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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Monday, October 01, 2007

Getting Closer to War with Iran

I've written before about the chances for war between the US and Iran. Seymour Hersh lays out the latest in the October 8 New Yorker.

Consider a few items. First, the January 2002 Authorization for the Use of Military Force, which provides in part:

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States...

Next, the Kyl-Lieberman amendment, passed on September 27, which designates Iran's Revolutionary Guards as a foreign terrorist organization.

Third, General Petraeus and Ambassador Crocker have both testified that Iran is arming Iraqis against the United States (President Bush has made similar points, of course, but his credibility on such matters isn't high, which is why the White House has gone to such lengths to build up and rely upon the credibility of General Petraeus).

Add it all up, and you can see what's coming. The White House, claiming inherent authority under the Constitution, plus statutory authority pursuant to the Jan 2002 AUMF and Kyl-Lieberman, launches limited air strikes inside Iran against what it claims are terrorist targets. Iran hits back. America's blood gets up, and the White House now has the political capital to widen its campaign against Iran. Congressional Democrats, already caving in to Republican pressure on such nonsense as a bill suggesting that every single member of the US armed forces is possessed of unassailable honor and integrity and on Kyl-Lieberman itself, do nothing -- or perhaps pass a few new enabling resolutions. The situation worsens in Iraq, and the White House expands its rhetorical campaign against Iran, arguing that success in Iran has become the key to success in Iraq (and perhaps in Afghanistan, as well). The worse things become overall, the more important it becomes to escalate (sound familiar, albeit strange? It's the history of the political-military dynamic in Iraq). The war with Iran, ostensibly initiated to protect our troops in Iraq, is now about the destruction of Iran's nuclear program. Because Iran really has such a program, the ostensible purpose of the war with Iraq -- WMDs -- is, in a byzantine way, fulfilled.

How can you tell the war is going to happen? First, ask who wants it to happen. Then ask who could stop it.

Who wants it to happen? President Bush and Vice President Cheney, as described here.

Who could stop it? Congressional Democrats? Based on their supine record since taking both Congress and the Senate, I think not.

Congressional Republicans? Maybe, because they have the most to lose, electorally speaking. But do they? The Republicans are already going to be hammered in '08... so why not play double or nothing, shake up the state of play and see what happens? When you look at it this way, you realize that Congressional Republicans might look at gambling on another war as worth a roll of the dice.

Who's left? Possibly the US military itself, strangely enough. But by starting small and claiming strikes inside Iran are only in support of US forces in Iraq, the White House could bypass and ultimately co-opt military objections, too.

It's hard to imagine a war with Iran will go well, given the Bush administration's demonstrated incompetence in waging the two currently on its plate. If things go badly, I wonder what sort of societal backlash we'll see domestically. Supporters of the White House, the war in Iraq, and a new war in Iran will need to find a reason for our failures. What will they seize on?

Get ready.
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