A Torturous Debate

Let's have some humility in the debate over interrogation methods

The release of the Justice Department "torture memos" has reignited the debate over the interrogation methods used by the Bush administration on terror suspects and the possibility of charges against officials who may have violated the ban on torture. As often happens, each side has not only its own opinions but its own version of reality. Bush administration defenders claim that brutal interrogations have saved countless lives, eliciting information that prevented new, post-September 11 terror attacks on U.S. soil. Critics counter that the methods authorized by the Bush Justice Department not only tarnished our image and made us more vulnerable by fanning the flames of anti-Americanism but also produced a lot of false data. Whatever genuinely valuable intelligence was gained by those means, they assert, could have been obtained in other ways.

It is doubtful that the disputed facts will ever be resolved, no matter how many more memos are released. This is a dispute about what-ifs, and proving or disproving what-ifs is an exercise in nailing the proverbial Jell-O to the wall. What's more, each side has a strong stake in proving its own righteousness and depicting the opponent as not merely wrong but evil. No benefit of the doubt is given as to motive. To bloggers on the left, the Bush-Cheney cabal authorized torture because they are power-drunk sadists. To bloggers on the right, Obama has authorized the disclosure of the memos because he is a power-drunk egotist intent on disparaging his predecessor no matter what the cost to the country.

At this point, the fullest disclosure possible is almost certainly the right decision. The existence of "enhanced interrogation" and the fact that it included abusive techniques has been widely known for several years. Under such circumstances, precise information is nearly always preferable to speculation. Still, in the latest CBS News poll, 62% of Americans—including 51% of Democrats and 60% of independents—oppose congressional hearings on the issue. There is likely to be even less appetite for prosecutions.

In a column in the British paper, The Guardian, writer Naomi Wolf argues that calls for prosecution of CIA agents who carried out the interrogations amount to hypocritical scapegoating. She points out that Democratic congressional leaders knew about and abetted these policies and that, for a while after September 11, a "mass consensus" of the American public supported torture to some degree. (In a December 2005 Associated Press-Ipsos poll, 61% of Americans said torture could be justified at least on rare occasions; slightly over half of people polled in France and Great Britain took the same view.)

Wolf nonetheless advocates prosecutions—of President Bush, Vice President Cheney, former Secretary of State Condoleezza Rice, and the Justice Department legal advisors who provided justification for inhumane interrogation methods. But doesn't this, too, smack of scapegoating if their actions reflected a broad consensus? Of course, Wolf also treats the post-September 11 consensus as little more than vindictive, sadistic machismo. Could it have something to do with the fact that the United States was facing a unique threat—a stateless, shapeless, protean enemy which had just killed over 3,000 Americans in a single morning in two major cities in the United States? Is it so irrational that stopping another attack was the top priority?

While defenders of torture egregiously overuse visions of ticking time bombs, it would be too convenient to dismiss a scenario in which coercive interrogation—perhaps waterboarding—might be the only chance to avert an attack that would cause thousands to die in agony. Can any anti-torture absolutist say with full certainty that, faced with such a situation as President, he or she would stick to principle—and defend that choice to the American people if the attack happened?

This does not change the fact that torture, including torture by any other name, is a deal with the devil. Permitting cruelty toward helpless prisoners, no matter how guilty of barbaric acts, is liable to bring out the worst in people—and, in many cases, it has. Witness right-wing posters on various websites who sneeringly brush off protections for prisoners' human rights as sissy stuff. Experience, in the U.S. and in other countries, also shows that once you have legally authorized abusive interrogations in extreme emergencies, there is a strong tendency to define extreme emergency down until such methods are used far more widely than originally intended. And, while it would be absurd to suggest that the jihadists who behead people with dull knives hate us because of torture, there is little doubt that revelations of the inhumane treatment of captives provoked anti-American hostility among ordinary Iraqis.

There has to be an accounting for the things our government has done in the name of our safety. This accounting must be fair, and as transparent as it can be without compromising national security—but it must also be conducted with humility. So far, that is how Obama has handled the issue. The same cannot be said for the crusaders from the ranks of punditry.

Cathy Young is a contributing editor at Reason magazine. This article originally appeared at RealClearPolitics.com. 

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  • ||

    Is there a shallower commentator in all Webville than Cathy Young?

  • ||

    Let's see... What does the constitution say on this issue?

    Oh yes:

    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    To anyone who can read English, the eighth amendment prohibits torture.

    -jcr

  • Fluffy||

    What a surprise - Cathy Young attempts to disguise the fact that she is an apologist for torture behind the pretense that she's just trying to be even-handed.

    It is doubtful that the disputed facts will ever be resolved, no matter how many more memos are released.

    Since the disputed facts have to be resolved in favor of the torturers if we are to accept their affirmative defense of their actions, if the issues can't be resolved they're guilty. Pretty straightforward really.

  • Mad Max||

    The one way that torturers could seek a legal defense is by invoking the common-law defense of necessity - that is, affirmatively demonstrate that the crime they committed is strictly necessary in order to avoid a greater evil.

    So, if a ticking time bomb is about to blow up Peoria (or even New York), and the only way to defuse the bomb is to obtain information from torture, then we may say the defense of necessity applies.

    But this defense applies to how the factfinder (jury) interprets objective reality - it's not a matter for the subjective judgment of the perpetrator. Otherwise, *any* defendant could get away with *any* crime by explaining that they *thought* the crime was necessary. That would apply to any crime from speeding to murder.

  • ||

    Since the disputed facts have to be resolved in favor of the torturers if we are to accept their affirmative defense of their actions, if the issues can't be resolved they're guilty.

    Only in a civil suit. In a criminal setting, the disputed facts need to be resolved in favor of the prosecution.

    And, only those facts relevant to the affirmative defense need to be resolved for the defense to win. If the facts relevant to the defense are that they relied in good faith on the legal opinions provided by the Justice Department, then I like the defendant's chances.

    Note: the above is legal commentary only. IAAL. No position is taken or implied on torture as a policy or practice. YMMV.

  • ||

    So, according to Young, prosecuting Bush, Cheney, Rice and John Woo would be "scapegoating." Oh, that would be horrible. We don't want to be thought of as "scapegoating" public secotr parasites.

  • ||

    Sorry for the redundancy-by defintion, if you are in the public sector, you are a parasite.

  • ||

    Mad Max-

    You are too smart to fall for the lame "ticking time bomb" phantasmajoric silliness.

  • ||

    A nice discussion of the necessity defense is here.

    Pull quote (formatted for readability):

    The defense itself consists of varying elements from state to state, but generally includes the necessary showings

    "that the defendant did not intentionally bring about the circumstance which caused the unlawful act,

    that the defendant could not accomplish the same objective using a less offensive, (i.e. "more legal"), alternative available to the defendant; and

    that the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it,


    Offhand, it strikes me as being quite plausible in the post-9/11 environment, when we were in a state of almost total ignorance about AQ's capabilities and intentions. The first and third elements would be easily met, it seems to me. The main argument would be over the second element, requiring the defendant to show that less coercive methods of interrogation had been tried and failed. It would be useful, although not strictly required, for the defendant to show that the more coercive methods of interrogation were successful.

    See above disclaimer.

  • DADIODADDY||

    All right all ready...we did it cause we liked it and it was fun. we'll do it again too (if we ever get the chance) Ever stick a cattle prod up someone's ass? wicked cool

  • ||

    Otherwise, *any* defendant could get away with *any* crime by explaining that they *thought* the crime was necessary.

    That's the mens rea doctrine in a nutshell. If someone doesn't believe what they're doing is wrong, there's no criminal intent.

    -jcr

  • Craig||

    Sorry, Cathy, but you don't have a "reasonable debate" about torture, or proceed with "humility". You round up the suspects, give them a fair trial, and then proceed with the hangings. That's the way it's always been done before.

  • Fists of Furry||

    "nor cruel and unusual punishments inflicted."

    You know the Framers were very careful with their words and so it is important to understand that the above quote is a conjunction not a disjunction (in which case it would read ""cruel OR unusual punishments)". Yet, we treat it as a disjunction.

    Given that, what the framers were saying is that punishment could be cruel (e.g., electrodes to the nut sack eight hours a day for twenty years). And it could be unusual (e.g., being forced to run naked through a Catholic girl's grade school with a Viagra induced erection eight hours a day for twenty years).

    It just could not be BOTH cruel AND unusual (e.g., electrodes to the nut sack while being forced to run naked through a Catholic girl's grade school with a Viagra induced erection eight hours a day for twenty years).

    I do not understand why everyone misses that.

  • JW Gacy||

    I haven't heard anyone come up with a straightforward definition for torture. The UN definition (as I understand it) has a farcical 3 part test.

    It must be for a purpose such as interrogation, intimidation, etc. So, basically, any reason. I agree. It doesn't really matter why you're torturing someone. It should be illegal.

    Second, it has to cause severe physical or mental suffering. Does that include hurting the prisoners' feelings? Is the rack severe enough? Where exactly is that line drawn? I certainly hope that this is delineated more finely in the small print.

    Third, it has to be unlawful. So, if Country X passes a law sanctioning amputation of limbs, caning prisoners, throwing acid in their faces, etc. it's all hunky-dory. After all, it's lawful, so the considerations raised by the first two criteria are irrelevant.

    Yuck.

  • JW Gacy||

    Fists of Furry is wrong. If the framers had meant an exclusive or, the text would have read, "cruel XOR unusual punishments inflicted[.]"

  • Fluffy||

    Only in a civil suit. In a criminal setting, the disputed facts need to be resolved in favor of the prosecution.

    Nope. Cathy is saying that the torturers can plead justification. Justification, like self-defense, is an affirmative defense that the defense has to prove.

    In any event, the relevant treaties to which the US is a signatory specifically preclude the use of the justification defense in torture cases, so the point is somewhat moot.

  • MNG||

    Young:
    Some people enjoy geting raped by the Devil for all eternity, and others think it would be wonderful. Both sides have a lot of thinking to do, the truth lies somewhere in between.*

    *credit to Thoreau

  • T||

    Otherwise, *any* defendant could get away with *any* crime by explaining that they *thought* the crime was necessary. That would apply to any crime from speeding to murder.

    More specifically, it does work in the military context of certain violations of the laws of land warfare. You can blow holes in just about anyone or anything if you honestly believe (and can convince a military jury) that it was necessary to preserve the lives of yourself and your fellow soldiers. You do have some issues with proportionality, etc, but the general principle holds.

  • Fists of Furry||

    "Fists of Furry is wrong. If the framers had meant an exclusive or, the text would have read, "cruel XOR unusual punishments inflicted[.]""

    They were writing prose.

  • MNG||

    That should read "some people hate getting raped by the Devil.." though I have seen debates with a similar width of range of views to my typo!

  • well duh!||

    Torture isn't punishment, because the suspects haven't been convicted of anything yet. Punishment begins after the mock trial that uses the output of torture to turn the defendents into convicts.

  • ||

    R C and Fluffy-

    Hasn't the necessity defense usually applied to private individuals acing in their defense or in defense of others? I say usually becuase I am sure that some cops have availed themselves of of that defense in cases where they stood accused of murder.

    Nevertheless, I do not think that the necessity defense should be available to public sector actors. 9/11 hysteria is no basis upon which to whitewash the deliberate torture of another by state actors.

  • ||

    In any event, the relevant treaties to which the US is a signatory specifically preclude the use of the justification defense in torture cases, so the point is somewhat moot.

    Not so fast, Fluffy. The Senate ratification of the Convention Against Torture specifically states that the Convention is not self-executing (meaning, that it is not automatically US law, but requires the passage of US domestic law to implement).

    The US law implementing the Convention does not contain any language barring the necessity defense.

    There is a lively debate about whether the Convention language barring necessity defenses should be assumed or implied in the actual US law.

    In the unlikely event that anyone is ever prosecuted, I expect to see the necessity defense put forward, and, depending on how the case goes down, litigated to the Supreme Court.

  • ||

    Yet another "on the one hand, but on the other hand" Cathy Young article. What else is new?

  • roystgnr||

    Torture isn't punishment, because the suspects haven't been convicted of anything yet.

    You think you're joking, but Scalia actually believes this:

    http://thinkprogress.org/2008/04/28/scalia-60-minutes/

    That's right: according to a Supreme Court Justice, the Bill of Rights was only supposed to prevent cruel punishments of guilty people - if the government wants to do something cruel to an innocent man, that's perfectly fine!

  • well duh!||

    You think you're joking, . . .

    You think I was joking . . . I was actually laughing and crying at the same time . . . .

  • Alan Vanneman||

    "Cathy Young ...."

    Sorry, but after those two words I just stop reading. Kinda like "Virginia Postrel." Thanks, but no thanks. I'm starting to miss Michael Young.

  • ||

    An even more explicit restriction than the 8th amendment is the Convention Against Torture, signed and championed by Ronald Reagan, Article II/IV:

    "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. . . Each State Party shall ensure that all acts of torture are offences under its criminal law."

  • Kolmogorov||

    "But doesn't this, too, smack of scapegoating if their actions reflected a broad consensus? "

    This is a curious line of thought. So, if 60% of Germans had favored exterminating the Jews, Nuremberg would have been just skapegoating?

    In the South not too long ago, you probably could have found a majority in favor of lynchings too.

    I guess there's no need for a Bill of Rights, since the majority is always right.

    Please, someone put this facile "we're all to blame" meme to rest.

  • ||

    An even more explicit restriction than the 8th amendment is the Convention Against Torture, signed and championed by Ronald Reagan, Article II/IV:

    Tony, see my post @ 2:06 pm, which points out that it is not at all clear whether that Article was incorporated into US law.

  • ||

    To anyone who can read English, the eighth amendment prohibits torture.



    The problems with successfully prohibiting torture-- and the reason why people don't want investigations-- reminds me of the debates between anarchists and minarchists.

    Once you've admitted that the state can lock someone up in solitary confinement against their will, it seems to me that the only difference between that and torture is matters of degrees. It's difficult to draw some arbitrary line and say "beyond here everything is super-evil torture, but solitary confinement in Supermax prisons is perfectly ok and a reasonable alternative," just like once you admit the minimal state for reasons of public goods, etc., you open the door for all sorts of other state interventions.

    It's all very nice to say you're against torture, but the point is where to draw the line. And I personally don't see how most of the accused actions at Gitmo are worse than the everyday treatment in ADX Florence. The Bush Administration tried to figure out exactly where the line was (reasoning, e.g., that permanent physical damage was definitely out). It's reasonable to think that determining where the line is makes it easy to shift the line. I think that's plausible. OTOH, it's also plausible that never spelling out where the line is makes it easy to go down the slippery slope as well.

    "I know it when I see it" works about as well for torture as for pornography.

  • Mari Dupont||

    oh good, another opportunity to bash Cathy Young's DOA writing style. How much longer until her Reason contract is up and you're finally free to hire someone who writes with a little passion/wit/persuasion? Talk about talentless filler. Ok she gets libertarian street cred because of her Russian background, but its just not enough. DUMP HER!

  • JW Gacy||

    What does Fists of Furry have against the exclusive or in prose? Does he like unnecessary ambiguity xor is he just stupid?

  • ||

    I remember reading this article a while back on torture that i thought was very good.

    http://www.virginialawreview.org/content/pdfs/91/1425.pdf

  • Wicks Cherrycoke||

    Someone should prosecute Naomi Wolf for torturing logic.

  • Kreel Sarloo||

    I personally don't see how most of the accused actions at Gitmo are worse than the everyday treatment in ADX Florence.



    I hope they're not planning on ever releasing any of these motherfuckers. Talk about a recipe for insanity.

    They are housed in a 7 ft (2.1 m) by 12 ft (3.7 m) room, built behind a steel door and grate. Their free hour is spent exercising alone in a separate concrete chamber. Prisoners seldom see one another, and the inmates' only direct human interaction is with correctional officers or other prison staff.



    It's often hard to feel sorry for some of the really, really worst offenders, who sometimes seem subhuman but frankly I wonder it wouldn't be kinder to just kill these poor bastards.

  • underzog||

    Torture?

    What about the torture that the AIPAC official Steve Rosen suffered by being hounded because of a weak entrapment case?

    The Ernst Rhoem wannabes at "Reason" magazine made a big fuss over pro defense Democrat, Jane Harman, trading favors as all politicians do, but when it comes to the news about Steve Rosen and the other guy having the charges dropped against them, the Rhoemites at "Reason" magazine are silent.

    If one were to use "Reason" Magazine as his primary source, one would think that Muslims did not commit the terrorist acts in Mubai, India and Jews are guilty of massive spying and law breaking in America.

    This is the anti-Semitic crap that sexual perversion may bring about -- just like with Hitler's Storm Troopers led by the notorious homosexual, Ernst Rhoem.

    The Pink Swastika (final edition)

    "There's no need to fear. Underzog is here.!"

  • ||

    "...just like with Hitler's Storm Troopers led by the notorious homosexual, Ernst Rhoem."

    What? The Ernst Rhoem that Hitler had murdered at about the same time as he was taking power, or is there another Ernst Rhoem?

    And all the homos that the Reich had liquidated in the same gas chambers that they were killing Jews in? Who would have thought a Jew was a Holocaust Denier?

    Goddammit, you are one stupid motherfucker. If there were more of them like you folks sure wouldn't think Jews are so motherfucking smart.

    Add underzog to the list of posters that need to be told to Fuck off when the come here.

    Fuck off, underzog.

  • Les||

    Goddammit, you are one stupid motherfucker.

    Why, yes. Yes, he is.

  • aspushkin||

    Cathy, как тебе не стыдно? WTF is happening to reason... teabagging parties are an expression of the people's unrest and torture is such a debatable issue that really we should just forget about it and have some crumpets.

  • ||

    If you are not a US citizen, or are not within the borders of the US, you are not protected by the constitution. Torture is necessary.

  • aspushkin||

    "Real"-- horseshit. The United States is founded on the principle that all men are endowed by their creator with certain inalienable rights. The constitution does not give us these rights, it merely restricts the government's ability to deny them. The eight amendment didn't grant me the privilege of not being tortured, it prohibits the government from torturing. Fuck you.

  • ||

    The United States is founded on the principle that all men are endowed by their creator with certain inalienable rights.

    Yes, but once you start violating the rights of others, the government starts exercising their ability to violate the hell you of your rights, such as your right to not be cruel and unusually punished.

    If you want to get really linguistic about it, enemy combatants cannot be actually "punished" until conviction, so anything done up to that point, is just info gathering.

    How one side of this debate can continue bombing and killing civilians but not admit that the threat of death and pain is useful and necessary in interrogation concerning national security is a farce.

  • ||

    It's worth noting that some of the first people to speak out against torture were FBI agents--not exactly bleeding-heart liberals. There objections were entirely practical: A man under torture will say anything to get the torture to stop, so you can't believe anything he says; if he actually is a terrorist, once you've tortured him you've lost any chance of turning him and getting him to work for you; and worst, by torturing prisoners you're giving your enemies the best recruiting tool they could possibly have. Our use of torture creates new terrorists faster than we can kill the old ones.

  • JohnD||

    What a load of crap you reasonoids deal in.

    You don't have a fucking clue about what is really torture. Pulling out peoples fingernails or burning them with firebrands is torture.

    Water boarding is not

  • coyote1284||

    I'd just like to state that while I agree that waterboarding is a form of torture, I don't agree that the "walling", "attention grab", or other "advanced iterrogation" are. HOWEVER, I do not think that most of them are "right". They are *not* techniques US forces should employ, even though they are NOT torture.

    IOW, just because I don't think it's "torture" DOES NOT imply that I think it is "good". Stress positions and denial of rest ARE NOT torture. Playing loud heavy metal through the night IS NOT torture... but it's also not condusive to gaining real, usable information from an enemy.

  • Tom||

    > You don't have a fucking clue about what is really
    > torture. Pulling out peoples fingernails or burning
    > them with firebrands is torture.

    > Water boarding is not

    Have you been waterboarded? People call it "simulated drowning", but a more proper description would be "real drowning but stopping a few seconds short". It's torture. Keeping someone awake for a week is also torture, not to mention possibly permanently damaging. Slamming someone against a wall to cause pain... torture. Nearly pulling an arm out of a socket for a few hours... torture.

    One thing people conveniently forget is that 99% of these people being "harshly interrogated" (ie tortured) are not "terrorists", they are *suspected* terrorists (for example, hundreds of Gitmo prisoners were released without charges, i.e. not terrorists). We could be torturing completely innocent people, probably have. I'm not OK with that.

    If you're fine with that and think it's worth it, okay, but I hope you never get jury duty.

  • nike shox||

    is good

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