New at Reason

David Weigel | September 25, 2006

Jonathan Rauch plunges headfirst into the debate over detainee treatment, analyzing the laws and the morals that define the discussion.

Comments

|9.25.06 @ 1:17PM|#

That is a very good and informed article. Much better than the usual discussion of the issue in the media. Compare this pretty sober look at the issue to Andrew Sullivan, who has managed to turn his otherwise respectable blog into some kind of gay S&M site in his hysteria over the issue.

|9.25.06 @ 1:23PM|#

Lets set the standerds to the same treatment that we give our own soldiers at basic (or did around '95). Stress-postions- yes; sleep depervation- yes; intimidation and mild humiliation- yes; Manipulation- yes; waterboarding- NO; Sexual humiliation- No; slaping - No.

I think this would cover "rough treatment" without alowing torture. And the plus side is that we can say "look, we do this stuff to our own soldiers"

|9.25.06 @ 1:39PM|#

Sam_h,

I agree and lets not slander real soldiers by pretending that some troglodyte like KSM deserves the same protections if captured.

|9.25.06 @ 2:07PM|#

There is a great article over at Slate.

http://www.slate.com/id/2150050/

The purpose of bright lines to separate what is legal from what is not legal is not to protect the enemy against harsh treatment, not to protect our own soldiers against harsh treatment, but to allow our soldiers to execute commands to kill the enemy without having to make a moral judgement before following those orders.

I don't believe the laws should make exceptions for "ticking bomb" scenarios. Torture and inhumane treatment should always be illegal. If an operative chooses to take extreme action to prevent a tragedy, then he/she should be willing to explain those actions to a jury. Jury nullification works just fine for me.

|9.25.06 @ 2:24PM|#

The problem is carrick is what is "Torture". Certainly, cutting limbs off and doing long term perminant physical or mental damage to someone is torture and shouldn't be done ticking time bomb or not. The problem is that people like Andrew Sullivan make no distinction between real torture and coercion. As Raunch rightly points out, coercion is justified in some cases, even if torture is not.

|9.25.06 @ 2:38PM|#

Good point, carrick, about jury nullification. In addition, the defense of necessity may apply in a true emergency situation, and an accused person should have broad latitude in presenting evidence thereof. Finally, the power of pardon or clemency serves as an important safety valve in an appropriate case.

I suspect that, if his Congressional effort to retroactive legalize coercive interrogation is unsuccessful, the current Cheerleader-in-chief will issue blanket pardons prior to trial or even indictment of those involved with controversial methods of interrogation.

|9.25.06 @ 3:12PM|#

John in Nashville,

The people rallyied around Cally, who was a legitimate dirtbag who should still be in prison and sure enough Nixon pardoned him. It is difficult to imagine a CIA operative going to jail for torturing someone.

|9.25.06 @ 3:19PM|#

As Raunch rightly points out, coercion is justified in some cases, even if torture is not.

I disagree. I don't think the law should ever recognize that coercion is justified.

It will be impossible to codify which sorts of physical and/or mental duress are appropriate for which kinds of scenarios. This means there will always be grey areas.

It is much better to just ban them all. Exceptions can be handled by the civil or military justice system after the fact.

|9.25.06 @ 3:35PM|#

Carrick,

Do you really beleive that we should treat some scumbag like KSM better than we do someone in Ranger or Seal training?

|9.25.06 @ 3:43PM|#

I agree that Rauch has labored and brought forth a mouse. Whenever the facts threaten to contradict him, he falls back on "common sense" and convenient hypotheticals to obtain the results he wants. I'd give Andrew Sullivan an A+ on the torture issue and Rauch a D+.

The Israelis, who practiced torture for a long time, discovered how quickly it corrupts, how every detainee becomes a "high-level operative," how every situation becomes a "ticking bomb." The point of torture is to make human beings suffer, and that as an end, not as a means.

|9.25.06 @ 3:51PM|#

John, you are missing the point entirely.

The question is whether the LAW should recognize the legitimacy of coercive interogation. The question is whether or not the United States of America should become the Soviet Union of America.

My point is the LAW should not permit coercive interogation, because operatives hidden behind a curtain should not be allowed to decide, by themselves, if they really have KSM or just an innocent by-stander.

|9.25.06 @ 3:56PM|#

The single biggest problem with the "war on terror" is that it assumes that the terrorists are warriors. They're not, they're criminals. And they need to be dealt with like criminals, with all the legal restrictions on prosecuting criminals implied by that.

|9.25.06 @ 4:01PM|#

I agree that there is a risk of intel people thinking everyone they have is KSM and using coercive techniques on cab drivers from Baghdad. That is why you have to have serious controls on it and not just leave it up to the CIA, because no question the CIA without adult supervision, the CIA will fuck it up.

|9.25.06 @ 4:10PM|#

Carrick,

They are not criminals. Criminals can be deterred and we can afford to suffer the occasional crime. If you treat terrorists like criminals, you are giving every terrorist one free attack.

|9.25.06 @ 4:16PM|#

They are not criminals. Criminals can be deterred and we can afford to suffer the occasional crime. If you treat terrorists like criminals, you are giving every terrorist one free attack.

Wow, that is one of the stupidest statements I've seen on H&R. Killing people without justification is the biggest crime there is John. Terrorists are criminals, plain and simple. To say otherwize, is to imply they have some justification for their actions.

|9.25.06 @ 4:32PM|#

No Carrich you treat them as worse than criminals. A criminal gets to walk free until he actually commits a crime. A terrorist can't be allowed to do that since his crimes are so hanous. You have to catch him and kill him or imprison him before he can do his dead. In strict sense they are criminals since murder is a crime, but a very special subset of criminals. No way should a terrorist be entitled to the same protections that an ordinary criminal is entitled.

|9.25.06 @ 4:34PM|#

Criminals can be deterred and we can afford to suffer the occasional crime.

I'll try to remember that if I'm ever mugged and bleeding to death in an alley. It'll be comforting.

|9.25.06 @ 4:44PM|#

No Carrich you treat them as worse than criminals. A criminal gets to walk free until he actually commits a crime. A terrorist can't be allowed to do that since his crimes are so hanous. You have to catch him and kill him or imprison him before he can do his dead. In strict sense they are criminals since murder is a crime, but a very special subset of criminals. No way should a terrorist be entitled to the same protections that an ordinary criminal is entitled.

So many errors . . so little time.

A person gets to walk around free until he/she commits a crime. No one is a criminal until he/she actually commits a crime. Note that conspiring to commit a crime is also a crime. So everyone gets to walk around free until they plan to do bad things.

No one is a terrorist until they plan to do bad things. So everyone is deserving of the civil protections of the constitution until they cross the line, then they are fair game. Same as with any other crime.

No one gets to live in freedom if all it takes is suspicion of terrorism to revoke your rights under the constitution.

|9.25.06 @ 6:49PM|#

This one can be looked up through Google.

Allen West, US Army, Lt Colonel. Had a young trooper point out to him that a local police chief was just seen talking to a civilian local who was suspected of being part of a group that had just attacked them.

LTC West confronted the police chief. They got into a yelling match. The Colonel cranked off a round out of his 9 millimeter and the police chief sang like a canary to being one of the group that had done the attack. In short he was a terrorist himself, and more attacks were in the making.

LTC West was charged with over-reacting and was cashiered out of the army.

Do a google for Allen West for the entire details.

Was that torture? Did the Armey send any messages to the people who are trying to weed out terrorists?

If so, what message was it?

Define torture. To some people just being in a closed room with the door locked is torture.

|9.25.06 @ 6:59PM|#

The issue to me is the presumption of guilt. The person being put through the wringer is a terrorist because he is being put through the wringer.

This presumption of guilt can be seen in America already. For example if you are accused of child abuse/neglect/porn you are guilty. Period.

Things are on a downhill and I can't see the bottom yet.

|9.25.06 @ 8:41PM|#

That is a very good and informed article. Much better than the usual discussion of the issue in the media. Compare this pretty sober look at the issue to Andrew Sullivan, who has managed to turn his otherwise respectable blog into some kind of gay S&M site in his hysteria over the issue.

John, I've actually defended you in conversations for some of the dumb things you've said...but you are a damned lockstep partisan idiot.

|9.26.06 @ 5:10AM|#

elmo, that seems like an overreaction to me. if someone fires a gun near you, essentially threatening your life, you tell them what they want to hear. how is that different from those fox journalists forced to convert to islam to save their lives? they were lying to save their life, most anyone would tell the person with the gun what they want to hear.

torture only works if you know so much information already that you probably dont need to torture. otherwise you dont know if any info is true or not.

lunchstealer|9.26.06 @ 2:53PM|#

Do you really beleive that we should treat some scumbag like KSM better than we do someone in Ranger or Seal training?

Rangers and SEALs are volunteers. They choose togo through that training to serve their country. It's not the same as being forced to do it under captivity. Doing something freely as part of an training exercise where the reward is becoming part of an elite unit is very different from doing something where your reward is not getting shot.

Unless you're offering KSM the option of washing out of torture school, you're not treating him like a SEAL or a Ranger. You're treating him very much worse, and you're treating him in a way that if it were any other country doing it to our guys, would be a war crime.

|9.26.06 @ 3:03PM|#

but hrte,

He was not lying to save his skin. He was telling the verifiable truth to save his skin.

He was a policeman on his day job, and a terrorist by trade. He used his inside information to target anybody who didn't subscribe to his persuasions. ("Persuasuasians" being a light reference to the treatment anybody in "his" hands were faced with while he pursued his policeman's off-duty activities.)

And the information he provided saved lives that, given what seems to be your way of doing things, would have resulted in bereaved family members on several sides on the Atlantic.

And just as a footnote. Allen West is now a prized member of the team of contractors in Afghanistan that are training the Afghani secrity forces.

So maybe the Army did everybody a favor in the long run, because the sooner the locals can take over their own security, the sooner we can get out of it. That is, after all what we want isn't it? To get out of it.

But on the other hand, if we train them so well that terrorists can't find gainful employment over there, they'll try it here instead.

Now THAT is something to think about. And of course, should that happen, we will give them the same human dignity respect after they start killing us on our own streets as a daily "before breakfast" exercise that some people think they should get today in their own bloodstained neighborhoods.

Rob McMillin|9.26.06 @ 3:54PM|#

What is this self-deceiving filth doing in a magazine called Reason?