Torture Investigations

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Maybe I haven't been following the calls for torture investigations closely enough, but it seems to me that there need to be two things that I'm not seeing for me to be convinced that the people issuing such calls are sincere about the issue and not just pursuing a politically-motivated witch hunt.

1. Speaker of the House Nancy Pelosi, Senate Majority Leader Harry Reid, and a number of other congressional Democrats were involved in discussions with President Bush and other administration officials when all this was actually going on, and they seem to have given their approval of whatever actually took place with official sanction. Or at least they voiced no objections. That's what I keep hearing. But I have heard very little about anyone seriously suggesting that they be investigated. The only reason I can think of for that is that they're Democrats. Someone with more information than I have should feel free to correct me on this if I've got the facts wrong, but it's very hard to see this as a movement to correct for mistaken policies and hold those responsible accountable unless all who were responsible are going to be investigated.

2. As far as I've been able to discern, the U.S. military has long used techniques like waterboarding in training their special forces to be able to withstand harsh interrogation techniques. My understanding is that they train them in techniques that are uncontroversially torture. Yet President Obama continues President Bush's claim that the U.S. doesn't torture. Those who accept it from Obama but didn't from Bush need to account for this, and if they think these procedures are immoral in principle then they ought to be consistent and issue a call to hold accountable those responsible for torturing our own troops, including any at high levels who knew about this and allowed it. (I suspect that would be all the presidents for at least as far back as Jimmy Carter, the earliest president still alive.) Again, it's possible that I don't have all the facts on this, and I'd be happy to receive corrections on this, particularly if you can back it up with sources I'd be likely to trust. But what I read of the very memos that everyone's getting all excited about now (even though they say almost nothing that we didn't already know) seems to confirm that this has been going on with our own troops.

I don't think this shows us one way or the other whether these policies are legal, morally justifiable, or worth pursuing an investigation about (and I see those as three somewhat independent issues). I actually think those issues are more complex and difficult to navigate than either side wants to acknowledge. See my 2004 post and then my 2007 pair on the moral and linguistic issues. (I can't say that I'd agree with everything in those posts now, though.)

But it doesn't seem to me that most of the people who are actually raising a big stink about this are doing so for consistent, principled reasons unless they're willing to apply it to the above two cases. (That doesn't mean they're all hypocrites, because they might not see the inconsistency and might be willing to adjust their behavior if they did see it, or perhaps they have arguments for differential treatment of the different cases, although I'm not sure what those would be.)

23 Comments

Taking each point in turn:

[Pelosi and Reid] seem to have given their approval of whatever actually took place with official sanction. Or at least they voiced no objections. That's what I keep hearing.

Unless I'm mistaken, we don't actually know what they were told about the practice at the time. They were briefed on the administration's terms, seemingly -- everything being, of course, classified by that administration. What did they understand the practice of "waterboarding" to involve? Did they know that Khalid Shaikh Mohammed would be subjected to it 183 times? Did they know that detainees would be kept naked for weeks at a time (sometimes in the presence of female interrogators) and forced to defecate on themselves while their wrists were chained to an iron bar overhead? Did they know that the CIA determined that it could deprive a victim of sleep for up to 180 hours -- more than a straight week -- and only allow him to sleep for eight hours to recover? (Source.)

This leads to my answer to your second point. We have never subjected US soldiers to that kind of treatment. When we waterboard a US service member 183 times, confine him in a wooden box, keep him naked for three months and rinse him down with a hose after bowel movements, chain him to the ceiling, slam him against a wall repeatedly, and forcibly keep him awake for periods likely to induce psychosis (and false memories) ... then maybe you may suggest equivalence. But waterboarding a US service member a couple of times to show how it's done is not the same thing at all.

To put that another way: our SERE program was designed to train our soldiers to endure some of the torture techniques of America's Cold War enemies. By your logic, therefore, it's not just Americans we can't prosecute for torture; it's also foreign agents who use those techniques.

I'm not really concerned with what was done as much as with what was given official sanction. I think it's crazy to claim that because someone working in the White House wrote an opinion memo indicating a view that it somehow follows that what the memo says was thereby official policy, as if aides giving opinions are really the ones who set the policy.

But the premise of these investigations seems to be that the memos were policy, and so I'm interested in what that argument results in. It seems as if it leads to the conclusion that anyone disapproving of the techniques advocated in the memos needs to disapprove of techniques that are worse than what the memos advocate, and that seems to happen regularly in the military.

You don't have to think the techniques the military training includes are worse than the worst things that actually happened. I believe all three stories you link to indicate that what was actually done probably went beyond the CIA's internal limits or what the memos suggested should be allowable.

If Pelosi et. al. were told only that they would be carrying out techniques that are detailed in the memos, say, and then those carrying out the interrogations did much worse, then you're right that they wouldn't be held accountable for okaying what the interrogators did beyond what was officially sanctioned. But by parallel reasoning, it follows that the Bush Administration officials who sanctioned less extreme techniques with limits that were violated are also not legally accountable for the actions of those who went beyond those limits.

As for the last point, that doesn't follow at all. That's like saying that we can't try someone for murder if we don't try executioners in capital punishment cases for murder. Just because we recognize that a particular technique isn't necessarily immoral doesn't mean it's always perfectly ok to do it. But the arguments I'm seeing seem to assume that these techniques are intrinsically immoral and always illegal, and that view is incompatible with accepting them as perfectly fine when you use them to train special forces troops.

I'm not touching the first, because I think investigations are a bad idea. Generally, I agree with your point ... if we're going to investigate Bush & Co., then asking Democrats the "What did you know and when did you know it?" question is appropriate.

Hmm ... I guess I did touch it.

As to the second point, I don't think that this is a particularly meaningful point. Training someone to resist torture isn't quite the same thing as torturing a person. If nothing else, there is the fact that we have an all-volunteer military. That's not quite the same situation as holding a person captive.

To take a different example:

It's wrong, inherently, to assault someone. However, police learning hand-to-hand combat are attacked in sparring situations. That isn't the same thing.

My point isn't that it's automatically just fine to do this just because we do it to our troops. It's that the fact that we do it to our troops (assuming that's ok) shows that the methods themselves are not intrinsically immoral. From what I've seen so far, there are two main positions among those who are pushing hardest on this. The majority view is that these are seen as inherently immoral acts, actions that are wrong no matter the circumstances. I'm mainly trying to undermine that position.

There's another position that acknowledges them to be morally allowable in certain circumstances but encourages us never to allow them because people are notoriously bad at policing ourselves to keep them within those constraints. So it should never be legal even if it's morally condonable in very rare circumstances. That position isn't going to be as moved by this argument, but that's a position that I already have a lot more respect for. I just think that once you allow that you should be a lot more forgiving of those who draw the line in a different place than those who think the actions are always immoral. I think ultimately the view can't succeed, because if you allow for torture to be morally ok then it seems as if there might be circumstances when it's morally required, and then it better be legal or else it will be people's moral responsibility to break the law. In such cases, it would also be immoral to prosecute them. I don't like that result. But I have a lot more respect for the view than I do for the absolutist position.

I don't remember where I got this from but the two of them bandy about a lot of references to sources that may be able to be followed up on.

1) [Various Democrats] seem to have given their approval of whatever actually took place with official sanction. Or at least they voiced no objections.

From what I understand, the actual administration policy was kept classified. The Bush Administration's stance on the issue was consistently: "We assure you that we are not torturing. But we cannot tell you what actual techniques we are using for reasons of national security. You'll just have to trust us."

If the Administration told the Democrats in question only the above, then those Democrats could only be held guilty of giving the President the benefit of the doubt. I don't see any way you could in good faith accuse them of officially sanctioning (or failing to raise objections to) torture if they were only told "Will you approve of X? We won't tell you what X is except to say that it isn't torture."

If, however, they were aware of the actual techniques then I think they should be investigated for war crimes as well.

2) if they think these procedures are immoral in principle... I think you are missing a key element of torture here: volition. I think that torture--by definition--is something that happens against the victim's consent. Because consent is part of the definition, then you can say it is absolutely immoral from a deontological perspective without running afoul your SERE counterexample (since the trainees undergo the training voluntarily).

This is similar to how you can say that rape is absolutely immoral from a deontological perspective, since it is the unwillingness of the sex act is the definition of rape, not the sex act in isolation that defines rape. In the same way, it is not the (for example) waterboarding per se that makes it torture, but the involuntary waterboarding that is torture.

Aside from the two points above, I'm more concerned about your statement of doubt that "people issuing such calls are sincere about the issue and not just pursuing a politically-motivated witch hunt." The way you say that makes it seem like you are more concerned about partisan politics than you are about whether wrongdoing occured and accountability for it.

Rest assured that there are some (like me) who want everyone who intentionally tortured or authorized torture to be convicted of war crimes, Democrat or not. (Though I have some doubts about that being the assurance you want, since the tone of your post seems to indicate that you'd rather that those who authorized torture not be investigated.)

It seems as if a lot of people commenting on this seem to have information that what was classified to us was certainly presented to the congressional leadership and the committee chairs on intelligence and perhaps some other committees. But I've only rarely seen this acknowledged in the calls for investigation.

OK, I can understand the view that it might be consistent to allow it in one case because it's voluntary but not in another because it's not. Maybe certain things are always immoral when involuntarily imposed. I'm not going that far with torture, but it is a consistent position. I'm not entirely sure that the cases of military training are purely involuntary, though. Sure, it's a choice to receive special forces training, but if the only way to receive such training is to accept torture then is it purely voluntary? It's not like Christopher Hitchens volunteering to be waterboarded for journalistic reasons.

My concern is neither whether wrongdoing occurred nor whether partisan politics is occurring. My concern is whether these investigations should be occurring. I'm still of the opinion that public investigations will do more harm than good even if wrongdoing did occur, and if the motivation is purely partisan politics then I want that known as a means to undercut the public investigations and perhaps allow for a more bi-partisan private investigation whose findings would not be fully available for our enemies to benefit from. If wrongdoing did occur (as it certainly seems to have done, at least at lower levels), it would be nice if those who did so should be held accountable, but I don't want such public accountability at the cost of the secrecy necessary for any ongoing efforts to resist the kind of terrorists who could benefit from knowing what could happen to them if they get captured.

It's an unfortunate consequence of an ongoing effort with no clear end in sight that you can't wait until it's over to do your final evaluation of all participants without risk of affecting the efforts of our troops and intelligence officers. But given that fact, I'm really hesitant to air our dirty laundry in such a public manner, and I think it was probably very much detrimental to our efforts in resisting terrorism even to release the memos, never mind to probe more deeply in such a public manner.

If it's possible to achieve disciplinary actions in private, I'm all for that. If it goes up to higher levels than that allows for, I'm not sure the best thing to do, but I at least very much hesitate at making it a public issue unless the risk of revealing too much information can be minimized. The facts we're being presented with already seem to me to be going too far. We certainly shouldn't need to have all this information public if it's just a matter of tracing down where the official policy and the actual practice came apart.

Rey, that was helpful. Liz Cheney is usually pretty careful, and we do need to keep in mind the distinction she makes between public endorsement of a program, calling for legal and moral determination of what we should allow, and directing lawyers to achieve a certain result before even seeing the argumentation. There seems to be no proof that the last thing happened, even though the first two seem to be public record now.

Nora O'Donnell has been known in the past to be fact-challenged (most famously her false claim that Sarah Palin called Obama a terrorist on the campaign trail), but she's usually not insensitive to a careful distinction the way she is in this video, even after being corrected. She has a philosophy degree from a pretty good philosophy department, and I'd expect better than this from my best undergraduate students. I don't think I've ever seen her so vociferously take a partisan side in a debate on air. If she were just relying on a fact, it would be all right, but she's not. She's running roughshod over an important distinction that makes all the difference. Maybe it just comes from not reading the documents but relying on headlines, as Liz Cheney suggests, but even so it shows lack of preparedness on O'Donnell's part.

I do find it disturbing that Holder hadn't even read the memos about the effectiveness of this program before Obama's decision to release the memos. Effectiveness isn't the only issue, but if the attorney general, Obama's top legal adviser, hadn't even read the relevant information before offering his advice to the president. It does make us wonder if Obama had read them himself. It gives the sense that this wasn't a carefully thought-out decision and lends credence to the political-motivation angle on it.

In addition to my view (in my last comment) of whether this should be discussed publicly in the way being proposed, here are some claims that I'd be willing to endorse at this point:

1. Administration officials across the board have endorsed the program as legal and morally warranted. What I've been led to believe is that the congressional leaders were involved in meetings that discussed this and did not offer any resistance.

2. We don't know if what the memos said was exactly what was endorsed as official policy, but it would be surprising if official policy went beyond what the memos allow.

3. What actually occurred certainly did go beyond what the memos allow, and it went beyond the CIA's internal memos.

4. The administration has always maintained that the techniques they officially endorsed do not count as torture (which should be evaluate in terms of the relevant sense, which I maintain is not the ordinary meaning of the word but a legal construction).

5. The memos give arguments for what counts as torture in the relevant sense, and they argue that what they approve does not count as torture in that sense. Lots of people have disagreed with this. Some of their arguments rely on mistaking this for the ordinary sense. Some of them don't seem to do that.

6. Whether they count as torture in the relevant sense does matter in terms of evaluating the accuracy of administration claims, and the president's own claims, that the U.S. does not torture.

7. Whether they count as torture in the relevant sense may not be sufficient to determine whether it was illegal, given several further arguments. If the administration is correct that the Geneva Conventions don't apply in cases where the government is not at war with an actual nation or where the other party already doesn't abide by them (e.g. by beheading any prisoners), then whether it's torture in the way defined in those conventions may not be relevant. In that case, we may have to rely on internal U.S. laws, and I'm not sure those settle the issue. [My understanding at this point is that the Geneva Conventions apply only to what they refer to as High Contracting Parties, which legally applies only to those who sign the conventions, which doesn't obligate a non-signatory. But signatories agree to abide by the conventions until a party who is a non-signatory does something disallowed by the conventions, which I think should include hijacking private planes and flying them into buildings to call thousands of people and would include also include beheading civilians.]

8. If it was illegal, I'm not entirely sure what legal response there ought to be. Illegality doesn't imply criminality in terms of punishability. So it depends on what laws there are for punishing, and I'm not sure if there are any or what there are if there are.

It may well be that the information to fill out this picture is out there, but I haven't seen enough to be confident of it if so. My suspicion is that a lot of people are jumping from one thing to the next without warrant.

Jeremy, I'm pretty sure this is a straw man: the arguments I'm seeing seem to assume that these techniques are intrinsically immoral and always illegal, and that view is incompatible with accepting them as perfectly fine when you use them to train special forces troops. I've never seen anyone say that. I have seen people argue that in context, these techniques are always torture. But nobody's saying that the water and the board are sufficient conditions for calling it torture.

What someone like me is going to say is that the various legal memos authorized treatment that could be presumed by a rational person to amount, in practice, to torture. (Or to amount to otherwise "cruel, inhuman, and degrading treatment," which is also illegal -- a fact that often gets overlooked in these discussions.) Again, it's not the water and the board that are the problem; it's the likely circumstances of application. In fact, the memos were quite detailed. The Office of Legal Counsel cleared as legal specific acts after receiving detailed information about their implementation from the CIA. I encourage you to read that memo.

As for whether these memos represent administration policy, I cannot imagine where else you imagine administration policy to reside. The president doesn't write these things himself; the CIA director doesn't either; neither, except in exceptional circumstances, does the attorney general. A legal opinion prepared by the Office of Legal Counsel in the Justice Department, or by the general counsel of the CIA, is as high up the chain of command as specific legal advice is going to be.

The closest relevant document I'm aware of from any higher up the chain of command is this one from President Bush (PDF, 7 Feb. 2002), which declares that the US is committed to treating detainees from Afghanistan "humanely" but is also convinced that the Geneva Conventions do not protect them. For the details of that policy, the memo simply refers to other memos approved by Bush's subordinates, including Donald Rumsfeld. Rumsfeld, of course, is the official who personally approved the infamous "standing memo" (PDF, 2 Dec. 2002) authorizing the military to use a number of similar methods to those used by the CIA, though for shorter durations.

In any case, fear of political partisanship is not sufficient reason to categorically shield officials from criminal investigation in a case like this one. That's why we have special prosecutors and grand juries in the first place. And I'm pretty sure that a competent prosecutor (or defense team, for that matter) would subpoena the Congressional leadership to have them detail what they were told and when. For all we know, Pelosi and Reid are eager to testify.

Have you read Philippe Sands' Torture Team? It's the investigative piece that led to the criminal inquiry currently being studied in Spain. It concerns only the military interrogations, not the newer information about the CIA interrogations. I encourage you to read it; it's not all that long.

I wonder how who’s prepared to use torture as a means to one’s end could deny others the right to use objectionable means to their own ends. Breaking someone won’t necessarily get one what one wants to get at, unless torture is punishment or airing frustration. I think we can all be made to break and do things we’ll despise ourselves for and perhaps we’re easier to break if it’s our child who’s being tortured rather than us: The drama is in the conflict of wills between who tortures and who resists, and within each. But it sounds like a category mistake that a non-signatory to some convention flew planes into buildings and was tortured. As for doing some dirty laundry in public, it's bound to appease one’s enemies.

Hmm. I suppose I should respond to some of comment # 8 while I'm at it and now that I have the time.

As you know, Jeremy, I am not a lawyer. However, I'm pretty sure you're wrong about this: If the administration is correct that the Geneva Conventions don't apply in cases where the government is not at war with an actual nation or where the other party already doesn't abide by them (e.g. by beheading any prisoners), then whether it's torture in the way defined in those conventions may not be relevant.

In fact, the Supreme Court ruled three years ago in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions does apply to the conflict with al Qaeda and the Taliban.

Next: If it was illegal, I'm not entirely sure what legal response there ought to be. Illegality doesn't imply criminality in terms of punishability. So it depends on what laws there are for punishing, and I'm not sure if there are any or what there are if there are.

Again, I'm not a lawyer, but the federal torture statute makes both torture and conspiracy to commit torture punishable by a fine and/or up to 20 years in prison. (The death penalty also applies to the actual perpetrator, though not to conspirators, if the victim dies from the torture.)

The federal torture statute is 18 USC 113C. The wording is complicated, but as far as I can tell, it includes (among others) the following provision:

"Torture" has occurred when any US national acting in an official capacity outside the United States causes -- with "specific intent" -- "prolonged mental harm" by either (a) using "procedures calculated to disrupt profoundly the senses or the personality," (b) making "the threat of imminent death," or (c) making a threat to "imminently" do (a) or (b). And conspiracy to commit torture is subject to the same penalties as actually committing torture, except for the death penalty.

It seems to me that the main question here is "specific intent." It seems obvious that waterboarding someone 183 times -- which the Justice Department was aware of when it issued one of the memos cited above -- represents a profound disruption of the senses likely to cause prolonged damage to the mental health of an individual. Any reasonable person acquainted with the procedure would conclude that it would probably cause prolonged mental harm. The same goes for 180 hours of sleep deprivation, weeks of continuous nudity, and some of the other methods approved in combination in these memos.

But can we assume that the CIA interrogators, the general counsel of the CIA, or the lawyers at the OLC were reasonable observers? It seems to me that this is what criminal investigations and courts are for in the first place. It is quite possible that a thorough investigation will turn up crucial evidence of intent or lack thereof. Until a thorough criminal investigation, we probably won't know. But certainly, even with the few memoranda that have been released to the public, we have reason to make inquiries. And unless I'm mistaken, courts do often conclude that we may infer intent from what a reasonable person would expect.

Jonathan, I've certainly seen people criticizing torture because they believe it's immoral in any circumstances. This is particularly common among Christians who have expressed opposition. It's not that the existence of the board and the water are immoral. With waterboarding, the claim wouldn't be that the water and the board themselves are immoral. It would be that putting water on someone in this way is always immoral or that waterboarding is torture and that any torture is automatically immoral.

I see administration policy lying in whether the president or a cabinet official sees such a memo and then declares that they will go by it. It doesn't need to be in a document. It just doesn't seem to me that the mere existence of a memo indicates that it's administration policy. Someone in a decision-making capacity has to indicate that they are going with what the memo says. We do know that administration officials across the board were behind the program, but it's not clear to me if the program as officially endorsed was supposed to do exactly what these memos say. It's also not clear to me if what actually occurred was officially allowed. They actually can't both be true, because we know what occurred involved things the memos didn't recommend as approved. Where the administration officials stood on either question is unclear to me. The Office of Legal Counsel memo you link to doesn't seem to me to be indicating that it's declaring an administration policy. It's worded in such a way as to indicate that it's recording for the record what oral advice was given as to an opinion (it uses the word 'view') of what is legally allowed.

I should reiterate that I'm not necessarily opposed to an investigation of this. A private investigation by a non-partisan group of some sort is possible. It doesn't need to be done publicly by the Justice Department or the Senate Judiciary Committee. Depending on the results, some information might need to be made public, but that doesn't mean they need to release rightfully-classified information.

The Hamdan v. Rumsfeld opinion says minimal protections are required for someone in a signatory's territory in a non-international conflict. The majority must think the conflict with al Qaeda is non-international, which is a pretty crazy claim. So I don't think that opinion is correct in terms of what the Geneva Conventions actually require.

Where did these events occur, also? I thought they were at Guantanamo. Is that outside the United States? Is it technically Cuba? Is Cuba a signatory?

EO, perhaps your opening remark intends an analogy with abortion, but there are several relevant disanalogies. Abortion kills. It kills an innocent. These techniques are at least intended not to cause permanent harm. That's how the memos take them, anyway. An individual abortion doesn't have potentially thousands or millions of lives at stake. There's just no comparison.

There's certainly a debate to be had about how effective individual methods might be, but there's certainly evidence that they did receive especially crucial information from these techniques, e.g. a plan to blow up the Brooklyn Bridge that was abandoned because federal agents began keeping too close a watch on the particular building that was crucial to the operation.

It's not a category mistake to point out that the group in question did things that explicitly disqualify it from being treated as a prima facie signatory (without having signed). The Geneva Conventions explicitly say that anyone must be treated as a signatory unless they've done something against the Conventions, and those acts would surely be against them. As far as that condition applies, I'm almost 100% sure that I'm right.

Ah. I didn't realize that you were suggesting that something could be "torture" without automatically being both immoral and illegal. I thought the question for you was whether waterboarding is torture. In that case ... yes, I'm one of those Christians who thinks torture is always immoral and illegal. (If it isn't always criminal under federal law, it certainly is under international law -- and, via the supremacy clause and the Fourteenth Amendment, it is always illegal under the US constitution.)

As for Hamdan, we obviously disagree here about the interpretation of the treaty. But the US case law is on my side. In any case, I think it's clear that "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties" does cover the war in Afghanistan. Al Qaeda is not a nation-state, and neither the United States nor the United Nations ever recognized the Taliban as the government of Afghanistan. Thus, Afghanistan was a high contracting party (as of 1956), but the Taliban and al Qaeda were not nations or signatories. So the conflict was an armed conflict between a nation and two non-national armed groups, occurring in the territory of a HCP. That is a non-international conflict that qualifies under CA3.

This, then, raises another statutory point: it is a violation of the federal war crimes statute (18 USC 118 § 2441) for any US national to commit a "grave breach" of Common Article 3. So even if the torture statute does not apply, federal law still prohibits substantially the same behavior. And the war crimes statute, apparently, is not limited to actions outside the United States.

Where did these events occur, also? I thought they were at Guantanamo. Is that outside the United States? Is it technically Cuba? Is Cuba a signatory?

It appears from some of the released documents (particularly the Red Cross report) that these events occurred in various other countries, probably including Poland and Afghanistan as well as Cuba. All three are signatories to the Geneva Conventions, although I'm not sure that makes a difference under the statutes.

For the purposes of the federal torture statute, the only question is whether they are "outside the United States." That could be a complicated question with vastly entertaining implications for the broader legal status of Guantanamo inmates. (The Bush administration itself actually tried to exclude US courts from jurisdiction by claiming that "ultimate sovereignty" belonged to Cuba. The Supreme Court rejected that argument in Rasul v. Bush.) It appears to me that Gitmo is considered US territory for the purposes of the torture statute -- until about 2005, when the act was amended. But if any torture occurred in an area that was not under the control of the US at the time, then the statute would apply. Presumably, a criminal investigator with full subpoena power would find out whether that had happened.

However, for the war crimes statute, it doesn't matter where the violation of Common Article 3 occurs. An act that would not be federal criminal torture, therefore, might still be a federal war crime.

Oh, and the war crimes statute provides for the punishment of being "fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death. "

I didn’t intend an analogy with abortion, not consciously; I thought you had, last time we spoke. (There’s a case before the European Court against Ireland where apparently a ban on abortion on health grounds is challenged on the basis of article 3 of the European Convention which bans inhuman or degrading treatment or punishment, as well as torture, outright and without qualification; it’s still pending.) I thought perhaps both the torturer and the victim feel they have no other choice in this rotten world but to do something illegitimate if that’s the only way to get at what they legitimately want which is to defend rights and restore justice. But the symmetry breaks, I think, where the torturer is a government agent; and one can’t be sure the victim does have the information one’s after.

You seem to be suggesting it’s now OK for American citizens to be subjected to water-boarding by foreign governments either because water-boarding is not torture or because the US government has already used this technique and US citizens have therefore forfeited the protection of international conventions. Even if some international legal provision does not apply in the case of a foreign citizen national law presumably still applies; where’s no man’s land? Anyway, I think there’s an implicit argument from such position that it would be in the best interests of American military/intelligence personnel for the US to be seen to condemn and disown these practices.

I have no view as to why Brooklyn Bridge’s still standing but there have been allegations that torture has been used in an attempt to provide a posteriori justification for the invasion in Iraq. Saving the face of the government of the day is not identical to serving national security interests. I think Obama was too quick to appear to absolve those involved, particularly since they seem to have exceeded the remit even of the dubious memos; but he’s still got space for manoeuvring.

Jonathan, my point all along has been that the word 'torture' can mean a lot of different things. I don't think the Geneva Conventions even use the word. If you want to go by the U.N. definition (mirrored in the US code), then it's defined in terms of causing severe pain or suffering for any of a list of purposes (including coercion or getting information, which I think can be seen as a kind of coercion), but then it doesn't define 'severe'. There's another clause about other acts that signatories are obligated not to allow that defines them as "acts of cruel, inhuman or degrading treatment or punishment", but the U.S. explicitly indicated in signing that it will only follow this insofar as the acts in question constitute cruel and unusual punishment under the U.S. Constitution.

Now I would think most English speakers have a broader sense of what constitutes torture than that allows for, whether what we're talking about should legally fall under this definition or not. I certainly think the ordinary sense of 'severe' won't line up with what most interrogators would see as severe, and you probably will have a different sense of it in many different contexts. So it's at least not an obvious immediate implication of international law that the acts that are internationally illegal as torture are exactly the same set of acts that the English word 'torture' includes in ordinary language. When discussing the moral issues, I'm happy to speak more broadly than when discussing the legal issues, where I'd be more hesitant to call something legally torture unless I've seen a very specific statement about the particular act or a ruling of an international tribunal that the U.S. must remain bound by. It's certainly possible that that's been done or could be done, but I haven't reached a point of seeing the reasoning toward it.

It's extremely hard for me to see the conflict with al Qaeda outside the United States as not international. It's in Afghanistan. I suppose you could restrict yourself to using the term 'international' to describe only conflicts between nations, but that's not a natural use of the term to my ears. If it's taking place between a nation and a group whose operation is international, and it's taking place in a nation that isn't the first nation, it seems international to me. But I don't know the history of how these terms have been used, so maybe you're right.

I don't think you're right about federal law prohibiting any act that would be a grave breach but isn't because of circumstances. What it says is that it prohibits acts that would be a grave breach. It doesn't seem to me to say that it prohibits acts that would otherwise be grave breaches but aren't because circumstances make it not apply. It says it must be an act "which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character". So it does restrict it to the context of an armed conflict not of an international character. So this doesn't seem to me to add to what's already there in the Geneva Conventions except to make it U.S. law that those conventions must be followed with respect to this issue, with penalties for those who don't.

European Observer,

You seem to be suggesting it’s now OK for American citizens to be subjected to water-boarding by foreign governments either because water-boarding is not torture or because the US government has already used this technique and US citizens have therefore forfeited the protection of international conventions.

Not what I said. My argument is that those who oppose this because they see it as intrinsically immoral should also be opposing it in the instances where we do it to our own troops. There are some ways around this, especially if you use the voluntary submission way as has been suggested, but I'd want to see the people who are making this argument at least acknowledge that we do it to our own troops and explain why they think that's ok. As I indicated, I'm not sure the moral theory that I think is correct is going to take that as definitive.

Whether it's legal in another country depends on their laws in part, and it depends on whether international law prohibits it and whether they are under international law if it does. Those are issues that the ongoing conversation should show I have not formed a view on. My argument in the post itself isn't about that, though. It's about the moral opposition that I haven't seen directed against doing this to our own troops. If it's so despicable that it should never be done, then I don't think it should be done to those who volunteer for it for training purposes. If it's allowed in such cases, then presumably there could be other factors that outweigh how bad it will be, and perhaps those are going to include getting information that's so potentially important that it would take such extreme methods to get it. This is a moral argument, not a legal one.

It's an argument that shouldn't apply to the U.S. anyway unless we're going to do something like what we did to end the conflict with Japan in WWII. The contexts I'm talking about involve preventing huge numbers of innocent people from dying at the hands of someone committing a single criminal act. If the U.S. were perpetrating such acts, then I'd certainly be at least open to the use of such techniques as a moral matter against someone who very likely had some information that could prevent it.

As for the idea of forfeiting international agreements goes, I believe the wording is pretty explicit that any signatory is protected, and the U.S. is a signatory. When addressing whether non-signatories are protected, it says that there's a presumption of protection, which can be removed if the party in question does something that would be against the convention's requirements. It doesn't say that actual signatories lose protection in such circumstances. So the moral argument I accept in the previous paragraph would require doing something illegal, which would provide some resistance to what I would otherwise see as perhaps moral, but there might be circumstances where something is so important as to outweigh even that (in terms of the moral issue; it would still be punishable).

there have been allegations that torture has been used in an attempt to provide a posteriori justification for the invasion in Iraq

I'm not sure what you mean unless the idea was to get information that would have established that the reasons for invasion were good ones. Since I think they were indeed good ones, I don't see how this would be necessary. Nothing that was discovered after the fact undermines the actual reasons (as opposed to the pretended reasons the opposition has repeatedly mischaracterized as the justification since the original invasion ended and the transition to the new government began), since the WMD argument in its purest form (and in the form presented by Bush and Blair from the very beginning) never depended on finding large stockpiles of WMD but just the potential to restart WMD programs in a way that might allow WMD to be in Saddam's hands within a relatively short period of time once sanctions ended, and that turns out still to have been true.

But you're right that if the only reason torturing occurred in any instance was to try to bolster the invasion argument, then it doesn't justify the torturing. I doubt that was ever the case, though, since these are people who did have information that could be useful even if one motivation was to get that kind of information. I also wonder if some of these allegations are coming from people who don't understand how interrogations go. You need to get them to admit information that we know that they don't know we know in order to establish a baseline of whether to trust what they say, so they might include questions that might not seem to be about ongoing efforts, and some may have wrongly taken that as a sign of what the purpose of interrogations has been. (Then there's also the possibility that people saying such things may just be seeking to undermine Bush's reputation because they hate him.) In any case, I'm not going to accept such charges without some serious evidence.

I've discovered two items relevant to some of the things that have come up at various points in this discussion that I wanted to record here.

One is relevant to who in Congress knew what when. It doesn't saw anything about the Congressional leadership and the committee chairs, who I understand knew a lot more a lot earlier than the members of the committees. But it does comment on the latter. From Hayden Mukasey's WST op-ed:

The terrorist Abu Zubaydah (sometimes derided as a low-level operative of questionable reliability, but who was in fact close to KSM and other senior al Qaeda leaders) disclosed some information voluntarily. But he was coerced into disclosing formation that led to the capture of Ramzi bin al Shibh, another of the planners of Sept. 11, who in turn disclosed information which -- when combined with what was learned from Abu Zubaydah -- helped lead to the capture of KSM and other senior terrorists, and the disruption of follow-on plots aimed at both Europe and the U.S. Details of these successes, and the methods used to obtain them, were disclosed repeatedly in more than 30 congressional briefings and hearings beginning in 2002, and open to all members of the Intelligence Committees of both Houses of Congress beginning in September 2006. Any protestation of ignorance of those details, particularly by members of those committees, is pretense.

The other is from something that nicely captures something of the ambivalence I have while explaining why I lean the way I do, from Dale Carpenter:

One can imagine a couple of default rules in cases of uncertainty about what constitutes torture: (1) err on the side of respecting the human dignity and health of the detainee, in accordance with longstanding national and international commitments and aspirations, or (2) err on the side of getting information believed to be necessary to protect human life, using techniques believed to work. The choice of default depends on which values seem paramount at the moment. It seems silly to think that these default rules and the values they represent are never in tension. And it seems too hard and pure to imagine that there aren't cases and times, like America in 2002, where one might sometimes choose the latter default rule over the former.

Those aren't directly related to the last comments so much, but I thought they were relevant to several things discussed in this thread, so I decided to post them here rather than in new posts.

Here's an interesting argument based on internal considerations within the Geneva Conventions for the Bush Administration's interpretation of what counts as an international conflict (and mine) as opposed to the Supreme Court majority's (and Jonathan's), as discussed above.

Basically, either the conventions are contradictory or they can't be taking international conflicts to be as narrow as just conflicts between nations.

Jeremy,

I think it might be useful to shift the debate from legality to morality. One thing can be illegal, but moral–while another thing can be moral, but illegal.

Instead of debating what the law does and does not permit or prohibit, don't you think we redirect the discussion to whether we have the right laws? What's the purpose of having laws in the first place? Is the law an end in itself, or a means to an end?

Regarding the issue it hand, it seems to me the relevant question to debate is whether we have laws that protect the innocent from wanton aggressors, or whether we have laws that protect wanton aggressors from the innocent.

Even if, for the sake of argument, the Bush administration broke the law, isn't the more important question whether we have the laws we need in place to defend ourselves against our mortal enemies?

In other words, sometimes the law is the problem. Sometimes we need to change the law. Just quoting the law begs the question.

I'm not saying any of this in objection to anything you've said. To the contrary, I appreciate the various points you've made.

But I disagree with how some of your interlocuters are framing the issue.

Steve, I've actually tried to do that sort of thing in the past a number of times, but I'm not entirely sure of what kind of positive view to put forward instead of the current framework. I do think it would be next to impossible to get around the Geneva Conventions just because on policy grounds we disapprove. It would take a Supreme Court reversal, as I understand it, to change how those are applied.

It looks as if the Supreme Court now seems to have ruled on whether high officials can be held legally responsible for the conduct of those carrying out illegal actions under them. The majority view is that they can be held accountable only if they are directly involved in a participatory way with the illegal activity. Just ordering it isn't enough.

The issue wasn't interrogation techniques of any sort but purported racial and religious discrimination in singling out Arab Muslims to be arrested on suspicion of al Qaeda connections. But it is a war on terrorism case, and the international crisis regarding terrorism since 9-11 does seem to inform the decision, so I'd be surprised if the five-justice majority wouldn't also apply it to any interrogation techniques determined to be illegal that were approved of by higher officials.

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