our moral compasses just differ on that point.

Stonetools, some of the people they tortured didn't give them information that averted attacks, and didn't have it to give.

then I think that hilzoy, russell, etc , would have a lot of explaining to do as to exactly why we should not be coercing terrorists to protect the innocent.

I'm not sure hilzoy is taking as hard a line as I am. But, I'll let her speak to that.

ticking bomb scenarios NEVER happen

I'm sure they do happen.

I'm certain that al-Queda believes that they are at war with the United States

Me too. They have explicitly declared war on the United States.

I think we should respect their intentions and respond in kind. IMO the invasion of Afghanistan was completely justified. We should have doubled down there and extended that theater into the northwest territories.

My two cents.

But, war or no war, we've never adopted torture as a way of getting information out of our enemies, and in fact have explicitly eschewed it.

Until now.

If that were to be the case, then we owe those interrogators our thanks, not prosecution and incarceration

I have zero interest in prosecuting or incarcerating anyone who participated in the waterboarding of KSM or the other Al Qaeda principals. I have zero interest in prosecuting or incarcerating anyone who participated in any of the torture regimes that were employed at Guantanamo.

I'm interested in putting an end to it, restoring our policy to an anti-torture basis, and moving forward.

Are you certain that we did not do that informally?

I'm quite certain that we did do so. If and when so, it was illegal.

I guess our moral compasses just differ on that point.

Damned straight.

Thanks -

russell: my basic line is: make torture illegal, under all circumstances. If someone thinks we are really truly in a ticking time bomb situation, and that torture would actually help, let that person risk a jury trial for her actions.

I think that all the "hey, we're at war" people miss not only the basic moral point, but also another: choosing to embrace torture is itself an action in this war. It has very real consequences in it. It makes enemies of people who might otherwise not have been, and converts people who were hostile but might not have bothered to do anything about it into active participants.

If someone insists on tossing out the moral argument and sticking with 'win the war by any means', then I am completely opposed to their moral principles, but I am also opposed to their strategy, considered in its own terms.

Whatever you believe, I'm certain that al-Queda believes that they are at war with the United States and that their various bombing attacks are part of their campaign.

So what? Lots of people believe lots of things. Should that guide our policies? I don't think so. I'm manifestly uninterested in what al Qaeda believes about its position vis a vis the US.

We presumably water boarded KSM and others to elicit such info. Now there have not been further attacks.

Homer: Not a bear in sight. The Bear Patrol must be working like a charm. Lisa: That's specious reasoning, Dad. Homer: Thank you, dear. Lisa: By your logic I could claim that this rock keeps tigers away. Homer: Oh, how does it work? Lisa: It doesn't work. Homer: Uh-huh. Lisa: It's just a stupid rock. Homer: Uh-huh. Lisa: But I don't see any tigers around, do you? [Homer thinks of this, then pulls out some money] Homer: Lisa, I want to buy your rock. [Lisa refuses at first, then takes the exchange]


But if Al-queda were to organize a Tamil Tigers/IRA-type bombing campaign in which bombs were going off regularly in DC metro stations at rush hour and in DC restaurants downtown and hundreds of people were dying, then I think that hilzoy, russell, etc , would have a lot of explaining to do as to exactly why we should not be coercing terrorists to protect the innocent.

I hesitate to hazard a guess as to your political affiliation, but the fact that you're so ready to blame hilzoy and russell -- who neither live in Washington DC nor have any plans to bomb it anytime soon -- even partially for the hypothetical actions of hypothetical terrorists gives me a pretty good idea.

I guess our moral compasses just differ on that point.

You're a real saint.

If someone thinks we are really truly in a ticking time bomb situation, and that torture would actually help, let that person risk a jury trial for her actions.

I have no argument with this.

Thanks -

firebombing hundreds of thousands of Germans and Japanese civilians to death as a deliberate policy sounds worse to me than coercing a limited number of terrorists

I think that's the best argument you have, and I haven't seen a good response to it.

hilzoy: If someone thinks we are really truly in a ticking time bomb situation, and that torture would actually help, let that person risk a jury trial for her actions.

It's amazing how often proponents of torture overlook this point - all a policeman charged with torture has to do is convince a jury that the situation really did require such drastic methods and the case is closed.

Now and then a "ticking bomb" situation does arise. I recall a kidnapping case in the 1970s which was solved after a member of the gang revealed where the hideout was. Needless to say the gang-member was in some pain when he divulged this information. The policemen weren't even charged and, if they had been, it seems very unlikely that they would have been convicted - they could reasonably argue that they had acted to save the life of the kidnap victim.

But shouldn't we just just carve out explicitly a " ticking bomb " exceptioin

How would you control the expansion of the definition of "ticking bomb"? There are constantly going to be situations, even in ordinary criminal cases of the sort we've managed to deal with forever, that someone will view as equivalent to a ticking bomb.

It seems obvious that any special rules initially created to fight terrorism (however that's defined) will quickly be applied to child predators, kidnappers, drug dealers, and so on.

@charley carp.

"Stonetools, some of the people they tortured didn't give them information that averted attacks, and didn't have it to give."

and we should certainly strive to minimize that, just as we should minimize people being wrongfully prosecuted for rape. the solution is not to stop rape prosecutions altogether.

@russell.

"I'm interested in putting an end to it, restoring our policy to an anti-torture basis, and moving forward."

if you read the Bowden article, you will see that coercive interrogation has been a standard tool in the anti- terrorism toolbox since the beginning of terrorism. I've yet to see anyone suggest how to stop a bombing campaign in a way that doesn't involve the use of such techniques. If you listen to the ACLU etc, we can always befriend, befuddle, or bribe the terrorists into giving up actionable info. If you listen to the interrogators, that is not always the case. Most non-coercive interrogation techniques take weeks, if not months, to work-if they work at all. When the next bomb is set to go off in days or hours, "friendly" interrogation isn't going to work. (Coercive interrogation" may not work either- but it should be an option, IMO).I think that there is a lot of hypocrisy expounded by people who piously say " We should never do that" and are willing to allow innocent folks -not their loved ones of course- to be blown up for high principle.
Again, rather than proclaim these highfalutin, feel-good principles, people should do some research on what happens in the field-then see if these principles make sense in real life.

KC, to your 3:16, I think shooting 17 people in a schoolyard is worse than shooting 3. Does that mean shooting 3 is OK? In objective terms, making a person serve 20 years in prison, after due process & conviction, is worse than one kid kicking another in the knee. One is legal and the other not.

In human civilzations, we end up making rules and drawing lines all the time. It's always possible to conjure up a situation where one violation looks worse than another, and sometimes the law is unjust or misapplied.

Stonetools, you're arguing the equivalent of 'some women deserve to be raped' here. Others are saying that none do, and that anyone who commits the crime ought to be subject to prosecution, even if they can come up with some argument that what some other person did was morally worse.

Again, rather than proclaim these highfalutin, feel-good principles, people should do some research on what happens in the field-then see if these principles make sense in real life.

Man, after eight years of this crap from Republicans, I can't wait to throw this exact quote back in their faces over and over again when it comes to abortion rights, affirmative action, gay marriage, health care, Social Security, sex education, welfare . . . pretty much everything. If they're so willing to sacrifice principle for pragmatism, then baby, that better be on the table for EVERYTHING.

And stonetools how dare you say that I (or Russell, or Hilzoy) would apply a different standard if I thought my family was in potential danger.

Charley, I don't see the parallel for the school shootings, unless you're a pacifist and saying that war is wrong as well, and I don't think you are.

Saying that some things are violations of the rules begs the question. The argument is precisely about why torture is against the rules while all sorts of horrors that are part of war are not.

"How would you control the expansion of the definition of "ticking bomb"? There are constantly going to be situations, even in ordinary criminal cases of the sort we've managed to deal with forever, that someone will view as equivalent to a ticking bomb.

The danger of the exception allowing up the rule is a very real one. however,everywhere in law, there are rules with exceptions, that created and maintained. My preference is for there to be a clear rule, with an explicit "ticking bomb" exception, rather than a kind of " wink and nod" approach, in which we say " absolutely no torture!" but it informally goes on under the radar( kind of like what we have now).

@hilzoy.

If someone thinks we are really truly in a ticking time bomb situation, and that torture would actually help, let that person risk a jury trial for her actions.

The problem with that is what exactly is their defense. There is no criminal defense that really fits in with " we had to water board this guy to elicit info to avoid a terrorist bomb going off in downtown DC tomorrow."

stonetools: that's why God created jury nullification.

Yeah, but that's not about torture, it's about aerial bombardment. The reason that's legal is that no one wants to give up the ability to do it.

That said, I think we're moving in the right direction on this. Certainly the US has taken a lot more flack for 'collateral damage' in recent wars than in the past. Maybe in the future it'll be illegal. The fact that it isn't now doesn't excuse any violations of those laws that are on the books.

Torture has serious collateral consequences as well. On whether and how we can get cooperation and intelligence from potential allies. It's a horrendously bad idea, and I'd be willing to bet that in the past 7 years we're much the worse off for it, even on the practical terms that the ticking time bomb hypothesizors want to apply. Of course, they're always ducking the fact that our current government was torturing people to find out if there was a ticking time bomb.

The practical solution is astonishingly simple. Prosecute anyone who violates the law (including the people who ordered them to do so), and pardon those who by violating the law have directly saved identifiable lives.

in which we say " absolutely no torture!" but it informally goes on under the radar

This is not what we have now. Our current system is much worse. Unjustified obfuscation of what is, and what is not, torturing doesn't go away when you find the bomb, if there was one. Instead, once you establish that waterboarding isn't torture, anyone can engage in it any time.

@phil
I hesitate to hazard a guess as to your political affiliation, but the fact that "you're so ready to blame hilzoy and russell -- who neither live in Washington DC nor have any plans to bomb it anytime soon -- even partially for the hypothetical actions of hypothetical terrorists gives me a pretty good idea."

I'm not trying to blame anybody , just trying to pose the issue- without illusion and without hand waving.
I'm referring to actual bombing campaigns that are actually happening in Sri Lanka and Iraq and Israel. If you can transpose my Dc example to those real world scenarios. If you think that such a campaign could NEVER happen in DC, NY, or Detroit, well , you need to wake up.

"I guess our moral compasses just differ on that point.

You're a real saint.'

Why, thank you. i do try to be good.

@hilzoy;

"that's why God created jury nullification."

Well, God may have created it, but I'm not sure if I as a defendant would want to rely on it.

There is no criminal defense that really fits in with " we had to water board this guy to elicit info to avoid a terrorist bomb going off in downtown DC tomorrow."

You sure about that?


russell: It's highly likely that, at some point, we paid for that policy in American lives.

No. I don't disagree with anything else you've said, but it's highly likely that the US's public no-torture policy in WWII saved American lives. No useful information would have been got by torturing prisoners, and the knowledge that surrendering to Allied forces would in general ensure that you stayed alive and well, probably saved Allied lives as well as Axis lives many times over.

I appreciate that you're against torture on moral grounds. But it's just as valid to oppose torture on utilitarian grounds. It's neither practical nor moral.

The "ticking bomb" scenario is from comic-books and TV series: trying to write it into law will simply legalize torture, for no good nor useful purpose.

... I'm not sure if I as a defendant would want to rely on [jury nullification].

Presumably you as a law enforcement officer should be willing to do things that are a lot riskier than that -- even things that involve a significant risk of immediate death -- to prevent such bombings.

and the knowledge that surrendering to Allied forces would in general ensure that you stayed alive and well, probably saved Allied lives as well as Axis lives many times over.

This is what the people who sit around arguing "al Qaeda don't respect the Geneva conventions, so there's no benefit to us doing so" are incapable of recognizing.

I doubt the good faith of the ticking time bomb defenders. Everyone agrees that in an actual ticking time bomb scenario, where seconds count, a jury would go easy on the Jack Bauer figure who saves Manhattan by torturing some evil terrorist.

Meanwhile, in the real world every country which employs torture uses it on the innocent and guilty alike.

I read that Bowden article when it came out--it wasn't the first pro-torture piece that the Atlantic published in the period after 9/11 and before Abu Ghraib. That was the time when all the "realistic" tough guys were talking that way. Who knows how much of those supposed success stories were actually true? I don't.

As for Israel--anyone who thinks Israel's policies on dealing with terrorism are a model to be followed must be living on some different planet. Getting tough, abusing human rights--yeah, that's certainly made them safer. I don't doubt that Palestinians have similar discussions pointing to the efficacy of terrorism in bringing attention to their cause. It's all worked out great for both sides.

The practical case for torture, assuming that torture does sometimes save lives, is a form of what Hilzoy calls benefit analysis, since it's ignoring the question of whether those lives outweigh the additional lives that might be lost because we accept torture. You can't make a cost-benefit analysis by ignoring costs.

I think that's the best argument you have, and I haven't seen a good response to it.

Dresden, Hiroshima, and Nagasaki occurred in the context of a total war against extremely powerful, aggressive fascist nations. Losing that war would have meant, literally, the enslavement of much of the world, and most likely of the US at some point.

Dresden was arguably not necessary militarily, and may well have been a war crime. There was a stronger strategic argument of necessity for Hiroshima and Nagasaki, but even there an argument could be made that they were war crimes.

In the context of WWII, nobody decided to press the point.

At no point was it US policy to bomb civilian populations, and in fact it was and is US policy to NOT bomb civilian populations. We go to great lengths to avoid it, believe it or not.

To press the analogy into the current context, what stonetools appears to advocate would have us affirm the deliberate bombing of civilian populations as part of our "toolkit" to employ whenever it suited us during wartime.

Further, we would train members of the military in the art and science of bombing civilian populations, so that we could be as effective as possible at it.

if you read the Bowden article, you will see that coercive interrogation has been a standard tool in the anti- terrorism toolbox since the beginning of terrorism.

The beginning of terrorism goes back a long, long way. "Coercive interrogation" covers a lot of ground, some of it torture and some of it not.

Saying that torture has occurred in the past is not really the same as saying that it's been a "standard part of the toolbox". The procedures described in the Kubark manuals etc. are, to my knowledge, illegal. Cowan's stories of jolting the scrotums of Vietcong are interesting, but mostly because it makes me wonder why he's not in jail. Other folks who tortured Vietnamese nationals were prosecuted.

Domestic terrorism has a pretty rich history in this country. Bombings, assassinations (including a presidential assassination), destruction of property, etc. Nothing new there.

The novelty these days is the rush to embrace what used to be widely, if not universally, considered to be illegal and/or constitutional in the interest of keeping ourselves safe.

Thanks -

"At no point was it US policy to bomb civilian populations, and in fact it was and is US policy to NOT bomb civilian populations. We go to great lengths to avoid it, believe it or not."

Eh, what? What was the Tokyo firebomb raid? Sheer carelessness?

I didn't purchase it, to my lasting regret, but I recall seeing a military historian's book on the bombing in the Korean War. Most Korean cities were partially flattened by US bombing. Some were almost totally flattened. Curtis LeMay once said we killed over a million people. (Estimates vary widely, from hundreds of thousands up to millions.)

In Vietnam we supposedly tried to avoid killing civilians, but Canadian journalists (see Michael MaClear's "The Ten Thousand Day War") said that the southern part of North Vietnam was a moonscape, with no building left intact. More carelessness. Actually, I almost believe this. Americans have a finely developed sense of self-deception when it comes to our wartime behavior and it wouldn't surprise me in the least that the people engaged in leveling entire regions thought they were trying to avoid civilian casualties.

In the Iraq war, there's some attempt at avoiding civilian casualties. Not always. But I don't have the energy to go find that NYT story about the decision to go ahead with air raids that were predicted to lead to the deaths of 30 or more civilians.

@russell:
"At no point was it US policy to bomb civilian populations, and in fact it was and is US policy to NOT bomb civilian populations. We go to great lengths to avoid it, believe it or not".

On the contrary , the deliberate saturation bombing of Japanese cities was the settled policy of the US in the last year of WW2, and it was done without apology or debate in order to save American lives ( nobody gave a damn about Japanese lives).

"To press the analogy into the current context, what stonetools appears to advocate would have us affirm the deliberate bombing of civilian populations as part of our "toolkit" to employ whenever it suited us during wartime.

Further, we would train members of the military in the art and science of bombing civilian populations, so that we could be as effective as possible at it."

In WW2 we did exactly that, modifying the B29s and changing tactics so that we could more effectively incinerate Japanese cities.


"Cowan's stories of jolting the scrotums of Vietcong are interesting, but mostly because it makes me wonder why he's not in jail."

Thats probably because his actions were intended to and were deemed to have saved lives by averting VC attacks.

"Coercive interrogation" covers a lot of ground, some of it torture and some of it not."


Bowden does draw that distinction- and seems to put water boarding in the " coercive" not "torture" column. On the other hand. its doubtful that the ACLU/Amnesty International crowd would allow even the threat of torture. All the more the reason for there to be a serious, open debate as to what techniques SHOULD be allowed

"Domestic terrorism has a pretty rich history in this country. Bombings, assassinations (including a presidential assassination), destruction of property, etc. Nothing new there."

I do think crashing planes into buildings and killing 3000 folks at a time adds something new to the mix.Hitting US targets around the world year in and year out is a bit different from the odd Haymarket bombing.

Bowden does draw that distinction- and seems to put water boarding in the " coercive" not "torture" column.

We sent Japanese military men to prison for waterboarding our men during WWII, so make of that what you will.

I do think crashing planes into buildings and killing 3000 folks at a time adds something new to the mix.

9/11 Changed Everything !!!11!!!!!!1!

Hitting US targets around the world year in and year out is a bit different from the odd Haymarket bombing.

By definition, US targets are in, well, the US, not around the world. If we don't want our military assets targeted elsewhere, perhaps we shouldn't have them, well, elsewhere.

Hilzoy: in fact it was and is US policy to NOT bomb civilian populations. We go to great lengths to avoid it, believe it or not.

I don't believe it, because it's not true. This makes it a weak reed to lean on when discussing bombardment with stonetools.

Current U.S. policy permits extrajudicial killings, i.e. assassination. By means of missiles fired from drones, we killed six men in a vehicle in Yemen in 2002. One of them was said to be involved in the attack on the U.S.S. Cole. Another was said to be a U.S. citizen who had been at an al Qaeda training camp. Said to be by the people who ordered the missiles fired, that is. No need for troublesome arrest, trial, conviction, sentencing: move straight to the execution phase. Who knows who the other four men were?

This kind of attack has continued, with ever-increasing "collateral damage". A good example of where it leads is the U.S. bombing in Somalia, where 100 civilians including women and children were killed in one attack where we were supposedly 'targeting' three men suspected of participation in the African embassy bombings (no sign of them among the dead).

Then there's Iraq and Afghanistan, where bombing from planes and helicopters has been part of the occupation from the beginning, and has increased tremendously over the last year. We've killed thousands of civilians in both countries, always with the excuse that the real targets were "bad guys". In a few cases, photo and survivor evidence has been available to show this to be flatly untrue. In most cases, we blandly deny the outrage from the locals and move on to the next 'target'.

Actual U.S. policy is clearly that we are willing to kill very large numbers of civilians as long as we can claim that the bombs were aimed at official enemies.

"Americans have a finely developed sense of self-deception when it comes to our wartime behavior and it wouldn't surprise me in the least that the people engaged in leveling entire regions thought they were trying to avoid civilian casualties."

I'm reading a history of the Vietnam War right that makes it clear that the area bombing of South Vietnam was all part of our settled policy of attrition, in which we were supposed to save American lives and kill the Viet Cong through firepower.One of the myths that modern Americans swallow is that in our previous wars, we were noble warriors who never engaged in moral compromises. Russell has certainly swallowed that myth whole.


"As for Israel--anyone who thinks Israel's policies on dealing with terrorism are a model to be followed must be living on some different planet."

Hilzoy likes their model:-).
Again , though, I have not seen YOU come up with a better approach. If Bowden's approach is wrong, whats your better option? And no, pretending that " ticking bomb scenarios" NEVER happen won't cut it. Lets stay reality based here.

Sorry, that was russell, not hilzoy, on the U.S. bombing policy.

@dajafi: Thanks for not snapping back at my snapping. The order change might have helped, because I was reacting to the earlier parts of your post.

And you get points for honesty about your feelings. It strengthens the case for the approach you support, an absolute no-torture policy.

@stonetools:

Several people here have articulated the "better approach": All torture is illegal, period.

In the extremely rare case of an actual imminent threat, a trial will sort things out. Being able to count on allegations of torture being investigated and acts of it prosecuted or punished is essential.

Anything less than that, and you have a policy of torture, whether explicitly or implicitly.

russell: At no point was it US policy to bomb civilian populations, and in fact it was and is US policy to NOT bomb civilian populations. We go to great lengths to avoid it, believe it or not.

If it were US policy to NOT bomb civilian populations, it would be US policy NOT to use cluster bombs. Sorry. This falls over at that point: the US is NOT prepared to go to any great lengths to avoid bombing civilians.

@phil.

"We sent Japanese military men to prison for waterboarding our men during WWII, so make of that what you will."

Given our mass incineration of hundreds of thousands of Japanese civilians through fire bombing in the last year of WW2, I'm not sure we have the high moral ground on this.

"By definition, US targets are in, well, the US, not around the world. If we don't want our military assets targeted elsewhere, perhaps we shouldn't have them, well, elsewhere."

I wasn't aware that the World Trade Center was not on US soil. I guess I need to study my geography. I didn't think of it as a military asset either.
what 911 changed was that the USA finally got it through our thick skulls that we were at war with a terrorist organization that really was aimed at hitting the US as hard as possible, anywhere and any place in the world, including US civilians on US soil.

I frankly doubt that trying to coax info out of hardened terrorists planning their next attack by befriending them is really going to work all the time. Guess that makes me a fascist. Ah well...

As to informed opinion on the torture question, I recommend this thread on Making Light, with particular attention to the comments of Terry Karney, himself a military interrogator.

@Russell: You're right on what our torture policy should be and why. You're just overstating this country's adherence to its stated no-torture policy in the past.

But you're right that this administration has crossed a new line with its open advocacy. Before, we at least tried to hide it -- sponsoring proxy torturers, etc. And that was a much better world, because the wrongness and illegality of torture was a settled, closed question. The issue was what the U.S. was actually doing.

Now we've moved to a situation where there's a national debate on whether it's illegal and wrong, one in which the views of stonetools and his/her ilk are within the bounds of respectable discussion.

Torture Nation.

Actual U.S. policy is clearly that we are willing to kill very large numbers of civilians as long as we can claim that the bombs were aimed at official enemies.

Yes, quite clearly we do bomb civilian populations in pursuit of military targets. However, the later stages of WWII excepted, it's not our policy to deliberately target civilian populations.

Perhaps a distinction without a difference, but there you have it.

I agree that the use of cluster bombs and other inherently indiscriminate ordinance blurs the distinction to the point of it disappearing.

I'm also aware of our carpet bombing policies during Vietnam.

Using any of the above as an argument in favor of the institutionalization of torture is, IMO, kind of wacky. YMMV.

I'm kind of at a loss as to how to take the discussion here any further. We've always considered torture to be wrong, and illegal. Now we want to embrace it as a matter of policy.

Either that stikes you as f*%d up, or it doesn't. It does strike me that way.

To each his own.

Thanks -

stonetools: what 911 changed was that the USA finally got it through our thick skulls that we were at war with a terrorist organization that really was aimed at hitting the US as hard as possible, anywhere and any place in the world, including US civilians on US soil.

In the 1970s, the UK tried to defeat the IRA by any number of unlawful or quasi-lawful means, including torture.

IRA attacks stepped up the more brutal the UK's authorities got with captured IRA members.

How did the UK finally resolve the decades of struggle with the IRA?

By negotiating with hardened terrorists who were probably directly responsible for planning attacks that had killed many people and caused much damage.

How did Bush finally resolve al-Qaeda's long-held grievance against the US?

By withdrawing US military bases from Saudi Arabia, unconditionally giving in to al-Qaeda's key demand only weeks after toppling Saddam Hussein's secular regime in Iraq - which had been another long-held goal of al-Qaeda.

Negotiation would probably have been better long-term than outright surrender, but Bush's capitulation to al-Qaeda's key grievance did show a certain understanding that, in order to stop terrorist attacks, you have to give them something that they want.

Russell: However, the later stages of WWII excepted, it's not our policy to deliberately target civilian populations.

It is US policy to use cluster bombs on agrarian land and in rural areas: it is therefore US policy to deliberately target civilian populations, though I admit it's also US policy to argue that the civilians that the US military knows their cluster bombs will kill, aren't "targeted" - even though the bombs are deliberately dropped where the US knows they'll kill civilians - they're "collateral damage".

@nell.

"In the extremely rare case of an actual imminent threat, a trial will sort things out."

I did read that and I'm not satisfied . If all torture is illegal, then you have to rely on jury nullification to exonerate the guy who extracts the ticking bomb info to save the day. In effect, your defense is to tell the jury to ignore the law. i don't like basing a rule of law on hoping that the jury will ignore the law.
For me, the better approach would be a ban with a clearly defined exception and some specificity as to what techniques could be used within that exception.In fact, discussion on what techniques constitute torture seems necessary, since there is some disagreement on this thread as to what constitutes torture. most people think that water boarding is torture, but what about a death threat? Is the good cop-bad cop routine torture? The good thing about the Bowden article is that truly discusses these options, rather than just making a blanket declaration" all coercion of any kind is torture and therefore forbidden."
Now such a discussion isn't for the squeamish or the morally pure. Counter terrorist interrogation is a nasty business. but having a bomb go off that kills a hundred civilians is even worse.

Given our mass incineration of hundreds of thousands of Japanese civilians through fire bombing in the last year of WW2, I'm not sure we have the high moral ground on this.

Who's talking about moral high ground? You're trying to articulate a position on waterboarding by claiming that so-and-so thinks it isn't torture, I'm telling you that, in prior military engagements, we have treated it as a war crime when used against us. That's either a data point in articulating a policy or it ain't, son. If you're interested in what Bowden thinks, surely you're interested in what the US military high command thinks or has thought. Or not, your decision.

"By definition, US targets are in, well, the US, not around the world. If we don't want our military assets targeted elsewhere, perhaps we shouldn't have them, well, elsewhere."

I wasn't aware that the World Trade Center was not on US soil.

This is a textbook case of missing the point. Your reference was to "US targets around the world." "US targets" aren't around the world. They're in the US.

I guess I need to study my geography. I didn't think of it as a military asset either.

More point-missing. Read for context, son.

what 911 changed was that the USA finally got it through our thick skulls that we were at war with a terrorist organization

No we aren't. A conflict in which no person or body is empowered to negotiate, sue for peace, surrender, etc. is not a war.

I frankly doubt that trying to coax info out of hardened terrorists planning their next attack by befriending them is really going to work all the time. Guess that makes me a fascist. Ah well...

You may or may not be fascist. If you are, well, so much the worse for you, but trying to play the "poor beleaguered me" card by whipping out a word nobody has called you is kinda sorta pathetic. No, wait -- scratch "kinda sorta."

As for your opinions on how we will and won't get information from people who might be a danger to us, well, I'm going to go out on a limb here -- you tell me which of these things are true:

1. You do not work in a policy-making capacity for the US government.
2. You are not active duty or retired military.
3. You do not work for the CIA, NSA or any other intelligence organ, as an interrogator, analyst, or anything else.
4. Your extensive research into the topic consists of reading The Atlantic and some books.

I'll bet $25 that one of those things is true, $50 that two or more of them are true, and $100 that all four are true. Therefore your opinion on what is and isn't effective, necessary, moral, forbidden, etc. is of fairly limited value to me.

I'm not trying to blame anybody , just trying to pose the issue- without illusion and without hand waving.

Right. That's why, if some hypothetical terrorist hypothetically blows up a hypothetical Washington DC metro stop or restaurant, hilzoy and russell will "have a lot to answer for." Yep, just posin' some issues.

If all torture is illegal, then you have to rely on jury nullification to exonerate the guy who extracts the ticking bomb info to save the day.

These are people who are trained to take a bullet when necessary. I'm sure they'll be able to cowboy up.

If you think that such a campaign could NEVER happen in DC, NY, or Detroit, well , you need to wake up.

Supercilious, self-important internet people telling me to "wake up" = "plonk." Have fun storming the castle.

""As for Israel--anyone who thinks Israel's policies on dealing with terrorism are a model to be followed must be living on some different planet."

Hilzoy likes their model:-)."

???

stonetools: If all torture is illegal, then you have to rely on jury nullification to exonerate the guy who extracts the ticking bomb info to save the day. In effect, your defense is to tell the jury to ignore the law.

No. The solution is that if someone did something that would normally be considered abominable and illegal, but it's clear that circumstances absolutely justified them in doing that thing, then you should have confidence that jury nullification will work: that if it's so clear the circumstances justified the act, the jury will simply use their collective judgement and find the defendant not guilty.

The problem with relying on jury nullification for torture is that there is no known instance in the real world where a torturer's circumstances justified them committing torture. (In the real world, of course, this doesn't mean an American court won't acquit an American soldier who tortured an Iraqi PoW to death: that's happened.)

"Therefore your opinion on what is and isn't effective, necessary, moral, forbidden, etc. is of fairly limited value to me."

I'm willing to bet $500 that those things are true for you too -which means that your fulminations are of limited value to me also. In fact, I'm sure that they are true of all or most of the contributors to this thread, so i guess we should all just shut up for your benefit.
Thanks for the rant though. Its always nice to know that I touched a nerve.

2hilzoy:

"Hilzoy likes their model:-)."

???"

I'm sorry, hilzoy, my understanding is that the Israeli Supreme Court recently re-instituted their ban on torture, which I believe is your position. If I mis-stated it, my apologies.

@ Jesurgislac :

"The problem with relying on jury nullification for torture is that there is no known instance in the real world where a torturer's circumstances justified them committing torture. "

Generally, what happens is that these things simply don't get to court. Everything is hidden from the public eye, because coercion isn't supposed to be happening-even if we know it is. My preference is really to find a way to bring it out in the open somehow- which won't happen if the interrogators know that they will be prosecuted,even if they did elicit actionable info.

My preference is really to find a way to bring it out in the open somehow

Certainly it can be brought out into the open that the US tortures prisoners. Indeed, as you see, it is. But having a preference for bringing torture out into the open by making it legal rather begs the question of why it would matter that it was legal in the first place. There is no known instance of torture providing useful information, whereas in the past six or seven years there are many examples of tortured prisoners - or prisoners threatened that family/loved ones would be tortured - providing bogus information to prevent or stop the torture.

Someone being tortured will say anything to get the torture to stop. As long ago as the 16th century the Inquisition argued that it was wrong to use torture to extract an admission of heresy from a suspect, because under torture, anyone would confess to anything...

It is US policy to use cluster bombs on agrarian land and in rural areas

You're right. It's barbaric. I really don't have anything else to offer in reply.

you have to rely on jury nullification to exonerate the guy who extracts the ticking bomb info to save the day.

One difference between you and I, stonetools, is that I'm discussing things that actually are happening, while you are discussing things that are occurring in your imagination.

The US has been systematically torturing people as part of our prosecution of the war on terror for a little over six years. People have been, as a brief list, beaten to death, been suspended with their arms behind their backs, subjected to hypothermia, and, of course, waterboarded. The executive of this country has vigorously resisted every attempt to discover, let alone oversee, what has been going on. They have solicited novel interpretations of the law and the constitution from their lackeys in the DOJ that beggar belief in their logical contortions. Now, they would like to institutionalize this behavior by removing the legal curbs on it.

That's my side.

Someday, somewhere, there might be a hypothetical terrorist who knows everything there is to know about a hypothetical bomb that is hypothetically ticking in a hypothetical US city, but who will not reveal that information in the necessary next five minutes unless we get his nipples in the clamps, pronto.

That's your side.

To embrace torture as a method of intelligence gathering, we will need to cast aside US law, international law, and generations of effort to, ever so slightly, humanize the frequently barbaric means by which the nations of the world conduct their foreign and domestic policies. Quite a few nations will seize upon this as an opportunity to proceed with their own torture regimes with added relish and gusto.

The US does it now, after all.

Lots of folks here have noted the very many pragmatic reasons that torture is bad. I've focussed on the moral case, because IMO it is the more fundamental argument, and the one from which the other ones derive.

Torture isn't wrong because bad results flow from it. Bad results flow from torture because torture is wrong. It's fundamentally wrong, and it poisons everything associated with it.

Open Pandora's box, and it will take a generation or more to shut it again. I say the time to shut it is now.

Of course, YMMV. Good luck to you.

Thanks -

@Russell: Making torture policy does strike me as f***ked up. Even having to debate whether it should be policy strikes me as f***ked up.

So, in case I've been unclear at any point: I very much appreciate your making the moral case against it, and I agree that the moral case is the most fundamental, important argument against torture.

Now to get sixty Senators, 250 members of Congress, and a president who agree. Even if they'll only make pragmatic arguments in public.

@ Jesurgislac and @russell:

There is still the question of what is torture, though. Are ALL coercive interrogation techniques torture? Russell is against torture, but he allows for some coercive techniques. Well,where do we draw the line? US Army interrogators allow for a number of different techniques, including sleep deprivation, climate control, noise attacks, and stress positions. i have a feeling that to Jesurgislac these are ALL torture. Certainly the ACLU and Amnesty International feel that way.

"There is no known instance of torture providing useful information, "


Well, we have been told that these techniques have gotten such actionable info, but since the ones telling us have been the 'torturers', I'm skeptical. I also understand that this stuff really can't be discussed openly and in detail for security reasons.Mark Bowden's article seems to indicate that the interrogators have had some success using coercive techniques- and while he is for ban, he believes based on his research that these techniques do work and will continue to be used informally

Update. Waterboarding actually did lead to info in the case of Khalid Shiekh Mohammed:

http://blogs.abcnhttp://blogs.abcnnews.com/theblotter/2007/09/how-the-cia-bro.html

"It was an extraordinary amount of time for him to hold out," one former CIA officer told ABCNews.com. "A red-headed female supervisor was in the room when he was being water-boarded. It was humiliating to him. So he held out."

"Then he started talking, and he never stopped," this former officer said. KSM was never water-boarded again, and in hours and hours of conversation with his interrogators, often over a cup of tea, he poured out his soul and the murderous deeds he committed.

"He was sitting across the table from his interrogator, and he just blurted out, 'I killed Daniel Pearl. I killed him Hahal (slit his throat in a ritual fashion).' There was no water-boarding, no belly slapping; just two guys sitting across the table having a cup of tea."

Water-boarding consists of strapping an individual to an inclined board with the person's head slightly lower than the feet and pouring water over the face to simulate drowning. It triggers a gag reflex and can make a person believe death is near. Water-boarding has been denounced as "torture" by human rights groups and many U.S. officials, including Sen. John McCain, R-Ariz., who likened it to a mock execution.

A current CIA official says that KSM actually told interrogators the only reason he confessed was because of the water-boarding.


this doesn't particularly please me. but it does indicate that these techniques can work to produce accurate info.lots of caveats in the article, though.

If someone thinks we are really truly in a ticking time bomb situation, and that torture would actually help, let that person risk a jury trial for her actions.

The problem with that is what exactly is their defense. There is no criminal defense that really fits in with "we had to water board this guy to elicit info to avoid a terrorist bomb going off in downtown DC tomorrow."

Most jurisdictions recognize the defense of necessity, defined by the Model Penal Code as follows:

"Conduct that the actor believes to be necessary to avoid harm or evil to himself or to another is justifiable, provided that: . . . the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged."

As to federal law, the Supreme Court opined in 2001 "that it is an open question whether federal courts ever have authority to recognize a necessity defense not provided by statute." United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 490 (2001). A lower federal court has recently opined:

As a matter of law, a defendant must establish the existence of four elements to be entitled to a necessity defense: (1) that he was faced with a choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4) that there were no other legal alternatives to violating the law.
Raich v. Gonzales, 500 F.3d 850, 859 (9th Cir. 2007), quoting United States v. Aguilar, 883 F.2d 662, 693 (9th Cir. 1989).

As a practical matter, there is little likelihood that someone who arguably violated the law in a "ticking time bomb" situation would be actually prosecuted (especially not by the Department of Justice in the current, fundamentally lawless administration).

Stonetools, using torture to extract confessions is different from using it to save lives. If it's acceptable to use it for getting confessions, then where would the use of torture end?

Torture has a long history of being used to coerce confessions, whether those confessions are true or false. I believe some of KSM's laundry list of confessions are likely true, but I'm hardly confident that they all are. As long as he's confessing, even without torture there's an incentive for him to take on whatever crimes committed by his associates he can.

Stonetools, it's true that the Israeli Supreme Court outlawed torture in 1999--it's also true, according to B'Tselem, that torture continues, though it's less common.

Link

Russell, re your post at March 09, 2008 at 09:01 PM{ *applause*

I don't think anything else needs to be said.

Well, maybe one thing: "There is still the question of what is torture, though. Are ALL coercive interrogation techniques torture?"

It doesn't really matter in pragmatic terms. Carrying out "coerced interrogation" isn't practical if what you want is useful information.

If you agree that torture ought not to be permitted, history tells us that the only way to prevent prisoners being tortured is to ban all forms of what the Gestapo referred to as "harsh interrogation". Because if it is legal/approved to treat enemy prisoners just a little bit brutally, the detaining authorities will always go beyond what is permitted. History has shown this to be a fall with no end to it.

If Peter Bergen is right in this Washington Monthly piece, and he certainly appears to be, then there was in fact no need to torture Ramzi bin al-Shibh and Khalid Sheikh Mohammed, and nothing learned from doing so. Because they said everything they would later say under torture, freely and openly to the Arab media in 2002. Bergen writes:

Before they were captured, they had explained the details of the 9/11 attacks in an April 2002 interview with Yosri Fouda, an Al Jazeera correspondent. Fouda's interviews resolved key questions that investigators still had about the plot—for instance, that United 93 was on its way to destroy the Capitol when it crashed into a field in Pennsylvania, and that al-Qaeda had once contemplated crashing planes into American nuclear facilities. KSM and bin al-Shibh explained how they kept Osama bin Laden, then living in Afghanistan, informed about the timing of the attack, and they laid out the coded correspondence they had conducted with the lead 9/11 pilot, Mohammed Atta.

The CIA provided summaries of the interrogations of KSM and bin al-Shibh to the 9/11 Commission. There is little or no difference between the account that KSM and bin al-Shibh freely volunteered to Fouda in the spring of 2002 and the version the commission published in its 2004 report. Nor was Fouda's reporting difficult to find: he hosted a one-hour documentary on Al Jazeera, wrote a long piece in London's Sunday Times, and coauthored a book, Masterminds of Terror, about KSM and bin al-Shibh. By the time CIA officials captured the pair, a full account of their operations was only a Google search away.

Which demonstrates once again that Bush/Cheney administration lies and evil choices are worse than you'd think even when factoring in that they're worse than you'd think.

And I'd be interested to hear what 'ticking timb bombs' the torture of KSM revealed. Jose Padilla with his swinging-bucket-centerfuge?

"Carrying out "coerced interrogation" isn't practical if what you want is useful information."

Er, what do you base that on? Again, the Bowden articles make it clear that coercive techniques really DID produce actionable intelligence.

"So when he captured a Vietcong soldier who could warn of ambushes and lead them to hidden troops but who refused to speak, wires were attached to the man's scrotum with alligator clips and electricity was cranked out of a 110-volt generator.

"It worked like a charm," Cowan told me. "The minute the crank started to turn, he was ready to talk. We never had to do more than make it clear we could deliver a jolt. It was the fear more than the pain that made them talk."

http://www.theatlantic.com/doc/200310/bowden

He has other examples, and there is the example of "Thomas" in the Hoffman article.
Now, we prefer to believe what we prefer to be true, and while you would like to believe that coercion NEVER works, frankly the evidence is that it kinda does, sometimes.
None of this is to say that it should not be a tool of last resort, to be used only in imminent danger situations. But in such situations, it may be the lesser evil.

Er, what do you base that on?

The fact that there is no known example of tortured suspects producing useful information. Producing a flood of information which, even when elicited by torture of suspects who are actually guilty of something, will be 90% bogus because hey, what else do you do? and which, when elicited by torturing suspects who know nothing, will be 100% bogus, is not useful.

As soon as possible after capture, a terrorist suspect should be interrogated. A successful interrogator will make the suspect feel that they are the suspect's best friend - will make the suspect want to talk. You don't make people want to talk by torturing them: you make them want to say anything to get the torture to stop. Which (see above) is not how to elicit useful information.

The claim that a Vietcong soldier delivered "useful information" after he was shocked in the balls? Not actually backed up with specific examples, though. Just an old soldier bloviating about how he made a gook squeal.

Torturing prisoners is as useful as boiling black cats alive.

Now, we prefer to believe what we prefer to be true, and while you would like to believe that coercion NEVER works, frankly the evidence is that it kinda does, sometimes.

And a broken clock is right twice a day, too. Doesn't mean it's practical to base a schedule around a broken timepiece.


None of this is to say that it should not be a tool of last resort, to be used only in imminent danger situations. But in such situations, it may be the lesser evil.

CharleyCarp asked the question, but there doesn't seem to be a response, so I'll repeat the query: what 'ticking time bombs' did the torture of KSM reveal? What "imminent danger situations" were averted? As far as the confession goes, it appears to be just that- a confession. (And if Bruce Baugh's link is correct, it wasn't even a "new" confession.) Not a revelation of future ticking time bombs, not a last second Haily Mary tip to avert an "imminent danger situation", not a Crayola-drawn map of future plans and attacks that would save the 1/10/1000+ lives necessary to somehow justify the torture. So how is the waterboarding of KSM justified? Or is the answer hidden somewhere in your vague admission that the article you posted comes with "lots of caveats"?

Here is a piece from The New Yorker that takes a look on the use of torture by US forces in the Philippines and the political/public reactions to it. Nothing new under the sun obviously.
http://www.truthout.org/docs_2006/030808Y.shtml
http://www.newyorker.com/reporting/2008/02/25/080225fa_fact_kramer
It's pieces like this that makes hanging drawing and quartering as punishment for crimes against humanity (and those that advocate or condone it) quite appealing (boiling [crude] oil and mustard gas optional). Retch!

Stonetools, I've finally thought of the analogy I was looking for. There are circumstances under which it would be perfectly lawful for the authorities to burn your house down. With no compensation to you. Really.

This obviously has no bearing on whether they can just show up tomorrow, those circumstances absent, and light it up.

In a context where authorities have been going around lighting up houses, and refuse to be accountable as to whether or not the proper circumstances existed, what is the relevance on someone continually saying 'well, there are times when burning stonetools' house would be a good idea.' I suppose it refutes the people who say it would never be a good idea, but really all it does is put us right back into publius' two prongs: even if it is a good idea -- and I'll never argue that all confessions obtained by torture are false, only that all torture leads to confession -- you can't give account for the second, unless the authorities are going to be answerable for their conduct. And if they can avoid answering all questions, can lie and destroy evidence with impunity, then you've really got nothing at all.

The fact that there is no known example of tortured suspects producing useful information.

The CIA disagrees.

I don't say what I said above to weaken the case against torture, I say it to emphasize that "torture doesn't work" is not a moral argument against torture. In fact, if torture were shown to be or made to be effective, there goes that argument.

Whereas the moral argument lives on, untouched.

The CIA disagrees.

Of course they do. I mean, suppose they did all that torturing and nothing came of it, how would they feel then?

Slart, I didn't see any 'useful information' in that ABC story that came from waterboarding Al Zubaydah. What did I miss?

I've been thinking that they destroyed the tapes of Al Zubaydah's interrogation to conceal evidence of criminality. It just occurred to me, though, to wonder if maybe they destroyed the tapes to conceal evidence of unreliability/nonmateriality. Along with the criminality.

Kiriakou is not the CIA, and I don't think he has direct knowledge (I don't just mean that he wasn't in the room; I mean that it's not at all clear he's basing on this on official interrogation reports rather than on what the general gossip was at the agency from people who did know the details.) I am going to require more than hearsay from the "waterboarding works awesome" crowd. President Bush & George Tenet don't count either; they have obvious motive to lie & have done so repeatedly.

Not that one can rule out the possibility of ANY useful information, & some of the claims about "X gave a useful confession" are plausible even if "the CIA torture program saved Los angeles" are not. But it has not really been proven.

On the Hiroshima/Nagasaki/Dresden arguments: the concept of individual criminal liability for war crimes wasn't strongly established at the time. The United States decided, after the war, to establish it. We ratified the Geneva Conventions. We tried and executed people at Nuremberg. We rejected the defense that their actions were legal under national law. We were well aware that, in Robert Jackson's words, "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow". The idea that World War 2 proves that the world is too ugly a place to prohibit atrocities was rejected by the generation that won World War 2.

Other than the vaguest of generalities. Did they arrest people in the midst of attacks? Were those plots actually ongoing, despite the fact that security was obviously compromised by the capture of Zubaydah?

I haven't really lokked into it myself, but yesterday got into a discussion with a colleague about the wartime Japanese prosecution of American pilots for killing civilians in bombing. The prosecutors involved were later tried for war crimes.

I didn't see any 'useful information' in that ABC story that came from waterboarding Al Zubaydah.

You're probably not going to, either, unless your clearance level goes way up. And in that case, you wouldn't be permitted to comment on it. Catch-22.

Kiriakou is not the CIA

Your use of present tense is noted, Katherine. I'm not sure what your point is, though, beyond what CC is saying. You're not going to get access to a non-government witness, and the government well is already poisoned.

So, how are you going to know, either way?

Again, this is not the best counter-case, IMO.

Slart, my clearance is sufficient to allow me to review summaries of CIA interviews of the likes of Zubaydah. It doesn't help me find anything meaningful in a story posted by ABC to the internet.

That said, I agree with you about the meta point, and am not at all arguing that no 'useful' information was ever obtained through torture. That's a pretty low bar, though: it's useful to know where a captive was born, whether his parents are alive, whether he has brothers. You can find these things out -- you can at least get answers to these questions -- if you torture someone.

Slart, my clearance is sufficient to allow me to review summaries of CIA interviews of the likes of Zubaydah.

Summaries. I wonder how complete those summaries are. Can you discuss your clearance level, or are did you agree not to?

I meant he is not speaking officially for the agency & doesn't seem to have particularly direct knowledge. I agree that they classify everything relevant. I think if there was compelling evidence of how beautifully waterboarding worked they would probably declassify it, but maybe not. I don't have any sources beyond Charley, except that my guess is I've probably looked at the public claims about the intelligence gained through torture a little more thoroughly & seen how flimsy some of them turn out to be. But yes, it's pretty hard to rule out "SOME useful intelligence." I think maybe, just maybe, the burden should be on the people with access to the entire factual record & declassification power to produce some sort of actual evidence of how great torture works--as it is now journalists & human rights groups without either of those things have much better evidence of cases of innnocents being tortured, cases of false confessions, cases of people being tortured to death, etc. Given that it was specific knowledge of the consequences that made me a moral absolutist on this subject, I get pretty annoyed with the view, however well-meant, that specific discussion of the consequences somehow undermines the moral case against torture.

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