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April 20, 2009

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FrankMCook

Not long ago I read "the People of the Book" a fictional history of the Sarajevo Haggadah. I was chilled reading a description of water boarding by the Spanish Inquisition. What really bothered me was the realization that my country had adopted the tactics used to drive not only the Jews but also the "Moors" from Spain. How could we be so stupid? Did no one recognize that in a part of the world that still remembers the Crusades, this too would be associated with past grievances?

Account Deleted

Even when a person is sentenced to capital punishment for committing the most heinous crime, a civilized society demands that the method of execution must be as painless and swift as possible to the condemned person. Even the lethal injection which is widely used in this country has been challenged countless times in the Supreme Court for the cruelty it is supposed to inflict during the last few moments of the executed person's life.

One wonders what sort of mental makeup the interrogator should have to sit quietly in his chair (possibly with a Cuban cigar dangling from his mouth), supervise the prisoner being water-boarded 183 times and enjoy watching him undergo death throes 183 times. What is the difference between the acts of these interrogators and those of the notorious Nazi concentration camp guards who are being hounded from their deathbeds to be brought to justice even after six decades, day in day out?

Do the ends always justify the means?

BTW, what was the motive behind Obama's move to make these memos public, if he has no intention to punish, not the CIA underlings who acted under orders, but at least those higher up in the chain of command who justified these methods of interrogation and issued the orders to carry them out? Was it just to paint and portray his predecessor in the worst light possible?

rtm

Thank you Professor Harcourt for the thought provoking post. A few points. The assumption that “torturous interrogation works” seems highly plausible to me. Whether I consider the observations of Americans who have endured torture in war (e.g., McCain and Stockdale in Vietnam) or simply reflect on my own propensity to modify behavior when confronted with the prospect of pain, I believe that most humans have a “breaking point” beyond which – for better or worse - they will say or do whatever will stop or prevent the pain. Outliers (perhaps Abu Zubaydah) provide interesting data points but probably shouldn’t lead us to throw away what we know about human nature. I could be persuaded otherwise, but do think that we should give the benefit of the doubt to Posner and Vermeule on this point.

More contentiously – apologies – I think it worthwhile to consider a natural counterpart to the torture memos in the recent news cycle, the rescue of Capt. Phillips (or the execution of three pirates); compare and contrast. The pirates were primarily looking to make money whereas the terrorists that we torture are ostensibly looking to inflict pain and suffering on Americans. We killed the pirates; we inflict pain and suffering on terrorists, but presumably only to gather information and, generally, not to the point of permanently injuring them. The three dead pirates threatened the life of one American; the terrorists may well have had knowledge of plots that threatened thousands of Americans (or others, no preference for Americans intended). Pirates dead; terrorists alive. Popular verdict: pirates deserved what they got and terrorists are victims.

It seems that all of this deals with horror and tragedy. As well-meaning people, we would naturally prefer a world without terrorists or pirates. Given, however, that ours is populated with both, we need to deal with it as best we can. If we capture Bin Laden tomorrow, I would hope that he would cooperate fully without choosing to resist, thereby inviting torture. But supposing he wants to persevere in his “righteous” path of threatening non-combatants, where do we draw the line regarding amount of coercion we can impose on him? We can debate “optimal deterrence” until the end of time but the folks across the interrogation table are trying to save lives and are faced with a man who would rather give up his left pinky than divulge plots that threaten thousands of innocent Americans. They don’t have until the end of time. In such a case, I would think it unfortunate if they didn’t challenge his allegiance to the other nine fingers.

Joe

In fact, rtm, as some accounts have shown, a reading history (and McCain says this too) suggests that repeatedly people give false information to avoid torture. This is seen in many domestic false interrogation cases too, under much less stressful conditions than these.

Likewise, facts underline that "generally, not to the point of permanently injuring them" is also misleading at best. Some "interrogated" have died. Others DID have permanent physical and mental injuries.

The pirates were shot because an innocent was at the moment in clear risk of life and limb. They were not waterboarded or toyed with like a mouse in the grasp of a cat. The "terrorists" (we only questioned guilty people in this fashion? again, sorry, not true) were not, and in fact, supplied information to deal with risks (the captain in a sense WAS a sort of ticking time bomb) without torture.

Finally, bans on torture are a result of long history that underlines inhumanity does not lead to productive ends in the long run. Fantasies of crushing the fingers of Bin Ladin aside.

mls

I agree with the concept of a necessity regime, but the determination of necessity should not be made by the CIA agents who are conducting the interrogation. The determination of necessity should be made by the President, who has the constitutional responsiblity to protect the United States from attack. Just as the President can order an assasination by authorizing a covert action (which requires notice to congressional leaders), so should he be able to authorize the use of torture with a special finding as to the need therefor and the methods authorized.

If Congress doesn't like it, the Constitution provides it a remedy.

There is no reason why the CIA agents who were doing their jobs should be made into scapegoats.

Ursula

mis, I think you must be misunderstanding the nature of the 'necessity' discussed here; it's generally an affirmative defense to criminal charges. The President can't determine 'necessity' in this context any more than anyone other than a jury can.

And I have to agree that given our accession to the Convention Against Torture, the default assumption needs to be that torture is unjustified and the party charged should have the burden of rebutting that presumption. These are, after all, people's lives that we're talking about; is almost drowning a man 183 times (not to mention wall-standing, sleep deprivation, etc. etc.) worth whatever information we might get from him?

mls

Ursula- I do understand the nature of the necessity defense that is being discussed. My point is that it makes no sense to leave the determination of necessity up to the CIA interrogators. In the first place, it seems rather unfair to leave them in the position of weighing the possibility of losing their careers and freedom against the risk to the lives of thousands of their fellow citizens. Suppose they decide not to use illegal (or arguably illegal) interrogation techniques and there were to be another terrorist attack. Who is going to protect them against the inevitable charge that they put their own personal interests ahead of the public safety?

Second, unless time constraints make it impossible to elevate the decision to the presidential level (which was certainly not the case in any of the situations we are discussing), surely such a momentous decision must be made by the man (or woman) elected by the people to exercise the executive power. This is why the framers gave us a president. If the President has to give authorization before the Navy Seals can shoot pirates on the high seas, why wouldn’t he also have to authorize the use of torture?

Lets take another analogy. After the 1998 embassy bombings, President Clinton ordered missile strikes on Afghanistan and on a plant in Sudan that allegedly had Al Qaeda connections. It turned out that the target in Sudan was a mistake, and some unlucky fellow ended up dead as a result.

Suppose that there had been a comparable level of outrage following that incident (fortunately there wasn’t since I guess the deceased wasn’t as sympathetic a character as KSM). It is not at all obvious that Clinton had legal authority to fire missiles into Sudan, and people could have argued that his actions were illegal and even criminal. Congress could have impeached him and perhaps he even could have been tried criminally. But surely no one would argue that the soldiers who fired the missiles could or should have been held legally responsible.

I can’t see any reason why the same type of regime should not apply here.

Joe

"another analogy"

Another poor analogy. A decision to bomb some place is not akin to torturing prisoners. It is a specific act with unique long held horror, even if you personally think that uniqueness is lame.

And, it is unclear why regular soldiers, who can be under 21, are in various cases required to do "weighing," while much older and trained CIA agents are not. Some are in jail for failing, following principles of long standing. CIA agents, if anything less liable to be restrained in some respects given the military encourages a certain restraint the CIA might not, should have more discretion? Why exactly?

And, torture is against U.S. statutory law, it is surely against constitutional law, it is against int'l law too. The Constitution, that you are the one who want to change, requires the President to execute the law.

The President has no authority to "authorize the use of torture."

Joe

"discretion" here means discretion in fact, since they would be under less restraint given less liability in the long run

mls

Joe- first, I assume that you are the same Joe who frequents Balkinization, and wandered over here from there. (So did I, though this is my alma mater).

Second, I accept the sincerity of your revulsion at the interrogation techniques that were used by the CIA. However, it is difficult to have a rational discussion if you are unwilling to consider that your perspective is not the only possible one. It is like trying to discuss abortion with someone who is unwilling to consider the possibility that abortion is not exactly like cold-blooded murder.

Assertions like “a decision to bomb some place is not akin to torturing prisoners” do not constitute persuasive or logical argument. Why is a decision “to bomb some place” not akin to “torturing prisoners”? Does it matter that the “some place” is known to contain innocent civilians? Does it matter whether there is a good reason (or lawful authority) for the decision to bomb “some place”? Does it matter that the reason for “torturing prisoners” is not for fun or revenge, but to obtain information needed to stop the prisoners, or their allies, from bombing “some place” where thousands of Americans might die?

Third, your view is presumably that there can be no necessity that would ever justify torture. That’s fine, but it is contrary to Professor Harcourt’s argument. If one accepts, per Professor Harcourt, that there can be necessity to justify the use of torture, my point is that there is no possible justification for leaving the determination of necessity to the CIA interrogators. The fact that military and law enforcement personnel must sometimes make (very different) types of necessity calculations is of no moment, because in those cases there is no alternative.

If there is a logical response to my argument, I have not yet heard it.

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