Jay Reding.com

Tortures Big And Small

Jonah Goldberg links to this interesting argument on the use of “torture” in interrogating detainees which strikes me as one of the more reasonable arguments against the practice of “waterboarding” and the like. I must admit some moral hesitation at the idea of state-sanctioned torture. From a strictly moral perspective, torture is always a moral wrong — and Catholic legal theory is quite clear on that. On the other hand, what is being done is torturous, but not something that causes lasting harm. I personally believe that those who are responsible for such atrocities have essentially disavowed themselves of their very humanity — but even I admit that such an argument is on shaky moral grounds, and brings a whole host of moral issues to the table, some of which are dire indeed. However, society’s interests in justice are as always paramount — salus populi suprema lex — and if Khalid Sheikh Mohammad breaks after two and a half minutes of waterboarding and spills the beans about dozens of upcoming terrorist plans — saving thousands of lives in the process, is the greater good being served. I totally disagree with Andrew Sullivan that such a thing is so morally monstrous as to be unconscionable.

However, Noah makes another very interesting point:

Finally, I am appalled that we are even considering legalizing torture while standing resolute in our refusal to apply appropriately targeted screening techniques at points of entry into the United States. This President has been willing to go the people demanding the right to declare anyone an enemy combatant and torture that person, but he is not willing to go the people and say that ethnicity, religion, age and sex should determine who is subject to more aggressive searches before he boards an airline. I can find no good excuse, and no good moral justification, for his preference in this regard.

Now there’s an interesting moral quandary. We’re asked to accept that the state has the power to torture terrorist suspects by techniques such as waterboarding, stress positions, sleep depravation, exposure to heat and cold, but that we can’t take actions which might “target” specific ethic groups or nationalities. Is there a double standard here? We’re apparently willing to utterly destroy the rights of one person, but not restrict the rights of a whole class of people in a relatively minor way, even though there’s more than enough objective reason to do so.

I think that as a rule we’re less concerned with narrow actions that target only very certain people than establishing a general rule that seems to equate all Arabs or Muslims with terrorists. However, it’s worth questioning whether the logic of that assertion really holds though. If given a choice between aggressive profiling and torture, which one would be the greater infringement upon civil liberties to someone like Andrew Sullivan or Senator McCain? Is it better to infringe upon the human rights of a terrorism suspect but not the civil liberties of an entire class of people? Would those who oppose torture have the moral grounds to simultaneously call for more aggressive profiling at airports? It’s certainly a question worth asking.

I’d be lying if I said that my support for the aggressive treatment of terrorist suspects came without any moral reservations. I think that those who worry about the Detainee Treatment Act being a back-door way of suspending habeas corpus have a good amount of justification for doing so, and I think that we have to consider the fact that a grant of government power in this regard does open a door that could lead to greater problems down the road.

At the same time, we are facing an intractable enemy who blends in with the civilian population and plans devastating attacks against innocent civilians. In a sense, no one in America is a non-combatant anymore — at least not as far as our enemies are concerned. As Justice Jackson wrote in Terminiello v. Chicago “the Constitution is not a suicide pact.” The magnitude of the threat is all too great, and our government has the obligation to do all it can to protect us without betraying its own principles.

The fact that these issues are being aired is healthy for our democracy, but they must be handled in a thoughtful and mature way. It is telling that the most intelligent condemnations of torture come not from the left, but from men like Senator McCain. Ultimately, the force of law is not the final bulwark against true tyranny in this country — we are as the people to whom the government should always be subservient. In considering these issues we have to weight our belief in civil rights with our need to protect ourselves from attack — and anyone who says that balancing act is anything but interpreting shades of gray isn’t taking the issue with sufficient seriousness.

17 responses to “Tortures Big And Small”

  1. Seth says:

    1.) I think this is the first time I’ve seen such an overtly utilitarian argument about torture come from a conservative. They usually at least try to hide it.

    2.) You are incorrect in saying that you are on shaky moral grounds. You are not making a moral argument at all. Say we waterboard a terrorist who knows something and he doesn’t break. But if we cut a few fingers off, he’ll tell us a couple things. If the only basis for making a decision about where we draw the line is what information we can get, then there is no need to draw a line–the only line is we stop when someone tells us something. This is to say nothing of the fact that if someone is being tortured he will tell you anything to get you to stop. Torturing will get you intelligence, but whether it will get you reliable intelligence is another matter.

  2. Jay Reding says:

    1.) I’d argue that the basis for arguing for torture is utility – certainly the Yoo memo seems to base itself on the utility of preventing terrorism outweighing the rights of terrorism suspects.

    2.) I don’t go that far. Waterboarding is acceptable because it does not do lasting harm. Cutting off fingers most certainly does. Things like waterboarding, stress positions, sleep depravation are considered acceptable — direct physical torture is already prohibited by law.

    As for the usefulness of torture, we already know that isn’t true. The information we gleaned from Khalid Sheikh Mohammad after two and a half minutes of waterboarding was later confirmed to be accurate and let to the disruption of several active terrorist plots.

  3. Seth says:

    Punching someone does not necessarily to lasting harm. Can we beat the crap out of people?

    Because we got reliable intelligence from one terrorist does not mean that torture give reliable information all the time or even a good percentage of the time.

  4. Jay Reding says:

    Punching someone does not necessarily to lasting harm. Can we beat the crap out of people?

    That would fall under direct physical harm, which is already forbidden.

    Because we got reliable intelligence from one terrorist does not mean that torture give reliable information all the time or even a good percentage of the time.

    Given that we’ve gotten reliable intelligence from more than just KSM, that still doesn’t hold. Ramzi Binalshibh also broke and provided us with valuable intelligence, and he’s not alone in that. Physical torture tends to be less reliable, but the sort of things we do are designed to mentally break suspects, which can and does produce valuable intelligence.

  5. Seth says:

    I’m not talking about the law here, I’m talking about how you don’t have a coherent philosophy for dealing with this. You say we should be able to do what we need to do to get people to talk. Then you say we should be able to do what wee need to do up to a point. Then you say we should do what we need to do up to a point and if it’s not forbidden. You’re basically just making it up as you go and agreeing with whatever the president says. That’s no way to decide what policies are the wisest.

    Question, though: If direct physical harm is already forbidden, why is the CIA using the “attention slap”? What about the “belly slap”?

    And on the subject of waterboarding leading to false intelligence: Don’t take my word for it, ask the people who actually employ the tactics. Says one: “This is the problem with using the waterboard. They get so desperate that they begin telling you what they think you want to hear.”

    And while we’re talking about KSM, “CIA officers say 9-11 mastermind Khalid Sheikh Mohammed lasted the longest under waterboarding, two and a half minutes, before beginning to talk, with debatable results.”

    Sorry, I forgot. There’s no reason to talk to the people on the ground because you neocons are the experts.

  6. reactionary ray says:

    Then how do you get the information, or you just don’t ?
    The Brits stopped the 10 planes from going down by giving their suspects to the Pakastani’s that were doing a little, no probably a lot more than water boarding. Has that “changed” the nature of the Brits and should they then be brought up on the common article 3 charges ?

  7. Jay Reding says:

    I’m not talking about the law here, I’m talking about how you don’t have a coherent philosophy for dealing with this. You say we should be able to do what we need to do to get people to talk. Then you say we should be able to do what wee need to do up to a point. Then you say we should do what we need to do up to a point and if it’s not forbidden. You’re basically just making it up as you go and agreeing with whatever the president says. That’s no way to decide what policies are the wisest.

    OK, let me clarify since this isn’t getting muddled. Putting the law aside for the moment, I believe that techniques that do not do direct physical harm could be used on those who possess operational intelligence that could stop a terrorist attack. The reason why this is so subjective is because it is a huge gray area. Do I think that slapping a detainee is tantamount to torture? I’m not convinced that it always would be.

    The problem here is that there’s no easy way to draw some bright-line rule short of disavowing all torture. While the arguments of people like Andrew Sullivan and John McCain are a hell of a lot more consistent than mine, I don’t think that one can so easily dismiss the idea that gathering intelligence through less than savory means not only can, but has saved lives. The CIA has confirmed to ABC reporter Brian Ross that intelligence gathered from KSM did stop several terrorist plots.

    I would argue that the results don’t have to be perfect either. Yes, some of the information will be debatable — but when there are already demonstrable results there are simply no grounds to argue that torture never works. It does, and it has. The question then becomes does it provide enough value to justify itself — and given that the CIA itself has confirmed that the information extracted from KSM did stop terrorist attacks targeting American civilians.

  8. Seth says:

    Reactionary–check out the ABC article I linked to and there are CIA operatives who say torture is not the best way to get results. They’ll tell you exactly what they think is the best way to get information, and just a hint, it does not include waterboarding.

    Jay–First, you’re asking the wrong questions. The question should not be “how much should we torture people?” but rather it should start with “what’s the best way to get good information” or “how do we get people to tell us things in a way that maximizes the amount of good information we can obtain while minimizes the amount of bad information we obtain?”

    Second, ideologically, you’re all over the place. No direct physical harm is ok. Except physical harm is ok as long is it only hurts a little. Why not just say a moderate amount of physical harm is ok in some circumstances?

    When you say, “there are simply no grounds to argue that torture never works” you are inventing a ghost that doesn’t exist. I’ve never argued anything close to that. I’ve argued that torture will get you a lot of bad intelligence, and there’s just no way to dispute that.

    p.s. I’m still not sure how the “attention slap” is used if no direct physical harm is permitted.

  9. Jay Reding says:

    Jay–First, you’re asking the wrong questions. The question should not be “how much should we torture people?” but rather it should start with “what’s the best way to get good information” or “how do we get people to tell us things in a way that maximizes the amount of good information we can obtain while minimizes the amount of bad information we obtain?”

    Which leads us right back to the same answer. We’re dealing with hardened jihadis here. We threatened KSM with the death of his children, and he didn’t flinch. The idea that being friendly to these guys will get us the information we need is pretty ridiculous. The reason why these interrogation techniques are used is because they work.

    Second, ideologically, you’re all over the place. No direct physical harm is ok. Except physical harm is ok as long is it only hurts a little. Why not just say a moderate amount of physical harm is ok in some circumstances?

    That’s why I said there aren’t any real bright-line rules. Slapping someone hardly counts as “torture” — if it did, plenty of women would be habitual violators of the Geneva Convention. Yet I think everyone agree that punching someone, cutting them, or electrocution all are things that just should not be done.

    When you say, “there are simply no grounds to argue that torture never works” you are inventing a ghost that doesn’t exist. I’ve never argued anything close to that. I’ve argued that torture will get you a lot of bad intelligence, and there’s just no way to dispute that.

    Which then leads one to ask what techniques would produce better results? I don’t think there’s a particularly strong case for non-coercisive interrogation methods being at all effective against someone like Khalid Shiekh Mohammad or another ardent Islamist.

  10. Seth says:

    The same CIA agents that said waterboarding doesn’t work in the article I linked to outline a much better way to obtain intelligence. Since I already pointed Reactionary Ray to it, I’ll assume you just weren’t reading it. Interesting coming from a guy who often accuses me of not having reading comprehension skills.

    The difference between a slap and a punch is the position of a hand. If slapping someone is ok, I would argue that punching them is ok.

    Again, sometimes the techniques work and sometimes they do the opposite of work. I’ve argued that the techniques being used are not the best because they generate large amounts of faulty intelligence–we then have to spend resources on wild goose hunts instead of real terror plots. I’ve then posted links to several CIA interrogators who say the techniques produce a lot of false intelligence and are not the best way to do things. You just keep typing back that we need torture because it sort of worked once. Sweet. Go Minnesota law!

  11. Jay Reding says:

    The same CIA agents that said waterboarding doesn’t work in the article I linked to outline a much better way to obtain intelligence. Since I already pointed Reactionary Ray to it, I’ll assume you just weren’t reading it. Interesting coming from a guy who often accuses me of not having reading comprehension skills.

    Here’s the language that was used in the article you linked to:

    Two experienced officers have told ABC that there is little to be gained by these techniques that could not be more effectively gained by a methodical, careful, psychologically based interrogation.

    Which again, leads one to the question of what that implies — and ignores the fact that such interrogations take a considerable amount of time.

    Secondly:

    Larry Johnson, a former CIA officer and a deputy director of the State Department’s office of counterterrorism, recently wrote in the Los Angeles Times, “What real CIA field officers know firsthand is that it is better to build a relationship of trust … than to extract quick confessions through tactics such as those used by the Nazis and the Soviets.”

    Which is what I was referring to — how would one “befriend” someone like KSM?

    We tried those tactics on KSM — we directly threatened the lives of his children in order to get him to talk. His response was that would lead them to see Allah all that much sooner.

    The difference between a slap and a punch is the position of a hand. If slapping someone is ok, I would argue that punching them is ok.

    And that would be a rather ridiculous argument. There’s a pretty big difference in terms of damage between a punch and a slap.

    Again, sometimes the techniques work and sometimes they do the opposite of work. I’ve argued that the techniques being used are not the best because they generate large amounts of faulty intelligence–we then have to spend resources on wild goose hunts instead of real terror plots. I’ve then posted links to several CIA interrogators who say the techniques produce a lot of false intelligence and are not the best way to do things. You just keep typing back that we need torture because it sort of worked once. Sweet. Go Minnesota law!

    And since you posted those links, let me show you what they said:

    The sources told ABC that the techniques, while progressively aggressive, are not deemed torture, and the debate among intelligence officers as to whether they are effective should not be underestimated. There are many who feel these techniques, properly supervised, are both valid and necessary, the sources said. While harsh, they say, they are not torture and are reserved only for the most important and most difficult prisoners.

    Furthermore, the very nature of intelligence work produces a lot of false intelligence. If the operative concern is how much intelligence is false versus how much is valuable, then we should disband the CIA as the normal signal-to-noise ratio for any kind of intelligence operation is always exceedingly low. That’s why intelligence analysis is so crucial.

    The only way to adequately measure the value of such activities is to gauge the results. We know that information Khalid Sheikh Mohammad produced was instrumental in stopping several terrorist attacks. He gave us names and numbers and it was information that he provided that led to the capture of the JI leader “Hambali.” The results speak for themselves. It didn’t work once, it’s worked on more than one occasion, and the only reason that the results stopped is because we already got all the useful information these people had.

  12. Justin says:

    “Which is what I was referring to — how would one “befriend” someone like KSM?”

    Jesus, you’ve never heard of a mole? Watch some spy movies once in a while.

    “We tried those tactics on KSM — we directly threatened the lives of his children in order to get him to talk.”

    Oh, I’m sure that built a considerable level of trust.

    The information from infiltration – basic humint tactics – is far more reliable that any information from torture.

    I’m sure that we could solve a lot of crimes, too, if we started torturing suspects. Where, exactly, do we draw the line? At the foundation of this country we drew a line in the sand about the use of torture, and it worked just fine for 200 years. You’re telling me that there’s something new that we have to discard 200 years of tradition and principle? Well, what is it? Islam isn’t new. Religious fanatics aren’t new. Wars aren’t new. Mass murder isn’t even new.

    Isn’t the disregard for principle and tradition what you criticize the left for nearly every day?

  13. Erica says:

    Conservatives are going back to even more traditional traditions further back in time.

  14. Justin says:

    “I totally disagree with Andrew Sullivan that such a thing is so morally monstrous as to be unconscionable.”

    You’d do much better if you actually read Andrew Sullivan before you made an ass out of yourself trying to criticize his views. Or maybe it’s simply that you’re not able to grapple with any argument without inventing a strawman version of it.

    Neither Sullivan nor anybody else has denied that, in the clutch, a good person would very well do bad things to save a lot of lives.

    But they’ve never needed a legal cover to do so, and they certainly don’t need one now. All the legal cover provides is the option, and indeed, the compulsion, to use torture routinely, on every terror suspect. And that is morally monstrous. That’s the logic of the Soviet Union and the Khmer Rouge. That’s the world of 1984 and V for Vendetta. (The comic book, not the movie. Well, the movie too, but the movie was crap.)

  15. reactionary ray says:

    Still Justin, 2.5 minutes for Khalid Shiek Mohammad to crack from water boarding sure beats subway sandwiches and Lazyboy chairs at Gitmo, AND no permanent or physical damage.

  16. Justin says:

    Still Justin, 2.5 minutes for Khalid Shiek Mohammad to crack from water boarding sure beats subway sandwiches and Lazyboy chairs at Gitmo, AND no permanent or physical damage.

    If waterboarding is so great why don’t we do it to everybody? Put waterboards in every police department in the country if it’s such a great interrogation technique.

  17. Nicq MacDonald says:

    “However, society’s interests in justice are as always paramount — salus populi suprema lex — and if Khalid Sheikh Mohammad breaks after two and a half minutes of waterboarding and spills the beans about dozens of upcoming terrorist plans — saving thousands of lives in the process, is the greater good being served.”

    That’s not what torture is for, as any of Stalin’s Gulag troopers or any modern Saudi prison guard will tell you. You don’t use torture to extract information. You use torture to extract CONFESSIONS. And in a liberal legal system, such confessions are ultimately useless. To get information, you do just the opposite of torture- you put on the “good cop” face and try to get the prisoners to rat out their buddies in exchange for favorable treatment. It’s pretty basic psychology.