Clear as Mud
Which is what you get smeared with if you try to have a serious discussion of this issue. Bowden gets whacked with hate mail, feels compelled to reargue an argument that was made pretty well the first time. In doing so highlights and fails to resolve the one major flaw in his argument. Clarification on waterboarding, Philadelphia Inquirer:
Few subjects I have written about in this column in 2007 provoked such an outpouring of response as the one last week about the waterboarding of al-Qaeda leader Abu Zubaydah.
In a nutshell, I argued that torture in all its forms should be banned, but that in some instances, as with the waterboarding of Zubaydah, it is defensible. The trial and punishment of those who break the law is always subject to the discretion of prosecutors, juries and judges. In rare cases, such as Zubaydah’s, in which a coercive method is employed to prevent a greater wrong, the interrogators involved should not be prosecuted.
Many readers found this outrageous. I received the usual cascade of comment from the Sandbox School of Argument, the name-callers and those whose idea of persuasion is to state their own opinion loudly - lots of capital letters, bold type and underlinings. Several responders belong to the Ostrich School; they won’t be reading this because they have forsworn reading anything I ever again write, presumably on the assumption that if you ignore opinions you don’t like, they go away.
Most of the responses were polite and thoughtful, and some actually agreed with me. The biggest confusion stemmed from my apparent failure to state the argument above clearly, because many were outraged by my presumed willingness to “allow” torture. So I will try to approach the same point in a different way.
When researching this topic in 2003 for an essay in the Atlantic, I met an impressive young woman in Tel Aviv named Jessica Montell. She headed a human rights organization called B’Tselem, which had successfully sued the Israeli Defense Forces to ban all forms of coercive interrogation.
Here is how Montell framed the same point:
“If I as an interrogator feel that the person in front of me has information that can prevent a catastrophe from happening, I imagine I would do what I would have to do in order to prevent that catastrophe from happening. The state’s obligation is then to put me on trial for breaking the law. Then I can come and say: ‘These are the facts that I had at my disposal. This is what I believed at the time. This is what I thought it was necessary to do.’ I can evoke the defense of necessity, and then the court decides whether or not it’s reasonable that I broke the law. . . . But it has to be that I broke the law. It can’t be that there’s some prior license for me to abuse people.”
I suspect Montell would prefer to see the interrogators of Zubaydah prosecuted, at which point they could raise the defense of necessity. I argued that if official accounts of Zubaydah’s history of mass murder, and of his handling during questioning, were true (and various investigations are under way), then his interrogators should not even be charged.
Another school of thought took me to task for placing such a risky burden on interrogators. One former military interrogator wrote that the ban I proposed “would put brave men and women who are charged with protecting us in the untenable situation of breaking the law for doing what’s right and necessary.”
But placing interrogators in such legal jeopardy is the only way to prevent large-scale abuses.
Not really. We’re told the decision to waterboard three high-ranking terrorism suspects was made at a higher level at the CIA. Not clear how high. How about this. Formalize, bureaucratize the necessity defense, which is already accepted situationally, as a roll of the dice in court. But don’t place this terrible responsibility on low-level military or CIA interrogators or even mid or high-level officers and directors. Place it on their highest command. Place it on the president and select members of the House and Senate intelligence committees who are brave enough to assume this terrible responsibility, to meet the real-time intelligence demands of a war on terrorism. And save thousands of lives. Let them justify it when the war is over. Let the tribunals judge them.
That assumes, of course, you are OK with any degree of discomfort as a means of coercing vital information. Waterboarding reportedly is a process that doesn’t create any injury or lasting physical harm, rather a temporary sensation of drowning, which creates fear. On a continuum that starts with speaking harshly and has at its other extreme measures such as electric shock, pulled fingernails, drilled kneecaps, and the rape and execution of the subject’s loved ones and companions, waterboarding is maybe a quarter of the way along.
If any application of discomfort is a violation of human rights, then illegal combatants engaged in terrorism have to be treated like civil criminals, read their rights, interrogated with lawyers present, and there should be an end to all the measures of sleep deprivation, hooding, loud noise, stress positions, etc. There are people who actually believe that.
Prior:
In Defense of Waterboarding re Bowden’s earlier column.
Waterboarding endorsed by Allah!
Waterboarding OK. Guess who else had no problem with it.
Posted by Jules Crittenden at 9:56 am on Sunday, December 30, 2007
10 Responses to “Clear as Mud”
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December 30th, 2007 at 11:09 am
Jules,
Any serious discussion of this issue must start by recognizing that terrorists are not covered by the Geneva Convention. Such popular terrorist techniques as: firing from mosques, storing weapons in schools, setting up attack positions inside civilian housing, using civilians as human shields, not fighting in a uniform, are all classified by the Geneva Convention as the war crime of perfidy.
Art 37. Prohibition of Perfidy
1. It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy. The following acts are
examples of perfidy:
(a) the feigning of an intent to negotiate under a flag of truce or of a surrender;
(b) the feigning of an incapacitation by wounds or sickness;
(c) the feigning of civilian, non-combatant status; and
(d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.
December 30th, 2007 at 12:21 pm
Any serious discussion of this issue must start by recognizing that terrorists are not covered by the Geneva Convention
But there are other treaties that the US has signed onto - as well as US law - which forbid the torture of anyone held by the US.
I have no links handy; my broadband is up and down this morning. But I’m pretty sure a google can bring up the relevant statutes.
December 30th, 2007 at 2:10 pm
What Bowden and Montell propose is completely morally bankrupt, and shame on Montell and the Israeli judiciary who went along with her lawsuit.
Both essentially agree that at some point waterboarding, or even actual torture, is necessary, and they want others, interrogators, to do it “when necessary” to save them (Bowden and Montell). However they still want to then prosecute and imprison (because that’s the logical outcome of a prosecution for something be held accountable for their bankrupt concept.
We have many tools in our arsenal much more destructive, physically and emotionally, than waterboarding and torture. Nukes come to mind, as well as a whole range of conventional methods. Contrary to the rantings of the left, the military does a pretty good job of keeping their use in check, understanding of courthat’s illegal) the very ones who acted on their behalf, Bowden and Montel knowing will never se, that such use often has unpleasant side effects. The same can be done with interrogation techniques.
December 30th, 2007 at 2:17 pm
Somehow my last paragraph above go butchered when I submitted it. It should read as follows:
We have many tools in our arsenal much more destructive, physically and emotionally, than waterboarding and torture. Nukes come to mind, as well as a whole range of conventional methods. Contrary to the rantings of the left, the military does a pretty good job of keeping their use in check, understanding of course that the side effects are often very unpleasant. We have rules and procedures for doing this, that do not require asking the people who devote and risk their lives to keep us safe to “trust us” with a “necessity defense” when it comes time to use those weapons. People who exceed the boundaries of these rules are still prosecutable for their conduct. We don’t tell people that “if it gets really bad, we want you to break the law, but don’t worry we’ll take care of you.” Despicable.
December 30th, 2007 at 2:41 pm
Jules;
Your solution is the only fair and sane response. Kant’s “greatest good for the greatest number” is not an infallible guide, but there are situations where it must apply, and the accountability for selecting them you suggest is very straightforward.
However. The problem exists of the “emergency”, the crisis that arises in the field with no time for the referral upstairs to work if there is no directly pertinent clause in the regulations, or if they have become so arcane as to be ambiguous (which happens so often one has to suspect deliberate intent). in fact, I doubt that the bureaucratic guidelines can anticipate all situations; regs written with the intent to do so in any area become insufferably voluminous and verbose.
But the attempt has to be made, with every effort made to stay short, concise, and goals-based.
December 30th, 2007 at 3:50 pm
Rest assured that at some point someone in the judicial process will become lazy, or some prosecutor will have his eye on a promotion, and a similar situation to the Border Patrol agents, who were jailed for doing their job, will happen. Shooting at a piece of scum who isn’t a citizen and intent on doing some form of harm to society isn’t grounds for prison time. It may be argued that the agents engaged in some form of procedural malfeasance, if so, there are interdepartmental procedures that can be applied.
December 30th, 2007 at 4:21 pm
Sorry, I didn’t finish the thought. When one depends on the decision of another person who is not intimately involved in the process then the dependent individual could lose. if we look at the judicial decisions lately where child rapists are let off with probation how can anyone voluntarily desire to have their freedom adjudicated by that same system. The thinking is skewed
We have a case here in Washington State of a man who shot and killed an intruder who was inside his house. The defender is now being investigated as to whether he was within his rights to shoot. If the case goes before a judge who believes in gun control then what evidence will be excluded or what evidence will be included could determine his freedom. The same could be said of an interrogator who used techniques of moderate means but which scared the hell out of the one being interrogated. The definition of torture at the bench could influence the outcome of the case. I no longer believe in the impartiality of the judicial system.
December 30th, 2007 at 7:54 pm
We have a case here in Washington State of a man who shot and killed an intruder who was inside his house. The defender is now being investigated as to whether he was within his rights to shoot
Yes, but the necessity defense applies to private citizens.
What about public officials or those who swear to uphold the laws of the land?
May they violate laws because it was necessary, as they saw it, to prevent a greater harm?
SMG
December 31st, 2007 at 12:41 am
“That assumes, of course, you are OK with any degree of discomfort as a means of coercing vital information.”
That’s key for most folks, with the lefties coming down on the negative side.
I always refer to this when debating:
“If we are to succeed in the war against terrorism, we surely must do much more than defend ourselves against terrorist attacks. The broader task is to do whatever can be reasonably and legitimately done to address the causes of terrorism, as well as the motivations of terrorists to target the United States. In my view, such measures must include great changes in American foreign policy—a far more balanced policy in the Israeli–Palestinian conflict, for example, as well as a general policy of military noninterventionism, except in those few cases in which truly vital national interests are at stake. Meanwhile, though, we need to prevent attacks on American cities.
In attempting to do so, we confront a terrible dilemma. On the one hand, of course torture violates a central moral command of any civilized society; as a number of recent writers have emphasized—as if there were contrary views that needed refuting—torture is evil, antithetical to the values for which America stands, and destructive of the souls of the torturer as well as the ortured. Similarly, it has often been said that the war on terrorism is a war to preserve American values, so that if we resort to torture “the terrorists will have won,” and the like.
On the other hand, the rhetoric does not do justice to the complexity of the problem and it will not do to simply dwell on the undoubted horrors of torture without consideration of the even greater horrors entailed in the mass murder of innocents. The crisis is unprecedented, the stakes are catastrophically high, and values are in conflict. Self-defense and the protection of innocent lives are also important values, and the terrorists will have “won” even more decisively if they succeed in destroying cities, the national economy, and possibly, the entire fabric of liberal democracy. Indeed, it should be regarded as instructive that it is not merely the United States but also some of the most civilized European liberal democracies that have evidently found it necessary to sometimes effectively condone or at least acquiesce in the torture of terrorist suspects.
Put differently, so long as the threat of large-scale terrorist attacks against innocents is taken seriously, as it must be, it is neither practicable nor morally persuasive to absolutely prohibit the physical coercion or even outright torture of captured terrorist plotters—undoubtedly evils, but lesser evils than preventable mass murder. In any case, although the torture issue is still debatable today, assuredly the next major attack on the United States—or perhaps Europe—will make it moot. At that point, the only room for practical choice will be between controlled and uncontrolled torture—if we are lucky. Far better, then, to avoid easy rhetoric and think through the issue while we still have the luxury of doing so.”
See Jerome Slater, “Tragic Choices in the War on Terrorism:
Should We Try to Regulate and
Control Torture?”:
http://www.psqonline.org/cgi-bin/99_article.cgi?byear=2006&bmonth=summer&a=01free&format=view
December 31st, 2007 at 2:35 am
The argument is about whether torture=coercion.
Coersion: 2. To compel or constrain to any action; as, to coerce a man
to vote for a certain candidate.
1913 Webster
Torture: 1. Extreme pain; anguish of body or mind; pang; agony;
torment; as, torture of mind. –Shak.
1913 Webster
There is a wide range of action incorporated in the term coerce while torture is rather narrowly defined. Torture is not one of the activities that we associate with this society but coercion is. We coerce nations to achieve goals, like middle east peace for Israel, or to form coalitions. Why we would do it for nations or tribes or groups and not use coercion for individuals is beyond me. It would seem that the prohibition has only a political genesis.