I used to put Clive Crook in my ‘disagree with him on mostly everything but basically a decent-sounding and reasonable guy’ box, but not any longer. This piece on how (a) we shouldn’t do waterboarding on pragmatic grounds, but (b) it isn’t really torture, is reprehensible.
It is worth noting that the methods in question were adopted from the training US soldiers undergo to resist interrogation. This underlines the fact that using these methods lowers the US to the level of its enemies. But it also suggests that distinctions may be made between waterboarding and, say, breaking on the rack. Unsurprisingly, US soldiers are not subjected to that technique as part of their training. Journalists and YouTube video-makers have undergone waterboarding, the better to pronounce it torture. None that I know of has volunteered to be flayed, or have his fingers crushed. … The drive for prosecutions is a furiously partisan project. The Democratic left is plainly out for revenge more than for justice – and Mr Obama is wavering in the face of their rage. Already, little hope remains of a bipartisan approach to the myriad problems that confront his administration. If the president fails to get a grip on this new controversy, the prospect of any such co-operation will be nil.
First off – if prosecuting torturers makes bipartisanship more difficult, then tough shit for bipartisanship. The prospect for actual bipartisan consensus between people who think that torture is a good thing, and people who think that torture is fundamentally abhorrent is obviously rather limited. Crook’s preferred approach of ‘mistakes were made’ is effective capitulation to the pro-torture side. Obviously, torture shouldn’t be a partisan issue, but that it is tells us an awful lot about the shape that the Republican party is in today. Second, his guff about how no journalists or Youtubers have volunteered to be flayed or have their fingers crushed seems to me to be actively disingenuous. According to the Bradbury memo, Khalid Sheikh Mohammed was waterboarded 183 times in March 2003. If there are any journalists or Youtubers lining up to be waterboarded 183 times in a month, I haven’t heard about it. Which suggests (if I’m wrong, and if Clive Crook really believes that what happened to Mohammed was no great sweat, wasn’t really torture etc) that there is a gap in the torture-porn punditry market that Mr. Crook himself can fill, by himself volunteering to be waterboarded 183 times so as to demonstrate that it isn’t really torture, has no lasting effects &c&c. To fit this in with his doubtlessly busy schedule, I’d be prepared to spot him a few ameliorations – perhaps he could do this over a three month period, not be subjected to stress positions, nasty cramped cells or other forms of abuse. And perhaps he could even live-blog the experience for the Financial Times or the National Journal (or, if he wants to go a bit downmarket, do it for reality TV – I’ve no doubt that there would be an audience).
Let me reprise some of the main points from my column on torture prosecutions:
(a) Possibly, torture can succeed in extracting vital information.
(b) On balance, however, torture does not make the US safer.
(c) In any event, it is shameful and wrong.
(d) Waterboarding is torture in the ordinary meaning of the word.
(e) Notwithstanding (d), the law is not as clear as it should be on whether waterboarding as practised during the Bush administration is torture under the law.
(f) Congress could and should have outlawed waterboarding explicitly already. It should do so now.
(g) Because of (e), and because the issue is so acutely divisive in the US, prosecutions under the existing law may serve neither the cause of justice nor the public interest.
Most of the non-abusive emails I have received about this rightly concentrate on (e). They say that domestic and international law on this is perfectly clear. They point out that the US has prosecuted foreigners and its own citizens for waterboarding in the past. A few have referred me to this much-cited paper by Evan Wallach, which I was familiar with before writing the column and which is well worth reading. The author also had a column in the Washington Post summarising his argument.
I acknowledge that I am not well qualified to judge this issue. I am not a lawyer, but I have wrestled with the law on it enough to know that it is far from simple and a matter of dispute among lawyers. As now seems to be mandatory on this and other issues, positions are stated with false certainty and with unyielding moral absolutism. It is necessary to read everything sceptically.
The earlier cases do not prove that waterboarding as practised during the Bush administration was illegal, only that waterboarding carried out in certain ways and under certain circumstances has been successfully prosecuted. The designers of the policy knew the law and manoeuvred—absurdly and offensively, perhaps, but they would not be the first lawyers to stoop to that—to stay within it. As for whether, regardless of domestic law, the international Convention Against Torture mandates prosecution, you have to understand the distinction between treaties that become the law of the land in and of themselves, and treaties that the US adopts, and in effect modifies, with a law of its own. The Convention Against Torture is of this second type. Arguably, therefore, relevant parts of the CAT are not enforceable in US courts.
Incidentally, there is further disagreement over whether the US government has discretion not to prosecute, even if it takes the view that a law has been broken. Some constitutional lawyers say it does not. The administration’s promise not to prosecute interrogators implies that it thinks either the law was not broken, or else that it does have discretion not to prosecute.
If prosecutions were brought, could one count on getting convictions? Because of the deliberate imprecision of current law, the defence has a case to make, and a jury, reminded of what was at stake in the aftermath of 9/11, might be inclined to listen to it sympathetically. So one at least needs to ask, what would be gained by prosecuting these crimes and seeing the defendants acquitted? Surely this would undermine rather than affirm a US commitment never to use these methods. And I think the same goes for the suggestion being made that culprits up to and including George W. Bush should be prosecuted and if found guilty pardoned. I admit, when I first read that I thought, “Only in America”. We stand on the principle that torture is a crime and will be prosecuted without fear or favour to the fullest extent of the law (with pardons to follow). How’s that for a clear message? But at least the rule of law has been upheld, you might reply. Well, as I have mentioned, the rule of law will also be upheld, according to one school of thought, if the Attorney General exercises his discretion not to prosecute.
As this leader in the FT notes, what matters most here is not to put George W. Bush and his team in jail, or to try them and then pardon them. It is to guard against such measures being used again. That is a political as much as a legal project—it requires the building of a moral consensus, the changing of many American hearts of minds—and in my view it is best advanced not by prosecutions but by the “look forward” approach Obama first said he wanted to follow.
One last thing. I wanted to draw attention to a blogpost attacking my column by Henry Farrell at Crooked Timber. He says: “This piece on how (a) we shouldn’t do waterboarding on pragmatic grounds but (b) it isn’t really torture, is reprehensible.” This remark is abusive, of course, but that is business as usual. What makes it interesting in a professional scholar and writer on a leading blog is its remarkable incompetence—or, perhaps, its total lack of good faith. I ask you to read the column, or review my summary of it above, and ask yourself how any fair-minded intelligent person could distil my position to those two points.
The name Crooked Timber is I imagine homage of a sort to Kant, who coined the phrase, which is worth thinking about—”Out of the crooked timber of humanity, no straight thing was ever made”—and perhaps also to Isaiah Berlin, the great liberal philosopher, who famously referred to it, and whom I count among my intellectual heroes. Berlin’s hallmarks were open-mindedness, tolerance, civility and loathing of absolutism. Professor Farrell, I’d say you’re flattering yourself just a little.
If, as Crook says here, he did not mean to suggest that waterboarding isn’t torture (and I don’t doubt his word), then I clearly owe him an apology. And here it is. I had taken him to be arguing that waterboarding was opprobrious but not torture in the same sense as crushing of fingers or other methods of torture causing lasting bodily harm, along the lines of the administration memos which made more or less that argument. It would seem that all he was saying was that there was a colourable legal argument to this effect. Obviously, I misread him. I still think that his claim that the desire to prosecute torturers is driven by partisans looking for revenge is manifestly wrong, but that is an entirely separate issue from my basic misreading which he (entirely justifiably) took offence at. My bad, and I’m very sorry for it.
Update 2: see here for a lengthier response.