"His Treatment Met The Legal Definition of Torture"

by publius

Big story from Bob Woodward today in the Post.  Susan Crawford, the top administration official in charge of detainee trials, went on record to explain why she halted the prosecution of Qahtani (the 20th hijacker turned back at border).  The reason was that she concluded that he had been tortured.  That part’s not exactly news, but it's still very significant that an official at this level would publicly admit that torture tainted an important prosecution.

And that of course is yet another important reason why we need bright line rules in this context.  The moral issues are obvious, but we should never lose sight of the practical problems as well – that is, even if you love torturing evildoers, it’s just not an effective way to achieve your goals.  It’s not merely that torture is unreliable and will inevitably be applied to innocent people, torturing also prevents you from punishing the people who actually deserve to be punished.

There’s no doubt in my mind, for instance, that Qahtani should be in jail – he clearly conspired to murder many Americans and took concrete steps toward that goal.  But because we tortured him relentlessly, we now face the unpleasant dilemma of either (1) not prosecuting him; or (2) prosecuting him by casting aside centuries of precedent and values.  I’m not happy with #1.  In fact, it’s the worst possible choice, except for all the other ones.

Heckuva job guys.

Comments

[Henry]

If we don't prosecute him, then, of course, we should release him. Bush, of course, will not do so, because Bush believes that he can imprison anyone he wants for life without prosecuting and convicting him. Will Obama have the courage to do the right thing? If Qahtani is released and commits a crime against the United States, then will Obama have the courage to say that that is the price we must pay for Bush's torture regime?

[woody]

If we don't prosecute him, he will be getting effectively "presidential" treatment, as demonstrated by the way subsequent regimes avoided prosecuting Nixon, Reagan, as well as Bushes 41 &43, for acts that were tantamount to treason, by all 4.

[AIMAI]

Bob woodward. Bob woodward. The name seems familiar somehow. But I associate him with a gossip column,not with actual reporting. Odd. Still, I suppose this column, since it can be defined as "who could have known?" fits the retrospective style he's adopted in which facts are only acknowledged long after their dissemination has ceased to make any difference. He's become like a third ranked movie reviewer who waits to see the box office returns before daring to venture an opinion.

aimai

[Doctor Science]

Of course we should release him. Pretty much by the definition of torture, he's suffered more than enough.

[md 20/400]

Release him? Sure. But DoD is again pushing stories about recidivist terrorists. I figure this is all about blocking releases.

[Anthony Damiani]

I'm not clear how prosecuting a criminal who has been tortured (in addition to the bastards who tortured him) would be violating centuries of legal tradition.

[AIMAI]

Anthony Damiani,
You can, of course, prosecute him. You can try to prosecute him for crimes he committed before you imprisoned him. Its the all important information you got from him by imprisoning and torturing him that you can't submit to the court--especially you can't offer post imprisonment torture to elicit mere information that was beneficial to you as proof that it was ok to imprison and torture him in the first place.

In fact, if you'd had any real evidence of his crimes or his intention to commit crimes outside the scope of his confession you could have offered those to the court as proof to convict him of something long ago. But since the very reason you tortured him is that you had no other evidence of his supposed past or future crimes you don't have much third party actual, you know, evidence, to offer the court on this go around.

My own feeling is that we should proceed with regular prosecutions of all our prisoners, subject to all the laws about confessions, torture, etc... but that the government prosecutors should be forced to endure all levels of discovery that the defense lawyers propose. Names, dates, torture formats, record keeping, etc...without being allowed to plead any kind of "under color of office" or "national security" exclusions. If any of the individual torturers want to plead the Jack Bauer "necessity" excuse *force them to do so* and include the entire chain of command.

Also, let the civil suits begin. The poor bastards we locked up for seven years should be recompensed.

aimai

[Ben Alpers]

The moral issues are obvious, but we should never lose sight of the practical problems as well – that is, even if you love torturing evildoers, it’s just not an effective way to achieve your goals.

I've said this before, but that depends on what your goals are.

If your goals are intelligence gathering, let alone prosecution in the US legal system, torture is not merely ineffective, it even undermines the achievement of your goals.

But if your goal is to terrorize a population into submission, torture, at least in the short run, can be quite effective, which is why totalitarian regimes tend to engage in it. The world's torturers are evil, but they're not entirely stupid.

[tomeck]

I'm with Aimai on this. Prosecute even if your case is a worthless because of the torture. And use it to establish the record of the Bush Administration. When these guys get let off because of tainted evidence, let it be on Bush's head.

[AIMAI]

Sure, ben alpers, torturing your own population can be extremely effective. But can anyone show me a case where torturing *someone else's citizens and subjects* has worked to make the torturing polity safer? Its really clear that whatever we were up to in Abu Ghraib actually sparked violent reprisal against US troops and even motivated individuals from countries were weren't, nominally, affecting to join the battle.

Let us acknowledge up front what torture is for, in a political sense--torture is for the torturers and their home support. Bush and his 24 addicted followers more or less came right out and said it, a President proves his love for his people by willing to do the most heinous things for them and they prove their love for him by letting him, applauding him, and defending him. Like other forms of fraternity hazing and cult indoctrination getting new members to voluntarily accept disgusting acts as the price of membership is a twofer--it cuts the new member off from his previous social circle and, by isolating him from his previous moral groundings, leaves him nowhere to go but to his new found "friends."

So, yeah, torture works--if what you want is to create a set of citizens who accept, in an almost pathologically childish way, that only by allowing daddy to hurt the bad people can we all be safe.

aimai

[Ben Alpers]

But can anyone show me a case where torturing *someone else's citizens and subjects* has worked to make the torturing polity safer?

The goal of most regimes that torture is probably not a safer polity, per se, but more the health of the regime itself. But you raise an interesting question, amai.

I guess it depends on what one considers one's own population. Certainly the Russian Empire and the Soviet Union used torture (among other forms of coercion) to discourage nationalist uprisings among many non-Russian nationalities, though strictly speaking those non-Russians were the regimes' own population and citizens.

I think it's an open question what the Bush administration actually thought it would accomplish with its policy of torture. I agree that some of it was for domestic consumption. But some of it was also supposed to be secret, so it cannot simply have been about "educating" the folks back home.

My guess--and it's only a guess--is that a lot of people in the administration completely bought into the Green Lantern Theory of Geopolitics, i.e. that the U.S. can succeed in any overseas venture provided it has the will. For Green Lantern believers, torture is, as much as anything, an expression of will.

[Porcupine_Pal]

The victims of US torture sound as if they are more than a little bit damaged. They sound incompetent. Dangerous to themselves or others as evidenced by acts or threats of violence such as attempted suicide. If they meet this criterion, they ought to be hospitalized for their own and others' protection, until they can be restored to competence.

Then we can figure out where to send them.

[Caravelle]

There’s no doubt in my mind, for instance, that Qahtani should be in jail – he clearly conspired to murder many Americans and took concrete steps toward that goal.

But why should he be in jail ? For punishment ? He was tortured for years, he was plenty punished. In fact by the standards of the US justice system's scale of punishments, "society" probably owes him a debt.

To keep him off the streets ? If he's gone nuts à la Padilla I don't think he'll be a huge problem. If not... well, even then torturing a guy and then saying "we'll keep you in jail now because we don't want you free to hurt us" seems really... hypocritical. Just murder him already.
Anyway, the "keeping him off the streets" reason is a practical issue, not a moral one.

Point is, it's not a legal nicety of "he should be in jail but he was tortured so we can't do it". If he was tortured, he shouldn't go to jail.

[Nell]

What's Susan Crawford's objective here? Sorry, after all this time, given who she is, I'm not giving any benefits of the doubt.

My best guess: To project that only Qahtani and a few others were subjected to treatment that "met the legal definition of torture". Which is a crock; hundreds, if not thousands, have been tortured.

Second best guess: To tie the can to a man who's among the most convincing in terms of an actual threat of attack against American civilians, while the "detainees return to the battlefield" noise machine is going, and so turn up the heat on Obama for continuing to hold him and coming up with a vile new form of star chamber "court" in which to try him.

Probably both.

And who better to carry the criminals' message than village messenger Bob Woodward?

[rici]

There’s no doubt in my mind, for instance, that Qahtani should be in jail – he clearly conspired to murder many Americans and took concrete steps toward that goal.

Sorry, did I hear someone mutter something about "due process"? "Innocent until proven guilty?"

Perhaps I'm missing something here, but there seems to be no valid evidence against him. Even the confession extracted under torture does not indicate that he knew anything about what he was allegedly expected to do, and for all we know he might have told them to shove it when he found out (assuming that he was indeed sent to the US to take part, which itself has not really been proven.)

[Feddie]

Torture is never morally permissible. Never.

[Hartmut]

I agree with Feddie. run for cover, the sky's coming down ;-)
A slightly OT question for Gary: There is a SF story where a whole civilization is based on the torture of a child. Can you remember who wrote that? Heinlein, Dick?

[logopetria]

Hartmut:

Are you thinking of "The Ones Who Walk Away from Omelas" by Ursula K. Le Guin?

http://en.wikipedia.org/wiki/The_Ones_Who_Walk_Away_from_Omelas

[Anarch]

For Green Lantern believers, torture is, as much as anything, an expression of will.

Not quite: for them, torture is the triumph of the will.

[Gary Farber]

What logopetria said.

The whole (very short) story, almost surely in violation of copyright, is here at the moment.

[Hartmut]

Thank you logopetria and Gary , sounds like it.

[CharleyCarp]

Damiani: United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974)