December 16, 2005

The Torture Debate

I have to say I'm with Sullivan on this one. While I like and respect Glenn a lot, I can't help but conclude that Glenn has not taken the torture issue seriously. Yeah, he's against it and all, but you couldn't help feeling he didn't really care all that much about it over the past couple of years. When did I cross the rubicon on this issue vis-a-vis Glenn? Well, I guess it was when Glenn linked to this Roger Simon post as offering "perspective".

Simon had written:

Yes, yes, I know - all those horrors in Abu Ghraib... that dopey young lady playing S&M horsey games out of every other manga comic book in Shinjuku that sooooo offended some people. (I bet!) Meanwhile, in the real world, we all know the obvious truth about prison in every country - it stinks! Jail is lousy for everyone from Tashkent to Talahassee - even Martha Stewart. And I'd take my chances in a US Military prison over virtually all of them and so would (I'd bet again - in this case my house) almost all their critics, from the editors of the New York Times to the head honchos of Amnesty International. (How do those hypocritical buzzards feel about this new Congressional report, I wonder?)

As I wrote to Glenn sometime after that, I felt real dismay (I think I told him I felt a "pinch in my gut", if memory serves) when I saw that someone of Glenn's obvious intelligence, Yale Law pedigree, and blogospheric authority would point to such bull-crap as offering "perspective" on an issue of critical import to our national security. In this post, Roger later went on to the tired talking points about how great the menu and rice pilaf and other sundries were at Gitmo. The predictable, sophomoric fare. But as is readily apparent to those who took the time to pore through all the government reports on the matter, tactics that were developed for use at Guantanamo were a contributing, material factor in the abuse and torture that took place in detention facilities in Afghanistan and Iraq. What may have 'worked' (though I think the abuses that took place in Guantanamo often went beyond the pale) under controlled circumstances at Gitmo, far from emotional conflict zones, with good guard to detainee ratios--led to horrific abuses and violations of basic norms of civilized behavior when they 'migrated' to the conflict zone. So you will forgive me if a little congressional visit to Gitmo didn't amount to a suitable all clear for me, as it did an eager crowd of torture and abuse apologists.

Frankly, I'm just sick and tired of the constant litany about whether wrapping someone up in the Israeli flag or menstrual blood constitutes torture, or abuse, or is no big effing deal, or something in between, or whatever. I'm sick of Rich Lowry getting all pissy-matchy with Sullivan about whether things like "belly-slapping" constitute torture or not. Or Mark Levin's sad series of apologias over at NRO (in these days of rather embarrassing K-Lo-esque buffoonery, said periodical has dropped, me thinks, far below Buckley-compliant standards of golden yesteryear).

On the Lowry front, for instance, he writes, re: his recent exchanges with Sullivan:

I asked if lapel shaking, belly slapping, and cold rooms are torture or cruelty and under what circumstances. He gives one circumstance. I guess we're supposed to conclude from that all cold rooms are therefore torture, no matter what the circumstance? What a joke. What about lapel shaking? Belly slapping (which is known to create an acute stinging sensation in the belly area and a loud “slapping” sound that increases the terror of this technique)? He won't say. Sullivan is afraid to admit that the McCain approach will effectively ban all coercive techniques, even ones that most reasonable people wouldn't consider torture or cruel.
Let me suggest to Rich Lowry that he go read Army Field Manual 34-52. It spells out the appropriate standards by which our armed forces should treat detainees in our custody. Physical torture is defined (see page 1-8) as including tactics such as "any form of beating" or "forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time". Such interrogation tactics have stood us in good stead for decades, including in terms of extracting intelligence information. Look at the distinguished military men and women who signed this letter, who know infinitely more than Rich Lowry or I about military matters. They write:
Repeatedly in our past, the United States has confronted foes that, at the time they emerged, posed threats of a scope or nature unlike any we had previously faced. But we have been far more steadfast in the past in keeping faith with our national commitment to the rule of law. During the Second World War, General Dwight D. Eisenhower explained that the allies adhered to the law of war in their treatment of prisoners because "the Germans had some thousands of American and British prisoners and I did not want to give Hitler the excuse or justification for treating our prisoners more harshly than he already was doing." In Vietnam, U.S. policy required that the Geneva Conventions be observed for all enemy prisoners of war - both North Vietnamese regulars and Viet Cong - even though the Viet Cong denied our own prisoners of war the same protections. And in the 1991 Persian Gulf War, the United States afforded Geneva Convention protections to more than 86,000 Iraqi prisoners of war held in U.S. custody. The threats we face today - while grave and complex - no more warrant abandoning these basic principles than did the threats of enemies past...

...A series of memos...prepared...in 2002 recommended official authorization of harsh interrogation methods, including waterboarding, feigned suffocation, and sleep deprivation. As with the recommendations on the Geneva Conventions, these memos ignored established U.S. military policy, including doctrine prohibiting "threats, insults, or exposure to inhumane treatment as a means of or aid to interrogation." Indeed, the August 1, 2002 Justice Department memo analyzing the law on interrogation references health care administration law more than five times, but never once cites the U.S. Army Field Manual on interrogation. The Army Field Manual was the product of decades of experience - experience that had shown, among other things that such interrogation methods produce unreliable results and often impede further intelligence collection. Discounting the Manual's wisdom on this central point shows a disturbing disregard for the decades of hardwon knowledge of the professional American military. [emphasis added]

Lowry is concerned that moralist preening will end up costing American lives. God forbid, should there be a major terror attack that kills tens of thousands, we will see a chorus of complaints that Saint McCain helped spur on the massacre because of his too coddling approach to detainees. This is bunk. As McCain has said, if there is a real ticking time bomb scenario, the gloves will come off, but the interrogator will be responsible for his actions. In the meantime, we go forward preserving decades-long best practices that military officers have supported through myriad crises. They support it not least because they realize that they have been able to garner effective intelligence via the methods authorized in the manual, and because they further realize to muddy the waters with carve-outs and exceptions will lead to abuses--abuses that taint the repute of our armed forces and make it likelier that their men in the field will be tortured in turn.

And what of Mark Levin, another anti-McCain voice at NRO? Let's take a quick look at his output on this issue. Transparently trying to use the Reagan mantle to kind of out-national-glory-McCain, Levin writes:

Ok, let me throw this out there. I actually believe that John McCain is about to do as much damage to the CIA’s ability to function as Frank Church did in the 1970s.

I was prodded to do a little more research on the subject of the UN Convention Against Torture and the rest, and the Congressional Research Service noted that in his transmittal of the Convention for ratification, President Reagan provided that the definition of torture was to be interpreted in a “relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned.” “… the State Department suggested that rough treatment falling into the category of police brutality, ‘while deplorable, does not amount to ‘torture’ for purposes of the Convention, which is ‘usually reserved for extreme, deliberate, and unusually cruel practices … [such as] sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging positions that cause extreme pain.’”McCain’s Amendment flies in the face of the concerns President Reagan himself had with defining torture down–and in McCain’s case, defining it to include “undignified” treatment. Anyone who’s dealt with the DMV has been subjected to “undignified” treatment. I think Reagan was right, and McCain is wrong.

I'm glad Mark was "prodded" to do a bit more research on this score. And, while I can't opine on his DMV point, because I don't own a car and I don't drive, I can certainly report that Levin's "research" was rather, shall we say, undistinguished. Now it is true, as Levin writes, that the Reagan Administration defined torture narrowly in the U.N Convention on Torture ("CAT"). But there's quite a bit that Levin conveniently omits in his analysis, as you will see below.

Let's start by how torture is defined under the CAT:

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

Note, importantly, the "or mental" prong of the definition. It's important that we remember that it's not just putting the bodies through the Saddamite plastic-shredders and such that constitutes torture, per a convention that the Reagan Administration agreed to adhere to. But Levin is right that the Reagan team handling this wanted to ensure torture was viewed as severe, and that it was defined in “relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned.” (source here, PDF). And it is also true that the Senate, in adoping the Convention, sought to better clarify what was meant by mental torture (it was basically undefined in the CAT). Thus the Senate clarified per the below:

With respect to mental torture, a practice not specifically defined by CAT, the United States understands such actions to refer to prolonged mental harm caused or resulting from (1) the intentional infliction or threatened infliction of severe physical pain and suffering; (2) the administration of mind-altering substances or procedures to disrupt the victim’s senses; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality. But there is also Article 16 of the CAT, which Levin neglects to highlight.

Read "1" above, however. Remember things like the image that wounded the reputation of our country so profoundly? The hooded prisoner in Abu Ghraib, hauntingly poised on boxes with electric wires affixed to him, who likely thought he was about to be severely electrocuted? Do you think that man thought he was about to suffer "sever physical pain and suffering"? You betcha. Is this what Mark Levin is fighting to have allowed by the United States of America? How sad.

Levin's argument also touches on Article 16 of the CAT, which the above referenced report explains as follows:

Article 16 requires signatory States to take preventative measures to prevent “cruel, inhuman, or degrading treatment or punishment” within any territory under their jurisdiction when such acts are committed under the color of law. CAT does not define these terms, and the State Department suggested that the requirements of Article 16 concerning “degrading” treatment or punishment potentially include treatment “that would probably not be prohibited by the U.S. Constitution.” Unlike in the case of torture, however, CAT does not expressly require States to criminalize acts of cruel, inhuman, or degrading treatment or punishment that occur within or outside their territorial jurisdiction.

Ah, you say, Levin's got it right! Even the pinstripe, cocktail sipping crew at Foggy Bottom thought Article 16 too loosy-goosy, with vague talk of "degrading" treatment (a footnote in this report states: "The State Department noted, for instance, that the European Commission on Human Rights once concluded that the refusal of German authorities to give formal recognition to an individual’s sex change might constitute “degrading” treatment"). Yes, Euro human rights commissions and sex changes, what risible fare! Thus the DMV crack, and good on Levin for pointing it out, right? Except that it's a gross distortion of what McCain has accomplished. Levin omits that the Reagan Administration and U.S. Senate decided to implement CAT's Article 16 in the following manner:

With respect to Article 16 of the Convention, the Senate’s advice and consent was based on the reservation that the United States considered itself bound to Article 16 to the extent that such cruel, unusual, and inhuman treatment or punishment was prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the U.S. Constitution. According to U.S. Supreme Court jurisprudence, whether treatment by public officials constitutes “cruel and unusual” treatment that is prohibited by the Constitution is assessed using a two-prong test. First, it must be determined whether the individual who has been mistreated was denied “the minimal civilized measures of life’s necessities.” This standard may change over time to reflect evolving societal standards of decency. Secondly, the offending individual must have a “sufficiently culpable state of mind,” indicating that the infliction of pain was “wanton” or, in the context of general prison conditions, reflected “deliberate indifference to inmate health or safety.” Given the Senate’s understanding that Article 16 was not self-executing and the fact that the United States did not adopt implementing legislation with respect to CAT Article 16, it appears that the United States agreed to bind itself to CAT Article 16 only to the extent that it was already required to refrain from cruel and unusual treatment or punishment under the U.S. Constitution and any existing statutes covering such offenses.

Got that? The U.S. agreed to be bound to CAT Article 16 to the extent that we honored our obligations under the 5th, 8th and 14th Amendments. This is what the Reagan Administration agreed to. And this, precisely, is where John McCain fought the good fight, after the aberration of the Yoo memorandum and such, to get us back to. Yes, you read that right. This whole McCain Amendment hullabaloo was a fight to simply get us back to standards that the Reagan Administration had already advised and agreed the United States adhere to. Despite Levin's cherry-picking evasive tactics, this is the simple truth. Read the McCain Amendment people, the relevant language is here:

d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.--In this section, the term ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

McCain has fought to protect Reagan's legacy on this issue, not dismantle it so as to endanger the polity, as Levin evidently purposefully distorts. Ah, but you say enemy combatants and military necessity and so on. But a fair reading of the CAT is to conclude an absolute prohibition on torture: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

But enough of these nettlesome legal details and tired old dragging out of Army Field Manual practice. All this is somewhat yawn-inducing, no? The bottom line here is that we are involved in a global campaign against terrorism where winning the hearts and minds of moderate Muslims, as Lee Kuan Yew points out in the current Forbes, will prove paramount. Like it or not, many Arab Muslims don't care for Israel much given the current state of conflict that exists between them and the Palestinians. So wrapping up detainees in the flag of Israel, while it's certainly not as gory as plucking away George Clooney's fingernails and such a la Syriana, just isn't very smart policy. Ah, and all this talk about menstrual blood. Like, what's the big deal, dude? In a society undergoing steady Las Vegasification and Paris Hiltonization, is it any wonder so few seem to give a shit that American female soldiers, due to tactics personally approved by our Secretary of Defense, would rub their breasts and pretend to smear menstrual blood in the face of detainees? Sounds almost fun, the lap-top brigades giggle on, sign me up for a lap-dance too! But it's all very ugly, in reality, as the foot-soldiers tasked with implementing Don Rumsfeld's dirty bidding well know. As I had excerpted here:

The struggle was lost during the interrogation of a 21-year-old Saudi. The man was believed to have taken flight training with two of the September 11th hijackers. Interrogators got nothing from him. After each gruelling session, he returned to his cell and prayed, but a female interrogator sought to break him by making him feel dirty before his God. With the prisoner shackled in an uncomfortable position, she unbuttoned her blouse and began rubbing her breasts against him. “Do you like these big American tits?” she asked. She made another sexually crude remark, then added, “How do you think Allah feels about that?”

The prisoner spat in her face. She grew cruder. She told him she was having her period, unbuttoned her military trousers and wiped what she said was menstrual blood on his face (it wasn't blood; it was from a red magic marker). He screamed but did not break. Outside the room, she began to cry. So too did Mr Saar. “I hated myself.” Tears rolled down his cheeks. He went home, and took a shower, but “there wasn't enough hot water in all of Cuba to make me feel clean.”

This is corrupting. And sickening.

So no Glenn, you win. Andrew is excitable, preening, inaccurate, pompous, hyperbolic and tiresome on this issue. So much so, indeed, that you wouldn't put yourself in a position to lend your significant intellectual gifts and authority (against your better instincts, I suspect), to call bullshit, loud and often, on a flawed policy that has harmed us immensely on the global stage. (Note: That said, Glenn does have a point. Why did Sullivan go after him so much on the issue, when it's true, he has stated he is against torture. I suspect it's because, like me, Sullivan respects Glenn, much more than many others who've been on the other side of this issue, and so has been frustrated he wasn't more proactive in condemning those who advocated codifying a right to torture in American law).

Look, when you talk to serious people, people who have run major embassies or who have multiple stars on their uniforms, they are outraged that we have had to have a three year long debate about whether Americans can legally be allowed to torture (or were attempting to define torture down so much that a 'humaness' standard, particularly in the context of a countervailing 'military necessity' test, became largely meaningless). As David Ignatius has written, torture related issues amount and evoke directly America's very "seed corn". We just don't do it. Ever. Why? Because it's against all the better instincts of our national character. We are a moral nation, so we don't stoop to the barbarism of our enemies. We are a pragmatic, utilitarian people, so we don't engage in tactics that will often lend to dubious information regardless. We are an intelligent people, and so we realize that the cost of allowing torture (whether by military personnel or CIA interrogators or other USG employees, putting the rendition issue aside for the moment) will do us tremendous harm in terms of our moral authority.

9/11 rattled a lot of nerves. I know, as I was in downtown Manhattan that day, and it remains a formative event in my life. Today, I live in the southern fringes of Tribeca, mere blocks from Ground Zero. I hope for the further rebirth of the community I live in, in this greatest of cities. So you will believe me when I say I harbor no sympathy for despicable, evil men like KSM, who planned this ghastly mass-murder. They are odious individuals that deserve to rot in hell. But, make no mistake, it is American heroes like John McCain that have dealt a blow to the KSMs and ilk this week. He's forced upon this White House a return to decency on an issue that is a hallmark of this nation. And by so doing, he's helped deal a real blow to al-Qaeda. They are seeking to tear apart the fabric of our society, our rule of law, what makes us special and distinguishes us as beacon of freedom in a still so dangerous world. They want to chip away at the wondrous civilization we've created, the better to hand propaganda gifts to them so they can better recruit and fan the flames of inter-civilizational hate.

What John McCain has accomplished was simply to re-assert that our policy remains compliant with what has stood us in good stead since the inception of these United States. Historian David Hackett Fischer writes, in his book Washington's Crossing (hat tip here): "Always some dark spirits wished to visit the same cruelties on the British and Hessians that had been inflicted on American captives. But Washington's example carried growing weight, more so than his written orders and prohibitions. He often reminded his men that they were an army of liberty and freedom, and that the rights of humanity for which they were fighting should extend even to their enemies. ... Even in the most urgent moments of the war, these men were concerned about ethical questions in the Revolution." This is what makes us different. Our seed corn. To dispense with this and call the criticism of the abuse and tortures that have taken place as mere preening or assorted pieties is to countenance a severe diminution of the moral fiber of this nation. But these should be inviolable, non-negotiatable tenets--not fodder for endless rounds of debate.

Charles Krauthammer writes:

Which brings us to the greatest irony of all in the torture debate. I have just made what will be characterized as the pro-torture case contra McCain by proposing two major exceptions carved out of any no-torture rule: the ticking time bomb and the slow-fuse high-value terrorist. McCain supposedly is being hailed for defending all that is good and right and just in America by standing foursquare against any inhuman treatment. Or is he?

According to Newsweek, in the ticking time bomb case McCain says that the president should disobey the very law that McCain seeks to pass--under the justification that "you do what you have to do. But you take responsibility for it." But if torturing the ticking time bomb suspect is "what you have to do," then why has McCain been going around arguing that such things must never be done?

As for exception number two, the high-level terrorist with slow-fuse information, Stuart Taylor, the superb legal correspondent for National Journal, argues that with appropriate legal interpretation, the "cruel, inhuman, or degrading" standard, "though vague, is said by experts to codify . . . the commonsense principle that the toughness of interrogation techniques should be calibrated to the importance and urgency of the information likely to be obtained." That would permit "some very aggressive techniques . . . on that small percentage of detainees who seem especially likely to have potentially life-saving information." Or as Evan Thomas and Michael Hirsh put it in the Newsweek report on McCain and torture, the McCain standard would "presumably allow for a sliding scale" of torture or torture-lite or other coercive techniques, thus permitting "for a very small percentage--those High Value Targets like Khalid Sheikh Mohammed--some pretty rough treatment."

But if that is the case, then McCain embraces the same exceptions I do, but prefers to pretend he does not. If that is the case, then his much-touted and endlessly repeated absolutism on inhumane treatment is merely for show. If that is the case, then the moral preening and the phony arguments can stop now, and we can all agree that in this real world of astonishingly murderous enemies, in two very circumscribed circumstances, we must all be prepared to torture. Having established that, we can then begin to work together to codify rules of interrogation for the two very unpleasant but very real cases in which we are morally permitted--indeed morally compelled--to do terrible things.

No. McCain is right. Torture can never be legally preordained as an acceptable tactic, even against the monsters we face. It must remain a crime to engage in it, without exceptions, and interrogators must be held accountable for their actions. They may, under the totality of the circumstances, be pardoned or otherwise excused when the full facts come to light. But ex post, not ex ante. Again, to enshrine a right to torture in the law, even under very limited circumstances, has terrible ramifications, as it violates core American values that have stood us in good stead since the very inception of the Republic. (And regardless, what is a "slow fuse" Mr. Krauthammer? One of the legions of Zarqawi lieutenants seemingly caught every other day in Iraq? A Fallujan who may know where the next IED is? What Cabinet Minister will we call to get permission to torture these individuals? Will we pull Condi Rice out of her ministerials to so authorize? This is not serious, I fear). No, the right course is the one the American legislature has taken on this issue contra Dick Cheney, and Krauthammer, and Levin, and so many others.

We must now prepare ourselves for the hysterical shrieks that will result when and if the next terror attack occurs, perhaps more terrible than 9/11, where people will cast about for those culpable. McCain will likely be pilloried by some, even if there is not a shred of credible evidence that some interrogation in Romania or such--had we been able to take the gloves off a bit beyond what Army Field Manual complaint doctrine allowed--would have averted the catastrophe. There will be new attempts, particularly if the crime is terrible in scope, to allow for a right to torture to be codified in American law. Fake arguments will be ginned up that, but for McCain, the plot might have been stopped! So, yes, this struggle against those who would set aside our best traditions--developed over the centuries and through many traumas indeed--will face many challenges ahead. But for the time being, the better argument prevailed. National honor was restored, and we are all the better for it. And, in the main, we have Senator McCain to thank for it. Thank you Senator.

UPDATE: God knows Glenn, I'm not "without flaw" either. Nor, by the way, did I mean to suggest that Glenn's view is that of Levin's. It is not.


Posted by Gregory at December 16, 2005 11:50 PM | TrackBack (4)
Comments

This is all an exercise in futility. Bushco will go right on doing what they're doing ... they are above ALL LAWS. The compromise with McCain is a PR farce.
Hint: read the resolution giving the President authority to go after al Qaeda.

Posted by: judyo at December 17, 2005 08:44 PM | Permalink to this comment Permalink

All these absurd protestations about how Saint John McCain is some stoic guardian of our national character are a pathetic charade in light of McCain's storied history of eviscerating the First Amendment. Far from "fighting the good fight", McCain is merely pandering to his natural constitutency -- the media -- and you, like Sullivan, are too stupid to realize it, and are perfectly willing to debase a policy debate by questioning your opponents' moral bona fides.

Fuck you, and fuck him.

Posted by: Brett at December 17, 2005 09:39 PM | Permalink to this comment Permalink

It's a sign of your own moral weakness:

"They may, under the totality of the circumstances, be pardoned or otherwise excused"

This admits there may be times when crossing the line is warranted, but you don't have the balls to do it yourself, or even call for doing it yourself. It lays on the phantom 'other' person to make the decision and take the consequences. All the while your hands stay lily white and pure. Feh!!!

Posted by: Smacko at December 17, 2005 09:58 PM | Permalink to this comment Permalink

Almost everyone would agree, I think, that torture is evil; I think most people would agree that war is evil as well.

The problem is, that when America is involved torture is going to be defined down to whatever it is we are currently doing. Waterboarding is torture now. When it is banned, forced sleeplessness will called torture, and when that is banned, holding terrorists incommunicado will be called torture. (Some are calling this "torture" now.) Greg didn't call the fake menstrual blood incident "torture", but others, including Andrew Sullivan, have.

We are never to going to win any hearts and minds by banning torture, no matter how extensive that ban ever becomes. No standard is too high by which to judge America. In fact, the better America is the higher the standard becomes. Have you never heard these arguments? "We criticize America for these things, and not China, because a) America is more likely to listen and b) America should be held to a higher standard." In other words, the perfect is the enemy of America.

How many hearts and minds has Israel won? Their laws against torture, and indeed the collateral killing of civilians, are much more extensive than ours and have been for years. Have moderate Muslims become more sympathetic to Israel of late?

Not everything that one could do to win a war is moral. I would be the last to say that. If you think it is wrong to "torture", however you define that, no matter what the circumstances, then say so. But don't insult our intelligence by saying we'll win hearts and minds that way. Nothing moral that America does ever counts with the rest of the world. We are only ever judged our flaws, never on our virtues.

You all KNOW this.

Posted by: Gabriel Hanna at December 17, 2005 10:06 PM | Permalink to this comment Permalink

Let me try to defend the Glenn Reynolds side of this dispute. Like Glenn, for some reason this issue just does not strike the same chord for me as it does for you and Sullivan. I do not think that makes me a bad person, I still support the McCain Amendment and hope McCain runs for President in 2008. I was ashamed for my country during the Abu Ghraib incident, and definitely believe it deserved to be covered by the media (just not for two months to the exclusion of all else.) I think the sincere opponents of this legislation fear it will have a similar impact to what the [Warren] Christopher Commission's recommendations have done to the LAPD following the Rodney King extravaganza -- today the burdens put on police officers by frivolous complaints (called "jamming them up" on the street) is making it almost impossible to keep qualified officers on the force. I can see room for much mischief by opponents of US policy with these procedures. To my mind a much better answer to this problem would be a new SecDef and eventually a new President that can communicate American values without the need for this type of legislation. A simple "golden rule" policy seems so much more sensible than all the guidelines we will be writing and revising now. No amount of rules and regulations are going to deter tendentious polemics, only a new cast of characters. Exhibit A for this pessimistic appraisal would be the BBC's recent election night coverage of Iraq, with "objective" commentary on it's importance by some fanatic from the Institute of Policy Studies in Washington.

Posted by: wks at December 17, 2005 10:06 PM | Permalink to this comment Permalink

All this talk about defining torture reminds me of the same political arguments about defining 'liberal' or 'conservative'. While it might be very interesting and important at a high level, it answers virtually nothing of use at a practical level.

For example, this two-pronged test set up by the Supreme Court described as follows:

"First, it must be determined whether the individual who has been mistreated was denied “the minimal civilized measures of life’s necessities.” This standard may change over time to reflect evolving societal standards of decency. Secondly, the offending individual must have a “sufficiently culpable state of mind,” indicating that the infliction of pain was “wanton” or, in the context of general prison conditions, reflected “deliberate indifference to inmate health or safety.”

Clear as mud.

Would this test prohibit waterboarding or not, considered by most to be one of the most questionable actions taken? I would think that it doesn't, unless you claim that the person administering the waterboarding was 'wanton' in his actions. Others would likely disagree. Or on the other end, suppose the general prison conditions were in a facility that still had asbestos on the pipes. Would that be deliberate indifference to the inmates health?

Which really just further devolves the debate into the meaning of words like 'torture' or 'wanton' and 'indifference', rather than defining exact conduct that is or is not allowed. I have no problem with the military or Congress or the President revising laws, or the field manual, or whatever other areas of authority they have, to precisely clarify acceptable and unacceptable conduct.

But the never-ending arguments over who supports torture and who doesn't, without ever defining precise conduct, is just moral preening.

Posted by: Evan at December 17, 2005 10:08 PM | Permalink to this comment Permalink

Gee Greg, there was more actual information in this one post than in all the months of Andrew’s whining missives. If he’d only defined his terms – as many people asked him to – instead of standing on platitudes, we could have all come closer to consensus much quicker.

But then again I doubt Andrew knew the background you just provided.

Once again actual information moves the discussion forward in ways that platitudes on highly-trafficked blogs cannot. I hope you won’t wait so long to lend your knowledge to the debate next time. I find these posts far more useful than those that simply quote Rummy or Henry K. with a corresponding thumbs-up or thumbs-down.

Posted by: kevin at December 17, 2005 10:10 PM | Permalink to this comment Permalink

A phrase was dropped from my next to last sentence above during posting; it should have read " No amount of rules and regulations are going to substitute for effective management or deter tendentious polemics by our adversaries, only a new cast of characters."

Posted by: wks at December 17, 2005 10:14 PM | Permalink to this comment Permalink

I should add, too, that passing this law will change nothing. No matter how much torture we ban, and how extensive it gets, we will always be accused of violating that ban, as well as having whatever coercive techniques remain defined as "torture".

We will never win hearts and minds this way. We will win hearts and minds when people realize that

a) terrorists kill anybody they want to, not just infidels
b) America kills terrorists better and faster than anyone else
c) ergo, becoming a terrorist is just delayed suicide

Posted by: Gabriel Hanna at December 17, 2005 10:15 PM | Permalink to this comment Permalink

d) supporting terrorists just gets you and your neighbors killed and doesn't hurt the infidels

Posted by: Gabriel Hanna at December 17, 2005 10:19 PM | Permalink to this comment Permalink

In all your tedious grandstanding, the key point you make about torture is this:

"We just don't do it. Ever. Why? Because it's against all the better instincts of our national character. We are a moral nation, so we don't stoop to the barbarism of our enemies."

This is the kind of reasoning that leads many to oppose the death penalty. It's the easy, I-am-holier-than-thou stance to take. But serious thinkers know that a moral stance in defense of captured terrorists (or captured criminals) that condemns innocents to death is potentially a morally inferior stance despite the fact that condemned are mere "statistical lives" without names and faces. Some liberals appreciate this, so they simply assert that torture "doesn't work." It's the perfect maneuver: it makes the anti-torture crowd good and decent and the non-anti-torture crowd despicable sadists.

You talk about the cost vs benefit ratio in terms of our "moral authority." To me, that's an almost meaningless feel-good phrase. I think of the cost/benefit ratio in terms of human lives, and I give more weight to innocent life than I give to guilty life. You need not do that, but, if not, you should climb down from that high horse you are on.

Posted by: Engram at December 17, 2005 10:27 PM | Permalink to this comment Permalink

Sorry. It's compelling but I disagree.

I used to side with the "ex post, not ex ante" view but I don't see it as workable in this political climate.

If an interrogator ever finds an "imminent threat" and decides more aggressive methods are needed to save tens of thousands of lives, then what happens if the WMD-wielding terrorists back off and slink silently into the night?

You can bet that there will be all sorts of pressure to prosecute that interrogator. The ACLU will be pressing for it just like they want the Abu Ghraib images released regardless of whether it puts our troops in jeopardy.

Posted by: ion at December 17, 2005 10:28 PM | Permalink to this comment Permalink

You had me right up until the end...I suppose the final lesson here is if a man chooses to break the law he must suffer the consequences of his actions...and in the instances Mr.Krauthammer lays out, this man must count on the "self-defense" or "justifiable homicide" argument to excuse his conduct....at that point it all becomes subjective..and if it's a president, very political. The party in power can be sure to punish the perpetrator merely for his party affiliation. Impeachment alone isn't guilt - but ask Bill Clinton who he can see about getting his reputation back...the debate is now national because the actions of a few have ripped the cover off of the field manual...if Andrew thinks President Bush, or anyone else in the administration has broken the law by explicitly endorsing "torture" don't you think the democrats would already be using this cudgel to blast Bushie, Rummy and the rest? ( BTW, I read Andrew everyday, am reasonably intelligent, and I think he's inferred the above law breaking on numerous occasions)...John McCain - remember he deposited his morality for while in the Lincon Savings Bank - has helped make it a national issue so at least we are having a debate...if we had just stuck with the field manual we wouldn't be here today.....so we have the debate about completely subjective tactics and you guys are bent out of shape that Reynolds while sitting in the stands on your side of the field is not actually playing with you....Glenn's intelligence aside, I think most of have always viewed Instapundit as a portal to other sites not as a true destination. ( I actually think he uses GlennReynolds.com for his real opinion pieces). I have a feeling he's feels about torture like most of the rest of us...torture is like jaywalking - it's against the law and most of us don't do it - except occasionally when it's really necessary. At this point passing more laws is pointless.....just start enforcing the ones we have. Last point - using the UN and/or it's policies to support an argument today is a sure way to make sure your next point won't be taken seriously..thanks for the space

Posted by: rich at December 17, 2005 10:28 PM | Permalink to this comment Permalink

I hope "torture" is defined explicitly.

Otherwise, as another commenter mentioned, the liberals and our enemies will be able to take any action, no matter how benign, and get a court case out of it. This does not presume the liberals and our enemies are acting in good faith and are outraged by something others think of as innocuous. It would be a deliberate tactic to damage the US.

As Wretchard, of Belmont Club, noted, this means there will be more torture. It is inconceivable that anything, and that means anything, done in the first moments of taking a prisoner could not be made actionable by those who seek to discredit or damage our efforts.

Nobody will want to take the risk. One may be acquitted in a court martial without retrieving one's career chances. The military also has demonstrated a practice of hosing some guy who did zilch in order, presumably, to show the hippies that they--the military--is on the right side. In Panama, the Army courtmartialed a sergeant who shot a prisoner who'd come up with a pistol. Stupid. Acquitted, career over. A battalion commander in Iraq fired his pistol in the air to get a short-fuse terrorist to talk and was retired at a reduced rank in order to avoid jail. This was standard practice in WW II among numbers of line units and nobody thought anything of it, nor do they today. So, says Wretchard, the detainees will be turned over to, probably, their countrymen who are not limited. More torture overall, less by the US.

"Degrading" is, of course, a judgment call and the judgment is that of the offended prisoner. Who is anybody else to insist the guy is lying about having been offended?

And the idea that anybody else will treat our guys they capture better or worse depending on how this goes has deliberately forgotten how our guys have been treated in the last sixty years.

What we don't have, yet, is sufficient definition.

Posted by: Richard Aubrey at December 17, 2005 10:29 PM | Permalink to this comment Permalink

It is more likely that the Fifth Amend. jurisprudence is implicated by overseas detention than the Eighth Amendment. Which means the two-prong test is misleading. The Eight Amendment restricts "cruel and unusual" punishments. The SCOTUS has explained that it does not apply outside that specific context. It particularly does not apply to pre-conviction detentions. Prior to conviction, more exacting standards apply, such as no punishements. Period. Not even light and typical punishments. Due process does not allow the punishment of those who have not been convicted.

Also, the Fifth Amendment's due process clause prohibits physical or mental coercion or anything that would jeoparize the "voluntariness" of the detainees statements. It is a non-coercion standard.

Posted by: PD Shaw at December 17, 2005 10:31 PM | Permalink to this comment Permalink

The rules should be simple. If the terrorists follow the rule of law, so should we.

If the terrorists cut peoples heads off, so should we.

If the terrorists massacre civilians in huge numbers, we should be able to do anything we want with them.

Anything at all.

If they are uncivilized and don't have rules, we should not be so stupid as to abide by rules they will never abide by.

Kill them. Torture them. Burn them alive like they did to the people on 9/11. Throw them out of towers.

Avenge the victims of 9/11.

And we should quit being such a bunch of wusses.

Posted by: Bruce at December 17, 2005 10:41 PM | Permalink to this comment Permalink

What a whiny longwinded tool you are.

If you are worried about mental torture, then spend your energy on the
US prison system, where prisoners are RAPED by other inmates, beaten
by the guards, etc etc.

Otherwise, please, shut the fuck up.

Posted by: disgusted at December 17, 2005 10:50 PM | Permalink to this comment Permalink

What absolutely insufferable, elitist nonsense. Hey, Mr. Djerejian, I used to read your blog regularly but stopped because your writing reeks of elitism. Guess I'm just one of those under educated yokels who are stupid enough to get their news from bone headed writers like Mark Levin, Roger Simon, K-Lo and Rich Lowry (funny though, between my husband and myself we have 4-count 'em four university degrees-oh, but not from Yale so obviously none of our degrees count)-oh yeah, and I listen to Rush Limbaugh every day-gasp! horror! How very pedestrian of me.

You know what, I don't give a second's care about what anybody else in the world thinks of our country. After 8 years of this nonsense under Clinton all we got were 3000 dead Americans. How did Clinton, diplomacy and all of Arafat's visits to the White House help to save those 3000 dead Americans?

You and your twisted, but oh so intellectually elitist, thinking are going to get a whole lot more of us Americans killed. And you are so totally off the mark when you talk about the way the US has to remain the shining light to the rest of the world. Huh?? I understand that to win WWII our country did what needed to be done and people like you would have been laughed out of the country. And so what? The WWII generation is rightly called the Greatest Generation anyway? If your argument holds, how could this be possible?

I want to see us conduct this war the way the Greatest Generation conducted WWII.

You disgust me.

Posted by: vadkins at December 17, 2005 10:51 PM | Permalink to this comment Permalink

So, basically, you want the interrogators to break the law to save yourself and your family. And you're telling them up front that if they do what you want them to do, they will be imprisoned for decades and financially destroyed.

The next time they pull off a Beslan, and they're executing a thousand school children one by one, remember which rough men you drove away.

Posted by: Richard R at December 17, 2005 10:53 PM | Permalink to this comment Permalink

Greg,

I'm surpised that nobody has brought up this analogy:

Homicide is bad, right? OK, but not all homicide is murder. In fact there are legal codes which describe where homicide may be permitted, e.g., self defense.

Now let's transocde your key graph:

Homicide can never be legally preordained as an acceptable tactic, even against the monsters we face. It must remain a crime to engage in it, without exceptions, and who kill must be held accountable for their actions. They may, under the totality of the circumstances, be pardoned or otherwise excused when the full facts come to light. But ex post, not ex ante.
This almost parses, but the question is this: due the existing codes around the use of lethal force (which vary, I'm not citing a particular code, merely their existence) constitue ex post or ex ante conditions?

I think a case can be made that these kinds of "rules of engagement" are indeed ex ante. To refuse to codify this is to expose the brave people who engage in coercive interrogation to a capricious and political ex ante judgement. This is cowardly.

There seems to be a real reluctance to take this issue head on. It really isn't very hard folks. We already kill people. We just need to realise that waterboarding is not deontologically elevated over homicide, and codify what is permitted accordingly.

Posted by: lewy14 at December 17, 2005 11:46 PM | Permalink to this comment Permalink

Excellent post.

Posted by: David Crisp at December 17, 2005 11:49 PM | Permalink to this comment Permalink

The responses in this thread do a great job of illustrating how crazy the people who read your blog and other "warblogs" are. I recommend you use your prodigious talents on something more serious and meaningful than the "blogosphere."

Posted by: Anonymous at December 17, 2005 11:53 PM | Permalink to this comment Permalink

Here's my compromise. All questionable practices and procedures are deemed illegal except waterboarding. They broke the Sheik in 2 and a half minutes, now that's efficiency!

I want the terrorists to be afraid of our guys/gals, not to sit smiling on the inside while the good cop/bad cop routine is played out over a couple of days. Get 'em on the board, get the dope and off to the slammer is my preferred option. Oh and yeah, fuck the Koran!

Posted by: Ed Poinsett at December 17, 2005 11:57 PM | Permalink to this comment Permalink

Greg, you must be the most pedantic writer on the planet. Can you quote someone without excerpting the entire article, and wrap up a single, and coherent, point within a single five-paragraph essay?

“But enough of these nettlesome legal details and tired old dragging out of Army Field Manual practice. All this is somewhat yawn-inducing, no?” [Strangles self with mouse cord waiting for the point]

And, Geez, sorry to inconvenience the pampered princes with ‘stars’ on their lapels or that run embassies, but the privates, corporals and sergeants actual run things. Their lives are on the line, they will be charged in accordance to the prevailing ‘interpretations’ du jour, and always, always they have to deal with your continuous BS allegations and condescending moralism.

Guess what, torture hasn’t lasted for thousands of years merely as an anarchronism. It works. Like Kierkegaard, freedom lies between possibility and necessity: the question is whether we have any freedom to chose with the stakes so high. McCain seems to elevate possibility well over necessity.

Posted by: Vercingetorix at December 18, 2005 12:17 AM | Permalink to this comment Permalink

Abu Ghraib. You mean those guards who were playing with the prisoners? Were they trying to gather intelligence or just hicks with a sick sense of humor? Weren't they all prosecuted and their officers removed?

The point is that when some soldiers go beyond the rules, it doesn't equate to a policy on the part of the Pentagon or the White House. The law is that we don't torture people. The problem is determining what that term means, and adding the word "degrading" to the definition doesn't make it any clearer.

The fact is that a lot of it depends on the situation. The prisoners abused at Abu Ghraib weren't kingpins of terrorism, to my knowledge. They were just detainees. If they had been serious high-level terrorists they wouldn't be there. The treatment they received was heinous in part because it was pointless and had no apparent connection to collecting intelligence.

I'm not defending torture, which in my mind is things like the rack, pulling out fingernails, removing other parts of the anatomy. Water boarding isn't torture if the object it to get intelligence from someone like Khalid Sheikh Mohammend. If they're doing it to somebody just because they can or because they get a kick out of watching others in distress, it is torture. Police have to use force at times, putting violent subjects in choke holds, arm locks, etc. but only when necessary to bring them under control. An officer who does it because he thinks it's fun or funny should be discharged.

What I object to about McCain's Amendment is that it will just lead to more controversy without any real substance. For example, isn't it degrading to anyone to be kept in a cell? Read Mohammed Atta's Last Will and see if you think he'd consider being interrogated by a woman was torture. Wouldn't it be "degrading" for a terrorist to gives information to our interrogators?

You can't allow the prisoner or the press to define torture, especially in such subjective terms as inhumane, cruel and degrading. Those basically boil down to "shocking the conscience" which is even more vague and unhelpful. If I were a judge, I'd throw that language out as being void for vagueness. IThey should just say we don't use torture to obtain information from prisoners and leave it at that.

We will see other incidents, but not because they are national policy. They happen whenever people are given authority and power over others. Every police department attracts bullies. Every gradeschool attracts pedophiles. They try to screen them out, but they still manage to get in at times.

These detainees aren't street bums. They don't deserve anybody's pity.



Posted by: AST at December 18, 2005 12:24 AM | Permalink to this comment Permalink

To address a few of your points: Eisenhower was, not to put too fine a point on it, lying. And we lost the war in Vietnam, so it isn't exactly the best guide for future tactics. The Phillipine insurgency of the 1890s might be a better guide, and the stories I hear suggest that it wasn't fought by Marquess of Queensbury methods. Count me unpersuaded.

Posted by: y81 at December 18, 2005 12:34 AM | Permalink to this comment Permalink

Greg -- You see seem concerned that people will blame McCain and others when the next attack comes. Not to worry, they've already pre-blamed them!

RUSH LIMBAUGH: 12/17/05: "[I]t's time to be blunt. If we are hit again, we know now who to hold responsible, folks. The senators who voted against reauthorizing the Patriot Act. The senators who voted to dumb down the definition of torture. We know who you are and you are on record, and we are going to never let anybody forget who you are."

Stab in the back! Hooray!

P.S. Reynolds is a complete hack, and deeply unserious, to boot. You give him far too much credit.

Posted by: Q at December 18, 2005 12:46 AM | Permalink to this comment Permalink

Oh, you are so right!

Wrapping prisoners in Israeli Flags, using red markers to simulate menstrual blood, etc. is completely barbaric. We should treat these prisoners with the same respect that our enemies treat our people when the capture them.

We should decapitate every prisoner at Gitmo to demonstrate our new-found sensitivity.

You don't seem to have a problem with that.

Posted by: MTK at December 18, 2005 01:13 AM | Permalink to this comment Permalink

Greg, ignore the cruelty promoted by some of these comments. America stands for something beyond prevailing over its enemies by any means necessary. It stands for liberty, morality, and the ability to wield power for the good of man. That there are basic human right that should not be infringed, no matter what the transgression.

People like you and Senator McCain truly understand what it is we fight for. What you have given here is invaluable to everything this country stands for.

Thank you.

Posted by: D Polovina at December 18, 2005 01:29 AM | Permalink to this comment Permalink

"...there are basic human right that should not be infringed, no matter what the transgression."

Okay, D. Polovina, this statement is so vague that it cannot possibly settle the argument. Every single human being on earth agrees with this statement. The question is not "do there exist rights that should never be infringed" but "what rights should never be infringed"?

So tell us exactly which human rights these are? The right not to have one's fingernails pulled out, or the right not to be interrogated by a woman, or the right not to have to touch a flag that represents Jews?

You could have answered this question subtantively, but you decided to call everyone who disagress with your unstated position as "cruel" instead. It's easier than having to state a case and defend it, after all.

Posted by: Gabriel Hanna at December 18, 2005 01:40 AM | Permalink to this comment Permalink

sullivan torture field manual mccain blah blah blah reynolds blah blah stain djejedjjjeirejiandjdj blah blah america blah blah blah torture torture torture lockbox

Posted by: TedTurner at December 18, 2005 01:40 AM | Permalink to this comment Permalink

I still don't understand why Drezner, Sullivan and now Greg worry so much about Glenn Reynolds.

Posted by: Mikec at December 18, 2005 01:44 AM | Permalink to this comment Permalink

I stopped reading when your HTML fell apart. By that point you had managed to express outrage that others weren't taking the "torture issue seriously." Seems to me that to take the issue seriously, one must direct their outrage at those who trivialize torture to advance a political agenda. A serious person would recognize that we have treated detainees from this war far more humanely than those from past conflicts (and given that nature of the enemy [et. al.], that is no small feat.) I'm more concerned about over zealous prosecution and punishment of our soldiers than the whining of charlatans, Sadamites and sodomites.

Posted by: ajf at December 18, 2005 02:01 AM | Permalink to this comment Permalink

Writers like GD and Sully don't seem to realize that the case against torture boils down to two things: It's morally wrong and it doesn't work. If they could stop at those two issues and stick to actual instances of torture I suspect we'd all be on the same page. But they make two mistakes. First, they evidently think public opinion can only "evolve" in one direction, which is nonsense. My guess is 50 years ago, most of the public would want a prisoner who raped another prisoner executed or at least left in solitary permanently - today many people regard rape as a feature of our prison system, not a bug. Which leads to their second error - they water down public resistance to the idea of torture by including in their documentation examples of behavior that most reasonable people would regard as hazing. As a result, a lot of the public says "if that's what you consider torture, then go ahead and torture". When we see headlines about "torture" at Gitmo or Abu Ghraib, people think they're talking about naked pyramids or fake menstrual blood and say "so what?" The blurring of that line actually increases the likelihood of the behavior they're trying to stop.

Posted by: J at December 18, 2005 02:19 AM | Permalink to this comment Permalink

Wow.

I haven't been reading BD for too long now, but I liked how intelligent the discussions within the comments section typically were. Sure, there were occasional nutters, but the proportion seems to have spiked on this thread.

What I can't stand is the lack of originality of these people. They sound just like the people they watch or listen to, which I wouldn't mind so much if they would actually add something. But they just parrot, and LOUDLY, so that you'll just STFU. Yeesh.

I just wanted to say, Greg, that this was a great post. (Maybe the high level of hollow criticism actually tells you that.) And I'd like to add something as well, though it's likely someone has made a point like this before.

Let's say we have the hypothetical scenario that you, a civilian, by some wild chance have captured a terrorist and you know that he has knowledge of a nuclear bomb set to go off in an hour in your city. (Yes, this is stupidly implausible, but not much more so than the typical ticking bomb situation.) Would you, knowing that you are violating the law, do whatever you could, including torture, to get the information necessary to foil the plot? If it was possible to be absolutely sure of the situation, I think most of us would. However, even if you were to succeed in saving the city, you would still probably face prosecution for doing what you did to another human being. To prevent that tragedy from happening, should we make a law that allows for citizens to do what is necessary in a situation like that?

Ok, if you don't buy that, then the scenario can be tweaked to be more emotionally immediate. Say a bunch of thugs have kidnapped your family, and they are going to torture them to death. You have managed to capture one. Do you torture him to find out where your family is? And if you did, would you expect not to be charged with a crime later? Actually, would you care? Wouldn't you be willing to sacrifice your future freedom if necessary to save your family? Or a city? Should we make laws allowing citizens to torture under such conditions?

Yes, these questions are sort of silly, but I pose them to illustrate the point that there are an infinity of "ticking bomb"-like scenarios. How do you set up laws to deal with every one of them? No matter where you draw the line, it can always be argued that you're allowing for an infinity of situations in which innocents will die because you didn't go far enough.

I wish some of these commenters would think about this for a while to see how much more complicated things get when you decide to codify laws allowing the use of torture. Or at the very least, perhaps they can see that people like you and Andrew are not simply engaging in moralist preening at the expense of innocent lives.

After all, if the metric is solely the saving of innocent lives, then this free and open society thing we have here is irresponsibly decadent.

Posted by: Jason at December 18, 2005 02:21 AM | Permalink to this comment Permalink

Greg, how is it that in all that voluminous posting, you never actually answered any arguments? For example, here are three:

(1) You never addressed the issue that your and McCain's solution to the ticking bomb scenario is to ruin the career of any junior officer who finds himself in that situation, does the heroic thing, and saves lives. And any junior officer who thinks he finds himself in that position and turns out to be wrong, well, he gets to go to prison just so that we can protect the pristine reputation of the United States of Angels. What sort of justice is it that puts all the reponsibilty and consequences on young junior leaders, often with families to support and gives them no official guidelines to follow other than, "if the press doesn't agree with what you did, then off to the brig with you."

(2) Given that we follow yours and McCain's rules, what motivation can we possibly give any terrorist to give us information that will save lives? If they don't give us information, that means that people will die. And how is that not the fault the people like you and McCain who wouldn't let us do what is necessary to get the information? It's not always a ticking bomb, you know. Sometimes it's the location of a munitions stash or the name of an informant. Very often you don't know what information they have, all you know is that they were involved in a conspiracy to kill a bunch of school children.

(3) What sort of moral equation is it that puts the mental and physical comfort of terrorists over the lives of innocent children? In what other situation would you make this kind of choice?

Posted by: Doc Rampage at December 18, 2005 02:21 AM | Permalink to this comment Permalink

I just don't understand most of the above points.

First, the idea that people will not respect US anti-torture policy is just plain wrong. Sure, some will try to still attack us, but most people would understand. The US has been respected for so long because there is a rule of law. Many people do feel the US offers a higher moral ground. I don't know how many people in the Middle East you all know, but I can tell you that there is a real respect for US ideals. Those ideals have been hurt by this whole torture debacle. Don't equate terrorists who will always hate us, with the average Middle Easterner. They aren't the same, and you show your ignorance when you pretent the two are the same.

Second, the concept that they are bad, so we can be bad is stupid. One should be judged against the best not the worst. I don't care what terrorists do, I'm not going to try to emulate them or sink to their level. Should we attack innocents in a random ME country, because they did that to us (I'm sure some here don't care, which speaks volumes about your humanity)? And what if someone is innocent, does that matter? If it happens in US courts, it could happen overseas, where the fog of war makes everything more difficult. Or do you only torture those that are 'definitely' terrorists? Or insurgents? Or those that burn US flags?

It is insane that arguing against torture is being considered anti-american or against national security (or even against conservativism or the Republican party, for that matter). It is truet that if we don't torture, there is the chance that we will put ourselves in a position to be hit again. Of course, the same could be said about not nuking the ME, North Africa and Southeast Asia. Does that mean we should do so? No, or course not.

I'm dumbfounded by most of the comments on this page.

Posted by: Greg at December 18, 2005 02:38 AM | Permalink to this comment Permalink

I'm sorry, Greg, but saying that you are "dumbfounded" is not a substitute for substantive debate.

As for my own point, have a look at what Amnesty International calls "violations of human rights" in the United States:

http://web.amnesty.org/report2005/usa-summary-eng

You will find here: the death penalty, punishing soldiers for desertion, being tried by a military commission, not signing with the International Criminal Court.

Human Rights Watch wants to call your attention to these "violations of human rights" in America:

http://www.hrw.org/doc/?t=usa

The United States, of course, gets a section all to itself, a distinction granted to no other country. Besides the death penalty, and the fact that some people don't like gays and lesbians, we have the working conditions of illegal immigrants in the poultry industry to feel guilty about.

Our reward for meeting a high standard is to get criticized for failing to live up to an even higher one. I don't understand how you can seriously say that it will not be the same with torture. They already say our PRISONS for GUILTY people who had TRIALS are serious human rights violations.

Posted by: Gabriel Hanna at December 18, 2005 03:03 AM | Permalink to this comment Permalink

Greg,

You (almost) always bring up good points, even if I disagree with you, but here's why I haven't been coming to this stie as much recently.

"And it is also true that the Senate, in adoping the Convention, sought to better clarify what was meant by mental torture (it was basically undefined in the CAT). Thus the Senate clarified per the below:"

I couldn't read past that point. "Per the below?" Give us a break. You don't have to try to convince us you're smart, we can all see the schools you went to in your about me section. You're not writing a legal text. "...clarified with the following" would have sufficed, and sounded a lot less pompous (which I'm sure you didn't intend, but that's how it comes across).

Posted by: DT at December 18, 2005 03:20 AM | Permalink to this comment Permalink

"America stands for something beyond prevailing over its enemies by any means necessary. It stands for liberty, morality, and the ability to wield power for the good of man. That there are basic human right that should not be infringed, no matter what the transgression."

By the logic of this comment from a reader, British and American airmen should be tried for firebombing Dresden, Frankfurt and other German cities (and for being UnAmerican by not sparing the lives of citizens in those cities even if it meant losing the war!) You people are ridiculous. War is dirty, and it always has beenTrying to pretend now that it is a civil affair, and always has been or that Americans have never done bad things to a few to save many is beyond dishonest. I will defend each and every one of those action taken to save lives, and I will argue that the ones that do the dirty work are the ones that allow America to continue to stand for something.

That doesn't mean I support nail pulling or putting someone on the rack, but Greg's false outrage that anyone should suggest that we need to define what is and isn't torture is ridiculous. Especially when we have stories like these:

http://www.cnn.com/2005/US/06/13/gitmo.time/index.html

"Afterward, interrogators began their sessions with al-Qahtani at midnight and awakened him with dripping water or Christina Aguilera music if he dozed off, the magazine article reported."

Posted by: Anonymous at December 18, 2005 03:48 AM | Permalink to this comment Permalink

There are two things leading some people astray in this discussion.

The first applies to just about everyone who writes for National Review, several radio talk show hosts, and a few Congressmen. This is the imperative to defend anything associated with the Bush administration, under any conditions and regardless of developments in the real world. If official Bush administration policy were to force nothing more severe than push-ups on detainees, Rich Lowry and Mark Levin would be writing "analyses" that found this to be the best way to protect Americans, and would attack advocates of harsher tactics with some of the very arguments Greg makes. If the President, the Vice President and the Secretary of Defense were to appear before Congress dressed in kimonos and singing "Three Little Maids From School," National Review would be running cover stories about how Gilbert and Sullivan keeps America strong.

The second applies not only to critics of McCain like Charles Krauthammer, but to some extent to supporters as well. This is the temptation to discuss torture in the abstract. In an academic setting this is fine; as part of the process of making law it is misleading. The real world is what counts, and in the real world America's position on detainee treatment was badly compromised by Abu Ghraib. Our military can run through "lessons learned" and resolve not to repeat the mistakes made there; the public can absorb the embarrassment of the scandal and, as the saying goes, move on. The worldwide audience we are trying to influence, though, not only has not moved on but has, not unnaturally, been skeptical that what happened at Abu Ghraib represented an aberration in American policy. Every detainee held in error, every report of abuse whether well-founded or not is to foreign audiences another data point in a pattern of American disregard for anyone who gets caught up in the war on terror.

This is unhelpful not only to our efforts to discourage terrorism and pursue American interests in the Muslim countries, but to our relations elsewhere in the world. Looking at the McCain amendment in the abstract, I'd be disposed to oppose it. Congress certainly does have the authority to legislate interrogation or other procedures for the military and intelligence communities; as a general rule it normally defers to the judgment of the relevant services and agencies, and wisely so. But in the real world the military, and to some extent the intelligence services, have been responsible for abuses that have done substantial damage to America's image in general, and may well have served as an inducement to prospective terrorists in particular. This needs to be walked back somehow; I would have preferred it be done by having the President insist on high-level resignations in the Defense Department immediately after the Abu Ghraib story broke, but he didn't. McCain's amendment is the best option available now.

How much damage is McCain's amendment likely to do to our ability to prevent future terrorist attacks? I am open, just barely, to persuasion on this point, but what I've read to date leads me to believe the likely damage will be minimal if there is any at all. Most interrogations we are doing now would not run afoul of McCain's terms; genuine "ticking time bomb" situations would be dealt with on an ad hoc basis no matter what the formal rules were. McCain's amendment is a blow to the administration, in the sense that it imposes some restrictions on what it can potentially do. For an administration that maintains it should potentially be able to do anything at all, this is a serious matter. What it isn't, or shouldn't be, is a significant setback to our intelligence-gathering operations.

Posted by: JEB at December 18, 2005 03:48 AM | Permalink to this comment Permalink

Wow, Greg, breathtakingly obtuse, per usual. First off, critics of the US policies are NOT the average Middle Easterner. Typically, they aren’t any type of Middle Easterner at all. So why appease any standard other than necessity? The critics don’t count, especially the elitist European/Europhile sect.

Second, all of those conventions, laws, sacred rites, sacraments, and whatnot you cite above severely circumscribe interrogations. You’re not on the side of the guys on the firing line or the guys in the interrogation rooms, you’re on the sidelines, hopping mad someone is making you look bad at dinner parties. Instead of trying to get the most effective way to preserve life and limb, you want to limit the ROE and then sanction our troops to please the European ‘human rights’ crowd.

On the second point, you are for discipline of our troops over specious, and unproven, I might add, allegations that have PR ripples. Again, if we can't interrogate these murderers, the only logical thing to do is just kill them where we find them.

Posted by: Vercingetorix at December 18, 2005 03:50 AM | Permalink to this comment Permalink

Greg, great post. Disturbing commentators. I guess they oozed over from Reynolds place.

I really don't know why you apparently have so much respect for Reynolds. He has come out and said point blank that he will not cover negative news on Iraq and he censors his own linking appropriatly. The whole 'not covering torture' thing is just part of that. Reynolds is just a hack who has decided that nearly anything is worth it as long as his objective(liberating iraq) is accomplished.

The commentators on this thread do a good job of showing just how little attention they have been paying to the Torture issue. If they hadn't been spending the last 18 months with their heads in the sand they would be able to put together a coherent argument. The fact that we tortured a 18 year old cab driver to death accidently, and a lot of the false WMD information we got pre-war was a result of torture fails to have any effect on their opinions.

Posted by: Chris P at December 18, 2005 04:15 AM | Permalink to this comment Permalink

hehe..So Torture is NOT ok when it is some nameless soldier dying in Iraq because of a lack of information regarding IED's. But we will avert our eyes if it is OUR asses about to get blown up in some major city. Gee that doesn't seem very nice. I am betting that the parents of that young soldier you, Andrew, Glenn, Ramesh and others are so anxious to sacrifice so you can look yourselves in the mirror, loves him. But since y'all don't know him well then, fuck him.

You probably won't understand the problems with that sort of behavior because the air up in those ivory towers has starved all of you of common sense. But I suggest that if we end up adopting Senator Grandstands phoney baloney rules and regulations regarding torture that the pain be felt directly by those who advocated such absurd behavior. Its impossible probably to institute but perhaps some sort of retractive arrangement could be considered. Every time an unknown soldier dies because we were unable to gain the intelligence needed to save him, someone close to those who advocated such nonsense will die. Put YOUR loved ones up to suffer from your highminded idealistic nonsense.

How to feel about torture

Posted by: Pierre at December 18, 2005 04:46 AM | Permalink to this comment Permalink

Gabriel,
I have little respect for Amnesty International, which no doubt enjoys attacking the US any chance it gets. But that is not the same as what the average person believes. Would you say that the world community should judge all Americans based upon the New York Times op-ed page? No, I'm guessing you would not.

But I guess you're right, the fact that our morals aren't appreciated does mean that we should just abandom them. I mean, if Human Rights Watch praised us, then obviously we would need to continue the effort. Since they don't, we should do anything to anyone since it won't impress them.
No, there may be some understandable arguments for torture, but the fact that we will be criticized by some organizations even if we don't torture, does not really sway me.

(By the way, this isn't Greg Djerejian. A different Greg)

Posted by: Greg at December 18, 2005 04:46 AM | Permalink to this comment Permalink

Gabriel,
I have little respect for much of Amnesty International, which no doubt enjoys attacking the US any chance it gets. But that is not the same as what the average person believes. Would you say that the world community should judge all Americans based upon the New York Times op-ed page? No, I'm guessing you would not.

But I guess you're right, the fact that our morals aren't appreciated does mean that we should just abandom them. I mean, if Human Rights Watch praised us, then obviously we would need to continue the effort. Since they don't, we should do anything to anyone since their opinion will be the same regardless.
No, there may be some understandable arguments for torture, but the fact that we will be criticized by some organizations even if we don't torture, does not really sway me.

(By the way, this isn't Greg Djerejian. A different Greg)

Posted by: Greg at December 18, 2005 04:57 AM | Permalink to this comment Permalink

Whoah, Chris, buddy. Our WMD pre-war intel came from torture? But I thought it all came from that evil criminal Chalabi? Oh wait, maybe we tortured Chalabi?!

As for JEB's comments.

1. NR, Lowry, Levin et. al are hardly in lockstep with the Bush administration or the Republican Partyon everything - just most stuff related to the war. Take a look at the split over immigration or the deficit (ie the people siding with Tom Coburn over the administration and most of the rest of the Republican Congress).

As for torture in the abstract vs. in the real world, take a look at the protestations of Amnesty, HRW, Europe, etc. before and after Abu Ghraib. It didn't change much, AG just provided what they saw as evidence of how they were right. Without that "evidence," only a fool could believe they would have actually supported the war on terror. This "hearts and minds" nonsense is ridiculous. If people make up their mind to believe that the US is the root of all evil in the world (which has been the case for decades let alone the last few years), then they will believe that regardless of your attempts to make them think otherwise, and they will always find the "proof" that vinciates their claims.

Just as a side not, this idea of American exceptionalism, that our values prevent us from ever doing anything nasty that is required in war, is antithetical to this concept of winning hearts and minds. If you do something just to get someone else to like you, you have no regard for the moral nature of the act with regards to American values. You're just doing it b/c you think you'll make a friend out of it. How many true friends did you ever make in grade school using that approach?

Posted by: Anonymous at December 18, 2005 05:02 AM | Permalink to this comment Permalink

Greg (from a few posts up, not Djerejian),

The sad part is exactly how many people take the NYT op-ed page and run with it. And these are well educated, "moderate" people. I'm in an IR graduate program now full of mostly liberals. You'd be surprised how readily the Amnesty/HRW/MSM line is swallowed by people who should know to at least do a little research themselves.

Posted by: Anonymous at December 18, 2005 05:06 AM | Permalink to this comment Permalink

Anonymous,
I completely agree with you. It is amazing at times. I still don't think that Gabriel's line of reasoning makes any sense, especially for those that think Amnesty and the like are out of line. It seems similar to the arguement about using torture because terrorists do bad things too. I don't understand why people use the standards of those they have zero respect for. I would like the US to set standards, not react to groups like Human Rights Watch or Al Qaeda (and no, I'm not equating the two)

Posted by: Greg at December 18, 2005 05:12 AM | Permalink to this comment Permalink

1) Does torture work? Come up with documentation that proves that torture provides accurate information. Wouldn't you agree to sign any confession just to make the pain stop? Would you agree to confess to a lie if someone threatened to kill your child? Torture by proxy? Your life for his? Please also note that threatening harm to a child has been used in Iraq as a tactic to gather information.

2) Have you looked at the documentation in finding out what percentage of detainees were innocent? Or is because you're so detached from the realities of the situation that you don't realize how much pain has been caused to innocent detainees. At least one man is still stuck in Gitmo after being cleared of crimes by military tribunal. How come you're not more concerned the rights of a man who exists? Do you think that every Arab in a prison in Iraq is a "terrorist?" You might say no, but some of the rhetoric in the comments here implies otherwise.

3) "Eye for an eye" sounds awfully like we're becoming the barbarians. I thought many of you believed in Christianity. I must've forgotten where I put my list of caveats. Sorry.

Heh.

4) Funny that some people now think that having college degrees supposedly means that you're intelligent now. Some of the dumbest people I met during college have a degree, and some of the wisest and experienced don't. Please don't point to your degree if you're supposed to making an argument. It just makes you look like idiotic especially since that entire post was an appeal to emotion and not reason. Accusing Greg of "elitism" doesn't somehow make you right. Watching/listening only to news and commentary that pleases you and that does not challenge you intellectually does not make you informed.
(elitism) Please, try holding two opposing thoughts in your head. It's not very hard, and you might learn something. (/elitism)

5) The ticking time bomb situation. Poor decisions lead to consequences. You take responsibility for your actions. Rule of law. Order before chaos. Codifying an exception to torture makes it more likely that people will torture without just cause or reason. Being afraid of the consequences is a good way of preventing torture except in the most extreme cases. You still get a trial if you've made a mistake.
In a real ticking time bomb situation, what conceivable law is going to cover every situation? It's just unnecessary legislation that becomes meaningless and weakens the moral grounding against torture.
What will protect someone who has committed torture? It's already been suggested that you can be pardoned if you had just cause to commit torture.
Moreover, there's no guarantee that torture in a ticking time bomb case will give you the answers you want, particularly if you're up against people who are willing to commit suicide for their beliefs. A smart enemy will just send you on a wild goose chase, or into a trap. Even the Soviets learned that torture doesn't give you facts that you want. Ask yourself, how was the faulty information obtained that led us to war in Iraq. Was it by torture? Perhaps you should look up the answers to this last question.

6) There are tried and true methods of obtaining accurate information from a prisoner without resorting to torture defined according to the Army Handbook. The military knows this already. The CIA has different rules.
In any system of law, a case of injustice is the exception, not the rule. The point of banning torture is to make torture the exception, not the rule. No system is inherently infallible. The media just highlights the controversial and ignores the mundane. Ask any lawyer/judge you know how many cases are judged fairly against the number of oddball exceptions.

8) Torture can create terrorists if you torture innocents in Iraq. The last thing we need is them to think that we're not better than Saddam.

There plenty more to say that's been said elsewhere, but this is getting too long, and I realize some of the stuff above I've written is overly snarky or repetitious at this point. I'll write up everything I have and post it up elsewhere.

Posted by: Steve at December 18, 2005 05:14 AM | Permalink to this comment Permalink
"The first applies to just about everyone who writes for National Review, several radio talk show hosts, and a few Congressmen. This is the imperative to defend anything associated with the Bush administration,

Wrong. Reading National Review one will find a number of areas where the writers disagree with the Bush Administration. Start with immigration, domestic spending and let us not forget the howling over Harriet Myers. Try again.

Posted by: Brian at December 18, 2005 05:31 AM | Permalink to this comment Permalink

Boy, Gregory, your cut and paste job is impressive, your thought process and analysis are, well, stupid (since you've gotten personal, what the hell). You criticize my research, yet the only document you reference in response to me is a document I linked to in one of my posts at NRO. But this issue appears too complicated for some, including you, Sullivan and John McCain. So, you flail and accuse and type-away hoping we'll be impressed with your brilliance. Quite the contrary.

You see, Greg, there was a time when apologists like you pointed to the Geneva Conventions are protecting unlawful enemy combatants (aka al-Qaeda terrorists). But those of us who do research these things found that, obviously, they don't. In fact, as James Schlesinger has pointed out (over at NRO to Rich Lowry) the entire purpose of the Geneva Conventions is to protect citizens. Since terrorists target citizens, conferring new rights on them defeats the purpose of the conventions. Now, this must really upset apologists like you, since so many in your corner sited to Schlesinger's Committee in support of your sloppy arguments -- including pathetic attempts to compare Abu Ghraib to Guantanamo Bay, and perverse illegal treatment of prisoners with the interrogation of al-Qaeda terrorists. And, of course, without McCain's Amendment, but under existing law and military rules, the perpetrators at Abu Ghraib were punished. You may have missed that.

Now, moving on to your next exposition of ignorance, you would have us believe that Reagan viewed unlawful enemy combatants as POWs. Yet, you provide no evidence to support this. You just want us to infer this based on your extensive cut and paste job. You would have us believe that Reagan would have extended our bill of rights to terrorist detainees, as McCain does, by citing to Art 16, which, by itself, does no such thing. As a matter of simple logic, the McCain Amendment would be unnecessary if it did nothing more than underscore Reagan's position. All the lobbying by the Bush administration to exempt CIA interrogators from the McCain language would seem to be unnecessary as well if, in fact, your view had any merit. But, of course, is does not.

Throughout this debate, I've attempted to remain civil, but you and Sullivan have this nasty habit of trying to degrade those with whom you disagree. The reason is simple: you don't understand the law, the history of this subject, or even its consequences. In other words, and in keeping with your method of argument, you're a moron.

Let me add another point, in hopes your head doesn't explode. Not until the Supreme Court's 2004 decision in Rasul were unlawful enemy combatants detained overseas afforded the ability to seek redress in U.S. civilian courts. Now they are, Lindsey Graham's lame attempt to the contrary. So, now that the 5th, 8th and 14th amendments are to apply to terrorists held overseas, thanks to the McCain Amendment, then they due process and other rights that flow from those amendments will be litigated right here, in U.S. civilian courts. And among those rights will include Miranda, as Andy McCarthy has explained over at NRO (you might have conveniently missed that). Stupid decisions have consequences. So does stupid blogging ... moron.

P.S. - I must confess I never heard of you before. I never knew of your website before. I'm sure I'm not alone. I won't be back.

Posted by: Mark Levin at December 18, 2005 05:36 AM | Permalink to this comment Permalink

I do not condone acts like pulling nails or teeth, breaking legs, putting people on the rack, etc. Where actions on this level have occurred, the Pentagon had been investigated before the media even broke the story. But here's where the "anti-torture" crowd shoots themselves in the foot. People like Andrew Sullivan prattle on about wrapping people in the Israeli flag. Greg is similarly outraged that we put magic marker on detainee's faces. Take the CNN article I quoted before on Time's story from this summer.

The magazine said the techniques approved by Rumsfeld included "standing for prolonged periods, isolation for as long as 30 days, removal of clothing, forced shaving of facial hair" and hanging "pictures of scantily clad women around his neck."

Hagel said such treatment should offend the sensibilities of "any straight-thinking American, any straight-thinking citizen of the world."

I don't consider ANY of that to be torture. At all. I've had jobs where I didn't get to sit once for 8-9 hours a day. Is that torture? Isolation? Are we commiting torture every day by putting prisoners in solitary? Honestly, do you realize how ridiculous this sounds? How ridiculous people like Hagel and groups like Amnesty and HRW sound. Greg, do you really wonder why you're having a tough time pushing your anti-torture stance? Let me help you out. It's because you're using cases like this. Bring out the real cases where torture occurred, where people came out with broken bones, or even dead. Then show that there was a policy coming from this administration approving such actions. But you can't. The best you can come up with are these mickey mouse instances where we inconvenienced a detainee by not providing him with a chair or played bad music loudly, because those are the only instances where you can prove an official policy.

The word "torture" has been bandied about so freely by yourself, Sullivan and others that its lost all meaning. What Rusmfeld has approved is not torture, yet yourself, Sullivan, Amnesty, HRW, the media and others have redefined it as such. As Glenn has said time and again, his hesitation to jump in the crowd with you and Sullivan is precisely a result of this indiscriminate definition of every "mean" act as torture and your (collective) failure to distinguish what is torture from what isn't, and to fight against the former.

Posted by: Anon at December 18, 2005 05:42 AM | Permalink to this comment Permalink

Excellent post. Like you, I have to say I'm dumbfounded by many of the comments on this page. You've set the issue out brilliantly, and, in the process, seem to have patched up a serious spat between two of the most brilliant minds in the blogosphere. Bravo!

Posted by: Dan Larsen at December 18, 2005 05:43 AM | Permalink to this comment Permalink

Just to clarify, the first paragraph of my previous post was not meant to imply that specific instances occurred where teeth and nails were pulled, etc. I didnt connect those two sentences well. The second sentence was meant to say that those who actually did commit acts that could reasonably be defined as torture were removed from duty and/or put on trial.

Posted by: Anon at December 18, 2005 05:49 AM | Permalink to this comment Permalink

I never said I supported using torture, nor that torture is okay because Amnesty International thinks we are evil anyway. I do not believe we should torture people.

What I said was, "hearts and minds" are never going to be won by any sort of American concession. They will only demand more. Nothing we do is ever good enough.

What I am mad about is that things that are NOT torture are NOW being called torture, and giving in to that now is just going to get more things called torture later that aren't, until there will be no coercive measures whatever left. And even then we won't win any hearts and minds. Because our adherence to a higher standard will be rewarded by criticism from the standpoint of an even higher one.

If we are arguing about what most Americans think though, as opposed to "the international community" that awards peace prizes to terrorists and castigates Israel for existing, apparently the last poll showed that most of us are in favor of torture at least in extraordinary circumstances.

Posted by: Gabriel Hanna at December 18, 2005 05:58 AM | Permalink to this comment Permalink

Gabriel,
So I'm unclear exactly what your point is. You don't agree with torture, but we shouldn't outlaw anything because whatever we do outlaw will not be enough for the international community and it will just turn non-torture techniques into 'torture'?
I don't ask to be flip or disrespectful. I really am having trouble following. If we aren't worried about what 'the international community' says, then why does it matter if they change our definition to try and screw us?
And I still think 'hearts and minds' goes well beyond Amnesty International, and it is important.

Posted by: Greg at December 18, 2005 06:13 AM | Permalink to this comment Permalink

1) Abu Ghraib was already illegal and already being prosecuted long before the pictures came out, much less the McCain bill being proposed. If Abu Ghraib is the problem, the laws and rules we already have are enough. Abu Ghraib is accordingly entirely irrelevant to any discussion of the McCain bill, execpt as a defense of the status quo on the grounds that we already adequately punish torture. The only reason a pro-McCain voice would bring it up is either because they do not posess enough perspective to judge this issue sensibly, or are making an emotional smokescreen as cover for another agenda. In either case, it is a reason to be deeply suspicious of any moral claims made by the person who brings it up as a pro-McCain argument.

2) The Israeli flag draping is so obviously not torture that anyone who mentiones it in that context anything other than dismissively either has no perspective on the question of torture or holds a deep, irrational prejudice against Israel. In either case, it is a reason to be deeply suspicious of any moral claims made by the person who mentions it non-dismissively in the context of torture.

It isn't to say you're not right on the McCain bill, Mr. Djerejian. It's to say that somebody else will have to do the arguing, because you (like Mr. Sullivan) have thrown away your moral credibility on the issue. You complain that Mr. Reynolds has been insufficiently serious about torture; but you have been insufficiently thoughtful enough to be taken seriously.

Posted by: Anonymous One at December 18, 2005 06:18 AM | Permalink to this comment Permalink

When somebody quotes Eisenhower's remarks about the lawful treatment of prisoners in WWII, in an effort to paint the current treatment of prisoner's as being unusually cruel, or outside the norm for the American military, it is a clear signal that the writer is either being dishonest, or is extraordinarily ignorant for a supposedly educated person. Say, which is more cruel; being used for target practice on a South Pacific island, or being subjected to extreme air conditioning in Cuba? Or even beaten in Abu Ghraib?

You are perfectly entitled to your position on this issue. I have large areas of agreement with it. You are not entitiled, however, to misrepresent the past. Stop lying, or stop being ignorant, whichever applies.

Posted by: Will Allen at December 18, 2005 07:54 AM | Permalink to this comment Permalink

Seldom have I been so little persuaded by so many (mostly) thoughtful words.

Krauthammer has it exactly right.

Posted by: Matt at December 18, 2005 08:37 AM | Permalink to this comment Permalink

Greg,

I think that your proposal to have torture justified post-facto not ex-ante will have the unfortunate effect of discouraging people from acting in situations where we might want them to engage in torture. Can you tell me what president, faced with the threat of impeachment and prison time would ever authorize torture, even if it meant that it would prevent the nuking of say, New York City. After all, if he doesn't torture, he always has a good cover, McCain's law. Look, I am really horrified by some of the things that happened in Abu Ghraib and even Gitmo. But I don't think that just some generic moral indignation about how America is becoming like its enemies will cut it.

As for Mark Levin, well, maybe if you got out of the echochamber of PowerLine and Little Green Footballs, you would have heard of this website. It's always one of the best foreign policy commentary on the web. I did respect you at one point, but I guess my initial impression of you as a major-league a**hole back from the Clinton impeachment era were correct. Oh, and if we're talking about causing terrorism, look in the mirror. If you and your buddies at the Scaife Foundation didn't do everything in your power to weaken Clinton politically, he maybe would have been able to deal with the terrorism issues properly rather than try to deal with charges that black hellicopters ordered by the Tyson family were smuggling cocaine into Little Rock Airport.

Posted by: Yevgeny Vilensky at December 18, 2005 09:24 AM | Permalink to this comment Permalink

Wow, Greg, looks like you really struck a nerve among the pro-torture crowd with this post. What's even more disturbing than reading their efforts to defend the indefensible is how deeply and emotionally attached they seem to have become to this issue. "It's really important that we be able to beat 18-year-old Afghan cabbies to death by mistake! If we don't, the terrorists will have won! (and I know plenty about torture, because I have a bunch of college degrees!)".

Posted by: Taras Bulba at December 18, 2005 12:41 PM | Permalink to this comment Permalink

What a depressing string of comments.

To the ticking timb bomb crowd, let me address a single question: do you support the torture of domestic suspects thought to know the location of a ticking time bomb? After all, those kids fingerpainting at the day care center in the Murrah building in Oklahoma City are just as dead as anyone in the WTC.

To the our-enemy-sets-the-standard crowd, another question: should we have gassed the Japanese-Americans we interned in WWII?

Mr. D, we have another step or two to go to get back our moral standing. We need to get out of the secret prison business, and out of the endless-detention-without-trial- or-prospect-of-release business.

Posted by: CharleyCarp at December 18, 2005 02:10 PM | Permalink to this comment Permalink

and the send people to Egypt to be tortured business.

Am I the only one who thinks they're just going to write a memo arguing that waterboarding does not shock the conscience if it's done against mass murderers to prevent terrorist attacks? Yeah, it's absurd, but so are a lot of memos they've written. You don't need to worry about making arguments that'd be laughed out of court if you write laws that make sure you don't get taken to court.

Posted by: Katherine at December 18, 2005 02:39 PM | Permalink to this comment Permalink

Whatever you think of his perspective on this issue, Mark Levin is a good writer and a pretty sharp guy -- I'm sorry we missed an exchange between GD and ML on the merits rather than pissy irrelevant snarls. Since we won't have it, let me ask a few further questions:

1) Please address Levin's fear; Do you think the Church Commission on the CIA helped or hurt the US in the long run? It seems to me a lot of folks at the WTC got to die with their rights on, as the ACLU would have it, thanks to those "reforms."

2) Condi Rice this week felt compelled to criticise our EU "allies" for their lack of cooperation in prosecuting Saddam Hussian. Do you see no merit whatsoever to the argument that making a fetish out of not getting your hands dirty can be (almost) as repulsive as swinging the pendulum in the other direction?

3) Did you ever see the great film "The Untouchables" with Kevin Cosner and Sean Connery? I think they addressed some of these moral dilemmas in a way very similar to the way Glenn Reynolds, et al, have been. I do not support torture, in the main I agree with the conclusions of this post, but I do not think those that disagree with our sometimes crabbed and legalistic definitions are necessarily yaboos that should be cast out of polite company.

Posted by: wks at December 18, 2005 02:52 PM | Permalink to this comment Permalink

Katherine and CharleyCarp so its NOT ok to subject a prisoner to waterboarding and mind games where he believes he may be shocked if it is merely to save a few lives of soldiers? But it IS ok to use those techniques if we are trying to save NYC?

Another words if its your ass or more personally your children's asses that are gonna be blown to bits then use torture by using Senator Grandstands backdoor provisions.

We know torture works from Senator Grandstands mouth from his quality time in the Hanoi Hilton, he also admits that it works by having that backdoor in his phoney baloney law which allows for "torture" should NYC be threatened.

But if it is some poor unknown soldier off in Iraq sacrificing his ass to your absurd idiotic high minded ideals, that you are not willing to sacrifice YOUR children to, then its all good. And you all have the audacity to believe that there can be no discussion and that even wrapping a person in the Fucking Israelis flag is torture...what a hilarious bunch of crap.

I don't make rules that I wouldn't be willing to sacrifice my own children to uphold. Freedom of Speech and such are rules to die for, not defining torture down to such a degree that some Catholic Classrooms are not under threat of the Geneva Conventions.

Posted by: Pierre Legrand at December 18, 2005 03:00 PM | Permalink to this comment Permalink

Pierre, you didn't answer my question: is it OK to torture someone to save people who live in NYC, but not OK to torture someone else to save people in Oklahoma City? Are people who live in Oklahoma less worthy?

I've never said or implied that there is, or should be, some difference in the law that would allow torture to save a person in NYC but not an American soldier in Iraq. You may have me confused with someone else. Ditto the Israeli flag -- not torture but humiliation. And undoubtedly very poor humiliation at that: Care to point out what valuable intelligence information was gained with the Israeli flag gambit? Or is this just a waste of time, where some civilian contractor gets his jollies, while the many people in the ME who think we're acting as a Cat's Paw for Israel get to draw inferences.

Where do we go to recover our reputation from this kind of thing? Do you think anyone on earth really cares that our enemies are worse?

Posted by: CharleyCarp at December 18, 2005 04:07 PM | Permalink to this comment Permalink

The link didn't work. By "this" above, I meant the NYT story today about the Indonesian/Pakistani guy at Guantanamo:

http://www.nytimes.com/2005/12/18/international/asia/18indo.html?adxnnl=1&adxnnlx=1134921221-ePvacYVnMlf5iOey/serTg

Posted by: CharleyCarp at December 18, 2005 04:09 PM | Permalink to this comment Permalink

Charley, this may come as news to you, but a good many Japanese prisoners in the Pacific Theater in WWII were summarily executed. If you would like to learn what the Pacific Theater was really like, as opposed to the white-washed nonsense which attempts to sanitize the profanity which is war, and WWII in particular, you might read Paul Fussell's (who himself was a veteran of the European theater, and reported on the prisoner abuse which was not uncommon there) interviews with Marines who fought the Japanese. Then you could also read "War Without Mercy: Race and Power in the Pacific War" by John W. Dower, which also details the unbelievable cruelty directed at the captured by all parties of the Pacific War (although the Japanese were certainly worse) , and how that unbelievable cruelty was in part a deliberate outgrowth of the propaganda campaign that all parties to the conflict engaged in.

Again, if you wish to denounce all torture or humiliation of the captured in war, make your case. However, please refrain from being disingenuous or ignorant about what has occurred in previous conflicts.

Posted by: Will Allen at December 18, 2005 05:01 PM | Permalink to this comment Permalink

The big problem is that none of you, except Sullivan, has admitted the truth. Except as a method of intimidation, torture is nowhere near as effective as the legal, permissible methods mentioned in the FM 34-52.

Not ONE, including Sullivan, has talked to professional Armed Forces trained interrogators who've been working in the field for a number of years, and have direct battlefield experince. You cite letters, which is good, but how many of you have sought out professional interrogators, military or police, and talked to them?

What's so dificult about that idea?

Posted by: Josh Jasper at December 18, 2005 05:10 PM | Permalink to this comment Permalink

Well, Josh, with all of your vaunted experience, please enlighten the unwashed as to the greater efficacy of the FM 34-52. Somehow, of course, there has to be a standard for comparison, i.e. you have to be a party to torture to see, empirically, that it is less effective than another method. That's the first spanner in the works.

If torture was less efficient than the FM 34-52, there would be no point for the debate. Yet it takes about the ten seconds to realize that you CAN coerce someone against their will and that such coercion requires stress and pain. Without either, there is no coercion, no interrogation. Greg et. al. wishes to have a coercion-free world, especially ex post, sorry for the guys that don't make that cut, btw.

Torture IS more effective than softer methods and the stakes can be so high that torture would be a limited price to pay for the consequences (ticking nuke, for instance). The question, where do we draw the lines. I say give the troops a benefit of the doubt, Greg says burn the troops if they make him look bad.

Decide the morality of those positions on your own.

Posted by: Vercingetorix at December 18, 2005 05:29 PM | Permalink to this comment Permalink

The entire idea that we are engaged in winning hearts and minds is absurd to the nth degree. We destroy the enemy first then we win the hearts and minds by being gracious in victory. That is the formula that worked in Europe and Japan. We didn't attempt to be nice while we were fighting, we simply crushed them. The loved us afterwards for a time because of the respect we earned on the battlefield.

Winning is what counts, not sending signals. We have several generations of people in the United States who seem to believe that you only need appear to be ready to win rather than to win. That is not the way anyone else that we are fighting looks at it.

Yes I would use the means to gain information regardless if it was OK or NYC or some lone soldier in Iraq. I am simply not prepared to send a letter to some mother because of my squeamishness, I can live with my shame a lot easier than she can live without her son.

It is absurd at this point for anyone to argue that torture does not work. If it didn't Senator Grandstand would not have made allowances for it in his legislation.

Vercingetorix it is enough to say that Senator Grandstand himself has admitted that torture works both in his books and in his newest attempt to capture headlines. That he leaves a backdoor that can be used in case of emergency means that he also knows that the more rigorous methods of interrogation work. Indeed he expects them to be used when it really counts. If the methods you advocate were really the most effective why would the methods outlawed be reserved for those most important times when a city may be lost?

Pierre

Posted by: Pierre Legrand at December 18, 2005 06:07 PM | Permalink to this comment Permalink

Can someone please tell me at what point in time did education and writing as an educated person automatically deride someone’s arguments as ‘elitist’? And how does elitism equate something as being necessarily wrong?
I might be alone on this one, but I do care about what other people of the world think about the United States. Not what the holier-then-thou NGO’s of the UN, Amnesty International, and the plethora of others that curse the name of the US under the trumped-up-charge of imperialism. Nor do I care one iota what the governments of France, Spain, Venezuela, Iran, or North Korea think about the US for whatever their pandering reasons. But I do care, passionately, what the other 95% of the world population thinks about the United States and what she represents.
We hear regularly about the importance of what the word is on the Arab street, in regards to how well the US is winning the ‘hearts and minds’ in this War on Terrorism. Make no mistake the War on Terrorism is being fought in Iraq, but it is also being fought in Cairo street markets, the ports of Indonesia, and the deserts of Saudi Arabia. There always has been, and always will be those who hate the United States. But if we are to win this war, if we hope to ever stem the tide of new recruits into this nihilistic mentality of fundamentalist Islam, we must win on the grounds that we are better then the suicide alternative.
Greg is right, al-Qaeda lost today, as did ever future enemy of the United States. Don’t be so foolish as to think that this is the last war we shall ever fight. By overwhelming majorities the congress spoke up and said ‘we shall never sell-out our principles, not today or ever’. More important then just fighting terrorism, we must defeat it at the root casual level, and that means fighting with justice and humanity to annihilate the culture of barbarism and unspeakable cruelty that sows the seeds of religious fundamentalism in the Islamic world. Only then can we truly proclaim victory, not from the deck of an aircraft carrier, but from streets of Tehran.

Posted by: Randall Bennington at December 18, 2005 07:02 PM | Permalink to this comment Permalink

You are right about torture. We can't completely eliminate it, any more than we can completely eliminate bribery, but both are bad. I think that Congress has been much too docile- I think that they have ceded far too much power to the executive branch and this has been going on since Vietnam. The worst thing is that Bush and Yoo recognize no limits and that most of the media keep quiet about this. If The President can do whatever he deems necessary for the national security, the rule of law is dead.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. "

It's OK to snoop and wiretap, but they need to get a warrant. Only 4 times in the last 25 years has the FISA court turned down the executive branch. I'm more afraid of Bush and the Homeland Secuirty Department than Islamic terorrists although I fear them all.

Posted by: Anciano at December 18, 2005 07:41 PM | Permalink to this comment Permalink

The Moral Authority of America might be a truth in the heart of America, but it is a joke everywhere else. America has never been respected for its Moral Authority. America is respected for its money, military and entertainments.

Now Congress in a craven display of butt covering has enshrined a moral code in law, reducing the effectiveness of Americas military. As of now America gets less respect.

Posted by: unaha-closp at December 18, 2005 09:25 PM | Permalink to this comment Permalink

My argument is easy to follow, if you don't insist on putting words in my mouth.

One thing I am saying is, if you think torture is always wrong regardless of circumstances, argue that. Don't argue that "we shouldn't torture because that will make it harder to win hearts and minds". Because we will NEVER win hearts and minds that way. You can only win over hearts and minds that are open to being won over.

The other thing I am saying is, a blanket prohibition of torture is going to snowball into a prohibition of anything that is remotely coercive; the human rights organizations will see to that and indeed already do argue that torture vs. coercion is a distinction without a difference. If you want to ban something, ban specific practices we can all agree are torture. If you think waterboarding is torture, add it to the list. If you think wrapping someone in the Israeli flag is torture, be honest enough to argue that.

Nowhere have I argued that we SHOULD torture, or that things we do are okay as long as other people are doing worse things. People are putting those words into my mouth. Failure to appreciate nuance is not a disease limited to the Right.

Posted by: Gabriel Hanna at December 18, 2005 11:00 PM | Permalink to this comment Permalink

Thank you for taking the time to write this long and informative post and for helping settle this long running exchange between Glenn and Andrew. More than ever those who favor the USA moving toward torture are left out in the cold (or in the comments). I suppose that includes GW Bush and company. The good news for Republicans is that they have actual winnable candidates with apparently better judgment waiting.

Posted by: Andy at December 19, 2005 01:29 AM | Permalink to this comment Permalink

"Can someone please tell me at what point in time did education and writing as an educated person automatically deride someone’s arguments as ‘elitist’? And how does elitism equate something as being necessarily wrong?"

They never did. But plenty of smart people know how to say something without making it sound like they're trying to prove themselves to be smarter than you. "Per the below" fails miserably at that. It's tedious. Obviously, if you read the poem Greg put on the front page from an earlier commenter, (one that Greg himself found clever, I should add), I'm not alone in thinking this.

As for college degrees proving anything, no one said that. I think if you'll go back, the point was that it's amazing how people with multiple degrees, who one would assume to be relatively smart, swallow the media line whole. If anything, that's agreeing with you that a degree obviously doesn't mean much. The holding of college degrees was never used to imply that the graduate is therefore infallible.

Posted by: anon at December 19, 2005 05:47 AM | Permalink to this comment Permalink

Will Allen, I don't know why you think I think the war in the pacific was conducted in some kind of morally pure way. I can't think of anything I might have said that would have given that idea.

Posted by: CharleyCarp at December 19, 2005 05:49 AM | Permalink to this comment Permalink

CharleyCarp, I think Will Allen's comments on the Pacific theater of WWII were based on an over-quick reading of this part of your post:

"To the our-enemy-sets-the-standard crowd, another question: should we have gassed the Japanese-Americans we interned in WWII?"

You meant the civilian citizens of the US who were placed in internment camps, while he's talking about Japanese POWs. I doubt he believes we should have gassed these American civilians, whether of Japanese heritage or not, in the manner that Germany gassed its civilian detainees.

Les

Posted by: Les at December 19, 2005 08:36 AM | Permalink to this comment Permalink

Two points:

1. Re: Lowry and "belly-slapping." I think there's a bit of sleight-of-hand going on here. As I understand it, Lowry's problem with the McCain amendment wasn't so much its first provision which codifies the Army Field Manual for DoD personnel, but the second provision which prohibits the CIA from employing any interrogation techniques considered "cruel, inhuman, or degrading."

Making the point that belly-slapping is already prohibited under the Army Field Manual doesn't address Lowry's point, which is that such tactics aren't (and shouldn't) be prohibited when done by the CIA. Lowry thinks different interrogation standards should apply with respect soldiers and intelligence officers. I agree.

2. Re: CAT Article 16. You make the point that the U.S. agreed to CAT article 16's prohibition on cruel, inhuman, or degrading treatment to "the extent that we honored our obligations under the 5th, 8th and 14th Amendments." I suspect you aren't aware that its generally understood that the Constitution does NOT apply to foreign aliens abroad. The McCain amendment represents a significant restriction to U.S. interrogation policy, as the CIA now has to interrogate foreign terrorist suspects abroad pursuant to the same legal guidelines that domestic law enforcement must follow when interrogating common criminals. I don't believe this is a good thing.

Posted by: Gene at December 19, 2005 02:23 PM | Permalink to this comment Permalink

Gene


"The McCain amendment represents a significant restriction to U.S. interrogation policy, as the CIA now has to interrogate foreign terrorist suspects abroad pursuant to the same legal guidelines that domestic law enforcement must follow when interrogating common criminals. I don't believe this is a good thing."

Gee, you think?

Djerejian loves sacrificing the careers of better men than himself to the Judge Advocate General's office, aka the Roland Freisler Memorial Society.

http://edition.cnn.com/TRANSCRIPTS/0312/23/ltm.18.html


There will be blood on the hands of the filthy Pecksniffs that insist on being defended by those whom they stab in the back.

Posted by: Ernest Brown at December 19, 2005 02:39 PM | Permalink to this comment Permalink

"The other thing I am saying is, a blanket prohibition of torture is going to snowball into a prohibition of anything that is remotely coercive; the human rights organizations will see to that and indeed already do argue that torture vs. coercion is a distinction without a difference. If you want to ban something, ban specific practices we can all agree are torture. If you think waterboarding is torture, add it to the list. If you think wrapping someone in the Israeli flag is torture, be honest enough to argue that.

Nowhere have I argued that we SHOULD torture, or that things we do are okay as long as other people are doing worse things. People are putting those words into my mouth. Failure to appreciate nuance is not a disease limited to the Right."


Precisely, Gabriel, but since Djerejian and Sullivan, et. al., don't care about the protection of innocents but only their own amoral self-righteous perversity, it's a null issue. Someone like Lt. Col. West, whose toilet they are not fit to clean with their tongues, is a filthy Nazi who deserves prison, while the Iraqi terrorist he extracted the information from deserves every consideration possible. As you said yourself:

"You can only win over hearts and minds that are open to being won over."

That implies that the subjects in question actually possess the organ.


Posted by: Ernest Brown at December 19, 2005 03:12 PM | Permalink to this comment Permalink

Gentlemen, you are aware, perhaps, that US forces in Iraq are fighting a counter-insurgency war among a people that speaks a different language and where it's extremely difficult to know who the bad guys are?
And you do know that this is not the first such war in human history?
And that one consistent pattern in all such wars is that it provides a golden opportunity for locals to settle scores with one another by 'informing'? After all, the Army in question has no idea who to believe, and certainly *somebody* is shooting at them.

I once met an anthropologist who had been doing field work in the mountains of Peru during the jolly Shining Path uprising. There were two villages with a longstanding rivalry: one was predominantly Protestant, 'progressive,' etc. and the other was Catholic, 'conservative,' etc, and to some extent they consciously defined themselves in opposition to the other.

The Shining Path showed up one day. They caught and executed a number of notorious cattle thieves in the district to show that they were more useful than the government. They stuck around for a while, got a bit of support, far more from the 'progressive' village than the 'conservative.'

Then someone in the 'conservative' village called in the Army. The Shining Path got one whiff the Army was coming and took to the hills. The Army guys were from the Coast, Spanish-speaking, no idea of the local situation, afraid of someone tossing a grenade at them at any time. The locals spoke Quetcha for the most part, though the educated spoke Spanish. Everyone was afraid of everyone.

So the people in the 'conservative' village started fingering people in the other village who had 'supported' SP. And old enemies in their own village. And people in the 'progressive' village started pointing fingers back.

End result: 70% of the male population of the 'progressive' village and 30% in the 'conservative' village were taken into Army custody and never heard from again. Total SP guerrillas captured: er, 0.

Now, thank God, the US Army does not 'disappear' people. However, at least some of the pattern of how people end up in custody is going to hold. Sure, some guys are going to get caught red-handed in a raid on a bomb-making lab or captured in a firefight. But a lot of others are going to be 'turned in,' or just in the wrong place at the wrong time.

Some people here are complaining that 'anti-torture' folks are willing to sacrifice the lives of GIs so as to spare pain to some bomb planting insurgent. Well, how do you know everyone you want to OK the torture of is going to know where an IED is planted? How many completely innocent people would you be happy to have beaten to get to the one guy who knew something? 1? 5? 10? 50? How many actual insurgents who don't know anything? 100? 200? How many innocent people would you happily see beaten in order to save *your own* life?

Posted by: Antiquated Tory at December 19, 2005 04:39 PM | Permalink to this comment Permalink

A Tory,

That's precisely the objection, trivilizing torture means that our intelligence services will have to go along with sub rosa rendition that will ultimately cause more REAL torture with no oversight. Thus, Djerejian and Sullivan are objectively pro-torture.

Posted by: Ernest Brown at December 19, 2005 04:55 PM | Permalink to this comment Permalink

The very text of GD's post is useful in illustrating Gabriel's concern for the slipery slope of determining what is torture. The law prohibiting torture () already exists (I wrote about this often ignored yet, in my mind, most relevent legal standard here). GD himself clearly and correctly states one provision:

United States understands such actions to refer to prolonged mental harm caused or resulting from [four specific proscribed actions]
He then immediately uses this to conclude that since the famous "hooded man" of Abu Ghraib most certainly believed he was threatened with imminent "severe physical pain and suffering" (one of the four proscribed actions) it is evidence of torture by the US. Besides ignoring that the very action he describes was not only unauthorized and subsequently punished under existing law, despite the most intense efforts to characterize this as a systemic problem all evidence indicates this was a single incident orchestrated and executed by a poorly supervised rouge watch-team at the direction of a singularly sadistic Sergent. Further, GD conveniently discounts the underlying condition that such action cause "prolonged mental harm" in order to constitute torture. Note, this is not an argument defending the criminal actions in that specific incident at Abu Ghraib, but rather a clear demonstration that even with the current legislation the trend is to define torture down to the dismissive.

Posted by: submandave at December 19, 2005 05:05 PM | Permalink to this comment Permalink

Greg says: "Look, when you talk to serious people, people who have run major embassies or who have multiple stars on their uniforms, they are outraged that we have had to have a three year long debate about whether Americans can legally be allowed to torture (or were attempting to define torture down so much that a 'humaness' standard, particularly in the context of a countervailing 'military necessity' test, became largely meaningless)."

My problem with much of this debate, and I think where smart folks like Greg, Glenn, Sullivan and the NRO crowd get cross-wise, is over this very issue of what is "torture." Greg cites "serious people" who are outraged by a debate over the legalites of whether specific conduct is torture, when in fact the very source of their "outrage" is that they have their own internal definition of what is/is not "torture." Well I think serious people can disagree about this and that it is eminently unserious to seek,as Greg does, to castigate anyone who does not immediately come to the same conclusion that he holds as self-evident.

I agree with most of what Greg has written about this topic, but his overall conclusion is flawed in many respects. The Abu Ghraib disgrace was, in my opinion, caused by a terrible mistake to move away from the clear, ingrained requirements of the Field Manual, and to introduce (deliberately or by accident) new parameters of conduct for field forces. It is not the time, in the middle of a war, to try to change the training and understanding (particularly of reservist MP's) of what they are supposed to do. I think Greg agrees with that. However, that's not to say that the abuse that took place at Abu Graib was "torture." Indeed, I think that most of what we have seen at Abu Graib (understanding that we have not "seen" everything that happended at Abu Graib) was not "torture" in the sense of the convention against torture, and most importantly was not institutionally intended conduct -- the difference between misfeasance and malfeasance is critical in this context.

The incidents at Abu Graib are conflated in the minds of many with the conduct at Gitmo and the new intrrogation rules that came out of DOD to allow more "aggressive" interrogations of Al Queda irregulars that didn't fit any of the Geneva Convention's "quaint" categories of official combatants.

Whether the new conduct that came out of DOD was good policy, illegal, poorly implemented or badly supervised, or some, all or none of the above, is a different debate than the outrages at Abu Graib. I tend to accept the idea that the new policies were intended for the unprecedented nature of the "detainees," and not for the conduct of the military towards insurgents taken from the field in Iraq and held in military custody. Further, the new policies may in fact be entirely "lawful" and well designed in a purely legal sense. That's the debate and position that the Bush administration is focusing on. But they can't win that debate, and they should have known that.

I think the new policies were a dreadful mistake, not necessarily because they approved harsh conduct that may or may not be "torture" depending on your point of view. The mistake was in allowing this debate get any public footing at all because its a debate that is necessarily controversial and divisive.

Has there been damage to America's standing as a result of this debate? Without a doubt, the answer is yes; but I'm not sure that this debate could ever have been held publicly without inflicting such damage, because its not a pleasant subject and because there is no bright line to define what is/is not "torture." So in some respects, I don't think the Bush administration is out in left field on the substantive policy question, if that is taken in a hypothetical vacuum; BUT it was a terrible political and diplomatic mistake to allow this issue to become a matter of public debate -- which is why they should never have departed from the previously accepted (and undebated) pratices, policies and standards of the military and CIA. This was a self-inflicted wound, and whether a legal case can be made for DOD policy or not, it should have been predicted that this wound would not heal easily.

Posted by: Lycurgus at December 19, 2005 06:13 PM | Permalink to this comment Permalink

Your position backed up by many words seems to me utopian at best. Have a few more innocent Americans killed on our soil and watch how fast the words of defense crumble.

Posted by: jeffersonranch at December 19, 2005 07:56 PM | Permalink to this comment Permalink

Well, I'd never heard of Mark Levin. And if he's anything like Sullivan or Reynolds, I'm not inclined to learn anything more about him.

You can't believe in torture unless you believe the ends justifies the means. But if you believe that, you can't condemn terrorism as an evil act -- unless you believe the ends only justifies the means when applies to your actions, but not to others.

Posted by: fling93 at December 19, 2005 08:04 PM | Permalink to this comment Permalink

Greg;


I support the McCain amendment. I agree with McCains approach to exceptions. I think as a country we shouldnt use these techniques cause of who we are. I agree that in most instances the info we get is not worth the hearts and minds damage.


I DONT think that Hearts and Minds are 100% of the WOT. And im not convinced that abusive interrogation is the principle problem in the Hearts and Minds battle. Thus, from the POV of strategy I dont think Glenn can be faulted for not covering this issue in the depth you want.

I also think that these techniques, while degrading to our people, and horrible when applied to innocents, and not a good strategy even when applied to non-innocents, are the worst moral crime in the world. Or close to it. Some, if not most, if not almost all, of the folks (outside Abu Graib) whove been subjected to them ARE evil people, people who would glady murder thousands of Americans. People who would particularly be happy to murder ME, because Im a Jew. Now I can oppose the use of abusive interrogations, even on such people, because we need to establish a wall to prevent leakage from a Gitmo to an Abu Graib - and cause even doing it at Gitmo is a prudential mistake. But I cant see that what happens at Gitmo is so immoral, that someone who is OPPOSED to it, but chooses not to make it a priority, like Glenn, is immoral.

Glenn has repeatedly blogged about Darfur. Sully has made relatvely few mentions, and I can hardly remember you mentioning it. Should Glenn blog about how immoral you and Sully are for not mentioning it? If and when you defend your choice of topics, should he parse those defenses?

Look, I dont always agree with your choice of topics. But its YOUR damned blog, and you can focus it on Rummy every day, or on anything else you like. And guess what, Instapundit is Glenns. If hes more interested in some topics than others that doesnt make him immoral.


And yes, while I know Sully to be supportive of Israel, I still dont think he realize how odd it sounds comparing being wrapped in an Israeli flag to being tortured (which yes, he does do implicitly in the posts glenn linked to) And yes, I know its prudentially harmful in the hearts and minds battle for arabs to hear about that. But thats a prudential question - and Sully mentions it in posts that seem, at least to me, to be cris de coers about the morality of the abuses.

And yes, the exagerations, the confusion of moral and prudential categories, the intolerance of any reasoned disagreement, the implications that anyone who disagrees lacks conscience deeply rub me the wrong way.

Posted by: liberalhawk at December 19, 2005 08:12 PM | Permalink to this comment Permalink

Greg;


I support the McCain amendment. I agree with McCains approach to exceptions. I think as a country we shouldnt use these techniques cause of who we are. I agree that in most instances the info we get is not worth the hearts and minds damage.


I DONT think that Hearts and Minds are 100% of the WOT. And im not convinced that abusive interrogation is the principle problem in the Hearts and Minds battle. Thus, from the POV of strategy I dont think Glenn can be faulted for not covering this issue in the depth you want.

I also think that these techniques, while degrading to our people, and horrible when applied to innocents, and not a good strategy even when applied to non-innocents, are the worst moral crime in the world. Or close to it. Some, if not most, if not almost all, of the folks (outside Abu Graib) whove been subjected to them ARE evil people, people who would glady murder thousands of Americans. People who would particularly be happy to murder ME, because Im a Jew. Now I can oppose the use of abusive interrogations, even on such people, because we need to establish a wall to prevent leakage from a Gitmo to an Abu Graib - and cause even doing it at Gitmo is a prudential mistake. But I cant see that what happens at Gitmo is so immoral, that someone who is OPPOSED to it, but chooses not to make it a priority, like Glenn, is immoral.

Glenn has repeatedly blogged about Darfur. Sully has made relatvely few mentions, and I can hardly remember you mentioning it. Should Glenn blog about how immoral you and Sully are for not mentioning it? If and when you defend your choice of topics, should he parse those defenses?

Look, I dont always agree with your choice of topics. But its YOUR damned blog, and you can focus it on Rummy every day, or on anything else you like. And guess what, Instapundit is Glenns. If hes more interested in some topics than others that doesnt make him immoral.


And yes, while I know Sully to be supportive of Israel, I still dont think he realize how odd it sounds comparing being wrapped in an Israeli flag to being tortured (which yes, he does do implicitly in the posts glenn linked to) And yes, I know its prudentially harmful in the hearts and minds battle for arabs to hear about that. But thats a prudential question - and Sully mentions it in posts that seem, at least to me, to be cris de coers about the morality of the abuses.

And yes, the exagerations, the confusion of moral and prudential categories, the intolerance of any reasoned disagreement, the implications that anyone who disagrees lacks conscience deeply rub me the wrong way.

Posted by: liberalhawk at December 19, 2005 08:13 PM | Permalink to this comment Permalink

paragraph 3 above should start "i dont think"

Posted by: liberalhawk at December 19, 2005 08:14 PM | Permalink to this comment Permalink

Don't all these Geneva Conventions and what not owe their existence to the slow and very painfully learned lesson by the signatories that unnecessary cruelty was in nobody's interest? "I won't commit atrocities against you, if you don't commit atrocities against us." Absent this understanding, whether tacit or enshrined in fancy leather- bound treaties, the gloves come off, and should. Come to think of it, a damn good hiding might educate these people to the advantages of fighting properly. Yes, an oxymoron, but they have their place in this shitty world we've all made.

Posted by: armchair pessimist at December 19, 2005 10:37 PM | Permalink to this comment Permalink

What about the fact that normaliozing abuse makes it more likely innocents will be abused? Maybe 10% of the people in detention are real terrorists, the rest are innocents in the wrong place at the wrong time who are waiting to clear their names.

How do we make sure we don't get to the point that the harm we inflict on the abused (sometimes murdered) innocents does not outwigh the good we do by saving others?

Posted by: r4d20 at December 20, 2005 02:59 AM | Permalink to this comment Permalink


Re:fling93:
"You can't believe in torture unless you believe the ends justifies the means. But if you believe that, you can't condemn terrorism as an evil act -- unless you believe the ends only justifies the means when applies to your actions, but not to others."

Acts themselves are neither good nor evil. What matters is who commits them, who those acts are committed against, and their ultimate (or intended) consequences. Hence the difference between murder and self-defense, collateral damage and terrorism.

Just because you believe torture is acceptable in some cases does not mean that you think it's okay in all or most contexts. The same can be said for war, execution, imprisonment, and most other forms of state coercion of individual autonomy.

Posted by: Gene at December 20, 2005 02:56 PM | Permalink to this comment Permalink

I agree with Gene. My rule of thumb is whether torture, however you care to define it, is both an essential and an irreplaceable component of the war effort. To the extent that it is both essential and irreplaceable, I would be willing to support torture in spite of my moral objections, for the same reason that you'll never see me criticizing the U.S. decision to drop atomic bombs on Hiroshima and Nagasaki in spite of the resulting civilian carnage at a level that makes Abu Ghraib and Gitmo combined look like... well, even "chump change" would be a monumental understatement.

Posted by: Joshua at December 20, 2005 05:10 PM | Permalink to this comment Permalink

fling93: You can't believe in torture unless you believe the ends justifies the means. But if you believe that, you can't condemn terrorism as an evil act -- unless you believe the ends only justifies the means when applies to your actions, but not to others.

Gene: Acts themselves are neither good nor evil.

In short, you believe the ends justifies the means. This also means that intentionally killing civilians is not an evil act because "acts themselves are neither good nor evil." Which pretty much undermines the whole rationale for the "War on Terror."

So presumably, you don't see it as a war of "good vs. evil," but just "us vs. them." Do I have that right? If so, I don't have a beef with you.

Posted by: fling93 at December 20, 2005 11:54 PM | Permalink to this comment Permalink

Greg, a simple question. Khalid Sheik Mohammed was (is) Al Qaeda's COO. the jihadist with chief responsibility for devising the who what when where of AQ's most spectacular terror strikes and then overseeing their execution. Assuming that waterboarding and other torture treatment resulted in Khalid Sheik Mohammed's divulging operational details of his planned terror spectaculars, was it wrong to waterboard him? What evidence can you provide that such information could have been procured without waterboarding KSM?

Contra the idiots at NRO (btw, you're spot on with your observation of how embarrassingly banal and dumb Buckley's magazine has become), there's no question that for some 99% or more of the suspects we detain, torture will not yield any significant informational benefits, let alone benefits that can be justified with either a ticking bomb or slow fuse argument.

But what exactly is the right policy concerning that 1% who, like Khalid Sheik Mohammed, truly are in possession of crucial operational details of actual planned strikes against major US targets (eg the world's financial center and the superpower's military command center) and who are so hardened that any ordinary interrogation method is more likely than not to be unavailing?

This question is the essence of the matter, and no amount of rhetoric will finesse it. We either torture KSM, or we don't. Where do you stand on this torture case, Greg?

(Speaking of rhetoric, could you please drop the very corny and less than convincing "seed corn" metaphor. I seriously doubt any of your readers lives on a farm, and in any case, I suspect that modern agronomy and genetic modifications have made the concept obsolescent. Thanks, T)

Posted by: thibaud at December 21, 2005 02:57 AM | Permalink to this comment Permalink

fling93:

"In short, you believe the ends justifies the means. This also means that intentionally killing civilians is not an evil act because 'acts themselves are neither good nor evil.' Which pretty much undermines the whole rationale for the "War on Terror." So presumably, you don't see it as a war of "good vs. evil," but just "us vs. them." Do I have that right? If so, I don't have a beef with you."


I think you're oversimplifying my position, which is that the "goodness" or "badness" of an act isn't based on the act itself, but instead upon the context in which the act occurs (e.g., who's doing it, the intent behind the act, and the action's consequences). For example, even though murder and justifiable homicide consist of the same act--killing a human being--we treat them differently because of the context in which those acts occur. The same holds true with torture and harsh interrogation; in some cases (not most, I stress) such acts are not evil.

I would say that claiming the War on Terror must be thought of as either "good vs. evil" or "us vs. them" is a false dichotomy. It can be both, and it can also be neither.

Posted by: Gene at December 23, 2005 02:12 AM | Permalink to this comment Permalink
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