Freedom on the March

by Kieran Healy on December 3, 2004

The news services report the latest effort by legal officials of the U.S. Government to get Americans to agree that the use of torture by the military is no big deal:

WASHINGTON —U.S. military panels reviewing the detention of foreigners as enemy combatants are allowed to use evidence gained by torture in deciding whether to keep them imprisoned at Guantanamo Bay, Cuba, the government conceded in court Thursday. The acknowledgment by Principal Deputy Associate Attorney General Brian Boyle came during a U.S. District Court hearing on lawsuits brought by some of the 550 foreigners imprisoned at the U.S. naval base in Cuba. The lawsuits challenge their detention without charges for up to three years so far.

Attorneys for the prisoners said some were held solely on evidence gained by torture, which they said violated fundamental fairness and U.S. due-process standards. But Boyle argued in a similar hearing Wednesday that the prisoners “have no constitutional rights enforceable in this court.”

U.S. District Judge Richard Leon asked whether a detention would be illegal if it were based solely on evidence gathered by torture, because “torture is illegal. We all know that.” Boyle replied that if the military’s combatant status-review tribunals “determine that evidence of questionable provenance were reliable, nothing in the due-process clause prohibits them from relying on it.”

I look forward to some analysis of this exchange by a good lawyer. (A good lawyer with some sense about what issues are worth their time, I mean.) It seems to me that the government wants to let military tribunals do whatever they like. Boyle’s claim seems to be that in balancing the reliability of any piece of evidence against its “questionable provenance” (i.e., whether it was beaten out of a detainee), the status-review tribunal should not only lean towards reliability but also get to pick and choose how questionable a “provenance” is too questionable.

Torture is a moral problem first and foremost, and Jim Henley’s argument for why the U.S. shouldn’t be pursuing it (“Because we’re the fucking United States of America“) is the right one.[1] If you’re thinking of bringing up ticking nuclear bomb cases in the comments, go have a read of Belle’s earlier post about them first. Such cases are useful for thinking about limits, but they’re the wrong way to focus the debate in this case, because they have nothing to say about the institutionalization torture within the machinery of the state. That process is more a matter of political and organizational sociology: the tendency of bureaucrats, for example, to want to arbitrarily extend their powers and escape systems designed to oversee them. Its consequences are, at least to begin with, something for the strategic foreign-policy crowd to deal with. Even if moral arguments mean nothing to you (i.e., you are a sociopath) there is still an overwhelming realist case for not routinizing torture because of the risks it exposes your own people to down the road.

It still amazes me, by the way, that people who don’t trust the government to assess their taxes properly don’t seem to mind giving it the power to arbitrarily detain and torture them.

fn1. As Arthur Silber points out, this is a special case of the more general anti-torture argument that goes “Because we’re human beings“.

{ 85 comments }

1

Katherine 12.03.04 at 6:30 pm

The government is arguing for rules of evidence that allow for the admission of any evidence as long as the military judge decides it is a a reliable basis for decision.

The defense attorneys are arguing that it can’t be left only to the military judge, and due process requires that all evidence gained under torture be excluded, and the district court should order this.

I don’t think any military judge worth his salt would conclude that any evidence obtained under torture could ever be reliable. I am told that the military judges in charges of these tribunals are people of integrity who take their jobs seriously. However, I have done a lot of research that strongly suggests that the United States has sent a suspect to be tortured in Syria, when the only real evidence against him was other suspects’ confession under torture in Syria. It now looks like the guy was totally innocent. It also looks like the other suspects may well have been innocent.

I have done further research that suggests at least two Guantanamo detainees were sent by the United States to Egyptian prisons from Indonesia and Australia, tortured in Egypt, and then flown to Guantanamo where they were allegedly denied medical care as an interrogation technique.

So I don’t trust the Bush administration even a little. I have some trust in the military judges on a personal level, but I don’t think they will be able to make these real trials without some assistance from Article III courts. I would also really like to see the Bush administration given a disincentive to torturing prisoners. A per se exclusion of evidence obtained under torture would do this.

caveat: not a real lawyer, just a law student.

2

Randy Paul 12.03.04 at 6:53 pm

Article 15 of the Convention Against Torture:

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

What do they not understand about that?

3

abb1 12.03.04 at 6:56 pm

Even if moral arguments mean nothing to you (i.e., you are a sociopath) there is still an overwhelming realist case for not routinizing torture because of the risks it exposes your own people to down the road.

If I were a sociopath with tribal mentality – I wouldn’t see much of an overwhelming realist case here.

What risks are you talking about – the risk that the US government is going to extend this practice domestically and start torturing filthy hippies and peace activists? Fine with me.

Or the risk is that Saddamite-Islamofascist enemies are going to torture me? But I don’t expect anything else and besides they’ll never get me alive.

Are you sure about the “overwhelming realist case”?

4

Katherine 12.03.04 at 7:09 pm

We ratified with the “understanding” that Articles 1-16 of the Convention are not self executing, meaning not judicially enforceable without separate legislation. The courts usually treat conditions like that as binding.

Our implementing legislation does not, as far as I can tell, explicitly prohibit the use of information obtained under torture. (Not necessarily because the Senate wanted to allow evidence obtained under torture, they probably counted on the exclusionary rule to take care of that.) So if the detainees’ lawyers lose on the due process clause, the treaty will not help them very much. (U.S. treaty law makes me want to bang my head against the wall all day long.)

It is a violation of international law, but what else is new.

5

a different chris 12.03.04 at 7:17 pm

When Bush said “Freedom was on the march” even I didn’t realize that he meant it was marching away from us.

6

Richard Zach 12.03.04 at 7:24 pm

The US had a whole lot of reservations upon signing the Convention against Torture.

A question that is only somewhat relevant in this case but has plagued me for a while, concerning the First Protocol Additional to the Geneva Conventions (from 1977, that’s the one that deals with treatment of guerrila fighters). Do I read the list on the ICRC website correctly: The US did not ratify (and hence is not bound by) this protocol?

7

Abnu 12.03.04 at 7:47 pm

Boyle replied that if the military’s combatant status-review tribunals “determine that evidence of questionable provenance were reliable, nothing in the due-process clause prohibits them from relying on it.”

Kieran misquotes this in one instance as “questionable providence”.

Since Boyle is talking about the “integrity” of the information given under torture, rather than the “source” of the information, a better word might be “probity“.

8

bob mcmanus 12.03.04 at 7:53 pm

Besides torture, I also do not trust evidence obtained under conditions of indefinite detention without access to a lawyer or without adjudication of status. After two or three years I might confess to being in plane #4. But no one seems bothered by this.

If this is my society, then can I choose to be a sociopath?

9

Dan Simon 12.03.04 at 8:04 pm

Are you sure about the “overwhelming realist case”?

Abb1 has once again backed into a perfectly valid point. Americans have no interest that I can see in restraining their use of torture against non-American suspected terrorists. The organizations to which these terrorists belong would not hesitate to use torture on Americans–or, for that matter, kill them outright at every opportunity–so there’s no prospect of a mutual agreement that would trade away the use of torture in return for greater protection of Americans. And as long as a clear distinction is made between American citizens and non-Americans, the risk of torture being used on any of the voters to whom the torturers are accountable is negligible. Thus for Americans to give up the use of torture against non-American detainees captured by the American military would be, as a matter of cold calculation, highly counterproductive.

Even more counterproductive, then, would be the deliberate refusal to use evidence already gathered via torture. (I assume here that the evidence is corroborated–obviously, evidence obtained by torture alone must be considered completely unreliable, as a purely practical matter.) Since the incentive value of reducing torture of non-Americans is negligible, and the potential net loss resulting from freeing a known terrorist is huge, the original rationale for the application of the “exclusionary rule” in American justice is not relevant in these cases.

The more interesting case is the attitude of Europeans–the only people really in a position to argue against the Americans’ use of torture, as far as I can tell. (Citizens of Middle Eastern countries are obviously on rather shakier ground making such complaints.) Now, I don’t doubt that many Europeans see the threat of American torture of non-Americans as greater than the threat of provably guilty terrorists going free. The interesting question is, why? How many Europeans have been tortured by American government personnel in the last several decades? How many Europeans have been murdered by Middle Eastern terrorists in the past several decades? Are the threats even comparable? Why does the clamor about the former so overwhelm concerns about the latter?

10

fantazia 12.03.04 at 8:12 pm

“How many Europeans have been murdered by Middle Eastern terrorists in the past several decades? Are the threats even comparable? Why does the clamor about the former so overwhelm concerns about the latter? “

How many Americans were murdered in Saddam’s torture chambers?

11

Barry 12.03.04 at 8:27 pm

Dan, do you trust the US government to restrict the use of torture to non-(US)-citizens? IIRC, we were promised that US citizens wouldn’d be detained without trial. Until Hamada and Padilla.

12

Katherine 12.03.04 at 8:38 pm

At least one Canadian citizen and one Australian citizen two Swedish asylum seekers has been tortured as a direct result of the U.S. actions. Some of them were probably guilty, but some weren’t. I would guess there are more cases than that that we don’t know about.

“Americans have no interest that I can see in restraining their use of torture against non-American suspected terrorists. The organizations to which these terrorists belong would not hesitate to use torture on Americans—or, for that matter, kill them outright at every opportunity—so there’s no prospect of a mutual agreement that would trade away the use of torture in return for greater protection of Americans. And as long as a clear distinction is made between American citizens and non-Americans, the risk of torture being used on any of the voters to whom the torturers are accountable is negligible.”

Accepting these premises–both more or less correct, I think– your conclusion still fails. It neglects:
1. The possibility that the intelligence gained under torture is less reliable than gained under other interrogation techniques.
2. The possibility that knowledge of torture leads to better recruitment for the Iraqi insurgency and other Islamist terrorists.
3. The possibility that knowledge of torture by U.S. troops leads all insurgents to fight to the death or kill themselves before surrender.
4. The possibility that knowledge of our use of torture leads allied countries to refuse to share intelligence with us or to extradite suspects to us for interrogation.
5. The possibility that knowledge of our use of torture leads allied countries to refuse to support us in other causes, like wars and nuclear non-proliferation efforts.
6. The possibility that, even among Iraqis who do not start fighting actively against the U.S., our use of torture makes them unwilling to cooperate with us & vote for hard line candidates in January or boycott the elections.
7. The possibility that, even among Iraqis and Muslims and Arabs who actively support the U.S. against terrorists and the Iraqi insurgents, the knowledge of our use of torture makes them unwilling to inform on their neighbors, especially if they are uncertain of their neighbors’ guilt.

13

abb1 12.03.04 at 8:45 pm

Abb1 has once again backed into a perfectly valid point.

Well, I should’ve mentioned that there may be also some propaganda value in taking the moral high ground (or, rather, not sliding to the bottom of the hole).

Oh, I see Katherine did spell it out.

Yeah, but at this point it seems that both domestically and internationally the lines have been drawn already; after Abu Ghraib, Falluja, etc. this will hardly add anything new.

14

Dan Hardie 12.03.04 at 8:56 pm

‘Americans have no interest that I can see in restraining their use of torture against non-American suspected terrorists.’

Dan Simon, could I suggest that, if you don’t already do so, you post all comments on this site whilst wearing large floppy shoes, an orange wig, white face paint and a red nose. You really ought to dress appropriately if you’re going to be the site clown.

In the meantime, I suspect that a reasonably bright class of twelve-year olds could, given five minutes, think of ways in which the torture by the United States of non-American citizens could indeed harm American interests. If those twelve-year olds were a bit slow, perhaps the teacher could write a few hints on the board: ‘widespread revulsion and condemnation among non-Americans’, ‘lack of co-operation with US law enforcement agencies’, ‘refusal to extradite terror suspects to US’, ‘refusal to share intelligence on suspects’, ‘increased sympathy for and recruitment of terrorists’, that kind of thing.

15

Thomas 12.03.04 at 9:19 pm

The government didn’t concede this, but claimed it. This is a maximal assertion–we can keep these people even if the only evidence we have is from an illegal source. That argument is likely related to the claim made in a separate hearing, that the prisoners don’t have any constitutional rights enforceable in the courts.

The claim that, whatever the source of the information, there’s nothing in the due process clause preventing its use seems related to the claim that the prisoners have no constitutional rights enforceable in the courts. If they don’t have any due process rights enforceable in the courts, that means they have no due process rights, even when torture is or may be implicated.

Boyle’s claim, then, is that the military tribunals can do what they wish without worrying about whether the civil courts will intervene. It isn’t a claim about what the military tribunals should actually do.

16

Dan Simon 12.03.04 at 9:31 pm

How many Americans were murdered in Saddam’s torture chambers?

No idea. Not very many, I would guess. Are you suggesting that anybody ever tried to justify the overthrow of Saddam Hussein on the grounds that he tortured many Americans?

Dan, do you trust the US government to restrict the use of torture to non-(US)-citizens?

Well, as a non-American living in the US, I’m personally more concerned about the threat to myself and my American friends and acquaintances from Middle Eastern terrorists than from American torturers. Of course, I don’t judge either threat to be very great–thanks to the measures the US government has put in place to minimize both. (Then again, if I were a non-American hanging out with the Taliban in Afghanistan, or the “insurgents” in Iraq….)

1. The possibility that the intelligence gained under torture is less reliable than gained under other interrogation techniques.

We’re only talking about corroborated information here. I assume we’re all in complete agreement that uncorroborated information obtained under torture is highly unreliable, and should therefore be discounted on practical grounds.

2. The possibility that knowledge of torture leads to better recruitment for the Iraqi insurgency and other Islamist terrorists.

Propagandists for the Iraqi insurgency and other Islamist terrorists don’t need documentation to accuse the US of torture. Moreover, it’s unclear whether such claims actually encourage or suppress recruitment into these groups. Certainly Saddam Hussein’s well-established record of prolific torture didn’t exactly fill the ranks of his active, operational opposition groups.

3. The possibility that knowledge of torture by U.S. troops leads all insurgents to fight to the death or kill themselves before surrender.

As I understand it, such “dead-ender” tactics are already quite common among the insurgents–as are fake attempts to surrender. Hence, it’s not clear if discouragement of surrender attempts is such a bad thing, from the American point of view.

4. The possibility that knowledge of our use of torture leads allied countries to refuse to share intelligence with us or to extradite suspects to us for interrogation.

Of course, if foreign countries impose sanctions on the US, then that changes the calculation of interests. As I pointed out, though, it’s far from clear why it would be in any ally’s interest to do such a thing.

5. The possibility that knowledge of our use of torture leads allied countries to refuse to support us in other causes, like wars and nuclear non-proliferation efforts.

See above.

6. The possibility that, even among Iraqis who do not start fighting actively against the U.S., our use of torture makes them unwilling to cooperate with us & vote for hard line candidates in January or boycott the elections.

You mean that, out of revulsion against torture, they’d vote for Ba’athists, Zarqawists and Sadrists?

7. The possibility that, even among Iraqis and Muslims and Arabs who actively support the U.S. against terrorists and the Iraqi insurgents, the knowledge of our use of torture makes them unwilling to inform on their neighbors, especially if they are uncertain of their neighbors’ guilt.

Again, if people who turn over neighbors to the Americans as insurgents can be confident of the complete safety of those insurgents, then that strikes me as a far, far more dangerous situation for the informers–and the Americans–than the opposite.

17

Walt Pohl 12.03.04 at 9:40 pm

I’m glad that Dan is not an American. The America I know, the America I grew up in, does not torture people. That America may be vanishing before my eyes, but at least Dan is not part of it.

18

Dan Hardie 12.03.04 at 9:43 pm

Shorter Dan ‘Krusty the Clown’ Simon: The use of torture will cause feelings of revulsion in all normal human beings, so Arabs will be cool with it. And, speaking as a rational, humane individual, I think it’s about time someone pointed out the civilising aspects of sadistic torture.

19

Dan Simon 12.03.04 at 9:50 pm

The America I know, the America I grew up in, does not torture people. That America may be vanishing before my eyes, but at least Dan is not part of it.

Yes, that America vanished before everybody’s eyes–two tall skyscrapers at a time. We’re all sad to see it go–myself no less than anyone else.

20

Dan Hardie 12.03.04 at 9:56 pm

Walt, the guy leaving those repulsive apologias for torture on this site is not actually Dan Simon, but an enemy of the real Dan’s, seeking to discredit him by painting him as a sadistic coward engaging in the most contemptible kind of sophistry.

Message to the clown who is impersonating Dan Simon: if you want to indulge your fantasies of masculine toughness, can’t you do what other little boys do and dream about being a commando? It’s healthier than imagining yourself as a torturer.

21

Katherine 12.03.04 at 9:58 pm

“We’re only talking about corroborated information here. I assume we’re all in complete agreement that uncorroborated information obtained under torture is highly unreliable, and should therefore be discounted on practical grounds.”

Yeah, we agree. Unfortunately there is reason to believe that Bush administration does not agree, as we appear to be sending people to be tortured in Syria when all of the serious evidence against them was obtained under torture in Syria.

Most of your other comments completely overlook the idea of nationalism.

When people belonging to the same group as us commit bad acts, we impute it to the individuals. When people belonging to a different group do it, particularly a group we distrust, we impute it to the group. When their are allegations of bad actions, we are more likely to believe them if they are against members of a group we distrust than a group we belong to.

The Arab world does all this to an extreme degree. That may be wrong of them, but it’s a fact we have to deal with it. And everyone does it to some degree, including us.

Also, if you truly believe that we have no power to influence Arab hearts and minds for good or ill, please never, ever, ever, ever try to sell me the democracy domino theory of the Iraq war. (I don’t know if you have done so, but I vaguely think you have.)

I figured you’d mention the fake surrenders.

The thing is, if there are no genuine surrenders by insurgents, we will have no insurgents to interrogate and get intelligence from. The military generally considers the Geneva convention to be in their interest and torture by U.S. troops to be against their interests. It’s not because they are naive about who Zarqawi is. They know what they’re doing. If “shoot and torture them all” were a good strategy, there would be some attempt to make the rules of engagement reflect this. The rules of engagement say no such thing, and pressure to allow torture has come almost exclusively from the civilian leaders at the defense department and been resisted by the military.

22

kevin 12.03.04 at 10:06 pm

“Yes, that America vanished before everybody’s eyes—two tall skyscrapers at a time. We’re all sad to see it go—myself no less than anyone else.”

No it didn’t. That America was still going strong, even then. Hundreds if not thousands of New Yorkers walked to Ground Zero that day, looking for somehting they could do to help. That America was embodied in them. Millions of Americasn overloaded blood donation centers and the Red Cross, looking for something to do to help. That America was embodied in them, too. That America was even embodied in Goerge W. Bush when he reminded the country that not all Muslims had done the terrible deeds of that day.

It wasn’t until people like you let your fear rob you of your decency and hummaity that that America started to die.

23

Katherine 12.03.04 at 10:07 pm

“Again, if people who turn over neighbors to the Americans as insurgents can be confident of the complete safety of those insurgents, then that strikes me as a far, far more dangerous situation for the informers—and the Americans—than the opposite.”

This one is simply nonsensical. I am not suggesting that we not interrogate and imprison insurgents. I am suggesting that we not torture them. I fail to see what torturing them does to protect the people who turn them in.

It seems more likely to lead to retaliation against informants by the detainees relatives, and more likely to make Iraqis feel like it is morally wrong to collaborate in any way with U.S. intelligence.

24

abb1 12.03.04 at 10:07 pm

He is right, you know: you can’t win this one logically, you have to appeal to morality. Which is a problem, morality is very flexible. You think they are barbarians – they think you’re idiots — dead-end.

I wish they were more open about it, though; it’s hypocrisy that’s frustrating, all that ‘freedom’, ‘democracy’, ‘judeochristian values’ crap.

25

Katherine 12.03.04 at 10:21 pm

kevin–thank you for writing that. It needed to be said.

It’s one of the most disheartening things: we’ve been lucky. I never would have guessed we could go three years without another attack. But instead, even as our initial fear has faded back into complacency, we’re going further and further off the rails morally. Bush appeals to the worst in us, and the Democrats are very often too afraid to appeal to the better angels of our nature.

26

Dan Hardie 12.03.04 at 10:37 pm

While Dan Simon goes back to his box of Kleenex and his collection of Lynndie England photos, can I just ask the Americans here how much public attention is being paid to this story? I presume this will be on the front page of the NYT and the WaPo tomorrow, but what about the TV news channels? Do they take this seriously? Does ‘Middle America’ even know these arguments are being made in court by its government? I’d frankly love the answer to be yes.

One Canadian chickenhawk fantasising about saving civilisation through sadism- that I can cope with. If the US public knows this kind of thing is going on and isn’t protesting against it- that would worry me.

27

Dan Hardie 12.03.04 at 10:41 pm

Sorry, shd read ‘would frankly love the answer to be no’. I can’t believe Americans will just say ‘torture? We can live with that.’ Are the media telling them this is happening?

28

Dan Simon 12.03.04 at 10:50 pm

Dan Hardie:

Shorter Dan ‘Krusty the Clown’ Simon: The use of torture will cause feelings of revulsion in all normal human beings, so Arabs will be cool with it.

Katherine:

When their are allegations of bad actions, we are more likely to believe them if they are against members of a group we distrust than a group we belong to.

The Arab world does all this to an extreme degree. That may be wrong of them, but it’s a fact we have to deal with it.

I’ll let you two fight it out. (Maybe Dan Hardie will even take a moment’s pause from his torrent of empty insults to say something useful.) Personally, I believe that Iraqis are human like anybody else, but that their recent, plentiful experience with torture has left them, shall we say, more realistic than most of the commentators here regarding its effects.

It wasn’t until people like you let your fear rob you of your decency and hummaity that that America started to die.

As far as I can tell, that America is still very much alive–volunteers at blood banks, tolerance for differences, and so on. What’s dying is the America that believes that such things–and such things alone–will save the world from violent Islamist terrorism. It was nice living in an America where that fantasy was sustainable, but that country simply doesn’t exist anymore.

29

Dan Hardie 12.03.04 at 11:06 pm

You have the indecency to call for torture and you’re whining about insults? Beyond parody. Want me to say something useful? Okay. The US Armed Forces take Canadians. You like this war- you join up. Email me and I’ll advise you on fitness and similar matters.

Katherine is quoting soldiers- soldiers, boy, men with the guts to do what you’re frightened to do- who *don’t want to tear up the Geneva Convention* because they *know it protects them*. And the British officers I know think the same thing. Want to know, you ignoramus, the only recent success of a Western army against Arab guerrillas? The British in Oman, 1970-75, due to their use of ‘firqat’- turned guerrillas who defected and fought against their ex-comrades. Kind of unlikely if you torture their relatives, don’t you think?

And gutless scum like you fantasise about *torturing* people and you whine about a few words? (What kind of torture, Dan? Whipping? Electric shocks? Needles under the fingers? Dogs, maybe? Rape of relatives, like Pinochet used, or is that going too far? Would torturers be tried for murder if they killed anyone under interrogation, or would that be no big deal? Come on- you’ve trotted out a lot of empty verbiage in favour of torture- let’s have a few specifics on what kind of torture you favour. Oh, sorry- is that ‘insulting’? Dear me, you do get hurt easily for a prospective torturer.

30

Katherine 12.03.04 at 11:07 pm

Actually, Dan, I find it fucking repulsive that you argue that because Arab governments torture their own people, no Arab has any right to complain when our government tortures Arabs.

There is a double standard when it comes to Israel, but that doesn’t mean it’s okay to shoot unarmed 13 year olds. There is a double standard when it comes to America, but that doesn’t mean it’s okay to torture people. According to your logic, America no longer has any right to criticize Saddam Hussein for torturing his own people, let alone invading the country over it. According to your logic, apartheid is fine because the Rwanda genocide is worse. According to your logic, the United States long ago lost its right to complain about the murder of American civilians on September 11 because we’ve killed many more civilians since then.

You also seem to ACTIVELY WANT TO BELIEVE that torturing Arabs make you safer. Instead of demanding any evidence at all if this is true, you excuse it on those grounds, based on nothing but a bunch of arguments that are completely unsupported by available information and that contradict themselves at every turn.

31

Walt Pohl 12.03.04 at 11:08 pm

I apologize to the real Dan Simon. I will assume for the moment that the fake Dan Simon is an agent of al Quada trying to destroy America from within.

Dan (Hardie): I hope you’re right, but I think there’s is danger of falling into the democratic equivalent of “if the Czar only knew”: if the people only knew. Abu Ghraib got widespread press, and the recent Red Cross report produced front-page headlines, so it’s quite possible that we do know, and many of us don’t care.

32

Katherine 12.03.04 at 11:16 pm

Dan Hardie–it gets some coverage by the major dailies. Sometimes the front page, sometimes not. It never seems to reach the TV networks or lead to direct questions to Bush.

Most people probably know about Abu Ghraib and are choosing to believe the “few bad apples” explanation and Bush’s false assurances. They may be dimly aware of the other accusations. They do not know the extent of it-but I also think, at some level, they don’t want to know the extent of it.

That said, if the press and the Democrats forced the issue and people had to acknowledge what was happening and the extent of the Bush administration’s complicity, I do not think they would accept this. Some Republicans defend torture, but most do not want to believe it.

A lot of people tell me this is wishful thinking on my part. I really don’t think it is, but I could be wrong.

33

kevin 12.03.04 at 11:53 pm

“What’s dying is the America that believes that such things—and such things alone—will save the world from violent Islamist terrorism. It was nice living in an America where that fantasy was sustainable, but that country simply doesn’t exist anymore.”

That world never existed. People always knew that military and police strength were required – -but they also always knew that justice and decency, in the end, meant more. It wasn’t a fantasy, dan, and it is only your overwhelming terror that makes you think it ever was. You have traded your decency and your humanity away because someone tells you that giving it up is the only way to keep you safe. That is the fantasy, dan — that you can defend yourself from monsters by becoming one.

You know why we won the cold war? In the end, it wasn’t our military or nuclear weapons or even the Soviet Unions economic problems (the Chinese have proved a hundred times over that totalitarianism can coexist with capitalism quite well). It was the simple fact that we convinced the Europeans and the Japanese that our ideals were better than theirs. This war will be won the same way.

Yes, military action is sometimes required, as will police action. but in the end, the question comes down to this: which side will be able to convince enough of the Arab Muslim world that its ideals are correct, and thus neuter the other side? The monsters tell the Arabs that they can provide a good life, a safe life, a proud life, for them and their families because the monsters are close to God’s heart and know what God wants. So if you turn life over to them, if you do Gods will as they reveal it to you, they will give you the life for your family that you desire. It is a powerful idea, one hard to defeat.

But we have a better idea: we will let you be your own person, find you own way to heaven, build your own independent life with dignity, free from orders and monsters who dare to tell you what God really wants, protected by the law that you yourself helped create. It has won every single time it has been given a chance to be put in practice, our idea. But it it can only work if it is put into practice. Refuse to practice it, forget its power, lie about your adherence to it, flaunt it’s restrictions, ignore its laws, become a monster in defense of it, and it has no power.

And that’s what you advocate, dan — telling the world a lie, giving up on our ideals so that you can feel safer. Trying to fight a monster by becoming a monster. Instead of a choice between freedom and tyranny, you offer them a choice between an honest tyranny and a lie. Why should they believe in our ideal when we so obviously don’t?

You know what? You have already lost the war on terrorism. Al-Qaeda has gotten into your head, has so frightened you, that you run screaming from everything you know to be right and good in order to feel safe again. And that’s just sad.

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bob mcmanus 12.03.04 at 11:55 pm

“A lot of people tell me this is wishful thinking on my part”

There is a logic to virtue ethics.

1)Bush and Rumsfeld are good people.
2) A good person would not torture unless it was necessary.
3)Bush and Rumsfeld are torturers.
4) Ergo, the torture must be necessary.

A deontologist or consequentialist is open to the notion that a generally good person can make mistakes and do bad things. Someone who judges on character does not believe a person who does a bad thing can be good. Clinton was totally corrupt because of the blowjob, and is not capable of intermittent goodness. Clinton’s heart is stained. Bush is not capable of sustained evil, because he loves Jesus.

35

Dan Simon 12.04.04 at 12:18 am

Actually, Dan, I find it fucking repulsive that you argue that because Arab governments torture their own people, no Arab has any right to complain when our government tortures Arabs.

Allow me to clarify my position: citizens of Arab governments (all of them repressive tyrannies) are in a bit of a bind–they cannot criticize the use of torture in their own countries without risking a dose of it themselves. Hence they can either criticize the much milder cruelties perpetrated by the Americans, while remaining silent about the monstrosities running rampant in their own region–a rather hypocritical public posture–or they can remain silent and trust that we know what they’re most likely thinking: that torture is bad, and that they’d rather everyone avoided its use, except when absolutely necessary.

You also seem to ACTIVELY WANT TO BELIEVE that torturing Arabs make you safer. Instead of demanding any evidence at all if this is true, you excuse it on those grounds, based on nothing but a bunch of arguments that are completely unsupported by available information and that contradict themselves at every turn.

This is a perfectly legitimate point: even if torture is sometimes an awful necessity, gratuitous torture is both awful and unnecessary. And I don’t have access to any of the information that goes into deciding whether torture is used on a particular detainee or not. How, then, do I know that the torture that’s been committed by US government agents in the last few years isn’t totally capricious and indiscriminate?

In fact, I can’t know, in a world where American intelligence isn’t an open book to its enemies. What I can observe, however, is that the torture that is going on seems to be highly selective. For all the yelling that we’ve heard here, the number of actual cases is obviously just a tiny, carefully chosen subset of all the detainees. (At least some of the Abu Ghraib cases may be an exception to that rule–but then, the soldiers responsible are being punished for those lapses.)

I don’t pretend that weighing the necessity of a particular use of torture is an easy task. I welcome serious debate about its moral and practical costs and benefits in various situations. (And let’s not forget that the definition of “torture” in international legal circles is very vague–probably quite deliberately so. The line between “interrogation”, “spartan conditions” or “punishment”, on the one hand, and “torture”, on the other, is often a matter of personal judgment.)

What I reject is the assertion that torture is never of practical value, that its benefits can never outweigh its costs. I consider that position completely unrealistic. The arguments given in its favor here–all of them essentially variations on, “it makes the war harder by alienating the locals”–simply don’t hold water.

36

Dan Simon 12.04.04 at 12:42 am

People always knew that military and police strength were required – -but they also always knew that justice and decency, in the end, meant more. It wasn’t a fantasy, dan, and it is only your overwhelming terror that makes you think it ever was. You have traded your decency and your humanity away because someone tells you that giving it up is the only way to keep you safe. That is the fantasy, dan — that you can defend yourself from monsters by becoming one.

Perhaps you’re unaware how utterly perfectly your rhetoric matches that of a pacifist. The only difference is that you’ve drawn a line in a slightly different place: it’s apparently okay in your book to send soldiers out into the field to hunt the enemy down and kill them, but to torture them under any circumstances is to have abandoned all “justice and decency”. Make the appropriate substitutions in the above paragraph, and it would apply equally well against making war in the first place.

Not that I don’t sympathize with your position. Torture is awful to contemplate. (So is war, for that matter.) We accept these things–when we do, hopefully not too easily, too comfortably, or too often–not because we’re fond of them, but because in a terrible world, they’re sometimes necessary.

I don’t think I’ve become a monster. I share your enthusiasm for societies based on freedom and human dignity. (I don’t share your potted history of the Cold War, though–but that’s another thread….) You will have to explain to me, however, why the compromise you’re willing to make–acceptance of a strong military willing to fight bloody wars in defense of liberty–is so fundamentally different from the extra ones I’m willing to make, that I fit all the horrible adjectives you’ve used to describe me, whereas you’re entitled to wrap yourself in all that unctuous moralizing with nary a pause for self-doubt.

37

Barry 12.04.04 at 12:54 am

BTW, enlisting isn’t the only way to support the war in Iraq. I’m sure that Halliburton is still hiring, as are some US government agencies. Which would eliminate any problems due to age, fitness, etc.

38

Walt Pohl 12.04.04 at 12:54 am

Dan, the fact that you want to do a _cost-benefit analysis_ of torture demonstrates your utter moral depravity. Go out club baby seals for fun, or however else you get your kicks, but cease with your efforts to destroy our national honor.

39

Laura 12.04.04 at 1:53 am

It is very interesting to see that the voice legitimating the use of torture is using “pacifist” as a dirty word and relinquishing any personal responsibility for deciding whether any particular act of torture is an “awful necessity” or not because of lack of access to military intelligence.

Pacifism, of all things, requires the most careful analysis of choices of action and leaves the responsibility and consequences in the hands of the individual. But I guess that’s what scared people do–give up personal responsibility to a greater power (miltary or divine).

Democracy is for grown ups. You have to take responsibility for setting the boundaries of acceptable behavior by your government and its agents.

40

Dan Simon 12.04.04 at 3:17 am

It is very interesting to see that the voice legitimating the use of torture is using “pacifist” as a dirty word

I certainly didn’t use “pacifist” as a dirty word. (It’s my opponents who seem enamored of the dirty words around here.) My point was simply that in the course of his diatribe against my moral character, Kevin took pains to insist that he accepted the obvious necessity of military strength to defend freedom. He then went on to argue against torture using exactly the same rhetoric that pacifists use to argue against the necessity for using military strength to defend freedom. I consider this an inconsistency in his position, and said so.

Democracy is for grown ups. You have to take responsibility for setting the boundaries of acceptable behavior by your government and its agents.

I couldn’t agree more. We were arguing about how to set those boundaries–not whether they should exist. The fact that I questioned the appropriateness of an outright ban on torture in no way means that I support its unlimited, indiscriminate use. On the contrary, it appears to me that it is my opponents who despair of setting such boundaries, and therefore prefer to ban torture altogether, for fear that any boundaries they set (say, “‘ticking bomb’ exceptions only”) will be insufficiently stringent or inadequately enforced.

41

y81 12.04.04 at 4:04 am

I would add two points here:

1. I have noted before how stupid and pointless is the American cult of personal authenticity, which implies that the validity of Dan Simon’s argument turns on how American he is. I am not only a born American citizen, but indeed a Mayflower descendent, and I basically agree with Dan Simon. All the available evidence indicates that the majority of soldiers and their families voted for Bush. So please, drop the personal attacks, much less then attacks on personal authenticity, and address issues on the merits.

2. Those who argue that we won the Cold War because of our commitment to liberal values will be much more convincing if they can present convincing evidence that they supported the policies of the Reagan and Bush administrations that actually won the Cold War. I doubt that they can, which is why I never find such arguments persuasive. Ad hominem? Sue me.

42

Dr. C 12.04.04 at 4:10 am

Hey, Mr. Dan “Torquemada” Simon,
Since we’re going to be sticking it to the Arabs (and other non Americans), and 50% of the population in Iraq is less than 18, what’s the age limit? Do you do kids? How young? Babies? Do you have special little needles to go under their tiny little fingernails?

Geesh!

Dr. C.

43

Ray Radlein 12.04.04 at 5:14 am

A question that is only somewhat relevant in this case but has plagued me for a while, concerning the First Protocol Additional to the Geneva Conventions (from 1977, that’s the one that deals with treatment of guerrila fighters). Do I read the list on the ICRC website correctly: The US did not ratify (and hence is not bound by) this protocol?

That is correct. We are not signatory to that protocol.

Don’t worry, though — we’re already violating the conventions to which we are signatory plenty enough to go around without it.

44

perianwyr 12.04.04 at 5:29 am

As I’ve said before, if you know in your heart of hearts that a bomb will destroy the universe or whatever if you don’t torture that guy, then you go right ahead and torture him. But you don’t go and say that your actions should be generally allowed. You bend your neck for the axe and acquit yourself with honor and resolve, not the cringe of “but I had to! have mercy!”

45

Idiot/Savant 12.04.04 at 5:48 am

I can’t believe Americans will just say ‘torture? We can live with that.’

Didn’t they do that when they voted for Bush?

46

Europeon 12.04.04 at 7:29 am

Interesting discussion. Let me add my European perspective – I am a civil servant who could at some point be in a position to co-operate (or not) with US authorities.

If it were a matter of giving information for a prosecution or enabling an extradition then the knowledge that the US uses and allows torture would not only motivate me to stall, but our laws would actually oblige me to refuse such co-operation. (See our attitude on the barbaric death penalty – we CANNOT legally extradite anybody who might then be executed. The same would apply to a state that uses torture on its prisoners.)

And that revulsion would spill over into many other areas – not doing business with you guys if there is an alternative, not travelling to a country that feels entitled to torture foreigners, not respecting your politicians and pundits with their fatuous “human-rights” and “democracy” rhetoric.

Already there is an enormous gulf between your self-righteous perception of yourself and that of everybody else, but a general decision that you are entitled to torture (any and all) foreigners would really be the point where you lose your last real friends and defenders in the outside world. Think about it – despite all those nukes you are not all-powerful, and reputation is of enormous importance in business, on which your prosperity depends.

So, quite apart from the moral and legal aspects, to arrogate to yourselves the right to torture foreigners would be an extremely stupid and short-sighted thing to do. Unfortunately I think you are quite capable of doing this, but don’t expect any sympathy when such a policy accelerates your economic and political decline, or when the torture is applied to yourselves, as it inevitably will once you go down that road. It will have been your own fault.

47

fantazia 12.04.04 at 8:02 am

Dan Simon wrote:
“‘How many Americans were murdered in Saddam?s torture chambers?’

No idea. Not very many, I would guess. Are you suggesting that anybody ever tried to justify the overthrow of Saddam Hussein on the grounds that he tortured many Americans?”

No. Many, many Americans apparently think that $200 billion, more than a thousand dead soldiers, and possibly 100,000 excess dead Iraqi civilians is a price worth paying to get rid of a man who tortured many *Iraqis*.

48

Europeon 12.04.04 at 8:56 am

“Many, many Americans apparently think that $200 billion, more than a thousand dead soldiers, and possibly 100,000 excess dead Iraqi civilians is a price worth paying to get rid of a man who tortured many Iraqis.”

How virtuous of them – and then they turn around and watch with apparent indifference as their own governments justifies, and resorts to routine torture? Something is wrong with this picture.

49

rob 12.04.04 at 10:22 am

Isn’t the point that torture is such a serious moral wrong, that any attempt to analyse whether we should be doing it or not by a cost benefit analysis is wrong: that implies it’s not clear that the pure utilitarian benefit of the information obtained by torturing outweighs the cost of torturing, and if it’s not clear, then the presumptive weight of the horror of torture should surely rule it out. We torture in the bomb cases, if we do, because there is the benefits of torture are so abundantly clear, because of the specification of the case. We don’t torture in the real world because the benefits are never going to be that abundantly clear.

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Idiot/Savant 12.04.04 at 11:29 am

Many, many Americans apparently think that $200 billion, more than a thousand dead soldiers, and possibly 100,000 excess dead Iraqi civilians is a price worth paying to get rid of a man who tortured many Iraqis.

That’s very good of them – but unfortunately they have simply replaced one group of unelected torturers with another. was the price really worth paying for that?

51

Nabakov 12.04.04 at 1:44 pm

I thought the one of the points of us being us and them being them is that we don’t approve of torturing people and they do.

So we have to become the enemy in order to beat them? In that case, who wins?

(I think we’ve tortured dan simon enough)

52

Uncle Kvetch 12.04.04 at 4:33 pm

I don’t think I’ve become a monster.

Maybe, maybe not. Your country (and mine) is most certainly turning into something monstrous, however, and you’ve shown yourself more than happy with that.

53

Dan Hardie 12.04.04 at 6:47 pm

Addressing myself to Walt Pohl, Katherine and the Americans here- I surprised myself, last night, with just how much disgust I felt reading Dan Simon’s sophisms. I asked myself why this was, and I can think of several reasons:

1) I’m proud of my country (Britain) and I’m proud of the British Army, in which my father and grandfather served, as well as a number of my Irish mother’s relatives. I accept that soldiering is a tough profession, and I’ve seen some of the reasons why. What I will never accept is that Britain becomes a country that employs torturers, and that the British Army degenerates from being a tough outfit to a criminal organisation.

2) How do the Geneva Conventions protect servicemen? Firstly they DO- not in all, but in many, circumstances-stop servicemen from being executed and tortured and otherwise maltreated: think of how the Argentine military behaved towards their own people, and then think of how they stuck to the Geneva Convention when treating Brtish prisoners. Think of the difference in treatment of Western and Soviet POWs in the Second World War. But beyond that: I’ve met enough soldiers to know that all of them are capable of violence (goes with the job) and that at least some of them are capable of sadism and racism; and, truth to tell, I know enough about myself when I am angry and frightened to be worried about what I might do if I were in particularly extreme circumstances. The Geneva Convention doesn’t just protect servicemen from being tortured; it protects them from BECOMING TORTURERS. I could go home to my mother and sister having killed someone in war. I don’t think I could go home having tortured people.

3) This won’t occur to the cowards here who want other people to go and torture on their behalf, but aren’t lining up to, you know, personally become torturers. But it’s important to anyone who knows anything about the military.

*A British or American soldier may refuse any unlawful order.

By contrast, a British or American soldier can and will be punished for refusing to obey any lawful order.

If chickenhawks like Dan Simon have their indecent way, torture will be legal and British and American soldiers can be ordered to assist in torture sessions- either directly torture captives, or guard them in between sessions- and punished if they disobey.*

That is a grotesque prospect.

3,000+ Americans were murdered by a sadistic gang of thugs under the orders of a man who despises Western civilisation. The solution? Become sadistic thugs and drop the values of our own civilisation. Obviously.

I’ll say this clearly. In a democracy, it is perfectly okay for someone to call for soldiers to go overseas and fight and kill on his behalf. That’s what civilian control of the military entails.

But if you want soldiers to go overseas and *torture* on your behalf- go do it yourself. Now back to your sadistic fantasies and your Lynndie England photos, chickenhawks and clowns.

54

Randy Paul 12.04.04 at 8:00 pm

Our implementing legislation does not, as far as I can tell, explicitly prohibit the use of information obtained under torture. (Not necessarily because the Senate wanted to allow evidence obtained under torture, they probably counted on the exclusionary rule to take care of that.) So if the detainees’ lawyers lose on the due process clause, the treaty will not help them very much.

Katherine, but if that is the case, would that not also then apply to the issue of extraordanary renditions?

55

Walt Pohl 12.04.04 at 9:24 pm

Jesus Christ, we’re talking about _torture_. How did this happen? If you told me, even on September 12th 2001, that within three years we would be torturing people, I wouldn’t have believed you and I might have punched you. But here we are.

56

John Quiggin 12.04.04 at 9:53 pm

As you can see from the trackback, the Volokhs have spoken, or at least Orin Kerr has. His position, as far as I can get through the lawyer stuff, is that it’s perfectly OK for the Administration to assert in court that they can torture and murder anyone they please. If they are out of line, the judges will say so.

Not all judges, of course. It seems pretty clear that Thomas will back the Administration on anything, and that Bush plans to appoint plenty more like him. But that’s a problem for another day, it seems.

57

bellatrys 12.04.04 at 10:15 pm

I can’t believe Americans will just say ‘torture? We can live with that.’

Well, let’s see:

In my ethics class, at a mainstream Christian college with strong liberal theology and social justice teachings, in 1990, out of a class of 25-30 students, I was the only one to argue that torture of [presumed] enemies of the state was wrong, that this was not a slope on which you could set foot and remain upright. (The prof was rather aghast at this – not at me, that two dozen nice young people were all cool with the idea of torturing bad guys, so long as it didn’t happen to them, which it wouldn’t.)

That was before movies and TV shows and novels justifying it and priming people for the “ticking time bomb” belief, had become anywhere near as common as they are – let alone actual terrorist attacks on US soil.

Naive faith in intrinsic human goodness is a wonderful thing – in the traditional sense of “wonderful,” meaning amazing, something to be wondered at. I honestly can’t remember when I had any: I know it was all gone by third grade. And I never had any illusions that Americans were any nicer or morally superior or more intellectually honest by right of birth than anyone else in the world, either. The people who threatened me with rape in HS and the people who turned a blind eye to my harrassment all equally being Americans, for one. And most of my childhood friends being European.

But hey, it worked for Anne Frank, so if it keeps you smiling…

58

Dan Simon 12.04.04 at 11:37 pm

Fantazia:

No. Many, many Americans apparently think that $200 billion, more than a thousand dead soldiers, and possibly 100,000 excess dead Iraqi civilians is a price worth paying to get rid of a man who tortured many Iraqis.

Europeon:

How virtuous of them – and then they turn around and watch with apparent indifference as their own governments justifies, and resorts to routine torture? Something is wrong with this picture.

Idiot/Savant:

That’s very good of them – but unfortunately they have simply replaced one group of unelected torturers with another. was the price really worth paying for that?

Nabakov:

I thought the one of the points of us being us and them being them is that we don’t approve of torturing people and they do.

First of all, I doubt many Americans have ever believed the enormous costs of the Iraq campaign were worth it for the sake of reducing the amount of torture occurring in Iraq. (I do–but then, as a non-American, I can avoid many of the costs.) Americans who support(ed) the war presumably do/did so primarily for reasons of national interest.

Secondly, I’ll happily concede that if the level of torture in Iraq ever comes anywhere near what it was during the rule of Saddam Hussein, then the entire US intervention will have turned out to have been a colossal waste, and the intervening parties to have accomplished nothing good. Will everyone here concede in return that that point is still very far away? (You are, of course, entitled to predict its approach, as long as you concede its contingency.)

59

Anarch 12.05.04 at 4:38 am

What’s dying is the America that believes that such things—and such things alone—will save the world from violent Islamist terrorism. It was nice living in an America where that fantasy was sustainable, but that country simply doesn’t exist anymore.

Whereas, sadly, the America that believes that torture will save them from violence without tarnishing their souls is alive and kicking… though no less fantastical.

I don’t think I’ve become a monster.

Monsters rarely do.

Not that I think you’re there yet, but you’re teetering on the edge of a very deep abyss.

60

Dan Simon 12.05.04 at 6:36 am

“I don’t think I’ve become a monster.”

Monsters rarely do.

Not that I think you’re there yet, but you’re teetering on the edge of a very deep abyss.

Indeed I am–as are we all, in fact. Unfortunately, not everybody realizes that. And it’s the ones who don’t, I suspect, who are at the greatest risk of falling in.

61

fantazia 12.05.04 at 1:28 pm

Dan Simon wrote:
“First of all, I doubt many Americans have ever believed the enormous costs of the Iraq campaign were worth it for the sake of reducing the amount of torture occurring in Iraq.”

You may doubt that, but that *is* exactly the rationale making the chickenhawk rounds now that the al-Qaeda/WMD rationale is moribund.

“Operation Iraqi Freedom” I believe the operation is called.

62

Uncle Kvetch 12.05.04 at 3:47 pm

Secondly, I’ll happily concede that if the level of torture in Iraq ever comes anywhere near what it was during the rule of Saddam Hussein, then the entire US intervention will have turned out to have been a colossal waste, and the intervening parties to have accomplished nothing good.

What constitutes “anywhere near,” Dan? If we only torture 1% as many people as Saddam, we’re still in the clear, right? But what if things get really, really bad and the number goes up to 10%? 20%? 50%? I guess in your book we’re still OK, because we can always say “Hey, Saddam was even worse!” And that’s all that matters, right?

God help us all.

63

nic 12.05.04 at 4:07 pm

“Indeed I am—as are we all, in fact. Unfortunately, not everybody realizes that. And it’s the ones who don’t, I suspect, who are at the greatest risk of falling in.”

What a lot of condescending bollocks. Only drug addicts manage to tell themselves more self-justifying nonsense. But at least they’re only harming themselves.

Nevermind, continue your mission, keyboard warrior, people like you realise the dangers, people like you get it, for real. The rest of us softies and snobs and Europeans and appeasers and people-who-dont-get-it will one day fall into that abyss and turn into psychopath killers, *precisely* because of having so long suppressed that powerful primal instinct to torture that has been so reawakened by this epochal battle, and then, ah then, we’ll come back here weeping and beating our chests to say, oh, that Dan Simon was so fucking right!

64

Dan Hardie 12.05.04 at 4:53 pm

I’d like to thank Dan Simon for having had the moral courage to think ‘out of the box’ on the question of torture. I only regret that so far, harassed as he has been by so many rude and intemperate individuals, Dan hasn’t given us the benefit of his wisdom on the specific, practical questions that a civilised society, reluctantly adopting torture, needs to address.
I’d like to call these the Dan Simon Torture Questions, and as Dan is a busy man I anticipate having to ask him a few times before I get an answer:

1) Dan- as an advocate of torture, what specific methods would you approve of: Whipping? Electric shocks? Burning? Asphyxiation and submersion in water? Beating with boots and fists? Anal penetration with truncheons and similar objects, as per Abu Ghraib? Rape of family members, as per Pinochet and Saddam?

2) Dan- all the best torturers seem to want to use dogs in torture sessions. What kind of canine intervention do you want the US to use in torture sessions? Dogs menacing detainees? Dogs biting detainees? Dogs savaging detainees?

3) Dan, there would presumably have to be medical Doctors on site in the prisons to treat the jailers, if not the detainees. What should the Doctors’ input to torture sessions be? Should they be present at the torture sessions with the right to end a torture session, if only to keep the detainee alive for further questioning? Should they be present at torture sessions but be subordinate to the highest-ranking torturer? Should they only be allowed to see tortured detainees after the torture was over? Or should tortured detainees be denied all forms of medical treatment until they had agreed to co-operate with their torturers?

4) Should the US Army establish a Corps of Torturers? Or should the mission be given to an existing US Army unit? When, by the way, do you plan to join the US Military, as Canadians may, to torture people?

5) Should detainees be tortured until i) they suffer severe bruising; ii) they are at the point of major organ failure; iii) their major organs are damaged and they die or are permanently crippled?

6) If, as has happened, female suspects are detained in Iraq, should they be tortured?

7)If a torturer kills a detainee without having previously received permission from his superior officers to do so, should the torturer be tried for murder, for damaging government property or for neither of the above?

8)If a United States soldier or Marine refuses an order either to a)participate in a torture session or b) guard detainees subject to frequent torture, should he be court-martialled?

Looking forward to your answers, Dan. Once again, thank you for your moral courage and intellectual clarity, and accept my personal apologies for any ‘insulting’ statements I may have made to you. Dammit, you’re right: why should I be rude to you just because you’re advocating torture? Beats me (oops, unfortunate phrase).

Listen up, fellow liberals: let’s have a polite, rational discussion of why we should institutionalise the sadistic physical abuse of detainees. No more ad hominems, okay? Some things just aren’t acceptable in a civilised society, and rudeness on the web, unlike, say, torture, is one of them.

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abb1 12.05.04 at 5:20 pm

Some of those technicalities are addressed here: Dershowitz: Torture could be justified. By the guy who used to call himself ‘civil libertarian’. Wonder if he still does.

This is basically a discussion of humanism vs. tribalism, torture is just one of the manifestations.

66

Dan Hardie 12.05.04 at 5:30 pm

Oh, no, Abb1, Dershowitz doesn’t address any of my detailed questions, although if memory serves the one kind of pain he was in favour of was needles under peoples fingernails. But I’m glad I followed the link, just so I could read this Dershowitz statement:
‘It’s much better to have rules that we can actually live
within. And absolute prohibitions, generally, are not the kind of rules
that countries would live within. ‘ Damn straight, Al. What’s with this wimpy absolute prohibition of Genocide, for a start? Since a number of countries haven’t lived within that prohibition, it’s frankly about time we lifted it and legalised some genocides under certain circumstances.

Meanwhile, I’m looking forward to Dan Simon’s answers to the Dan Simon Torture Questions.

67

Kevin Donoghue 12.05.04 at 9:10 pm

“Listen up, fellow liberals: let’s have a polite, rational discussion of why we should institutionalise the sadistic physical abuse of detainees.”

Well if it is sadistic it is definitely unacceptable. If there is sexual pleasure involved then of course it’s wrong. Now if the interrogation team merely takes professional satisfaction out of the fact that information has been extracted in a cost-effective way, that may be all right.

[End of ironic response; now seriously:]

There is an issue worth discussing here. The use of the term “institutionalise” raises a question. There are times when cops break the law. Sometimes they get results by doing so. How do we feel about that? I don’t agree with Dan Simon, but I know of at least one case where a kidnap victim’s location was divulged by a man in severe pain. I really haven’t made up my mind what the rules should be in such cases. For now I am reasonably happy with the law as it stands: if a policeman beats the crap out of a suspect in order to obtain information, he faces the prospect of criminal charges. If the jury cannot be persuaded to convict him then he is not guilty.

This isn’t ideal. It is a difficult problem. My impression is that the USA is pushing the boat out farther than it should.

68

vernaculo 12.06.04 at 2:01 am

D. Simon –“What I reject is the assertion that torture is never of practical value, that its benefits can never outweigh its costs. I consider that position completely unrealistic. The arguments given in its favor here—all of them essentially variations on, “it makes the war harder by alienating the locals”—simply don’t hold water.”
Once you surrender your humanity, or if you never had it to begin with, moral questions are just tactical, pragmatic, a matter of social architecture. Sociopaths, Asberger’s autistics, people who have been traumatized beyond empathic connection, don’t recognize what it is everyone’s upset about – the key ingredients aren’t there, it’s a kind of moral color-blindness.
That’s giving you the benefit of the doubt. The truth is your writing is saturated in the gloat of untouchable, privileged sadism.
Sadists, especially sadists from vindictive cowardly cultural milieus, care nothing for human qualities, seeking only a ritualized outlet for their bent hungers – to see someone else suffer cathartically, to make them pay in kind.
It seems as though the cruel spirit passes from the dominant party to its victims, who then blindly seek the position from which they themselves were tormented.
It’s truly the most disgusting pathology, carried out on a scale that dwarfs all other inhuman crime.
You’re right in the middle of it there, bub.

69

Dan Simon 12.06.04 at 9:17 am

There are times when cops break the law. Sometimes they get results by doing so. How do we feel about that?

Certainly one of the reasons for considering “institutionalizing” torture is that in the end, doing so may actually reduce the amount of torture ultimately committed, by discouraging the kind of “cowboy” behavior that often arises when those responsible for “just getting the job done” feel that they are being denied the tools they need to do it. It is my strong suspicion, for example, that the enormous burden of rules imposed by civil liberties advocates on American police officers via the judicial system, simply encourages the police to flout the rules discreetly on a regular basis in order to “get the job done”. And of course once the police no longer feel bound by the rules imposed on them….

My impression is that the USA is pushing the boat out farther than it should.

As I’ve already pointed out, we don’t really have any idea just how far the USA is “pushing the boat out”. My impression, in fact, is that the current American use of torture is extremely narrow and selective, affecting only a very few detainees. (Again, Abu Ghraib appears to be an exception–but then, those involved are apparently also receiving serious punishments for their misuse/overuse of torture.)

It may be, for all we know, that there is already a set of procedures in place to regulate the use of torture by the US military, in order to prevent its use from becoming excessive or indiscriminate. If there isn’t such a system in place, then I believe there should be–if only to distinguish the military’s policy on torture from a “don’t ask, don’t tell” policy, in which torture is officially banned, but quietly continues to be used. Such unsanctioned (and hence unregulated) use of torture can easily get wildly out of hand–as the Abu Ghraib case has amply demonstrated.

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nic 12.06.04 at 9:36 am

I know of at least one case where a kidnap victim’s location was divulged by a man in severe pain.

Good, then, I’m convinced, let’s scrap the Geneva conventions.

Seriously, guys, since those conventions have been drafted and signed and maintained for decades, after presumably more legally and technically detailed arguments and debates that can be entered into on weblogs, maybe *all* the theoretical pros and cons and cases and principles have already been examined at length. (Including current war scenarios, combatants and militants and whatnot. Despite the “oh but it’s all different now with terrorism” propaganda, that’s a straw man to anyone familiar with the existing legal framework on these matters.)

Or are you guys seriously telling us that international laws, ratified by national laws and constitutions, are less scrupulous and pragmatic than an internet post?

Please, do you realise you are talking of laws that do still apply, even for the US. Your government is going to turn into the first country among signatories to officially breach the conventions, as well as its own federal laws. Are you sure you want to take on the job of apologising for that by completely ignoring the legal background for existing prohibitions of torture?

It’s even more amazing when this sort of sophistries and apologies come from ordinary citizens rather than your government. But I guess you don’t realise that either.

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Kevin Donoghue 12.06.04 at 11:07 am

Dan Simon,

The problem with changing the rules so that a little bit of torture is sanctioned in exceptional circumstances is that those rules, like the current ones, have to be interpreted. All you really accomplish is a lowering of the barrier.

We don’t know how extensively the USA is using torture. The fact that there is precious little audit is not reassuring.

Nic [in ironic mode]: “Good, then, I’m convinced, let’s scrap the Geneva conventions.”

What I am suggesting is that there is no good reason to ease the rules, even though there are cases like the one I mentioned where reasonable people will excuse police brutality. If those accused of torture are entitled to trial by jury, the jury can decide to acquit even if the evidence is pretty conclusive.

My point is that the rules always get stretched, so it is better that the rules should be strict.

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Dan Hardie 12.06.04 at 1:20 pm

Dan- you haven’t answered the Dan Simon Torture Questions. Why not?

Come on, let’s have the benefit of your advice here. What kind of torture does a responsible fellow like you advocate? Electric shocks? Partial asphyxiation? Denial of medical treatment? Dogs? Torture to death? Torture of women? Fuller questions above. If you don’t answer these questions, people are going to form the impression that you’re a moral coward running away from the details of what he advocates, and we can’t have that.

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kevin 12.06.04 at 6:52 pm

“Perhaps you’re unaware how utterly perfectly your rhetoric matches that of a pacifist. The only difference is that you’ve drawn a line in a slightly different place: it’s apparently okay in your book to send soldiers out into the field to hunt the enemy down and kill them, but to torture them under any circumstances is to have abandoned all “justice and decency”. Make the appropriate substitutions in the above paragraph, and it would apply equally well against making war in the first place.”

Well, no, of course not. The difference is that a decent country fights wars only when required, and fights them in such a way as to minimize civilian death as much as possible. Torturers, on the other hand, operate under completely different rules. They are designed to inflict as much physical and psychological damage on people under their power. And they do this knowing that they will do it to perfectly innocent people. Yes, perfectly innocent people do get killed in war, but at least in war, a decent army takes steps to try and prevent it. Torturers do not and cannot because of the nature of their work.

It is not that I draw a line in a different place (as if that is somehow intrinsically wrong. After all, we all know that murder and shoplifting should get the death penalty — crime is crime), dan, it is that you do not draw a line at all. If you advocated carpet bombing Mecca, for example, I would come to the same conclusion.

And if the moralizing bothers you, well, I don’t really care. You, dan, are the on that used the image of the towers to justify your stance. You are the one who tried to play on the dead of that day as a justification for your own decisions. The moralizing began with your posts, dan. I just thought you needed to be reminded that your idea of morality is not universally accepted.

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Dan Simon 12.06.04 at 7:00 pm

The problem with changing the rules so that a little bit of torture is sanctioned in exceptional circumstances is that those rules, like the current ones, have to be interpreted. All you really accomplish is a lowering of the barrier.

Not necessarily–the rules and their interpretation could well end up being more stringent than the de facto “rules” that tend to apply when the use of torture is completely unacknowledged, unsanctioned and unregulated.

We don’t know how extensively the USA is using torture. The fact that there is precious little audit is not reassuring.

I agree. However, if torture is officially banned, then such information is inevitably going to be hard to gather and analyze. Again, limited official permission can actually mean better control over the use of torture than an outright ban.

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Dan Hardie 12.06.04 at 8:04 pm

He still hasn’t answered the Dan Simon Torture Questions.

Now then: 1) Dan- as an advocate of torture, what specific methods would you approve of: Whipping? Electric shocks? Burning? Asphyxiation and submersion in water? Beating with boots and fists? Anal penetration with truncheons and similar objects, as per Abu Ghraib? Rape of family members, as per Pinochet and Saddam?

Further questions above- medical treatment (or not) of detainees, use of dogs, rape of women- all the sorts of details that a forward-looking fellow needs to think through when coming up with a few civilised torture guidelines. Come on Dan, why are you holding out? You’ll have to answer these questions eventually. Not replying now just increases the amount of pain and humiliation you’ll suffer in the meantime. Yes, some might call my methods barbaric, but I’m doing this for the greater good…

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Dan Simon 12.06.04 at 8:05 pm

What kind of torture does a responsible fellow like you advocate? Electric shocks? Partial asphyxiation? Denial of medical treatment? Dogs? Torture to death? Torture of women?

I’m far from an expert on this topic. It’s my vague understanding that the most effective means of extracting information do not involve the application of severe pain, but rather what might be described as “persistent, extreme discomfort”–sleep deprivation, meager food and drink rations, uncomfortable physical positions, sensory extremes (loud noise or silence, bright lights or darkness), and so on.

Until fairly recently, none of these techniques would have been characterized as torture–they’d more likely have been described as “vigorous interrogation”. Indeed, if Frank Abagnale’s description of his six months in a French prison in 1970s, as a convicted white-collar criminal, is at all accurate, then at the time these measures could quite accurately have been labeled, “relatively pleasant conditions for a French prisoner”.

(Of course, the same kind of slippery slope that everyone here worries about with respect to torture also applies to the opposition to torture: once electric shocks and the like are banned, then anti-torture activists have to find something to protest, so they begin relaxing their definition until anything short of hotel-guest conditions qualifies as “torture”.)

I could have been coy, and claimed to be against “torture”, intending to distinguish between the infliction of severe pain and other forms of harsh treatment. However, since I myself don’t know where exactly the line should be drawn, nor whether the most effective information extraction techniques ever cross it, I deliberately chose not to take that escape route. Instead, I’ll just reiterate my points:

1) Under extreme circumstances, it might well be necessary–even morally so–to inflict very harsh treatment on detainees, (only) for the purpose of extracting their cooperation. Depending on the defintion of “torture”, it might (or might not) apply to some of these forms of harsh treatment.

2) In contexts where such harsh treatment is already commonplace, its relatively indiscriminate use on detainees most likely has negligible direct, negative practical consequences. However, there still are obvious moral arguments for restricting its use to a (hopefully) very few extreme cases, even in those contexts.

3) Because the gradations of severity of treatment and necessity of its imposition are arbitrarily fine, distinguishing among them requires extremely careful examination and discussion of the moral and practical consequences of of any particular choice of distinction. It only hinders such careful consideration to simply proclaim all harsh treatment to be torture, and all torture to be so unthinkable that anyone who is willing even to contemplate its use must therefore be subhumanly evil.

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Dan Simon 12.06.04 at 8:26 pm

What kind of torture does a responsible fellow like you advocate? Electric shocks? Partial asphyxiation? Denial of medical treatment? Dogs? Torture to death? Torture of women?

I’m far from an expert on this topic. It’s my vague understanding that the most effective means of extracting information do not involve the application of severe pain, but rather what might be described as “persistent, extreme discomfort”–sleep deprivation, meager food and drink rations, uncomfortable physical positions, sensory extremes (loud noise or silence, bright lights or darkness), and so on.

Until fairly recently, none of these techniques would have been characterized as torture–they’d more likely have been described as “vigorous interrogation”. Indeed, if Frank Abagnale’s description of his six months in a French prison in 1970s, as a convicted white-collar criminal, is at all accurate, then at the time these measures could quite accurately have been labeled, “relatively pleasant conditions for a French prisoner”.

(Of course, the same kind of slippery slope that everyone here worries about with respect to torture also applies to the opposition to torture: once electric shocks and the like are banned, then anti-torture activists have to find something to protest, so they begin relaxing their definition until anything short of hotel-guest conditions qualifies as “torture”.)

I could have been coy, and claimed to be against “torture”, intending to distinguish between the infliction of severe pain and other forms of harsh treatment. However, since I myself don’t know where exactly the line should be drawn, nor whether the most effective information extraction techniques ever cross it, I deliberately chose not to take that escape route. Instead, I’ll just reiterate my points:

1) Under extreme circumstances, it might well be necessary–even morally so–to inflict very harsh treatment on detainees, (only) for the purpose of extracting their cooperation. Depending on the defintion of “torture”, it might (or might not) apply to some of these forms of harsh treatment.

2) In contexts where such harsh treatment is already commonplace, its relatively indiscriminate use on detainees most likely has negligible direct, negative practical consequences. However, there still are obvious moral arguments for restricting its use to a (hopefully) very few extreme cases, even in those contexts.

3) Because the gradations of severity of treatment and necessity of its imposition are arbitrarily fine, distinguishing among them requires extremely careful examination and discussion of the moral and practical consequences of of any particular choice of distinction. It only hinders such careful consideration simply to proclaim all harsh treatment to be torture, and all torture to be so unthinkable that anyone who is willing even to contemplate its use must therefore be subhumanly evil.

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Dan Hardie 12.06.04 at 8:31 pm

While my jaw is still hanging open, Dan, could you answer the other Torture Questions? Thanks in advance. They are:

2) Dan- all the best torturers seem to want to use dogs in torture sessions. What kind of canine intervention do you want the US to use in torture sessions? Dogs menacing detainees? Dogs biting detainees? Dogs savaging detainees?

3) Dan, there would presumably have to be medical Doctors on site in the prisons to treat the jailers, if not the detainees. What should the Doctors’ input to torture sessions be? Should they be present at the torture sessions with the right to end a torture session, if only to keep the detainee alive for further questioning? Should they be present at torture sessions but be subordinate to the highest-ranking torturer? Should they only be allowed to see tortured detainees after the torture was over? Or should tortured detainees be denied all forms of medical treatment until they had agreed to co-operate with their torturers?

4) Should the US Army establish a Corps of Torturers? Or should the mission be given to an existing US Army unit? When, by the way, do you plan to join the US Military, as Canadians may, to torture people?

5) Should detainees be tortured until i) they suffer severe bruising; ii) they are at the point of major organ failure; iii) their major organs are damaged and they die or are permanently crippled?

6) If, as has happened, female suspects are detained in Iraq, should they be tortured?

7)If a torturer kills a detainee without having previously received permission from his superior officers to do so, should the torturer be tried for murder, for damaging government property or for neither of the above?

8)If a United States soldier or Marine refuses an order either to a)participate in a torture session or b) guard detainees subject to frequent torture, should he be court-martialled?

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Randy Paul 12.06.04 at 10:13 pm

(Of course, the same kind of slippery slope that everyone here worries about with respect to torture also applies to the opposition to torture: once electric shocks and the like are banned, then anti-torture activists have to find something to protest, so they begin relaxing their definition until anything short of hotel-guest conditions qualifies as “torture”.)

Proof?

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Randy Paul 12.07.04 at 3:45 am

Dan Simon,

Look at the fine company you keep:

Secret squads operating under the authority of the Iranian judiciary have used torture to force detained Internet journalists and civil society activists to write self-incriminatory “confession letters,” Human Rights Watch said today.

Comfy with that?

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Dan Simon 12.07.04 at 6:50 am

(Of course, the same kind of slippery slope that everyone here worries about with respect to torture also applies to the opposition to torture: once electric shocks and the like are banned, then anti-torture activists have to find something to protest, so they begin relaxing their definition until anything short of hotel-guest conditions qualifies as “torture”.)

Proof?

I believe the paragraph in my comment immediately preceding the one you quoted covers that point.

Look at the fine company you keep:

Secret squads operating under the authority of the Iranian judiciary have used torture to force detained Internet journalists and civil society activists to write self-incriminatory “confession letters,” Human Rights Watch said today.

Comfy with that?

I also hear that when Iran’s ruling theocrats get into arguments, they routinely use that stupid polemical gimmick where you pick the very worst person in the world who could plausibly be said to have taken your opponent’s side, and then accuse your opponent of being the moral equivalent of that person. I, of course, would never use such lame sophistry. But look at the fine company you keep….

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Randy Paul 12.07.04 at 2:33 pm

Dan Simon,

I believe the paragraph in my comment immediately preceding the one you quoted covers that point.

Obviously you don’t know the difference between proof and an opinion. I hope that you know the old saying about opinions.

As for the second comment you’re comfortable sliding down the slippery slope. I was merely showing you where you’re going to end up.

Stay in denial if it makes you comfortable.

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nic 12.07.04 at 4:48 pm

Kevin – I absolutely agree on this: My point is that the rules always get stretched, so it is better that the rules should be strict.

I had misunderstood the point of your example of the person who’d given useful information while under torture.

In general, what strikes me as surreal about discussions like these is, there’s no point in trying to argue about all possible cases, theoretical or otherwise, where torture could be excused. There’s many reasons why it’s been made illegal. All the possible theoretical what-ifs have already been examined to reach that conclusion. It’s been decided that the principles according to which torture is wrong supersede any possible benefit in any theoretical what-if scenario. So, yes, like you say, the rules themselves should remain as strict as they have been so far (even if in practice they have already been broken a thousand times).

What’s so surreal and sad, is not just the disregard for ethical principles shown by torture apologists, but their complete shameless disregard for legal principles, international and national. As if they were only formalities.

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nic 12.07.04 at 5:01 pm

I would like to remind the torturophiles here that torture by electric shocks *is* already banned by laws and conventions, *and yet* (!) there are no laws or conventions in any part of the world that define “anything short of hotel-guest conditions” as torture. Nor is anyone demanding they be defined as such.

Maybe the t-philes above would like to enlighten us with their definition of what exactly are the imprisonment conditions they would consider to be torture?

Oh wait, there’s laws that have answered that already. Doh.

Oh wait, no, laws don’t count for the t-philes. They get to write their own. Uber-citizens that they are.

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nic 12.07.04 at 5:11 pm

Until fairly recently, none of these techniques would have been characterized as torture—they’d more likely have been described as “vigorous interrogation”.

Again, not that torturofans should care, but there are laws according to which those techniques are torture. No matter how often a law has been broken, it’s still a law.

An hypothetical abusive father may not consider beating his children and depriving them of food as child abuse, he may see it as only deserved punishment and strict discipline, but if the kids or wife call the cops, it’s the laws who get to decide what definition counts.

This basic principle of social cohabitation of course does not apply to torture! the only crime for which everyone and his nanny can play the definition game, safe in the knowledge it’s always going to be someone else who’ll be tortured, and someone else who’ll be the torturer, so even if the crime should be uncovered, it’s never their problem. They just like to play torture scenarios. Like it was a game of Mortal Kombat.

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