Inward and Outward Justice

It’s hard to take this seriously. What do they imagine they’ll do – practice holding their breath while being waterboarded dunked in water?

Indeed they do. Both the CIA and the Navy Seals have used water-boading as part of their own counter-interrogation training. The same is true of other kinds of coercive techniques and torture. Anticipating the techniques that are likely to be used against one plays an important role in training to resist those techniques. Khalid Sheikh Muhammad is said to have held out against water-boarding for two minutes – far in excess of the average of 14 seconds – which suggests he may indeed have trained in anticipating and resisting water boarding. His torturers were allegedly impressed.

Ultimately, this training was ineffective against water-boarding, but it is certainly conceivable that other kinds of counter-interroagtion training would be more effective, especially if it was based on accurate knowledge about the techniques likely to be used.

The connection seems plausible – only the conclusion is absurd. We need to undermine the rule of law at home so that we can continue to lie to our allies.

Perhaps I have misinterpreted the government argument, but I understand them to be saying not that they want to continue to deceive US allies, but that in many cases the governments of those allies have cooperated with us, and thus we need to shield the identities of those countries to protect them against retaliation.

I don’t think the proper response to these arguments is to claim that there is absolutely nothing to them. It is better to argue that whatever merit they have is trumped by the interests of justice and the right to a fair trial, and also by the public interest in learning what illegal techniques our own governments have used.

Jesus fucking christ, Dan. If a torture technique is effective, then the whole point is that the victim will say what his torturers wish him to say, no matter what he wants. The fact that you use the somebody could resist a torture technique for two fucking minutes as proof that it’s vital to keep them secret is proof that you really, really need to be tortured.

“crimes against humanity” possibly should be “war crimes,” I don’t know the exact legal classification of torture that takes place in our weird quasi-war situation. Or “torture crimes” if you will.

Seth,

Your “nothing new under the sun” argument may be correct. On the other hand, people have proved enlessly inventive down through the years in devising creative ways of inflicting agony on one another. So I am not entirely convinced.

Also, the interrogation techniques the government is trying to protect may include all sorts of theatrical and psychological ruses involving elaborate use of confederates, technological innovations and layers of misinformation and partial information, and which are usually carried out over extended periods of time. It is surely possible to devise novel techniques of this kind. And it is plausible that the release of information about how these scams are run might undermine their future efficacy.

I certainly agree that the government’s motivation in making these arguments is probably the desire to prevent the release of very embarrassing information. I would go further than that: they are prabably trying to prevent the release of information which will not just be embarrassing, but will expose many individuals in the US or other governments to criminal or civil prosecution. However, it is also quite possible that they are trying to hold onto this incriminating and embarrassing information by throwing it in with a lot of other non-incriminating and non-embarrassing information that they do have some legitimate interest in protecting.

Barry,

Some techniques are only effective because their victims have not received training on how to resist them, or are not even aware that they are being used.

Somehow you are under the impression that I believe that torture techniques used by the government should be kept secret. I do not. However, I believe the lawyers for the defendants must be prepared to argue that even if some of the consequences the government wishes to prevent might result, and even if the interest in preventing some of those consequences is at least in some cases legitimate, the requirements for securing their clients’ right to a fair trial, including their right to adequate representation, trump these other interests.

Matt,

I agree with you about the relationship of trust argument. If government officials in other countries have conspired with the US to perpetrate crimes against humanity, they have no right to expect secrecy, and it doesn’t seem to me that criminal conspirators are entitled to a shield around their conspiracy simply because the public revelation of that conspiracy would damage the conspirators’ “relationship”. However Ms. Dorn paired the trust argument with a stronger argument: these non-US countries may be subject to retaliation in the form of terrorism, and that retaliation might bring harm to many innocent people who were not involved in the crime. Also, the lawyers for the defendants may attempt to reveal the names of countries that were not involved in torture and other human rights violations, but have only participated with the US in legal detention and interrogation practices. They might do this, or threaten to do it, as a way of pressuring that government into pressuring the US to drop the case.

It is probably a mistake to assume that the interrogation techniques the government is trying to protect all involve torture or something like it. As I understand it, the defendants’ lawyers don’t need to make the case that the techniques used amounted to torture or crimes against humanity – only that their clients’ confessions were elicited by techniques that cast doubt on the veracity of those confessions. Consider this passage from Coerced or Nonvoluntary Confessions by Hollida Wakefield and Ralph Underwager, Ph.D.

“Police may engage in deceptive and coercive interrogations to obtain confessions. When a confession is later retracted, judges and juries must assess the totality of the circumstances surrounding the confession, including the interrogation techniques used and the effects of these tactics on the particular defendant. A suspect who is vulnerable and confused or who is given false evidence by a coercive interrogator may produce a false confession. Expert testimony may be necessary to help jurors understand the circumstances that lead to nonvoluntary confessions.”

Are we getting confused here? Excepting the administrations tortured interpretation of “illegal combatants”, for the rest of us they are prisoners of war or civilian criminals. Hamdan attempted to set some guidelines, with retroactive consequences. If POW’s, does Geneva allow complicated interrogations? If criminals, they should have lawyers present and the right to remain silent.

Any evidence obtained outside of those strictures is inadmissable. Any detention not justified without recourse to inadmissable evidence is impermissable.

Why are we discussing this in any level of detail?

Matt: Right.

This topic conflates several issues that should be considered separately if the discussion isn’t to deteriorate into cheap rhetoric.

1) Secrecy. There’s nothing at all new about the secrecy dilemma: every government secret that’s kept from the enemy–whether about interrogation techniques or anything else–is also kept from the voting public, who might thereby be prevented from effectively judging their government’s performance. The standard answer is political oversight: a small, bipartisan group of elected politicians act as proxies for the public, watching for cases of information declared secret for reasons other than national security, such as bureaucratic habit or, worse, political expediency.

There’s no reason to believe that this approach, which is used to oversee every other government secret, isn’t also sufficient for those particular secrets relating to interrogation techniques.

2) Rule of law and democracy. The protections offered the accused in the criminal justice system exist to protect innocent citizens from false accusations. They are a kind of societal compact, in which citizens agree to limit the collective power to prosecute and punish, on the understanding that any citizen might find him- or herself a target of that power.

Citizens obviously have less concern about non-citizens being targets of that power, and the protections afforded noncitizens are scaled back accordingly–slightly for legally resident aliens, moreso for illegal aliens, and so on. At the opposite extreme from fellow citizens are suspected terrorists captured abroad by soldiers or foreign government agents. There is very little reason for citizens to be interested in limiting their own government’s powers with respect to such people. And indeed, there is precious little political support for any such solicitude.

(It’s true that some have found justification for it in the US Constitution. But then, what “some have found” there–and I include Supreme Court justices in that “some”–positively beggars the imagination.)

3) Basic humanity. Although the full protections of the rule of law may not apply to foreigners captured abroad, most people would agree that there are limits to how badly anyone should be treated, regardless of who they are or what they’ve done. However, the exact nature of those limits is the subject of considerable disagreement–the capital punishment issue being a famous example.

As I understand it, the consensus of Crooked Timber posters and commenters on this matter is quite different from that of the American polity, as indicated by various polls. Although my opinion is closer to that of the American public, I respect the views of those Crooked Timberites who disagree with me (a good deal more, it seems, than they respect mine), and consider it a worthwhile exercise for them to make the case for their more stringent definition of acceptable treatment. However, that case is ill-served by conflating it with essentially unrelated issues such as the two mentioned above.

Intersting to watch the slippery slope here, the way disease progresses.

First it was like: – wouldncha go barbaric to save 10 million people? – why, yeah, I suppose…

And now, of course, the ticking bomb and 10 million victims are gone and forgotten and it’s all like… well, you can see here what it’s like – like resurrecting Beria’s GPU.

At this point Dershowitz’s torture warrants and sterile needles under the nails sound like a celebration of humanism. But of course it’s too late for the torture warrants now, the horse is out of the barn. Oh, well.

Dan Simon,

On your number #2, under current procedures, how do we determine where to place a particular person? For example, you place suspected terrorists (and prior to proof, they are always merely suspected; that is basic to the principle of law) on the opposite extreme from citizens, but citizens have been prosecuted under our new anti-terrorists laws, and indeed, it seems likely that citizens could be terrorists. There is also the fact that this is an international effort, and, much as Bush may like unilalteralsim, it only has hope of success as such an effort. Everyone is a citizen of some country. If US citizens are less concerned about the rights of foreigners, there are other countries that feel differently, and we need the cooperation of as many of those as possible if our objective is actually to combat terrorism. Also, one cannot place someone in a category of “enemy combatant” or “terrorist” or somesuch thing as therefore beyond the law, unless that categorization is itself subject to law. If the law does not define its own domain, then it is not sovereign, and there is indeed no more rule of law.

The secrecy problem is also made difficult by the current Administration, as it is not at all clear that members of Congress, especially from the opposing party, have been informed of what is happening. In fact, the President has asserted his right to operate in spite of them and apparently exercised such.

That is, is it possible, under any practical circumstance, for the anti-torture side to win the argument you set up?

Seth, if your question is whether there is any way for the defense to win the argument that the prisoners must be allowed to tell their lawyers the details of the circumstances of their interrogation, I would say the answer is “absolutely yes,” and I have already said what I think that argument should be. The argument is that the defendants simply cannot receive a fair trial without being allowed to give this information to their lawyers.

I don’t think we are dealing here with a simple split between the “pro-torture side” and the “anti-torture side.” As much as we might both wish that some US officals were themselves on trial for participating in torture, or for approving torture, we’re not at that stage.

Dan Simon,

Your three points about secrecy, the rule of law and democracy and basic humanity seem to address general issues about what techniques the government should be allowed to use in interrogation, and given that certain techniques are used, whether the government should be allowed to classify them and keep them secret from the public. But I don’t believe that those broad questions of public policy are the questions the federal court is being asked to answer.

Individual human lives have no intrinsic value anymore; enemy combatants, suspected terrorists, domestic citizens, illegal aliens – all nothing.
What matters is the hive, the nucleus of the hive, its eggs dormant and waiting for the new day.
That’s what all this is, some ghastly grotesque SF plot where the last lone humans run for their lives down corridors of insect power, while deep underground in hardened bunkers the drones tend their mutant larva like Soviet daycare workers. Up top the warriors, expendable non-breeding units of defense, are deployed to pre-emptively protect and serve the hive’s budding knowledge of its own future.
The survival of that thing it will become is the sole valence for its mechanical ethos – this is biology morphing back into its essence from a formless thing covered in moral veneer, the pseudo right and wrong of reasoned ethics. Survival at any price.
“Human values?” nasal snort and phlegmatic sneer, “your ‘human values’ mean nothing to us, puny human.”
Or you could think of it as speciation.
Eloi and Morlocks for a time, then only Morlocks.

citizens have been prosecuted under our new anti-terrorists laws, and indeed, it seems likely that citizens could be terrorists.

Sorry–I should have been clearer. My arguments only apply to non-residents and/or non-citizens. Resident citizens accused of terrorism obviously have to be entitled to the standard protections given resident citizens accused of any other crime, lest the accusation of terrorism serve to undermine those protections completely.

In fact, domestic terrorism is not a new phenomenon, and domestic law enforcement authorities have been able to deal with it satisfactorily before. After all, preventing or punishing crimes by familiar locals on home turf is their normal job, as opposed to trying to capture foreign infiltrators–let alone foreign-based terrorist operatives who attack targets abroad without even entering the country.

If US citizens are less concerned about the rights of foreigners, there are other countries that feel differently, and we need the cooperation of as many of those as possible if our objective is actually to combat terrorism.

Certainly, and reciprocal treaties can and should be signed with sufficiently trustworthy countries, to ensure both mutual protection of citizens’ rights and vigorous pursuit of terrorist suspects. I don’t believe, however, that any of the controversial detainees in question here come from any country that a reasonable person would deem sufficiently trustworthy in that sense.

Intersting to watch the slippery slope here, the way disease progresses.

Wait a minute, Abb1–since when do you claim to have a problem with torture? I recall you vigorously defending the Mubarak regime against those who would democratize Egypt. Do you seriously believe his prison cells are pristine on that score?

I don’t believe that those broad questions of public policy are the questions the federal court is being asked to answer.

Quite right–the federal court will be asked to answer dry technical questions about precedent and legal procedure. But this isn’t a law blog, and I assumed that a broader discussion of the moral and political issues would be more appropriate here.

reciprocal treaties can and should be signed with sufficiently trustworthy countries, to ensure both mutual protection of citizens’ rights and vigorous pursuit of terrorist suspects

Yes, abb1, he really is saying that we should promise not to torture people unless they come from countries that we don’t deem “trustworthy.”

I’ve never defended the Mubarak regime, DS, so I feel comfortable in saying that you are a moral midget.

I don’t understand why arguing that Mubarak’s regime in Egypt is better than the likely alternative is such a shocker to you, Dan. In fact, it’s quite a trivial observation. It’s not unreasonable to disagree, of course, but I don’t understand the disdain.

Illegal immigrants can be deported once their illegality is established. They have broken a law, and there is a penalty, as is the case for breaking other laws. Deporting legal immigrants is pretty rare and would, I am sure, require some criminal conviction with due process of law. Or would in a democratic country, such as the US prior to Bush. Such due process is also accorded illegal immigrants when charged on something other than immigration matters, such as murder. Let us remember the rights we’re talkng about here: for criminal cases, right to counsel of choice, right to knowledge of charges and evidence, right to confidential communication with counsel, presumption of innocence, right to a speedy trial, with no indefinite incarceration without trial, no coerced testimony, etc. These are the rights that Bush is denying people, and I see no precedent (other than the broadly discredited ones like the Japense internment) for denying them to people in the US even absent, much less present, legal status.

As for the Geneva conventions, it is ridiculous to suppose that a contract can be open to unilateral re-interpretation by one of its signatories simply because said signatory declares it “vague”. Under that standard, I’m going to declare my mortgage “vague” and unilaterally lower my interest rate 3 points. Inidia could declare intellectual property treaties “vague” and decide that, as concerns them, they will apply only to intellectual property of Indian origin. If any modification of the contract is necessary, you make an addendum, agreed by all signatories.

Deporting legal immigrants is pretty rare and would, I am sure, require some criminal conviction with due process of law.

I don’t believe that’s correct–in America or elsewhere. Although I admit I’m a bit fuzzy on the details, the US has an entire, separate “immigration court” system, with its own standards and procedures, where non-citizens are subject to deportation based on rules that do not apply to citizens at all, and certainly do not include all the rights and protections granted citizens under the American criminal justice system.

I’d be surprised if there were a single country in the world that didn’t have such a two-tiered system, in one form or another.

As for the Geneva conventions, it is ridiculous to suppose that a contract can be open to unilateral re-interpretation by one of its signatories simply because said signatory declares it “vague”.

Actually, that’s how pretty much all international treaties work. In the absence of an overarching legal authority–and, wishful thinking aside, there simply isn’t one between sovereign nations–all parties to an international treaty are free to reinterpret, revise, ignore or openly flout any or all parts of any treaty they sign.

The catch, of course, is that other signatories may retaliate as they see fit. Treaties are thus kept intact (solely) by the common interest that all sides maintain in unanimous adherence to their terms. Well-written treaties (which the Geneva Conventions appear not to be) actually spell out appropriately calibrated retaliations for infractions, so that all parties will understand from the start the consequences of deviating from the agreed-upon terms.

In the case of the Geneva Conventions, it is assumed that all countries have an interest in seeing both their soldiers and civilians treated humanely, should they fall into the hands of their enemies. In fact, while that’s true of many nations, it’s emphatically not true of totalitarian tyrannies and subnational terrorist organizations, which generally care little for the well-being of “their” combatants or civilians. These are, needless to say, also the most likely to wage war, and to brutalize both captured soldiers and non-combatants, the Geneva Conventions notwithstanding.

Thus, when dealing with captured functionaries of such tyrannies or terrorist groups, no government should feel any compunction about interpreting the Geneva Conventions every bit as freely as they please–knowing full well that said functionaries would themselves exercise no less license.