Barry Eisler

Thursday, October 11, 2007

More on Torture

The subject of torture is much in the news again: the New York Times reports on a series of secret Justice Department opinions; The Economist runs a weekly article on the balance of security and civil liberties; Bret Stephens of the Wall Street Journal responds to The Economist; and former President Carter unequivocally claims the US tortures prisoners (no "detainees are subjected to enhanced/alternative/aggressive/harsh interrogation techniques" passive voice doublespeak for Carter).

Let's see if we can get to the heart of the matter.

Bret Stephens devoted a fair amount of his column's space to trying to define torture, discussing needles under fingernails, blows to the head, stress positions, hooding, subjection to noise, sleep deprivation, and deprivation of food and water, plus combinations thereof.

(BTW, most of the commentary on blows to the head during interrogation describes the blows as "slaps." My sense is that the word slap is chosen deliberately because slaps seem relatively insignificant (see also Vice President Cheney describing waterboarding as "a dunking"). I respectfully submit that anyone who argues a slap is no big deal either is being disingenuous, or has never been slapped by someone who knows what he's doing.)

I've argued before that opinions about what constitutes torture will never be entirely objective. Maybe the way to avoid, or at least ameliorate the subjectivity inherent in the topic is to avoid trying to define the practice altogether. I think focusing too much on a definition won't, in the end, be any more productive than attempts to define terrorism. I also think the focus on a definition is misleading. A better focus would emerge if we try to answer the following question:

How do we reasonably expect American prisoners of war to be treated by the enemy? Whatever the answer, that's the way we ought to be treating enemy POWs.

Why? Two reasons. First is the classic one: we want to encourage the enemy to reciprocate. Second, the more fundamental one: how we treat enemies is a critical part of how we view ourselves.

The reciprocity argument is marginal when the enemy is al Qaeda. Still, it's worth noting that there must be reasons beyond reciprocity that we don't want to torture prisoners. Otherwise, presumably we would be comfortable beheading captured jihadists and videotaping the beheadings, too, simply because that's what the other side does. Which is another way of saying that no matter what the other side does, there is a code of behavior we will abide by purely because of who we are. And I can't think of any better way to arrive at that code than by reference to the treatment we reasonably expect to be extended to American POWs. Anything else would be hypocritical at best.

If you agree with me, you'll have a hard time countenancing blows to the head, stress positions, hypothermia, and all the rest -- unless you think it's okay for American POWs to be treated this way, too.

But torture saves lives, proponents say. And that's what counts.

Well, it's not the only thing that counts, is it? If saving lives is the only value at stake, what meaning is there is phrases like "live free or die," "give me liberty or give me death," and "death before dishonor"?

Regardless, I'm not convinced of the benefits of torture -- and even if I were, I'd also want to inquire into its costs. By way of analogy: in our criminal justice system, we incarcerate people only upon proof beyond a reasonable doubt. That's an exceptionally high standard, and without question permits countless criminals to go free -- many of them, doubtless, to commit other crimes, including murder. If we relaxed the standard, we would put more murderers behind bars, and in doing so we would certainly save lives. But we don't -- apparently because we recognize that the standard of proof beyond a reasonable doubt has inherent value, even at the cost of lives.

If you wanted to relax the burden of proof in criminal law, you'd have to argue that whatever benefits we derive from the standard as a society are outweighed by the crimes committed by criminals who the standard keeps out of prison. Similarly, if you think Americans should treat prisoners other than the way we expect American POWs to be treated, you'd have to argue that the benefits of such a course would exceed the cost of our hypocrisy. Whether or not what they call for amounts to "torture," I don't think proponents have adequately made this case.
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24 Comments:

Blogger Steven said...

I am completely disgusted with the practice of looking at decisions as having ONLY a downside.

Barry, your treatment of the "torture saves lives" mantra is one example. The Bush administration simply states that there would be a downside if we did not torture (while at the same time claiming that we do NOT torture), and ignores the downside of our current unconscionable practice. Similarly, all the reasons cited by the administration for staying in Iraq (correctly stating that horrible things would happen if we left) neglect to consider the horrible things that are happening with us there.

Changing the subject just a little, why is anyone believing the administration when it claims that lives have been saved? Let's call them on it and demand proof. The response will be an assertion that the proof is classified...

Thursday, October 11, 2007 5:34:00 PM  
Blogger Janet said...

Well said. There is a point where the price is just too high to pay. If the price is becoming the same thing as the enemy, it's too high. "Do unto others" has been a core value of our society for a long time: very imperfectly observed, but better abused than discarded.

I'm glad you brought up the presumption of innocence also. This is a value that I consider so fundamental to our society that it can not be cast aside without transforming it beyond recognition. It is the first line of defense against tyranny.

Thursday, October 11, 2007 5:47:00 PM  
Anonymous Chris said...

One fault that I see with you rationale here is that our enemies have shown that they will not treat US POW's the same way that we treat POW's. If they did, this whole debate might not be necessary. Our enemies have shown that they have no problem murdering POW's, whether or not they are military or civilian. Daniel Pearl was a reporter and they beheaded him. What do you think they would do to a military member that was fighting against them? Kill them then boobytrap the bodies, something they have done in the past.

You said something about the way we treat prisoners because " there is a code of behavior we will abide by purely because of who we are." I will agree that this is a true statement. But there probably are times that we must decide that we are going to have to quit playing nice. I believe that there are times that torture would be necessary.

Let me ask you this. It is Sept 9th, 2001. You have captured one or more of the 9/11 hijackers and you know they are planning to attack America, you just don't know when or where. Would you read them their Miranda rights and hope they talk because you are nice to them or would you do what is necessary to obtain the information that you need to defend America?

"But torture saves lives, proponents say. And that's what counts.

Well, it's not the only thing that counts, is it? If saving lives is the only value at stake, what meaning is there is phrases like "live free or die," "give me liberty or give me death," and "death before dishonor"?"

I respectfully submit that you are using these phrases out of context.

The situations in which the first two phrases were used had nothing to do with torture. They referred to standing up to tyranny and if necessary, sacrificing your life in order to defend you nation and keep your freedom.

I support torture, but not for the sake of inflicting injury to your enemy because you can. I believe that there are times when it should be used and in those cases, the US should do what it has to do in order to protect itself.

Thursday, October 11, 2007 5:55:00 PM  
Anonymous Ben said...

we had a discussion in class about this and somehow the ending conclusion was, "there's torture...and then there's torture".

there's the "slapping", "dunking", sleep/food deprivation, stress positions...etc.

then you have the pull your nails out one by one, a black and decker drill in the knee caps, beheading, blow torch to skin...etc.

oddly enough most agreed that while torture is just plain wrong it'll still happen regardless because there will always be people that think it'll justify some sort of means. so as it turns out, our class decided that getting slapped, dunked, starved and stressed still beat getting some happy guy with a black and decker drill/blow torch combo.

Thursday, October 11, 2007 6:35:00 PM  
Anonymous Thomas Rohde said...

There are two things that I think of when the subject of torture arises. One is the value of any "information" that is derived from that interrogation. It becomes a case of telling what one's interrogator wants to hear so they stop hurting you instead of a case of telling the actual truth. With the alleviation of pain as a motivation, the motivator starts out wanting to get the prisoner to say a certain thing and then, the prisoner will eventually say that certain thing to get the motivator to stop causing them pain. This is why confessions under duress are not admissable in a court of law. I don't see why international wartime situations should be any different.

The second thing is a variation on "Take care when hunting monsters that you don't become a monster yourself." If Al Queada beheads their prisoners on camera and then broadcasts it, it does our cause no good to reciprocate in kind. It dishonors us to stoop to such levels, as well as those who were captured and victimized in such a way.

This was a well reasoned piece Barry. I don't always agree with your point of view, but it wouldn't be a discussion if I did.

Thursday, October 11, 2007 10:17:00 PM  
Blogger Joshua said...

I think anyone who identifies themself as Christian and believes in torture in any sense of the definition of the world is a huge flapping hypocrite.

So that's what I think of our President and those that work for him.

And did you hear recently of the WWII Interogators coming out to say they got more information out of their prisoners by playing chess than anything else . . . and that torture wouldn't work.

I don't think McCain gave up any info in Nam while he was a prisoner for five years, and tortured.

It's against the law for a reason, it's sick, it doesn't work and it's too easily abused.

Thursday, October 11, 2007 10:22:00 PM  
Blogger Rob Pugh said...

Spot on. America shouldn't torture because we are supposed to be better than that. Our standards of behavior are supposed to be superior and our way is supposed to be better.

The whole unstated verboten rationale for our mideast interventions is that we're bringing democracy and a better way of life to people. If our "better way" is that our torture isn't as bad as "their torture" it's pretty much a wash.

I can't help but think that all these pro-torture the-clock-is-counting-down-scenario types may have seen too many episodes of 24, and gotten confused.

Thursday, October 11, 2007 10:34:00 PM  
Blogger wendy said...

I agree. Even if you thought tortured people would suddenly want to help your cause, I would be afraid to let the torturers come home.

Thursday, October 11, 2007 10:52:00 PM  
Blogger ZenPupDog said...

NPR cited the nutcase kidnapper who had buried a child alive is the one situation I believe torture seemed to work. Seemed is the operative here. I think it's too easy to get disinformation by using it. There has to be a better way forward.

I'm unimpressed enough by the 'Swift Boat' crowd of chickenhawks who advised the president to view their defense/denial in a skeptical light.

Thursday, October 11, 2007 11:49:00 PM  
Anonymous Gabby said...

Everyone should know and abide by the international law of the rights of human beings, regardless of color,race, or creed. There seems to be a very loose interpretation of human rights by both sides of any war. Interpretations that fit the moment, the climate, the media, and our egos. As a nation we can no longer look in the mirror and justify any acts of violence! We need to follow our own code of conduct no matter what the price! It is the only non negotiable shred of decency we have left.

Thursday, October 11, 2007 11:56:00 PM  
Blogger PBI said...

There is no evidence that torture works at all, and as Joshua references with regard to the WWII interrogators, most success comes from building a rapport with the prisoner, not through inflicting pain until he will declare and say anything in order to get relief. Khaled Sheik Mohammed, for instance, is acknowledged to have been tortured, and as revealed in "The One Percent Doctrine" (which I highly recommend), confessed to pretty much every crime or plot he could think of, real, imaginary, past, present or future.

The most pernicious defense of torture is usually encapsulated in the "ticking time bomb" scenario, a variation of which Chris uses in his comment. The underlying problem with this argument is this: in real life, all of the facts that precede the last, crucial piece of knowledge - what is planned, where it is to take place, when, and by whom - are precisely those facts which an interrogator will be in the process of discovering. It is complete fantasy to think that an interrogator will have all the answers, except for one, despite what Hollywood might depict and what might show up on "24." (Has anyone else noticed the ludicrous use of Jack Bauer as an argument to bolster policy positions by GOP candidates?)

In real life, it is much more likely that it will be known that something terrible is going to happen, but the nature of it will be elusive. The city where it is to take place might be known, and we might know that it's probably going to happen "very soon," or "within the next week," and we might be somewhat certain that a particular individual knows the details of the plot, but it is only in comic books and movies that we would know with absolute certainty that that person has the single piece of information we happen to be missing, and that whatever was extracted under torture would be reliable in any way.

Few things have horrified me more since George W. Bush took office than the fact that we are debating what kinds of torture are acceptable. Just a few years ago, the debate - if there was any debate at all - would have been whether to imprison torturers with the possibility of parole or without. It is a measure of the effectiveness of the fearmongering that has come from the leadership of this country that we have fallen as far as we have, and with all due respect, Chris, Barry is not using the phrases you reference out of context in the least.

In colonial times - just as in World War II - this nation and the people who founded it and defended it were facing death and the destruction of their very way of life from foes fully capable of ending the United States as an independent state. The idea that al-Qaeda is somehow capable of inflicting anything like the damage that a King George III or an Adolph Hitler could have inflicted doesn't stand up under close examination. Despite the current adminstrations consistent declarations that the fight against "terrorism" is the defining conflict of our times, it very clearly isn't. If it were, there would be a draft, and the president would have actually asked people to pitch in rather than telling them to go shopping.

As a people, we are judged by how well we live up to the principles we expound and to which we aspire, not just when it is easy to do so, but when it is hardest. By allowing our government to unjustly imprison and torture in our name we fail both our nation and ourselves.

Friday, October 12, 2007 9:01:00 AM  
Blogger Julia said...

I agree with you - how can we defend ourselves as a country when the morals that make this country what it is are being sledge hammered out from under us? Also, we could ask, does torture really work? Especially on someone who believes that if they die, they will go to heaven as a martyr? I assume the whole idea of torture is to create a fear of death to a point that the person says what is true. But, how does one make someone who is ready to embrace death, fear it?

Friday, October 12, 2007 10:25:00 AM  
Blogger PBI said...

zenpupdog said: "NPR cited the nutcase kidnapper who had buried a child alive is the one situation I believe torture seemed to work."

FYI - This is a hypothetical, not something that has ever actually happened. The buried child scenario first popped up (I think) in an article by Alan Dershowitz, and it still falls victim to the problems I cited with the ticking time bomb: Do we have the right person? Do we know for sure he knows what we need to know? If not, how certain do we have to be in order for torture to be acceptable? Does 50% certainty justify torture? Twenty percent? Etc., etc.

I know you weren't advocating torture based on this scenario - I just wanted to clarify that, at least to the best of my knowledge, the buried child scenario is not a real event.

Paul
Sensen No Sen

Friday, October 12, 2007 10:33:00 AM  
Blogger JA Konrath said...

I don't believe any form of torture should be used which hasn't been personally tested on the authorities who condone that form of torture. If Bush can withstand four minutes of waterboarding, he's allowed to use it.

Monday, October 15, 2007 4:05:00 PM  
Blogger Sean said...

pbi said: "There is no evidence that torture works at all..."

Not true in the least, especially if one is to argue that torture can (and does) extend beyond physical manipulation. Information gathered from a military interrogation is collected, dissected, and pieced together all often in the same session. How a commander interprets that data and utilize it to accomplish their objective is more or less tantamount to said torture working in some respect.

The article you mention is erstwhile in that it cites examples of one credible side interrogating the military personnel of another credible side in a war largely the result of expanding empires bumping into one another. The "War on Terror" is no credible war. It's the flailing attempt of the US government to clean up all the messes that came back to haunt it. You know those messes in history - all the various terrorist groups the US armed and propped up in the Mid-East, Afghanistan, and South America? Cold War ends, Russia pulls out of Afghanistan, hence our support for the jihadists there also end abruptly, then we wonder why we're going back 15 years later to clean up.

"In colonial times - just as in World War II - this nation and the people who founded it and defended it were facing death and the destruction of their very way of life from foes fully capable of ending the United States as an independent state."

In the truly woolly days of the 1800's, the US was truly faced with strategic external threats to its homeland. World War II? Not nearly in the same way you described it. The Germans and Japanese Empire threated the very way of life for the US? Sure, if you consider those two external threats as stop blocks to the economic expansion of the US, which would have affected our very way of life. No, it's in American propaganda the US and the world at large were going to to be swallowed up by the Axis powers. The moral clarity used to justify the US entrance into the war was a brilliant way to mobilize the US population into supporting it as well.

"Despite the current adminstrations consistent declarations that the fight against "terrorism" is the defining conflict of our times, it very clearly isn't."

Really? Considering how the US justified WW2, Korea, Vietnam, the First Gulf War, and also the "war on terrorism", this "defining conflict" seems to fall right in line with the past wars the US has involved itself in. Just because the reasons justified for an invasion of Iraq or torture are largely flat and and full of holes, that still doesn't deny the fact there has been a culture of fear instituted in America. That culture of fear is used to justify all sorts of strategic US actions.

Is it largely BS? Yes, as is the vast majority of justifications given for just about every other war the US has started or involved itself in.

Saturday, October 20, 2007 7:47:00 PM  
Blogger PBI said...

Sean,

You seem to be conflating interrogation with torture. The two are not the same, and while there may have been instances when information extracted under torture has been accurate, timely, dependable and actionable, they are the exception that proves the rule. You can only threaten a human being so much before you have nowhere else to go, and no way to escalate the threat. Men who are prepared to die don't find being killed threatening, and when we do things like assert that we will murder or maim Khaled Sheik Mohammed's CHILDREN (we did) we very quickly run out of options.

I have no disagreement on the roots of the current conflict at all, but I think you are off the mark with regard to the relevance of the thoughts of the WWII interrogators. Even in today's world, with what you term "non-credible" adversaries, there have been repeated admonitions that the biggest successes in terms of gathering information have come not through torture, but through sophisticated interrogation techniques that build rapport. In fact, there is a school of thought that I find highly credible which says that non-torturing interrogation is actually MORE effective with "irregulars" and fanatics than with the regular troops of an opposing state. The basis for that asertion is that people like those who adhere to al-Qaeda have been indoctrinated with the idea that the U.S. is the Great Satan, and they expect to be mistreated when captured. They are prepared to resist and they have been given training in how to disclose information, but when they find that, instead of being waterboarded, they are interrogated humanely by what appears to be a reasonable human being who builds a relationship, they aren't ready to deal with this approach.

I grant you some of what you assert about the level of threat associated with the Axis powers, but had they been victorious in spreading their empires throughout Europe and Asia, it is hardly inconceivable that we would have been next on the list. Pearl Harbor - whatever one believes about FDR's level of foreknowledge - was, legitimately an attack on American soil by a foreign military force. That said, my purpose in using the Japan and Germany of the 1940's was to be illustrative of the scale of the ability to project military power that constitutes a genuine threat. Al-Qaeda simply doesn't have the ability to inflict the kind of damage that a Germany or Japan or a Cold War Soviet Union had. And even if you want to define threat as "obstacles to hegemony" the ability of any of those enemies far exceeds what our current opponents can manage.

Really? Considering how the US justified WW2, Korea, Vietnam, the First Gulf War, and also the "war on terrorism", this "defining conflict" seems to fall right in line with the past wars the US has involved itself in. Just because the reasons justified for an invasion of Iraq or torture are largely flat and and full of holes, that still doesn't deny the fact there has been a culture of fear instituted in America. That culture of fear is used to justify all sorts of strategic US actions.

Is it largely BS? Yes, as is the vast majority of justifications given for just about every other war the US has started or involved itself in.


I would have to respond, "Really." : )

I don't believe that we have had a national conflict since World War II, and I was speaking more to the way that wars in which we engage affect daily life in a substantive manner than about the zeitgeist they engender. Neither Vietnam, Korea or Gulf War I - or the Iraq War for that matter - required rationing or universal conscription, two things that I believe are highly indicative of whether a given war truly (sorry, Barry - I know you hate that word) represents a conflict that exacts changes to the very way of life we experience as a nation. (One can make the case that Vietnam affected life in the United States, but it did so largely on the political front.)

As for the "largely BS?" portion of your comment, I tend to agree, and it is why I level World War II as the last "defining conflict" we have experienced. There is indeed a culture of fear fed by collective ignorance in this country that frequently lets our leaders pull us around by the nose and be stampeded into stupid decisions, but that doesn't mean there aren't different levels of BS. If al-Qaeda were an honest threat to the existence of the United States, I have to believe that at least ONE of Mitt Romney's five military age sons would have enlisted. ; )

Best,
Paul
Sensen No Sen

Monday, October 22, 2007 9:18:00 AM  
Blogger Barry said...

No worries, Paul, I only hate "truly" when it's misused... :)

Here's an article on the subject I found persuasive:

http://www.post-gazette.com/pg/07294/826876-35.stm

Cheers,
Barry

Monday, October 22, 2007 11:41:00 AM  
Blogger JJ Cooper said...

Hi all,

As a former Military Interrogator I hope I can add some value here.

First with the references made regarding the information obtained by the WWII Interrogators above. True they were able to gain valuable information by building rapport with their prisoners and using a softer approach. They were able to do this because they weren't chasing information of immediate tactical value. This was a stragic facility and it is likely that the prisoners they received had already been interrogated closer to the front lines. These were technical interrogations where there was ample time to build rapport and more thorough strategies for the interrogations. Had these interrogators been on the front lines it is unlikely they would have been taking the scientists out for steaks.

Torture under any circumstance cannot be justified. Interrogators from countries who are signatories to the GC's must abide by them.

JJ

Wednesday, October 24, 2007 4:21:00 AM  
Blogger PBI said...

J.J.,

I don't dount that there is a significant difference between strategic and tactical interrogation. My concerns are that we seem to be using the worst elements of tactical interrogation to the exclusion of pretty much all else.

From your post, you seem to imply that there are effective, non-torturing methods for interrogation at the tactical level. Can you shed any light?

Thanks,
Paul
Sensen No Sen

Wednesday, October 24, 2007 8:48:00 AM  
Blogger Joshua said...

Paul,

Extremely well writ, sir.

JJ, I am also very interested in hearing more . . .

Wednesday, October 24, 2007 1:23:00 PM  
Blogger PBI said...

Thanks, Joshua.

A friend of mine forwarded me a link to an article that I think is timely, authoritative and illuminating: Waterboarding is Torture... Period. It pretty much kicks the legs out from under apologists and wafflers like Michael Mukasey.

Best,
Paul
Sensen No Sen

Monday, October 29, 2007 12:43:00 PM  
Blogger Lee Morrison said...

As always, I'm glad I stopped by, Barry. I enjoy reading your view on issues. Thanks for taking the time to post your thoughts.

Sunday, November 04, 2007 7:14:00 AM  
Blogger Mark Terry said...

"Second, the more fundamental one: how we treat enemies is a critical part of how we view ourselves."

Actually, I think this (to get to the heart of the matter) should be rephrased:

"How we treat enemies is a critical part of who we are."

Tuesday, November 06, 2007 1:36:00 PM  
Anonymous Timothy said...

Hey Barry,
Great Blog. I too have found myself disappointed with the development in America's use of torture over the past several years. Rumsfeld's comments regarding stress positions and his comparison to working on his feet all day leave me believing that most in the administration and our own population don't really understand what is being discussed when we find passive terms for them.

Beyond the belief that sometimes torture is justifies, which I simply have not found any evidence to support, I would argue that America has a moral obligation to cease using torture.
An interesting book I finished sometime ago, Torture: Religious Ethics and National Security, expounds on the dangers of using torture from both a national security standpoint, and a moral standpoint.
One of the most startling revelations is the authors belief that torture when inflicted on another human being does not simply scar the body. It scars the soul. Through his case studies we see dozens of people who after being subjected to torture by repressive governments were never able to recover. They were fundamentally altered, damaged, in a way that could never be healed. Many of these individuals who were writers, poets, journalists, went on to commit suicide after trying unsuccessfully to move beyond their experience for decades. They never stopped being tortured.

In an environment where we cannot truly say we are even torturing the right people for information, how can we continue its use knowing that the person we inflict it on will never again be the same?

Wednesday, November 07, 2007 12:27:00 PM  

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