Torture in Australia

by John Quiggin on May 18, 2005

A couple of Australian legal academics have caused a stir by publicising an article they’ve written (so far unpublished), advocating the legalisation of torture (details and links here). Mirko Bagaric and Julie Clarke present a rehash of arguments put forward by Alan Dershowitz, centred on our old and much-refuted friend, the ticking bomb scenario. Their main contribution is to bite the bullet where Dershowitz was not, advocating the torture of innocent people who are suspected of having useful information.

The really startling thing about all this is that, until a few months ago, Bagaric, the senior author, was a member of the Refugee Review Tribunal, part of the apparatus used by the Howard government to implement its highly restrictive policies on refugees. In this context, he had to judge numerous cases in which refugees claimed to be fleeing torture, but never thought it relevant to recuse himself on the basis that he was on the side of the torturers.

The blogospheric reaction has been predictable (at least if you share my priors). Although Bagaric was previously regarded as a mild lefty (he’s advocated higher taxes, for example), anti-war bloggers were uniformly horrified by his and Clarke’s views. By contrast, with less than a handful of exceptions, the pro-war side of the sphere either supported Bagaric and Clarke, defended their right to speak while avoiding the substantive issues, or kept on blogging about Newsweek.

This is a bit disappointing, but it provides a useful lesson. Next time you read one of these guys talking about Saddam and his crimes, remember it’s just a factional brawl within the pro-torture party. If Saddam had stuck to fighting wars against Iran, and torturing Iraqis, instead of invading Kuwait, he’d still be “an SOB, but our SOB”, just like Karimov in Uzbekistan.

{ 63 comments }

1

des von bladet 05.18.05 at 7:21 am

I have met the SOB and he is us!

2

Mark 05.18.05 at 8:15 am

Several comments:

“Their main contribution is to bite the bullet where Dershowitz was not, advocating the torture of innocent people who are suspected of having useful information.”

I read their summary and I understood them to advocate torture of wrongdoers only. Now, this is still a highly dubious position, but slightly different than the one you attribute to them. Perhaps you can support your interpretation with quotes.

“This is a bit disappointing, but it provides a useful lesson. Next time you read one of these guys talking about Saddam and his crimes, remember it’s just a factional brawl within the pro-torture party. If Saddam had stuck to fighting wars against Iran, and torturing Iraqis, instead of invading Kuwait, he’d still be “an SOB, but our SOB”, just like Karimov in Uzbekistan.”

To clarify: is it your position that all advocates of the liberation of Iraq from Saddam’s fascist, genocidal regime are pro-torture?

3

abb1 05.18.05 at 8:41 am

To clarify: is it your position that all advocates of the liberation of Iraq from Saddam’s fascist, genocidal regime are pro-torture?

Well, logically, if hundreds of thousands of dead is an acceptable trade-off, what’s wrong with a little torture here and there? For the sake of beautiful liberation from Saddam’s fascist, genocidal regime, you know.

4

Barry 05.18.05 at 8:47 am

Mark, I’d say that almost all of those who supported Saddam’s regime when he was our SOB are pro-torture.

5

Mark 05.18.05 at 8:49 am

“Well, logically, if hundreds of thousands of dead is an acceptable trade-off, what’s wrong with a little torture here and there? For the sake of beautiful liberation from Saddam’s fascist, genocidal regime, you know.”

abb1, you’ll have to draw this argument, such as it is, out a bit more. I’m not sure “logic” works the way you think it does in this case. But no doubt you’ll have little trouble presenting your audience with a more coherent position.

6

Mark 05.18.05 at 8:53 am

Perhaps, Barry. I’m not sure your answer was responsive to my question, however. I’m sure John will clarify.

7

rea 05.18.05 at 9:11 am

“is it your position that all advocates of the liberation of Iraq from Saddam’s fascist, genocidal regime are pro-torture?”

Not at all.

But certainly, all those who supported “the liberation of Iraq from Saddam’s fascist, genocidal regime”, which liberation was to be carried out by another regime that itself was in favor of torturing prisoners, must necessarily be either pro-torture or dupes.

8

Eamonn Fitzgerald 05.18.05 at 9:12 am

Regarding Kuwait, John, its parliament has granted women the right to vote! “Outside parliament, people danced and cheered, passing drivers sounded their horns in support and fireworks lit the sky… The US has pressed its allies in the Middle East to reform, saying a lack of freedom had fostered Islamic militancy. The Kuwaiti Government wanted the bill passed before a likely trip by the Prime Minister to Washington early next month.” http://www.smh.com.au/news/World/Kuwaiti-parliament-gives-women-the-vote/2005/05/17/1116095965224.html. Thanks Australia for sending those troops to Iraq to defending the building of a democracy.

9

Brendan 05.18.05 at 9:25 am

The word ‘genocide’ or ‘genocidal’ gets thrown about a lot when talking about Saddam. Is there any evidence that Saddam actually planned to exterminate every last (for example) Kurd on earth? Or even every last Kurd in Iraq? And did he have the mechanisms in place to do this? ‘Cos if he didn’t that ain’t genocide (or even genocidal, whatever that means).

Incidentally, unless you are using the word ‘fascist’ in the sense that Orwell talked about many years ago (he mentions somewhere that ‘fascist’ has now had its meaning stretched to the extent that it now merely means ‘something undesirable’) then Saddam Hussein’s regime was not fascist.

10

tad brennan 05.18.05 at 9:49 am

I’m as anti-torture as the next person, I loathe what the Rove/Bush/DeLay gang has done to make torture an acceptable technique again, I despise TTB arguments, etc.

I also know nothing about Australian politics, who the refugees might be, and who they might have been fleeing from.

That said, I think this is a sloppy piece of thinking:

“In this context, he had to judge numerous cases in which refugees claimed to be fleeing torture, but never thought it relevant to recuse himself on the basis that he was on the side of the torturers.”

I’m sorry, but “the torturers” is simply too heterogenous a group for them to have a “side”. And although Bagaric condones torture, and the torturers from whom the refugees were fleeing condone torture, this puts them on the same side of only one question right now, and very likely not the central question to be addressed in the refugee hearing.

I mean, both Mao and Chiang believed in eating rice. But then this “puts them on the same side”. Both Churchill and Stalin thought you should wipe your feet on the mat–“ah, they’re on the same side, too!”

So why couldn’t this Bagaric guy say “yeah, I think torture *can* be permissible in XYZ contexts, but none of those were met when this poor bastard was tortured, so he clearly is a legitimate refugee from torture”? And what was the guys actuall record of practice on the bench? Did he routinely turn away people by belittling and minimizing the fact that they had been tortured?

If he’s pro-torture, I don’t like the guy. But I also don’t think it’s a very good inference to say that he was on “the side” of whoeverr the refugees were fleeing from.

11

Mark 05.18.05 at 10:16 am

Brendan, re: genocide. See Marsh Arabs. Saddam slaughter hundreds of thousands of others, as well (Kurds in the North and Shias in the South), but, I concede, halted prior to total extermination, presumably because slaves are worth more than corpses.

It was my understanding the Ba’ath party was derived, in part, from WW2 fascist doctrine. I recall Bernard Lewis giving a nice account of this. If your understanding is different, I’m willing to listen.

Rea, I think you and I disagree on basic premises. And I’m not sure John meant what you meant, unless you are speaking for him or he subsequently adopts your position.

12

rea 05.18.05 at 10:44 am

“I’m not sure John meant what you meant”

I don’t purport to speak for John–I took “you” to be plural, perhaps wrongly.

But what’s the basic premise about which we disagree–that the present regime in the United States {to my great shame as a patriotic American) supports torture of prisoners as a matter of policy? The evidence that they do, in the form of public statements by people like Rumsfeld, and memos authored by people like Gonzales and Yoo, is pretty overwhelming. Denials usually have taken the form of semantic quibbles about the meaning og “torture”–“we weren’t actually TORTURING anyone, we were just ABUSING them!”

13

Mario 05.18.05 at 10:50 am

First, as John must have learned in the comments to his last post, Karimov is not so much “our SOB” — the Bush administration has cut a good deal of aid to him already. The “our SOB” rhetoric is entirely inappropriate in light of this fact.

Second, must John make the war debate more and more crass with each post? Pro-war does not equal pro-torture. A good many war supporters, myself included, support the war and oppose torture.

Third, claiming that Saddam and war supporters can be lumped into a “pro-torture” side substantially blurs lines in the debate. It’s a step backward. There is a difference between cutting the limbs off of prisoners and depriving them of sleep. Both are wrong, but we must be nevertheless continue to draw lines between the two. I’m sure you would agree that failing to do so can lead to great error. If I were to blur lines as you do, I could claim that all anti-war people were part of a fifth column. Or I could have claimed that Indochinese communists were the same as Stalinists. But both claims are ludicrous. Lets bring some precision back into this debate.

14

Mark 05.18.05 at 10:57 am

rea, I dont’ think your argument is the same as John’s argument. Although John hasn’t clarified his position, he seems to be claiming that liberation advocates are pro-torture because of the existence of an article written by a leftist academic that countenances torture of wrongdoers in some circumstances, and the alleged failure of pro-war advocates (all? some?) to condemn same.

I’m still waiting for John to articulate this a bit more. If you want to explain his position (with reference to his words), feel free.

15

Matt 05.18.05 at 11:16 am

Tad,

I agree that John’s formulation is not ideal, but I think that having this fellow in a position of power in relation to refugees is a bit more directly problematic than you take it to be. One of his responsibilities, I’d guess, is to help administer the Convention Against Torture. Obviously he can’t be taking this responsibility very seriously if he thinks that torture is justified in some cases, since it’s flatly banned by the Convention, to which Australia is a party. The CAT requires a country to refuse to send anyone to a country where they believe torture will take place, regardless of the reason. It seems pretty hard to believe that this fellow will be serious about his responsibilities under the CAT, given that he seems to support torture in at least some cases himself. Given this, it doesn’t seem implausible (though of course I have no evidence directly on the matter) to suppose that he’d be lax in applying the requirements of the CAT if he thought the torture in a particular case was justified, that is, if he thought it was a case of torture he’d accept. (Something like this seems to be the case w/ the US’s program of extraordinary rendition.) If that’s the case, then it doesn’t seem _too_ much of a stretch to me to say that he’s “on the side of torturers” even if not on the side of “_the_ torturers” which, as you say, may be to heterogenous a group.

16

abb1 05.18.05 at 11:25 am

But no doubt you’ll have little trouble presenting your audience with a more coherent position.

Thank you. I think logic here is the logic of jihad. That is, if you know you’re righteous, God is on your side, you’re engaged in the struggle against evil – then you’ve got to do what you’ve got to do. Because people you’ll have to (reluctantly) torture are agents of evil, Saddamists, fascists, terrorists, genocidists, deadenders. You can’t let forces of darkness win no matter what; it’s the most important struggle in human history, everything is at stake here. It would be unthinkable for the good guys to lose this struggle because of a silly technicality like rejecting a tool such as torture. Or collective punishment. Or scorched-earth tactics. Or re-creating Mukhabarat under CIA control. No tool whatsoever should be rejected, really, because it’s all for the most righteous cause – free market and democracy (or rather some sort of a representative government).

Something like that.

17

Mark 05.18.05 at 11:39 am

abb1,

I’m not sure I follow you. Was your previous post a description of your own understanding of the circumstances in Iraq (or elsewhere) or was it a recapitulation of John’s position? If the latter, I would probably want some textual support.

18

rea 05.18.05 at 11:54 am

Mark, once more, I don’t purprt to speak for John, so parsing fine distinctions between John’s position and mine is pretty futile.

My position’s pretty simple: if you don’t want fleas, don’t lie down with dogs. If you don’t like torture, don’t support torturers. That some hypothetical War of Iraqi Liberation might have been a good thing doesn’t mean that George Bush’s War was a good thing.

19

george 05.18.05 at 12:04 pm

The essence of a good blog post: good information plus gratuitous button-pushing. In that sense, this one’s a masterpiece, so quit complaining; if you want straight info without opinion, read the paper. (Kidding.)

Button number one: the “refuted” ticking bomb scenario. I’ll agree that the term has been much stretched and misused, but it cannot be refuted because it is not theoretical. The term was originally coined to describe cases in which Israeli intelligence learned of the dispatch of a suicide bomber and had a finite amount of time before detonation to figure out who/what/when/where. Frequently, they used aggressive interrogation that almost certainly strayed into the realm of actual torture. So the term is quite apt, and the moral tradeoffs are very real.

Button number two: Uzbekistan. I think I understand John Q’s position on this now, and it’s a fair one, though calling him “our SOB” is preposterous. The US did not install him, and the US cannot (apparently) influence him.

20

Mark 05.18.05 at 12:06 pm

rea, I was under the impression that we were attempting to articulate John’s position. Since I don’t find your postion relevant to that endeavour (or particularly interesting), I’ll kindly refrain from commenting on it.

21

rea 05.18.05 at 12:13 pm

Naturally, Mark, you find it difficult to discuss your support of torture–therefore your refusal to discuss it further is understandable . . .

22

moni 05.18.05 at 12:22 pm

Am I cynical in getting the impression that writing something (blog post, paper, article, memo) in support of torture is for some academics of the mighty anglosphere the equivalent of releasing a home made porn video for wannabe celebrities?

23

abb1 05.18.05 at 12:23 pm

Mark, I was trying to explain why, IMO, a messianic pro-liberation enthusiast shouldn’t be against torture. And since the current pro-war constituency (if we exclude crude Islamophobes) seems to consist of messianic pro-liberation enthusiasts, this is supposed to demonstrate basic accuracy of the ‘pro-war = pro-torture’ thesis.

24

RSL 05.18.05 at 12:39 pm

John . . .

I know nothing of Australian law, but here in America I think one has to challenge not only torture as a method of interrogation, but even the idea of interrogation itself.

The question I want answered first is: “When does the government have the right to interrogate–i.e., to demand information from any individual?” Certainly, in criminal cases before a court, witnesses can be made to testify under U.S. law. However, the 5th Amendment protects people from incriminating themselves. Given the existence of the 5th Amendment, one could argue that if torture were legal in the U.S. (and I hope it never will be), only innocent people could be tortured, because the guilty would be protected by the 5th! It’s unlikely that anyone who knows the location of a ticking time bomb and doesn’t want to divulge the information willingly would be innocent of all crimes, therefore torture would effectively be prohibited by the 5th amendment in criminal cases.

Outside of criminal cases, the only other situation in which I could imagine the government having some power to interrogate would be during time of war, when captives might be open to interrogation. The treatment of these captives, though, would normally be guided by the Geneva Conventions.

The Bush administration has claimed a third category–enemy combatant. I see no Constitutional justification for this third category and there’s certainly no clear “due process” for handling this third category, if it is in some way legal. What’s dangerous about this third category is that the executive can apparently declare anyone an enemy combatant without any due process or judicial oversight, detain that person indefinitely without any charge, and do whatever it wants to that person (including endless interrogation and maybe even torture). I can’t see how this third category with no rights and subject entirely to whims of the executive branch without any check or balance from the judiciary could possibly be acceptable under U.S. law–it seems completely against the spirit of the Constitution–but it seems to be where we are headed.

25

Mark 05.18.05 at 1:00 pm

abb1,

Ah, I see. Well, good luck with that.

rea,

I don’t find it difficult to discuss torture; or, the difficulty I may experience is secondary to the importance we should place on discussing difficult topics.

I do sometimes have difficulty reconstructing an opponent’s argument, which is why I’m attempting, in good faith, to draw out John’s position. So far you’ve not helped in this regard.

26

rea 05.18.05 at 1:18 pm

Well, Mark, once more, I am not John. Nevertheless you characterize his argument:

“liberation advocates are pro-torture because of the existence of an article written by a leftist academic that countenances torture of wrongdoers in some circumstances”

Now agfain, I am not John. Nevertheless, when you characterized his argument in that fashion, it seemed to me to be only just to point out that the real reason to call “liberation advocates” pro-torture, is that you are aupporting a Bush administrtion policy that involves torturing people. As abb1 has pointed out, your friends in the adminstration will even tell you that torturing people is an essential part of their program for “liberation” of whatever it is they claim to be liberating today.

27

george 05.18.05 at 1:58 pm

Good comment, rsl. I think your questions are fundamental to the whole WoT, and I’m suspicious of anyone who claims to have easy answers. For instance, you ask when the government has the right to interrogate at all, either its own citizens or anyone else. It wouldn’t be difficult to conclude that the asnwer is “never.” In the US at least, Miranda requires police to apprise suspects of their rights, including to counsel. But counsel invariably tells the suspect not to say anything at all, so in practice police routinely circumvent Miranda (in spirit and often in letter). And as you say, the 5th offers the right to stay silent even in court. There’s an analogous situation in wartime as well; the Geneva Conventions, taken in full, essentially prohibit *all* interrogation, in that POWs or detainees cannot be “coerced” in any way, physical or psychological. Yet interrogation of prisoners, to some degree, is virtually universal. So are all governments acting illegally all the time? Or if a government must subvent a law in order to function (for instance, to provide order), is the law viable?

It’s telling that you mention due process. International law is mostly well-intentioned, but since there is no international state, there is no enforcement (or grossly unequal enforcement), and thus no due process. Without due procss, international law becomes sort of a farce. Example: Country or Group X wages war against Country or Group Y using means that are clearly illegal under international law — terrorism, for instance, or genocide. Yet they cannot be brought to “justice” because there is no working police mechanism that has jurisdiction over the globe. So Country or Group Y resorts to means that are also illegal — torture, eg. Now, both parties are guilty of violations (and we could debate all day about proportionality) but if only one party is held to account for its violations while the other attains its goals, that is just but also unjust.

The only working mechanism we have for dealing with such situations is war. Yet war is hell. Is it possible to be anti-war and pro-justice? I’ve got my owns thoughts on that, but around here I am in the distinct minority.

28

Mark 05.18.05 at 2:08 pm

rea, I’m not convinced you’ve characterized John’s argument properly. John doesn’t seem to claim in this post that the Bush Administration has an explicit pro-torture policy in place. He tends to focus on the article itself (using an interpretation which I dispute) the alleged (non)reaction of pro-war pundits, and some possibly unrelated and controversial remarks about alleged US support of dubious regimes. Perhaps you can provide a more textually-supported argument.

29

John Quiggin 05.18.05 at 3:10 pm

Mark, I think it ought to be pretty clear that “these guys” refers to the Australian bloggers who’ve explicitly or implicitly supported the arguments put forward in support of torture.

30

rea 05.18.05 at 3:42 pm

“John doesn’t seem to claim in this post that the Bush Administration has an explicit pro-torture policy in place.”

Bloody hell, it doesn’t matter whether John makes that claim, because we all know it to be true. Have you paid no attention to anything written about this issue over the last year or so? Next, you’ll be telling me that John hasn’t specifically endorsed gravity . . .

http://lawofwar.org/Torture_Memos_analysis.htm

http://www.thesmokinggun.com/archive/0623041doj1.html

31

neil 05.18.05 at 3:44 pm

JQ”s argument is completely incomprehensible.

How does…

“Next time you read one of these guys talking about Saddam and his crimes, remember it’s just a factional brawl within the pro-torture party.”

Lead to…

“If Saddam had stuck to fighting wars against Iran, and torturing Iraqis, instead of invading Kuwait, he’d still be “an SOB, but our SOB”, just like Karimov in Uzbekistan.”

So, there is a “pro-torture party”. Which may or may not be the same as the “pro-war party”, JQ makes the implication but leaves room for denial. And from this concludes that “these guys” would be happy enough with Saddam and Karimov as “our SOBs”. There is no logic to this other than gratuitous insult.

One could with the same logic argue that those who were opposed to the war were quite happy as long as Saddam was not threat to anyone put the Iraqis. He’s not our SOB so let him do what he wants.

If JQ is attempting to say that there are some people who supprted the war who have greater toleerance for torture than others then fine. But that’s about as useful as saying there were some who opposed the war who have a greater tolerance for totalitian states. All true in a trivial sense. But the aim was to tar the pro-war camp with being pro-torture and pro “our SOB” tyrants. Hardly any reasoned contribution to the debate.

32

RSL 05.18.05 at 3:57 pm

George . . . I’d be interested in your thoughts on war. It seems to me that the Constitution really only allows the federal government to exercise the strong arm of power in two contexts: criminal justice and war. Terrorists (including enemy combatants), therefore, must be covered either by the laws of criminal justice or the rules of war. If they are covered by the criminal justice system, then we all know there are a vast number of checks and balances built into the system to ensure individual rights are protected and the public has oversight of the executive’s action in attempting to deprive the accused of life, liberty, or property (these checks and balances include the double jury system, the Bill of Rights, and the Constitutional division of powers and responsibilities between different branches of government, all three of which are involved in criminal justice in some ways–Congress by passing the laws, the executive by prosecuting the case and punishing those found guilty, and the courts by managing the trial). As I argued above, however, interrogation cannot really be pursued under the criminal justice system, since the 5th Amendment gives the accused the right to remain silent.

So we are left with the war powers as the only option for dealing with these alleged terrorists. And here we face a number of serious issues:

Can war really be declared against individuals or groups that aren’t actual states?

I’m skeptical about this, but I’m willing to accede that it may be necessary in some cases. Note, however, that a Congressional declaration of war against an individual seems very much like a Bill of Attainder, and Bills of Attainder are specifically prohibited under the Constitution. Also, the “Privelege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” It’s hard to see how terrorists not in active invasion of the country (non-citizens) or in rebellion (citizens) would qualify under the two allowed exceptions to Habeas Corpus.

If we do decide that the war powers can be exercised against individuals or groups, can the executive exercise these powers without Congress first giving its authority through a declaration of war against the specific group or individual?

Here I would demand a declaration. Leaving it to the executive seems dangerous to liberty. I want some check and balance on such an extraordinary power.

Shouldn’t declarations of war always be public?

Here again I would say yes. If the extraordinary power to deprive people of life, liberty, and property through war is to be granted to the executive, shouldn’t both public consent (through Congress) and public notice be required? A declaration is not a declaration if it is not declared openly.

Should Congress be able to put time limits on the declaration?

Leaving the duration of war solely to the executive seems to allow for unlimited war–again a dangerous threat to liberty.

Are those captured in war criminals?

It seems to me the answer is clearly no for soldiers fighting for their country. We treat these captives as innocents (essentially this is the spirit behind the Geneva Convention)–people simply acting in defense of their country. If we think they’ve committed crimes, we transfer them to the criminal justice system for prosecution under the appropriate criminal law. Note that the Constitution gives Congress–not the Executive–the power “to make Rules concerning Captures on Land and Water.”

For people who are acting independently of a state, however, do we treat them as innocents?

The closest the Constitution gets to this issue (at least as I read it) is in giving Congress the power “to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Pirates seem to be the closest thing to today’s terrorists–stateless individuals exercising warlike powers. I am not an expert here, but I think historically pirates might have been captured by the military, but they were then charged with a criminal offense and given an ordinary trial do determine guilt or innocence. If this is true, then the precedent seems to be that we can capture terrorists using military power, but once we capture them, we need to transfer them to the criminal justice system for any kind of prosecution. I would also expect them to be treated just like ordinary soldiers (with the presumption of innocence) until being transfered to the criminal justice system for prosecution. I don’t see too much room for interrogation (or torture) here.

So is interrogation (never mind torture) allowed ever?

Well, it’s up to Congress to define the rules for the treatment of captures on land and sea. So if the law allows it, maybe, though not in criminal contexts (where the 5th Amendment allows it only if the accused provides answers voluntarily). Right now it seems to me like the only rules that apply are the Geneva Conventions (ratified by Congress)–and these don’t seem to allow coercion. So right now neither interrogation nor torture seems to be legal to me. I admit, though, that I am not a lawyer or legal scholor, so I’d be interested in the opinions of anyone more knowledgeable than I in these areas.

33

Tim 05.18.05 at 5:11 pm

The point, it seemed to me, was to suggest a liberation-justifies the war loses validity in proportion to the degree that the person making the argument (the australian judge/”these guys”)resembles (by endorsing torture) the oppressor (Hussein).

34

John Quiggin 05.18.05 at 5:12 pm

Neil, perhaps your comment crossed with mine, clarifying that by “pro-torture party” I mean those Australian bloggers who have explicitly or implicitly endorsed the calls for the legalisation of torture that were the topic of the post.

At this point in the debate, though, I’d say that anyone who actively supports the Bush Administration in its conduct of the war and hasn’t explicitly condemned torture ought to ask themselves why. Over to you.

35

neil 05.18.05 at 6:07 pm

I explicitly condemn torture and am critical of the Bush Administration’s equivocation on this issue.

36

snuh 05.18.05 at 6:33 pm

“I’m sorry, but “the torturers” is simply too heterogenous a group for them to have a “side”. And although Bagaric condones torture, and the torturers from whom the refugees were fleeing condone torture, this puts them on the same side of only one question right now, and very likely not the central question to be addressed in the refugee hearing.

you’re asking the wrong question. as a matter of australian law, judges [and in this context, tribunal decision makers] should recuse themselves not only where the judge is actually biased, but also where there is a reasonable apprehension of bias. as the maxim goes, justice must not only be done but also appear to be done.

if you were a refugee who had been the victim of torture, you would surely not want your case heard before a supporter of torture, no matter how limited that support was. it would be quite reasonable for the refugee to believe the decision-maker to be biased, if the refugee was aware of the support for torture.

bagaric should’ve recused himself.

37

John Quiggin 05.18.05 at 6:36 pm

Thanks, Neil. To be absolutely explicit myself, I did not intend to claim, and don’t claim, that all supporters of the war are part of the pro-torture party.

George, on “our SOB”, I don’t take this to mean (necessarily) a puppet installed by and directly controlled by the government in question. The US didn’t install Saddam and didn’t support everything he did during the 1980s. But the US Administration was prepared to use him against the Iranians, and therefore to refrain from the kind of outright and unqualified condemnation he deserved. The current situation with Karimov is much the same.

38

rea 05.18.05 at 6:52 pm

“George, on ‘our SOB’, I don’t take this to mean (necessarily) a puppet installed by and directly controlled by the government in question.”

The quote is usually attributed to FDR; accounts differ as to whether he was talking about Somoza (Nicaragua) or Trujillo (Dominican Republic). Either of those options would fit your interpretation.

39

george 05.18.05 at 7:10 pm

Hi rsl, thanks for responding. I’m not a lawyer either, so I’m probably in over my head already. Nevertheless I’ll hazard an opinion…

I think we’re on the same page, mostly, wrt Constitutional treatment of US citizens — habeas corpus, jury trials, due process and all of that. Though I’m generally a Bush supporter in matters of foreign policy, I think he’s gone way overboard in some cases (such as the uncharged and/or secret detentions of citizens). Even so, gray areas do exist; Jose Padilla, for instance, was arguably engaging in rebellion (though I’d take the other side in that argument).

There’s a lot more gray when you’re talking about noncitizens. Al Qaeda, for instance, did in fact invade the United States, so no habeas for them — at least as far as the Constitution’s concerned. There’s also reason to think that Geneva doesn’t (or shouldn’t) necessarily apply to terrorists. The Conventions were designed to cover state-to-state warfare, yet al Qaeda and other terrorists don’t fight for any state, don’t wear any uniform, don’t recognize the Conventions, or indeed any rule of conduct. Terrorism itself, inasmuch as it represents a return to “total war,” is a dismissal of the Conventions, and therein lies its power. So do they forfeit the protections of the Conventions? I think the “enemy combatant” designation (suspects are to be treated “consistent with” the Conventions but are not legally entitled to its protections) is the Bush Administration’s attempt to navigate this ambiguity.

Your analogy to piracy is useful, and strictly in terms of the moral issues involved is better than the other comparisons sometimes made (the Indian wars of North America in the 19th century, the African colonial wars). Though I’m not saying we must be bound by the precedent, it’s useful to think about.

I’m also not saying that I have the answers to these questions, nor that they justify all that Bush has done. While I think it’s legitimate for the Administration to explore the gray areas, the US has pretty clearly abused its discretion in some cases (it appears a lot of non-terrorists were kept overlong at Guantanamo, for instance). But I’m also not ready to simply call everything “illegal.” There’s a burning need for a rewriting of international law that takes these issues into account.

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Mark 05.18.05 at 7:25 pm

rea, you appear more willing than I to attribute positions to a person without textual support. Also, it’s probably fair to say that premises you hold to be self-evidently true, I likely do not.

John, thanks for your clarification.

41

Dan Simon 05.19.05 at 2:42 am

At this point in the debate, though, I’d say that anyone who actively supports the Bush Administration in its conduct of the war and hasn’t explicitly condemned torture ought to ask themselves why.

Hmm….should anyone who has explicitly condemned torture, and did not actively support the Bush administration’s decision to go to war, ask themselves why?

After all, there’s no question that the American defeat of Saddam Hussein’s regime has significantly reduced the amount of torture in the world–even factoring in Abu Ghraib, and if you like, Guantanamo, extraordinary rendition, etc. etc.

Of course, one could have opposed the Iraq war for reasons that have nothing to do with torture. But then, one could also have supported the Iraq war for reasons that have nothing to do with torture. One could be, for example, an advocate of democratization. Or of Kurdish ethnic rights. Or of the long-term benefit of removing US troops from their uncomfortable former sentry posts in northeastern Saudi Arabia.

Or one could be generally in favor of reducing the use of torture worldwide, while conceding that it might be legitimate under certain circumstances.

In short, John, I’d say that your above assertion makes absolutely no sense whatsoever.

42

moni 05.19.05 at 3:23 am

Yet they cannot be brought to “justice” because there is no working police mechanism that has jurisdiction over the globe.

Thankfully, and it’s not “police” the term you’re looking for, but “justice”, you keep switching the two like they were the same thing.

Now I seem to recall, maybe I’m wrong, that there was this thing I heard of, International Court of Justice, which the US raised two fingers to, but it may be an urban legend because everyone seems to have forgot so, nevermind.

The only working mechanism we have for dealing with such situations is war.

Really? Now we’ve gone from international police to justice back to police and then to war? How interesting!

Yet war is hell.

Ah yes of course. Like an earthquake. It happens, and it’s awful, and we can do nothing about it!

And torture, I imagine, fits right in this stoic acceptance of war?

Is it possible to be anti-war and pro-justice?

Nooo, of course not… If war is the only available means for application of international law (!) then of course being anti-war means we’re pro-torture and anit-justice.

Ladies and Gentlemen, you have just entered a parallel universe, one of many where every principle of law is shuffled around to fit right into the current US strategies…

43

moni 05.19.05 at 3:30 am

After all, there’s no question that the American defeat of Saddam Hussein’s regime has significantly reduced the amount of torture in the world

Yes! brilliant! genius! Self-evident truths! It’s those still against the war who have to answer for moral support for torture. Sad, but true!

Dan Simon, you deserve the honorary title of guardian of the gates of that parallel universe.

44

RSL 05.19.05 at 5:54 am

George . . .

Thanks for your thoughts. Don’t have much time right now, but two quick comments on your last post–and I’ll try to respond in more detail later:

Rights of citizens vs those of non-citizens

I think past court decisions (precedent) would support your idea that the Bill of Rights applies differently to citizens and non-citizens. I’ve never been convinced, however, that the wording of the Constitution really supports this distinction. (I’ll do some research later.) I’m pretty much a strict interpretationist, so I’d argue that the precedents represent an early instance of “judicial activism” and would hope to see them overturned. I do think the Founder’s intent was not to exclude non-citizens, only because I think they believed in the “universal rights of man” concept and felt that any person (or at least any white man of European descent) under U.S. jurisdiction should be protected.

Suspending Habeas Corpus

I think the “invasion” and “rebellion” exception to the privelege of Habeas Corpus is a very narrow one. Many at the Constitutional Convention objected to any exception to Habeas Corpus at all. The compromise to me seems to allows suspension only in the case of forces actively engaged in war on the soil of the U.S. I think you could reasonably say a small band of foreign terrorists operating in the U.S. and actively involved in an attack would be covered by the exception. I think it’s harder to argue that they’d be covered if they were merely plotting (and not in active attack). I can’t see how the word “invasion” could apply to foreigners captured on foreign soil (like most of the detainees at Gitmo). I assume the founders used the term “invasion” to cover non-citizens and “rebellion” to cover citizens. Rebellion seems to me a term that we’d want applied very narrowly, since a broad (or loose) interpretation might allow the government to detain any dissenters by saying that they’re rebels. No one wants that.

Anyway, gotta run . . . I’d be interested in your thoughts.

45

RSL 05.19.05 at 6:05 am

One other quick point: who has the authority to suspend the writ of Habeas Corpus? The discussion of suspension comes under Article I, which describes powers of Congress, so you could assume it would be a Congressional power. But the Constitution is ambiguous–and the famous example of the suspension is Lincoln’s suspension during the Civil War.

46

RSL 05.19.05 at 6:19 am

Oh and one more point (then I really need to run): I think it really is more appropriate for Congress (not the administration) to explore these issues, since the Constitution gives them the power to make rules for treating captives.

The administration is certainly welcome to make suggestions–but I think it’s really up to the Congress to decide what the law will be. And then the executive needs to follow that law. I wish this discussion would actually happen, but I fear the partisan environment in Washington (and the country in general) gets in the way of any serious thought . . .

47

Hairyman 05.19.05 at 6:46 am

Dear All,

I am an Australian, and have been horrified by the views of Clarke and Baragic. Instead of concentrating just on a specific jurisprudence, I think it may be more useful to examine the subject on a more general level. Below is a post I made on another forum. I would be glad of people’s thoughts.

There are several problems with the thesis put forward by these academics.

Let’s leave aside the many streams of ethical thought that regard such a stance as self-evidently abhorrent and concentrate instead on thier purely consequentialist (an aggressive for of utilitarian thought) approach.

Their thesis is that I can, by applying torture, even though this is very bad in itself, avoid a greater harm to a greater number of people and end with a net good outcome.

It has the advantage of beguiling simplicity and a pattina of reasonableness that could make it palatable given the scenarios that they provide.

Unfortunately the world is not such a simple place.

To be a consequentialist, let us look at the consequences of thier suggestion:

1) Torture becomes a legitimate tool of the state in the wider global community (note that their are many countries already using torture for political and policing purposes, including Israel, several other Gulf and Asian states and the usual grouping of norotious repressive dictatorships). It is then easy for all maner of disparate and sometimes unsavoury groups to say that torture is an acceptable means of prosecuting your cause. They are easily able to hold up the example of civilised powers for whom this is acceptable. This line of argument has also been used to suggest that he adoption of other methods used by terrorists is acceptable to combat terrorism, and the rebuttal is the same. You cannot argue that the use of the tactics of terror is an abuse of human rights if you are prepared to use them yourself, and by using them yourself then you lend legitimacy to the practice. The terrorists can have a feild day, and in the end have been very successful in prosecuting their intention to destroy our value systems and the freedoms of our society.

2) The victim of your torture has be come completely disenfranchised. They no longer have any rights whatsoever given that you are happy to torture them to the point of death (as stated by the learned professors). To be able to pursue such a course one must provide a significant level of protection to the people who are controlled by your jurisdiction. The information in the scenarios postulated is all time critical. There is no time for the pursuit of the usual processes of justice, so the protection for the accused is poor. The inquisitors will never be omniscient. Innocent people will be tortured to death in error.

3) People who are being tortured provide a poor and degraded source of information. Their main wish is for you to stop torturing them. They are likely to say things that they think you want to hear rather than what may be a truth that you have already rejected as false (in error). This leaves you with inaccurate or incomplete information on which to act, compounding you error with further folly.

If the state accepts torture, then we are all at risk of torture. The risk of a miscarriage (no matter how well-intentioned) of justice and the wrongful use of torture and killing can never be acceptable to the civilised nation.

48

jet 05.19.05 at 9:33 am

rsl,
I thought the US Supreme Court had already ruled that the Constitution did not apply fully to non-US citizens. I was also under the impression that the current (official) treatment of prisoners of war was already covered under a mound of legislation and case law?

49

james 05.19.05 at 10:33 am

Under the Geneva Conventions, it is possible terrorist are most accurately classified as spies (non-uniformed enemy combatants). If this is the case, the Conventions provide no protection what so ever. It is unlikely the Geneva conventions intended to classify soldiers as spies when their governments can not afford uniforms. It is obvious that the conventions intended to prevent soldiers (uniform requirement) from using non-combatants as shields.

Rsl raises an interesting point. For the US, the Constitution could require providing terrorist / spies a standard list of rights.

50

Dan Simon 05.19.05 at 11:10 am

Yes! brilliant! genius! Self-evident truths! It’s those still against the war who have to answer for moral support for torture. Sad, but true!

Moni, are you seriously doubting my assertion that the Iraq war reduced the total amount and severity of torture in the world? Do you know anything, anything at all, about the torture practices of the former Iraqi regime?

And did you even read my comment–in which I explicitly refuted John’s drawing of a necessary connection between supporting or opposing the Iraq war and supporting or opposing the complete abolition of torture?

51

saurabh 05.19.05 at 12:54 pm

Re: Karimov not being “our SOB” – first, we probably still give him a considerable amount of aid, though not through publically acknowledged channels. I understand this is not a claim that is easily verified, but that’s partly the point. For example, after it publically and loudly cut aid to Uzbekistan by $18M in July 2004, the U.S. quietly upped funds to help Uzbekistan “find bio weapons” by $21M in August. I think a few more such instances are known; probably we still give them at least a hundred million a year through hidden channels.

Also, we have a Strategic Defense Partnership with Uzbekistan, meaning they are a signed ally of ours with preferential economic status. This has not, as far as I know, been repudiated.

There is some evidence that the CIA has been fond of sending people to Uzbekistan to be tortured (“rendition”). This certainly makes him “our SOB”, if true.

Finally, the White House, in comparison to, say, the British government, has not so far roundly condemned the Uzbek government, always very circumspect and asking only for “more openness”, and expressing their “regret” that so many people were killed. (Imagine: “We regret sincerely that Mr. Hussein has invaded Kuwait.”) They have not come out strongly in favor of demands for UN investigation of violence, or other, serious measures to put pressure on Karimov’s government to reform.

This suggests that Karimov is very much, still, our SOB, and we are looking out for him as best we can without coming off like complete assholes.

52

RSL 05.19.05 at 1:05 pm

Jet . . .

I’m not a lawyer or legal scholar, but I think you are right that the Supreme Court has held that citizens and non-citizens have different rights. I’m not certain of the details, though, and would need to spend some time in the law library to learn more.

I do think, though, that the actual wording of the Constitution doesn’t really support this distinction. In the Bill of Rights, for example the words used are “people” and “person” not “citizen.” For instance, the 5th Amendment begins: “No person shall be held to answer for a capital or otherwise infamous crime, unless . . .” and continues “nor shall any person . . . be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” In the actual body of the Constitution (Article III), we have “The Trial of all Crimes, except in the Cases of Impeachment, shall be by Jury.” The 14th Amendment is interesting because it does use the word “citizen” in places, but when it talks about rights, it uses the broader term “person”–e.g., “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So . . . it seems to me that any distinctions the Courts have made in the application of due process or the Bill of Rights to non-citizens vs. citizens seems to be a form of judicial activism–reading into the Constitution what one would like it to say rather than what it really says.

I’m not sure what laws are on the books dealing with treatment of captives. I imagine there are some, but I think the Geneva Conventions are the main laws that apply (treaties have the force of law once ratified by the Senate). Again, though, not being a legal specialist, I’d need to do a lot of independent research to be able to answer this with any confidence . . .

53

John Quiggin 05.19.05 at 2:59 pm

Dan, I’d be much more interested in responding to you if, rather than setting up a bunch of hypotheticals, you stated your own position. Do you or don’t you condemn torture without reservation? Do you or don’t you support the actions of the Bush Administration in this respect?

54

Dan Simon 05.19.05 at 5:04 pm

John, I’m happy to oblige. I’ve seen the term “torture” applied to a wide range of types of treatment, from uncomfortable living quarters to the deliberate, continual infliction of extreme pain and serious injury. I don’t know where the exact line should be drawn, but I believe it should be somewhere between these two extremes–and not include, for example, meager-but-sufficient rations, uncomfortable ambient temperatures, reduced sleep hours, and so on.

As for what I would consider actual torture, I’m not willing to rule it out under all circumstances, although I’d like to see it confined to very rare, extreme cases, and subject to some kind of procedural limitations to prevent its overuse. Designing and instituting such formal procedures is of course made more difficult by the agitation of activists who oppose all forms of less-than-gentle treatment under any circumstances, and who therefore consider the creation of such procedures to be a dangerous concession rather than an important safety measure.

I don’t know how my position compares with that of the Bush administration, so I can’t answer your last question. I should note, though, that even if it turns out that I disagree with the details of the Bush administration’s policy on torture, that doesn’t mean I think the Iraq war to have been a bad idea. Among its many benefits, in fact–as I pointed out–was that it did sharply reduce the frequency and severity of the use of torture in that country. I consider that to be a good thing–don’t you?

55

moni 05.20.05 at 2:14 am

You cannot argue that the use of the tactics of terror is an abuse of human rights if you are prepared to use them yourself, and by using them yourself then you lend legitimacy to the practice.

Yup… good post, hairyman. I believe once, before the rehabilitation of lawless imperialism through scaremongering, those things were self-evident to all people of sound mind and good faith.

Dan Simon – I don’t know where the exact line should be drawn, but I believe it should be somewhere between these two extremes—and not include, for example, meager-but-sufficient rations, uncomfortable ambient temperatures, reduced sleep hours, and so on.

Hey Dan, why not draw the line to what you would personally comfortable with, should you be arrested as a terrorist supect?

I’d like to see you expand on the harmlessness of reduced sleep hours and uncomfortable temperatures after they’ve been deliberately inflicted on you, while you’re being kept indefinitely in a cell without legal counsel.

But again, you forget, that the lines are drawn clearly in law anyway. So whatever you say on the subject tells us a lot about yourself and your worldview, but it doesn’t tell us anything about what’s permissible and what’s not.

56

RSL 05.20.05 at 6:45 am

Dan,

It seems to me that before we debate the fine line between torture and mere coercion, we need to ask the broader question: what gives the government any legal authority to interrogate anyone against their will? The 5th Amendment gives everyone the right to remain silent in criminal cases. The Geneva Conventions I believe prevent coercive interrogation of captives seized in war. I’ve heard no one cite any law that grants the government power to interrogate in other situations. The Constitution simply doesn’t envision the federal government capturing people and forcing them to divulge information outside criminal cases (and maybe war). So how can any coercive interrogation (with or without torture) be legal in the U.S.?

Torture is the emotional issue–but the real important issue is what right does the government have to demand any information at all from me or anyone else, with or without the use of coercive methods?

57

Dan Simon 05.20.05 at 11:17 am

Moni and RSL: The details of defining, permitting and limiting torture are a complicated topic that I’ve discussed at length before–including here on Crooked Timber–and would be happy to discuss again. But that wasn’t the original topic of this thread, nor of my original comments about it. The original topic of this thread was whether an opponent of completely banning all torture, broadly defined, thereby forfeited all credibility when arguing in support of the American campaign in Iraq.

John Quiggin originally so claimed. I responded that on the contrary, even people who do seek the complete abolition of all torture–let alone those who merely want to see the use of torture reduced to a few extreme cases–have good reason to applaud the American military action to topple Saddam Hussein. Moni then mockingly ridiculed that position.

Subsequently, John asked about my general position on torture, and I obliged. John has since been silent, while Moni and RSL have shifted the debate to criticizing my specific opinions on torture. May I infer from this silence and change of subject that all three of you concede my point, and recognize that–everyone’s specific personal views on torture aside–celebrating the effects of the American military action in Iraq on the incidence and severity of torture in the world is quite a reasonable thing for all of us to do?

58

RSL 05.20.05 at 11:44 am

Dan,

Fair enough. Just to put my own opinion on the initial issue of the thread on record, I don’t agree with either of the following positions:

1) Everyone who supports the Iraq war must be also be pro-torture.

2) Everyone who is against the Iraq war must also acknowledge that it has reduced the incidence and severity of torture.

I have seen empirical evidence that the first statement is wrong and seen no empirical evidence that the second is right. (True, Saddam is not doing the killing and torturing anymore, but there are still an awful lot of people in Iraq and around the world being killed and tortured–how would you reliably measure and compare?)

My post at #56 is, in my opinion, a direct response to two issues you raised in #54:

The distinction between torture and lesser forms of coercion–I simply believe that this distinction is irrelevant until the broader question of the authority to interrogate is answered. We first have to establish that the government has legal authority to interrogate before we can argue what methods of interrogation are acceptable.

The circumstances in which torture is acceptable–again, in my opinion, the primary issue is defining the situations in which interrogation is acceptable. Once we’ve established that, we can move on to a discussion of what methods of interrogation are acceptable in which situations.

59

Dan Simon 05.20.05 at 1:12 pm

(True, Saddam is not doing the killing and torturing anymore, but there are still an awful lot of people in Iraq and around the world being killed and tortured—how would you reliably measure and compare?)

I am, to be sure, making a few assumptions here. For one thing, I’m assuming that the amount of torture not involving either the US or Iraq was unaffected by the Iraq conflict. That may be in error, but the outbreaks of democratization that have occurred in several previously very repressive countries since then suggest that if anything, its collateral effect was to reduce the incidence of torture elsewhere, rather than to increase it.

As for Iraq itself, specific cases of torture have been widely propagated in the press, but they have involved at most some dozens of victims–and the attention they have gotten strongly suggests that if there were many more, we’d have heard about them as well. On the other hand, if you’re familiar with the situation in Iraq under Saddam Hussein, you’ll know that torture used to be routine there, with literally thousands of victims tortured in ways that go far beyond the humiliations and discomforts that have been so widely discussed in the last year or two. Again, my assumption that the reports that have reached the public are representative could be wrong. But unfortunately, they’re all we have to go on.

Torture is the emotional issue—but the real important issue is what right does the government have to demand any information at all from me or anyone else, with or without the use of coercive methods?

Well, all I can say is that I hope you arrived at this position after April 15th of this year. I’m given to understand that the IRS is quite unimpressed by such arguments.

60

RSL 05.20.05 at 3:33 pm

Dan . . .

My instinct says that you are probably right that Saddam tortured more Iraqis than the Americans have. However, the amount of brutality going on in Iraq seems pretty constant to me, so I’m not sure I’d concede that that represents real progress, which is why even people who were unhappy with Saddam could be unhappy with the war. Just like you don’t have to be pro-torture if you are pro-war, you can be both anti-Saddam and anti-war.

As far as the IRS is concerned, there is a body of law that gives the federal government the authority to collect taxes (and information about my income) from me. So there’s due process and rule of law. But no one has been able to point me to a law that covers detentions and interrogations for so-called “enemy combatants.” There are laws covering criminal interrogations (can’t do it under the 5th Amendment unless the accused participates voluntary) and there are laws covering the interrogation of captives in war (Geneva conventions, which limit interrogations). The Bush administration seems to have invented this third category of enemy combatant out of thin air and claimed, essentially, that these captives have no right to any due process other than what the Bush adminstration deems appropriate. This seems to be a really dangerous precedent to me–one that should seriously upset small-government conservatives as much as it upsets liberals.

I don’t like torture in any situation, but it seems silly to me to discuss in what circumstances torture might be justifiable until we resolve the broader issues of when the government can detain and interrogate so-called enemy combatants and what laws and due process apply to those detentions and interrogations.

61

e sciaroni 05.20.05 at 5:44 pm

Torture has no place in a free society. Hairyman has explained this clearly. But it will require a diverse coalition around the world to stop this barbaric practice. Our leaders need to make it clear that all torture is unacceptable.

I am astounded that reasonable people can defend torture.

62

John Quiggin 05.20.05 at 10:18 pm

“John has since been silent”

Actually, asleep, but no matter.

Dan, if you’re not aware that methods of interrogation officially allowed under US rules have included such options as the use of savage dogs to terrify naked prisoners, and that unofficially sanctioned methods have gone much further, you haven’t been reading the news.

I don’t accept your “less torture than under Saddam” criterion (assuming it’s correct, which isn’t clear, given that both sides in the current war are using torture). The long term damage to civilisation from the reintroduction of legalised torture by supposedly civilised and democratic countries outweighs almost any short term gain.

And, in any case, if you take a short-run consequentialist viewpoint, the massively increased death rates since the invasion outweigh any immediate benefits.

63

Dan Simon 05.21.05 at 12:31 am

Dan, if you’re not aware that methods of interrogation officially allowed under US rules have included such options as the use of savage dogs to terrify naked prisoners, and that unofficially sanctioned methods have gone much further, you haven’t been reading the news.

You mean that dogs are allowed to be let loose to maul prisoners, or that dogs are allowed to be used to intimidate prisoners–say, by keeping them from trying to escape or attack their guards? The latter use is, I would say, pretty common in prisons, and I’m hard pressed to see what’s wrong with it.

Or are you talking about the canine equivalent of the “crazy man” tactic, where the interrogator threatens to do something rash, without actually doing it? Sheesh–that’s not even causing physical harm–it’s a psychological tactic to fool subjects into cooperating. It’s not nice behavior, I grant you–but frankly, I’d be appalled if US interrogators didn’t use it.

As for the methods that have “gone much further”, I’m under the impression that said methods are reserved for a very few, very exceptional cases. If the deliberate infliction of extreme pain, for example, is a routine form of treatment, then I’m inclined to believe that many innocents, or unnecessary victims, are bound to be caught up in it, and that would be a terrible thing. But I’m not aware that that’s happening.

I don’t accept your “less torture than under Saddam” criterion (assuming it’s correct, which isn’t clear, given that both sides in the current war are using torture). The long term damage to civilisation from the reintroduction of legalised torture by supposedly civilised and democratic countries outweighs almost any short term gain.

Well, that’s the kind of unpredictable long-term prognosis on which we’ll just have to agree to disagree. I’m completely confident that the introduction of democracy to Iraq–even a fledgling, insecure one–far outweighs the “damage” done by the occasional rare resort to torture under extreme circumstances. I’m willing–just barely–to concede that reasonable people might conceivably believe otherwise, but I hope you’ll grant that my position is not, as you previously suggested, completely untenable.

By the way, are you referring here to the supposed long-run damage done to civilization done by US interrogators threatening their subjects with dogs? How did you feel about “mutual assured destruction”? What, exactly, do you think the very existence of, say, bomber squadrons threatens? Isn’t this “damage to civilization” stuff just a tad overwrought, if that’s your definition of torture?

Also, if the “reintroduction of legalised torture by supposedly civilised and democratic countries” is so dangerous, what about increased economic and political traffic with countries that are still habitual users of torture? Are you as upset about, say, the proposals to drop of sanctions against Iran? Or the integration of China with the world economy? If any contamination by any level of torture is disastrous for “civilised and democratic countries”, then what about contamination through relations with countries that practice it routinely?

And, in any case, if you take a short-run consequentialist viewpoint, the massively increased death rates since the invasion outweigh any immediate benefits.

Why on earth would anyone take a short-run consequentialist viewpoint about any of this? Surely one thing we can all agree on is that in an incredibly dynamic situation like the past few years of Iraqi history, long-run effects are going to be far more important than short-term ones–no? Otherwise, why would you be getting so worked up about the “reintroduction of legalised torture”–whose short-term upside potential pretty obviously swamps its short-term risks?

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