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CIA Officers Seek More Insurance:

An interesting story in today's Washington Post:

CIA counterterrorism officers have signed up in growing numbers for a government-reimbursed, private insurance plan that would pay their civil judgments and legal expenses if they are sued or charged with criminal wrongdoing, according to current and former intelligence officials and others with knowledge of the program.

The new enrollments reflect heightened anxiety at the CIA that officers may be vulnerable to accusations they were involved in abuse, torture, human rights violations and other misconduct, including wrongdoing related to the Sept. 11, 2001, attacks. They worry that they will not have Justice Department representation in court or congressional inquiries, the officials said.

The Bush Administration is seeking legislation that would help protect CIA officers from liability. Another way to protect CIA officers from liability (at least in the future) would be to prohibit them from engaging in excessive or [potentially] illegal conduct.

From the end of the story:

Robert M. McNamara Jr., the CIA's general counsel from 1997 to November 2001, said he advised station chiefs to buy the insurance. "The problem is that we are the victims of shifting winds here," McNamara said he told the officers. "I can't sit here and tell you in all cases that I will be able to defend you."

However, McNamara's predecessor as CIA general counsel, Jeffrey H. Smith, said: "I'm deeply troubled that CIA officers have to buy insurance. . . . There should be clear rules about what the officers can and can't do. The fault here is with more senior people who authorized interrogation techniques that amount to torture" and should now be liable, instead of "the officers who carried it out."

UPDATE: Several have commented that I was too flip and simplistic when I wrote: "Another way to protect CIA officers from liability (at least in the future) would be to prohibit them from engaging in excessive or illegal conduct." Guilty as charged (and I've edited the statement above). The point I was trying to make is that the creation of standard operating procedures and protocols can serve to reduce the potential for liability of CIA officers and others who have to make decisions about the use of coercive force as part of their jobs. This is not a question of passing a law, but generating internal rules and procedures to minimize the likelihood of certain types of excesses. Assuming a good fiath effort to operate within accepted legal norms, the clearer the rules about when one may engage in potentially tortuous behavior, such as the use of force, the less likely it is that such conduct will result in liability for the officer in question. As the Post reported:
Several former intelligence officials who said CIA officers do not need insurance because they can rely on the government to defend their lawful actions depicted the growing number of policies as a barometer of the uncertainty officers have of the legality of their work.

A recently retired CIA officer who said he had not bought insurance contended that "if an individual does get sued in the course of their official duties, then you get the biggest law firm in the world to step in" -- the Justice Department. Justice regulations allow defending federal workers if the conduct is within the scope of an employee's job and doing so is in the government's "interest."

Alas, some in the Bush Administration sought clever ways to redefine what was permissible conduct so as to excuse potentially tortuous (if not criminal) behavior, and this seems to have increased the potential liability exposure of CIA officials and others engaged in certain counter-terror activities. My poorly expressed point was that an alternative approach would not have left as many CIA officers exposed to liability.

Just an Observer:
Another way to protect CIA officers from liability (at least in the future) would be to prohibit them from engaging in excessive or illegal conduct.

That is true. So is the corollary:

The way to put CIA officers into an untenable position in the past was the adoption of policies -- and bad-faith lawyering at the highest levels of the government -- promoting conduct that turned out to be unlawful.

Shame.
9.11.2006 11:13am
American Psikhushka (mail) (www):
From what I've heard, soldiers and law enforcement officers have the right to refuse an illegal order, one would assume that intelligence officers do as well. Anyone know for sure?
9.11.2006 11:14am
Don Miller (mail):
I think intelligence officers feel caught up in a no-win situation.

Their jobs, especially on the operations side, have always tended to take place in a murky world of what is legal and what isn't. Actions that might be legal in one country, might be illegal in another. They deal with questionable people in questionable circumstances. Questionable things happen.

Most of the time, the American people pretend these agents don't exist. Sometimes we hear about them and we pretend it doesn't affect us, because it happened "overthere". On very rare occassions we get bothered by their actions and start to question their motives and techniques.

I am sure some of theme almost feel like people are applying laws and rules in an ex post facto method to their actions. Those laws and rules probably always applied to thier actions but the agents weren't warned and sometimes may have been actively trained to ignore them.

I would buy insurance too, if I were them. Although, I can't imagine an Insurance company that would cover events that took place before coverage was in place.
9.11.2006 11:27am
Anderson (mail) (www):
There is nothing "murky" about waterboarding. It was torture when we did it in the Philippines, it was torture when the Gestapo did it, it was torture when we did it to KSM.

It's probably too much to hope that these torturers will do any jail time, but I won't stop hoping. To say nothing of the guy who ordered these crimes.
9.11.2006 11:32am
Just an Observer:
The untenable position of the field officer was well illustrated in a dialogue between Sen. Graham and AG Gonzales at the Judiciary Committee hearing Feb. 6. (quoted portion is in Part IV of IV parts in this online link.)

GRAHAM: ... Let's get back to my scenario about the military member who has a detainee under their charge.

They get an order from the commander in chief or some higher authority to do certain techniques. The justification is that we need to know about what's going to happen in terms of battlefield developments: "We believe this person possesses information." And those techniques are expressly prohibited by prior statute under the authority of the Congress to regulate the military.

That is another classic moment of tension. What do we tell that troop? I mean, if they called you as a lawyer and they said, "I've got the order from my commander, maybe even from the president, to engage in five things, but I've been told there's a statute that says I can't do that passed by Congress. What should I do?"

What would be your answer to that?

GONZALES: I don't know if I could give that person an immediate answer. I think that's the point that you're making. To put our military in that kind of a position, that's a very difficult place to be.


Graham was referring to a military sitution. I think the same problem obviously obtains for CIA officers who follow orders that turn out to be illegal.

In the movies, Col. Jessep confesses on the stand that he ordered the Code Red, the field Marines get off lightly, and everybody in the audience feels good. In real life, that won't happen.
9.11.2006 11:34am
A.S.:
Another way to protect CIA officers from liability (at least in the future) would be to prohibit them from engaging in excessive or illegal conduct

Huh?

Aren't they prohibited by the law that, you know, makes the conduct illegal?
9.11.2006 11:39am
Anderson (mail) (www):
I think the same problem obviously obtains for CIA officers who follow orders that turn out to be illegal.

Except that CIA is civilian, and there's simply nothing parallel there to the military's powerful emphasis on obeying orders. No CIA agent who refused to torture a prisoner was facing jail time as a result--at worst, he would've been fired, and I doubt even that would've happened.
9.11.2006 11:41am
Anderson (mail) (www):
"The fault here is with more senior people who authorized interrogation techniques that amount to torture" and should now be liable, instead of "the officers who carried it out."

Um, no. The way to prevent torture is NOT to exonerate those who were "just following orders." That's ridiculous.

The way to prevent torture is to make *everybody*, top to bottom, liable. Officials should be afraid to order torture, operatives should be afraid to carry it out.
9.11.2006 11:47am
Just an Observer:
A.S. Aren't they prohibited by the law that, you know, makes the conduct illegal?

Yes, but the CIA officers were under instructions from their superiors to use what the President now brazenly calls an "alternative set of procedures." Too bad for them they aren't President and might have to take the fall for the bad-faith lawyering at the top that rationalized the illegal acts.
9.11.2006 11:57am
Charlie (Colorado) (mail):

Another way to protect CIA officers from liability (at least in the future) would be to prohibit them from engaging in excessive or illegal conduct.


That is the single dumbest sentence I've ever seen in VC.
9.11.2006 12:01pm
Daniel Chapman (mail):
I haven't been following Andrew Sullivan's blog lately, so I have forgotten a few of the details over the waterboarding controversy. Wasn't there some sort of significant difference between what we call "waterboarding" and the gestapo technique of the same name? If not, please fill me in.
9.11.2006 12:01pm
DummydaDhimmi:
Yes, since it's always so glaringly obvious as to what is legal, as opposed to what is not legal, let's just prohibit our counter-terrorism agents from engaging in illegal activity so as to protect them from liability.

For example, physical torture--even if that were the only way to prevent a nuclear bombing of a city--should clearly be illegal, after all, after the city is nuked, we must be able to admire the 'cleanliness' of our hands.

By the way, since it's always so obvious about what's legal and what's not, tell me, why do we even have law schools?
9.11.2006 12:12pm
John T (mail):
Another way to protect CIA officers from liability (at least in the future) would be to prohibit them from engaging in excessive or illegal conduct.

Ah, yes. People who do not engage in illegal conduct are never sued and have legal expenses, do they? In fact, the very fact that they are sued means that they must be guilty and deserve paying the legal fees, yes? What a ridiculous statement. The very openness necessary to prevent abuses is certainly going to allow some lawsuits which are not justified.
9.11.2006 12:15pm
Ming the Merciless Siamese Cat (mail):

Another way to protect CIA officers from liability (at least in the future) would be to prohibit them from engaging in excessive or illegal conduct.


By God Adler, you are a genius! Not only have you saved CIA agents millions of dollars in premiums, think of the wider applications of your insight. If we pass laws prohibiting tortuous behaviour we can eliminate negligence suits too. Pass laws prohibiting securities fraud and there go securities class action proceedings. Pass laws prohibiting descrimination and bye-bye to employment litigation.

Start drafting your Nobel speech. I predict you'll be getting a call from Sweden any minute. Or Norway. Or Finland. Or where the hell they run the damned thing from.
9.11.2006 12:22pm
John (mail):
Anyone who's spent, say, 30 seconds observing the U.S. legal system knows that making sure your conduct is legal has little to do with whether you get sued. It has something to do with it, but not much.

No matter what these guys do, given their profession, they are apt to be sued. Insurance makes sense, regardless.

Perhaps J.A. would suggest that if lawyers or doctors just didn't commit malpractice they could do away with their insurance. That's the ticket!
9.11.2006 12:23pm
Houston Lawyer:
It would seem to me that the government would be obligated to defend the CIA agents. This obligation would end at such time as a court determined that the agent in question violated the law.

I'm curious as to how a potential plaintiff would get the name of any CIA agent. Maybe we should ask Mr. Armitage about that one.
9.11.2006 12:25pm
Conor (mail):
Dear Jonathan Adler:

Please be advised that an idiot has stolen your identity and is posting in your name over at the Volokh Conspiracy. I thought you would want to know.
9.11.2006 12:27pm
Anderson (mail) (www):
Re: how we waterboard, our tortures seem to've been imported in large part from an Army camp that taught Special Forces troops how to resist these tortures. (The article doesn't say it, but CIA research in the 1950s and 60s developed a lot of these techniques, some copying Soviet methods.)

Instructors at the SERE school pour water over the hooded prisoners, creating the sensation of suffocation. "If you have ever had a bag on your head and somebody pours water on it," the Ranger recalled, "it is real hard to breathe."

Stress positions -- a term so often cited in investigations of wartime detainee abuse it has nearly entered common lexicon -- are often employed at SERE school. Soldiers are forced into a squatting position with both palms facing up, or an excruciating half crouch with arms extended out straight, called the Iron Man. After a while, "Your legs go numb. Your knees go numb. Your feet tingle," the Ranger said. "It feels like fire. Eventually, you can't hold yourself up."
(For those who think "stress positions" are some kind of pseudo-torture joke.)

Now, the ABC item that confirmed KSM's waterboarding refers to *cellophane* wrapped around the face. That seems like a mistake--cellophane alone would make one smother, and isn't permeable to water. Usually it's a damp towel or something like that.

N.b. as well that 3 CIA operatives refused to be trained in applying these torture techniques, according to the article.
9.11.2006 12:29pm
Duncan Frissell (mail):
A.S. Aren't they prohibited by the law that, you know, makes the conduct illegal?

Since most of these acts were committed outside the US, they would not have been a violation of US law (when committed by someone not covered by the UCMJ) in the days before the unfortunate US tendancy to extend its legal restrictions world wide. E.G. outlawing ownership of gold by US citizens anywhere, taxing income earned by US citizens anywhwere, etc. Such unfortunate imperialism by the US legal system should be opposed by all right-thinking persons.
9.11.2006 12:34pm
Anderson (mail) (www):
Back to the Gestapo methods, Darius Rejali is a recognized expert on torture, and he wrote this for Salon:
In 1943, "Masuy," a Belgian who ran Gestapo black market operations in France, made choking his signature technique. Masuy's henchmen held the victim's head under water while Masuy offered cognac and questioned the victim. Masuy maintained at his trial in 1947 that choking was "more humane" than plucking nails. The Gestapo, not known for its humanity, authorized this method for Norway and Czechoslovakia in 1945 as the resistance struggles there intensified.
It's unclear whether we're doing something like this (Jane Mayer seems to think so), or the method where a damp towel's put over the face &water poured over it. "Both" is probably a good guess.

Rejali also notes that sleep deprivation is especially good for getting false confessions, and describes what stress positions like forced standing will do:
Two experts commissioned by the CIA in 1956, Harold Wolff and Lawrence Hinkle, described the effects of forced standing: The ankles and feet swell to twice their size within 24 hours, and moving becomes agonizing. Large blisters develop. The heart rate increases, and some people faint. The kidneys eventually shut down.
The first link above, btw, is to an interesting round-table with Mark Bowden, Elaine Scarry, Rejali, and Mark Danner. Even Bowden, the most pro-torture ("ticking bomb" &all that), concedes that torture rarely works &that it should be illegal--let the "ticking bomb" torturer plead extremity as a defense.
9.11.2006 12:45pm
Just an Observer:
John,

The private insurance is deemed to be necessary not merely because the CIA officers might be sued, but because the DOJ might not provide the legal resources to defend against such suits.
9.11.2006 12:54pm
Anderson (mail) (www):
Okay, one more &I'll quit thread-hogging: Amazon's page for A Question of Torture by Alfred McCoy includes this quote, which btw references the CIA study cited by Rejali above:
"Dr. Donald O. Hebb of McGill University [Canada], a brilliant psychologist, had a contract from the Canadian Defense Research Board, which was a partner with the CIA. In this research, he found that he could induce a state of psychosis in an individual within 48 hours. It didn't take electroshock, truth serum, beating or pain. All he did was have student volunteers sit in a cubicle with goggles, gloves and headphones, earmuffs, so that they were cut off from their senses, and within 48 hours, denied sensory stimulation, they would suffer, first hallucinations, then ultimately breakdown. . . .Now, then, the second major breakthrough that the CIA had came here in New York City at Cornell University Medical Center, where two eminent neurologists under contract from the CIA studied Soviet KGB torture techniques, and they found that the most effective KGB technique was self-inflicted pain. You simply make somebody stand for a day or two. And as they stand -- OK, you're not beating them, they have no resentment -- you tell them, "You're doing this to yourself. Cooperate with us, and you can sit down." And so, as they stand, what happens is the fluids flow down to the legs, the legs swell, lesions form, they erupt, they separate, hallucinations start, the kidneys shut down."
The CIA was spooked by KGB's ability to generate false confessions, &suspected "brainwashing," drugs, etc. But forced standing and sleep deprivation did the trick.
9.11.2006 12:56pm
Ken Arromdee:
Several have commented that I was too flip and simplistic when I wrote: "Another way to protect CIA officers from liability (at least in the future) would be to prohibit them from engaging in excessive or illegal conduct." Guilty as charged (and I've edited the statement above).

...

Another way to protect CIA officers from liability (at least in the future) would be to prohibit them from engaging in excessive or [potentially] illegal conduct.

That seems as absurd as your original version. Would you claim that the way for doctors to prevent getting sued for malpractice would be for them to avoid actions that may potentially be considered malpractice? How could a doctor do that other than by giving up his profession?
9.11.2006 1:03pm
AppSocRes (mail):
I think that the ethical analysis of torture here and other places has been infantile. If a homicidal conspirator has information that might plausibly prevent the deaths of thousands of people but refuses to provide that information please explain why it is immoral to make him/her uncomfortable in an attempt to obtain that information. Substitute "extremely uncomfortable" or "suffer agonizing pain" in the previous sentence and I still think that you are obliged to explain why the temporary suffering of that guilty person counts for more than the lives of thousands of relatively innocent people.

The comparisons of such cases to the methods of the Gestapo, KGB, and other such organizations are absurd. The Gestapo and their ilk used torture as a tool for punishing, intimidating, and obtaining false confessions. In the relatively small proportion of cases where torture was used to obtain useful information, that information was seldom if ever intended to save innocent lives. There was also no limit on the techniques such organizations used. These frequently involved life-threatening techniques, maiming, and other atrocities.

If there is no ethical argument against torture in certain extreme cases, then it behooves us to establish standards for the use of torture: peremissible circumstances and limits. We should also, as Alan Dershowitz has suggested, establish a legal framework within which we will utilize torture, e.g., a system of applying for and obtaining torture warrants. Parenthetically, the very existence of such a system might loosen the tongues of some captive terrorists and preclude the need for the actual use of torture in many cases.

If there were less squeamishness on this issue and more willingness to deal with it in a rational, utilitarian, and legalistic manner, there would be far less concern among CIA personnel about personal liability for fulfilling their professional obligations. The fundamental problem is that we, as a society, are unwilling to consider what may be necessary to preserve our way of life. There is an extensive literature of personal reminiscence from the allied side in WW II (Yes, allies torturing Nazis during the "good war".) suggesting that this moral courage has gone missing since then.
9.11.2006 1:16pm
Jonathan H. Adler (mail) (www):
Ken --

A doctor can follow professional norms and standard operating procedures that are designed to ensure that surgeries and other invasive procedures are conducted with the patient's informed consent, that certain medications or procedures with potential side effects are only used when these effects have been considered, and so on. The point is not that this would prevent the doctor from ever being sued, but that it would reduce the likelihood of actual liability.

In the context of the CIA officer, properly promulgated rules and procedures would increase the likelihood that a given officer's actions would be deemed to be within the scope of his employment and consistent with government policy, thereby reducing liability exposure and the need for outside insurance. If the Post story is accurate, CIA officers are unclear whether they will be able to avail themselves of such defenses, and this could be due to unclear and poorly thought-out protocols for their conduct, or to Bush Adminsitration efforts to legitimize questionable conduct.

JHA
9.11.2006 1:20pm
Anderson (mail) (www):
If a homicidal conspirator has information that might plausibly prevent the deaths of thousands of people but refuses to provide that information please explain why it is immoral to make him/her uncomfortable in an attempt to obtain that information.

And how is it that we know he has this information?

Clicking the link I gave above to the torture round-table will give you Mark Bowden's account of the Israeli experiment in "torture warrants," supposedly for just such last-ditch scenarios. Which were rapidly expanded &abused for torture of all sorts of people.

All this "ticking bomb" stuff strikes me as tantamount to arguing that it shouldn't be illegal to steal, because under SOME circumstance, stealing might actually be necessary to save a life, etc., etc. Which suggests a pretty good defense to make to the jury, but isn't any sort of argument against criminalizing theft.
9.11.2006 1:22pm
C. Owen Johnson (mail):
The motive behind getting this insurance is not legal gray areas or lack of clearly defined procedures. The motive is to protect oneself against specious politically motivated lawsuits. The reason it has been increasing recently is the perceived likelihood that the democrats will regain control of congress, which is seen by many as clearing the way for such lawsuits.
9.11.2006 1:35pm
Ken Arrodee:
In the context of the CIA officer, properly promulgated rules and procedures would increase the likelihood that a given officer's actions would be deemed to be within the scope of his employment and consistent with government policy, thereby reducing liability exposure and the need for outside insurance.

That seems unlikely to work. The person bringing the lawsuit can say that justifying one's actions by reference to procedures is an "I was only obeying orders" defense, and completely ignore the fact that the objectionable actions were deemed appropriate by the procedures.
9.11.2006 1:35pm
Mark Field (mail):
While I appreciate Jonathan Adler's willingness to modify his post in response to criticism, I think the criticism is misguided. We're not talking about some highly technical area of the law here, nor are we talking about some borderline case. We're talking about conduct that plainly and obviously violates fundamental civilized standards of behavior, to say nothing of, say, the War Crimes Act. In fact, it's both interesting and significant that the first line of defense for the Administration was not that the conduct was actually permissible under Common Article 3, it was that CA3 didn't apply. Not very convincing if you're later trying to defend yourself on the ground that you didn't know it was wrong.

Anderson got the "ticking time bomb" issue right. I swear, "24" has done more damage to the ability of Americans to think than America's Next Top Model. It's easy to pose a catastrophic situation in opposition to any ethical rule in order to create a "dilemma". We can only discover the nuclear weapon if we repeal the 13th A; we can only save the earth if we re-enact the Holocaust. Please, people, these are not serious arguments against laws prohibiting such conduct.
9.11.2006 1:41pm
Fub:
Jonathan Adler wrote:
Assuming a good fiath effort to operate within accepted legal norms, the clearer the rules about when one may engage in potentially tortuous behavior, such as the use of force, the less likely it is that such conduct will result in liability for the officer in question.
A minor nit: I think you meant tortious.

The distinction is between something that is twisted and winding (so arguably applicable to some behaviors) and something that involves a tort at law. Granted that the roots are the same, the latter is virtually a term of art implying legal liability while the former might serve to describe the difficulties in discussing the very subject of your post.
9.11.2006 1:59pm
Ming the Merciless Siamese Cat (mail):
Adler's revised approach is even more brilliant that the original. Think of the implications of the Adler Effect.

Tort reform? Easy. Simply pass a law prohibiting Americans from from engaging in potentially tortuous conduct.

No more law suits. All sorted.
9.11.2006 2:08pm
wm13:
Prof. Field, how do you know what conduct we are talking about? Have you interviewed the CIA officers who are worried and determined exactly what they did? Or are you privy to some eternally binding Justice Department memo that explains what conduct the Justice Department will defend in court and what conduct it will not?

So I would ask all the lawyers here, will the Justice Department defend a CIA agent who is accused of having slapped a prisoner? No one has any idea (including I, who am a lawyer). Yet we ask these same people to predict what foreign governments will do, when we don't even know what our own government will do.
9.11.2006 2:09pm
SG:
It's perfectly respectable and admirable to decide that torture is impermissable just so long as you're also prepared to accept that some intelligence will go undiscoved with unknown consequences. Be clear that you're making the tradeoff.

The nation has avoided having this debate for too long; it's long past time to have it. What as a society are we prepared to do, and more importantly what are we not prepared to do?
9.11.2006 2:11pm
Mark Field (mail):

Prof. Field, how do you know what conduct we are talking about?


I don't think it's necessary to read your mind. The techniques under debate are pretty clearly set out in various public documents. Those are bad enough; the real issue is what has been done that we do NOT yet know.


Or are you privy to some eternally binding Justice Department memo that explains what conduct the Justice Department will defend in court and what conduct it will not?


Since there's not the slightest chance of me being the next AG, I can truly say that if I were appointed to that post, I'd be the prosecutor not the defense counsel.


will the Justice Department defend a CIA agent who is accused of having slapped a prisoner?


I'm sure the national debt can afford the hit for the damages on that one.
9.11.2006 2:27pm
Bruce Wilder (www):
SG:"It's perfectly respectable and admirable to decide that torture is impermissable just so long as you're also prepared to accept that some intelligence will go undiscoved with unknown consequences. Be clear that you're making the tradeoff."

Are you willing to torture the innocent?

Are you willing to torture the wrong person, someone who does not have the information you seek?

Would you be willing to torture a child, to induce a parent to give up information? Would you be willing to torture a child, to induce a parent to give up information, even if you were not sure that the parent had the information?

On what basis do you choose torture over some other technique? Would you choose torture, even if you thought some other, alternative technique might also work? When is torture to be the preferred technique? Why?

If you are going to advocate legalization of torture, you ought to have answers to these and many other similar questions. Just so we are clear on the "tradeoffs".
9.11.2006 2:32pm
Medis:
I think the basic problem with Adler's approach is that it continues to focus on the officers taking the illegal actions. What he really needs to do is shift focus to the people giving orders to those officers, and think about how to prevent those officers from being ordered to do illegal things.
9.11.2006 2:33pm
TM Lutas (mail) (www):
This may be partially about torture but that would only explain increased participation by those in counterterrorism and who have been involved in interrogations and the rulesetting surrounding it. For a $300, fully reimbursable yearly fee, it's a no brainer. But for those happy few who read past the jump there's this

CIA spokesman Mark Mansfield said Friday that "it's fair to say that more employees have chosen to get this insurance, including those who work in counterterrorism." He said the agency's office of general counsel "advises employees to consider it" and called it a "prudent measure, in case of legal claims." But he said more employees at other federal agencies are also enrolling.

Why would those outside counterterrorism be buying this policy? Why would those outside the CIA be buying this policy? Could it be that the interest is because these employees detect that the lawfare gates are going to open and they want to be ready for the deluge of writs?
9.11.2006 2:45pm
Anderson (mail) (www):
Would you be willing to torture a child, to induce a parent to give up information, even if you were not sure that the parent had the information?

The classic statement of the question is from Laura Bush's favorite book, The Brothers Karamazov:

"... Imagine that you are creating a fabric of human destiny with the object of making men happy in the end, giving them peace and rest at last, but that it was essential and inevitable to torture to death only one tiny creature -- that baby beating its breast with its fist, for instance -- and to found that edifice on its unavenged tears, would you consent to be the architect on those conditions? Tell me, and tell the truth."
Anyone who's going to argue that the ends justify the means, should be prepared to answer Ivan Karamazov's question.
9.11.2006 2:50pm
Tom Holsinger (mail):
John Friedman got it exactly, and it is disgraceful. This is the natural consequence of the judicial branch's abandonment of the concepts of judicial deference and political questions.

IMO the judicial branch's over-reaching will cost it its independence. Not immediately, but too soon - when we suffer hundreds of thousands of fatalities from their misconduct. The backlash will be overwhelming.
"Anyone who's spent, say, 30 seconds observing the U.S. legal system knows that making sure your conduct is legal has little to do with whether you get sued. It has something to do with it, but not much.

No matter what these guys do, given their profession, they are apt to be sued. Insurance makes sense, regardless.

Perhaps J.A. would suggest that if lawyers or doctors just didn't commit malpractice they could do away with their insurance. That's the ticket!
9.11.2006 3:17pm
Anderson (mail) (www):
This is the natural consequence of the judicial branch's abandonment of the concepts of judicial deference and political questions.

So, Mr. Holsinger, a couple of questions:

(1) What is the War Crimes Act for, exactly?

(2) How did the depraved judiciary trick the Congress into passing same?
9.11.2006 3:21pm
BobN (mail):

The nation has avoided having this debate for too long; it's long past time to have it. What as a society are we prepared to do, and more importantly what are we not prepared to do?


I hear this call for discussion. And it leaves me puzzled. Didn't this nation, this culture, this world, have that discussion in the aftermath WWI and WWII? After the horrors of those wars, people with a lot more experience and authority to determine the morality of war than this administration (or its opposition) came up with some rules. We may face some new threats today, but I've yet to see a valid explanation of how they justify overturning the rules, especially when those who oveturn them have never worn a uniform in battle.
9.11.2006 3:25pm
Daniel Chapman (mail):
Because the people we're fighting have never worn a uniform in battle either.
9.11.2006 3:35pm
SG:
Bruce Wilder:

First, I didn't advocate torture, although I can see how you might infer that. I simply said that there are tradeoffs to be made.

First thing is that we need to define torture. I submit that anything we do our own people (don't forget they're volunteers) during training is not torture and should be permissable. As I understand it, that would include waterboarding and stress positions. As I understand it, these techniques have proved efficacious.

When I think of torture, I think of the pulling fingernails, power drills to the kneecaps kind of stuff. Personally, I would never find that acceptable, even in the case of a ticking bomb.

I would argue for a policy that said only people with a well-founded suspicion of having direct knowledge are subject to coercive interrogation. I would want to see some process for documenting that suspicion, along with periodic reviews of the people and circumstances under which coercive interrogation is used and the outcomes. Interrogators who show a disproprtionate use of coercion relative to intelligence gathered should be subject to discipline, along with anyone who performs coercion without following the proper process.

As far as innocent people go: I'm sure we've killed lots of innocent people in the course of war. It's the nature of war. I think in this conflict if we foreclose the possibility of prisoners becoming intelligence sources the outcome will be fewer prisoners are taken, and fewer risks are taken trying to capture people alive (i.e., a more indiscriminate use of firepower). My supposition is that we will ultimately reduce the harm to innocents by having a policy that allows us to extract information from an uncooperative enemy we will reduce the unintentional harm that befalls innocents. On both sides.

Now, how about you. Are you prepared to let your family die rather than have some "Death to America" shouting jihadi kept awake a little longer than he'd like? Or do you just want to morally preen without bothering to consider the ramifications?
9.11.2006 3:37pm
Perseus (mail):
If the president is going to put these officers in a legal gray area, he should step up to the plate and offer pardons to officers accused of criminal wrongdoing.
9.11.2006 3:40pm
Medis:
Daniel,

So we beat them by becoming more like them? Do we win if we only have to sacrifice 75% of our legal and moral principles, rather than a full 100%?
9.11.2006 3:40pm
Daniel Chapman (mail):
I didn't say that... we should go only as far as our collective conscience allows. But mine doesn't go as far as Geneva, and my understanding of Geneva (limited to one survey course in military law) is that it does not apply to the current conflict. The rules we drew up after WWII should be changed because the conflict has changed.

That was quite a stretch from what I said in the context of the comment I was replying to, medis... I usually expect better from you.
9.11.2006 3:45pm
American Psikhushka (mail) (www):
Tom Holsinger-

IMO the judicial branch's over-reaching will cost it its independence. Not immediately, but too soon - when we suffer hundreds of thousands of fatalities from their misconduct.

What are you talking about? A dictatorship? Is it just me or does this place keep getting nuttier and nuttier?
9.11.2006 3:45pm
BobN (mail):
A flip answer doesn't really cut it, I think.
9.11.2006 3:47pm
Medis:
SG,

On a specific point, you say: "I submit that anything we do our own people (don't forget they're volunteers) during training is not torture and should be permissable."

But we train our own people to deal with torture by our enemies by subjecting them to torture ourselves. So, to say it isn't torture because we tried to train them to deal with such torture is kinda absurd.

I submit a better rule is that something is torture if we would call it torture if it were done by our ENEMIES to one of our own people.

On a general point: missing from your analysis of intelligence methods is at least a couple things. One is that intelligence can be extracted from prisoners through noncoercive means, and often they can be more effective than coercive means, although they sometimes require more patience. More importantly, intelligence also must be gathered from non-prisoners, and using coercive techniques on prisoners can seriously harm our ability to collect intelligence from non-prisoners.

In general, your analysis doesn't seem to take into account any of the ways in which coercive interrogations can be counterproductive in both the short and long term.
9.11.2006 3:48pm
Daniel Chapman (mail):
Well you get whatcha get. The argument's been made countless times... I didn't feel like typing it out with citations for you.
9.11.2006 3:49pm
American Psikhushka (mail) (www):
Just out of curiosity, how about genital shocking until the bowels fail, is that torture?
9.11.2006 3:57pm
BobN (mail):
I've seen a lot of arguments. The one about the enemy not wearing uniforms collapses easily. Plenty of saboteurs and spies in previous wars didn't wear uniforms. And individuals who engaged in those activities outside a declared war between states usually face criminal charges.

The only real changes that I can see in this situation are the scale of individual attacks and the autonomy of the actors. Only those are new.
9.11.2006 3:57pm
Anderson (mail) (www):
When I think of torture, I think of the pulling fingernails, power drills to the kneecaps kind of stuff.

When "you" think of torture? I've provided plenty of citations above to what *torturers* think of when they think of torture. Your own fantasies or hearsay reports don't seem terribly relevant.

People who interrogate for a living find torture &coercion ineffective. The Army's just reiterated its wholesale rejection of those methods. Do you really think the Army doesn't care about saving its soldiers' lives?

As for your program to tame torture, you might try clicking the link above about Mark Bowden's account of Israel's experiment in that direction. Didn't work so well.

--Really, when there's so much evidence a Google search away, people's insistence on pulling stuff out of their butts is a bit much. This debate's been going on for 2 years now, folks.
9.11.2006 3:58pm
Tom Holsinger (mail):
Psikhushka,

We'll find out. I don't think it will be limited to federal judicial retention elections. I repeat, the backlash will be overwhelming.
9.11.2006 4:03pm
Medis:
Daniel,

With all due respect, given that the context of your comment was BobN's question, I think I treated it exactly as seriously as it deserved. And as we have discussed here before, the Geneva Conventions contain many parts, some of which may not be applicable to some of our detainees. But Common Article III in particular was specifically designed to guarantee a minimum set of protections even to those who are not entitled to POW status, either because of the nature of the conflict or their own status. And for many decades after WWII, we were specifically arguing that very point to many brutal regimes around the world. And that was also the understanding of Common Article III that guided our own military, right up until a few people at the top of the current Administration suddenly decided that this lynchpin of American doctrine was inapplicable to ourselves. And even now, the experts in the military who are well aware of how this understanding of Common Article III served us in the decades after WWII have continued to fight to preserve it.

So, it is highly misleading to imply that BobN's question is just about whether the GWOT is identical to WWII, and whether our GWOT detainees are entitled to the full protections of POWs under the Geneva Conventions. Rather, it is about whether we will continue to provide the minimal set of protections contained specifically in Common Article III, which are not dependent on the nature of the conflict nor the status of the detainee, and which we adopted and promoted throughout many different conflicts in the decades following WWII.
9.11.2006 4:03pm
American Psikhushka (mail) (www):
I asked about a specific act in a situation I am personally aware of with government personnel involvement. So again: Would you consider genital shocking until bowel failure torture?
9.11.2006 4:03pm
Daniel Chapman (mail):
Bob: And then what? Executed? Thrown in a prison labor camp? TORTURED? None of this was prohibited by the Geneva Conventions because such spies/saboteurs fell outside Geneva's protections.
9.11.2006 4:04pm
SG:
Medis,


But we train our own people to deal with torture by our enemies by subjecting them to torture ourselves. So, to say it isn't torture because we tried to train them to deal with such torture is kinda absurd.


But there are limits to what we will do in training. We don't pull out our soldiers fingernails so they can see what it's like. Whoever is devising the training programs makes a decision about where the line is with our troops, and I'm comfortable with using that same line with the enemy.

Some of this is a semantics game, I'll agree. I'm defining terms such that we don't torture, we only coerce. The key point is to define the dividing line between the two. I think what's acceptable to do to our own makes for a good dividing line.

You want to make a different dividing line. That's fine. That's why this ought to be debated.

But nowhere did I say that coercion should be the first line of questioning, and I did say that I would like to see the results be periodically reviewed to check for efficacy.

I'm not an interrogator; I claim no skills in that. I do observe that, despite your's and other's claims to the contrary, the people in charge do seem to believe that coercion does produce results. Not just this adminstration, either. Torture's been used throughout history by almost every nation and people. I'll need more than your assertion that there are no circumstances in which it can be applied effectively, or that it never has a positive cost/benefit ratio.

But it is distasteful, which is why I'd like to see it procedurely bounded and reviewed. And if it can be shown that it doesn't providing benefit, I would be more than happy to see its use abolished.
9.11.2006 4:10pm
Daniel Chapman (mail):
Medis: You can treat me disrespectfully or you can ignore me... just don't mischaracterize what I said. I never said we should stoop to the terrorists' level, which is exactly what you implied in your response.

Since I still haven't bothered to read Hamdan, I won't even try to discuss Common Article III with you.
9.11.2006 4:12pm
SeaLawyer:
Why is it that the people who speak out the loudest against "torture" by the US, never speak out against countries and organizations that actually do torture people?

Also sleep and sensory deprivation are not torture.
9.11.2006 4:25pm
Anderson (mail) (www):
the people in charge do seem to believe that coercion does produce results

Really? Which people are those? The people who draft the Army interrogation manual? Or a bunch of half-cocked civilians with no clue on the subject?

Torture's been used throughout history by almost every nation and people.

So have slavery and command economies. Guess what? They're not all that effective, either.
9.11.2006 4:26pm
SG:
Anderson:

There's no new information in your links. I'm exactly familiar with what you're saying and I'm saying I find it acceptable. The stuff tought in SERE school: the stress positions, waterboarding, all of it. I don't consider it torture.

If the subject is somebody that could have been legitimately shot on the field of battle, then I find it acceptable to subject them to non-permanent pain and discomfort in an effort to retrieve useful intelligence from them. If not, and since they don't fight by the recognized rules of war, then they should have been shot on the field of battle. Frankly, I don't see that as a higher moral decision.

These aren't questions with objective answers. Just because someone disagree with you doesn't make them ignorant.
9.11.2006 4:28pm
BobN (mail):

And then what?


Whatever the rules allow. Look, I'm not naive enough to believe that individuals in the field may, no, will do things they shouldn't. It's unavoidable in war. The question is what they should do. What they should be allowed to do.

The problem today is how the rules are being changed and who is changing them. Memoes back and forth between John Yoo and other non-combatents does not constitute a national debate.
9.11.2006 4:28pm
BobN (mail):
Dang! Too much editing! (or too little)
9.11.2006 4:31pm
SG:
Anderson:

You ask what people think coercion has utility? How about the CIA agents in the article. Why are they buying insurance if they haven't done things that may cross the (currently invisible) line, and why did they do them if they didn't think it was effective?

I choose not to believe our agents are (on the whole) sadists.
9.11.2006 4:35pm
Just an Observer:
Medis :I think the basic problem with Adler's approach is that it continues to focus on the officers taking the illegal actions. What he really needs to do is shift focus to the people giving orders to those officers, and think about how to prevent those officers from being ordered to do illegal things.

I tend to agree. What is really problematical is the role that senior government lawyers have played in enabling this behavior.
9.11.2006 4:45pm
PaddyL (mail):
After 48 years of lawyering I am cynical enough to view the insurance program as another misguieded efort by government with an unacceptable unintended consequence. The insurance policies provides a source of funds for legal bounty hunters that will enable them to advance political agendas through litigation. Regardless of good intentions the insurance is a bad program.
9.11.2006 5:00pm
Medis:
SG,

Again, your proposed line is not the line between non-torture and torture. It is between how much torture we are or are not willing to subject are own people to in order to train them to deal with torture.

In fact, you say: "I think what's acceptable to do to our own makes for a good dividing line."

This is clearly playing on a very limited sense of "acceptable". We would NOT consider it "acceptable" if one of our enemies did this to one of our own while interrogating that person. We would also not consider it "acceptable" for our government to interrogate one of our own using these techniques (say, in a criminal investigation). Indeed, we would not even consider it "acceptable" to require all of our own military personnel to go through this training. The ONLY reason it is "acceptable" in this particular context is that these people have volunteered for such training to help them deal with torture at the hands of our enemies.

So, for the most part we consider these sorts of interrogation techniques UNacceptable when it comes to our own people, and allow the use of them on our own people only for this very limited purpose (to prepare certain people for possible torture in the future). So, again, it is quite absurd to take this as the dividing line between torture and non-torture.

Again, I think it is quite obvious that the real dividing line should be what sort of techniques we could consider acceptable if used by an enemy on our own people. If we would consider it UNacceptable for the enemy to, say, waterboard our own people, then even if we waterboarded certain volunteers to prepare them for such an event, waterboarding would remain an UNacceptable form of interrogation.

By the way, throughout history, torture has proven remarkably effective for certain purposes, such as producing confessions. Of course, those were often false confessions, but often the powers-that-be didn't much care about that. Anyway, my point is that the mere fact that torture has been used widely doesn't prove it is effective in achieving any particular purpose one can imagine.
9.11.2006 5:02pm
Anderson (mail) (www):
SG defines torture as "horror-movie stuff" and then says that techniques of actual torturers are not actually torture.

I don't think anyone subjected to waterboarding, or to stress positions as described above, would be under any doubt whether they were being tortured.

Which, for me, pretty much eliminates SG's credibility on this issue. YMMV of course.
9.11.2006 5:10pm
Daniel Chapman (mail):
Your reasoning is circular, Anderson.
9.11.2006 5:19pm
Medis:
Daniel,

Anderson can answer for himself, but I think his basic point is sound: most of the people posting here are in no position to use their imagination or intuition to determine what counts as "torture", because we have never experienced the relevant techniques nor seen them used on someone. And the fact that professional torturers have described them as effective techniques for causing extreme pain or fear should in fact count for more than what we might imagine or intuit.
9.11.2006 5:29pm
Mark Field (mail):
I think it's worth a link here to Brian Tamanaha's post at Jack Balkin's blog. I can't wait to read the history books 30 years from now on the justifications given for "worse crime[s] against humanity than killing."
9.11.2006 5:42pm
SG:
Medis:

I consider it unacceptable when the enemy kills our soldiers, yet I want our soldiers to kill the enemy. I have no problem with a double standard there, do you?

Or how about this, I'll accept proportionality as a standard. We get to treat the enemy the same way they treat our soldiers. Would that be acceptable to you?

I don't find domestic criminal procedures to be an appropriate model for captured illegal combatants.

But hey, if that's what you think, more power to you. You know, we ought to have a forum where rules for this stuff could be decided. Perhaps we could pick representatives and send them someplace where they could hash this sort of stuff out. They could then set down rules for what is and isn't permissable, based on the broad consensus of the people.


Anderson:

People describe life imprisonment as torture, and I think they have a point. It doesn't mean I think we should open up our prisons and let the murders free.

If you think the limits of torture end at stress positions and waterboardings, you need to do some more reading. It's not even close.
9.11.2006 5:45pm
Daniel Chapman (mail):
"SG defines torture as 'horror-movie stuff' and then says that techniques of actual torturers are not actually torture."

To the extent that he is trying to say that SG is wrong because he doesn't consider the techniques of "actual torturers" to be torture, then he's committed a fallacy. Maybe he can reword it to save himself, but that post is fundamentally flawed.

You're right though... I do think we should pay more attention to the opinions of actual interrogators in the field. If it's effective, and it doesn't shock my conscience (waterboarding and stress positions don't... sorry), then let's use it. Trouble is, it's rather pointless for a couple keyboard-jockeys like us to debate the effectiveness of these techniques, and only one of us is arguing for the one-size-fits-all approach of banning their use in all situations.
9.11.2006 5:45pm
SG:
Medis,

I'm not arguing that the various SERE school techniques don't cause pain and fear. I'm arguing that causing pain and fear in an illegal combatant, whose actions endanger the civilians they hide amongst and the civilians they try to attack, for purposes of obtaining intelligence, can be justified when carried out with appropriate oversight. And even there, their are limits to what I would find acceptable.

If an enemy does not wish to be subjected to pain and fear upon capture, they should abide by the rules of war.
9.11.2006 6:04pm
J. F. Thomas (mail):
From what I've heard, soldiers and law enforcement officers have the right to refuse an illegal order, one would assume that intelligence officers do as well. Anyone know for sure?

I don't know about law enforcement, but you are mistaken about soldiers. They don't have a right to refuse illegal orders,they have an affirmative duty to do so. Not only that, they also have an affirmative duty to prevent illegal orders from being carried out, stop others who are committing war crimes, and report to higher authorities those who are attempting to give illegal orders. Remember when General Pace contradicted Rumsfeld in a press conference when he said that American soldiers would be duty bound to stop Iraqi troops from torturing detainees if they encountered it. Rumsfeld seemed to think the Americans shouldn't or wouldn't interfere.

There is no Nuremberg defense for military personnel. The UCMJ makes that abundently clear.
9.11.2006 6:12pm
J. F. Thomas (mail):
The stuff tought in SERE school: the stress positions, waterboarding, all of it. I don't consider it torture.

It's nice you don't consider it torture. It's an even better thing you don't get to decide what is and is not torture as you apparently are some kind of sadistic monster who has a very warped view of what torture is. I would suggest you move to a country where your definition of torture is more acceptable. I hear Syria, Egypt, Pakistan or Uzbekistan find the methods you advocate quite appropriate. You might even get to participate in an honest to goodness stoning if you are lucky!
9.11.2006 6:19pm
Medis:
SG,

Once again, you are trying to play on an inapplicable definition of "acceptable".

You say: "I consider it unacceptable when the enemy kills our soldiers, yet I want our soldiers to kill the enemy. I have no problem with a double standard there, do you?"

In the relevant sense of "acceptable", we don't generally find it "unacceptable" for an enemy force to kill our soldiers. Obviously, we try to avoid it if possible, but we wouldn't say it was generally "unacceptable" for the enemy to kill our soldiers in the same sense as the enemy torturing our captured soldiers would be "unacceptable".

You also say: "I'll accept proportionality as a standard. We get to treat the enemy the same way they treat our soldiers. Would that be acceptable to you?"

Not exactly. What we should do is treat our detainees the same way we would want our enemies to treat our people if they were captured.

Daniel,

The problem with just leaving it up to the judgment of the individual in the field is that in high-pressure and/or emotional situations, people can do things which are both immoral and unwise. And again, there are longer-term consequences to torture that may not be fully considered by the interrogator in the field.

Of course, these are not unique considerations to torture: we develop such rules and procedures in advance precisely because leaving every complex moral and strategic decision up to the individual on the spot is both unfair and unworkable. And in some cases, with some categories of behavior, the likelihood of the behavior being both morally and strategically justified is so low that a blanket ban in advance is warranted.
9.11.2006 6:21pm
Daniel Chapman (mail):
WHERE did I say we shoudl "leave it up to the judgment of the individual in the field?" I said we should pay attention to their opinions! You know... WHEN FORMULATING A POLICY!

I just don't think we should say "Torture is bad" (and leave the definition of "torture" up to Human Rights Watch at a future date) with no consideration of when it may be necessary. We obviously disagree about what interrogation techniques are beyond the pale... as a country, we need to hash this out and find out where the line is.

Did you seriously think I said we should leave these decisions up to the agents in the field? You should read more closely...
9.11.2006 6:29pm
Anderson (mail) (www):
Brian Tamanaha makes a good catch from Robert Conquest, the noted (&vy. conservative) historian of Soviet Russia:
A central characteristic, seldom actually omitted from nonjudgmental accounts of Stalinism, was indeed torture. It was applied on a huge scale to produce a totally false picture of terrorism, sabotage, and espionage.

Even the ostensibly nonphysical methods used in 1936 are described by victims as both mentally and physically devastating. One man arrested briefly told me that the comparatively mild-sounding stoika, when a prisoner was kept standing against a wall for days, was hardly bearable. Torture is, one might say, a worse crime against humanity than killing.
I rather doubt that Prof. Conquest will be returning his Presidential Medal of Freedom to Bush; perhaps rightly so, since the honor isn't conditioned on the office-holder who bestows it.
9.11.2006 6:32pm
Anderson (mail) (www):
Oops, Mark Field got to it first---sorry!
9.11.2006 6:33pm
Medis:
Daniel,

You are right, I am not entirely sure what you are arguing for.
9.11.2006 7:48pm
SG:
In between all your moral preening, can any of you enlightened ones take time to state where you believe the line should be drawn? What is the appropriate balance between gaining intelligence from an illegal combatant and your refined moral sensibilities?

Is any interrogation permissable? Can the interrogator raise their voice? Deny food? Threaten? Deprive sleep? Where do they cross the line that makes the moral cost of retreiving information unacceptable?
9.11.2006 8:10pm
Medis:
SG,

For specific line-drawing, I think the recently revised Army Field Manual and accompanying directive would be an excellent place to start.

Now, perhaps you could take the time to just briefly reflect on the question of whether in your rush to torture, you might--just might--be overlooking some of the long-term consequences of torture, not just in abstract moral terms (although those are legitimate considerations), but also in terms of gathering intelligence from non-detainees, and indeed in furthering a long-term strategy to defeat our ideological foes.
9.11.2006 8:27pm
Mark Field (mail):

In between all your moral preening, can any of you enlightened ones take time to state where you believe the line should be drawn? What is the appropriate balance between gaining intelligence from an illegal combatant and your refined moral sensibilities?


This sort of pseudo-rationality is really disturbing and it's dispiriting to find it on a generally rational site. I'll let Edmund Burke -- a real conservative -- give my answer: "Though no man can draw a stroke between the confines of night and day, yet light and darkness are upon the whole tolerably distinguishable."

I'm more than happy to have a public debate on whether we should torture people. Medis can play Lincoln to your Douglas (or the "positive good" writers). Just be as honest as they were -- announce that you don't care about torture, or that you think it is a positive good. I have enough faith in the American people that I don't doubt the outcome of such a debate.
9.11.2006 8:28pm
Daniel Chapman (mail):
Would this debate involve the use of the word "torture" to describe every form of interrogation short of withholding cream from the prisoner's coffee? That's the biggest problem I have with the debate so far...
9.11.2006 8:39pm
Malvolio:
I have a pretty simple definition of torture. Torture is anything I wouldn't let them do to me to accomplish the same goal. To stop a plane from being flown into an office building -- waterboarding, stress positions? Sure, whatever. Electric shocks to the genitals? Well, most of my friends work from home...

Admittedly, it's something of a subjective standard, but it produces results I can live with.
9.11.2006 8:50pm
Medis:
Malvolio,

But have you experienced waterboarding and stress positions? If not, how do you know after experiencing them for a while, you wouldn't happily push the same "Well, most of my friends work from home" button to make it all stop?
9.11.2006 9:05pm
Anderson (mail) (www):
Would this debate involve the use of the word "torture" to describe every form of interrogation short of withholding cream from the prisoner's coffee?

Where does this false-macho b.s. come from??? Either we torture/coerce/abuse, or we do nothing worthwhile?

Standard interrogation techniques work. Quite well. They worked on the 1993 WTC plotters. They've worked on the Qaeda members not disappeared into black sites. They worked on the Germans and the Japanese during WW2.

But instead, we have the false-macho "tough guys" posing a false dichotomy that wouldn't make it past a junior-high logic class.
9.11.2006 9:05pm
SG:
Mark Field:

Will you be honest enough to admit that you're more concerned about inflicting discomfort on a jihadi than you are about protecting the life of my family?

If you want to put foolish words in my mouth, I can do the same to you.

The argument is not that torture is positive, it's that many of the things being talked about I and others don't consider as torture. Our soldiers volunteer to undergo the same procedures in training. They are not left with any permanent damage. It's coercive, yes. Painful and unpleasnt, sure, that's the point. I don't believe that an illegal combatant has any right to not be subjected to coercive, painful and unpleasant situations if they surrender and then choose not to cooperate.

(IMO) the point of this discussion is to find the red line, beyond which we don't cross irrespective of the circumstances. We shouldn't leave it to the discretion of some poor guy in the field, and then crucify him after the fact if we don't like the decision (or the outcome).

Of course, once having found the red line it doesn't begin to imply that we should walk up to it every time. Medis is right that we need to consider the effect of our policy on our long term goals. But I note that that cuts both ways. Would Iraqis be more pleased with the US if we could provide increased security? Would some judiciously applied coercion make that possible? Is that a tradeoff that they'd make?

It's a damned hard issue. The most recent British plot was uncovered (at least in part) due to some (assumed) torture in Pakistan. Are any of you prepared to say that it would have been better if the planes had been blown up?
9.11.2006 9:15pm
Medis:
Daniel,

Ironically, I think the word "torture" is more being used as a shield than a sword. The Administration has consistently maintained that it doesn't "torture", but has adopted some definitions of "torture" that would allow even the sorts of things SG thinks are torture.

As I would put it, the real issue is whether we are willing to violate the minimal protections of Common Article III of the Geneva Conventions, and generally whether we are willing to subject our detainees to techniques we would object to if used on our own people in enemy hands. And fortunately, as I noted, the recently revised Army Field Manual provides a pretty good starting point, and personally I would be happy if those same rules applied to every GWOT detainee regardless of which part of the U.S. government was holding the detainee. Which is not surprising, since the standards I suggested are the standards they started with.

So, that is how I would put the question: do you have a specific problem with the revised Army Field Manual? If so, what is it, and why do you think it is a problem?
9.11.2006 9:16pm
Medis:
SG,

I am fully prepared to say that the things which happened in Abu Ghraib and other places have done far more damage to our cause in Iraq than any intelligence they have yielded. But you don't have to take my word for it. This is what Lt. Gen. John F. Kimmons, the Army's Deputy Chief of Staff for Intelligence, said at a Pentagon news conference when discussing the revised Army Field Manual, which definitively outlawed the practices we are discussing: "no good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tells us that."
9.11.2006 9:23pm
SG:
Medis:

What part of Abu Ghraib qualified as judicious use of coercion to gain intelligence from illegal combatants?

Are you intentionally misreading me? I'm not saying that we should beat anybody at anytime. I'm saying that we need to define the red line prospectively through the political process so the people we ask to defend us aren't left hung out to dry (i.e., the article at the top).

I then put forth an example of where I though would be a good place to draw the line, complete with an objective standard (what we will subject our volunteers to in training). If the political process decides to draw the line tighter and everyone is clear and up front about the tradeoff that's been made then that's fine. I'd rather have no coercion and cream in everybody's coffee if that's sufficient to acheive our goals.

While it clearly makes some people feel better about themselves, shreiking "torturer" at anybody trying to address the issue isn't constructive.
9.11.2006 9:36pm
Anderson (mail) (www):
Will you be honest enough to admit that you're more concerned about inflicting discomfort on a jihadi than you are about protecting the life of my family?

What part of "interrogation works better than torture" does SG not get? Could we have General Kimmons pick up the phone &personally explain it to him?

The people who are jeopardizing our families, are those whose melodramatic hubris leads them to torture prisoners who might've become cooperative through proper interrogation.

The people who are jeopardizing our families, are those whose torture of the innocent has turned those innocents into our enemies.

The people who are jeopardizing our families, are those whose disregard for American values has led to those values' being made a mockery the world over.

And when there's another 9/11, the SG's will say that we just didn't torture enough people ....
9.11.2006 9:36pm
SG:
Anderson:

Please check your reading comprehension, specifically the sentence after the one you've quoted. Also note the sentence about not going to the red line every time.

Or continue to preen. It must be nice to live in such a simple world of black &white. Are not even the skies grey on your planet?
9.11.2006 9:44pm
Mark Field (mail):

Will you be honest enough to admit that you're more concerned about inflicting discomfort on a jihadi than you are about protecting the life of my family?


Anderson and Medis both gave good answers.

The basic problem, SG, is that you're trying to reverse the usual method of writing laws and to put the onus on us for not going along. Here's a law:

1. Torture is prohibited.
2. Torture shall consist of any act which violates Common Article 3, including but not limited to a-z.
3. The penalty for torture is X.

That's how statutes read. What you're doing is demanding that we account for every possible future contingency and every hypothetical form of torture, including those not yet used, before we write the statute. That's why we have a common law judicial system, to work out nuances over time. If you want to do something to someone which you believe is not torture under my statute, go ahead. You pays your money and you takes your chances. Convince the judges or the jury. But don't ask Congress to decide all these issues in advance of even passing a statute.
9.11.2006 9:50pm
Daniel Chapman (mail):
People skills, anderson... people skills. If you won't play nice, I won't talk to you any more. Bye bye.
9.11.2006 9:51pm
Mark Field (mail):

Or continue to preen. It must be nice to live in such a simple world of black &white. Are not even the skies grey on your planet?


Nobody's claiming sainthood here. You get to be a saint for handling the difficult issues. This one's a slam dunk; not much credit for those.
9.11.2006 9:52pm
Medis:
SG,

On the issue of your proposed standard, I'll just repeat again that it makes little sense to use the training we give to people to prepare them for torture to define what is not torture. Indeed, that is basically logically backwards.

Anyway, there was much at Abu Ghraib and other places which was intentional and authorized, and incredibly damaging to our cause in iraq. But just as importantly, one of the well-studied long-term consequences of authorizing abusive techniques is that people in the field will tend to push farther and farther along these lines, even if not authorized. The basic dynamic seems to be that once you promote the idea that pain, fear, and degradation can be effectively used to obtain intelligence, and then people try the approved techniques and they don't work, they then think maybe more pain, fear, and degradation will do the trick. So, they keep upping the level of abuse, hoping to get the intelligence payoff they were promised.

Anyway, these are the things you have to take seriously when designing rules and policies. And since I think it is relevant to this discussion, I will post an entire exchange from the news conference I mentioned:

"QUESTION: General and Mr. Stimson, some of the tactics that were used, in particular in Guantanamo Bay, that were considered by investigators to be abusive when used together are now prohibited, for example, the use of nudity, hooding, that sort of thing.

In looking at those particular tactics and now not being able to use them, does that limit the ability of interrogators to get information that could be very useful? In particular on one detainee in Guantanamo Bay, some of those tactics that are now prohibited were deemed to be very effective in getting to that information.

Also, are there going to be safeguards to prevent whether it be interrogators or commanders from interpreting the tactics that are approved in ways that could be abusive, as some of those tactics were derived from standard interrogation tactics?

KIMMONS: Let me answer the first question. That is a good question. I think -- I am absolutely convinced -- the answer to your first question is no. No good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tell us that.

Moreover, any piece of intelligence which is obtained under duress, through the use of abusive techniques, would be of questionable credibility, and additionally it would do more harm than good when it inevitably became known that abusive practices were used. And we can't afford to go there.

Some of our most significant successes on the battlefield have been -- in fact, I would say all of them, almost categorically all of them, have accrued from expert interrogators using mixtures of authorized humane interrogation practices in clever ways, that you would hope Americans would use them, to push the envelope within the bookends of legal, moral and ethical, now as further refined by this field manual.

We don't need abusive practices in there. Nothing good will come from them."
9.11.2006 9:55pm
SG:

Nobody's claiming sainthood here. You get to be a saint for handling the difficult issues. This one's a slam dunk; not much credit for those.


I'll ask again: Would it have been better that the British plot succeeded rather than Pakistan have tortured someone to uncover it? This is not some hypothetical. It was in all the papers last month.

Nor am I trying to reverse the procedure for defining a law. The White House has just sent draft legislation to Congress to clarify what is considered a violation of Common Article 3. As per the article at the top, field agents are uncertain over what is permissable. This whole debate is taking place in that context. This issue is actively up for
debate as we speak.

Medis: If you want to compare quotes, here's one for you from yesterday's New York Times. Unfortunately being the New York Times, the source is anonymous, but...


"As the president has made clear, the fact of the matter is that Abu Zubaydah was defiant and evasive until the approved procedures were used," one government official said. "He soon began to provide information on key Al Qaeda operators to help us find and capture those responsible for the 9/11 attacks."

This official added, "When you are concerned that a hard-core terrorist has information about an imminent threat that could put innocent lives at risk, rapport-building and stroking aren't the top things on your agenda."


I understand your assertion about the SERE training being torture, I simply dispute it. If the SERE instructors are torturing trainees, why are they not locked up? Torture is illegal, military members have an affirmative duty to stop it. Yet it's part of the official curriculum. Perhaps, even though it is coercive, it's not actually torture? Maybe, just maybe, those two terms are not synonyms? Possibly what we subject SERE trainees to is a well-calibrated series of stressors designed to push (physical/mental/emotional) boundaries but not to cross some line? What's that line? Who decides it? Could knowing where that line is be useful in other circumstances?

I read (but I can't find) an article by a CIA interrogator who stated that it wasn't useful to make an interogee suffer but it was extermely useful to be able to incite fear and to have the power to alleviate that fear. He also said that every person was different. Some could be effectively interrogated with kindness, others would break after a little fear, and some would resist anything up to and including death. Does this seem unlikely or unreasonable? Do you really feel that nothing beyond a kind word is ever necessary? Are there ever time constraints on an interrogation? Is there never a tradeoff?

Never mind. You can all go back to your absolute truths. Sleep well and don't trouble yourselves with the rough men ready to violence on your behalf.
9.12.2006 1:03am
Mling (mail):
How come no one has brought up moral hazard?
9.12.2006 2:08am
Medis:
SG,

Actually, your question about the British plot is indeed a hypothetical, because many of the alleged conspirators were already under surveillance before the torture supposedly occurred in Pakistan. And the reliability of that specific information is seriously in doubt.

As for your question as to why SERE trainers are not locked up for their acts of torture, that is like asking why boxers are not arrested and charged with assault. But guess what? If one of those boxers did the exact same thing to someone else in a different context, they would be arrested and charged with assault.

Anyway, I will indeed take the on-the-record word of the Deputy Assistant Secretary of Defense for Detainee Affairs and the Army Deputy Chief of Staff for Intelligence over an off-the-record defense of the President's interrogation policy by an unnamed Administration official. On the specific point raised by your anonymous source, the Deputy Assistant Secretary of Defense stated:

"I can tell you, I'm not an interrogation expert. I'm just a lawyer who happened to end up in a policy job. But as a prosecutor in my former life, and when I spend time in Guantanamo talking to the interrogators there, they'll tell you that the intelligence they get from detainees is best derived through a period of rapport-building, long-term rapport-building; an interrogation plan that is proper, vetted, worked through all the channels that General Kimmons is talking about, and then building rapport with that particular detainee.

So it's not like Sipowicz from the TV show where they take them in the back room. You're not going to get trustworthy information, as I under it, from detainees. It's through a methodical, comprehensive, vetted, legal and now transparent, in terms of techniques, set of laydown that allows the interrogator to get the type of information that they need."

And notice that your unnamed source simply didn't address the long-term consequences of abusive techniques. General Kimmons did, however. Once again, he said:

"Moreover, any piece of intelligence which is obtained under duress, through the use of abusive techniques, would be of questionable credibility, and additionally it would do more harm than good when it inevitably became known that abusive practices were used. And we can't afford to go there."

On a final note: you are repeatedly accusing those who disagree with you of a lack of nuance, inability to see shades of gray, and so on. Aside from being rather unpersuasive as a rhetorical tactic, I think you are throwing stones from a glass house.

It is the simplistic mindset which says, "If this person is a bad person, and likely has intelligence we need, it must be OK to abuse him to get that intelligence." As we have repeatedly pointed out, such a mindset fails to take into account the ways in which such abuse might not only be immoral, but also counterproductive. And it could be counterproductive not just in terms of interrogating that detainee, but also in terms of getting "human intelligence" from non-detainees (another point discussed by General Kimmons), and even further in terms of long-term strategic goals. We have also repeatedly pointed out the difficulties with putting into practice a policy that allows just some abuse, some of the time, without it leading to too much abuse, too much of the time. This latter danger is particularly relevant in light of the tactical and strategic consequences of abusive interrogations.

So, frankly, I think you are the one who is insisting on treating this as a simple matter when in fact it is far more complex than you (or your anonymous source) is willing to admit. And the fact that the Army and others have come out in favor of no abusive techniques whatsover isn't an indication that they have over-simplified the issue. Rather, it is a rational response to their conclusion that abusive techniques, in their experience, end up doing more harm than good.

So, I'd suggest you stop trying to insult us, and start listening carefully to what people like General Kimmons have to say. Maybe you will still end up disagreeing with General Kimmons, but at least then your disagreement would be based on a full assessment of the relevant considerations.
9.12.2006 4:41am
SG:
I am clearly not making myself understood. Please stop assuming I'm ignorant of the "relevant considerations". All I am saying is that we need an objective standard, a bright red line, beyond which its clear that an operative has done wrong and is criminally and civilly liable for their actions.

I have continually stated that it should not be general policy to go up to that line every time. I agree that generally the best results are not acheived under duress. But the general procedure isn't always appropraiet for every situation. Sometimes their isn't time for best results. And I have certainly heard some (although to be fair, not here) say that we should outlaw coercive interrogations, but rely on the fact that in a ticking bomb scenario somebody would "do what they had to" in an emergency situation. I think that sort of attitude is grossly unfair to the person in the field. If we intend to hold someone liable for going to far in trying to protect us, they have every right to know how far is to far in any circumstance.

Almost everybody agrees that we shouldn't torture. Where we disagree is on the definition of torture. It has been put forth that, irrespective of their treatment, the indefinite detention of prisoners is torture. Do you subscribe to that view? In any case, it's clear that not all define torture the same way. The issue is not should we torture, the issue is what is torture.

Pleas note that the defining torture is completely independent from defining the appropriate policy to follow regarding prisoners and detainees. In general, what we do isn't defined by what we can do. The general policy needs to take into account the general goals and the people carrying those goals out. I agree the general policy should be that none of these techniques are appropriate.

But the general policy can be modified by a particular situation. This is where it's important to have the bright red line decided a priori. Because when it's actually happenning is a really bad time to try to figure out where you need to stop.

Now clearly you believe that the "approved procedures" cross the bright red line. But others, more informed than you or I, clearly believe that there are circumstances where the approved preocedures are useful and perhaps even necesary. You might wish to consider that.

I've got no problem with you and others arguing for the bright red line to be drawn closer in. I'm glad that they're were Quakers who wouldn't fight in WWII. Our country, and the world, is a better place for it. But I don't think our country would have been well served by Quakers making war policy. It's a matter of current debate where and how the line should be drawn. I've put forth a proposal. You and others have taken great pains to tell me how wrong, ignorant and immoral I am, but somehow have managed not to bother to say what would be right.

Actually, that's not quite fair to Medis, who has stated comfort in the revised Army Field Manual. Is it fair to say that you would hold harmless anyone who failed to stop an attack on you and your family if they limited their interrogation to the field manual?
9.12.2006 9:56am
Medis:
SG,

Yes, I would hold harmless someone who failed to stop an attack because they stayed with the limits of the Army Field Manual.

Now, would you hold harmless someone who caused an attack because they went beyond those limits?
9.12.2006 3:18pm
SG:
If they were acting within the bounds of approved policy, yes.

This is all a balancing act. Being overzealous can be a problem, but so can being underzelaous. The point is to find the policy that the nation on a whole is comfortable with. That may not (and probably won't be) either of our positions.
9.12.2006 3:46pm
Mark Field (mail):

All I am saying is that we need an objective standard, a bright red line, beyond which its clear that an operative has done wrong and is criminally and civilly liable for their actions.


I just don't see how a "bright line" test is possible. People are, sadly, all too inventive when it comes to torture. Any statute which isn't framed in general terms will leave openings for future abuses. Even if we tried to list the approved practices, that leaves open the potential for abuse. For example, if I slap someone once that's not likely to be considered "torture" by anyone. If I slap them a thousand times in a row, different story. The only bans which will work are those framed like CA3.


And I have certainly heard some (although to be fair, not here) say that we should outlaw coercive interrogations, but rely on the fact that in a ticking bomb scenario somebody would "do what they had to" in an emergency situation.


I'm not very impressed by the ticking time bomb scenario (to be fair, you may not have been suggesting one). That's a logical game anyone can play: "what if we had to re-institute slavery in order to avoid a nuclear war?"; "what if we had to re-enact the Holocaust to save the earth?". All this proves is that logic is an inadequate tool.


Is it fair to say that you would hold harmless anyone who failed to stop an attack on you and your family if they limited their interrogation to the field manual?


Yes. The fact is, we risk lots of harmful outcomes for the benefits of liberty and the establishment of certain moral principles. It's far too easy to say "let's relax our principles in order to prevent X." We can justify doing that at the margins, but if use such logic at the core, then we don't really have principles at all. To me, torture is in the same moral category as slavery or the Holocaust. It's a core principle of civilized society.
9.12.2006 4:44pm
Medis:
SG,

Again, though, it is not just what our nation would be comfortable with that matters. As General Kimmons and others have pointed out, how we are perceived by others is extremely important. In that sense, it is quite likely the optimal policy is more restrictive than the policy the American people alone would tolerate.
9.12.2006 5:08pm
chris (mail):
Prof Field - sorry to wade in late, but earlier you offered the following as a proposed anti torture law.

"1. Torture is prohibited.
2. Torture shall consist of any act which violates Common Article 3, including but not limited to a-z.
3. The penalty for torture is X."

how can the govt hold someone criminally liable for conduct that's not clearly demarcated? this is troublesome if we were talking about a law to be applied vs your avg mafia hitman. but to inflict such a vague and shifting standard on men and women who presumably are acting in good faith and to protect us all would be unconscionable.
9.12.2006 5:25pm
Medis:
Chris,

Although you didn't ask me, I might note that part of the solution to any problem like this is just good rules and procedures and good training. The idea is to provide rules for detainee treatment and procedures for interrogations which, if followed, will make sure that U.S. officials haven't violated Common Article 3. You then train all the relevant U.S. officials in these standards and procedures, and if they stick to their training, they won't be in danger of criminal liability.

This, incidentally, is exactly the approach the Army has taken to these issues for many decades, and it has largely worked quite well. But to keep this system working well, you can't have people giving orders that run contrary to these rules, procedures, and training, because that is what creates the conditions in which criminal liability is likely to arise.
9.12.2006 5:45pm
MnZ (mail):
Not to pick nits here. However, wouldn't firm questioning by a female interrogator be considered demeaning in some societies? Worse than even certain forms of physical torture? Similarly, some people find getting yelled at very frightening while others consider it commonplace.

Defining torture seems a bit like defining obscenity.
9.12.2006 6:08pm
Mark Field (mail):

how can the govt hold someone criminally liable for conduct that's not clearly demarcated? this is troublesome if we were talking about a law to be applied vs your avg mafia hitman. but to inflict such a vague and shifting standard on men and women who presumably are acting in good faith and to protect us all would be unconscionable.


I'm not sure my proposed statute is any different than, say, the 4th A standard: no "unreasonable" searches, or the 8th A: no "cruel and unusual" punishment. Government officials face these issues all the time. In the 1700s, remember, government officials faced tort liability if they conducted an "unreasonable" search. That's very similar to what they'd face today under a statute banning "inhumane" treatment.

The reason we accept this result is twofold. First, demanding excessive specificity is just a way of precluding a statute at all. The English language just isn't capable of that sort of precision. Second, a common law judicial system deals with the actual application of statutory language to specific fact patterns.

Lest I be accused of using constitutional type language in a statute -- and I'd have no more problem banning torture by Constitutional amendment than I do slavery, which would raise the same issues -- consider CA Penal Code Sec. 187 (in relevant part): Murder is the unlawful killing of a human being with malice aforethought.

I think it fair to say that terms like "unlawful" or "malice aforethought" in that statute are no more intrinsically vague than the word "inhumane" is in CA3. We don't demand that legislatures specify in advance every possible instance of murder, because if we did there never would be a statute. Instead, we expect that the judicial system will deal with the specific and unpredictable fact patterns which will naturally arise.


Prof Field


I'm a mere lawyer, not a lofty professor. Unless you were being ironic or sarcastic, in which case I'm tone deaf enough to be a professor.
9.12.2006 6:17pm
Mark Field (mail):

Defining torture seems a bit like defining obscenity.


Yes, and yet we manage to ban obscenity even though it arguably infringes on the 1 A, whereas torture raises no similar issue.
9.12.2006 6:20pm
SG:
This is why it's important to define terms. It doesn't do to just say "Thou shalt not torture". What is torture?

I stand by my claim that anything we do to our own volunteers as matter of course with the full expectation that they will endure and be willing and able to risk their life on behalf of the person who did inflict it upon them; that's not torture.

It's torture when a reasonable person would believe that the subject would be irreperably harmed as a result. Discomfort, distress or pain are not sufficient. If you conduct war illegally, targetting and hiding amongst civilians and surrender or are captured, you've forfeited any right not to placed in discomfort distress or pain if you are reasonably believed to hold information that can prevent harm befalling innocents. You have not forfeited your right to not be irreperably harmed.
9.12.2006 6:45pm
chris (mail):
first - sorry, Mr. Field, I thought I read up stream that you were a prof. no sarcasm intended.

second - Medis may be correct and the Field manual may offer a solution (I need to read it to see if it answers the vagueness objection). I am certainly in agreement that torture properly defined should be unlawful.

I would prefer though that civil liability not attach at all, and that any punishment be criminal alone in nature, so that the decision to proceed rested in the hands of a politically accountable prosecutor or military prosecutor.
9.12.2006 7:19pm
SG:
Wow, my last post was quite poorly written.

What I mean in the second paragraph is that the expectation is that soldiers come out of their SERE experience not as broken human beings, but as better and more capable soldiers. I don't see how an (admittedly miserable) experience that is believed to be beneficial to the training of our soldiers can legitimately be called torture.

Torture breaks a human being, physically, mentally, emotionally. We can't and shouldn't do that under any circumstances. But we have no obligation to make an illegal combatant comfortable if we reasonably believe there can be benefit derived from making them uncomfortable.

And again Medis, simply because we can do something doesn't mean we should. That's a separate issue.
9.12.2006 8:15pm
Medis:
SG,

If you want to discuss the morality of torture, we can do that.

You seem to be arguing that if there is no permanent physical or mental damage, it can't be torture. That, of course, is effectively the limit for training our people to deal with torture--we want them to experience torture as fully as possible, but we don't want to permanently damage them.

But there are two obvious flaws with your reasoning.

One is simply that context does matter, and the fact that these people are volunteers may well make a difference in the damage caused. Consider, for example, the difference between consensual sex and rape. The latter could cause permanent mental damage precisely because it was done against the person's will, even if it caused no permanent physical damage. The same reasoning applies to boxing versus an unlawful assault, and so on. In short, mental trauma depends in part on context, so you can't change the context and assume the mental trauma would remain the same.

But more broadly, I see no reason for torture to require permanent damage. One of the essential reasons why torture is considered a great moral crime is that it intentionally attempts to take a rational autonomous human being and, through the induction of pain, fear, degradation, or so on, reduce that human being to something less--a nonrational, nonautonomous, compliant being. That is why torture is often described as a crime against humanity. And while it is obviously worse if that effect of depriving someone of their basic humanity is permanent, even a temporary intentional reduction of a human being into something less than human represents such a crime.

And we actually know that this is the crucial defining element of torture. If torture was defined only by physical or mental damage, then torture would be nothing more than a species of assault. But torture is treated as a unique crime precisely because it contains this unique element of consciously depriving a person of his basic humanity.

So, returning to torture training, it is again possible that the fact that the trainee is a volunteer actually prevents the crime against humanity from happening, precisely because they are a volunteer, and hence in some sense may retain their autonomy even as they are being tortured. But perhaps not--perhaps even during the training they are also temporarily reduced to something less than human.

As I noted above, however, that wouldn't make it a crime. Again, the analogy to boxing is quite obvious: what boxers do to each other causes physical pain and physical damage, and would be criminal assault, if not for the fact that they volunteered. So, the mere fact that the trainee volunteered could be enough to render the acts legal, even if they would otherwise be criminal torture.

In short, there is no logical reason to assume that torture training doesn't include actual torture, which is rendered legal only because it was voluntary (as with boxing versus assault). And even if it doesn't include actual torture, the only reason why it isn't torture may again be because it was voluntary (as with consensual sex versus rape).

But frankly, all this should be quite obvious. It simply makes no sense to say that torture training defines what ISN'T torture. In fact, you'd be on much more solid ground if you claimed torture training could help define what IS torture.
9.12.2006 9:12pm
SG:
Do you believe that illegal combatants have a right not to experience any pain or discomfort in an effort to retrieve useful information from them, or are were just arguing over where the line should be drawn?
9.13.2006 10:06am
Medis:
SG,

I believe that all people have a moral duty to treat all human beings as human beings. I think that means we have a moral duty not to attempt to use the intentional infliction of pain, fear, or degradation in an attempt to reduce human beings to nonrational, nonautonomous beings, for the purposes of extracting information, or for any other purpose.

This proposition is distinct from your proposition in a couple ways. For one thing, you seem to be focusing on the "rights" of "illegal combatants". But I am focusing on our duties as moral human beings, and the basic duties that we have to other human beings which do not depend on their legal status.

For another, you are talking about these people "experienc[ing] any pain or discomfort" without any sense of agency. I do think we have some positive duties with respect to providing adequate food, shelter, medical care, and so on, when we hold human beings against their will. But when talking about things like abusive interrogations, you are not just talking about letting them experience pain or discomfort. Rather, you are talking about deliberately causing them pain, fear, or degradation. Moreover, you are necessarily talking about causing them enough pain, fear, or degradation that they are not only "uncomfortable", but such that you actually render them incapable of resisting your will.

In short, your way of phrasing all this seems calculated to suppress the fact that in abusive interrogations, one human being has to be deliberately subjecting another human being to pain, fear, or degradation, and has to subject that human being to enough of these things that they finally are incapable of remaining a human being. And if you want to defend that practice, go ahead. But you shouldn't try to hide what we are really talking about.

Finally, yes, I do think that all intentional abuse in this fashion should be beyond the line, for both moral an prudential reasons. And I might note again that the Army agrees with me. But I still think that is an exercise in line-drawing--I just draw the line at intentionally abusing detainees in an attempt to dehumanize them, and apparently you have some other line in mind.
9.13.2006 1:56pm
MnZ (mail):
Yes, and yet we manage to ban obscenity even though it arguably infringes on the 1 A, whereas torture raises no similar issue.


True. I am not saying that torture should be legal. However, it is odd that there is a clearer legal definition of obscenity than torture.

I come back to my example of a female interrogator. To some people, a female interrogator would be psychological torture. Now, maybe we should not allow female interrogators in such cases. However, it represents the practical problem with defining torture so that we can avoid practicing it. Claimed physical and psychological discomfort cannot be the standard since any prisoner could always claim discomfort. Furthermore, "reasonable person" would likely always find being a prisoner and being interrogated unpleasant.

Banning the personal liability of agents makes a lot of sense if the legal standard for torture is so vague. Otherwise, we might run into situations where female CIA agents are sued for (i) being female and (ii) conducting an interrogation on culturally misogynistic individual.
9.13.2006 2:00pm
Medis:
MnZ,

As a general matter, Common Article Three and traditional U.S. law does not completely prohibit anything which may "discomfort" or be "unpleasant" to a detainee. Rather, it prohibits intentionally abusing detainees.

Specifically with respect to your female interrogator, the only potentially relevant clause of Common Article Three would be the ban on "outrages upon personal dignity, in particular humiliating and degrading treatment." But as I understand U.S. law and policy with respect to Common Article Three, it would not be enough for the detainee to find it humilitating to be interrogated by a female. Rather, we would have to be intentionally trying to humiliate the detainee by using a female interrogator.

Moreover, the background standard announced by the Army was "if the proposed approach technique were used by the enemy against one of your fellow soldiers, would you believe the soldier had been abused?" Obviously, we would not think merely using a female interrogator was abusive. In general, this sort of standard implies that we are not using a culturally-relative standard when it comes to legal liability, although for prudential reasons we might want to be careful about respecting different cultural norms.

Finally, these really aren't more difficult questions than those posed by the criminal law in general. Anyone who has studied criminal law, or just thought about it in detail, is aware that the written law cannot anticipate and answer every possible hypothetical. Accordingly, all of us subject to the criminal law have to rely on the idea that prosecutors, juries, and judges will apply reasonable standards of criminal liability in light of the circumstances of a particular case. But that fundamental aspect of our criminal justice system has never been an excuse for giving up on the criminal law entirely, and it is no excuse here.
9.13.2006 3:17pm
SG:
Medis,

I want to explore your definition. You say it is illegitimate to render another incapable of resisting another's will, even if only temporarily. Imprisonment is an imposition of their captors will over their own, is it not? Surely that's not torture? If a prisoner refuses to enter their cell, can they be be forced? In general, can some degree of force be used to enforce compliance with a legitimate commands by the guards?

I'm reasonably sure you would accept these sorts of actions as necessary, even though pain or discomfort may be inflicted in the process. If so, then it's not correct to categorically state that it's illegitimate (or torture) simply to use force to enforce compliance with the captor's will.

So what makes force permissable in these circumstances? I'd assert that it's permissable if a) it's initiated by a prisoner refusing to cooperate with a legitimate goal and b) it's done with the minimum amount of force necessary.

I contend that interrogating an illegal combatant is exactly the same scenario. Interrogation of an illegal combatant is absolutely a proper request that an illegal combatant has no legitimate right to refuse to cooperate. So, just like a prisoner who refuses to enter their cell, it is legitimate to use force to gain compliance.

So the question then becomes what is the minimum amount of force necessary. Given that some people will never cooperate regardless of the amount of force used, it behooves us to define a line that we do not wish to cross (prisoners may be unable to cooperate not through willfullness but due to ignorance or innocence and some things are torture which we do not wish to do). I assert that limiting ourselves to what we subject out own people to is a good place to draw the line. If we are willing to do it to our own, it fails to shock my conscience. Again, others may differ.

Now, I fully expect you to continue disagreeing with me, but I'm curious as to where. Do you feel it's illegitimate to enforce prisoner compliance with a proper directive, that interrogation of illegal combatants is improper, or that what we are already crossing a moral line in what we do to our own people?
9.13.2006 3:45pm
SG:
Medis,

As per your proposed standard: If our soldiers were captured by an enemy who was not a Geneva signatory and our soldiers were treated in a manner equivalent to their training, I would not be outraged nor find it unacceptable.

In fact, it would represent a great improvement over how our soldiers have typically been treated.
9.13.2006 4:04pm
Medis:
SG,

You are confusing doing something against one's will, such as physically confining them, with destroying their ability to have free will, which is what one tries to do with abusive interrogations. A more appropriate analogy would be something like a prison where instead of locked cells, you instead used a high-powered version of those shock-collar systems used to train dogs to stay in a yard, such that the prisoners eventually recoiled at the very idea of leaving their cell. And I would indeed say that sort of prison confinement system should be illegal.

In general, you are once again trying to avoid the real moral issues by implying abusive interrogations are just like any other use of force. Abusive interrogation isn't like the use of force for a physical end, like restraining and bringing a person into a cell so you can lock it. Rather, insofar as abusive interrogations use force (and they don't have to, really, at least not against the detainee himself), they are using it for a very particular purpose: to cause pain, fear, degradation, or the like, and so much that it actually reduces the detainee to something less than human. And they have to work that way: you can physically manipulate a person's body into a certain location, but you can't physically force a person to tell the truth. Instead, you need them to do so of their own volition, so your abuse has to be targeted at their very will itself.

On a general note: I think I am going to cut off our moral discussion at this point. With all due respect, you are simply refusing to grapple with what is really going on in abusive interrogations, and until you can acknowledge the actual import of what you want our people to do, there really is little point in continuing this discussion.
9.13.2006 4:06pm
Medis:
SG,

On your addendum: I doubt most Americans would agree it was acceptable for, say, our captured soldiers to be paraded around naked and insulted by their captors, slapped around, subjected to hypothermia, waterboarded, and so on. And obviously, the fact that even worse can happen to them doesn't make all that other stuff OK.
9.13.2006 4:09pm
Medis:
SG,

On reflection, I am going to cut off this entire conversation. In light of what you think is acceptable for our own soldiers to experience at the hand of their captors, I don't think you and I share a common sense of decency and morality at all.
9.13.2006 4:11pm
SG:
Medis,

I'm sorrry that rather then engage me in polite and logical debate you choose to insult me and walk away. Perhaps others will find your self-proclaimed enlightnment persuasive.
9.13.2006 4:33pm
Mark Field (mail):
Medis, your posts are fantastic.


I am not saying that torture should be legal. However, it is odd that there is a clearer legal definition of obscenity than torture.


I'm not sure this is true. Here's the definition of obscenity from CA Penal Code Sec. 311, in relevant part:

"[M]atter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, political or scientific value."

Now let's convert that language into a hypothetical anti-torture statute:

"Torture is conduct which, to the average person, applying contemporary nationwide standards, is cruel, inhumane, humiliating, or degrading, and that, taken as a whole, exceeds that which is essential to maintain order or safety among prisoners."

This is, obviously, off the top of my head; we could add or subtract clauses as needed. The point is not the precise wording, it's that such a statute would be no "clearer" than the obscenity statute which has SCOTUS approval as sufficiently precise. And remember that the standards for precision in obscenity statutes are MUCH stricter than for most penal statutes because of the chilling effect on the 1 A.

Medis's outstanding posts on the fundamental moral wrong of torture caused me to recognize that there's a close connection between torture and slavery. In each case, the fundamental purpose is, as Medis says, to destroy the autonomy, the free will, the essential humanity of the victim. In each case, such destruction is necessary in order to make the victim subservient, to carry out the will of another instead of his own. It's certainly worth noting that slaveholders kept their slaves in bondage by resort to torture -- lashings, beatings, amputations, etc. Is it too much of a stretch to think that torture might one of the "badges and incidents of slavery" banned by the 13 A?

Last comment: as far as I know, nobody has ever suggested that we first had to define all the "badges and incidents of slavery" before we could prohibit slavery.
9.13.2006 4:41pm
Medis:
SG,

I wasn't trying to insult you. But in my experience, there is little point in people having a moral discussion if they do not share certain basic moral intuitions. And snce you and I disagree over such a basic matter as what would be acceptable treatment of our own soldiers, I think we are in exactly that situation.
9.13.2006 5:39pm
SG:
Mark,

No one wants torture. Not everything bad is torture. As your proposed statute implies, some degree of "badness" may be necessary for proper functioning. Is gaining intelligence a proper function, or are only order and safety legitimate?

I'm inclined to agree with the statement that true torture destroys the victims humanity. Torture destroys the individual's will to resist, yet isn't one of the drawbacks with our coercive techniques is that the subject will lie to make it stop? If the individual's will to resist continues, by definition doesn't that state that the coercion isn't torture?

And is it really your contention that our soldiers come out of SERE school with their humanity destroyed? Really?

I'll say it again. We shouldn't torture under any circumstances. Coercion is not a synonym for torture.
9.13.2006 5:49pm
Mark Field (mail):

Is gaining intelligence a proper function, or are only order and safety legitimate?


Both are legitimate functions, of course. That's not really the question. The question is, "what is appropriate to achieve that purpose?".


And is it really your contention that our soldiers come out of SERE school with their humanity destroyed?


Medis has pointed out the multiple flaws in this approach.



If the individual's will to resist continues, by definition doesn't that state that the coercion isn't torture?


If someone jumps off a 40 story building but is still alive as he passes the 17th floor, I wouldn't conclude that it was safe to jump.
9.13.2006 5:58pm
Medis:
Similarly, if you push someone of a high building and they happen to survive, it could still be assault and attempted murder.
9.13.2006 6:06pm
chris (mail):
"Torture is conduct which, to the average person, applying contemporary nationwide standards, is cruel, inhumane, humiliating, or degrading, and that, taken as a whole, exceeds that which is essential to maintain order or safety among prisoners."

this is way too slippery if you're talking about using this as a means of imposing civil liability on US troops or CIA agents.

and w/r/t your analogy to slavery, Mr. Field, what = slavery is pretty cut and dried. as the length of this thread suggests, what = torture isn't. if I read Medis right, he apparently believes it could include 'intentionally trying to humiliate the detainee by using a female interrogator.' by contrast, I don't think that's within a mile of torture.

one more point - you note that Congress didn't bother to define all the "badges and incidents of slavery" in outlawing the practice. true, but then it was a less litigious time.

it's anything quetion about ith
9.13.2006 6:42pm
Medis:
Chris,

Actually, I was discussing the part of Common Article Three which bans "outrages upon personal dignity, in particular humiliating and degrading treatment." That isn't necessarily torture, but in that sense Common Article Three bans more than torture. In general, I don't think the word "torture" is particularly helpful in this context--something like "abusive interrogations" might be more precise.

Also, I wasn't taking a stand on whether using female interrogators could ever be a violation of Common Article Three, and if so, under what circumstances. I was just pointing out that as I understand U.S. law interpreting Common Article Three, at the very least it would have to be an intentional attempt to humiliate the detainee.
9.13.2006 6:56pm
Mark Field (mail):

this is way too slippery if you're talking about using this as a means of imposing civil liability on US troops or CIA agents.


I should have been clearer -- I'm talking about criminal statutes, not civil damages.

You'll have to explain why this is so. I've now given two examples of existing criminal statutes which contain terms at least as general as those used in CA 3. Indeed, CA 3 is itself a basis for prosecution under current US law (because the War Crimes Act incorporates it). It's hard for me to see why there's a double standard being demanded here for drafting such statutes.

Once again, I want to emphasize that this is the way the system works. Congress passes a law using terms which are necessarily general. That law inevitably creates issues of application. That doesn't make the law flawed, and it certainly doesn't mean Congress can't pass laws. It just means that the courts have to work out the actual applications on a case by case basis.


what = slavery is pretty cut and dried. as the length of this thread suggests, what = torture isn't.


My analogy to slavery was intended to be substantive. I was suggesting that torture is very closely related to slavery and might be banned as a result. That's somewhat speculative.

You treated my suggestion as comparing the definition of slavery to the definition of torture. Even on this ground, I disagree.

In my opinion, this thread is artificially creating distinctions in order to avoid a prohibition. I suspect that much the same could have been done with slavery had anyone been in a position to do so.

You're leaving out the fact that the ban on slavery also includes a ban on the badges and incidents of slavery. The parameters of that ban are very easily disputable, as the link shows.


you note that Congress didn't bother to define all the "badges and incidents of slavery" in outlawing the practice.


It's the SCOTUS which retains the ultimate control over that definition, not Congress. See the link. That's what I mean by using the judiciary to explicate statutes.
9.13.2006 8:36pm
SG:
Mark Field:

Actually, interrogation is not a legitimate activity to conduct with a legitimate prisoner of war.

But in regards to an illegal combatant it is a legitimate activity. As you and I seem to agree, the question is what is appropriate to acheive that result, and more importantly what is never appropriate regardless of the result. So this is a balancing act. What do you think is appropriate?

I'm no utilitarian (there's many things I wouldn't condone for any amount of greater good), but I can justify my position for the following reasons:

1) Potential harsher treatment of illegal combatants provides a positive incentive for enemies to abide by the rules of war.
2) The potential of useful intelligence justifies our troops taking prisoners despite the added risk (false surrenders, etc) in taking illegal combatants prisoner.
3) The gained intelligence can serve to prevent additional death and injury.
4) The potential for harsher treatment provides additional incentive for cooperation without the need to actually inflict it. Sticks can be effective even if they're never used.
5) Limiting ourselves to the treatment we subject our soldiers to provides an objective and defensible measurement for severity. We can honestly say we don't do anything to anybody else that we wouldn't do to our own.
6) I fear that treating illegal combatants with all the rights and privileges of legal combatants invites a backlash that leads to the US scrapping large sections of the Geneva Convention, to everyone's detriment.

It still amazes me that point 5 is contentious. It strikes me as the definition of fair. Hasn't anybody asked two kids to share a piece of cake? One kid cuts the pieces and the other chooses? Same thing. We decide on procedures appropriate for our own (done to everybody in a combat MOS, I believe), and then apply them to the enemy. No double standard.

Now, if you believe those techniques are too harsh then you should move to have them striken from our training program. And I want to be clear, it has to be the technique that matters, not the mindset of the subject. If we can't decide what techniques are permissable and which are not without regard to the subject, the alternative we're left with is that the prisoner defines what is acceptable. That's lunacy. Can you even hold prisoners on that basis? Why wouldn't they declare imprisonment as "outrage on their personal dignity"? I'd certainly find the inability to move freely as an outrage on my personal dignity. Without an objective definition, under what grounds do you justify keeping anybody prisoner? Or it's OK for a female interrogator to interrogate prisoner A but a war crime when she interrogates prisoner B? I can't believe this is being seriously proposed, I just think it's not been through enough.

Medis,

It took you this long to realize that we have different moral frameworks? IMO, the whole point to these sort of discussions is that people have different viewpoints and we're trying to understand the other. I certainly don't expect to convince you of anything. My hope is to understand where you're coming from. I'm trying to state my understanding of you fairly, but I read you as saying that anything an illegal combatant finds offensive is (at least potentially) a crime against humanity. I can't believe you actually believe that, though.
9.13.2006 8:41pm
Mark Field (mail):
SG, you say you aren't a utilitarian, but your 6 arguments are utilitarian arguments. Part of the problem here is that Medis and I are refusing to use such arguments when it comes to torture. In my view, torture is categorically wrong, like slavery. Utilitarian arguments aren't persuasive.

Having said that, even on utilitarian grounds I don't find your arguments persuasive.


Potential harsher treatment of illegal combatants provides a positive incentive for enemies to abide by the rules of war.


Treating people humanely is a far more powerful positive incentive. It encourages desertions and reduces the liklihood that others will join an insurgency. Hearts and minds, hearts and minds.


The potential of useful intelligence justifies our troops taking prisoners despite the added risk (false surrenders, etc) in taking illegal combatants prisoner.


I'm not sure what circumstances could lead to this situation. If someone surrenders, you can't just shoot him. It may be a trick, but you guard against that in various ways.


The potential for harsher treatment provides additional incentive for cooperation without the need to actually inflict it. Sticks can be effective even if they're never used.


Not according to General Kimmons. And as I said above, basic humanity provides a much greater incentive. Catch more flies with honey, etc.


Limiting ourselves to the treatment we subject our soldiers to provides an objective and defensible measurement for severity. We can honestly say we don't do anything to anybody else that we wouldn't do to our own.


As I said above, Medis has pointed out the flaws in this argument. Plus, you are only mentioning "techniques" but not things like frequency or duration.


I fear that treating illegal combatants with all the rights and privileges of legal combatants invites a backlash that leads to the US scrapping large sections of the Geneva Convention, to everyone's detriment


I don't understand this argument at all. I have a great deal of confidence that the American people reject torture in principle. I don't see any chance that your scenario will come to pass.
9.13.2006 10:35pm
SG:
Again no, and a thousand time again, no. I am not arguing for torture. I'm arguing for adefining torture and abuse, such that we agree on what we are categorically refusing to do. And I'm putting forth a definition for debate.

I'll try it again:

Torture - the infliction of physical, mental or emotional distress in a manner that a reaasonable person would believe could cause irreperable damage to the subject

Abuse - the infliction of any physical, mental or emotional distress not in the furtherance of a legitimate demand, or in excess of that required to gain compliance with a legitimate demand.

The list of legitimate demands depends on the prisoner classification.

I continue assert that both torture and abuse should be illegal and punishable offenses.

If you don't like the definitions, fine, but that hardly makes me an amoral monster. And I'm pretty confident that my definitions are not too far from the mainstream.

And to address Medis previous objection to the term "irreperable" in my definition of torture. If we use your definition (anything that results in the breaking of the will of the subject), we won't have to worry about it because nobody will ever be taken prisoner. By your definition anything that ever gives provides results is de facto evidence of torutre. After all, any cooperation from a jihadi is pretty compelling evidence of a breaking of the will...
9.13.2006 11:03pm
MnZ (mail):
Mark and Medis, I cannot tell whether you are agreeing or disagreeing with me. I want to ban torture as well. However, I think we need to actually define torture before we get all excited about banning it. Certainly, we do not need define every last act that constitutes torture. However, the law needs to be clearer than "Torture is illegal." You both propose the beginnings of definitions of torture (Mark, I liked yours) that might be a good start. The fact that you are defining torture yourselves seems to indicate that there is currently no accepted legal definition.

The example of slavery creates a interesting parallel. Slavery is illegal in the U.S. However, a Marxist would say that slavery is practiced in the U.S. in the form of "wage slavery." Does that mean that the U.S. is dishonest about its abolition of slavery? Of course not. It only means that Marxists expand their definition of slavery beyond what U.S. law covers. Similarly, we can define and ban torture. There will always be some people that say our definition of torture is too narrow.
9.14.2006 12:48am
chris (mail):
Mark, I misunderstood you. I thought you were talking about a civil liability statute, as this thread was triggered by CIA officers buying insurance in anticipation of civil claims. I have no problem with allowing criminal prosecutions by politically accountable prosecutors or military lawyers. My concern is allowing detainees (or more to the point activist groups) to sue officers and agents.

I'm with MnZ - fine with banning torture, but there should be a fairly clear definition. some forms of pressure during interrogation of terrorists are ok by me. (if the law differs, we should change it.) including having a woman do it if the detainee in question is twisted enough to be unsettled by that.
9.14.2006 10:52am
Mark Field (mail):
There actually is a definition of torture in the US Code (18 USC Sec. 2340):

"As used in this chapter—
(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;..."

Mind you, I don't think this definition is necessary and I don't think it's a good one. Even this definition, though, would ban most of the CIA practices at issue.
9.14.2006 1:06pm
SG:
Mark:

This whole debate is about where to draw the line. I want to be absolutely clear that I correctly understand where you (and Medis) believe the line to be.

It is your contention that if, in the process of defending you and your country against an enemy who actively violates every law of war, a person subjects an enemy to the same treatment that our soldiers receive in their training, then that person is guilty of Crimes against Humanity and you would support their conviction and sentencing as such.

The reason that our soldiers standard training becomes a Crime against Humanity is that that determination is at the discretion of the enemy. This same determination applies more generally, even to the point where the enemy can choose their interrogator. In fact, any inducement of cooperation from the enemy can potentially be considered prima facie evidence of a Crime against Humanity, as it is attempting to deny the enemy their free will.

And you believe this is not just optimal in a moral sense, but also optimal in a practical sense.

I'm really trying to fairly state what I beleive you to be saying and agreeing with. It does boggle my mind, though.
9.14.2006 1:42pm
Mark Field (mail):
SG, it's hard for me to believe you really thought that was a fair statement of my position.
9.14.2006 1:45pm
SG:
Mark:

But honestly it is. I won't go back and pull quotes, but that's what I read you to be saying. That's why I'm astounded. I can't believe anyone actually believes that, but I can't get a sense of where you disagree.

I'm glad that you think it's ridiculous as well.

What is it that you disagree with?
9.14.2006 1:51pm
Medis:
MnZ,

Just as an aside, I again don't think the word "torture" is particularly useful here, because it is underinclusive of the sorts of abuse which are prohibited by U.S. law and Common Article Three of the Geneva Conventions.

Anyway, I just wanted to point out again that for many decades, the Army has been largely successful in training its people to comply with Common Article Three and existing U.S. law, and has recently issued further guidance in the form of the revised Army Field Manual and accompanying directive. So, I do not think the existing laws and regulations covering these issues were somehow unusually unclear, and indeed a lot of work had gone into providing clear guidance and training in this area to our military personnel.

But bringing this conversation back to something I posted way above, I might note that what were dangerously unclear were the orders given by the President and SecDef, which stated that our GWOT detainees were not covered by the Geneva Conventions (a position since invalidated by the Supreme Court), but that they should be treated as if they were, but only as consistent with military necessity. That is the sort of dangerously unclear, and potentially unlawful, directive that put our officials into unnecessary legal jeopardy. In contrast, if they had simply been told to stick with the existing rules and procedures and follow their training, I don't think there would have been a problem with clarity.
9.14.2006 2:02pm
Medis:
By the way, it may be worth noting once again something which is all-too-often overlooked in these dicussions.

The Geneva Conventions contain many different parts, and different parts provide different protections to different sorts of people depending on their status. For example, the Geneva Conventions most famously provide certain protections to POWs, but there are other sorts of people also covered by the Geneva Conventions besides POWs, and these different sorts of people get different sets of protections. Moreover, and most importantly for our discussion, Common Article Three provides a minimal set of protections which do not depend on status.

So, frequently, and even recently in this discussion, people mistakenly imply that if Common Article Three applies to our GWOT detainees, that means they are getting the full protections of POWs. Again, that is wrong: Common Article Three provides only a minimal set of protections, and POWs get a much more extensive list of protections under the Geneva Conventions.
9.14.2006 2:24pm
Medis:
Oh, and for the record, I do think that someone who sees absolutely nothing wrong with intentionally inflicting physical or mental pain on human beings under our control until they are compelled to obey our "legitimate demands" is dangerously amoral. And if for some reason such a person was able to carry out such a policy, or direct others to carry out such a policy, I think that such a person could and should be charged, convicted, and punished for crimes against humanity.
9.14.2006 2:33pm
SG:
Medis,

I'm confused. Is it a problem that these prisoners are not entitled to the full POW status ("if they had simply been told to stick with the existing rules and procedures and follow their training") or is it a good thing ("different parts provide different protections to different sorts of people depending on their status")?

Does our training not assume the most protected status (POW)? If it is desirable to exploit the lesser status of some prisoners, how can that be done without an exception to the existin rules and procedures?
9.14.2006 2:44pm
SG:
Medis,

I do think that someone who sees absolutely nothing wrong with intentionally inflicting physical or mental pain on human beings under our control until they are compelled to obey our "legitimate demands" is dangerously amoral.


Then take it up with that notrious amoral instatituion, International Criminal Court, Article 7, 2.(e)

(e) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;


Your standard renders it impossible to keep prisoners. Any detention against the will results in physical or mental pain. So if it is amoral to inflict pain teat it is amoral to hold prisoners.

Is that your position? Do you hold this position generally? Use of Armed Forces is clearly ruled out. Police departments can't morally use force either, I suppose.

Or do you not actually mean that pain can never justifiably be inflicted. Rather that there is some level of judgement involved in determining the appropriateness?
9.14.2006 2:53pm
SG:
And Mark, if you wonder why I've read your comments the way I have, Medis' last comment is why. You've been broadly agreeing with some who says there's never any justification for the infliction of pain. You can't even use handcuffs under that standard.
9.14.2006 3:00pm
Medis:
SG,

You ask: "Does our training not assume the most protected status (POW)?"

No, it doesn't. Instead, Army training "assumes" (although it isn't an "assumption", but is actually a correct legal conclusion under international and U.S. law) that all of our detainees are entitled to at least the minimal protections of Common Article Three of the Geneva Conventions. But only some detainees are entitled to full POW status (and others are not entitled to POW status, but may have a different form of protected status under the Geneva Conventions).

As for the definition of torture pursuant to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which is where that is coming from, a treaty to which the United States is a signatory), it isn't inconsistent with what I wrote, but it is inconsistent with that you want.

Here is the full definition:

"For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

So, the Convention on Torture specifically does NOT allow intentionally causing enough pain to force a detainee to comply with your "legitimate demands" for information. And note that there is nothing here about "irreparable" damage, an element of your definition of "torture" which has no support in any relevant legal definition (see also 18 U.S.C. 2340).

But this is growing quite tiresome. I've already explained above that the underlying moral issue is not the detainee feeling pain per se. Rather, it is one human being intentionally inflicting pain on another human being in an attempt to dehumanize that other human being. And the fact that you simply cannot see this distinction makes you dangerously amoral.

Or maybe you do see that distinction, but are simply arguing in bad faith. Either way, I wanted to clarify the legal standards, but I again conclude that we simply cannot have a meaningful discussion on this topic.
9.14.2006 3:32pm
Medis:
SG,

Oh, and obviously Mark is perfectly well capable of understanding what I did and did not write, and so you aren't going to fool him.
9.14.2006 3:33pm
Mark Field (mail):

You've been broadly agreeing with some who says there's never any justification for the infliction of pain. You can't even use handcuffs under that standard.


I don't think any fair reader would understand Medis to have said that.
9.14.2006 4:01pm
SG:
Medis,

I'm am not arguing in bad faith. I'm clearly missing your point, but not willfully. Presumably Mark understands what you meant, but I don't. Your categorical rejection rejects a lot of things that you can't possibly mean to, but you're the one making the absolute statements.

You (and Mark) throw around the word "torture" far too liberally. When you say that, you're accusing the perpetartor of a Crime against Humanity. That's strong stuff. Before you start making that charge against the people who are trying to protect you and me, I think they deserve a pretty solid definition. And I don't want anything that someone in good faith might accidentally bump up against.

Now clearly that definition of torture doesn't represent a boundary is pushed against. Our procedural limit should be well before that, so (again) there's no possibility of bumping up progressing into torture. The location of that point is something that people of good character can disagree on.

But you categorically assert that no pain may ever be inflicted to gain compliance. Ever had handcuffs put on? They hurt. The person putting them on knows they hurt. If you really believe your categorical rejection of the infliction of pain ot gain compliance, then you have to reject handcuffs.

Again, I can't believe you actually intend to rule out handcuffs (because it's insane), but it's the clear meaning of your words. If you intend to convey something different and subtler, then don't make suche broad statements. I'm only reading what you wrote.

And the handcuffs example is not even an analogy. Police interrogators use handcuffs as a carrot to encourage cooperation. It's not about dehumanizing the subject, it's about setting up a situation where the subject would rather cooperate than resist. Handcuffs aren't torture, right? Cooperation is not dehumanization. It's a not a categorical issue, it's one of degree If you accept that it's not categorical then stop insulting me for saying it's one of degree. Alternatively, if you really do believe it's categorical then don't accuse me of being in bad faith for pointing out the problems with treating it categorically.

So far the only thing being tortured is logic.
9.14.2006 4:13pm
SG:
Mark:

I don't know how to read "intentionally inflicting physical or mental pain on human beings under our control until they are compelled to obey our "legitimate demands" is dangerously amoral" as anything other than a categorical rejection on the intentional infliction of pain to compel a human being under out control to obey a legitimate demand.

Please tell me the fair reading of that statement. What nuance have I missed?
9.14.2006 4:17pm
SG:
And to flesh that out:

Let's accept that "intentionally inflicting physical or mental pain on human beings under our control until they are compelled to obey our "legitimate demands" is dangerously amoral"?

Scenario: You have a prisoner in custody and it is legitimate to interrogate the prisoner. You wish to bring him to an interrogation room, yet the prisoner resists. You wish to put handcuffs on the prisoner for your personal safety while transporting him. You are aware that the handcuffs will inflict pain.

How is it morally justified to place handcuffs on the prisoner? I don't see any way to get there if you accept the initial statement. So, either it's not justified to place handcuffs on the prisoner or the initial statement is incorrect.

ALternatively, explain my error to me. How have I misrepresented the clear meaning of the words? I can't see any other way to read it.
9.14.2006 4:33pm
Medis:
SG,

I'll try to explain, but you have to make a good faith effort to understand.

Let's look at two scenarios:

(A) You need to restrain the detainee with handcuffs during a face-to-face interrogation. The handcuffs need to be pretty tight to be effective, and you know that will make them somewhat painful. Still, you put the handcuffs on tight enough to be effective, but also no tighter than necessary.

(B) During your interrogation, the detainee won't give you some information that you think he has. So, you tighten the handcuffs a couple notchs, very substantially increasing the pain the detainee feels. You then tell the detainee that you won't loosen the handcuffs again until he gives you the information that you want. You also threaten to tighten them even more if he doesn't start talking, and you warn him that he might end up losing his hands if he makes you do that. You hope that the pain and fear that you are causing will override his resistance and compel him to give you the information that you think he has.

I'd say Scenario A is acceptable, and Scenario B is a crime. And my proposition is fully consistent with that analysis.

First, in Scenario A you are not intentionally inflicting the pain on the prisoner. True, you know the pain is an unavoidable side-effect of using effective restraints. Nonetheless, your purpose is to restrain him, not to cause him pain. In contrast, in Scenario B the extra pain you cause when you further tighten the handcuffs is intentional: the pain is not a side-effect of restraining him anymore, but is now the very purpose of your actions.

Second, the pain in Scenario A plays no role in compelling the detainee to do what you order. In other words, you aren't trying to use the pain caused by the handcuffs to break his will. In contrast, in Scenario B that is precisely what you want to do: you are using the pain to try to make it impossible for him to resist your commands, and not in a physical sense, but in a psychological sense. In other words, you are trying to eliminate his very ability to form a will contrary to your own.

As I tried to explain above, that is why Scenario B is a crime against humanity, whereas Scenario A is not. And that is because only in Scenario B are you trying to use pain to dehumanize the detainee by actually eliminating--even if only temporarily--his ability to function as a rational and autonomous being.

But I have explained all this before. And what you have consistently done is claim that in your view, there is no moral difference between restraining a person with physical force and attempting to eliminate a person's ability to form a contrary will through subjecting them to pain. And if you still can't see the difference, well then I think you are indeed dangerously amoral.
9.14.2006 5:07pm
Mark Field (mail):

What nuance have I missed?


The context of this whole discussion. No one here is talking about restraints which are necessary for safety or security. The context is, and from the beginning has been, use of torture -- and I'm sorry you don't like the word, but that's what is happening -- to coerce information.

You asked for definitions which provide a "bright line" rule. I've told you repeatedly that no such definition is possible, and I've pointed out that the US common law system does not require that precision. I'll give you one last example:

Pursuant to its authority under the 13 A, Congress has imposed penalties for "peonage", "slavery", and "indentured servitude". 18 USC Sec. 1581 et seq. There is no definition of any of those terms. Nonetheless, the courts apply these terms in criminal cases.

Both Medis and I have pointed out that (a) US law actually has a definition of torture, and (b) that the US has functioned for 60 years with the language of Common Article Three. Those laws are inconsistent with your proposals, they do NOT include a bright line test, and nobody thinks they apply to the common sense restraints applied to prisoners.
9.14.2006 5:13pm
SG:
I understand the distinction you're drawing but to some degree I believe you're splitting hairs.

First of all, even in scenario A the restraints (with the acknowledged pain) are being used to impose your will over that of the prisoner (who doesn't wish to be there, hence the reason for the restraints). By definition, a prisoner has lost their ability to exercise their free will. Force and the threat of force is what enforces the will of the captor over the will of the prisoner. You agree this is acceptable.

Secondly, the distinction you draw (no tighter than necessary even though it will cause pain) is exactly the same argument I make (any distress must not exceed that necessary to gain compliance). So we're not actually disagreeing on that point.

Third, I believe you to be saying the key difference is the internal state of mind of the prisoner, less than the motivation behind the use of force. But I don't think that argument holds up. Certainly some people become irrational upon being confined or restrained. This would not be a valid argument against handcuffing them, though (right)? I read you as acknowledging that the security needs of the captors outweigh the peace of mind of the prisoner.

So as I understand you (including my supposition on the thrid point), bending a prisoner's will or even there rationality through pain and distress is justifiable to the extent that it's done to the minimum level necessary provide safety and security, although you implicitly limit safety and security to the people in the immediate vicinity.

Of course even in scenario A, it's quite likely that the interrogator will use the promise of the removal of the restraints as an inducement to gain further co-operation. Is a promise to alleviate the pain qualitatively different than a threat to increase the pain? Perhaps yes, but either is an example of using a change in the distress level as an inducement for increased cooperation. If you do see the two situations as different, is a promise of medical treatment to a wounded person (assume the wound was not inflicted while in custody) in exchange for cooperation also acceptable? How do those scenarios differ?

All that said, I can understand why you accept A and reject B. I don't like scenario B. I just don't agree that they're as distinct as you feel. They differ in degree but not in category. Both cases use force to attempt to make an otherwise uncooperative subject cooperate. The justification for the pain is to increase safety and security. The well-being of the prisoner is secondary to the security needs of the captors.

I hope I haven't again misread you. By and large, I don't even disagree with you.
9.14.2006 7:55pm
Medis:
SG,

I am not sure why you continue to completely miss the point. Again, the two notable possibilities are that it is a lack of good faith in this discussion, or you are in fact dangerously amoral.

For example, you say: "Third, I believe you to be saying the key difference is the internal state of mind of the prisoner, less than the motivation behind the use of force."

Absolutely wrong, and that follows from nothing that I said. As I think I made perfectly clear, both in this last post but also long ago, and over and over again, the key difference is that YOU, the interrogator, are INTENTIONALLY causing pain for the PURPOSE of DEHUMANIZING the detainee. So, YOUR INTENTIONS and PURPOSES are among the key elements of the crime.

You also say: "So as I understand you (including my supposition on the thrid point), bending a prisoner's will or even there rationality through pain and distress is justifiable to the extent that it's done to the minimum level necessary provide safety and security."

No, absolutely wrong again, and again that was directly contradicted by what I said. You can physically restrain or otherwise physically incapacitate the detainee in order to provide safety and security, using only what force is necessary. But "bending a prisoner's will or even their rationality through pain and distress" is a crime against humanity.

"All that said, I can understand why you accept A and reject B. I don't like scenario B. I just don't agree that they're as distinct as you feel. They differ in degree but not in category. Both cases use force to attempt to make an otherwise uncooperative subject cooperate. The justification for the pain is to increase safety and security. The well-being of the prisoner is secondary to the security needs of the captors."

If it is really true that you can't at least understand this basic distinction between Scenarios A and B, and you can't at least understand why people call the second and not the first a form of abuse and a crime against humanity, then you are dangerously lacking in a basic moral sense. Specifically, what you appear to lack is a moral intuition, shared by most people, that there is something uniquely wrong about attacking that aspect of human beings which is most uniquely human and fundamental to our identities, namely our rationality and autonomy.

And if you aren't faking that inability to see the difference between Scenarios A and B, that makes you dangerous not just because you appear capable of endorsing or even committing crimes against humanity, but also because you are going to fail to understand why other people would object to things you find unobjectionable.

Which could be why you give lip service to taking into account the long-term consequences of adopting a policy allowing abusive interrogations, but then completely ignore those considerations in practice. That would make sense if on a basic level, you simply didn't feel the moral disgust that most people feel about such abuse.

As for your new hypotheticals, you write: "Of course even in scenario A, it's quite likely that the interrogator will use the promise of the removal of the restraints as an inducement to gain further co-operation. Is a promise to alleviate the pain qualitatively different than a threat to increase the pain? Perhaps yes, but either is an example of using a change in the distress level as an inducement for increased cooperation. If you do see the two situations as different, is a promise of medical treatment to a wounded person (assume the wound was not inflicted while in custody) in exchange for cooperation also acceptable? How do those scenarios differ?"

They don't differ, and neither is permissible. You can take off the restraints in return for a promise not to try to do something which would require restraints ("If I take off these handcuffs, you won't try to attack me, right?"). That is a bargain which continues to treat the detainee as a rational and autonomous human being. But if the restraints are not necessary, then leaving them on because they are painful until the detainee agrees to talk because of the pain is Scenario B, not Scenario A. Similarly, withholding necessary medical attention from a prisoner in your custody unless they cooperate with you is just another version of this same sort of crime against humanity.

Again, it is clear from your claimed inability to analyze these pretty easy cases within the framework I gave you that you simply lack the necessary moral sense to understand this discussion. Or you are at least faking that lack of moral sense. I really can't tell which.
9.14.2006 8:33pm
SG:
You were right before. Our moral frameworks are too different to meaningfully converse.

You've defined Crimes against Humanity down so far as to render it completely meaningless. Try charging a GI as a war criminal and a torturer because he threated to overtighten a jihadi's handcuffs. You'll see the US pull out of international agreements on torture so fast it'll make your head spin. (Bonus points if you do it at The Hague). But if you think that is most moral course of action...Well, good luck trying to convince others. Truth be told, I'd rather live in your world than the one I see around me. But that's the rub...

Thanks
9.14.2006 9:14pm
Medis:
SG,

OK, judging from your latest attempt to put words in my mouth, this discussion was a product of at least a lack of good faith on your part, although I suspect you are also in truth dangerously amoral (the two tend to go together).

I'd ask you why you wasted my time, but I wouldn't expect a satisfying answer.
9.14.2006 9:23pm
SG:
Are we even speaking the same language? I was trying to walk away politely along with an (implied) apology for wasting both your time and mine and you spit in my face? Your highly refined morality is exceeded only by rudeness.

I put no words in your mouth. You wrote, "Scenario B is a crime against humanity". If that's not what you meant, then don't write it. Don't insult me for taking you at your word.
9.14.2006 9:39pm
Medis:
SG,

I'll grant you this, you are a pretty funny person ("I was trying to walk away politely" was a nice touch).
9.14.2006 9:54pm
Medis:
SG,

Oh, and also points for consistency: I believe not once in the many times you stated the equivalent of, "Because you said X, you must believe Y", Y was actually something that I believe. I suppose that was part of the game.
9.14.2006 10:00pm
SG:
Feel free to not respond, but I'm fascinated as to how two people can be using the same language yet so completely misunderstand each other.

How did I misread you? What did you mean when you said Scenario B was a crime against humanity, but yet took me to be arguing in bad faith when I said that you would want to see that crime punished?

Like I said before, I view the point of this not to convince the other person, but to understand them. I'm really quite satounded at how I've been so utterly misintrerpreted, and I'm guessing you feel the same. Although after all this I shouldn't make any guesses as to what you feel.
9.14.2006 10:07pm
Medis:
SG,

First, in your "polite" post you brought up yet another new hypothetical, not Scenario B. Second, if you ACTUALLY wanted to know how I would suggested punishing the offender in your hypothetical, you could ASK ME, rather than making up a ridiculous answer yourself and stating that is the answer I would give.

But it is clear that actually understanding my views hasn't really been your game, despite your claims to the contrary.
9.14.2006 10:14pm
Medis:
By the way, the juxtaposition of "Bonus points if you do it at The Hague" and "I was trying to walk away politely" is STILL cracking me up. Seriously, nice work.
9.14.2006 10:16pm
SG:
Medis,

At this point I doubt you believe me, but I don't argue in bad faith and I assume that others don't either. Else why waste the time?

I've taken your position to be fairly absolutist. Any distress beyond that which is necessary to prevent a direct threat is unaccepable. I think it's a perfectly honorable position. I just don't think it's pragmatic (absolutist positions tend not to be).

It wasn't my intent to invent a new hypothetical, I though I was simply putting names (GI/jihadi) on the characters in Scenario B. When you add names to it, it brings it into the real world (and highlights my pragmatic concern). I didn't intend to misrepresent or alter the moral issue raised by the hypothetical in the slightest. Obviously you thought I did.

Again, I find this fascinating. Ever see that Far Side Cartoon: "Same World, Different Planets"? That's what this feels like.
9.14.2006 10:26pm
Medis:
Anyway, I've had fun playing with the trolls, but I think it is time to conclude this discussion for real.
9.14.2006 10:27pm
SG:
Medis,


By the way, the juxtaposition of "Bonus points if you do it at The Hague" and "I was trying to walk away politely" is STILL cracking me up. Seriously, nice work.


Ahh... I can see why you'd read that as snark, although it was meant as a honest joke.

Well, it made me laugh.
9.14.2006 10:31pm