Free Markets, Free People

torture


Meanwhile, in Libya

Unicorns are dancing, fairy dust is in the air and Arab spring continues to flower:

Libyan revolutionaries captured and killed Muammar Gaddafi more than seven months ago, but the dictator’s brutal tactics and antidemocratic ways live after him. Human-rights workers say that’s true not only within the high walls of the dictator’s former Ain Zara torture center but at other jails and penitentiaries across the country. Abdul is among at least 20 Ain Zara inmates whose relatives accuse guards of subjecting detainees to severe and regular beatings with everything from fists to sticks, metal rods, and chains. Family members say some of the prisoners have been repeatedly beaten on their genitalia, a form of punishment that—in addition to being excruciatingly painful—could leave its victims infertile. Others, according to relatives, have been tortured with Taser-style electroshock weapons.

R2P, baby, R2P.

~McQ

Twitter: @McQandO


Pelosi, “Enhanced Interrogation Techniques”, and Hypocrisy

You know, when you’re in DC it seems such a calm and beautiful place, and yet, the cynical machinations of politicians continue unabated.

We now have Nancy Pelosi under fire for essentially sanctioning the “advanced interrogation techiniques” by not speaking up against them or opposing them when she was briefed about their use many years ago:

Nancy Pelosi didn’t cry foul when the Bush administration briefed her on “enhanced interrogation” of terror suspects in 2002, but her team was locked and loaded to counter hypocrisy charges when the “torture” memos were released last week.

Many Republicans obliged, led by former CIA chief Porter Goss, who is accusing Democrats like Pelosi of “amnesia” for demanding investigations in 2009 after failing to raise objections seven years ago when she first learned of the legal basis for the program.

She and her staff can be as “locked and loaded” as they wish, but the fact remains that she’s said nothing about the use of those techniques for 7 years – not a single, solitary word to anyone about opposing them on any grounds.

So the use of these techniques wasn’t something which was going on in a dark corner out of the view or knowledge of Congressional leadership. Democrats have tried to sell that as the “conventional wisdom” – a fascist and authoritarian president making decisions that violate human rights behind closed doors and without the knowledge of the enlightened Dems who would surely have stopped it if they had only known.

But they did know – and said nothing. In the realm of Washington politics that is the same as giving something sanction.

More importantly, Democrats would like for you to believe that these things took place due to an out-of-control executive branch. However, and as usual, this all took place because both Republicans and Democrats in Congress allowed it to take place. When you have the information necessary to stop something you supposedly oppose and do nothing, you become as complicit as anyone.

So as I said in the beginning, Pelosi’s staff as “locked and cocked” as they wish, and they can spin it until they puke, but the fact remains she can’t plead ignorance and she certainly can’t say she did or said anything in opposition, and that that speaks louder than anything her spin machine can gin up in her defense.

Whether or not you agree with the use of the techniques doesn’t change the fact that when it came to “put up or shut up” time where leadership and principle were called to the fore, Nancy Pelosi blew it and any criticism or spin she or her staff now puts forward has the horrific stench of hypocrisy emanating from it.

~McQ


Podcast for 26 Apr 09

In this podcast, Michael, and Dale discuss the torture memos and their possible legal consequences, and the possible securities law violations that the treasury committed in administering the TARP program.

The direct link to the podcast can be found here.

Observations

The intro and outro music is Vena Cava by 50 Foot Wave, and is available for free download here.

As a reminder, if you are an iTunes user, don’t forget to subscribe to the QandO podcast, Observations, through iTunes. For those of you who don’t have iTunes, you can subscribe at Podcast Alley. And, of course, for you newsreader subscriber types, our podcast RSS Feed is here. For podcasts from 2005 to 2007, they can be accessed through the RSS Archive Feed.


Torture Memos: Prosecute who? For what?

Patterico WLS, posting at Petterico’s “Jury” blog points out that, despite all the calls for prosecuting “former Bush officials” over the torture memos and the actions taken under their aegis, he wonders, as an actual prosecutor, who would be charged with a crime, and what, exactly, the crime would be.

In mulling over the news of the past few days, I’m curious as to what the critics of the Bush Administration see as plausible criminal charges against the officials who were responsible for the drafting/authorizaiton [sic] of the “Torture” memos.

It would be one thing to actually prosecute the CIA officials involved in carrying out the interrogations…[b]ut they would likely have the time-honored defense of “advice of counsel” which works to negate the mens rea (”guilty mind) necessary to establish knowing criminal conduct.  When the top law enforcement officials of the US government tell another component of the US government that the conduct they are proposing to carry out on behalf of the government is not prohibited by statute, it’s exceedingly difficult — if not impossible — to mount a successful prosecution against any government official who acted in accordance with the advice…

Prosecuting the officials who offered the advice is a different question.  But what would be the charge?  It can’t be “Torture” under the statute — they didn’t do anything.  They simply responded in their official capacity to a question raised by another governmental entity… Why is the ANALYSIS of the specific technique described in the memos — concluding it would not fall within Sec. 2340 — wrong?

Fair questions indeed.

The officials who wrote the memos were acting as lawyers providing legal advice over the meaning of a statute.  Perhaps that advice was wrong.  But is providing an erroneous legal opinion a crime?  If so, what, exactly, would the crime be?  You would have to prove that the advice was completely and knowingly concocted from whole cloth and/or that the concocted legal advice was part of conspiracy to commit torture.  In that case, you’d have to find evidence of specific collusion between the CIA and DOJ to knowingly concoct  spurious justifications.

Absent such evidence, all you have is lawyers providing legal advice that the current administration doesn’t like.  In that case, I don’t see what the prosecutable offense is.

Taking it further, the CIA officials who actually conducted the torture have a very good defense, namely, that the formal legal advice they received from the government’s top lawyers at the DOJ was that the specific techniques they used fell outside the meaning of §2340.  In that case, they cannot have known they were committing a crime, but rather, they believed they were, on the advice of counsel, acting entirely within the law. So, unless there’s evidence that the interrogators went off half-cocked and began using non-approved techniques in the questioning, it’s difficult to see what the crime would be on the part of the interrogators themselves.

With the above in mind, it’s difficult to construct any other scenarios in which any of these of officials are prosecuted without it becoming, in effect, a criminal prosecution for partisan policy differences.

Whatever else that might be, it is not the Rule of Law as it is commonly understood.


About Those Torture Memos…

Well, this is an unexpected revelation.  In all the imbroglio about the “torture memos” and the possibility that the justice department may look into torture indictments of various officials, Rep Pete Hoekstra (R-MI) writes that it’s a bit hypocritical for Congress to escape scrutiny.  Apparently, they knew all about it.

It was not necessary to release details of the enhanced interrogation techniques, because members of Congress from both parties have been fully aware of them since the program began in 2002. We believed it was something that had to be done in the aftermath of the 9/11 terrorist attacks to keep our nation safe. After many long and contentious debates, Congress repeatedly approved and funded this program on a bipartisan basis in both Republican and Democratic Congresses…

Members of Congress calling for an investigation of the enhanced interrogation program should remember that such an investigation can’t be a selective review of information, or solely focus on the lawyers who wrote the memos, or the low-level employees who carried out this program. I have asked Mr. Blair to provide me with a list of the dates, locations and names of all members of Congress who attended briefings on enhanced interrogation techniques.

Hmmm.  That actually might be interesting to see.  Very interesting.


Podcast for 19 Apr 09

In this podcast, Bruce, Michael, Bryan, and Dale discuss the use of torture on terror suspects, and the week’s Tea Parties.

The direct link to the podcast can be found here.

Observations

The intro and outro music is Vena Cava by 50 Foot Wave, and is available for free download here.

As a reminder, if you are an iTunes user, don’t forget to subscribe to the QandO podcast, Observations, through iTunes. For those of you who don’t have iTunes, you can subscribe at Podcast Alley. And, of course, for you newsreader subscriber types, our podcast RSS Feed is here. For podcasts from 2005 to 2007, they can be accessed through the RSS Archive Feed.


Torture…Again

I have to admit to some surprise in seeing Michael’s post on torture below.  QandO has been pretty much opposed to the use of torture, and we’ve taken some heat for it every time the subject has come up.  But, once you open up a libertarian blog to others to write for it, and tell them to feel free to write their own opinions without prejudice or favor, then,  before you know it, they go off getting ideas of their own, disagreeing with you, and generally acting with an outrageous sense of independence.

What’re you gonna do?

I understand the attraction of torture, both on utilitarian grounds, and in terms of what I will call “emotional reciprocity”, so I won’t re-cover Michael’s arguments, tendered, as they are, more inquisitively than asseveratively.

When I speak of “torture”, I want to be sure that we all have the same thing in mind when I use the word.  So I will define it here as the intentional application of physical pain, accompanied by the possibility of permanent injury, scarring, derangement, or death.  This will, I think, encompass the entire spectrum pf physical discomfort comfort from beatings to anything else more severe.  I specifically reject a definition of torture that includes psychological pressure, such as putting a particularly nasty-looking beetle in the cell of a prisoner who’s afraid of bugs.  I also reject questioning methods as sleep deprivation for a couple of days, or discomfort from keeping the air conditioning too low as torture.  These things might be unpleasant, but they are not physically or mentally harmful in any significant sense.

It’s possible to construct any number of scenarios in which torture is acceptable–perhaps even moral.  But that doesn’t negate the general rule that torture is, in fact, wrong.To continue, I would then proceed to the question, “Is torture always wrong?”  Well, that’s a silly formulation of the question.  In every human action, context matters.  I think there is general agreement that lying is generally wrong, yet if a terrified woman approaches us and pleads for us to hide her from a crazed stalker who intends to kill her, I think there is also general agreement that if the stalker subsequently approaches us, we would have a positive moral duty to lie to the stalker and deny any knowledge of her whereabouts.  There might also be general agreement that lying has a social purpose at times, in the sense that the answer to the question “Does this dress make me look fat?” is pretty much always, “No.”

In light of the above, it’s possible, then, to construct any number of scenarios in which torture is acceptable–perhaps even moral.  But that doesn’t negate the general rule that torture is, in fact, wrong, in the widest range of circumstances.  If we actually believe in all that stuff about “inalienable rights”, then certainly the right not to have hot needles shoved under our nails is one of them.

Beyond that, however, we enter a terrifically complicated area, when we begin to discuss giving the government the power to have recourse to torture as a matter of policy.  As a practical matter, it is nearly impossible to construct a system in which any official sanction to torture will not inevitably spiral out of control.  Once a set of rules is in place–any set of rules–there will inevitably be torture imposed on anyone on whom an official wishes to impose it.  Officials will ensure that the rules will apply to the persons they wish to torture.  Sure, the guy may look like an innocent Kabul taxi driver, but there will always be an official who “knows” better, and who will ensure that all the proper boxes are checked before the flensing knives are brought out.

We have elaborate rules, for instance, covering the issuance of search warrants, and severe criminal and civil sanctions for their abuse, yet, oddly enough, police agencies fairly routinely deliver no-knock drug warrants on innocent homeowners, which, not infrequently, result in homeowners or policemen getting shot.  Or in the case of 90 year-old Kathryn Johnson in Atlanta several months ago, police just ignore those rules, and seek to provide creative ex post facto justifications.  In that case, of course, we learned that such actions were not at all uncommon in portions of the Atlanta PD.

It is nearly impossible to construct a system in which any official sanction to torture will not inevitably spiral out of control.Providing legal sanction to use torture invites similar overzealousness on the part of officials.  Moreover, if the government can point to some cases of torture’s utility, the pressure to increase the range of acceptable subjects will inevitably increase–just as the drug war has increased the incidence of no-knock warrants being issued to “take down” non-violent drug offenders.  And, frankly, we haven’t done a very good job of guarding the slippery slope in these and similar areas of government activity.

That doesn’t make me sanguine about giving the government the legal sanction to engage in torture, especially in an environment where heathen foreigners will be on the receiving end of it, and their redress in case of mistakes are…limited.  That seems to me to have all the element necessary for an unconscionable abuse of power.

Now, let’s look at the question of whether torture works.  That answer to that is, yes, but not reliably.  There are a number of celebrated cases in World War II where French or Yugoslav partisans were captured by the Germans, turned over to the Gestapo, and essentially tortured to death without telling the Germans anything.  We also have, conversely, literally thousands of “confessions” of witchcraft during the Inquisition, extracted under torture.

What does that tell us?  Well, nothing really that we didn’t already know, which is that if you wish to get a suspect to talk, 220 volts to the genitals will probably work better than a medium-rare steak au poivre with shallots, and a robust glass of Côte de Nuits.

Whether the subject can be relied upon to tell you the truth, or just what he thinks you want to hear, is more problematic.  Torture can work–by which I mean you can receive reliable information from it– through the following iterative process:

1) The subject can be induced to talk through physical pain.  You can eventually get someone to tell you something, if enough torture is applied.  To ensure that something is useful,

2) You must be able to verify the subject’s information in whole, and provide…correction if any part of the subject’s statement appears to be untrue.

You must be able to repeat the above steps until the subject is convinced of your ability to verify his statements and punish evasions or subterfuges.  This can, needless to say, become an elaborate process.  If you can’t go through the process, then you don’t really know if you’re getting reliable information from it, or if the subject is shining you on to obtain relief.  Perhaps he’s telling you the truth.  Perhaps he’s just getting you to look askance at an innocent taxi driver in Kabul.

Michael asked:

Moreover, if it really is ineffectual, why does it continue to happen? Clearly, somebody somewhere is getting results.

Two things come to mind.

First, the vast majority of torture use, both historically, and in the modern world among those regimes that use it, is directed to obtaining confessions of guilt from criminal suspects.  It comes as no surprise that it’s highly effective at obtaining them.  Again, I refer to the Inquisition, where the possibility of death at some unspecified future date became more attractive than than the prospect of a continuance on the rack in the present case.

Second, as I wrote previously, torture does provide more information than would be obtained by abstaining from it.  One wonders, however, how much of that information is actually reliable, as opposed to how much of that information is beleived to be reliable by officials. Or simply politically convenient.  Those two latter  things may not, in fact, be the same as the former.

Finally, the question arises, “who do we torture?”  Certainly, every real terror suspect has some knowledge that can be useful.  Do we get to torture all of them?   Most of the justifications I’ve seen would give us the option to torture someone in a ticking bomb scenario.  Which sounds nice…if you actually know there’s a ticking bomb.  In the normal scheme of things, though, you really need to torture people to find out if a ticking bomb exists, not to figure out where it is.

The vast majority of torture use among those regimes that use it, is directed to obtaining confessions of guilt from criminal suspects.  It comes as no surprise that it’s highly effective at obtaining them.Or do we just torture the higher-ups in the terrorist movement, as a sort of fishing expedition?  This is, I gather, the justification for the interrogation techniques used on some of the al Qaeda biggies.  We thought they were up to something, and we used harsh interrogation to find out what they knew.

The most interesting thing about that is that we didn’t have to brand these guys with hot pokers to get them to give it up.  These guys apparently have little resistance.  Threaten to open a box of StayFree® Maxi-Pads in front of them, and they sing like superstars.  So maybe we got lucky in that some of these guys were easy marks.

But, as the Gestapo experience of WWII shows, sometimes, people will let you torture them to death without telling you anything.  Even in Vietnam, our POWs in Hanoi would resist real, actual torture for extended periods before giving up a “confession” to their captors.

But I digress.

Either you are going to define the torture-liable population so broadly, that officials will pretty much have a license to torture, or so narrowly that, as a practical matter, you’ll never use it.  If the former, you’ve got a slippery slope problem, if the latter, it’s not useful enough to even worry about sanctioning it, rather than just worrying about it on an ad hoc basis.

What would this guy do?

What would this guy do?

Jonah Goldberg has written often about the unwritten law, vs. the written law. Fifty years ago, it was against the law for the police to dispense street justice.  In practice, the beat cop, who walked the same neighborhood day after day and who knew the residents, would occasionally rough up some troublemakers pour encourager les autres, and in so doing, kept the peace on his block.  It wasn’t legally sanctioned, but it worked–and the cop knew that when he did it, he was risking at least his career, if it became a problem.

For a variety of reasons discussed above, as well as other, more prudential reasons in terms of the country’s image, and diplomatic reputation, I’d prefer never to see torture be enshrined in the written law.

I’ve noted before that, when I was on active duty, if I’d ever been faced with getting caught behind enemy lines in a Soviet attack in Europe, I would like to have the option of capturing a Russian officer, and finding out how to get back to our lines.  And, if I had to hook up a field telephone, and make a collect call to his genitals, I’d do it without blinking, if that’s what it took to get my guys back home alive.

I wouldn’t brag about it, or mention it to anyone in responsible authority later, but if I got found out, I’d expect to take the Court-Martial.  And, as long as I’d gotten my guys out, I’d have been happy to do it.

Necessity, it’s often said, knows no law.  But the law shouldn’t explicitly bow to necessity. I would rather have it understood that any torture inflicted is done without sanction, and the official authorizing the torture may be in danger of serious sanctions if he uses it.

It’s probably not the best solution.  But, on balance, I think it’s a better solution than giving the government explicit permission to conduct torture however they see fit.  Torture is problematic for a number of reasons, and the ethics of engaging in it are, at the very least, difficult to parse.  And, as Michael should well know, “hard cases make bad law”.

UPDATE [McQ]: What Dale said.


Torture: What Is It Good For?

Paralleling the song, the answer should be “absolutely nothing” with a testosterone laced “Huhn!” thrown in for good measure. Personally, I have my doubts.

This is not a new topic here at QandO, as my esteemed brethren have weighed in on numerous occasions, each time settling on an emphatic “No! Torture is not acceptable.” While it would be difficult, if not impossible, to put into words the esteem that I hold for my blog brothers, I have to say that I disagree. That may be because I have never been in the military, nor been subjected to anything close to the sort of forced life-or-death decision making that breeds a camaraderie distinct unto itself. And it may be because I have the luxury (thanks to said camaraderie) to simply ponder these things at my leisure. Just the same, I cannot say that I am opposed to torture of our nation’s enemies, nor can I honestly say that any experience will change my opinion.

First, the reason I even broach the subject: release of “secret torture memos” (link added):

President Barack Obama’s administration said it would Thursday release four memos, with sections blacked out, covering the Bush administration’s justification for CIA interrogations of terror suspects … The memos were authored by Jay Bybee and Steven Bradbury, who at the time were lawyers for the then-president George W. Bush’s Justice Department Office of Legal Counsel.

The memos provided the legal framework for a program of interrogations of “war on terror” detainees that included techniques widely regarded as torture such as waterboarding, in which a detainee is made to feel like he is drowning.

I have not read the memos, and I probably won’t. The sole reason being that I’ve slogged through enough of these legal documents to have a pretty good idea of what’s in there, and to know that there is plenty of qualifying language to mitigate whatever damning quotes are eventually culled therefrom. In point of fact, these “memos” are little more than legal research projects specifically drafted so as to provide both the underlying judicial framework for the issue at hand, and the best guess at how the current policy might fit into that framework under certain factual parameters. They are merely legalese for “this is what the law says, and this is how the policy may not run afoul of that law.”

Leaving aside definitional problems (does being confined with an insect constitute “torture”?), let’s just assume that what the memos described was not only policy, but a policy that was carried out. Why is that a bad thing?

Tom Maguire provides some thoughts:

IN OUR NAME: The newly released torture memos are cold-blooded and clearly client-driven – the lawyers knew the answers they wanted and reasoned backwards. Quick thoughts:

1. The US concern about actually harming someone comes through on every page. In fact, at one point (p. 36 of .pdf) the legal team wonders whether it would be illegal for the interrogators to threaten or imply that conditions for the prisoner could get even worse unless they cooperate. I suppose these memos will provide welcome reassurance of our underlying civility to both the world community and the terrorists in it.

2. There are some fascinating legal gymnastics on display. My favorite might be on p. 39, where we learn that Article 16 of the Geneva Convention does not apply because the CIA is operating in areas not under US jurisdiction. Nor do the protections of the US Constitution extend to aliens being held prisoner under US control but abroad outside of US jurisdiction.

However, another contender for the “It Would Take A Lawyer To Think Of This” prize is the argument that waterboarding does not constitute a threat of imminent death because, even though the prisoner thinks they are drowning, they are not, and anyway, the mental effect is transitory and does not result in long term mental harm – call it the “Psych!” defense. (The absence of long term harm comes from the experience of US sailors and soldiers passing through SERE school in the service of their country; whether a jihadist waterboarded by the Great Satan would also rebound psychologically is not explored here). I would think that a game of Russian Roulette played with a fake bullet might pass all these requirements other than the SERE experience.

Tom’s comparison to Russian Roulette intrigues me because I think it is the perfect analogy. I’ve written before that, in my opinion, waterboarding crosses the legal line because of the way the law is written. I’ve never been convinced that the technique crosses any moral boundary because I’m not so sure that it’s any different than placing a caterpillar in the same cell as a man who’s deathly afraid of caterpillars. Playing on the mind’s fears is part and parcel of both manipulation and torture, but does not mean that the two are equivalent. Morally speaking, therefore, I have doubts that techniques akin to waterboarding amount to “torture” per se.

But assuming that they do, again, what exactly is the problem? Aficionados of the subject will say that torture is ineffectual. Yet, Khalid Shaikh Mohammed would appear to be a test case in contrast to that wisdom, as would the fact that our own soldiers are routinely informed that “everyone breaks eventually.” Moreover, if it really is ineffectual, why does it continue to happen? Clearly, somebody somewhere is getting results.

Even leaving aside the efficacy vel non of torture, does it hold such moral deficiency as to abandon it altogether? Here I plead ignorance because, in my mind, I view enemies to my country as enemies to my family. By that I mean, if anyone were to hurt, or even threaten to hurt, a member of my family, I can’t even begin to express the unholy hell I would visit upon such a cretin. When I view A Time To Kill I can’t help but think that that the murderous, rapist scum got off too lightly (which, of course, was the point of Grisham’s characterization). Other than the fear of anything nefarious happening to my children, my greatest fear is of what I would try to do to those who hurt them or even suggested that they might do so. I have the same feeling when it comes to anyone who seeks to destroy my country and her citizens with whom I’ve (gratefully) cast my lot. My morality directs me to say that what any of you visit upon the least of my fellow countrymen, I will repay you a thousandfold and more. That may be my Irish bravado speaking, but it speaks as honestly as any man possibly can.

So I am left with the conundrum of how my actions in response to an attack on my family should be any different than an attack on my country, and why I should feel any differently about the perpetrators of such actions, whether they have followed through with their plans or not. I understand that my response — i.e. the sanctioning of “torture” — may not be entirely rational. Indeed, if a firetruck runs over my child while rushing to save an orphanage, I would feel no less grief, and probably wish an equal amount of horror upon the transgressors as I would upon 19 hijackers who murdered 3,000 of of my fellow citizens. In fact, probably more. There is nothing particularly rational in such a response. But I have little confidence that, should I have the chance to avoid either disaster, I would refrain from running the perpetrators’ minds through a psychological cheese grater if there was even a small chance that the disaster could be avoided. That may be little more than a testament to my weakness as a moral human being, but I think that I’m not alone.

Torture, however defined, is not a pretty thing. I make no bones about having zero regard for my enemies (i.e. those who want to destroy my country a la 9/11). If subjecting them to extreme psychological and/or physical discomfort, or the threat of such, will prevent further attacks, then I confess that I am happy to reward those monsters with the penalty they richly deserve. I accept that I may be wrong in such thinking, but I don’t find that case has been successfully made as of yet. Indeed, I defy you to take this test and declare that “torture” can never be acceptable.

The ultimate point is, torture is a horrible thing and should be avoided if at all humanly possible. But, unfortunately, we live in a world where the “humanly possible” has limits. In those cases, why is it that torture should be off limits? Is there a rational reason? I’m willing to be convinced, but I have my doubts.