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Defining the Limits of Interrogation:

My colleague, Amos Guiora, director of the Institute for Global Security Law and Policy at Case thinks that too little attention has been paid to the precise limits of interrogation techniques that can be used on terrorist suspects. "Elusive concepts are a recipe for disaster," he argues, so it is necessary to engage in a difficult (and unpleasant) line-drawing effort. This issue is not only a question of morality, but also has practical legal implications for those on the front-line of counter-terror efforts.

Amos had an op-ed in yesterday's Cleveland Plain Dealer outlining his view of the proper boundaries for the interrogation of terrorist suspects. Here's an excerpt:

So what is coercion in the context of interrogating terrorists? On one extreme, it precludes torturing the terrorist. Torture is illegal, immoral and does not lead to actionable intelligence.

On the other hand, interrogators must be able to obtain critically needed intelligence to be given to commanders whose mission it is to prevent future attacks. Furthermore, interrogation is necessary as admissible evidence; the result of a lawful interrogation is required for trying terrorists.

To that end, interrogators may subject terrorist suspects in the interrogation setting to the following lawful measures: 1) disruption of the sleep cycle; 2) sitting in uncomfortable positions; 3) playing loud, annoying music; 4) placing a hood, for disorientation purposes, over their heads; 5) modulating the room temperature.

Implementation of these five measures requires both written guidelines and authorization by senior officials. Accountability and command responsibility are absolute requirements.

Amos' perspective is no-doubt influenced by his 19 years in the Israeli Defense Forces, where he had far more direct experience with counter-terrorism operations than anyone else I have seen expound on this topic. He has devoted years to thinking about these issues, and understands (in away that most academics do not) the practical implications of different policies and approaches. These are not just abstract moral questions, and the answers have real-world consequences.

As I understand Amos' view, he believes techniques that disorient a suspect are acceptable (if done pursuant to clear guidelines), but anything that would cause actual physical or psychological harm is off limits. Does Amos strike the right balance? I am not sure. On the one hand, I do not believe foreign terrorist suspects are entitled to the same treatment as criminal suspects. On the other hand, I am uncomfortable with the prospect of subjecting innocents who are wrongly detained to such techniques -- which can be significantly more severe than the above description might suggest. It is easy to proclaim one's opposition to "torture." It is more difficult to delineate those interrogation techniques that should or should not be allowed in the counter-terrorism context, especially once one gets beyond the extreme hypotheticals (ticking bombs, etc.) found more often on the set of "24" than in the real world. I find this to be a difficult question (as, I gather, do those who make broad pronouncements on the issue without engaging in the particulars), so I appreciate the perspectives of those, like Amos, who have wrestled with these questions in a real-life context.

Constantin:
Don't we have to presume the ticking bomb? Hypothetically, if the CIA was interrogating Khalid Sheikh Mohammed on 9/10/01, hindsight would suggest the utmost urgency would have been ideal. Of course we wouldn't have known that then, just like we have no clue if 10/1/06 will be a day destined for history books.

Islamic terrorists around the world are ceaselessly plotting to harm American interests. They're not going away. Doesn't that mean the bomb always is ticking, and that this scenario is less extreme hypothetical and more real-life context?
9.29.2006 11:01am
Anderson (mail) (www):
1) disruption of the sleep cycle; 2) sitting in uncomfortable positions; 3) playing loud, annoying music; 4) placing a hood, for disorientation purposes, over their heads; 5) modulating the room temperature.

But what do these mean? Take # 1. Is it torture to wake somebody up in the middle of the night and question him? Surely not. But does # 1 cover just that, or keeping people awake for days on end?

Or # 5: is that a euphemism for hypothermia? 50 degrees F, with buckets of ice water sloshed over you?

Mark Bowden reported on how the Israelis tried "limited torture" and had to be reined in by their supreme court, because it got out of hand so quickly.

I'm also glad to see Jonathan Adler recalling the dangers of doing these things to innocent people (or even, we should add, to people whose complicity is relatively trivial). I daresay that a fair number of Palestinians have suffered these tactics or have friends/family who have. I doubt it's done much for Israeli-Palestinian relations.

A serious problem for the Israelis may be that their awful relations with the Palestinians have made impossible the kind of relationship-building that good interrogation relies upon. That's speculation on my part. To what extent did their practice of torture and abuse create the very situation which they now claim can only be solved by ... torture and abuse?
9.29.2006 11:03am
M. Lederman (mail):
Jonathan: Thanks for engaging on this. I think it's impossible to discuss in the abstract what precisely would or should be "acceptable" or "off limits" as if one were designed a system of wartime intelligence practices from scratch -- without due attention to existing legal limits. The question is not, in other words, what is "coercive" and what's not. (Indeed, most everything Guiora discusses is coercive to one degree or another -- that's the whole point of it.)

The fact of the matter is that we have certain important treaty obligations -- obligations that were our creation, and our great triumph -- that limit what we can do. With respect to POWs, no coercion at all is acceptable -- *even if we have reason to believe they have valuable intelligence information.* And as to suspected Al Qaeda detainees, Common Article 3 prohibits all "cruel treatment," not to mention humiliating and degrading treatment. (I happen to think the emphasis should be on cruelty, not humiliation, because I don't think the CIA, or other *serious* intelligence operatives, are much interested in humiliation, which probably is not very effective. They're interested in *physical* coercion, which is what all of Guiora's examples involve.)

Perhaps you are in effect asking whether we *should have* drafted the treaties in that manner; whether we should seek their amendment; and/or whether we should withdraw from them. But frankly, those options are not on the table -- *no one* of any note thinks we should amend or withdraw from the treaties, which were, after all, designed by the U.S., based on our own codes of conduct eminating from the Lieber Code during the Civil War.

And so, in asking your question, you *must* account for the implications that would follow if and when the U.S. places itself in actual or perceived breach of Geneva. Those implications, I submit, would be enormously detrimental to the U.S., to civilized warfare, and to lawful combatants generally. And that is one of the main reasons why the professional military interrogators have so strongly resisted any deviation from the Geneva-compliant methods that have so strictly governed military training and practice for so many decades. (The other main reason is that most of them are strongly convinced that coercive techniques do much more harm than good, even in the narrow context of the interrogations themselves.)

My sense is that although perhaps some of Guiora's techniques could theoretically be implemented in a manner that doesn't rise to "cruel treatment," in virtually every case where they would be deemed necessary, they would be implemented in a manner sufficiently serious to obviously fall within the prohibition on "cruel treatment." (And as to POWs, of course they are impermissible coercion.) Indeed, the whole point of using them is to make the detainee so uncomfortable as to become a slave to his own bodily needs; and it's hard to see how that ever would *not* be cruel treatment. (At the very least, such techniques would, in fact -- and quite reasonably, in my view -- be *viewed* as "cruel treatment," and thus as breaches of Geneva, the world over.) Guiora's point, I assume, is not that such things aren't cruel, but that sometimes it's necessary to be cruel. Yet we've already taken cruelty off the table, categorically.
9.29.2006 11:11am
M (mail):
I guess I agree with the poster above (anderson) that this alone in't so helpful. It's worth recalling that Isreal had a lot of trouble w/ killing and seriously hurting people it was interigating so I'm not sure their's is the model we want to follow. But also, does "sitting in uncomfortable positions" mean being chained to the floor in a crouch for two days? I guess we've been doing that. That, of course, was a classic medieval torture method and only a dishonest fool would try to claim it's not torture. There's moral clarity here- clarity that those this is done to are not human.
9.29.2006 11:14am
MnZ (mail):
A serious problem for the Israelis may be that their awful relations with the Palestinians have made impossible the kind of relationship-building that good interrogation relies upon.


Is relationship-building really the best method? Or is it the nicest? I can see a reason to not preclude it as an option. However, I really don't necessarily see a problem with interrogators treating the subject distantly and coldly.
9.29.2006 11:20am
Ugh (mail):
I'm glad we can finally get down to the finer points of debating whether it's okay to make a suspect piss and sh!t himself, or just piss himself. A civilized society should expect no less.
9.29.2006 11:23am
Angus:

Amos' perspective is no-doubt influenced by his 19 years in the Israeli Defense Forces, where he had far more direct experience with counter-terrorism operations than anyone else I have seen expound on this topic.

And thanks to these techniques, Israel today is completely free from terrorism.
9.29.2006 11:27am
Richard Aubrey (mail):
This may sound ridiculous, but, then, lawyers work on making the ridiculous pay, so it doesn't seem to be inconceivable.

If the line is not drawn, could we have somebody, say at the Hague, making the accusation that, since Detainee X claims he didn't want to talk, and since he talked, we have proof he was tortured? Clearly, he wouldn't have talked had he not been tortured, since he didn't want to talk, or at least his bosses tell him to claim it now. Or his family dies.

Now, I know that people claim that a conviction based on this or that projection of a trend or slippery slope is never going to happen. That usually is said just before it happens. But if we take the folks at their word--a really, really stupid idea--we must recall that the next worst thing to being convicted is being acquitted. That's not much fun, either.

Can we see prosecutions or indictments based on the simple fact that the guy talked?

Of course, to promote this view, the folks would have to crank up the memory hole to make sure nobody recalls they said torture never works.
9.29.2006 11:28am
Anderson (mail) (www):
Is relationship-building really the best method? Or is it the nicest?

MnZ, much tho I cherish the sight of my words on the screen, even I weary of repeating myself. I've provided links and evidence on the Rauch thread, q.v., and you might read up on the Army Interrogation Manual. The Army's intel chief says that coercion isn't valuable. Or, of course, you could believe Richard Aubrey instead. It's a free country, for the time being.
9.29.2006 11:35am
M (mail):
I think we should also keep in mind that it's pretty clear that what ever lines are draw will not be the outer edge of behavior but (at least in a very short time) will be the inner edge- they will be the minimum that's done. If you spend much time around, say, the police, you can see this happen over and over. So, it's perfectly foreseeable that this will be _the minimum_ that's done to people and nothing will be done about going beyond it. When there is an evil around it's not a good idea to try to see exactly how close you can get to it rather than staying as far away as one can.
9.29.2006 11:37am
Jonathan H. Adler (mail) (www):
Marty -

Most of your points are well taken. A few thoughts.

First, it seems to me that most of the concern about the potential use of torture is motivated by genuine moral outrage about the use of certain practices, and not by the fact that it may be illegal or contrary to treaty obligations. It is the inhumanity of subjecting other people to certain things that drives the outrage -- as it should, in my view -- not the breach of a treaty or statute. After all, the federal government violates statutes all the time without provoking anywhere near the same response.

Second, while I do not wish to speak for Amos (and do not pretend to be an expert on these matters), I am inclined to disagree with your statement that "the whole point of using [these techniques] is to make the detainee so uncomfortable as to become a slave to his own bodily needs." If that were the purpose, I would probably agree that they would be "cruel" (though, I would note, Amos clearly says that the use of such techniques should be limited and subject to oversight, which might prevent potential excesses with these techniques). As I understand it, the point of these specific techniques is that they produce disorientation, and that this can be useful in the interrogation context to generate actionable intelligence in a way that those things that cause physical pain or are otherwise cruel do not. I am no expert on interrogation techniques, and may well be mistaken, but this is my understanding.

JHA
9.29.2006 11:38am
Ubertrout (mail) (www):
Prof. Lederman, thank you for laying out the left-wing view on this issue. Although I can't say I agree with it any more than before (in fact, I agree with it even less now), I do feel I understand it in context better.

I am curious, though, if you'd be willing to explicate on what exactly would be the negative consequences of not following the Geneva Convention when we are already fighting an enemy who does not follow it?
9.29.2006 11:38am
Anderson (mail) (www):
However, I really don't necessarily see a problem with interrogators treating the subject distantly and coldly.

The problem, MnZ, is that it would be kinda dumb to do that. You are supposed to be getting the subject to warm up to you sufficiently to overcome whatever inhibitions he may have about spilling the beans. Why, exactly, would being a jerk to him make him any more inclined to do that?

Simply being held prisoner by foreigners, separated from your peers, is a frightening experience. Introduce into this environment somebody who speaks your language, knows your culture, expresses sympathy for your plight, flatters you a bit, is curious about some of your accomplishments ... you don't need a Ph.D. in psychology to figure it out.

The guy you're interrogating may be scum, he may be a sure bet for the death penalty, but you *don't let that interfere with the interrogation.*
9.29.2006 11:39am
Anderson (mail) (www):
thank you for laying out the left-wing view on this issue

Adherence to treaty law = "left wing."

Wow.
9.29.2006 11:43am
JosephSlater (mail):
Ubertrout:

Is an argument that the U.S. should avoid torture and follow the parts of the Geneva Convention that clearly apply really a "left-wing" argument?
9.29.2006 11:47am
JosephSlater (mail):
Dang, Anderson, we must have been writing the same thing at the same time.
9.29.2006 11:47am
Anderson (mail) (www):
Dang, Anderson, we must have been writing the same thing at the same time.

Great minds run in the same track. Or, fools think alike. Pick one!
9.29.2006 11:50am
John Thacker (mail):
You are supposed to be getting the subject to warm up to you sufficiently to overcome whatever inhibitions he may have about spilling the beans. Why, exactly, would being a jerk to him make him any more inclined to do that?

Well, there is that classic "good cop/bad cop" technique. That does require that one person be a jerk, I would think. Unless you're more interested in "good cop/better cop."

I think good definitions and precision are important to prevent anything from being twisted to torture. Of course, I'm odd enough to think that disorientation for a few hours is, on the whole, a preferable punishment to being locked up in jail for years. We don't cane prisoners because of concerns for our own humanity, though, even though caning or other corporal punishment would probably be preferred by many to long jail terms.
9.29.2006 11:59am
Anderson (mail) (www):
Good point, Thacker, re: good/bad cop. The new Manual does indeed allow for that technique:
The manual authorizes 18 interrogation techniques, 16 of which were permitted under the previous 1992 manual, plus two new ones, Kimmons said. The new ones are "Mutt and Jeff," or good cop/bad cop, and "false flag," in which an interrogator can pose as someone other than an American to gain information.
But I would think that "being a jerk" was indeed the limit of the bad cop's scope.
9.29.2006 12:09pm
Josh Jasper:

Don't we have to presume the ticking bomb?


Yes, which is exactly why torture is a bad idea. Bad guys with information on ticking time bombs do not act like characers out of "24". They will lie seveal times under interrogation, and torturing them will produce lies mixed with truth.

This is what people trained to resist interrogation are trained to do. Torturing them is not an effective way of getting information. What it does is produce a large amount of reliable information that you then need to divert manpower to verify.
9.29.2006 12:10pm
Broncos:
Thank you, Jonathan.
9.29.2006 12:11pm
ramster (mail):
Ubertrout says: "I am curious, though, if you'd be willing to explicate on what exactly would be the negative consequences of not following the Geneva Convention when we are already fighting an enemy who does not follow it?"

I'm continually puzzled by the expectation of symmetry that this common argument presents. Whether the enemy follows the Geneva Conventions or any other reasonable standard of civilized behaviour should be beside the point. The issue isn't merely what torture does to the enemy but what legalizing torture does to you (as an aside, I'm inclined to define any techniques used regularly in the Soviet gulags, Khmer Rouge prisons, etc. as torture). Legally condoning torture means that you will have more and more American torturers. As others have mentioned above, the legally permitted maximum degree of torture will soom become the baseline which will be applied widely and indiscriminately (after all, it's legal, right?). We're not just talking about crack CIA interrogators. The troglodyte Lyndie Englands of the world will also be emboldened to continue their petty barbarities. Actually, they're probably too stupid to even be aware of the legal change but their commanders won't be.

There's one thing I really don't get about the ticking time bomb scenario so fond to Charles Krauthammer and the screenwriters of 24. In a legitimate ticking time bomb scenario, the interrogator will realize the stakes and do what it takes, at personal risk given the illegality of torture. But that very illegality will force interrogators to seriously consider the nature of the threat before crossing the line. In such a circumstance, prosecutorial discretion or a presidential pardon will ensure that the interrogator is treated appropriately. The ticking time bomb has always been a canard.
9.29.2006 12:21pm
fishbane (mail):
As I understand it, the point of these specific techniques is that they produce disorientation, and that this can be useful in the interrogation context to generate actionable intelligence in a way that those things that cause physical pain or are otherwise cruel do not.

I think this points at the importance of defining what we're talking about. Start with the cold room treatment: it can range from mild discomfort to inducing hypothermia. There has been at least one death in Afganistan that we know about from the use of the technique by the US. It was famously popular in Soviet gulags. I think it would behoove everyone to think seriously about what "modulating the room temperature" could mean, and whether the goal is really to "produce disorientation".

On the other hand, I heartily endorse any and all attempts to insert accountability into any use of "coercive techniques".
9.29.2006 12:25pm
Dan Hamilton:
I am sorry but anyone who believes that something done to our people during training (waterboarding) is torture has just lost it.

How can they be taken seriously on the subject?

WHY aren't they yelling that we are torturing people during training and demanding that it stop? Also demanding that the people that are responsible for it are put in jail?

We must define what is torture! but what we use in training sure isn't!!!
9.29.2006 12:34pm
Ken Arromdee:
I'm continually puzzled by the expectation of symmetry that this common argument presents. Whether the enemy follows the Geneva Conventions or any other reasonable standard of civilized behaviour should be beside the point.

The reason people point out that the enemy mistreats our prisoners regardless of what we do is that an extremely common argument is "if we commit torture, then torture is now seen as legitimate, and the enemy would do it to us."

Well, the enemy would do it to us anyway. There's no difference.
9.29.2006 12:37pm
American Psikhushka (mail) (www):
I am curious, though, if you'd be willing to explicate on what exactly would be the negative consequences of not following the Geneva Convention when we are already fighting an enemy who does not follow it?

Sooner or later you will be torturing an innocent person. And sooner or later you will torture an innocent person that can prove they are innocent pretty readily, and it will get media coverage. Since one of the goals of counter-terrorism and counter-insurgency operations is to win over the larger community so they will cooperate with you and give you information, this could damage your overall mission. Also, you may radicalize the innocents you torture and their family, friends, associates, etc. Plus you may lose goodwill and support at home and around the world. You may lose allies. Fewer countries may be ready to back UN resolutions or provide peacekeeping forces. Etc, etc, etc......
9.29.2006 12:39pm
Anderson (mail) (www):
I am sorry but anyone who believes that something done to our people during training (waterboarding) is torture has just lost it.

Dan, do you really not understand the difference between doing something once to someone who volunteers for it, &doing it again &again to someone under duress? Who's "lost it," exactly?

Take a look at this info on waterboarding under the Khmer Rouge. They sure as hell meant it to be torture. You saying they were wrong? Gosh, and all these years the poor bastards have gotten such a bad rap!

It's ignorance like Dan Hamilton's that made this new law possible. Ignorance contributed to by the silence of the Democrats, and the media, and of those in a position to speak out or ask questions, who instead chose to spend their time commenting on other, more important subjects than the legality of torture or the abolition of habeas corpus.
9.29.2006 12:44pm
ramster (mail):
Dan Hamilton: I wasn't aware that waterboarding is used in American training but even if it is, I imagine the distinction is choice. A US soldier or CIA officer who experiences waterboarding during training is doing so voluntarily. There are many unpleasant things that people subject themselves to as part of thier training (e.g. becoming a Navy Seal) or recreationally (e.g. S&M). And at the extreme, some people probably volunteer to be subjected to some very unpleasent and painful stuff. But prisoners don't have the choice of what happens to them or the ability to make it stop, which strikes me as a germane distinction.

Ken: I agree that people do raise the argument "if we do it (torture), they will too". I'm not a big fan of this kind of utilitarian argument. I'm more concerned about the creeping creation of an American NKVD-lite (located in Gulag-lite) and the associated impact on America's moral standing in the world. I thought there was some difference between the US and, say, China other than lots of aircraft carriers.
9.29.2006 12:52pm
Anderson (mail) (www):
I thought there was some difference between the US and, say, China other than lots of aircraft carriers.

Yeah, me too. Suckers, aren't we?
9.29.2006 12:55pm
MnZ (mail):
Lederman,

Maybe I don't understand your point, but you seem to be saying that we should not use any of Guiora's techniques. Now, I tend to agree with you that they should not be used systematically. However, I would posit that even the most conscientious interrogators would have prisoners that claim that each of these tactics was used upon them. (E.g., do we need to have individually climate controlled cells lest certain prisoners prefer 70 degrees while others prefer 72 degrees?)

So, while I don't think they should be used intentionally and systematically as interrogation tools, I hesitate to call them torture or cruel.
9.29.2006 12:55pm
Philistine (mail):

I am sorry but anyone who believes that something done to our people during training (waterboarding) is torture has just lost it


And simiarly, I suppose, you feel that anyone who believes something people enjoy doing (rough sex) is rape when done to someone who doesn't consent, has just lost it, too?
9.29.2006 12:58pm
byomtov (mail):
I am sorry but anyone who believes that something done to our people during training (waterboarding) is torture has just lost it.

No, Dan. There are very important differences between doing something to someone in training and doing the same in interrogation.

A trainee is a volunteer who has, in effect, consented to the waterboarding.
A trainee knows that training ends after some period of time.

Consider that if some large men barrel into you, knock you down, and fall on top of you they have committed a crime. But not if you're playing football. The context of acts matters.
9.29.2006 12:59pm
Anderson (mail) (www):
E.g., do we need to have individually climate controlled cells lest certain prisoners prefer 70 degrees while others prefer 72 degrees?

Yeah, that's *really* what we're talking about here.

Do a google search on "hypothermia" and "torture" and see how long it takes you to find the guy we *killed* with this technique. Or you could just stop at the very first hit:
Well hypothermia was a widespread technique. I haven't heard a lot of people talking about that, and I never saw anything in writing prohibiting it or making it illegal. But almost everyone was using it when they had a chance, when the weather permitted. Or some people, the Navy SEALs, for instance, were using just ice water to lower the body temperature of the prisoner. They would take his rectal temperature to make sure he didn't die; they would keep him hovering on hypothermia. That was a pretty common technique.
Anything where you have to be constantly making sure you're not KILLING the guy, sure sounds like torture to me.

(Read the whole interview; the guy was an Army spc., trained as an interrogator, and stationed at Abu Ghraib &elsewhere in Iraq.)
9.29.2006 1:03pm
Anderson (mail) (www):
Okay, one more from the Frontline interview I just linked:
How soon after you got into the business of interrogating at Abu Ghraib did it become obvious to you that rapport-building was not the norm around interrogation cells?

Rapport-building was being used among the smarter interrogators; among the more experienced interrogators. And I think that's the only thing I ever saw work, was rapport-building. So it was sort of 50-50, at that point.

But then I got out and worked with other units … and they weren't as interested in rapport-building. That took too much time, they felt, and it wasn't how they wanted to see themselves as interrogators. They wanted to be like Hollywood interrogators, you know.

What does that mean?

Well, it's funny. I noticed in Mosul, for instance, they were playing movies all the time, DVDs were pretty available over there. And just how many movies and TV shows have interrogation scenes in them? These interrogation scenes usually involve a hard-hitting interrogator running psychological circles and intimidating the prisoner at appropriate times, and maybe even sometimes physical torture. So that's how they wanted to see themselves. But that's not how an interrogation plays out in reality, you know? It's this long process of back and forth, and it's a lot more complicated than that.
Torture is about building up the torturer, enhancing *his* ego. It's not about getting intel.
9.29.2006 1:06pm
Olustee (mail):
There's a myopia on the subject of "torture" that arguably tends toward distorting questions of "morality" vs. "effectiveness." The fact of the matter is that any physical coercion--which includes the simple "coercion" of incarceration--induces psychological stress, and the supposed purpose of torture is to induce pychological stress on the assumption that intermitting that stress will be an incentive to communicate useful information. More focus on the "strategy-to-tactics" proportion on the subject of tortunre would broaden such a discussion as this enormously.

One thing that appears in the margin once the perspective is "pulled back" is the fact that all warfare is a form of torture, in that all warfare is a form of inducing psychological stress in the present about possible lethal eventualities in the future. IOW, war, like physical coercion in pursuit of information, is conducted as much by threat of future pain as it is by shooting people. E.g., read Civil War military history on the "threats" which are delivered by moving against an enemy's flank-and-rear. Nobody dies (sometimes)--the flanked unit simply pulls back, but that "pullback" yields territory, which is the strategic purpose of the flanking movement, etc. (Also read recent Nobelista Thomas C. Schelling on the "strategy of the threat," which is part of game theory in one direction, and saving your country in another.)

One thing I'm getting at is that the "moral" argument against torture is in some respects identical with the "moral" argument against war in general, which is to my mind the same as pacificism. Which comes down to the notion, I suppose, that those who are against torturing jihadis are ipso facto against fighting jihadis.
9.29.2006 1:14pm
Anderson (mail) (www):
Which comes down to the notion, I suppose, that those who are against torturing jihadis are ipso facto against fighting jihadis.

And that notion is, hey, demonstrably false!

War is sometimes inescapable. Torture isn't.
9.29.2006 1:20pm
Philistine (mail):
There's a myopia on the subject of "torture" that arguably tends toward distorting questions of "morality" vs. "effectiveness." The fact of the matter is that any physical coercion--which includes the simple "coercion" of incarceration--induces psychological stress, and the supposed purpose of torture is to induce pychological stress on the assumption that intermitting that stress will be an incentive to communicate useful information.
{snip}
One thing I'm getting at is that the "moral" argument against torture is in some respects identical with the "moral" argument against war in general, which is to my mind the same as pacificism. Which comes down to the notion, I suppose, that those who are against torturing jihadis are ipso facto against fighting jihadis.



That's certainly an...interesting...position.

I take it you would also extend it so that those who are against torturing accused criminals are ipso facto against fighting crime?

--Philistine
9.29.2006 1:21pm
Anderson (mail) (www):
Dudes, I repeat myself, but: read all of this interview with the Army interrogator. If you have the least interest in the torture issue, you cannot miss this. Really, really, save that link &read the interview when you can.

"We weren't concerned with intel anymore; we just wanted confessions from people."
9.29.2006 1:25pm
txjeansguy:
Hooding is torture, as a "procedure calculated to disrupt profoundly the senses or personality and which is used to degrade and humiliate the subject. 18 U.S.C.A. § 2340; United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, Treaty Series, vol. 1465, 85 (1984) (ratified by United States of America 1994) available at http://www.ohchr.org/english/countries/ratification/9.htm#.
9.29.2006 1:26pm
Olustee (mail):
"I take it you would also extend it so that those who are against torturing accused criminals are ipso facto against fighting crime?"

Not necessarily. But I would point out as a necessary background to considering the question the ineluctable fact that the existence of a police force is ipso facto a form of standing "threat." By that I mean that we live as a "nation of laws" under the threat of arrest, incarceration, and possibly in some cases forceful treatment if we do not obey some of the laws.

My point is that "torture" is not simply inflicting physical pain--a position that is in sync with the mistaken notion that conducting war is isomorphic with merely shooting people. It is a coercive use of psychological stress, by which threat of physical pain in the future induces cooperation in the present, as for instance, "threats" of military strikes in the future induce "cooperative" behavior from a military enemy in the present.

I would call for a larger view of the field of torture, just as I would call for a larger view of the field of warfare--and would note more-or-less in passing that an orderly society that lives under laws is a society that in some ways and degrees lives continually under threat of punishment, some of which is going to be physical and some of which are therefore going to inflict pain.

Much of my thinking here is based on Schelling's "The Streategy of Conflict"
9.29.2006 1:35pm
Katherine (mail):
At least one prisoner died of hypothermia in a CIA prison in Afghanistan.

Pretending that it's about lowering the air conditioning by two degrees is just disgusting.
9.29.2006 1:35pm
Anderson (mail) (www):
Much of my thinking here is based on Schelling's "The Streategy of Conflict"

Don't tell Mark Kleiman you said that.
9.29.2006 1:45pm
donaldk:
Let me put forward a couple of points.

Motives for ..um, energetic questioning, have different purposes in different cases. The tortures inflicted by Viet Cong and Khmer Rouge, and the Japs and Chinese, were motivated by sheer cruelty, nothing more.

In the case of the USSR, the motive was to force the victim to confess to non-existent crimes and to implicate others. Well portrayed in Darkness at Noon.

In civilizd states (yeah, Anderson, I mean us) the purpose is to learn the location of confederates; and if the prisoner appears to be of high rank, to learn of planned attacks.

The recruitment of agents to do this work should include a psychological profile to eliminate individuals who would take pleasure in it.

Could be that this is already done, but anyway, show a film of what the prisoner can expect, and give him and hour or two to think it over. Obduracy, then, would make him complicit in his own ordeal.
9.29.2006 1:46pm
Anderson (mail) (www):
In civilizd states (yeah, Anderson, I mean us) the purpose is to learn the location of confederates; and if the prisoner appears to be of high rank, to learn of planned attacks.

Right. The point is that torture, as opposed to what the Army interrogator I've linked calls "rapport building," is designed to extort confessions. (Cf. the high school locus classicus: "Say you're a queer! Say it!") For the many reasons cited at the Rauch thread &elsewhere, it's an inferior means of getting good intel.

To repeat myself (sigh): the U.S. Army has an evident interest in good intel. It can save soldiers' lives. Who, please, is callous enough to suggest that the Army is deliberately putting its soldiers' lives at risk by rejecting coercive techniques?
9.29.2006 1:54pm
Mark Draughn (mail) (www):
"what exactly would be the negative consequences of not following the Geneva Convention when we are already fighting an enemy who does not follow it?"

We have other enemies, and there will be other wars.

We will want those enemies to treat our captured soldiers well, and we will want the enemy soldiers to know that they will be treated well if they surrender to us. We want every enemy fighter to know that all he has to do is raise the white flag and the war will be over for him.
9.29.2006 1:56pm
Anderson (mail) (www):
Could be that this is already done, but anyway, show a film of what the prisoner can expect, and give him and hour or two to think it over. Obduracy, then, would make him complicit in his own ordeal.

Lovely, how the medieval mind repeats itself. The "showing of the instruments" was the first step in Inquisitorial torture, and many or most people would break at that point. And confess that they were Jews, or witches, or whatever. Mission accomplished!
9.29.2006 1:58pm
Luke 1152 (mail):

I am sorry but anyone who believes that something done to our people during training (waterboarding) is torture has just lost it.

How can they be taken seriously on the subject?

Perhaps they can be taken seriously because they, unlike you, know what they are talking about.

Look, waterboarding was standard torture by several of our cold-war era enemies: Vietnam, China, Korea among others. The purpose of water boarding was NOT to elicit information - it was to elicit confessions. (Keep that in mind.)

So that our troops would be prepared for what might happen if they are captured, some were subjected to simulated waterboarding. (Why "simulated"? Because it was a training exercise and they knew (regardless of how panic inducing the experience was) that their "captors" would not kill them. Not the case when it happens for real.) This is all part of the training in which troops are deprived of sleep, food, water, etc. and put into "survival" situations. And, in most cases, these exercises are part of training for "elite" units within our volunteer military. If it got too intense, the soldier can quit, remember. Most people wash out of SEAL training, for example.

To equate what happens in "training" with torture is just silly.

My 6 year old likes to play with his toy pistol and he sometimes points it at my head. Does that mean that we shouldn't object when we point pistols at detainee's heads? Its the same thing, right?
9.29.2006 2:01pm
markm (mail):
"I am sorry but anyone who believes that something done to our people during training (waterboarding) is torture has just lost it." I think that effective training to withstand torture is going to have to involve a bit of torture.

Another thing: "waterboarding" has been used for at least two entirely different techniques. One, pouring large amounts water into the prisoner through a funnel, inflicts pain over a long period and looks to me like it risks death and serious injury. The other one, brief dunkings in water, is frightening, but inflicts little pain and minimal risk as long as the interrogators keep track of the seconds. (Minimal risk meaning the only risk is that the subject has a condition such that it is possible to scare them to death. If you merely yell loudly at enough people, you'll eventually have someone die of a heart attack.)

Finally, what's been hinted at but not said explicitly yet: Torture is much better at persuading the subject to say what you want him to say than at getting the truth. Even the relatively mild techniques commonly used by American police produce many false confessions.
9.29.2006 2:04pm
donaldk:
Well, now. "Showing the instruments", given that one is determined to go ahead and use them, is a humane gesture.
It permits the subject to estimate what chance he has to endure them without breaking; and if he estimates that he could not, take the easy way out. In the event, I would appreciate being given the choice.

Come to think of it, very effective would be to show the subject WORSE things than what in fact you would ever inflict on him.
9.29.2006 2:28pm
ctw (mail):
"1) disruption of the sleep cycle; 2) sitting in uncomfortable positions; 3) playing loud, annoying music; 4) placing a hood, for disorientation purposes, over their heads; 5) modulating the room temperature."

while finding all "it's no worse than fraternity hazing" type arguments repugnant, I couldn't help being amused by the observation that if one replaces "placing a hood over their heads" with "intaking excessive stimulants", this list pretty much describes a youth-oriented nite spot.
9.29.2006 2:46pm
Richard Aubrey (mail):
It is supposed that a real-life Jack Bauer could beat the hell out of a prisoner and save the day. Then, since he knowingly broke the law, he is prosecuted. Either prosecutorial discretion or juror nullification frees him.

Two problems. One is that not all indictments will be by agents of those saved--us. They may well be by some lefty/islamonut in some other country calling on international law. The ICC has jurisdiction if a perp is not punished sufficiently by his own country. So Jack Bauer's name is now on the Interpol watch list.
9.29.2006 2:55pm
Alaska Jack (mail):
I say the following as someone who is a) Torn about this whole question, and b) I guess leaning toward the "anti-torture" (I know, a mischaracterization -- no one is "pro-torture" -- but you get my drift) position.

First, the absolutist "no torture" position I am beginning to favore *might* -- I say this VERY tentatively -- have some greater utility in the long run. That is, projecting the image of America as the "good guy" has its advantages, hard to quantify though those might be.

However, as a member of the U.S. Armed Services, I think it is important to consider the potential tactical consequences of that position. For example, consider the combination of these three factors:

1. Non-uniformed combatants do not have the right to POW status. As I mentioned in another thread, you give up those rights when you voluntarily exchange them for the tactical advantages conferred by anonymity.

2. Capturing prisoners is a hazardous proposition. These are people who will KILL YOU if they catch you with their guard down. Plus, tending to prisoners drastically impedes operational effectiveness.

2. U.S. forces, if they know that we have voluntarily forsaken any realistic effort to extract valuable information from prisoners, have a greatly reduced incentive to capture said prisoners.

Where does that leave us? I can easily envision a scenario where we, simply, don't take prisoners. A quick, summary execution of non-uniformed insurgents -- i.e., "spies" -- begins to look awfully appealing if you're a sergeant who sees no advantage to taking prisoners.

- Alaska Jack
9.29.2006 3:00pm
Elliot Reed:
To that end, interrogators may subject terrorist suspects in the interrogation setting to the following lawful measures: 1) disruption of the sleep cycle; 2) sitting in uncomfortable positions; 3) playing loud, annoying music; 4) placing a hood, for disorientation purposes, over their heads; 5) modulating the room temperature.
This list is too vague to be meaningful.

1) Does this mean "making people only get 6 hours rather than 8" or "not letting people sleep for weeks on end?"

2) How uncomfortable, and for how long? If you force someone to do a wall-sit for thirty seconds, it's exercise. Force them to stand, without moving, for 40 hours, and it's unbearably painful, because the muscles that keep you in balance can't stand to be exerted for so long, your circulation gets screwed up, etc. The same holds for an actually uncomfortable position for that length of time, except it's worse.

3) How loud, and for how long? Are we keeping them from ever sleeping and inflicting permanent damage on their hearing, or just annoying them?

4) What kind of hood? Does it restrict their breathing, or create the subjective impression that it is?

5) Modulating the room temperature between what and what, and for how long? This could mean anything from slight discomfort to hypothermia (or worse).

It's easy to descrjibe these techniques in ways that make them sound innocuous, and you could do something that fits that description and would be innocuous. But once you realize that what's actually being defended is, in every case, the extreme version, it's clear that these are crimes against morality and humanity. If the techniques were really as innocuous as apologists like Amos are making them out to be, there would be no need to mislead the public about how horrendous they are.

Hypothermia is "temperature modeulation," indeed. Right, and we have always been at war with Oceania.
9.29.2006 3:07pm
Mark Draughn (mail) (www):
A quick, summary execution of non-uniformed insurgents -- i.e., "spies" -- begins to look awfully appealing if you're a sergeant who sees no advantage to taking prisoners.

Do I remember correctly that the laws of war permit such executions in order to discourage combatants from hiding among civilians?
9.29.2006 3:12pm
John T (mail):
We will want those enemies to treat our captured soldiers well.

Granting that, will a strategy of "no matter how you treat our captured soldiers, we will treat yours well" work better for that end than a strategy of "we will treat your captured soldiers as well as you treat ours?"

There are plenty of reasons to not torture, certainly, but the game theoretical argument about having our captured soldiers treated well argues in favor of a "tit for tat" type strategy, not a strategy of kindness even towards those who behead all prisoners and make them convert. Not that that makes it the right strategy, merely that that argument doesn't support your position, mind you.
9.29.2006 3:13pm
Gene Vilensky (mail) (www):
I have a question. Maybe it's stupid. Maybe I'm just one of those libertarians who has gone soft. But:

What happens if a suspect really doesn't know anything? At what point will the interrogators stop, or be convinced that the suspect doesn't know anything. There's no way to prove a negative, right? So, it seems like in many circumstances (aside from the handful of Khalid Mohammed-level guys), the interrogator would have no way of knowing whether this low-level al qaeda guy has some bit of info or doesn't.

I love it when Krauthamer (who I respect, btw) and Mort Kondracke say, "this applies to terrorists, the really bad guys, so it's ok". But the whole point is that we don't know that they're terrorists or have any information that is of use. We can't just declare them to be terrorists and that's that. We can't just pull some brainwashed 15 year-old off the field of battle, ship him to Guantanamo and claim he's the next subway bomber, thus allowing us to torture him. Most of these people are enemy fighters and to be sure, bad guys. But a) that doesn't make them terrorists any more than being a Panzer driver WW2 made him Rommel's aide de camp, and b) there's no way for us to say with certainty whether they are or not if they keep denying it.
9.29.2006 3:23pm
Observer (mail):
I write only to agree with those who say that the treatment we give to illegal combatants will have no affect of any kind on the treatment that uniformed American soldiers will receive from their captors.

1) American soldiers who are captured by non-state combatants - e.g., al Qaeda - can expect to be physically tortured and murdered. There's nothing we can do about this, regardless of what we do to prisoners under our control. Combatants like AQ who are engaged in asymmetric warfare see a propaganda benefit in brutalizing and beheading American soldiers and so they will continue to do that even if we were to put all captured terrorists up at the Four Seasons in NY and gave them tickets to see the World Series.

2) American soldiers who are captured by armies of states that are parties to the Geneva conventions can, in many instances, expect to be treated as POWs under the conventions. My stepfather was captured by the Germans during WWI when his bomber was shot down and he was not mistreated by them even though he was Jewish. Why? Because the Germans knew that mistreating American POWs would mean mistreatment for German POWs. It's simple quid pro quo, there's no moral principle involved.

Now this doesn't always work. North Vietnam was a party to the Geneva Conventions but, as Sen. McCain can testify, they flagrantly violated the rules on POWs. But their mistreatment of American prisoners had nothing to do with anything America did to captured North Vietnamese soldiers.
9.29.2006 3:26pm
Observer (mail):
A typo in my prior post - I meant "WWII," not "WWI."
9.29.2006 3:29pm
plunge (mail):
The problem with Amos' claims is that he makes things sound beneign that are not. Discomfort and room temperature playing sounds quaint and light, but its easy to turn them into excrutiating pain and suffering if you know what you are doing.

The defenders, in other words, seem to get off on the fact that these sorts of treatments do not cause any lasting physical damage (unless, of course, they lead to stress of hypothermia deaths, as they sometimes do), which just so coincidentally means that the treatment can be easily denied in court should it ever come up.

But look, you can't cheat your way out of this. If you are going to be able to force someone to give up information, you are going to have to make them suffer. And that suffering is going to be torture, no matter how creative it is or innocuous it sounds. There is no magical way to torture someone into confessing without using torture. The very idea is idiotic.
9.29.2006 3:29pm
Anderson (mail) (www):
I can easily envision a scenario where we, simply, don't take prisoners.

Americans and Brits did this quite a lot in WW2, to say nothing of the Germans. On the battlefield, such "drumhead court martials," if even that, arise. Which is why the Hamdan Court expressly distinguished them.

But obviously, where we *can* take prisoners and turn them over to professional interrogators, we stand to benefit.
9.29.2006 3:29pm
Mark Draughn (mail) (www):
the game theoretical argument about having our captured soldiers treated well argues in favor of a "tit for tat" type strategy

Hmmm...that's a pretty good point. I could argue that enemy interrogators might not care if our interrogators torture their front-line soldiers, but then I'd undermine my own argument about the benefits of non-torture...

I suppose there's still "forgiving tit for tat," in which from time to time you treat the other side well in order to see if they will treat your side well. If you can break the cycle, both sides benefit.

I think a better approach is to target "tit for tat" specifically at individual torturers. I.e. treat the enemy prisoners well unless they were responsible for torturing our guys. That's harder to do though...
9.29.2006 3:31pm
Alaska Jack (mail):
Anderson -

If we adopt the absolutist "no coercion" stance (which, as I mentioned, I am somewhat leaning toward), then it is not at all obvious to me how we stand to benefit by turning captives over to professional investigators, as opposed to simply executing them in situ.

- Alaska Jack
9.29.2006 3:53pm
Anderson (mail) (www):
it is not at all obvious to me how we stand to benefit by turning captives over to professional investigators

Because, as a reading of other people's comments will lead you to appreciate, coercion isn't part of the professional interrogator's tool kit. Quite the opposite.
9.29.2006 4:04pm
ramster (mail):
Sometimes this feels like an unbridgeable chasm. Clearly the people whom I disagree with (the "pro-torture" camp to use a crude designation from above) genuinely feel that their approach is necessary to protect the people of the US in the post 9/11 world. Furthermore, they think they can do so while being true to American values. With a few exceptions, none of the commenters in this vein come across as monsters...which really makes things all the more depressing.

Consider that most readings of the new bill seem to indicate that the President has the power to unilaterally decide what techniques are or are not acceptable. Within his administration, lawyers like Bybee and Yoo have written that it's only torture if it causes "death, organ failure or the permanent impairment of a significant body function". Now I read that line and I don't think about waterboarding. I think of electric shock to the testicles, anal rape with broomsticks, freezing to the point of near death, pulling out fingernails. None of these would seem to fit woo's definition of torture yet they certainly are torture to me. I can't help but think that this is the kind of criteria that will guide any future determinations (yes I know that this is only a memo that the administration and the justice department sort of disawoved but it I frankly don't believe them...it seems more like an inadvertant glimpse of their true thoughts).

We already know that prisoners have been tortured to death (e.g. the taxi driver in Afghanistan) or close to it (the Navy SEALS sticking thermometers up prisoners' asses so that their cold water torture doesn't actually kill them). This seems likely to continue, as does the network of secret prisons. Someone above said that the distinction between the US waterboarding and the Soviets or Khmer Rouge doing it is that they did it out of wanton cruely while the US does it to protect people. That may be true in a macroscopic sense but ultimately it's a distinction without a difference. As it and worse things get applied more widely (which will happen with a legal imprimateur), any noble purpose will disappear in quotidien cruelty and moral corrosion will be the order of the day. I wonder how many torturers the US has now?

The worst part of it is that it won't actually make Americans safer. You're losing support globally on the margins right along the ideological axis. I'm a Canadian who usually is the guy defending the US in a room full of petty anti-americanism. Not anymore. Our PM's support for the US will ultimately doom him. It's getting harder and harder for your allies to muster popular support for US interests. At the other end of the spectrum, there will be more jihadists. There's a curiously clinical and detached element to this whole discussion (e.g. talking about ticking time bomb scenarios). It's like a bunch of technocrats discussing the mechanics of policy while America's moral standing corrodes under their feet.
9.29.2006 4:29pm
Mark Field (mail):

Two problems. One is that not all indictments will be by agents of those saved--us. They may well be by some lefty/islamonut in some other country calling on international law. The ICC has jurisdiction if a perp is not punished sufficiently by his own country. So Jack Bauer's name is now on the Interpol watch list.


I think that's only one problem.

While I don't agree that it is a problem, the new law does not change this. To quote Jack Balkin,

"the U.S. is still bound by Geneva, but there is no way for individuals to enforce violations of Geneva (except that grave breaches of Common Article 3 can still be prosecuted under the War Crimes Statute). However, Geneva's status as the law of the land (under Article VI) was not altered by the MCA. The United States has not withdrawn from the Geneva Conventions, and this fact was quite important to selling the bill to the public. So if the President orders procedures that are inconsistent with Geneva, he is still acting contrary to law even though there may be no way for an individual to enforce the law directly."

Note that most countries are willing to exercise jurisdiction over violations of Geneva. Anyone involved in this "program" had better have a better travel agent than Pinochet.
9.29.2006 4:34pm
dick thompson (mail):
I wonder how you equate the fact that we did not sign the final Geneva Accords and are thus not bound by them fits in with all your bloviations about the Geneva Conventions. There are many of them and some we signed and some we did not. Are we to be bound by those we did not sign just because you want us to be bound by them?

As to the idea of strict bounds as to what can be done vs what cannot be done, I think we absolutely have to have strict bounds. Suppose you are a young Marine corporal out in the field. You capture somebody and there is no one else around to try to get intelligence from him. You are the one who is charged with doing the interrogation. If you do not know what you can do and what you can't then you will be strung up as a torturer if you step over the line and charged as a dilettante if you do not go far enough to get the intelligence required to save your fellow troops. All the talk about not drawing the strict lines puts the troops in an untenable position when the chips are down. It is one thing to make the decisions from your arm chair in your cozy offices and homes. It is quite another to make the decisions in the heat of battle when the very lives of you fellow troops hangs in the balance. we owe it to them to make it chrystal clear what is allowed and what is not. We already know that the "progressives" will hang the guy if he steps over the line and he will be vilified by the press and his life ruined if he goes too far. It has happened and almost happened again to that young Marine that Kevin Sites wrote about. The kid was not given all the information that the reporter had at his fingertips and acted on his own experiences and Kevin Sites wrote it up as if the kid had committed a terrible crime.
9.29.2006 4:59pm
chris s (mail):
Mark, if any nation tried to hold and try a US military person or CIA agent for conduct legal in the US and done to KSM and the like, I think it's safe to say there would be hell to pay, whoever is in the White House.

I'm with you on maintaining our traditions, laws and moral standing, but you lose me with the apparent eagerness to see troops tried in foreign courts. and it seems hugely inconsistent with your concerns for the rights of AQ detainees - habeas etc for them, but leave US troops to the mercy of others?
9.29.2006 5:21pm
Elliot Reed:
dick, the problem is that strict lines are not really an option on the table. Geneva doesn't offer strict lines, and this new law is even fuzzier than Geneva. My preferred approach would be to define specific techniques that are permissible, and say that anything beyond that is not OK. The list of permissible techniques would notably not include the actual techniques at issue here - inducing hypothermia, forced standing for 40 hours, waterboarding, etc.
9.29.2006 5:21pm
Anderson (mail) (www):
My preferred approach would be to define specific techniques that are permissible, and say that anything beyond that is not OK.

Which is exactly what the Army Interrogation Manual does, btw.
9.29.2006 5:33pm
Mark Field (mail):

Mark, if any nation tried to hold and try a US military person or CIA agent for conduct legal in the US and done to KSM and the like, I think it's safe to say there would be hell to pay, whoever is in the White House.

I'm with you on maintaining our traditions, laws and moral standing, but you lose me with the apparent eagerness to see troops tried in foreign courts. and it seems hugely inconsistent with your concerns for the rights of AQ detainees - habeas etc for them, but leave US troops to the mercy of others?


Chris, I'm not advocating that result, I'm pointing out one of the possible consequences of the new law. If other countries believe that the US will punish its own criminals, then they are unlikely to intervene. If we don't, they may feel the obligation to. It would be hard for us to argue against this reasoning: that, after all, is substantially the reason we gave for deposing the Taliban.

But fortunately we don't have to worry about US troops. The military remains in compliance with Geneva. The ones at risk are CIA.
9.29.2006 5:46pm
Observer (mail):
I guess at the end of the day, I don't have any problem with interrogators giving illegal combatants the "third degree," the kind of rough interrogation that was routine in American police stations up to Miranda. No one thought that was torture then and I don't see why anyone would think so today. It was coercive, and the Court essentially outlawed it because it was tired of having to decide in numerous cases which confessions were involuntary and which were voluntary. But in questioning terrorist suspects we're not trying to build criminal cases; we don't really care about whether or not they confess to past acts; we are trying to get information about current plans, techniques and operations. So there shouldn't be any concern about whether or not the coercion extracts a false confession, at least when it comes to CIA interrogation. That's not their job.
9.29.2006 5:56pm
Anderson (mail) (www):
But in questioning terrorist suspects we're not trying to build criminal cases; we don't really care about whether or not they confess to past acts

??? So it's okay with you if Khalid Sheikh Mohammed retires to Sarasota Springs?
9.29.2006 6:01pm
chris s (mail):
Mark, we deposed the Taliban because they were sheltering bin Laden. I'm pretty confident we would have done so even if the Taliban had said they'd try him themselves - in fact I dimly recall them making an offer like that.

also, you write - 'If other countries believe that the US will punish its own criminals. . .' criminals? if you mean, the troops at abu ghraib, it's a correct term. (and by the way, we did prosecute them.) if you're referring to those who have questioned KSM and his ilk, I think the characterization is way off, at least based on what I know.
9.29.2006 6:05pm
Pat conolly (mail):
I'm inclined to a recognition of torture on the basis of "If it was being done to ME against my will, would I call it torture?"
9.29.2006 6:07pm
Pat conolly (mail):
Observer, the point about "false confessions" is that it negates the presumed purpose of our interrogation. If 1 out of 10 people have useful information, but you also manage to eventually coerce false information out of the other 9, how useful is that?
9.29.2006 6:12pm
Anderson (mail) (www):
I'm inclined to a recognition of torture on the basis of "If it was being done to ME against my will, would I call it torture?"

Not to sound like a broken record, but that (or something very close) is actually Army policy:
The military urges interrogators to ask themselves two questions if they think they may be crossing the line: if they think the technique could violate the law; and "if the proposed approach technique were used by the enemy against one of your fellow soldiers, would you believe the soldier had been abused?"
9.29.2006 6:18pm
markm (mail):
"But in questioning terrorist suspects we're not trying to build criminal cases; we don't really care about whether or not they confess to past acts; we are trying to get information about current plans, techniques and operations."

The problem is, you don't get good intelligence this way. Most of the captives will be the equivalent of Privates - they'll know their role in the operation that was busted up when they were captured, and nothing that's of use for the future. Note that one of the notable weaknesses of Arab armies is that officers will try to enhance their position by keeping information to themselves, and it's also basic revolutionary doctrine to break the organization into small cells that don't know enough to betray other cells, so it is likely that lowly members of an Arab or Muslim terrorist organization will know far less than an American PVT would.

Since they aren't wearing rank insignia, the interrogators won't be able to tell the "officers" from the "privates" and will keep after all of them until they tell something - and the majority of them will have had to make it up because they don't know the real answers to the important questions. The ones in the know will try to protect their secrets with made-up information. More pressure will often produce changed stories, but you still don't know which ones are real. You wind up with several false leads for every true one, and a lot of men will waste a lot of time following up on the false ones.
9.29.2006 7:05pm
Alaska Jack (mail):
Anderson -

I was going to accuse you of sounding like a broken record, when I came upon your last post :^)

As a guy who, again, is fairly sympathetic to your views, I think you are and have been leaning too heavily on the "The Army intel chief says coercion doesn't work" angle. To me, it defies common sense to think that *removing* a whole set of potentially useful tools from one's toolbox would result in more effective interrogations.

As you wrote:

Because, as a reading of other people's comments will lead you to appreciate, coercion isn't part of the professional interrogator's tool kit. Quite the opposite.

I have read the comments. I just don't find that angle persuasive.

- Alaska Jack
9.29.2006 7:24pm
Olustee (mail):
If it were possible to extricate the moral fine points of this discussion of torture from the larger issue of the willingness of Jihadis to use WMDs against America and to kill as many Americans as possible with them, then I would find the discussion useful. It is, after all, to uncover information that is necessary for our own self-defense that the matter of torture is being mooted in the first place. It is, after all again, these people themselves who are putting us in jeopardy.

But this discussion is not useful, because it is predicated on the belief that the torture issue can be so extricated. The only reason why the Bush administration is dirtying its hands with such legislation as this latest attempt to get a country full of crypto-pacifists (who are not serious anyway about the these threats because, apparently, they've not got the guts to think their way through such realities) to go along with an attempt to protect their very survival, is because there exists this threat to their very survival.

I'm coming round to the position that we should set aside a section of this country--"Just like we did to the Japanese? You can't mean it"--not mean it? watch me--for those people who are not interested in being defended against jihadis' WMDs, and we deprive them of all the means of defense which they find so obnoxious as proposed by the Bush administration. Then they would be happy--no moral contamination. And then we tell the jihadis "You can attack these people at will, we won't defend them. You attack us, on the other hand, and we will wipe your civilization off the face of the earth, and go on living absolutely without remorse."

Whatever your respone to the above if any, please don't bore me with traddle about American values. A country that has ceased to exist don't have no values.
9.29.2006 8:00pm
Mark Field (mail):

Mark, we deposed the Taliban because they were sheltering bin Laden. I'm pretty confident we would have done so even if the Taliban had said they'd try him themselves - in fact I dimly recall them making an offer like that.


Clearly we didn't and shouldn't have. One reason for our invasion of Afghanistan was that they refused to turn him over to us. Had they done so, it would have been very hard to justify the invasion. As they refused, the international community almost unanimously supported our actions (and mostly still does).


also, you write - 'If other countries believe that the US will punish its own criminals. . .' criminals? if you mean, the troops at abu ghraib, it's a correct term. (and by the way, we did prosecute them.) if you're referring to those who have questioned KSM and his ilk, I think the characterization is way off, at least based on what I know.


I mean the CIA interrogaters. The key point in the passage I quoted from Prof. Balkin was that the new bill didn't change certain parts of the law so much as it made those parts impossible to enforce. Common Article 3 is still the law in the US. Even the Administration admits (implicitly) that the interrogations violated CA3. Thus, referring to the interrogations as "criminal" -- though that involves assumptions which are unproved -- is entirely appropriate as long as we understand the assumptions being made (which, of course, would have to be proved in a real case).
9.29.2006 8:40pm
Anderson (mail) (www):
To me, it defies common sense to think that *removing* a whole set of potentially useful tools from one's toolbox would result in more effective interrogations.

Alaska, my friend, what I would gently submit is that the sheer fact that they *did* remove those "tools," is a clue that they don't find them terribly effective.

I've linked to the accounts of two military interrogators, here &in the Rauch thread. I think they are better heeded than "common sense," in which Descartes noted that no one ever finds himself deficient.
9.29.2006 8:45pm
American Psikhushka (mail) (www):
Can't recommend the Frontline Interview with the Army Interrogator that Anderson linked enough. I saw this episode of Frontline, but the full transcript of the interview is much more comprehensive.

Some interesting passages:

=============================

On whether the "softening up" at Abu Ghraib worked:

"Not that I saw. And that certainly wasn't an approach I would run. And you know, it might have worked on somebody who was guilty, but I so rarely saw guilty people; they were just picking up bummers. …"

Some others:

"But I think that my experience of despair came in North Babel, when I had just all these prisoners that I knew were innocent, I was powerless to help them. And yet I was forced to interrogate them every day and listen to them cry, and tell me about their families. And I mean, that was just -- it was awful, and I think that's most of where my anger came from in the end, was that experience."

"You know, people just wanted numbers. North Babel was one of the worst places I saw for this. Like they would stop a guy at a checkpoint, and he had in his car a shovel and a cell phone. And they'd say, "Well, you can use a shovel to dig an IED [improvised explosive device], to bury an IED, and you can use a cell phone to detonate it. But they didn't find anything else, and there was no reason for them to believe that this guy was setting IEDs. But I have to talk to him. I have to interrogate him three times. If I say he's innocent, they won't believe me. I'd use his cell phone to call his boss and check out his entire story, what he was doing that day, why he might have his cell phone and a shovel. It all checked out, but still he gets sent up. And somebody gets on a PowerPoint slide that this guy was a terrorist bearing IEDs. And they were just doing that all over the place."

"Part of it is, they were trying to get information, but part of it is also just pure sadism. You just kept wanting to push and push and push, and see how far you could go."

=========================

That's what happens when you approve this kind of sadistic garbage. It starts with "what if there's a ticking nuke" and ends with a playground for sadists and people torturing to "make their numbers".
9.29.2006 8:46pm
Olustee (mail):
The meme that interrogators are really sadists has floated by several times on this thread, which is another way of saying that coerced interrogation is merely a form of sadism. Clueless.
9.29.2006 9:20pm
Angus:
Olustee,
All humans are by nature selfish and violent. All you need to do is look at human history to see that. What separates us from embracing that sadistic nature is our painstakingly developed rational and moral sense of right and wrong.

People chosen to do these now legalized tortures will have that moral sense obliterated and become monsters over time, just as happened to concentration camp guards in World War II, or POW guards in Vietnam. Those who approve of the torture will also get a touch of that as well.
9.30.2006 12:44am
MnZ (mail):
At least one prisoner died of hypothermia in a CIA prison in Afghanistan.

Pretending that it's about lowering the air conditioning by two degrees is just disgusting.


Katherine, I really appreciated your indirect and extraordinarily offensive strawman argument. There is a certain cynical beauty about your retort. You both accuse me of not recognizing the humanity of the prisoners and dishonestly imply that I have no humanity of my own.

Brilliant!!!
9.30.2006 12:45am
Anderson (mail) (www):
The meme that interrogators are really sadists has floated by several times on this thread, which is another way of saying that coerced interrogation is merely a form of sadism. Clueless.

Hm, I seem to've missed that meme. But if you want to read an actual Army interrogator's report of how he &others drifted into sadism, in an environment where Bush's "alternative methods" replaced Geneva's rules, see the interview that Psikhushka just quoted from. --Or, hey, you could just continue to make up stuff.
9.30.2006 12:51am
Randy R. (mail):
There are a number of people who argue that torture 'works', in that it extracts good information from people that will save lives. Many of the pro-torture people claim to be people of strong religious faith.

My question to those people: How much torture would it take for you to renounce your faith? How much pain would I have to inflict on you in order to get you to say that you don't believe in God? That you forsake your beliefs and religion now and forever?

If you answer that you would never do so, then you prove that torture doesn't really work, that a person of strong convictions won't be broken by the rack. If you answer that you would, then you open yourself up to accusations that your faith is rather weak. And that's probably anathema to most religious fundatmentalists.
9.30.2006 1:08am
Mencius:
The number of people on this thread who seem committed to the proposition that the moral and practical aspects of torture are inseparable is astounding.

The universe was not created for our benefit. Why it is so difficult to imagine that torture is effective in producing militarily useful information but immoral, or moral (for example, as a deterrent to prospective adversaries), but not effective in producing militarily useful information, is beyond me.

The problem with all the arguments for torture's ineffectiveness that I have seen is that they all seem to come from people who have strong institutional or ethical motivations for favoring one side of this fundamentally objective question. For example, since US Army interrogators are not supposed to be torturers and do not think of themselves as such, it obviously is a satisfying conclusion to them that torture does not work. It is also an excellent way to convince other interrogators to follow the policy manual. This incentive does not make them wrong, but it doesn't make them right, either.

If you want to consider the issue objectively, on the other hand, you may want to read the arguments of those who have used torture systematically and do not feel the need to apologize for it, such as Paul Aussaresses.

It is certainly possible for a reasonable person to conclude that torture is immoral whether or not it is effective, and therefore not to care to delve into the ugly details of the effectiveness question. But if you have a factual position on effectiveness, and you don't consider yourself a religious zealot, you should probably balance the inputs to your judgment by considering evidence from people whose views on the moral question differ from your own. (Yes, this means you, Anderson.)
9.30.2006 2:17pm
Andrew J. Lazarus (mail):
Dick Thompson: the USA has not signed certain additional protocols to the Geneva Conventions. We most certainly have signed and ratified the 1949 Conventions that contain the Common Articles, as has virtually other country in the world. Please clue up.

"We do it to our own in training". Well, no more complaining about the Iraqi rape of POW Jessica Lynch. She's now happily pregnant by her boyfriend. (Same "logic".)

Israeli torture methods: Although Israelis liked to pretend that they were getting all sorts of useful intelligence, it's hard to believe that there was such urgency when interrogators took Shabbat and holidays off. (This may have been a case, though, that the intimidation of the population subject to torture had some short-term security benefits.) Alternative interrogation is not about intelligence, it's about power. Even though there are a number of unanswered questions about the assassination of Yitzhak Rabin (e.g., the degree of complicity of religious-nationalist figures), no one has ever suggested using these techniques on the assassin.

"But sometimes you get reliable intelligence about the ticking bomb." Sure, torture gets the truth out of criminals, but it's like buying a haystack to find a needle. Even Nazis didn't use torture when accuracy mattered because of limited resources.

"We can't really be torturers because we aren't sadists." Yeah, well in the case of a President who used to blow up frogs by putting firecrackers in their anuses, I wouldn't be so sure. But leaving that aside, the point is more that we are losing our senses out of fear. That's why terrorists torture us, to terrorize us. Not to find out the secret password to Mount Thunder. And, combined with the GOP Congress that would rather rule in Hell, it's working.
9.30.2006 2:30pm
Randy R. (mail):
One of the problems with torture is that it all too easily slips from "we hurt you because we want you to talk", to "we hurt you because you refuse to talk"

The first is an inducement to get the person to do something, the second is merely sadistic punishment. Where do you draw the line? At what point does the interrogator say to himself, well we tried our best, but he's not giving us any good information? At that point, he should stop, because then afterwards he's just punishing him, and that is cruel and inhumane treatment.

Now, I undestand that in the real world, finding this tipping point might be very difficult. But that's my point -- an interrogator may go well past it and not even realize it himself. Or worse, he goes past the point, knowing full well it won't produce any thing, but he's just angry and frustrated because his techniques didn't work. It's at that point that the interrogator stops being a human being, but instead becomes a sadistic animal. It's far too easy, in my mind, to cross that line.
9.30.2006 3:28pm
Randy R. (mail):
Medis Why it is so difficult to imagine that torture is effective in producing militarily useful information...?

Probably because so many retired military generals and other high ranking people have said that it doesn't work.

But I'm sure they are all just bleeding heart liberals who know nothing about the realities of war.
9.30.2006 3:34pm
dick thompson (mail):
The bit about the torture of the unlawful combatants rest in the 1977 Geneva Conventions and those we have not signed. Clue yourself up.
9.30.2006 5:47pm
Randy R. (mail):
An Except from "Chasing Ghosts: A Soldier's Fight for America from Baghdad to Washington" by Paul Rieckhoff:

"... I saw lots of grown men cry in Iraq. It seemed like every day some man begged, pleaded, and sobbed. It turned my stomach a bit in the beginning. Then, I just stopped caring entirely. I just went numb. Sometimes I was more than unfeeling of their pain - I hated them for it. I hated them for not having the dignity, or pride, to suck it up. I hated them for not caring how weak it made them look. I hated them for giving my soldiers an opportunity to mock them and brand them an inferior culture....

And I have to admit, I thought the same thing at times. There were so many reasons for us to be angry: the heat, the shooting, the outdated flak jackets, the lack of information, the shitty chow, the IEDs, the sight of our wounded buddies, the lack of sex, the holidays missed, the boredom, the uncertainty, the complete and total lack of control over our own lives. So many reasons to be pissed. And only one group of people to take it out on - the Iraqis."

And we are supposed to believe that interrogators will only torture suspected terrorists, not innocent people, and that they will know 'when to stop.' These are the words of a REAL soldier who has lived through this. I think his opinion ought to be given more consideration that George Bush's or his supporters regarding what war is like
9.30.2006 7:11pm
Andrew J. Lazarus (mail):
No, Dick.

Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; [emphasis added]

Common Article 3 doesn't require Al Qaeda to sign the Convention. It applies in all cases whatsoever.
Now, legitimate State combatants have many rights under the GC that terrorists do not. But not about torture. That applies to all detainees whatsoever.

HTH.
9.30.2006 9:04pm