Thinking About Torture

If this is what counts as thinking about torture, then I'm inclined to stick with unthinking opposition.

First, it's bizarre to talk about Al Qaeda as a possible "existential" threat to the U.S. without even mentioning a little thing called the Cold War, wherein a large and ideologically hostile military power kept tens of thousands of nuclear warheads -- enough to literally burn down the whole country, as Jonathan Schell explained -- pointed at the U.S. and Western Europe and ready to launch in a matter of minutes. Now THAT was an existential threat. Surely given a threat of that magnitude, it would have been easy to justify virtually any measures that might even theoretically have produced information useful to America's defense. And yet, although there was certainly, at the margins, some dirty business afoot in those years, somehow it didn't seem necessary then to retool the whole political culture to allow torture to become standard operating procedure and to put the United States on the wrong side of the strong civilized consensus against it.

But then along comes Al Qaeda, and suddenly that does become necessary? NOW the threat is "existential"? Really? Al Qaeda hijacked airplanes and used them as weapons. Why? Because that's all they had! Destructive as they were, the 9/11 attacks were an expression of Al Qaeda's fundamental weakness. Yes, these people were aggressivelly hostile, but also basically unarmed.

But OK, you can't be sure. Right: You can NEVER be sure. So, let's torture everybody! Let's torture high-school kids -- after all, the Columbine killers were hoping to pull off Al Qaeda-style mega-attacks too, not just shoot up a school library. Right now, some other kid someplace is plotting to finish what they started. Responsible officials have to err on the side of caution, right? Better safe than sorry! (And what harm can it do, really -- after all, isn't being a teenager a kind of torture already?)

And then there's the inconvenient fact that virtually all the tyrants who have ever authorized torture -- even those who can't quote Strauss on the point -- have believed in their own perverted ways that they were discharging some sort of obligation to protect the "political commuinty." The few who have been confronted about it, like Pinochet, have said as much in so many words. They're probably even right, at times: There's little question, in retrospect, that a regime like the USSR's was fragile enough that some of the threats it faced were indeed threats to its very existence. So weren't they within their rights to set up some gulags? Ah, you say, but it was just the *regime* whose existence was threatened, not the actual political community. Right -- and there's the problem: Regimes and leaders will ALWAYS mistake their own wishes and well-being for those of the polity. The reason for limiting those leaders by law, constitution and treaty is precisely because long historical experience has shown that they cannot be trusted to make this distinction on their own: It has to be set down in the rules from which their mandate arises, and preferably in bright lines (like: DON'T TORTURE. Just don't.)

Bush, Cheney and the gang were responsible for protecting *America*. They may well have construed that in maximalist terms -- find anyone who might be a bad guy, assume the worst about the threat he represents, and further assume that nothing will work in dealing with him except force and violence -- but actual adults know that a responsibilty of this kind is more complex. It includes protecting the constitutional order as such, as well as not squandering the moral authority that keeps allies allied and otherwise helps serve as, in itself, part of the nation's protective shield. At least, that seems to be the way American leaders of both parties -- even as they faced down truly dire existential threats -- mostly viewed the task before Bush came along. Were they wrong? Were they actually FAILING to do their duty by not approaching it the way Bush did? Because that seems to be a further consequence of this view. There are always threats, some of them possibly (and some obviously) "existential." So shouldn't ALL responsible leaders be running torture "programs"? Should it not perhaps be a de facto requirement of the job from now on? What would Strauss say about *that*?

Score:  JSmith 100, Linker 0.  I would say that JS has eloquently made utter hash out of every piece of Linker's arguments, right down to the punctuation marks.

My rule of thumb would be that if you have to institutionalize the means of torture, as was done under Bush, not least with legal memoranda, than you have pretty much undermined the claim of necessity in the face of a "ticking bomb" at the same time as you are undermining decency and the legal order.  If there ever is an exception in which torture becomes morally necessary, then it has to be exceptional, emergent in nature, not organized and institutionalized, and in spite of clear legal prohibition and the risk that poses to the actors.  Why?  First to assure that the stakes really are that high.  Second, in order not fatally to infect the legal order, because once torture is institutionalized and legally sanitized, it becomes an incredibly slippery slope.  There is no way to distinguish which "enemies of the state" are deserving of torture. and the institution of torture will demand victims.  

I can understand Obama's desire not to have his administration captured and overwhelmed by an investigation into American torture, but it is necessary.  It is necessary too that, after a full investigation, the responsible perpetrators, Yoo, Bybee, Cheney, and Bush himself be brought to justice.  Tried, convicted, and imprisoned for their intentional violation of American laws that prohibit them from doing what they did.  Will that make future leaders of the US think twice or three times about just what is and is not absolutely necessary to protect the existence of the Republic?  Let us hope so.

Sigh...  I suppose I shouldn't be surprised to see childish rants in response to a measured, reasonable take on the torture issue.  And yet, here I sit, surprised.  Just to answer a couple of JSmiths points...  The conflict with the Soviet Union was almost entirely different from the conflict with Al Qaeda.  What's more, I think you know this to be true.  In the Cold War The US was dealing with a state with reasonable (if objectionable and perhaps even evil) interests and goals, not a suicide cult.  If you want to explore the different approaches to the conflicts with the USSR and Al Qaeda, you should start there.  Not just with the threat level, but with the methods by which the adversary can be influenced.  

"Regimes and leaders will ALWAYS mistake their own wishes and well-being for those of the polity."  Really?  Or is it only those leaders with whom you disagree?  What untoward interest did waterboarding serve for Dick Cheney?  Would you care to speculate on which of Obama's secret interests he might be currently serving at the expense of the polity?

Sigh ...

You might have had a point to make, unpainted, if you hadn't started off with empty ad hominem.  I would like to see you attempt a measured, reasonable response to JSmith.  I doubt very much that you are up to the task.  Certainly you don't demonstrate here either the willingness or ability.

What untoward interest did death camps serve for Hitler?  (Uh, oh, the dreaded Nazi comparison.)  By any rational calculus, the death camps diverted enormous resources from the German war effort.  Do you really expect that motivation of out-of-control leaders to be something on the order of a book deal, or a nice airplane?  Is that what you understand about the logic of power and the powerful and the abuses of power?  Not much it would seem

Say there, unpainted, don't you at least find the resemblance between the Yoo/Bybee memoranda and the Nazi legal memoranda justifying their depredations more than a little spooky?  There is a fair body of writing about the peculiar need of the Nazi regime, one we from our perspective regard as criminal down to the smallest atom, to create formal legal pretexts for its actions and the important role that played in legitimizing criminal acts for those not natively so inclined.

You seem completely to miss JSmith's well taken point that all criminal leaders always claim and likely always believe that their actions are in the interests of the state.

Torture defenders (Scalia defends his position by citing episodes of 24!) like to refer to the ticking bomb scenario and ask, "If you were in a room with someone who knew where a ticking nuclear bomb was hidden, and when it would go off, would you be willing to torture that person to get the information?"

Of course I would!!!!!! And I would accept the fact that it was totally ILLEGAL. I would be happy to face prosecution to save the lives of so many people. Just like if I was taking someone to the hospital in an emergency, I would be fine with running a red light-----I would still acknowledge the illegality of my behavior and accept any consequences.

But I would only be willing to torture if I truly had reason to be certain that the person I had control over really had the timely life-or-death information. I agree that in such very narrow circumstances, torture is the way to go. But I also think it should only be used in that sort of rare circumstance and that keeping torture illegal helps keep it very rare.

It appears that torture was being used with alarming frequency under the Bush administration. Furthermore, the fact that they subjected the same people to torture over prolonged periods of time (months!) totally undercuts the argument that they were using it under extreme time pressure----as in the ticking-bomb scenario. The 'legal' excuses cooked up by Yoo and Bybee to make allowances for this activity also paved the way for it to be used routinely, and on fishing expeditions.

People are more likely to report suspicious activity if they can feel confident that innocent people are not going to be tortured because of it.  We are safer when we protect the stream of information from the community by keeping torture illegal.

I wrote the below once before on the issue of waterboarding. I thought I'd repeat it given this discussion.

"...Waterboarding is a form of torture. I want to try to defend it and argue for reflecting that use in law and being explicit about it subject to pragmatic necessity.

To set the framework for these arguments I want to revisit the nature and scope of the threat the developed world faces from radical Islam when its terror is conjoined with technology. Its terrorism is growing on a population of 1 1/3 billion Muslims with a growing access to nuclear/radiological weapons, biological weapons and chemical weapons. Clearly a criminal justice model for dealing with this danger is inadequate. That model assumes the existence of crime and seeks not to eliminate it but to control it. Its goal is try to reduce America’s about 30,000 murders a year by some amount. But that cannot be the approach to terrorism. Here the focus must be on prevention. Deterrence is irrelevant to suicidal fanatics and there as no end to their numbers. The failure of prevention may yield unthinkable civil harm, far exceeding in magnitude 9/11 which itself generated such enormous repercussions. And another point: a further attack would deal civil liberties a terrible blow. Civil libertarians to promote their agenda need to downplay the threat; but the relative incursion into them now in the interest in prevention paradoxically may be the best means of ensuring them.

A captured terrorist, by definition an unlawful combatant, is an outlaw. He does not wear a uniform; he hides amongst civilians; and he targets innocents deliberately. The postwar Geneva Conventions were not just written to protect detainees; they were also written to deter the barbaric treatment of civilians so apparent during the first half of the twentieth century. The promise of the Conventions was that combatants who treated non-combatants well would be treated according to a code of dignity if captured and reciprocally would be denied the protection of that code if they broke the laws of war or abused civilians. And these two things minimize what terrorists do. But terrorists are not ipso facto treated in kind because civilized people do not descend to the level of their enemies. They are treated humanely out of the moral principles that inform such civilization and when inhumane treatment occurs, it is marked with disgrace.

But then we come to the terrorist with information. In the true case of the ticking time bomb—a nuclear bomb about to blow up Sheboygan—is there really any issue here? The problem is that this rarified case does not exhaust the category of the terrorist with information. A lesser version of it, more common, is smaller scale terrorism—car bombs, small local targets—a café, a hospital, a nursery school. These smaller scale instances take the ticking time bomb out of the supposed one in a hundred million range and make it a real live practical problem. In these instances, while not as dramatic the destruction of Sheboygan, is there any real issue of using coercive information to try to save lives?

I want to say that the principle that emerges is that torture is permissible, or, putting it mildly differently, torture is not always impermissible. And if that is so—if we have the principle—then aren’t we left to argue about the details and the application—not whether but under what circumstances.

And we come to a further sub set of the terrorist with information: a high level captive drenched with information but we have no specific pending terrorist action which we suspect—the best example is of course Khalid Sheikh Mohammed (“KSM”). Just to review the bidding, he was the architect of 9/11 and was a/the top al Qaeda planner. I cannot imagine coercively interrogating him, torturing him—to put it plainly—to extract information from, which is what waterboarding him accomplished.

In 1999 israel's Supreme Court struck down secret guidelines which allowed for torture. But after the second intifada broke out with wave of horrifying suicide bombings the Shin Bet turned to physical coercion as a standard practice having widespread approval a of the Israeli public and its political class whne seen in the light of being a last resort in preventing terrorist attacks.

To move down the scale from KSM, what if the terrorist prisoner’s information is less imminent, or less direct: he can give us information about others who themselves know more, and so on. Isn’t it plausible to argue for—given the marriage of terrorism and proliferating technology and the potential for nation shattering destruction—for some proportionate coercion tailored to meet the particular exigencies? Such decisions are not easily made and are not unproblematic because we are talking about torture after all. But leaders must protect their citizens and take these decisions to extract information which may prevent the slaughter of innocents.

I say that if we are going to torture we need rules governing its exercise grounded in the principle that the only reason for torture is the extraction of life saving information and not for punishment or vengeance. If we need these rules, then torture must not happen outside the law. Subject to pragmatic necessity, there are two choices here: a systematic framework within which those expert can try to resolve the infinite number of questions presenting themselves rooted in a comprehensive balancing of inevitably competing interests and values; or a below the radar unaccountable dealing out of terror which vitiates the very values informing the meaning of America. Monitoring, limiting, tailoring what’s done, will be the best means of controlling it and its spread to other civic institutions. Judicializing the process is the best means of mimimizing its instances..."

roidubouloi, I didn't make an ad-hominem argument (I called smith's response childish, not smith), but it's a fair point you make.  I fired off that first sentence without much consideration.  

I'm not sure the point you mean to make with the death camp comparison.  It seems that you mean the death camps are alike in type, if not degree, to the US interrogation practices under W?  Maybe you mean that the goal of both is simply to amass power, or to exercise violence in support of bigotry or hatred, at the expense of the people (I'm not sure how Cheney would get a nicer airplane or a book deal by sanctioning torture.  He was, after all, already VP).  

The following point has been made by many times, and so I'm sure it sounds like old hat.  However, I've never heard it sufficiently answered, so maybe you'd like to have a go...

After 9/11 we knew that we were dealing with an enemy that had no state allegience, no conventional infrastructure, and one that would not respond to conventional deterants (not only would MAD not work, to name one example, it seemed to be their entire goal).  We also knew that they had contact with entities who might supply them with some incredibly destructive weapons.  They clearly had the will to act in the most destructive way imaginable, and we did not know what they were capable of.  This was not the phantom threat of the "jewish entity" in 1930s Germany, to answer your point about the death camps.  Bush did not seek legal exploration of permissable interrogation practices from the DOJ in a mindless hate-fueled power grab (do you think he did?).  He did it because in his judgement, we had to explore those options.  This was an enemy we hadn't dealt with before (and certainly an enemy not envisioned by the Geneva Convention).  My guess is that if Al Gore had been elected in 2000, he would have done something similar.  Some for Obama, in spite of what he's saying now.

Interesting article from a couple of years ago:

www.washingtonpost.com/.../AR2007120801664.html

Maybe Bush was wrong.  Maybe he was *unforgivably* wrong.  I think he was acting in your and my best interest.

"You seem completely to miss JSmith's well taken point that all criminal leaders always claim and likely always believe that their actions are in the interests of the state."

I didn't miss it; I brushed past it because I don't find it particularly useful.  I don't wish to speak for others but I am certainly not attempting to argue that Bush's claim to be acting in the national interest, on its own, to be the sum total of the reason why I think what he did was proper.  Yes, even the most evil and murderous world leaders make that same claim.  And yes, you are right that the Nazis attempted to create a legal structure for their actions (until those laws became inconvenient, and they brushed those aside as well).  That seems to me to be a dangerous conflation of two wildly different scenarios, however (as I addressed briefly in my last post).  Even the Geneva Convention went to great lengths to define, very carefully, who was covered by its prohibition of certain practices and who wasn't.  Was that legal distinction akin to what the Nazis did?  

Unpainted, I anticipated that response about the Cold War. It's easy in retrospect to remember the Cold War as the kind of antiseptic affair you describe -- the Russkies as just another group of guys in suits; sober, rational state officials, etc. -- but at the time, nobody knew when or if they were going to strike, and there were plenty of people (Ronald Reagan, for one) warning that ideology was everything with them (that they were "an absolutely unscrupulous and savage enemy," in Strauss's words quoted above) and that the attack was coming at any moment. Considering the consequences of such an attack, orders of magnitude greater than anything Osama bin Laden could even dream of, the threat was easily great enough to justify, indeed demand, a torture program if we follow the Strauss / Linker logic.

To the extent that the Cold War evolved into something more managed, with hotlines and so forth, that happened over time, and it never did end the threat or stop the Reagans and others from issuing dire warnings about it. In retrospect, I think we're fortunate that the Cold War happened to take shape when U.S. leaders were either New Deal Democrats or Eisenhower Republicans (with their respect for military protocols like not mistreating prisoners). There were Dick Cheney types in the early days, but they didn't get to shape U.S. policy -- otherwise we'd have been in the torture business for decades by now.

As to Al Qaeda being a "suicide cult," that's consistent with my point. AQ cultivates the virtues of suicide in its members not out of some belief in suicide per se, but because it HAS NO WEAPONS to speak of, and therefore can't do much damage unless its commandos are willing to sacrifice themselves by doing things like flying (other people's) planes into buildings. In other words, the reliance on suicidal attacks is a sign of its basic weakness. It's not evidence that AQ has no political goals, or that the threat couldn't be managed through various combinations of non-torturous pressures as we've done with other threats in the past.

As roidubouloi says, the point about a regime and its leaders confusing their interests with the polity's is not that the leaders try to enrich themselves personally. It has to do with the logic of power. When Lord Action said that power corrupts and absolute power corrupts absolutely, he wasn't talking about book deals or whatever was the 19th-century equivalent. The point is that people who exercise power have a natural human tendency to define their mission in maximalist terms and to equate the community with the regime. Hence, protecting the people turns in their minds into using any means at hand to strengthen that regime. But because the regime is itself a mechanism for exercising power, this means they come to focus on protecting and enhancing their own power. It doesn't much matter what kinds of individuals they are or what they want for themselves; the logic of their role drives them to use power in the service of power, not of the people. That's why the role has to be defined in the first place as a constitutionally limited one, and a long political tradition cultivated of respecting those limits. I gather that Strauss didn't really understand any of that, although I thought Damon Linker would.

Also roi, thanks for pointing out something I missed: If you have to institutionalize torture, you've already pretty much given up any serious claim that the threat you're dealing with is both existential AND immiment. I hope if Linker discusses this issue further, he would tell us whether he thinks the same logic that excuses or mitigates the Bush people also now *requires* future presidents to continue the Bush "programs," and if not, why not? After all, if defending the political community by any means necessary is a political leader's "responsibility," and if torture is an effective means, why isn't it simply expected of every president? If Linker is guided in these matters by the ideas he sketches above, it's a bit baffling that he isn't on board with the Cheney / Michael Hayden view that Obama is derelict in his duty for not keeping the whole thing going.

Unpainted,

roiduboloi means (if I may take up this banner for a second) that the JUSTIFICATIONs for torture was similar to what you (and Linker to some extent) are presenting.  Exceptional circumstances, mysterious enemy, etc.  And that should be disturbing, because it will spread. It's the banality of evil argument.  

What is repellent about the memos is that they take what should be considered exceptional measures, and make them mundane.  You can agree that torture should be an available option-- whether legally condoned as Basman, a la Dershowitz, presents, or an extra-legal measure of last resort as kerFuffler seems to, and still be repelled by the warping the definition of torture so that can be used in unexceptional circumstances.  

The motivation of the Bush administration in crafting the memos is largely irrelevant.  What is morally repugnant is specifically excluding practices that are commonly understood as torture, e.g.waterboarding, walling, beating that doesn't cause internal organ failure, sleep deprivation, stress positions from the definition of torture for the express purpose of using those techniques to torture people.  If those techniques are not torture, then why shouldn't they be used more widely?  Or to take a common example, why should we complain when they are used against our soldiers or captured civilians?  What's more, you are training a cadre of interrogators and medical professionals who have legal and, as Obama argues, moral cover for their actions.

The argument as to whether the techniques in question are torture is a separate one (though important), as is the return on investment of your soul as more extreme tortures become acceptable to gain information.  If every bit of information gained is weighed against the destruction of the world, maybe you do come out ahead.  However, I believe you're putting your hand on the scales if you do that.

--jt

PS-

Personally, I think your argument is a non-sequitur.  We have an undeterrable, fanatic enemy  therefore torture should be an option.  

"Bush did not seek legal exploration of permissable interrogation practices from the DOJ in a mindless hate-fueled power grab....."

Maybe not, Unpainted -- although we don't really know -- but I do think that Bush and Cheney came at things from a philosophical position that is essentially outside the mainstream American constitutional tradition and the political culture that evolved from it. This was reflected not just in the "war on terror" but in many other ways, like their politicization of Executive Branch functions that had historically been at least partially insulated from politics (scientific reporting, hiring/firing of U.S. attorneys, etc.) and their extreme claims for Executive authority ("signing statements," new secrecy doctrines, the "unitary Executive," the refusal to get wiretap warrants even when it's very easy to, etc.). These are guys, I think, who don't really believe in limits on power, who resist those limits as a matter of principle, and who are much more comfortable with state-sanctioned force and violence than we should ideally like to see in constitutional authorities. In other words, they're exactly the wrong people to be charged with deciding when a threat is existential or immiment to such a degree that exceptions to the usual rules have to be made. They'll *always* decide that it is. (And basically, what Linker gives us above is a philosophical rationale for always deciding that.)

Also, on the Geneva Conventions: I think they do have provisions for non-uniformed combatants, but regardless, to the extent that they give special treatment to uniformed soldiers, it's not on the assumption that anyone else can be thrown into a "black site" someplace and treated however the the powers-the-be would like. It's on the assumption that others who bear arms against a state will be dealt with through existing methods and protocols like a criminal-justice system. Supporting this view, I think, is the fact that the U.S. didn't just sign (and push) the Geneva Conventions; it also signed and ratified the Anti-Torture Convention, which, by the way, is a *treaty* and therefore has the same force as the U.S. Constitution itself, including the Bill of Rights. This is another point that perhaps Linker could enlighten us about: Does he agree with America's continued participation in that convention? On the Straussian terms he lays out, isn't it irresponsible for any political leader to join in such an agreement, let alone enshrine it at the level of constitutional law?

Sigh, indeed...

My hope is that this conversation will die a natural death in due course, as I expect it will at some point.

In the meantime, another, somewhat related question: was it - truly, is it  of dire, absolute necessity that we have this national, global conversation about the definition and existential meaning of the word 'torture' (if indeed it is still a national conversation, and not one really more localized to the chattering classes)?

Among the many disgusts I continue to have about the rampant arrogance and foolish behavior of the Bush administration, is the tortured life of torture debate. I continue to see little justification for it, while admitting that it probably could not have been avoided once the Yoo/Bybee memos were outed. At that point, it seemed Pandora's box was open and the fallout begun. So it came to pass.

So, we go back to the 9/11 tragedies, that a bunch of crazy, hell-bent zealots managed to pull off the seemingly implausible trick of felling the Trade Center buildings, breaching the walls of the Pentagon, and crashing a third jetliner in a remote field, thwarting the terrorists' intention to bomb the White House or Capitol Building. Surely these events warranted thinking the unthinkable, mandating that we resolve as a nation to wipe out militant Islam before it succeeded in its ultimate goal, to wipe Israel off the face of the planet and bring Western Civilization to its knees.

To which I say "balderdash!" What was in fact warranted and mandated was a no-nonsense assessment of the real risk, not that we would underestimate the consequences or possible outcomes; instead, that we would overestimate them, handing the terrorists the additional prize of watching Western leaders contemplating their and their nations' doom, therefore resolving to trudge once again the path of holy war the  Crusaders took. Or something else similarly theatrical and foolish.

We certainly didn't need to have a national conversation about torture, then or now. Instead, our military and intelligence leaders needed to have rational conversations about what broad measures should be undertaken immediately, and what prudently to do at once to insure we would not be caught off guard.

And that is probably what happened. Later on, however, the Bushies decided that the time was right, even mandated, to permanently change the way the nation conducts its business in our constitutional democracy, along ideological lines. Thus the torture memos, the obsessional pursuit of war with Iraq and permanent change of governments, political systems, religions, altering history, etc. etc.

When the administration's global thinking and obsessing began to leak into public knowledge via the media, as it surely would, Bush&Cie. decided it was time to go to the mattresses for life, liberty and the American Way.

In short, much if not all of this could have easily been avoided by taking rational political action, backtracking tactically, rethinking strategically (gee whiz, guys, you *can think about it* and, oh, maybe question your assumptions, discuss plan B's and C's, like, get real already), perish the thought, sincerely listening and taking feedback from those who also are entrusted with safeguarding our democracy and way of life, who may profoundly disagree with you.

But no, you had to stonewall, obfuscate, avoid avoid avoid, plot some more, obsess indefinitely it would seem. You just couldn't do it. What a bunch of idiots you made of yourselves.

Obama rightly deems it appropriate to continue the internal conversation about coercive methods, along the appropriate channels, since it should be continued, prudently and rationally, and with a hell of lot less drama. And the public conversation should be permitted to die a natural death as we so move on. After all, our system works, we say, it always has, and acting responsibly it should continue to do so indefinitely. Forget about changing the world. That's kids' stuff. Get real.

Some good points, all around.  Tomeg's post aside, I think this is a worthwhile conversation.  To address a couple of counter-points to my post(s):

My point about the Geneva Convention was only to point out that these legal explorations are necessary to define what we do and what we don't do, given what we know at any given time about what we're facing.  It sounds, reading through some of these posts, that many of those who think that Bush (et al) acted improperly would have preferred that they ignored the legal consequences altogether and simply sent secret orders to have those 3 men tortured 7 years ago.  That way there would have been no parallel to the Nazi legal maneuvering, and no institutionalization of the practice.  Would that have given Bush and Cheney more power, or less?  Do you not think, given the circumstances of the time, that constructing legal positions to define the parameters of what they felt they needed to do was more responsible than simply acting?  Have there been more people tortured/waterboarded/sleep-deprived in the 7 years since (I'm actually asking, I don't know the exact circumstances)?  If not, does that make a difference?  

It seems to me that they knew they had 3 people with actionable intelligence (whatever they learned from those interrogations remains a secret).  Instead of going off half-cocked, they had the DOJ explore their legal options and produce these memos.  As I said, I think it's good that we're having this discussion and talking about the potential implications of what Bush did.  But it might be good to remember the limited nature of what really went on (at least, given the evidence that these memos provide).

Also, did anyone read the Washington Post article I linked?  Any comment on that?  Is it really safe for us to assume that Bush and Cheney "came at things from a philosophical position that is essentially outside the mainstream American constitutional tradition and the political culture that evolved from it"?

Can we stop and ask what an actual "ticking time bomb" scenario would be like, and what, if anything, torture could do to prevent a catastrophe?  After all, surely any period longer than a few days or a month is, by definition, not  imminent

You are an al Qaeda operative.  You have knowledge that planes will be hijacked and sent to crash into, oh, the Golden Gate Bridge in one week.  Your captors do not know what you know, but think that they can torture something out of you.

What do you do? Well, if it were me, I'd count the days and give out a bunch of false leads, then seven days later bask in the satisfaction that the Golden Gate Bridge is history.

I submit therefore that torture, in fact, is only useful if there is NOT a ticking time bomb.  Which is to say that it is not useful at all.

Unpainted, those are good questions. I don't know how I'd answer the one about which is better, torture that happens outside any legal framework (and thus without this pretense of being a well-managed "interrogation program"), or the use of hack lawyers (and future hack judges) to define away the relevant prohibitions and try to paint the thing as somehow legal. They're both destructive in different ways, although I guess I'd vote, if I had to, for total extra-legality so that (a) the U.S. wouldn't be quite so openly and contemptuously in violation of its own laws and treaty agreements, and (b) at least there maybe wouldn't be this quasi-immunity for the miscreants that Obama seems to believe in.

As to the seeming authorization from Congress, yes, that's highly regrettable too. I don't think it negates my point, because I think you had a kind of bullying going on -- Bush, Cheney, Addington and Bybee, et. al., along with many Hill Republicans, were philosophically committed to the notion of limitless Executive authority I described, while other Republicans and the reliably feckless Democrats were not, but let themselves be cowed into believing they had better go along. Also we don't know precisely what members of Congress were told was happening; did they sign off on 183 waterboardings in quick succession, for instance? At any rate, it does partly mitigate the Bush people's personal guilt in all this that they did "consult" in some fashion with Congress. In the final accounting, the actions of congresspeople should be included along with the Executive's. But nobody's acquiescence does anything to justify torture itself, or to support the Straussian duty/necessity defense that Linker gives us above.

Incidentally, you are right that I was ranting a bit in my initial response to Linker. It was a first reaction, was irritated with him (he usually thinks more clearly than this), and I just didn't have time to go back and revise for better style. I'm grateful that the discussion has allowed for these further amendments and clarifications, though.

No worries on the tone... I'm a bit of a ranter myself.  I think it's sometimes good to fire off a bit every now and then (if only for the catharsis).  

I do agree that Bush did plenty during his presidency that I find objectionable, including his treatment of enemy detainees.  He always seemed to err on the side of pushing his way through with little consideration of the consequences.

I think these kinds of discussions are worthwhile (I always learn something from them).  But, I regret that I have to sign off for the day.

great thread everyone. I am more of kerFuFFler's opinion. Hypocrisy is the price that vice pays to virtue. To bring it to a more practical level, if someone abducted my child and I knew that they did and I got hold of them I would not hesitate to torture whatever truth I could get out of them and face whatever legal consequences I might.

I foresee the day the US will present evidence of torture to a country like Syria, and they will simply hand over our legal justifications. Good job Dick.

The author distills his question to "Was the administration right to believe that militant Islam posed (and perhaps still poses) an existential threat to the United States?"

If this is all the matter of torture can be ultimately reduced to, then I do not understand the difficulty. Obviously, an EXISTENTIAL threat would require that the very existence of the United States be threatened, not merely a threat of harm or disruption, or even serious damage. An existential threat is a threat to the existence of the entity.

The terrorists, however heinous in their intent or nefarious in their plottings, never posed a threat to the existence of the United States, so the dire circumstance that might bring the urgent necessity of torture into question never could have arisen.

Damn Linker fails to satisfy the necessary conditions of his own argument. Thus, it is not necessary to consider virtually anything else he has become so vexed over.If torture has been committed, it cannot be justified by the any real threat of existential harm.

This is just special pleading for criminals. We do not need to know their intentions or their self-justiviications to apply the law fairly. They have broken the law, and they should be prosecuted in the name of justice. Justice is not retribution. Nor is it idle recrimination. We should stop pandering to sloppy justifications for very well-defined crimes and get on with the normal application of the law.

It is easy enough for liberals to indulge in self-righteousness attitudinizing over the alleged sins of the Bush administration.  Unlike those they criticize, liberals are not responsible for outcomes.   To paraphrase a great poet, they make mock of heroes who guard them while they sleep.

In fact what is impressive about the controversial memos is the lengths to which they went to put constraints on interrogation techniques. The memos should not require apology.  Under the circumstances the authors did a reasonable job in carrying out their duty to protect our country.

Try to put aside knee-jerk reactions and read the memos with an open mind.   Try to put aside the bumper sticker slogans of the left and see things in some sort of perspective.

I note that the senators and congress members now making a lot of noise knew about the interrogation at the time and made no objection.

To call for prosecution of patriotic officials for doing the best job possible under the circumstances amounts to criminalization of political differences.  Apparently Obama's desire to make the US more like other countries includes a desire to reduce the US to the level of a banana republic.

Bulbman, the memos were a mistake, legalizing torture is insane. Have you ever heard of "don't ask, don't tell." Would anyone believe Zabudayah or any of those mutts?

With all due respect blackton, I don't think you're qualified to second-guess the people who ordered the interrogations.   Not unless you have a lot more information than I think you do.

The enhanced interrogation techniques that were used on the like of Zabudayah fell far short of full-fledged torture as it is routinely practiced in Muslim, communist, and third world countries.  Read the memos and see for yourself.  Context matters.  The techniques employed by the CIA interrogators would not be allowable in a routine criminal case.  But it is a different matter when there is an imminent threat of terrorist attack, which the authorities had every reason to believe there was.

In making a big deal of the memos the left is playing political games with national security.  It amounts to lending aid and comfort to the enemies of this country.

I know you don't intend to do that.  But you need to reflect on the consequences of your actions.

By the way Damon Linker's article is excellent.   I hope the president reads it.

Bulbman, Obama is not "calling" for prosecuting anyone -- to the contrary, he has effectively immunized whole groups of people involved in all this. Some cases he has properly left to the attorney general, who might or might not investigate (let alone prosecute), presumably based on some application of normal legal criteria. For Obama to do otherwise would be to politicize the operations of justice, which I've think we've had quite enough of in the last few years. If the torturers were really doing their patriotic best under difficult circumstances, it's very unlikely the DOJ would try to prosecute because they know they wouldn't get convictions. That's just normal good practice.

What is not good practice is prejudging people's actions without knowing the facts. You ding blackton for that, yet without any more facts than he has, you go on to assert all kinds of things about what happened here and the motives of the people involved. So your own reactions are at least as "knee-jerk" as anything you're criticizing. The one thing that's actually certain at this point is that we haven't heard all the facts yet, and that later reports have proven worse and more disturbing than earlier ones. There's also, reportedly, an internal DOJ report -- prepared while Bush was still in office -- in which the work of the DOJ lawyers is sharply criticized. Maybe you could wait to acquit them until we at least hear the results of their peer review?

Two other points: "Unlike those they criticize, liberals are not responsible for outcomes" is useless -- total question-begging. The mere fact that someone's responsible for something can't possibly authorize any and all means of achieving it, especially in a constitutional system. Any tyrant could lay claim to that defense, and many have.

Second, you say the memos carefully limited what could be done. Guess what -- so did memos written by the Nazis, and presented in their defense in a war-crimes trial in WW II Norway. See Andrew Sullivan's blog today for the details: If anything, the limits in the Nazi memos were MORE restrictive than our guys'. So if you think that claiming to set limits reflects some kind of unique American virtue, that's just because (again) you're prejudging the case, instead of weighing the actual facts against the actual laws and treaty obligations under which the U.S. claims to be governed. A memo authorizing "this much" torture is still a memo authorizing torture, as the court found in the Nazis' case. It can't be that the death penalty was appropriate there, while celebration of the person's "patriotism" and elevation to higher office is appropriate here, on essentially similar facts. I'm in favor of at least looking for some middle ground.

Certain actionable intelligence:  There is a fair amount of speculation above about what we might or might not learn or have learned torturing Russians during the Cold War or al Qaeda in the recent past. Speculative at best.  But there is no question that during World War II we captured many enemy officers some of whom could have provided intelligence that would have save significant numbers of American lives and likely of civilian lives.  Why didn't we torture them?  We were not even then bound by the various treaties on torture that did not come into being until after World War II.  Under the theory that actionable intelligence justifies torture, we would be more or less obliged to torture all enemies, legal, illegal, whatever, who might possess actionable intelligence because we cannot know whether they do or don't until we torture them.  And then we have to keep on torturing, as in the case of the hundreds of waterboardings of al Qaeda, because we cannot know whether we have broken them until they have given us actionable intelligence.  We don't do this for the simple reason that we don't want to live in a world where there is accepted because we understand that any regime that routinely engages in torture will inevitably expand the occasions and justifications for torture until it is a police state.  Police states have real enemies, lots of them, and hence lots of practical justification, of the same kind urged for torture, for being a police state. You either believe that a police state is fundamentally incompatible with human rights or you don't.  There are no liberal democracies that routinely practice torture or institutionalize it.  I believe this reflects our awareness that the heinous practice and liberal democracy cannot coexist for very long.

The ticking bomb:  This hypothetical is routinely used to make the moral case for torture but, in the real world, almost never occurs.  Almost everyone who opposes institutionalized torture will agree that if you pose the facts in a particular compelling way -- the individual who is know to have the information that could prevent the slaughter of thousands -- that they would torture that individual to prevent the loss of thousands of lives.  The hypothetical proves almost nothing both because it doesn't actually happen and because, if it ever does, we don't need laws to tell us what to do or what our leaders will do.  Everyone will do the same thing under those circumstances, regardless of the law, and we all know it.

Institutionalization and extra-legality:  All adults understand the possibility of circumstances so extreme that normal rules cannot be applied and that there is no acceptable means of figuring out what would be done.  In circumstances so extreme, you vary a detail here or there and you get an extremely different outcomes.  We do not plan for such circumstances in law.  We leave them extra-legal, with possible legal sanction, precisely because that is the only means that we have for distinguishing the truly extreme case from all others.  The moment we begin to institutionalize actions justified by such extremity is the moment that the circumstances that permit such actions begin to cease being extreme.  In our legal system, we already have a means of coping with this:  jury nullification, the ability of the jury completely to ignore the law and acquit on extra-legal moral grounds and have that verdict be final and binding.  But we resolutely refuse to instruct juries that they have this power because we know that as soon as we explicitly condone it it will be deployed much more frequently than the extreme cases to which we want the power reserved.  (I owed my understanding of this to my criminal law professor, Yale Kamisar, who wrote the seminal article on jury nullification and mercy-killing.)

You know, on a slightly different point, I'll bet that out of any five Americans you find defending torture, four of them are Southerners or grew up in the South. Not that that has any bearing on whose arguments are right, but I do think that there's something cultural here -- that the South has always harbored a disproportionately greater tolerance for violence as an instrument of policy, along with hyper-nationalism and a greater suspicion of foreigners (especially those of with less than lily-white skin tones), and that these qualities very likely informed George W. Bush's interest in torturing people as well as that of at least some of his collaborators. Maybe not the authors of the torture memos, I don't know -- but then again, their contributions could be equally well explained as mere shameless careerism.

Bulbman-

1) Patriotic official torturing enemies of the state are heroes

2) We can assume so, because those heroes have access to information we don't have.  

3) Furthermore, those who disagree with the above are lending aid and comfort to the enemy...

Who's en route to banana republic status, again?

Don't get me wrong, I'm not saying that torture is always off the table (though I find it hard to imagine a scenario where it makes sense).  What irks me about the discussion is the refusal to call it like it is-- that what we were doing was beyond the pale, and then make the argument that it needed to be.

--jt

Thank you Roi.  In a thread of very thoughtful comments, Roi's last post is the most useful not only because it does not depend on an attempt to judge the facts regarding the nature of the Al Qaeda threat and whether torture was necessary to avert that threat, but also because -- well, I wholly agree with his philosophical/legal analysis.  There appears to be a broad consensus that the moral proscription of torture is not absolute -- that there conceivably are circumstances in which torture could be justified.  But we cannot explicitly build such a potential exception into law or public policy.  We cannot try to define in advance what the exceptional circumstances would be, for the reasons that Roi so ably articulates.

To put a little more flesh on the "jury nullification" concept, imagine a scenario in which a man is tried for the mercy killing of his elderly wife who is terminally ill and is in terrible pain.  On the law and facts, the man is guilty of first-degree murder.  But a jury might nevertheless aquit the man under the circumstances.  A jury has that power, a power called "nullification," even though that power is not prescribed in the Constitution or any other govenmental document.  In fact, in most jurisdictions it would be considered misconduct for the defense attorney to tell the jury that it has the power of nullification.  To tell juries ex ante that they have this power could lead to essentially standardless trials.  But the power is there to be applied in rare, compelling circumstances.

I agree that the concept of nullification can be applied to torture.  To do that, however, requires that there be some process for accountability.  You can't leave it to the Cheneys of the world to exercise their own discretion, in secret, as to when torture might be appropriate, any more than you can let the mercy-killer go without a trial.  Government leaders have to know that they will be held to account, and that some objective tribunal will decide whether the torture was jusfified, even though it was illegal.  

So, I understand Obama's reluctance to put the nation through another distracting show-trial as occurred with the Clinton/Lewinsky affair.  But there needs to be some way for the nation to evaluate what happened and to hold the prior administration accountable for it, even if the process ultimately results in "nullification."  It should not be Congress.  That would be too politicized.  It should be the Justice Department or, even better, a special prosecutor who is respected and known to be non-partisan.  

Roid: on Institutionalization and extra-legality I could not agree more. The whole freaking point about black ops is that they are secret. You know, I am absolutely convinced that there have never been any ET's visit earth because the clownish Bush crew would have left a paper trail a mile long.

As I said before, I am perfectly happy that these mutts were tortured and I would have been perfectly happy not knowing about it.  I am astounded that people are complaining that the release of legal memos should be kept secret, as though the executive branch gets to decide what is legal or not. If the Bushies had 1/4 of a brain they never would have authorized it officially, and sure as hell never left a paper trail. They left no plausible deniability. What should have happened is that these 3 mutts could have been tortured and no one would have ever known because they would have known it was illegal.

Good lord, the US mafia has done a better job of keeping secrets. The Bushes seem to be far more interested in arguing they were right then doing it right (from their perspective).  

Bulbman, I think I am qualified to second guess these people, not for ordering the procedures (or better turning a blind eye as they were done) but for not keeping their idiotic mouths shut. For anyone, it is the not knowing that is best, but they up and went and advertised what they did and would do, making it far more likely some high value mutt would blow his brains out as being better to torture. Can't you see it is better if they think America doesn't do so?

Blackton, I think you misunderstand Roi.  I do not think he is suggesting that the perceived moral depravity of a detainee justifies torture, or that there should be no accountability for the use of torture.  To the contrary, I think he is suggesting that positive law should contain no exception to its proscription of torture, and that whether any particular instance of torture is to be excused can be decided only ex post and on a case-by-case basis.

Several things occur to me reading the posts of dhurtado and blackton above.

I certainly do not believe that the moral depravity of a detainee can be used to justified torture.  I believe that there are extreme circumstances, life and death circumstances, of the most exigent kind where the need to survive can justify actions that otherwise could not be morally justified.  One of them is the perhaps absolutely hypothetical "ticking bomb" case.  We can surely hypothesize others.

The fact that we cannot and should not attempt to codify these extraordinary moral exceptions goes tothe nature of law itself.  Law is not written as long lists of hypotheticals with the decision in each case.  It cannot as a practical matter be written that way although it is commonplace to use hypothetical examples as an aid to meaning and we, as a common law country, make constant reference to examples, precedents, and generally consider them to be of more value in understanding what law means than the words themselves.  When we write positive law, we write down a rule.  Due to the limits of imagination and language, the statement of the rule is always flawed in the sense that it will not absolutely lead to the outcome we intend (leaving aside completely the problems with intention and of collective intention -- except for Antonin Scalia who is able to discern the true intentions of all people, past, present, and future, most particularly the Framers) when applied in all cases or will not lead to the conduct we intend if observed in all cases.  This "flaw" if you will is inherent in the undertaking.

We certainly do not want more "error" than necessary, but we also cannot spend endless time and resources trying to prevent such error.  It is not possible in any case and would be a waste of resources to attempt it past a certain point.  

The relatively easy to accept "ticking bomb" hypothetical tells us that the absolute prohibition of torture is morally flawed.  However, historical experience (much of it exceedingly grim) and a bit of wisdom about human nature teach us that trying to write law that corrects this moral flaw leads to much worse problems, the proliferation of many more errors of an often much worse kind -- the torture of innocents and even the torture of the guilty when nothing can be accomplished other than inhuman suffering itself.  To be technocratic about it, the absolute prohibition leads to an extremely rare occurrence of false negatives -- cases where the prohibition applies but we don't want it to.  But the alternative of trying to write a law to accommodate this leads to many more false positives -- cases where torture is used and we don't want it to be -- potentially enough to undermine the entire concept of a society based on human rights.  While bloggers and Dershowitz's may find it interesting to speculate about these as "moral issues," they are not really that interesting because we pretty much all agree about the ticking bomb and are right to be extremely uncomfortable about it because we see where it could lead us.  Anything, like Dershowitz or Linker, that purports to make us more comfortable is a disservice, and intellectually pretentious to boot because the issues involved really are not that hard to fathom.

I agree with Blackton that part of what makes the tension between law and morality bearable under extreme cases is that we hide our eyes, and the Bushies were criminally inept not only for exceeding the bounds of what might even arguable have been justified, but in failing so miserably to provide the appropriate social cover, the cover we need in order to sustain our commitment to law as an essential tool of human rights without thereby compromising our right to survival.  One of the things the absolute prohibition actually means -- although again we cannot so say -- is that, if you must do this, you must be able to do it with extreme secrecy.  This not only protects the institution of law, it assures us that the exceptional cases will be extremely rare and reflect the most extreme duress because it would otherwise quickly become impossible to maintain the obligatory secrecy.  

The last thing that occurs to me is how profoundly pathological the Bush administration was, as if we really needed more evidence.  They weren't merely inept in conducting themselves so that secrecy was impossible, they were affirmatively trying to make this activity not secret by involving a wide circle of actors and committing everything to paper.  That's because they, at the highest level, didn't really believe that torture is generally impermissible.  They believed that the president can legitimately do whatever he so much as claims to believe is in the interest of state security.  In another time and place, these people, especially Cheney and Rumsfeld but the hapless Bush as well, would easily have become Robespierres, Lenins, Stalins, or Eichmanns.  It is only, in my opinion, the inertia of the American commitment to human rights that prevented them from achieving their desire to become so.  Viewed from that perspective, the documentation and "hidden in the open" secrecy were a very understandable part of a deliberate strategy of de-sensitizing American opinion to the most extravagant claims about presidential power.  That's how you suborn the public will to resist oppression, not with immediate confrontation -- even Hitler did not dare that -- but with salami tactics designed to lull people into the sense that it all makes sense and is all merely for the purpose of keeping them safe.  What makes them peculiarly pathological, and here again Cheney is the major culprit, is that they were more committed to the expansion of presidential power against other sources of democratic authority than they were actually to the successfully prosecuting the fight against our enemies.  For these proto-fascists, the real threat was merely the occasion for the expansion of presidential power rather than the expansion of presidential power being a necessity to meet the real threat.

I do hope that we as a nation are on the verge of a Watergate moment in which the public disclosure of official misdeeds "gets out of control" and leads to a public investigation the end result of which is the conviction and sentencing to prison of, at the very least, Cheney, Yoo, and Bybee.  I leave out Bush and Rumsfeld only because I am somewhat less persuaded of their malign intentions.  In the case of Bush, stupidity really is a defense.  In the case of Rumsfeld, I am somewhat more inclined to believe that his bona fide intentions were principally to neutralize real threats, that he had not much interest in the questions about the proper exercise of government power, and that he was led into profound error by the admittedly toxic combination of his extreme hubris and his disposition to an ideological view of the world.  Bush and Rumsfeld, on the other hand, might well be guilty of the war crime of aggressive war, depending on what they really knew and did not know about WMD's in Iraq.  But who knows what might emerge if Cheney et alia are prosecuted for torturing.  They might just spill the beans.

Journalists and congressional committees (like Armed Services) are finally on this case, and the facts are starting to come out quickly now. One thing we're learning -- and it's consistent, I think, with roi's point -- is that a torture "program," like any government program, is necessarily formulated and carried out via a bureaucracy, with all the ineptitude that that implies. According to the latest reports, some of the Bush efforts were just clownish when they weren't recklessly negligent, with people not aware what they were approving, memos raising objections going to the wrong agencies, responsibilty passed back and forth (the CIA saying it's relying on the DOJ, the DOJ saying it's relying on the CIA), and, incredibly (yet not surprisingly), torture techniques used in training the military to *resist* illegal torture being mistaken for legal -- and allowable in the real world -- because they were used in training the military. You have to figure that the people carrying out a bureaucratic program are not going to be Jack Bauer-esque heroes, they're going to be political climbers, brainless bureacrats and ass-covering hacks. So you need to ask not only whether the techniques are moral in some abstract sense, but how moral they're likely to be in the hands of people like these.

outstanding roid. copy and paste everywhere. I don't agree with your final paragraph as much but your reasoning throughout was superbly stated. I don't agree with calling the Iraq war a war crime, the prosecution of it was mindblowingly inept tis true, but I feel that Saddam Hussein was a true war criminal, and that there need be no other justification than that to bring him to justice. I understand why you feel otherwise, but is far more problematic Weighing legalistic terms against Kurdish genocide, or mass murder.

It is a shame we couldn't get you on Fox, you would destroy those idiots in 5 minutes if given the opportunity. The thing that bothers me is I am genuinely open to a Conservative argument, but all I hear is horseshit from them.

Blackton,

Just so you don't misunderstand, I have no brief for Saddam Hussein.  He was a monster, a criminal, a ware criminal, a genocidier, and a sadist MF who got no less than he deserved.  But many Iraqi lives were lost deposing him.  That may be a price the Iraqi people would have paid willingly, but we don't really know.  I am not persuaded that it was for the United States to decide that the price Iraq would pay was worth it.  Nor am I persuaded that there were not other means, through the Int'l Court of Criminal Justice for example, of getting rid of him if the West had resolved to do so.  This was made more difficult, if not impossible, however, by the attitude of the US toward other nations who would have had to be persuaded.  Withal, the UN Charter does not permit war other than under two circumstances:  (1) self-defense, including collective self-defense, and (2) as authorized by the Security Council.  There is also an emerging but not codified doctrine in international law of humanitarian aid, what might be called "defense of another," something that in criminal law is a defense to murder.  Even the Bush lawyers and the British AG did not believe that there was an argument to be made on behalf of self-defense.  Thus, in the same legalistic manner that we see at work in the torture memos, they concocted the legal fiction that the Security Council had authorized the 2003 war back in 1991.  I won't bore you with the reasons why that claim doesn't hold water.

Even if one thinks Saddam Hussein was justly deposed and that war was necessary to achieve that, it is difficult to argue that the US rather than the Security Council was entitled to make that decision.  If not, then, particularly if Bush was knowingly falsifying the case regarding WMDs in order to try and bring the war under extant Security Council resolutions, the Iraq war would be an aggressive war.  Whether one thinks the crime should be prosecuted -- it mostly is not -- is another question.

Me arguing with Roi about most things is a fool’s errand, I find, kind of like Thales Leitis stepping into the Octagon with Anderson Silva, let alone me trying to make a case for torture. I am confident that I may soon have my head handed to me, but here goes regardless, as on paper I am fearless.

I note Roi’s saying that “ But there is no question that during World War II we captured many enemy officers some of whom could have provided intelligence that would have save significant numbers of American lives and likely of civilian lives.” I take from that some recognition torture can yield information. Then I find conflation in Roi’s argument. Actionable intelligence merges with life saving information in some exceptional circumstances, the former diluting the latter and overloading the issue. Thus diluted the issue is presented as we have to keep torturing al Qaeda repeatedly because someone will know something, when that is not the issue. The issue is the exceptional, occasional use of torture in highly circumscribed circumstances, regulated and judicialized. That liberal democracies do not engage in torture, if they don’t,  is to my mind not that warrant. The asymmetrical means of ideologically fanatical terrorists, rooted I explosively growing technology, is something relatively new under the sun. Nations are growing into dealing with the problems those means portend including the delicate balancing of civil liberties against security.

The next problem I find with Roi’s argument is the leap from such a narrowly defined and scrutinized procedure to the inexorable descent into a police state. Where is the warrant for that necessary conclusion? Or are we being presented with a false opposition: liberal democracy as against a police state because of torture? My understanding is that Israel engaged in torture during the second Intifada with public and political approbation and functional result.

I agree with Roi’s observation that the ticking time bomb, particularly in its most stark formulation, is such a rarified instance that nothing really flows from it. But it does contain the seeds for both a utilitarian and a principled rationale for torture—that at a certain conceivable point life threatening danger outweighs repugnance, what might be gained outweighs what might be lost. The next step from that rarified example is the dispersal of its moral weighing to less rarified instances: a car bombing in a market; a hospital; a nursery school; an old folks home; a subway; a night club and on and on. Is one prepared to say too readily in the face of the multiplication of these instances, which do not rest on sophisticated technology, and in contemplating other mind numbing instances represented by weapons of mass destruction such as dirty bombs, that no avail will be made of torture. If one is not to ready to say that, if one can entertain the prospect of its use in such instances, while holding confident as to the survival of liberal democracy, the other issues present themselves.

The imaginability of these instances leads me to dissent from Roi’s assertion that constitute necessarily “circumstances so extreme that normal rules cannot be applied and that there is no acceptable means of figuring out what would be done.” I dissent for a number of reasons. Firstly, I don’t find what I have described in the examples above such extremity as to be virtually de novo each time. And while I agree that they are so extraordinary that normal rules cannot accommodate them, I disagree with the implication that we cannot devise a legal framework in which can articulate the general criteria, rules, burden of persuasion, invigilation, safeguards, oversights, reviews,  etc. necessary for the awful but just weighing and balancing of the competing values in the interest of circumscribing the process coupled with the interest in saving life where that may be possible.

That being so, I don’t take in the observation that we leave these cases to extra legal implementation. Rather than repeat the arguments for this that have ben put better than I can, I will simply provide a quick link to an example of these arguments: www.npr.org/.../story.php. Again with all due to respect to Roi, for whom my respect is obviously considerable, I don’t follow the leap from having such a procedure in place to it necessarily metastasizing.  I would worry more about that on the model of torture’s extra legalization, if I can put it that way. And I don’t agree that jury nullification is an answer. If a society takes a decision to torture, then let it be clear about it, put its morality and legitimacy behind its legality and not trust the excusing of outcomes it desires through means it tolerates to the possibility of jury nullification.

I will leave my comments here though Roi and others have said many other interesting and note worthy things.

Me arguing with Roi about most things is a fool’s errand, I find, kind of like Thales Leitis stepping into the Octagon with Anderson Silva, let alone try to make a case for torture. I am confident that I may soon have my head handed to me, but here goes regardless, as on paper I am fearless.

I note Roi’s saying that “ But there is no question that during World War II we captured many enemy officers some of whom could have provided intelligence that would have save significant numbers of American lives and likely of civilian lives.” I take from that some recognition torture can yield information. Then I find conflation in Roi’s argument. Actionable intelligence merges with life saving information in some exceptional circumstances, the former diluting the latter and overloading the issue. Thus diluted the issue is presented as we have to keep torturing al Qaeda repeatedly because someone will know something, when that is not the issue. The issue is the exceptional, occasional use of torture in highly circumscribed circumstances, regulated and judicialized. That liberal democracies do not engage in torture, if they don’t,  is to my mind not that warrant. The asymmetrical means of ideologically fanatical terrorists, rooted I explosively growing technology, is something relatively new under the sun. Nations are growing into dealing with the problems those means portend including the delicate balancing of civil liberties against security.

The next problem I find with Roi’s argument is the leap from such a narrowly defined and scrutinized procedure to the inexorable descent into a police state. Where is the warrant for that necessary conclusion? Or are we being presented with a false opposition: liberal democracy as against a police state because of torture? My understanding is that Israel engaged in torture during the second Intifada with public and political approbation and functional result.

I agree with Roi’s observation that the ticking time bomb, particularly in its most stark formulation, is such a rarified instance that nothing really flows from it. But it does contain the seeds for both a utilitarian and a principled rationale for torture—that at a certain conceivable point life threatening danger outweighs repugnance, what might be gained outweighs what might be lost. The next step from that rarified example is the dispersal of its moral weighing to less rarified instances: a car bombing in a market; a hospital; a nursery school; an old folks home; a subway; a night club and on and on. Is one prepared to say too readily in the face of the multiplication of these instances, which do not rest on sophisticated technology, and in contemplating other mind numbing instances represented by weapons of mass destruction such as dirty bombs, that no avail will be made of torture. If one is not to ready to say that, if one can entertain the prospect of its use in such instances, while holding confident as to the survival of liberal democracy, the other issues present themselves.

The imaginability of these instances leads me to dissent from Roi’s assertion that constitute necessarily “circumstances so extreme that normal rules cannot be applied and that there is no acceptable means of figuring out what would be done.” I dissent for a number of reasons. Firstly, I don’t find what I have described in the examples above such extremity as to be virtually de novo each time. And while I agree that they are so extraordinary that normal rules cannot accommodate them, I disagree with the implication that we cannot devise a legal framework in which can articulate the general criteria, rules, burden of persuasion, invigilation, safeguards, oversights, reviews,  etc. necessary for the awful but just weighing and balancing of the competing values in the interest of circumscribing the process coupled with the interest in saving life where that may be possible.

That being so, I don’t take in the observation that we leave these cases to extra legal implementation. Rather than repeat the arguments for this that have ben put better than I can, I will simply provide a quick link to an example of these arguments: www.npr.org/.../story.php. Again with all due to respect to Roi, for whom my respect is obviously considerable, I don’t follow the leap from having such a procedure in place to it necessarily metastasizing.  I would worry more about that on the model of torture’s extra legalization, if I can put it that way. And I don’t agree that jury nullification is an answer. If a society takes a decision to torture, then let it be clear about it, put its morality and legitimacy behind its legality and not trust the excusing of outcomes it desires through means it tolerates to the possibility of jury nullification.

I will leave my comments here though Roi and others have said  many other interesting and noteworthy things.

Sorry: the "warrant" that I mention in the first pargraph refers to a warrant for the proposition that the circumscribed use of torture leads necessarily and eventually to a police state, as I understand Roi's argument.

roid, I am in almost complete agreement with your argumentation. However, I would not go so far as to charge Bush, Cheney (well, maybe Cheney), Yoo and Bybee a war crime for having invaded Iraq; and, I don't share your hope, or wish:

"I do hope that we as a nation are on the verge of a Watergate moment in which the public disclosure of official misdeeds "gets out of control" and leads to a public investigation the end result of which is the conviction and sentencing to prison of, at the very least, Cheney, Yoo, and Bybee."

I just think you go too far in hoping for something that, no matter how justifiable, probably in the end would have a negative result in sowing the wind of widespread discontent and bitterness along sectarian lines. We have had enough of that. Perhaps some of the individuals should be charged with lesser offenses of the law, tried and convicted (or tried and acquitted) by a jury. Or, Presidential pardons could be granted at some point. I don't want vengeance, nor do I want an example made of the individuals, for the same reasons.

Otherwise I am so grateful for your carefully and well argued positions. I am printing out this thread to keep for future reference, and ammunition.

basman, I'm surprised you follow ufc fighters' matches and reps, if indeed you do. Good analogy, though.  ;-)

Tom

I do and saw UFC 97 in a a sports bar last sat. night.

."...Good analogy, though.  ;-).."

Well thanks a lot!

:-)

Mind you Thales Leitis is no slouch.

basman:

"Mind you Thales Leitis is no slouch."

No, certainly not, but Anderson Rules! He is truly awesome. I don't watch so often any more but the last time I saw Silva (I forgot the opponent) I shuddered to think what it must be like to face him. Still do.

Frankly, I miss Pride. Their shows perhaps weren't as exciting as UFC's are now, but I prefer the traditional ring to a cage fight. More interesting and entertaining, imo (also usually longer).

Pride was before my MMA interest was aroused.

Didn't it have 10 minute first rounds?

Silva is maybe pound for pound the best MMA guy on the planet, though some argue for GSP. They are already talking up a fight between them with GSP going up to 185. I can't see it, though I think GSP is fantastic. At 185 he'll go the way of BJ Penn at the hands of GSP himself. Silva reminds me of Michael Jordan, Tiger Woods, Wayne Gretsky, and even more so Sugar Ray Leonard, athletes of that super stature who have a whole field way of conceiving their contests while in them. People poo poohed Anderson's fight against Leitis, but I was happy it went 5 rounds with Silva doing 25  minutes of technically brilliant fighting with Leitis essentially running away from him and flopping on to the ground to avoid him.

What amazes me is that Silva demolished Dan Henderson who moved down to a middle weight from being a light heavy weight to fight him. Truly, The Spider is something else

I know some guys, and of my post modern daughters too,  who you'd never think would care about MMA who are just digging the hell out of it essentially because of Silva.

Not for nothing is David Mamet all about MMA, though prisses will say sardonically "it figures".

basman, good rebuttal, I just have a couple of observations. One, the situation between Israel and the US are far too different. Israel is an exceptional case, a bastion of civilization in a sea of oligarchies, facing a daily threat to their own survival. America is nothing like that. The day when boarding a bus means taking your life in your hand then we can revisit that angle for Americans.

I disagree with you about making torture legal. The point of black ops is for it to remain secret and fearsome. If the United States could kill Nasrallah tomorrow without anyone knowing who did it, I would be happy. Telling the world the extent that which you will go gives these people the option of killing themselves or further compartamentalizing. As it is, I simply can not forsee an example wherein we need legalized torture that would outweigh the harm done to our prestige and standing in the world. Abu Ghraib set America back years. And for the life of me I can't see how what was done there is worse than what was done in Gitmo. It wasn't legal, it was lawless. But if it were in the hands of a group of people, such as though featured in Munich, and those people no further, no one would have known anything and it would go no further. And if we can't keep such things as that secret, than what can we?

And I think Dershowitz's  theory of prevention is just nutty. Free will is a hell of a lot more complex than he imagines. Once you go down that road, there is no end. Time and again we are confronted with "he seemed like such a nice guy." Even such things as "I saw it coming" can boil down to "he yelled at me for running over his dog, I should have known he would rob that bank one day." Prevention to the extent he lays out implies an omnipotence people just don't possess. Killing Nasrallah, fine, we know he is a rat bastard.  

Skipping back to the topic at hand, the idea is that we should not codify exceptions to the prohibition of torture.  Nor should we want interrogators to act in secret upon their own determinations that some exception to the prohibition of torture applies.  Either of those eventualities will lead, if not to a police state, to the increased use of torture, including the use of torture in circumstances that do not fall within the defined exceptions.  To the extent some version of jury nullification could be applied, you cannot announce in advance that jury nullification is available.  The point of jury nullification is not that mercy killing is legal, or that killing someone who killed your child and got away with it is legal, but that those illegal actions might be excused in certain circumstances.  But we would not write a criminal statute prohibiting first-degree murder to contain exceptions for mercy killings or for killings to correct a miscarriage of justice.

I cannot accept that extra-legal but excusable torture should take place in secret.  In that case, there could be no evaluation of whether the torture is excusable other than by the perpetrator(s) of the torture.  With no way to judge whether the torture is excusable, the result will be that all torture is excusable as long as it is kept secret.

I don’t really understand the distinction that basman draws between “actionable intelligence” and life-saving intelligence.  It certainly is not a distinction I was trying to make.  Nor was I suggesting that it is never possible to obtain useful information by torturing someone, although it seems that in most instances it is not as, except in the “ticking bomb” case or in the midst of ongoing battle, call it the “German officer case,” it is not possible immediately to verify the consequences of the information and the longer the torture confrontation goes on the more likely that any valuable information gets swamped in nonsense.  We actually had actionable domestic intelligence about the impending 9/11 attack, we just couldn’t separate the wheat from the chaff in a manner that would permit a response.  The signal was lost in the noise.

So, let us just allow that torture could yield life-saving information – or call it actionable intelligence or something else, the nomenclature matters not – although many times torture will not yield such information.  How many people are to be tortured in order to get some such information?  The entire premise of the ticking bomb hypothetical is that the particular individual is known with virtual certainty to possess information that will save the lives of many people.  That is exactly why it is in real life a meaningless hypothetical – the particular predicates virtually never occur.  In real life, it is not know who may possess information that can save lives and thus it is necessary to torture many people who will not be able to disclose anything useful.  Worse, we will often not know whether they are disclosing anything useful.  That was my point about the necessity of continuing to torture them, which basman dismisses for no reason that I can see.  But that is exactly what happened with the al Qaeda captives.  We kept torturing them because there was actually no way of discerning that they had disclosed what they knew.  Indeed, until you start torturing them, you don’t know whether torture will yield more useful information and even then you don’t know.

This is why basman’s “utilitarian principle” is anything but.  It is a cannot be utilitarian because that implies, indeed necessitates, a connection to real world circumstances that almost never exists.  We can right rules that attempt to codify the exceedingly rare case, but I don’t think basman is prepared to assert that the existence of such a permissive rule is not going to lead to multiple instances in which the rule is broken, extended to cases to which we do not intend it to apply, or the torture turns out to be useless or the torture cannot be stopped because we cannot discern whether it has reached the end of its utility.  That is a very odd definition of utility, one that is rooted in television fantasy.

That is not to say that circumstances can never arise in which moral actors, aware of both the exigent circumstances and the absolute prohibition, none-the-less deem torture a moral necessity.  To me, it makes that most sense that they have to consider the circumstances so dire that the overcome the prohibition.  If I were somehow in such circumstances, I believe I would do what morality required in spite of the personal risk.  That is the whole point of insisting on extra-legality:  we cannot fashion a rule that will not be abused and we can best limit the odious practice to the rare case of necessity by exposing would-be torturers to personal risk of judgment and punishment if they are held to account and if they cannot persuade of the absolute necessity.

For this same reason, I cannot make sense out of dhurtado’s insistence that torture not be something that occurs, if it occurs, in secrecy.  We either institutionalize the practice or we don’t.  If we are to have some organized process of determining, after the fact, whether the torture was an absolute necessity, we are necessarily going to have a rule of decision – other than jury nullification. I suppose we could demand that, if the government uses torture the torturers must then present themselves for judgment, but that is not going to occur.  If the practice is not institutionalized, then it will be conducted, if at all, in the utmost secrecy.  There simply does not exist in the real world some alternative of partial or conditional institutional sanction.  In my view, the only safe course is to maintain the absolute prohibition, as we do with murder, while recognizing that sometimes we are going to make a moral judgment that the technically guilty murderer or torturer should not be held to account.  That will occur under circumstances that we find morally compelling, and part of the compelling nature of the circumstances will be the very fact that the actor regarded the circumstances as so compelling as to be willing to proceed in spite of the persona risk.  I simply do not see how we can do any better than that without opening ourselves to terrible consequences.

As for my contention that liberal democracy and institutionalized torture cannot coexist, a long philosophical argument could be made, but it would be beside the point.  They do not co-exist.  Israel took some steps down that path, under exigent circumstances, but was rescued by its Supreme Court.  We cannot run social experiments to see whether a liberal democracy can institutionalize torture and survive, but if basman thinks such a thing is possible, he owes us an explanation for the empirical fact that torture is only institutionalized in police states, totalitarian states, and criminal states.  Is this but a coincidence?  Has no liberal democracy ever been in the position where torture might yield useful information?  Does no liberal democracy expect never to find itself in such a situation?  Are we actually willing to enact the Bush torture memos into law?  I find that impossible to imagine.  

I think basman’s argument fails because it is merely logically sustainable, but bears no useful relationship to the real world.  In the end, he has not only not answered the question I posed about why we did not torture German officers although surely that would have resulted in useful information in the heat of battle.  He  didn’t even attempt it; he just passed it by.

Gee whiz.  I am amazed when I read back and see my own typing and grammatical errors and sentences where the end gets too far from the beginning.  Sorry for that.  I will try harder.

I wish to go back to an important point that is too easily lost:  Whether it is possible to institutionalize torture in some limited way that has a logical, enforceable, morally sustainable stopping point.  I don’t believe it is.

Basman contends that there are a number of situations we can imagine in which the need is urgent and life-saving information could be had through torture.  Of course, it is possible to imagine endless numbers of such situations with all sorts of variations on the theme.  But how realistic is the “ticking bomb” scenario?  How likely to occur?  It posits a known and immediate, specific threat to many lives and a captive who is known to have the information necessary to prevent the attack.  That is surely an extremely unlikely confluence of circumstances.  Far more likely is a captive who might have information about possible threats.  So, if we begin to relax the factual conditions of the ticking bomb scenario, what do we do?  How immediate and specific does the threat need to be?  How certain must we be of the identity of the captive?  How sure that the captive has information that, if obtained, would prevent the harm?  We don’t really know.  Do we torture him just to find out?  And how do we know when we have found out?  It is clear if we get information about a specific threat and can then verify it?  But how does the captive under torture prove the negative, that he knows nothing of interest?

This is particularly so since we have no reason to think that the enemy is stupid.  Do we brief individuals on all the crucial particulars of operational plans and then send them out perhaps to be captured?  Or do we carefully limit the information we give to each participant in order to prevent the operation from being compromised?  And do we keep the key planners in the rear or place them on front lines?  Do we keep important pieces of the plan contingent until very late precisely so that no one can know them or do we make grand plans, print up the details, and distribute them to everyone who has some role however minor?  And if someone who knows all of the critical elements of a plan is captured or missing, do we just proceed as if nothing has happened or do we make adjustments to prevent the plan from being compromised?

When you put together the unlikely confluence of events necessary for the ticking bomb scenario with the fact that the enemy is not passive, tries to prevent its plans from being compromised by capture, and adjusts if someone important is captured, you quickly realize that the ticking bomb scenario is largely a fiction.  As a practical matter, the only way we are going to get useful information from torture is if the practice is fairly widespread, not limited to some rare exigent circumstance.  What we can realistically expect to learn from captives is more general information about possible plans, operational means, organizational structure, and so forth.  To fit the pieces together, we have to torture pretty much any captive who might be of more than the lowest level, and even then it couldn’t hurt, right?  Just to be sure the guy doesn’t know anything.

My point is that once the practice is routinized and institutionalized, something that did not fully occur under Bush because of the law and the consequent necessity for the memoranda and such to stay hidden, the occasions for it are sure to expand because there really is no logical stopping place.  If you can torture the colonels, why not the lieutenant colonels?  And the captains, and the lieutenants, and finally the soldiers.  And must the hypothetical threat be imminent, or just serious?  Must it be specific or is it enough that this is a bad guy who might know something useful?

If we were to have an institutionalized, legally sanctioned, routine practice of torturing captives, do we really suppose that it ends there?  Do we really suppose that we can prevent the logic of torture from being extended to domestic criminal activity?  Do we really think that we do not end up with the Gestapo, Savak, the KGB?  Do we really think that liberal democracy and legalized torture can coexist?  I don’t.

Basman & Tomeg,

I can't quite put my finger on it, but there's something weird about talking about a sport where two men beat the snot out of each other and repeatedly abuse their bodies for public enjoyment on a thread about torture.  Just saying.  I know, I know, logically, no comparison holds water (or even comes close), but I got a funny gut feeling,

--jt

Roi said:

"I cannot make sense out of dhurtado’s insistence that torture not be something that occurs, if it occurs, in secrecy.  We either institutionalize the practice or we don’t.  If we are to have some organized process of determining, after the fact, whether the torture was an absolute necessity, we are necessarily going to have a rule of decision – other than jury nullification. I suppose we could demand that, if the government uses torture the torturers must then present themselves for judgment, but that is not going to occur.  If the practice is not institutionalized, then it will be conducted, if at all, in the utmost secrecy.  There simply does not exist in the real world some alternative of partial or conditional institutional sanction.  In my view, the only safe course is to maintain the absolute prohibition, as we do with murder, while recognizing that sometimes we are going to make a moral judgment that the technically guilty murderer or torturer should not be held to account.  That will occur under circumstances that we find morally compelling, and part of the compelling nature of the circumstances will be the very fact that the actor regarded the circumstances as so compelling as to be willing to proceed in spite of the persona risk.  I simply do not see how we can do any better than that without opening ourselves to terrible consequences."

dhurtado says:  I am not proposing some organized process for ex post determinations of whether a particular act of torture was excusable.  I am proposing the equivalent of jury nullificaiton.  I agree entirely that "the only safe course is to maintain the absolute prohibition [of torture], as we do with murder, while recognizing that sometimes we are going to make a moral judgment that the technically guilty murderer or torturer should not be held to account."  I also agree that under that regime (no "institutionalized" torture) most torture will take place in secrecy, UNLESS the torturer: (1) does not believe that his or her actions constitute torture, (2) believes that the torture is obviously justified under the circumstances; (3) is willing to accept punishment for his or her actions given what is at stake; and/or (4) believes he or she is immune from censure (i.e., above the law).  Our current legal regime under both U.S. and international law is an absolute prohibition of torture, and yet the torture by Cheney and company has come into the light for at least some of the reasons I enumerate.

That said, there is a critical distinction between recognizing that torture generally will take place in secrecy, on the one hand, and asserting that it should, as a normative matter, occur in secrecy, on the other hand.  I interpret your contention that Cheney compounded his misdeeds by failing to maintain secrecy as an assertion of the latter proposition; that if torture occurs at all, it SHOULD occur in secrecy.  There is some force to that argument.  If secrecy is maintained, then the harm will be limited to the torturer and the tortured, and the harm to society and to international relations might be avoided.  But we should not say as a matter of public policy that torture is less egregious if secrecy is maintained, any more than we should say as a matter of public policy that torture will be excused under certain circumstances.  Moreover, if secrecy is successfully maintained, then as a society we have no way to enforce the prohibition, and there will be no basis for the exercise of "jury nullification."