11.13.2005

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...


6 comments:

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?

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?

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.

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.