Right Wing Nut House



Filed under: Blogging, Ethics, Government, History, Middle East, Politics, Torture — Rick Moran @ 10:51 am

There are few of us who haven’t made up their minds about whether torture is immoral, illegal, or both/neither. But wherever you come down on this issue, good arguments and thoughtful writing should never be ignored or dismissed out of hand simply because you disagree with it. In fact, I find that reading opposing viewpoints - when they are argued rationally and with a minimum of bombast - help clarify my own thinking and sometimes, even alter my position on an issue.

Not this time. But Commentary’s Peter Wehner has a great piece that tries to set some moral parameters for torture that are well argued and well written. Such clear thinking - even though I believe him wrong - should be commended given all the crap that has been sloughed off as “commentary” on both sides of this issue.

I can appreciate Wehner’s struggle to understand the moral universe he inhabits and seek exceptions and clarifications to the idea of using torture. The problem as I see it is he has adopted the “ticking bomb” scenario that has been thoroughly debunked by people much more knowledgeable than I about terrorism. And there is a troubling detachment on Peter’s part that disconnects what many of us consider the absolute moral wrong of torture as he seeks wiggle room in a kind of moral relativism that I don’t think he would ordinarily embrace.

Wehner’s attempts to “define down” what is torture and what isn’t misses the point that what was done was illegal. Can a moral good (or morally neutral) action be found in breaking the law? It can if, as Wehner attempts to do, you twist the ends/means argument into a pretzel. He also brings up the straw man argument about some of our military going through the SERE program (that I dealt with here) as well as the fact that others have endured it so, he reasons, it can’t be all that bad.

Finally, Wehner employs the argument that because torture “worked,” this should be taken into account when judging the morality of its use during the Bush administration.

To begin, allow me to quote extensively from a Daniel Larison post as he responds to a piece by Jim Manzi who asks, “[W]hy is the belief that the torture of captured combatants is wrong compatible with anything other than some form of pacifism? I mean this an actual question, not as a passive-aggressive assertion.”

Larison swallows hard and lets him have it:

One of the things that has kept me from saying much over the last week or so is my sheer amazement that there are people who seriously pose such questions and expect to be answered with something other than expressions of bafflement and moral horror. Something else that has kept me from writing much on this recently is the profoundly dispiriting realization (really, it is just a reminder) that it is torture and aggressive war that today’s mainstream right will go to the wall to defend, while any and every other view can be negotiated, debated, compromised or abandoned. I have started doubting whether people who are openly pro-torture or engaged in the sophistry of Manzi’s post are part of the same moral universe as I am, and I have wondered whether there is even a point in contesting such torture apologia as if they were reasonable arguments deserving of real consideration. Such fundamental assumptions at the core of our civilization should not have to be re-stated or justified anew, and the fact that they have to be is evidence of how deeply corrupted our political life has become, but if such basic norms are not reinforced it seems clear that they will be leeched away over time.


mplicit in Manzi’s entire post is the rejection of any distinction between combatant and non-combatant, which tells me that he either doesn’t understand or doesn’t accept the concept of limited war. For him, unless one is a pacifist, one must endorse total war. In such a view, there would be nothing immoral about the summary execution or cruel and inhumane treatment of POWs, since the latter would have been targeted for death while they were still combatants. After all, if torturing such prisoners is not immoral, as Manzi seems to say it is not, what could possibly be wrong with killing them? That is where one must ultimately end up once the distinctions between combatant and non-combatant are erased or blurred, and it is the barbaric conclusion one will eventually reach if one does not start from the assumption that war itself is a sometimes-necessary evil and that it is morally justifiable only under specific circumstances and within certain limits. One of those limits is that captured combatants are to be treated humanely, and when we go down the road towards easing those restrictions we taint not only the institutions responsible for national security with crimes but we also abandon any real claim to moral integrity.

Larison’s argument might be viewed as the absolutist view of torture. I might disagree with the extent he worries about the corrupting nature of torture but there is no dismissing the line in the sand he has drawn - a line I accept for practical, rational, and moral reasons as well.

Wehner? Not so much:

Critics of enhanced interrogation techniques have taken to saying that Americans don’t torture, period – meaning in this instance that we do not engage in coercive interrogation techniques ranging from sleep deprivation to prolonged loud noise and/or bright lights to waterboarding. Anyone who holds the opposite view is a moral cretin and guilty of “arrant inhumanity.” Or so the argument goes.

Methinks Peter listens too much to liberal bomb throwers and besides, this is a gross oversimplification and something of a straw man. But to continue:

But this posture begins to come apart under examination. For one thing, the issue of “torture” itself needs to be put in a moral context and on a moral continuum. Waterboarding is a very nasty technique for sure – but it is considerably different (particularly in the manner administered by the CIA) than, say, mutilation with electric drills, rape, splitting knees, or forcing a terrorist to watch his children suffer and die in order to try to elicit information from him.

The question Peter leaves unanswered is whether it is legal or illegal? How can you make a moral judgment about torture — and defining down what is torture is irrelevant to whether it meets the definition under the law — without taking into consideration the moral imperative to obey the law? Wehner is pouring quicksand and doesn’t realize the ground is shifting beneath his feet.

I certainly wouldn’t want to undergo waterboarding – but while a very harsh technique, it is one that was applied in part because it would do far less damage to a person than other techniques. It is also surely relevant that waterboarding was not used randomly and promiscuously, but rather on three known terrorists. And of the thousands of unlawful combatants captured by the U.S., fewer than 100 were detained and questioned in the CIA program, according to Michael Hayden, President Bush’s last CIA director, and former Attorney General Michael Mukasey – and of those, fewer than one-third were subjected to any of the techniques discussed in the memos on enhanced interrogation.

“Far less damage” as opposed to electrodes and thumbscrews but again, it avoids what Wehner apparently doesn’t want to face; the fact that the civilized world has proscribed the practice in words of unmistakable clarity — unless you are seeking a moral “out” and wish to begin to parse pain and suffering.

US law, the Geneva Accords, and the UN Convention Against Torture all use language that clearly makes the physical and psychological pain of waterboarding a form of torture. The fact that our servicemen are not being held as prisoners and therefore not subject to the law’s protections as well as being volunteers who fully realize the nature of the exercise makes Wehner’s use of the SERE argument nothing more than a strawman set up to excuse torture.

Wehner’s thesis really goes off the rails when he tries to imply that moral relativeness, when evaluating torture, should be employed to blur the ends/means distinction. He dubiously invokes Senator Charles Schumer’s thoughts during a Congressional hearing on torture back in 2004 where the New York lawmaker invokes the “ticking bomb” scenario as one exception to torture. Here’s Schumer:

Take the hypothetical: if we knew that there was a nuclear bomb hidden in an American city and we believe that some kind of torture, fairly severe maybe, would give us a chance of finding that bomb before it went off, my guess is most Americans and most Senators, maybe all, would do what you have to do. So it’s easy to sit back in the armchair and say that torture can never be used. But when you’re in the fox hole, it’s a very different deal.

Wehner eagerly embraces the hypothetical and runs with it:

Apropos of Schumer’s comments, critics of enhanced interrogation techniques need to wrestle with a set of questions they like to avoid: if you knew using waterboarding against a known terrorist may well elicit information that would stop a massive attack on an American city, would you still insist it never be used? Do you oppose the use of waterboarding if it would save a thousand innocent lives? Ten thousand? A hundred thousand? What exactly is the point, if any, at which you believe waterboarding might be justified? I simply don’t accept that those who answer “never” are taking a morally superior stand to those who answer “sometimes, in extremely rare circumstances and in very limited cases.”

First, it is an absolute impossibility to know that “using waterboarding against a known terrorist may well elicit information” that could prevent an attack. That is sophistry on a stick. We might also “know” that pulling his fingernails out might get him to talk if waterboarding doesn’t work. And we wouldn’t know, for instance, whether this particular terrorist had been specifically trained to resist waterboarding or other forms of torture - at least long enough to fail in our efforts to stop a “ticking bomb” attack.

The whole ticking bomb scenario needs to be dumped by torture defenders. It does their argument no good to posit a hypothetical that is more the product of fantasy than possibility.

A good debunking of the ticking bomb myth can be found in an article published in Public Affairs Quarterly last year by Jamie Mayerfield, associate professor of political science at the University of Washington:

Among the many unrealistic elements of the ticking bomb hypothetical, I give
particular attention to the exaggerated degree of certainty attributed to our belief in the prisoner’s guilt. In the scenario we are fully certain that the individual in our custody has launched an attack on civilians and is now withholding the information needed to save the civilians’ lives. Such certainty is unrealistic. Any realistic approximation of the ticking bomb scenario creates too high a risk that an innocent person will be tortured.

The made-to-order features of the ticking bomb scenario blind us to torture’s
reality. In the real world, torture “yields poor information, sweeps up many innocents, degrades organizational capabilities, and destroys interrogators.”7 Consider the problem of false information, which not only causes delays, swallows man hours, and leads down blind alleys, but can also encourage disastrous choices.

Below I discuss how the Bush administration used false information extracted
under torture to help justify the Iraq war. In this case, torture did not save lives, but helped bring about a great many deaths. Torture also inflames enemies, alienates friends, and scares away informants. And it spreads.

These dangers, purged from the ticking bomb hypothetical, are inseparable from actual torture. Yet public attention is consumed by the hypothetical. Obsession with the better-than-best case scenario warps our thinking about torture. We overlook torture’s dangers and exaggerate its effectiveness. By now, the ticking bomb narrative has acquired its own momentum, but fear and anger do much to keep it aloft.

Mayerfield’s point is well taken; because the ticking bomb scenario has not only permeated our culture through fictional variations found in TV, novels, and films, but also because it has been eagerly embraced by many torture apologists, it has become a rote defense even though there has never in history been a situation that remotely resembles it. Mayerfield, like Larison above, may exaggerate the dangers of torture to America’s soul but that doesn’t obviate his point that justifying torture in one, limited case can open the door to its use in other scenarios as well.

So the answer to Peter’s question regarding whether torture condemners would use waterboarding if it could save “a thousand innocent lives? Ten thousand? A hundred thousand?” is irrelevant because its impossible to answer a hypothetical that doesn’t exist except on TV and in film.

And Mayerfield’s point about torture being hugely unreliable is spot on as well. I don’t buy the flat statement that torture doesn’t work, or never works. It wouldn’t have been in use for thousands of years unless it did. The problem with it is its unreliability as a means to accurate information. Those thousands of lives Peter wishes to save by waterboarding a terrorist wouldn’t be worth spit if the bomber lied under torture about everything.

The fact that we simply couldn’t be sure means but would have to act as if the terrorist was telling the truth. Suppose while the authorities were off on a wild goose chase the bomb went off and killed those thousands of innocents? That nice moral house of cards torture defenders have built up would collapse in a heap. Is bad information better than no information at all — or good information that might have been extracted using interrogation techniques other than torture?

Wehner answers this argument by trying to make the case that the good information we extracted via torture saved lives and therefore, the ends justifies the means because saving so many innocents is an absolute moral good in and of itself. It is a strange argument considering Peter’s moral waffling earlier in his piece.

On the substantive level, there is the question of the efficacy of enhanced interrogation techniques. There is an intense debate surrounding this matter, but we can certainly say that respected members of the intelligence world insist that innocent Americans are today alive because we employed a set of coercive interrogation techniques. According to Hayden and Mukasey, “As late as 2006, fully half of the government’s knowledge about the structure and activities of Al Qaeda came from those interrogations.” Former CIA Director George Tenet said, “I know that this program has saved lives. I know we’ve disrupted plots. I know this program alone is worth more than [what] the FBI, the [CIA], and the National Security Agency put together have been able to tell us.” And former National Intelligence Director Mike McConnell has said, “We have people walking around in this country that are alive today because this process happened.”

I will ignore the dubious employment of authority by Peter of people who may go on trial for crimes related to what they are defending and only point out what Peter himself admits later:

It seems unlikely that asking a jihadist his surname, first name and rank, date of birth, army, regimental, personal or serial number, or failing this, equivalent information – which is what the Geneva Conventions say ought to apply to prisoners of war but not, historically, to unlawful enemy combatants – would elicit as much information as coercive interrogation techniques. Dennis Blair, Obama’s national intelligence director, admitted to his staff that “high value information came from interrogations in which those methods were used and provided a deeper understanding” of al Qaeda. (Once Blair’s memo was revealed, he added this caveat: “There is no way of knowing whether the same information could have been obtained through other means.”

Why does Wehner concoct this strawman of “name, rank, and serial number?” Professional interrogators are masters of putting psychological pressure on a subject without coercive or “enhanced” interrogation techniques. It is a gross simplification to make it appear that the “either/or” options open to an interrogator would be polite banter about al-Qaeda or waterboarding.

But the key here is Blair’s statement that there was “no way of knowing” whether the exact same information could have been obtained through legal interrogation methods. The reason is because they weren’t tried or, more likely, the interrogation regime that involves non-torture wasn’t given much of a chance to work. (See this Heather McDonald piece in City Journal from 2004 where she details the initial, successful efforts of army interrogators who used psychological pressures on prisoners, walking up to the line but never crossing it.)

Thus, the interrogators who used torture became victims of their own success, leaping for the opportunity to employ torture as a short cut when such methods were unnecessary or, at the very least, non-coercive interrogations were given short shrift.

Finally, Wehner tries to excuse and justify torture because we’re at war and moral choices are hard:

There are of course serious-minded critics of enhanced interrogation techniques. But to pretend, as some critics do, that the morality of this issue is self-evident and that waterboarding and other coercive interrogation techniques are obviously unacceptable and something for which our nation should be ashamed is, in my judgment, not only wrong but irresponsible. When a nation is engaged in war, you hope to find in government sober people who are able to weigh competing moral goods and who take seriously their obligation to protect our nation. They may not get everything right at the time – hardly anyone does in the heat of the moment – but they should not have to face a lynch mob years after the fact (especially those in the lynch mob who blessed the activities at the time they were being used). The American public, one hopes, can see through all this. And as Nancy Pelosi might well discover, playing a role in inciting a mob can come at a cost.

“Competing moral goods?” That’s a new one when discussing torture. But here is where Peter and I agree - at least I am moving toward his position that the law is not a concrete edifice with only form and substance. What of justice? What of mitigating circumstances? Unlike the revenge seekers and out and out Bush haters, I grant the administration the benefit of their good intentions in a very difficult and morally ambiguous universe. I think they made the wrong choices - horribly wrong - but recognize that some allowance must be made when the awesome responsibilities under which those men and women were working is thrown into the mix.

It doesn’t excuse their actions. It won’t “lessen their time in purgatory” as we used to half-jokingly use as a catch-all for arguments about ethics and morals with our Viatorian teachers back in the day.

But perhaps, it should keep them out of the dock. And out of jail.



Filed under: Government, History, Politics, The Law, Torture — Rick Moran @ 8:57 am

I suppose it is suicidal to pick a fight with a lawyer over the legality of waterboarding but I think John Hinderaker is just plain off base here:

But if waterboarding is “torture,” then it’s illegal. So why is the U.S. military still using it as a training device, last we knew? If we’re going to start prosecuting people, don’t we have to prosecute the many civilian and military leaders who have for decades inflicted waterboarding, or condoned the use of waterboarding, on our servicemen? Just a thought. Actually, of course, no one has any interest in such prosecutions (which would be absurd in any event) since there is no political advantage to be gained.

John is referring to the use of waterboarding in the military’s SERE program - “Survival, Evasion, Resistance, Escape.” Some of the program is apparently classified but enough details have leaked out to confirm that the trainees who volunteer for the program go through some pretty horrendous treatment. In fact, according to this Slate piece by William Saletan, there are some who wish to alter some of the program’s training methods, believing them too harsh. Many others disagree.

Hinderaker’s argument has some merit - if one were to forget that the trainees are not being held by the US government as prisoners and therefore, not offered protections under international agreements we have signed that clearly make waterboarding a form of “torture” under the letter and spirit of the definition as outlined in those treaties.

This is the strawman that many who are defending torture are throwing up to distract from a fundamental truth; that regardless of whether waterboarding was experienced by American military personnel, and regardless of whether it was legal or illegal under US law at the time, the fact remains that prisoners being held by our government and who were waterboarded, were illegally tortured according to, at the very least, the United Nations Convention Against Torture and, some would argue, the Geneva Conventions.

The UN Convention Against Torture has a very straightforward definition:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Was waterboarding “intentionally inflicted” in order to obtain “information or a confession?” Of course it was. A better question is was that the intent of waterboarding SERE volunteers? Of course not.

The catch most often used by defenders of the practice is that waterboarding does not constitute “severe pain or suffering, whether physical or mental” because our own guys go through it and come out of the experience no worse for wear.

Slate’s William Saletan destroys that argument against waterboarding and also punches holes in other arguments that use SERE as a crutch:

The first difference, Ogrisseg noted, is that SERE trains soldiers to defeat interrogation, whereas “the real world interrogator wants to win.” This is a moral difference, as Hitchens observed. But it’s also a practical difference: An interrogator whose job is to extract information will behave more harshly than an interrogator who’s teaching resistance.

Second, SERE pits American interrogators against American trainees. “When dealing with non-country personnel, as in the case of detainee handling, there is greater risk of dehumanization of these personnel, and thus a greater likelihood of worse treatment,” Ogrisseg warned.

Third, SERE offers interventions that relieve stress and reinforce the unreality of the exercise. Instructors and psychologists are available “to watch the students for indications that they are not coping well with training tasks, provide corrective interventions with them long before they become overwhelmed, and if need be, remotivate students who have become overwhelmed to enable them to succeed,” Ogrisseg noted.

Fourth, SERE has “defined starting and ending points. … [T]rainees arrive on a certain date and know that they will depart on a specified date.”

Fifth and most important, SERE is voluntary. “Students can withdraw from training,” Ogrisseg noted. In a report issued four months ago, the Armed Services Committee added that in SERE, “students are even given a special phrase they can use to immediately stop” any ordeal.

Also, the UN treaty doesn’t even try and define who might or might not be protected under its strictures. It simply refers to persons in the custody of the state that is party to the agreement, anywhere the authority of the state is exercised:

Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

1. When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
2. When the alleged offender is a national of that State;
3. When the victim was a national of that State if that State considers it appropriate.

Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.

This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

Clearly, this covers Guantanamo, Bagram, and anywhere in Iraq where we were in charge of detainees. And then there’s this stricture against rendition:

1. No State Party shall expel, return (”refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Did we have “substantial grounds for believing” that Egypt, Yemen, and a few other venues where we transferred custody of prisoners were havens for torture and mistreatment? I would say that’s a “yes” wouldn’t you?

And what about American law? The notion being advanced by torture apologists is that waterboarding wasn’t against American law at the time flies in the face of the definition of torture under Title 18, Part I, Chapter 113C, S. 2340 passed in 1994 (minor amendments in 2007) to fulfill our treaty obligations under the UN Convention Against Torture:

As used in this chapter—

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

I am no lawyer but my reading of this statute is pretty simple; waterboarding easily meets the definition of torture in that it intentionally inflicted “severe mental pain or suffering,” that it carried with it the “threat of imminent death,” and that it occurred in the defined jurisdiction - which holds true for most of the other enhanced interrogation techniques.

I will repeat something I’ve written previously; the law is not a straitjacket and liberals who want to throw the book at everyone but the cook at Guantanamo are perfectly willing to rip this country apart in search of vengance. Torture was not carried out to satisfy the sadistic cravings of Bush, Cheney, the CIA interrogators, or anyone else involved. The fact is, I fully grant these officials and intelligence experts the benefit of their beliefs that what they were doing was protecting the country. That has to be a mitigating factor when determining what to do with the perpetrators.

But trying to keep us safe is not an excuse or justification for torture as the UN Convention makes clear:

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Guilty, yes. But I am not at all certain that torture trials of the kind envisioned by many on the left would accomplish anything. Would it “prove” that we are a nation of laws? If that is the goal then one might ask whether there is not also justice under the law and whether throwing the book at those who were trying to act in good faith is really the route to redemption. I think not. Some reckoning must take place but must it involve criminal proceedings? I envy they who possess certainty in this matter.

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