Protecting the wrong people

After listening to an insane amount of self righteous demagoguery involving the McCain amendment (Cheney as Torquemada) I’ve found myself supporting the amendment less and less. Primarily I think this is because the arguments employed all generally involve a certain degree of bait-and-switch. When sound moral arguments are employed to question the wisdom of disallowing all “torture”, proponents of the McCain bill shift to a legalistic argument invoking the third Geneva convention as if it’s Mosaic law. And when this is questioned the argument seamlessly shifts to anyone who is against the McCain amendment is implicitly pro-torture. There are many strong arguments against torture I agree with and would cause me to support regulation to limit torture as much as possible but none are convincing enough to persuade me that the human rights of an evil person trump those of their present and future victims. While torture may be ineffective in 99 out of 100 situations, should a situation arise where depriving someone of sleep might help keep 50 people from being blown up; well then let the Christina Aguilera blast away.

But wouldn’t this be a war crime? Article 4 or the Third Geneva convention clearly states that treaty protections only extend to:

o "Members of the armed forces"

o "militias...including those of organized resistance movements...having a fixed distinctive sign recognizable at a distance...conducting their operations in accordance with the laws and customs of war"

o "Persons who accompany the armed forces"

o "Members of crews...of the merchant marine and the crews of civil aircraft"

o Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

I don’t see where anyone detained by the US in Afganistan or Iraq meet any of the criteria. The McCain ammendment goes far beyond the Geneva conventions though. If passed it would extend protections of the Fifth, Sixth, Eighth and Fourteenth Amendments.

Torture is a horrible thing but I think it’s too easy to lose track of who the real victims in this conflict are. I believe it would be far worse to instill a greater fear of legal consequence within those that are working to protect the innocent. This is a bad law backed up by bad arguments.

One other thing: I do want to briefly acknowledge just how f'd I think the Republican party is at present. While I think too much was made over NJ and Virginia continuing to have democratic Governors, all of Ahnuld's amendments being defeated and the House's inability to pass the most recent budget doesn't bode well for 2006. God I miss Newt...


Joe said...

It's not that I respect the terrorists' rights. It's that I want to maintain a distinction between myself and him. If we torture, we sell the farm.

Also, if torture is ok, how do we determine who should be tortured and who shouldn't? Isn't this a bit like the Monty Python Witch test? You said, "the rights of an evil person." Maybe if we had some sort of infallible "evil-o-meter" which could measure someone's moral decrepitude, I would be ok with the torture. But Isn't the very problem in question one of how to determine if these people are indeed evil? Sorry, but I'm not going to leave that determination up to the discretion of the military, the CIA, and the president any more than I would for a citizen.

I'm a utilitarian in almost all circumstances, but I'll draw the line here. I definitely see the validity of the argument against granting them POW status, but we shouldn't take that to mean that we can torture them. These guys are obviously not uniform military, but not all of them are terrorists either.

This is, obviously, not without cost. But there's no way to prevent that cost without paying a higher cost...our dignity (again, we already pay this cost all the time in our criminal justice system).

Ben said...

A few quick questions, and I promise, I'm not trying to sound like a smart ass.

Could you expand on the sound moral arguments for torture? I'm not at all clear on how a country could equate the evil person with their victims (potential or otherwise) by not participating in torture. What is the definition of torture that we're working with here? Keeping someone from sleeping or blasting music is discomfort and at most, a weak form of torture (I know Sully often sites it as a strong form of torture, but that weakens his case). From what I understand, McCain's bill is merely advocating using the Army handbook to define what is acceptable, which was the standard until 9/11. Is this no longer the case?

P.S. I found his example of the judicial ruling from Israel fairly compelling. If they can do it why can't we?

Andrew said...

Actually we do have an “evil-o-meter” and we can all take comfort that at the very least, putie-poot won’t ever be tortured by this administration. So what’s the big deal?

So since I’m attempting to explain why the McCain bill is bad policy in the face of the absolutist position that torture may never happen (exactly what this bill will accomplish) I have total freedom in defining my improbable, but not entirely impossible hypothetical dilemma. I choose to use a modified ticking-time-bomb, Die Hard 3 scenario where foreign terrorists plant a bomb (real bomb – not maple syrup) in a school within a large foreign metropolitan area (lets say Baghdad). One of the terrorists is taken into custody and the only way to get the information needed to save 300 or so children is to break the man’s will – perhaps using water boarding or stress positions. Am I way off in saying, yes this is a horrible moral dilemma but one where the answer is quite clear? 300 kids vs. the temporary discomfort of a single terrorist? If said suicide bomber was in the process of running into the school no one would seriously believe a moral dilemma exists over whether a soldier should shoot the bomber. Again, what makes torture, a less lethal means to the same ends, morally abhorrent?

I also want to address the idea that if we cross a certain line, in this case have certain forms of torture sanctioned under extremely specific situations, “we sell the farm”. This is empty rhetoric. Before 1949 the US and its enemies tortured the hell out of their POW’s. Torture not being a part of war is the overwhelming exception and not some new grim phenomena that will consign our society to it’s downfall. We somehow managed to hold together and avoid the “slippery slope” of sanctioning more widespread torture in the midst of 6 wars without the Geneva conventions or McCain. Furthermore since our enemies in Iraq started off taking heads from the start, the argument that somehow putting a stinky bag over a detainees head is going to somehow make things worse for soldiers that fall into enemies hands is also ridiculous. This is not to say that I think that the Geneva conventions are not a very good thing. Torture for the sake of retribution or amusement is already rightfully illegal under all circumstances. What I find unacceptable about the McCain bill is that it takes away a sometimes effective measure away “under all circumstances” as well as completely changing how we wage war. It will confer nearly all of the same protections to foreign terrorists that we currently enjoy as US citizens – legal protections vastly beyond what was conferred to regular members of the German army in WWII.

Here’s a better summary from Mark R. Levin:

The McCain Amendment doesn't merely codify interrogation requirements, as some of its advocates have suggested. It actually grants unlawful enemy combatants Fifth, Sixth, Eighth and Fourteenth Amendment protections under our Constitution. In past wars, such an approach would have been considered unthinkable - detrimental to our ability to successfully wage war. What's changed today? Is there any doubt that lawyers armed with these new legal rights will make interrogation extremely difficult? Does anyone honestly believe that this will curb allegations of torture? Is there any doubt that today's detainees are actually more dangerous than detainees of the past in that a single terrorist, properly armed, can unleash mass destruction on a U.S. city? So, why are we doing this? To prove our humanity? This is a major departure from our past practices during war-time.

To my way of thinking, protecting millions of innocent American citizens is far more humane than conferring rights -- beyond traditional rights -- on a particularly evil and lethal enemy. The purpose of detention, as understood throughout our history and under international treaties, is not punishment, but security. These people are detained for two reasons: 1. prevent them from returning to the battlefield in the midst of a war; 2. elicit information from the detainees to prevent future attacks on our homeland. I fear that we are now doing that for which we criticized the Clinton administration -- litigating the war on terrorism.

Quite simply, either Andrew Sullivan hasn’t bothered to brush up on the specifics of the McCain bill or he’s willfully misrepresenting what it is. As I’ve said before, I have absolutely no problem banning torture from all but the most extreme situations and was fully supportive of the bill until I realized its full scope. This bill has nothing to do with Abu Ghraib and has everything to do with infecting the war effort with crippling litigiousness for the sake of making us feel better about war. Is this what we want?

Andrew said...

Here is the text of the McCain torture ammendment.

Joe said...

The only problem with your example is that, if valid, it should apply to American citizens as well. If I had captured someone whom I knew had information about the Oklahoma City bombing before it happened, then by your logic, I would be justified in torturing him.

We have decided as a nation that this is wrong, despite the potential benefits of it. If we can't do it to our own citizens, what moral reasoning would allow us to do it to other people?

And I disagree that the notion that we give up, irrevocably, a portion of our dignity is "empty rhetoric." And perhaps your example from WWII demonstrates that we have already lost a lot of that dignity (the firebombing of Japan, which I learned about in the documentary The Fog of War, made me pretty ashamed to be an American).

You admit that your hypothetical situation is very unlikely. I'd like to highlight the unlikely aspects. First, I think it is unlikely that we will somehow "know" that someone knows something. I think, chances are, if we knew that they knew, we would already know what we wanted to know. I think it is likely that we will SUSPECT that many people know something that MIGHT be useful to us. Would torture be justified in that situation?

Andrew said...

Yes, from a purely moral perspective my example would apply to anyone, but like I addressed in my original post you’re attempting to switch from a moral to legalistic argument because no one can argue in good faith that to spare a terrorist discomfort is worth many lives. If torture was allowed to occur under extreme circumstances to enemy combatants a legal double standard would very much exist, but that would be in no way unique. Different sets of laws exist for different people in different places for a reason. At best, laws are nothing more than society’s best effort of finding a point of equilibrium between civil liberties and security needs. It should be no surprise then that this balance point should exist in a very different place within US society than it does in the context of a foreign war with a fanatical death cult. For example, during wartime someone guilty of desertion can be executed while it would be ridiculous to apply that same law to the 100’s of police officers who deserted their posts in NO despite the deadly consequences. Due to a host of regulations extending beyond the simple fact it’s extremely hard to acquire explosives or explosive precursors without drawing attention here it should be fairly obvious why the threat of domestic sourced terror carried out by US citizens is substantially less than terror sourced abroad and our laws should reflect this. Should our security situation change and lots of Oklahoma City bombings start occurring, I think it would be reasonable to expect our laws to become more martial in nature – possibly going as far as to include torture of citizen terrorists in extreme situations- until the threat was averted.

As for potentially losing national “dignity”, the motive, context and result of an action inform us far more of it’s morality soundness than the nature of the action alone. The terrorists shoot. We shoot. The terrorists bomb. We bomb. If ethical consideration stopped with actions we’d be morally equivalent; another argument that would be very difficult to make in good faith.

My Die Hard 3 example I previously used was far fetched because: A) It was the easiest way to make my point and B.) Absolutist arguments are rare from reasonable people and its fun to push the envelope. I could have used a real ticking time bomb example however to demonstrate the real possibility of such scenarios. Shortly after 9.11 when Khalid Shaikh Mohammed was apprehended “enhanced interrogation techniques” were credited in reports made available to the Senate Intelligence committee for potentially preventing a sequel to 9/11.

Torture lite has been a sparingly used but essential tool, says a senior Bush aide who spoke anonymously because of the classified nature of the subject. "We're talking about the most successful intelligence gained in the war on terror coming from these programs," he says. Details are hard to come by, but Sen. Kit Bond, a member of the Senate intelligence committee, told NEWSWEEK that "enhanced interrogation techniques" worked with at least one high-level Qaeda operative, 9/11 mastermind Khalid Shaikh Mohammed, to thwart a plot. Bond would not say which one, but among foiled plots vaguely described by the White House and linked to "KSM" was a scheme to attack targets on the West Coast of the United States with hijacked airlines.

Joe said...

I totally disagree that the Constitution allows for the torturing of a U.S. citizen, even if we had multiple Oklahoma City type bombings. There is absolutely no way it would be legal short of a constitutional amendment. Therefore, your argument that a ban on torture is contingent on circumstances, i.e., that a double standard is ok because circumstances are different here, is invalid.

A good critique of U.S. involvment in foreign countries is that people in those countries don't get to vote in our elections. It is inconsistent to claim that government should govern only by the consent of the governed, then commence to meddle with people who couldn't vote for us. One way to ameliorate that hypocrisy is to treat these people as much like citizens as possible.

If we're going to take control over people, we have to treat them with some degree of respect. It isn't about feeling weepy over the perpetrator's rights. It's about the long-term effects of a POLICY of not-respecting rights.

Again, your moral argument applies to most criminals. Statistically, most people who are arrested for a crime are guilty, and recidivism rates are high. So, why should we bother with due process, refraining from cruel and unusual punishment, Miranda Rights, trial by jury, innocent until proven guilty, habeus corpus, and the other mechanisms for protecting this pervert from punishment? There is a good chance that he did it, and there's a good chance he'll do it again. Shooting him in the head immediately would probably benefit society more than these other methods.

Of course, we don't do that. Why? Well, some people decided that, on the whole, giving government that much power is a bad idea. It's just as bad an idea in Iraq or Guantanamo as it is in Indiana. Did the framers somehow overlook the possibility that, in any individual circumstance, justice might not be served? Did they forget that guilty people would go free, that harm would result, that people might die? No, they made a calculated judgment about costs and benefits. Their judgement was that an unchecked, unregulated government would be worse on the whole than these individual examples of harmful consequences.

Giving government the authority to torture people, no matter what the circumstances, is a bad idea, despite the potential benefits of torturing people.

We should also keep in mind that not only is torture usually ineffective, but it can also be counterproductive. If people give false info, it might confuse us more than we would have been if the suspect just kept his mouth shut.

Andrew said...

I’m fully aware that the 5th and 8th amendments of the constitution expressly forbids torture, thank you. I never argued that the current US constitution did allow torture and I absolutely never argued for modifying due process. In fact, in my original post I twice listed all the amendments that prevent the sorts of “enhanced interrogation” that I believe should be allowable on enemy combatants only in certain rare and extreme circumstances. Nothing I’ve said previously has any application to current criminal law.

I think you may be confusing the Constitution with the 10 commandments. Your apparent argument that the Constitution is a circumstance rather than the result of circumstance doesn’t make sense. The articles and amendments in the constitution do reflect contemporaneous circumstances, and if circumstances are bad enough someday people may decide to amend the constitution to allow torture if they have reason to believe it will improve security. It should go without saying that I don’t want to be around should that happen.

AND the best way to keep that from happening is to allow the intelligence community under extremely specific situations to extract critical life saving information from people that want to kill us. I’m sorry but concerns about world opinion or potential abuse of a government power they’ve already always had aren’t going to mean a lot to people if a terrorist attack occurs because the terrorists were lawyered up.

In the original post I stated that torture is only sometimes effective.

So if we were playing scruples and using my first scenario, would you let the school blow up instead of using “enhanced interrogation”?

Joe said...

Yes I would, because the only way I could use "enhanced interrogation" would be if we had a policy that allowed it, and adopting such a policy would be worse in the long run than letting the kids die.

Joe said...

There is at least one version of such a policy that I MIGHT be somewhat amenable to. I heard Alan Dershowitz propose something like this on t.v. Bascially, if some officer finds himself facing your Die Hard 3 situation, he calls the President himself (directly or indirectly). The officer presents the case, and the President says, Ok, do it, or don't do it (this would be something like a Presidential pardon type of situation).

I still don't like it much, but at least there would be a very direct line of accountability, and it would probably happen very rarely. I the President screwed up, we could blame him, and we don't make CIA officers have to shoulder the responsibility.

Andrew said...

I could buy into that. That would be very much in keeping with the executive branch's power to suspend Habeas Corpus in times of crisis in Article 1, Section 9. However I think I would prefer a scenario where the intelligence officer had to get approval from a judge or even a panel of judges to before employing “enhanced interrogation” in much the same way law enforcement goes about procuring a wiretap. Of course neither scenario would be available under the McCain amendment.