Torture Roundup

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When Tim and I wrote about torture here yesterday, we were wandering into a debate that's been raging in the blogosphere for a while. Rather than recapitulate everything now, I direct readers to the sites of Jim Henley, Arthur Silber, and Eve Tushnet, all of whom have made very compelling arguments against legalized torture, and Eugene Volokh, who believes there may be some occasions when torture is justified but also recognizes the dangers of changing the law.

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  1. Jesse, here’s an example of what I’m talking about:

    Matt Bower=, who Eugene Volokh linked to, says,

    “Beyond that, I’m also fairly satisfied with structural safeguards in this case. Assuming these sorts of activities are/were carried out only by intelligence agencies (military or otherwise), only against foreign nationals, only outside the U.S., and only in extreme circumstances, I’m not overawed by the slippery slope possibilities. I think the military and intelligence agencies (especially with proper oversight) are, as an institutional matter, good candidates for sticking to bright-line rules on these matters. (Bureaucracy has its advantages, sometimes.) And assuming that we keep the military and intelligence services within their proper sphere–that is to say, operating outside the borders of the United States–I think it’s unlikely that their practices will bleed over into domestic law enforcement practices. The military and intelligence communities already do many things that domestic law enforcement doesn’t do, and the walls don’t seem to have weakened much over the decades even though many of the people in each community have also served in one of the others at some point. (That said, the so-called “militarization” of domestic law enforcement does give me some reason for pause on this point.)”
    (see http://sheepfreezone.blogspot.com/)

    Don’t most REASON writers have a bit more concern about potential abuse of state power than this?

    Why, if the state is tempted to break the rules with regards to drug law enforcement, would it blink at breaking the rules with regards to preventing terroristic assaults?

  2. Irregardless of state involvement, where the torture rubber hits the road is one man torturing another man. You can have all the legal cover you need and a sound reason for doing it but can YOU imagine systematically, over a long period inflicting physical torture to a bound man?

    If you can’t then don’t expect somebody else to do it for you.

  3. I didn’t say no one was missing the point, David. Only that many people were getting it.

    To me, the important question is not how to make legal exceptions for the incredibly rare situations in which torture might be the less-evil thing to do, but how to prevent torture from taking place in the other 99.999999% of the cases where it might arise. Even if the state doesn’t adopt torture as a policy, a certain percentage of its agents are going to be sadists or (more sympathetically) just plain mad at the people they’ve captured.

  4. Agreed.

    I suppose I should’ve read all the posts by the ones you linked, because down a ways on Arthur Silber’s blog is this gem:

    “But here are the key questions, which Radley seems to have forgotten completely, although he remembers them in other contexts: Radley wants the “system … packed with safeguards.” But, Radley, the “safeguards” are going to be implemented and utilized — and probably disregarded in a crisis situation — by the very same government that you have nothing but contempt for with regard to any number of abuses of individual rights. But now suddenly, you’re going to trust them to observe the niceties about how to properly go about torturing someone, after torture itself has been endorsed as an appropriate official policy?

    And, to be blunt about it, forget this crap about restricting it to “limited circumstances.” Libertarians in particular should remember this: if you grant government the power to do anything, such power has never, and will never, stay restricted for long. Any grant of power grows and grows; such is the pattern of every single grant of government power that you can name. And it will be precisely the same with government-sanctioned torture.”

  5. Your readers might be interested in these two books:

    Unspeakable Acts, Ordinary People: The Dynamics of Torture
    by John Conroy

    http://www.amazon.com/exec/obidos/ASIN/0520230396/reasonmagazinea-20/

    And

    Torture
    by Edward Peters

    http://www.amazon.com/exec/obidos/ASIN/0812215990/reasonmagazinea-20/

  6. Excellent, David.

    To counter the other Russ’s post (I’m not having a conversation with myself), “Is saving thousands of people from a “ticking time-bomb” worth spending a decade in prison for torturing a prisoner? A simple choice.” No, it’s not that simple. Where do you draw the line? Thousands? One Thousand? A couple hundred? One? And does it matter if it’s thousands of prisoners or thousands of children?

  7. “it’s not that simple. Where do you draw the line? Thousands? One Thousand? A couple hundred? One? ”

    That question is best left to the would-be torturer. Nobody else can make that decision for him/her. If the interrogator is willing to spend years behind bars to potentially save lives, that is his or her call. It certainly makes people think twice when they have to accept responsibility for their actions.

    A simplified analogy: I know the speed limit. I know the fine for breaking it. If I’m driving a dying friend to hospital, the penalties for breaking the law would be greatly outweighed by the risk incurred by obeying the law. The decision is mine to make, and the consequences are mine to bear.

    We don’t need to change the laws to accomodate exceptional circumstances. Everyone is free to follow the law, or to break is as they see fit. The fact that they can weigh the benefits and the consequences ensures that transgressions will only occur when the circumstances warrant.

  8. The question raised by Russ — where do you draw the line — makes the ghastly Dershowitz idea of “torture warrants” seem less ghastly and more of a utilitarian problem. This isn’t much different from the equally vexing philosophical chestnut involving 3 men at sea possessed of a 2 man lifeboat. It’s a lot to ask an FBI agent, or a street cop, to decide whether the line is at 999, or 1001.

    Then there’s the immediacy issue. If it’s my life or my family’s life at stake, I wouldn’t hesitate to pull out the Swiss Army Knife (TM, of course) and start lopping off fingers or whatever else it took to find out where the ticking bomb is. If it’s 1000 of you jokers out there in the blogosphere, I might well probably stick to the bright lights, sleep deprivation and rude questioning.

    Assuming torture may be a necessity in dire times, this begs the question: is it better to institutionalize it and install safeguards, or should it remain taboo, understood as a necessary evil but not legitimated by the grace of our laws and courts? The former approach puts it into the hands of our courts, and leaves those hands dirty; the latter leaves the matter to the judgement of the executive branch. I do not have a satisfactory answer to this question.

  9. “Begs the question” is something you say about a circular argument, it does not mean “begs for the question to be asked.” I know everyone uses it that way nowadays, but still.

    Also, why isn’t it torture to sit someone in a 5×9 cell for 50 years? The government is constantly offering lesser sentences for information, which is equivalent to the threat of torture. That being said, from what I’ve heard, read, etc. less violent froms of torture, such as sleep deprivation and constant stress are much more effective and reliable ways of getting information. Since we are already engaged in this sort of soft torture, the question just goes away.

  10. The law is moot when Bush can easily maneuver prisoners into foreign hands who will do the torturing for him.

  11. Has anyone commented, from the libertarian side, on the potential for abuse if the state is granted the power to torture?

    REASON’s pages are full of examples of heavy-handed police/government agency tactics having to do with the “war on drugs.” Why think that it would be any different with torture procedures? Set up any torture-limiting rules you like. There would be violations galore.

    Is this the kind of state libertarians, and civil libertarians, want?

  12. Follow the links, David. You’ll find plenty of critiques along exactly those lines.

    I’d say that torture *itself* is an abuse of power, except under situations so rare that I’m not sure they have ever actually existed in the real world at all.

  13. Finding an answer to the “ticking time-bomb” scenario is really quite simple.

    We have laws prohibiting the use of torture. We have consequences for the contravention of laws.

    In a situation where one feels justified to break a law, he or she is free to do so, with the understanding and acceptance of the consequences that would result.

    Is saving thousands of people from a “ticking time-bomb” worth spending a decade in prison for torturing a prisoner? A simple choice.

  14. Well, I don’t find the concept of “the state” mentioned very often in the arguments against torture in those pieces.

    I’m not saying it’s the only factor to consider.
    I just think it’s a dimension of the objection to torture that perhaps isn’t being emphasized enough. Remember, it is usually states that practice torture, for state purposes. We might think that state interests and individual interests neatly coincide, as in the ticking bomb scenario, for example.

    But the history of state use of torture shows that this is not always the case. Torture can, morph into something that places the interest of the state squarely against the interests of individuals (or groups within the society). It can become a tool of oppression, rather than a instrument for protecting people against aggressors.

    I find it ironic that some liberals, and even some civil libertarians, forget the long history of states abusing their power when the topic of torturing Al Qaeda members is raised.

  15. A question genuinely seeking information, from a war-supporting non-American: now that US troops are in the hands of Saddam’s acolytes, will US supporters of torture re-think their stance? I have seen via the US media a lot of outrage at the mere display of captured US soldiers, but no connection to the debate on what should be permissible to be done to captives taken by the US as part of the ‘War On Terrorism’. Surely the US cannot expect its captured soldiers to be treated better than how it treats those prisoners it holds?

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