News of a U.S.-supported attack on a suspected Al-Qaeda operative meeting in Yemen reminds me of a curious dynamic in the public response to how the U.S. fights the war on terror: Killing Al-Qaeda suspects seems to be much less controversial than detaining and interrogating them.
Consider a hypothetical example. Imagine U.S. officials have reason to believe that an Al-Qaeda leader is in a house near the Pakistan border. Our intelligence indicates that the man is in the house with his wife and three children. Now imagine the U.S. authorities have two choices. First, they can send in a team of commandos and seize the Al-Qaeda leader and send him to Gitmo, where he will be detained and waterboarded. If they do that, his wife and children will not be seized, but rather will be let go. Alternatively, U.S. officials can order an airstrike that will just blow up the entire house to smithereens. Everyone in the house will be killed, including the Al-Qaeda leader, his wife and three children, and anyone else who happens to be inside or nearby.
What interests me is the U.S. public reaction to these options, assuming the press learns of and reports on what happened. My sense is that if the U.S. authorities take option one — that is, detaining the suspect and waterboarding him — there will be a tremendous public outcry. Waterboarding is torture, and it is a moral imperative that we do not torture, many people will say. And it will be important to a lot of people that the seized detainee has constitutional rights that entitle him to a hearing to determine the lawfulness of his detention, together with an appointed attorney.
But if authorities just blow the house up, well, I suspect not that many people would think twice about it. Waterboarding may be an outrage, but blowing a suspect to smithereens together with his wife and children, well, that’s just war. There’s no hearing or lawyers or constitutional rights, to be sure. But again, few people seem to mind.
Let me be as clear as I possibly can be: I am not in any way criticizing either of these reactions individually. Rather, I’m just puzzled by the juxtaposition. In particular, I’m trying to figure out how these two views can coexist given that the “blow them all up” option seems pretty clearly worse from the standpoint of abuses or affronts to civil liberties than the “detain one and interrogate/waterboard” option. My sense is that the widespread public reaction to detention has changed U.S. policy so we rarely detain and interrogate these days. We just blow up the houses rather than try to capture suspects. But I’m trying to figure out what explains the coexistence of those two reactions.
One possibility is that blowing up a house fits into our traditional conception of war, whereas indefinite detention and interrogation doesn’t. Another possible explanation is that dead people can’t tell tales. Blowing up a house ends the matter, so there is no more press coverage of it. In contrast, detaining and interrogating a suspect can lead to continuing press coverage of the ongoing event. I can think of other possibilities, too, but I’m not sure how strong they are.
What do you think? I am eager for comments that respond to the question. Given the nature of the question, though, I will delete comments that are not directly responsive or are not civil.
Tim S says:
The right to use the greater power doesn’t imply the right to use the lesser power.
[OK Chimes In: That is true, but that's not the question I asked. My question is why people are more upset at the use of the lesser power than the greater power.]
December 24, 2009, 2:21 pmAndrew says:
“[T]he ‘blow them all up’ option seems pretty clearly worse from the standpoint of abuses or affronts to civil liberties….”
Not necessarily. Sending commandos risks their lives, and also risks letting the bad guys get away.
(Also, blowing someone and his family to smithereens may have a markedly greater deterrent effect than sending the guy to a cozy facility in Illinois. It’s tragic, but….)
December 24, 2009, 2:22 pmMatt says:
Many people accept some version of the doctrine of double effect. That seems to be an important element here that you’ve left out. We can assume (and hope) that in the bomb case we do not intend to kill, and do not aim at killing, the wife and child. We do kill them, even foreseeably so, but it’s a mere side-effect of an acceptable action(*). Furthermore, those who accept this account will likely think that the majority of the moral blame for the wife and child being in harm’s way lies with the al qaeda agent. But in the torture case, we are actively choosing to do a prohibited action (torturing someone). So, the two cases are morally distinct, with the torturing case being worse. For anyone who accepts this line of thinking- and I think many people implicitly do- the case isn’t hard or counter-intuitive at all. (I should say that I’m not endorsing this line of reasoning, and think there are real problems with parts of it, but it’s a traditional and venerable line, well developed in the just war tradition, particularly in its Catholic version.)
(*)This is assuming that it’s acceptable to kill the al qaeda agent, perhaps on some just war theory. That’s perhaps plausible, but without it the argument doesn’t go through.
December 24, 2009, 2:27 pmSteve says:
I think most people of good faith assume that we would not simply blow up the guy’s family if we had any other choice. So they react to the situation in the context of that assumption.
[OK Chimes in: Perhaps, although why don't they have the same reaction with waterboarding?]
December 24, 2009, 2:28 pmChris Travers says:
I can’t really speak for anyone else here, but one thing that drives my own assessment is my sense that death not worse than torture. Death is a harm which is inevitable, while torture is not, for one thing.
A second major consideration for me is that most of the airstrikes occur in sections outside the reach of normal law enforcement arms of the states in question. That is, they occur in lawless areas. Certainly I would feel differently about an airstrike on a car driving down I-90 in Montana than I would about one occurring in rebel-held areas of Yemen or Pakistan. Similarly I would object if the strike hit a target in Berlin, Milan, Tel Aviv, or Istanbul. These then pose issues of control and responsibility.
So I think there really is a difference in kind.
December 24, 2009, 2:29 pmLTEC says:
I am an example of someone who would oppose the torture scenario you pose, but not necessarily oppose the blowing-up of the house and family. The reason is that I consider torture worse than killing. Not only do I consider torturing a guilty person worse than killing him, I consider torturing a guilty person worse than a collateral effect of killing a number (I’m not sure exactly what the number is) of innocent people. My position has nothing to do with how things are reported. Rather, it reflects my personal moral calculus.
December 24, 2009, 2:34 pmpireader says:
Professor Kerr –
Previous commenters have offered interesting thoughts on why (some) people view “detain and torture” as worse than “attack and kill”.
I’ll only add that US law shares the same intuition. There’s obviously no statute forbidding our military from attacking a hostile person or group in war-time; but there are criminal statutes against torturing that same person or group.
(Don’t mean to start a controversy about whether waterboarding is torture. I’m accepting your hypo.)
[OK Chimes in: I think U.S. law is kind of mixed on this issue. For example, in Kennedy v. Louisiana, the Supreme Court held that it would be cruel and unusual punishment to allow capital punishment for a man who brutally raped a child -- in a setting that would plainly amount to torture -- because no death was intended or resulted. If the man had not raped the child but instead had killed her, the sentence wouldn't have been out of bounds under the 8th Amendment.]
December 24, 2009, 2:39 pmBuddy Hinton says:
I think it comes down to the quaint notion that the soldiers blowing up the house are doing so at some non-negligible level of risk to themselves, but the soldiers doing the interrogation are not personally at risk. The idea is that when the soldier is taking on real risk to defend your country, then you do not criticize anything he may do. On the other hand, if he is not taking a risk, then his actions come “in to play.”
Couple of side points:
1. This idea that U.S. soldiers are at real risk is probably more false than it is true (bearing in mind that risk is a relative term), but it is a convenient idea that many people find comfortable to maintain.
2. This is why the drones was such a big story a couple weeks back. It shatters the illusion that US soldiers are taking risks when they blow up buildings in Afghanistan, Pakistan or Iraq. But, if the soldiers aren’t perceived as taking on that much risk, this effectively opens up their conduct to moral and ethical scrutiny.
December 24, 2009, 2:40 pmDilan Esper says:
once you have someone in custody, you have more obligations to the person. attacking someone in custody is no different than shooting at an unarmed man waving a white flag.
[OK Chimes in: But does that mean if you have a choice between taking a person into custody or killing him without giving him a chance to be taken into custody, it's okay to kill him (and his family) so he doesn't have a chance to be taken into custody?]
December 24, 2009, 2:43 pmFub says:
Another possibility is that kaboom is generally perceived as being more effective than capture pour encourager les autres.[1]
Maybe the general public thinks instant martyrdom is a harder sell than three hots, a cot, and a guaranteed world-wide host of multi-culti
apologistsuseful fools, even with possible occasional waterboardings.[1] originally applied to admirals.
December 24, 2009, 2:44 pmJohn Tillinghast says:
A different issue is what habits this trains in our soldiers. Calling in an airstrike while in combat or hot pursuit may be easier to “leave on the battlefield”, as opposed to torturing people at leisure after returning to safety and comfort.
December 24, 2009, 2:47 pmRelated is the question of feasibility. As long as there is war there will (probably) be killing in combat. Outside of combat we try to return to higher standards as fast as possible.
I’m not saying this is the explanation for the general reactions, but they do affect my own thinking.
dfolds says:
The “tremendous public outcry” you anticipate in reaction to detention would largely be confined to liberal commentators and the leftist base. The public at large isn’t queasy with detention and aggressive interrogation. Some liberal commentators would likely mute their criticism with a Democrat in office (witness the remarkable lack of criticism of Clinton-era rendition practices). On the other hand, if a Republican was in office, the same commentators could also generate a “tremendous public outcry” to the targeted killings from drones, especially when innocents are also killed. Perhaps constitutional rights might be proposed for anyone who might be targeted by the military under a Republican administration. The preference for remote killing over detention is an unintended consequence of the Left’s attack on the Bush administration. I believe that principles of humanism in general would lead to a preference for detention over death, even for the enemy, with the added benefit of harm averted by sparing the innocents, and by gaining intelligence that could be further used to avert harm.
December 24, 2009, 2:50 pmJohnF says:
I think the reason for different public attitudes is simply that blowing up the house happens and is over. There may be a few voices raised in objection, perhaps one column in a newspaper, and that’s it. Whatever horrors may have been involved are either not known or quickly forgotten.
However, taking prisoners is, under our current way of thinking about the treatment of prisoners, a guarantee of picking at a scab for months and years, so the public becomes aware of whatever horrors may be involved and reacts to a much greater extent than in the case of the occasional bombing.
So I think it is just the degree of public exposure that determines the public response–not the enormity, if any, of either enterprise.
December 24, 2009, 2:52 pmStarman says:
Is this just an example of the more general observation that most people are not consistent? All politicians are rascals, but my representative is a good guy. Health care in America is going to hell in a handbasket, but my health care is good. The schools don’t work and put out graduates who can’t read, write, or do ‘rithmetic, but the school my kids attend is great.
December 24, 2009, 2:57 pmIt is hard to be consistent, and most people don’t (won’t) put in the thought and effort to be consistent.
drunkdriver says:
Why does the public mostly not object to the killing, even if they involve collateral damage? Most of the public supports the idea of killing al Qaeda members, and I think as part of the moral calculus they understand that innocents will die during acts of even a “just” war. Also, there’s not a lot of sympathy for those who consort with terrorists, and probably a lot of suspicion that anyone does so isn’t really innocent, or already hated us anyway.
Why is it more controversial to detain and interrogate? How to handle these people once we nab them, raises separate concerns. Even people who otherwise supported the war effort, may have objections to interrogation techniques- for reasons of felt principle, or for practical reasons such as the hope for humane treatment if our own soldiers are captured. Those strongly in support of these interrogations, feel that heeding these concerns just endangers us more by foregoing valuable information, and weakens our military by turning “war” into an exercise governed by rules of evidence. And seemingly everyone- even those most opposed to detention- wants these people housed somewhere OTHER than a prison near them.
So maybe the real answer is that our values are often self-contradictory, and keeping a terrorist for a long time brings this more to light. When you kill you’re making one decision. When you keep someone in custody, you’re making a multitude of decisions.
December 24, 2009, 3:02 pmSammy Finkelman says:
You’re absolutely right that there is less opposition to killing members of Al Qaeda than to interrogating them. And any preference for killing them only serves the interests of Al Qaeda because they don’t have to worry that maybe somebody will give away information.
As for why there is less opposition: People getting killed in war in something people are used to, while any mistreatment is something that is not supposed to happen.
People are not concerned about what actually happens to anybody but only if a “sin” has been committed.
December 24, 2009, 3:05 pmSteve says:
OK Chimes in: Perhaps, although why don’t they have the same reaction with waterboarding?
Because when we waterboard someone, they’re in custody and it’s obvious we’re in complete control and have a choice about what to do with them. In the situation where we bomb the house, it’s not clear there was any other option to get the bad guy.
If we found out that the bad guy actually came out of the house with his hands up, and we nevertheless shot him and his family too, people would feel quite differently.
December 24, 2009, 3:09 pmtroll_dc2 says:
I agree that the “tremendous public outcry” will come only from selected portions of our society. They will mostly be blue people, as opposed to red ones, they will tend to be middle class or higher, and they will tend to have more than a high school education. Many of them will be civil liberties lawyers who are media-savy, and most of the rest will be responsive to their message.
As for the blown-up terrorists (and their families), it will be a case of out of sight and out of mind.
This makes no sense, but such is life.
December 24, 2009, 3:12 pmpot meet kettle says:
Prof. Kerr, the problem is far far worse than even your description of it. Drone killings of suspected Al-Q and other operatives have a success rate of between 1-5% (the numbers are not entirely clear, given the US government’s opacity, so this is an estimate), which means that for every bad guy (convicted without trial, of course) killed, somewhere between 20-100 innocents are also blown away. The callousness is astonishing, and underlines both the public’s short attention span, and the natural human tendency to underplay what is unseen and not proximate, especially when the victims are the other.
December 24, 2009, 3:14 pmtroll_dc2 says:
“Drone killings of suspected Al-Q and other operatives have a success rate of between 1–5% (the numbers are not entirely clear, given the US government’s opacity, so this is an estimate), which means that for every bad guy (convicted without trial, of course) killed, somewhere between 20–100 innocents are also blown away.”
Those are terrible statistics. No wonder they hate us in Pakistan and Afghanistan.
December 24, 2009, 3:26 pmrichard says:
I think the reason is simple. The suspected terrorists we blow up present a danger to us and in the case of a dangerous situation, there are often undesirable collateral consequences in quelling the danger. Once we have someone in captivity, the danger is remote at best and often nonexistent and the justification for extreme force is not there. If we took someone into captivity and then executed him without trial, the moral outrage would be the same or greater as waterboarding the guy. Several hundred years of evolution of rules of warfare have established these norms.
December 24, 2009, 3:28 pmCGordon says:
I think the timing makes a big difference. Once the suspect (and family) is blown up, nothing that can be done to rectify perceived injustice. Whereas when the suspect is detained and water-boarded, the perceived injustice can be rectified, at least going forward.
December 24, 2009, 3:29 pmMichael Alexander says:
If I were a person who was outraged by Gitmo, I would point out that your two options do not represent the reason I am against Gitmo. You assume the person who is seized will be tortured. Just b/c a person is seized doesn’t mean that he must be tortured. I would be in favor or seizing and then not torturing.
But – I like the post b/c it highlights the current public outcry over torture vs. the lack of current outcry over innocent casualities.
December 24, 2009, 3:30 pmSara says:
One of the explanations must lie in the whole project to have a “law of war,” that the Western world has been working on since the 17th century or, at least, this project informs the paradoxes.
December 24, 2009, 3:36 pmNI says:
Orin, probably for the same psychological reason the Eighth Amendment allows a murderer to be given a lethal injection but probably would not allow a murderer to be given a non-lethal dose of the rack or the wheel.
We accept that death is an inevitability; nobody gets off the planet alive. So in one sense, we haven’t killed the al-Quaeda guy (and his family) so much as we’ve re-scheduled to an earlier time what was going to happen anyway. If we hadn’t killed them, eventually something else would have.
But when the state kills, whether through an executioner or a military airstrike, we accept that we have a duty to do so in a manner that inflicts the least amount of pain feasible. And as long as the state does that, we’re OK with it. It’s the deliberate infliction of pain for the sake of inflicting pain that calls our civilization into question.
And look at it from the other side: Orin, if you had a straight up and down choice between a relatively quick and painless death from an airstrike versus spending months or years being tortured, which would you pick? Maybe you’d pick the torture, but even if you did, can you at least see that the other choice isn’t completely irrational?
[OK Chimes in: Just to be clear, the choice in the hypo is between having you, your wife, and your three kids all killed versus my wife and kids being alive and free but me being detained, sent to Gitmo, and being waterboarded, but otherwise being healthy and well-fed and being given good medical care. I would take Gitmo -- wouldn't you?]
December 24, 2009, 3:37 pmpot meet kettle says:
Yes. Thankfully, the hearts and minds counterinsurgency strategy will give the U.S. at least a selfish reason to limit these casualties, since morality plays no part in either qualifying leads, designing more efficient procedures than the current system involving haphazard assembly and mounting by fratty Blackwater contractors, which leads to these multitonne bombs sometimes missing their targets completely, or putting pressure on the system to reduce the number of innocents massacred.
December 24, 2009, 3:37 pmEH says:
(*)This is assuming that it’s acceptable to kill the al qaeda agent, perhaps on some just war theory. That’s perhaps plausible, but without it the argument doesn’t go through.
This touches on what I think may be a more vital approach to analyzing the distinction being discussed. I’m not sure “why” (or “if,” except anecdotally) one is better than the other, so maybe it would help to look at the histories of acceptability for blowing up the house and interrogation and maybe whether it might be more easily appraised by looking at it as something like a “Jenin Strategy” vs. “The Inquisition Strategy.” I don’t think it’s beyond the pale to see collateral techniques as being a clinical update of “Kill ‘em all and let God sort ‘em out.”
That choice of terminology perhaps belies my personal opinion, but you get the idea.
December 24, 2009, 3:38 pmnevadausa** says:
dfolds:
Everything is not about Bush.
In WWII, the Americans and British fire-bombed Dresden and Berlin, among others — just as the Nazis had firebombed London. America dropped atomic weapons on the Japanese.
I don’t recall the history book recounting any particular contemporaneous civilian backlash against killing the enemy, destroying the enemy’s means of making war, and also killing civilians in the process.
It’s the cost of war. (Yes, Orin, particular civilians were not targeted; nevertheless, that civilians would die, and did, was clear and went without serious objection.)
Destroying a safe house containing the enemy and civilians is the cost of this war. I think Americans get that.
By the same token, just as in WWII, I think Americans generally abhor the idea of state-sanctioned abuse or torture as a systematic tool of war.
Even members of the SS who directed the Malmedy massacre were spared summary execution, torture, or systematic state-sanctioned abuse upon capture. They were given a court martial, convicted, and executed.
So to with American Indians, during the 19th century frontier years, who killed settlers. Captured suspects were tried in federal court — not military court or executed summarily by systematic state sanction. (One could suppose these trials 150 years ago were the fault of the Left; but I’ve not seen any evidence of that. More the fault of our Founders, I suspect.)
Orin – at bottom, I think most Americans grow up hearing about fair play and good sportsmanship; kicking the other guy when he’s down is not an “American ideal.” But kicking his butt when he’s up — and anyone who may be helping him — that’s another story.
December 24, 2009, 3:39 pmRyan Waxx says:
It is because of the wartime/police dichotomy the left has taken full advantage of.
Killing one’s enemy in wartime, even if there is “collateral damage”, is perfectly normal and ordinary action in wartime. Nothing new here.
However, when you capture someone, the nearest analogue people have is the civilian courts – wartime detainee law is actually quite rare, as evidenced by the fact that we often have to reach back to ww2 and sometimes even civil war precedents.
Explaining that wartime detainees are in a different category than when Joe the mugger is hauled in requires an amount of effort that hasn’t been made… not least because public ignorance directly benefits both the media’s agenda and one of the two major political parties in this country.
So it’s at base a public ignorance problem… made worse by the peddlers of that ignorance.
December 24, 2009, 3:42 pmVSJB says:
I suspect that part of the relative outrage at torture comes from a sense of personal identification. Many of our public myths, dating at least to the Star Chamber and the Inquisitions, associate tyranny and oppression with coercive interrogations and denials of “due” process. These are stories of domestic tyranny, it’s true, and that’s the ultimate evil they decry, but it takes little imagination to see these associated acts as themselves tokens or signs of the bad end. Put more simply: We can easily imagine the government detaining and torturing our friends or ourselves without right, as part of an oppressive regime–it’s a story we all grew up with. A drone attack on our homes is, on the other hand, fantasy, and for that reason we have comparatively little ground for empathy.
This obviously isn’t the whole story–I like the idea some others have posted that we hate seeing violence imposed on those who have already been forced into submission–but I think there’s something to it.
December 24, 2009, 3:45 pmptt says:
We’re at war with Yemen? With Pakistan? I hope nobody tells them…
One factor not yet mentioned is that remote killing is a relatively new phenomenon/tactic. Torture, on the other hand, has been with mankind forever. And there are outcries against remote killing, but they are mostly overseas. When someone, someday starts directing remote killing at us, I imagine we’ll muster the appropriate outrage. Until then, we’ll continue to justify it.
December 24, 2009, 3:48 pmRyan Waxx says:
No, what’s astonishing is that you can lie that outrageously and expect to get away with it. Why is it that if someone calls a soldier a “baby killer”, that’s not civil… but if you dress up the lie as if it was a statistic, like “Studies show that the average American solder eats 1.5 babies per day”, then all of a sudden it’s legitimate discourse?
December 24, 2009, 3:48 pmCatoRenasci says:
In an ideal world, we’d snatch the terrorist and interrogate him successfully without interference from the lefties who lie safely in their beds because of the rough men who both snatch the bastard and interrogate him. In such a world, the wife and kiddies would be chivalrously unharmed, though perhaps restrained gently while the desperado is ignominiously carted off. That bothers me not in the least.
Unfortunately, that’s not the world we live in: our defenders are second- and third-guessed by the people they protect, but who hate their protectors. Yet, they don’t seem to scream as much when we put paid to the lot of them.
Frankly, I don’t see capture and interrogation – even pretty rigorous interrogation – as morally worse than killing the whole lot. Maybe it’s even less morally reprehensible. But, that’s not the prevailing Washington wind.
OK, then, kill them all and let God sort them out. Or, do a little field interrogation before the terrorists are killed trying to escape.
War is a nasty business. Very nasty. Those who wish to make it less so should not conflate warfare between civilized countries who – for the most part – follow the rules, with warfare involving those, like the Islamics, who do not follow civilized rules. The way to get those peoples to follow civilized rules of warfare is to reward compliance with civilized treatment, and to meet violations of the rules with utter ruthlessness and destruction.
In Staub mit allen Feineden Brandenburgs!
December 24, 2009, 3:52 pmbyomtov says:
Steve’s answers are good.
I don’t think you can consider the actions you describe as alternatives. Is it really the case that we could just send in commandos to grab the guy instead of bombing the house? Maybe you know more about our capabilities than I do, but it seems pretty implausible. Besides, how exactly would such a commando raid avoid killing innocent bystanders, and some of the commandos as well?
In other words, the commando scenario as you present it does not seem realistic. If it were – that is, if we really could just go in and grab the guy cleanly – then I think the reactions would be different.
I also agree that, as Steve puts it,
“If we found out that the bad guy actually came out of the house with his hands up, and we nevertheless shot him and his family too, people would feel quite differently.”
[OK Chimes In: I have heard from folks who seem to be "in the know" that when the American public started to object to the detentions and interrogation, the military changed its policy and just started killing everyone instead of trying to capture and detain them. That is, the old policy of trying to detain and interrogate was replaced by a new policy of just blow them up. According to those I have spoken with, the new policy was a response to public outcry over detention and interrogation. So in a very real sense, they are alternatives: our policy used to be to try the former, now we do the latter. I believe that's why you haven't heard much about new detainees in the war on terror: We don't take prisoners anymore. (Or if we do, we quickly pass off the detainees to other governments.) That's my sense, at least.]
December 24, 2009, 3:57 pmMike says:
Good post, Orin. I’d add that “torture” is a false construct. I think of it like this: “Fire a missile into a building knowing that 100% of the enemy will not die. Fire a missile into a building knowing that some will survive. Some will have third-degree burns. Their skin will peel off of their legs when the clothing that has melted into the soldier’s skin is removed. Some will lose legs. Some will lose noses, chins, and cheeks: They not be recognized by family members. This is called war.”
We know that when we bomb a building, not everyone will die. The people who survive will have incredible pain, and be disfigured. Yet we seem not to care too much about it.
Probably Robin Hanson at Overcoming Bias would have some smart thoughts about the issue. We oppose torture because it signals that we are moral people. We don’t really care, though. If we did care, how could we not be equally outraged by bombing missions that won’t have a 100% causalities?
December 24, 2009, 4:06 pmSara says:
“In the dust with all the enemies of Brandenburg!” ?
How odd, Cato.
December 24, 2009, 4:09 pmCatoRenasci says:
It’s the last line of Kleist’s Prinz von Homburg tossed for whimsy’s sake.
December 24, 2009, 4:15 pmSara says:
Yes, I thought your post was capricious.
December 24, 2009, 4:19 pmNickM says:
troll – pot misused statistics, and you didn’t catch it. Success rate of 1-5% does not mean that 95-99% of the people killed are innocents; rather, it means that only 1-5% of the bombs take out their intended targets. Bombs that go off target into vacant land, don’t explode, or hit empty buildings count against the success rate.
Nick
December 24, 2009, 4:20 pmsteve s says:
The public watches American Idol. The public does not really think about it that much. We have used bombing in our wars for a long time. As pointed out by others above, we have bombed may civilian sites telling ourselves that collateral damage is acceptable. (This has actually spread into many other areas so that it is used to justify actions other than bombing.) Torture, OTOH, is against our accepted traditions. Washington rejected it in the War for Independence. We have signed treaties (Reagan) against it. Torture also has long term effects as a recruiting and morale tool for the opposite side. Again, look at the effects of the prison ships during the Revolutionary War and its continuing positive effects for jihadist recruiting. It is the gift that keeps on giving for the other side.
Corollary. If it is cowardly to set off suicide bombs, why is it not cowardly to bomb facilities with civilians in them when the other side has no air defense? Why is one more detestable than the other. Assume you have family affected by both tactics.
December 24, 2009, 4:23 pmtroll_dc2 says:
NickM, I read his statistics to mean that most of our attacks don’t succeed in killing anyone who was the target.
December 24, 2009, 4:25 pmShelbyC says:
Ryan is correct, folks associate dentention with the police power and killing with the war power. For example folks ask why, if the executive can declare people enemy combattants and detain them, what’s stopping him from declaring just anybody an ememy combattant and detaining him? The answer is, the same thing that’s stopping him from declaring just anybody and enemy paratrooper and shooting him.
December 24, 2009, 4:28 pmSteve says:
I have heard from folks who seem to be “in the know” that when the American public started to object to the detentions and interrogation, the military changed its policy and just started killing everyone instead of trying to capture and detain them.
I don’t doubt your sources, Orin, but the reality is that the overbreadth of our effort was responsible for a great deal of the outcry.
Everyone at Gitmo is “the worst of the worst,” we were repeatedly told, and then every few months another 10 or 20 of them would be let go because they weren’t actually dangerous. Abu Ghraib was bursting at the scenes because we picked up nine innocent people for every one who was guilty of something or had useful information to impart.
The problem of casting the net too wide had a mushroom effect. Because we had a lot more people at Gitmo than we needed to keep captive, we were way too slow to come up with a system for sorting them out. If there had been a rigorous system in place that ensured we were truly holding only “the worst of the worst,” not only would we have avoided having to say years later “oops, you can go now,” but the courts never would have had to intercede with controversial decisions, and the outcry would have been severely muted. It was obvious to a lot of people that the Bush Administration didn’t have a clue who the real bad guys were, and the fact that they were nonetheless asserting a right to hold everyone in a hole indefinitely was pretty enraging.
Yeah, in a few cases there were complaints about the treatment of actual bad guys – like the waterboarding of KSM. But first of all, waterboarding is pretty extreme, and second of all, would we really have heard the same level of complaints if it was clear from the outset that we waterboarded only KSM because he’s a really horrible person and it was an extreme case? The problem was that there were all these “enhanced interrogation techniques” that seemed to be getting used fairly indiscriminately, and as it turns out, the suspicions were right in a lot of cases.
I have my doubts that we’re really passing on capturing high-level bad guys who we believe to have valuable intelligence, simply because we’re worried about public opinion. But if that’s truly the policy shift that has occurred, I blame the people who devised all those bad policies that brought our military and intelligence personnel under such scrutiny. I don’t blame the people who complained about those bad policies.
{OK Chimes In: My recollection is that only three people were waterboarded: KSM and two others. That was a lot of public outcry for three people, especially given that (as far as I recall) no one questions that all three people were serious bad guys.]
December 24, 2009, 4:35 pmHoward Gilbert says:
Nobody has ever been waterboarded or tortured at Gitmo. That was done by the CIA at undisclosed locations in third party countries. Today, the US will not use such procedures and anyone captured knows that there is no reason to talk.
Which brings us closer to the way things are supposed to be. An enemy combatant, in this case a member of an armed unit of a non-state party to a non-international armed conflict engaged in continuous combat operations (as the ICRC would put it), is subject to military targeting and may be killed at any time without warning or reason other than that he is is an enemy combatant. However, if he happens to surrender before being killed then he must be held as a prisoner of war. Then, he may not be required to give any information other than name, rank, and serial number and may not be punished in any way for his refusal to answer other questions.
So the distinction is not some recent idea, nor is it an American issue. It is a core value of the laws of war. Enemy soldiers may be killed at any time they can be targeted. Captured enemy soldiers may not be mistreated and are not subject to punishment for failure to cooperate. That is international law for the last couple of hundred years. General Horatio Gates understood this when he took the surrender of Burgoyne at Saratoga, and Secretary of Defense Robert Gates understands that the same rules apply today.
Since the enemy knows that they have no reason to talk, there is no reason to invest the time and risk the people to capture them. Since there is no requirement to give them a chance to surrender, the obvious choice is to target them with lethal force. The only change in the last 200 years is that Predator drones make targeting a lot easier.
December 24, 2009, 4:46 pmbyomtov says:
I have heard from folks who seem to be “in the know” that when the American public started to object to the detentions and interrogation, the military changed its policy and just started killing everyone instead of trying to capture and detain them. That is, the old policy of trying to detain and interrogate was replaced by a new policy of just blow them up.
Well, maybe, but I’m not sold. Possibly they were talking about combat situations, rather than cases like the one you describe – known operatives at a house not in the war zone. Do your informants contend that clean grabs were routine? Even granting that dubious assumption, remember that much of the objection was to:
1. Detentions for which there seemed to be little or no justification,
and
2. specific interrogation methods, rather than simply interrogation per se.
So it appears to me that much less drastic policy changes would have been obviously wiser, from a public opinion and many other standpoints as well.
And by the way, when was this overwhelming public outcry? Certainly there was criticism, but was there really a wave of public disgust with the detentions?
December 24, 2009, 5:01 pmRyan Waxx says:
The key to understanding this is that “the outcry” was largely a manufactured thing. Ask the typical man in the street about the actual specifics – was it a bad idea to use a near-torture technique to force a known high-ranking Al-Queda official to give up details of future attacks – and I suspect the response would show Steve’s opinions to be in the huddled, lunatic fringe of American society.
Ask the same man about the lie Steve and his ilk peddle of lawless, widespread torture that could visit an American citizen near you… and his response is different. No surprise there.
December 24, 2009, 5:07 pmbyomtov says:
Just to clarify my previous comment, I’m saying that the policy change your informants describe makes little sense to me, so I suspect that, whatever the story is, there’s more to it than you were told.
December 24, 2009, 5:11 pmLeo Marvin says:
I know many people who react as Orin described, i.e., they object in an irrationally absolutist way to torture, which they don’t to killing. When I ask them whether, for example, they think John McCain’s family would rather he had been killed than tortured, typically their answers are either tautological (“torture is always wrong, killing not necessarily so”) or they change the subject from moral arguments to legal ones I often happen to share.
I consider killing and torture morally indistinguishable, which is to say they’re both extreme evils unless absolutely necessary. I reserved judgment for quite a while about the early reports of waterboarding under GWB, because I don’t foreclose the possibility it could be the lesser evil in a legitimate ticking time bomb scenario*. It was only when the nature of the Yoo memos became public that I adopted a presumption that the waterboarding was not only illegal, but wrong, a presumption that became virtually conclusive when we learned how many times it had been used. Any time bomb that ticks that long isn’t what I have in mind by the term, and any policy that tries that hard to justify torture doesn’t view it as the same barely qualified evil I do.
Likewise my objection to what I now believe was our rush to invade Iraq. I don’t dismiss that there could have been circumstances justifying war with a country we were reasonably convinced was set on an irrevocable course to attack us or help others that did. But I don’t see how killing anyone on the at best inchoate case we had against Iraq was any better than torture. Afghanistan and Pakistan are tougher questions. We got into those conflicts by legitimately answering attacks on us. But how long that legitimacy lasts, i.e., how long we can still say the killing is necessary, is more complicated than I have a quick answer for.
To a great extent I think we have to trust the leaders we elect, who make these decisions on information we’re never entirely privy to, to grapple with them in good faith, with our conviction of the wrongness of killing and torture in mind. For now, Obama still has my confidence to do that. On the other hand, one of my strongest criticisms of Bush was the damage he did to our ability to invest future Presidents with that trust, not because I doubt he believed all his decisions were in our best interest but because he treated that trust and confidence way too casually. I gave him the benefit of the doubt, as I saw it was my civic duty to do, so when it turns out the killing and torture carried out in my name weren’t exactly necessary, I take it personally, and Obama and every future President get less leeway from me as a resul
(* That assumes of course there’s good reason to believe it would be more effective than a lesser alternative.)
December 24, 2009, 5:13 pmCornellian says:
This in analogous to the way people feel in other contexts as well. Lots of people support the death penalty for certain offenses, but hardly anyone supports torturing criminals. The Founders explicitly prohibited cruel and unusual punishment, but not the death penalty.
Killing the terrorist is arguably pure self defense in this situation. Torture is much harder to justify as pure self defense, and much more likely to appear as the gratuitous infliction of cruelty that civilized people find offensive, regardless of the motive behind it.
December 24, 2009, 5:14 pmTheNino85 says:
First things first, torture is extremely vague and ill-defined and depends heavily on the person. I am from North Dakota, and I tolerate cold weather better than most North Dakotans. I would *much* rather be waterboarded than be subjected to Houston’s summer weather (worst summer of my life) for an extended period of time, even though many people work under such conditions. On the other hand, I’ve spent extended periods of time outside in light clothing when it was below freezing and I’ve felt fine, whereas other people would be willing to confess to being the bastard love child of Stalin and Hitler raised by Pol Pot.
So you might say that the definition of torture should be amended to be on an individual basis. Take the detainee who was absolutely phobic about caterpillars. After legal review, it was decided against putting a single caterpillar in his room to make him talk. (This was the Bush administration that made this decision.) But making that alteration changes nothing. Of course torture is wrong. It’s a loaded word. It’s wrong by definition. If it’s not wrong, we call it something else. I hate to sound like such a English professor, but controlling the terminology allows one to control a debate on emotional ground. Why we hear of “pro-life” and “pro-choice” but not “anti-choice” and “anti-life”. No one in a civilized society supports torture, precisely because it’s a vague word that has different meaning for different people. This is not to say that it does not exist; rather, people argue exactly about what it is, so when talking to someone about “torture”, you’re not communicating any useful information whatsoever. We should be specifically discussion waterboarding. Whether waterboarding is right or wrong. That is a concrete action. There is no ambiguity there.
Second, the assertion that death is better than torture…. this is one of those things that’s easy to do when writing comments on a blog, but when people are put in this situation, things change quickly. For some people, when they are on their death bed (what is disease other than Nature torturing us), something changes in them. Before they might not have wanted to be “kept alive by a machine”, but suddenly when they’re looking Death in the face, every moment they spend alive with their families becomes priceless. I hate to use him as an example, but John McCain tells a similar story about how much he just wanted to survive rather than die. Of course, this is not true in general. Some people ignore Dylan Thomas and choose to go gentle into that good night.
This is a trait of this conversation in general I really despise. Most of us have college and post-baccalaureate educations. With the economy and health care, we have a framework. We are economic actors. Many of us have some training in economics or business. We “get” the concepts being floated around. Generally speaking, we don’t have this knowledge in this debate. We’re not in the armed forces. We don’t have to make these decisions. We don’t know the parameters. We really have no idea what the hell is involved in this type of decision. For many of us, though, we need to think that we know exactly what’s going on, so we delude ourselves. We claim we can know what’s going on from a blog post talking about a friend who has a co-worker who has a sister who had a… who was involved in one of these events. These 7th degree of separation makes it impossible for us to have any idea what exactly is going on and thus be able to render any type of moral judgment that isn’t necessary one-dimensional and unconsciously just a rehash of other people’s opinions on the matter. At best, we’re able to pick and choose members of the armed forces who share a similar opinion to ours and somehow claim this completely justifies our viewpoint.
In summary, I have no idea what I’m talking about, and neither do you, gentle reader.
December 24, 2009, 5:15 pmsteve s says:
“Since the enemy knows that they have no reason to talk, there is no reason to invest the time and risk the people to capture them. Since there is no requirement to give them a chance to surrender, the obvious choice is to target them with lethal force. ”
The fallacy here is that most of our best intel, so far as I have been able to ascertain, has been through conventional interrogation techniques. The best and most famous interrogators in WWII did not torture.
December 24, 2009, 5:15 pmtvk says:
Orin, we have to separate out the terrorist’s preferences from our moral preferences.
1. From the terrorist’s perspective, it is probably far better to be detained and waterboarded than to be killed.
2. But from a normal moral perspective, it is worse to torture an incapacitated and helpless attacker than to shoot him in self defense while he still has capacity to act. This is reflected in our normal legal principles. You are allowed to kill in self-defense when in the moment of being attacked. You are not allowed to disarm you attacker, tie him up, and then rack him to teach him a lesson.
When you make the casual statement that “the ‘blow them all up’ option seems pretty clearly worse from the standpoint of abuses,” you are in fact implying that the greater power necessarily includes the lesser power, which you acknowledged in the first comment is not true. It is not true because we attach greater moral repugnance to torturing a helpless and disarmed person than killing someone charging at you. Such moral propositions are generally unfalsifiable, so if you don’t get it, you just don’t get it. But I think there is enough above to demonstrate that the intuition is common and not specific to this context.
[OK Chimes In: I don't think the self-defense analogy works, because self-defense requires an immediate threat. You can't send a drone from 500 miles away and kill someone in their sleep, together with their family, and justify that under traditional self-defense principles. Put another way, they're not charging at us when we kill them.
But maybe the key dynamic is that we hear of a house blown up, we can put that in our minds in a self-defense box, whether or not it actually fits? That is, maybe the point is that we only have so many categories we can think of when we hear of certain events, and it so happens that the nearest boxes are "self defense killing" for blowing up the whole family and "civil liberties abuses" when it comes to indefinite detention and interrogation?
I should also add that the same point holds if you take away waterboarding and just make the issue detention alone. I think it's a lot harder to explain why we are more worked up at indefinite detention than indefinite killing, but we do seem to have that reaction.]
December 24, 2009, 5:16 pmrhhardin says:
It’s not a public reaction so much as a media business model.
The story will be whatever draws the audience for the longest time.
Interrogation is the winner here. There’s an additional bit of narrative possible every day, day in and day out.
The news biz audience, mostly, is soap opera women (40% of women, 20% of the population).
The rest of the population is disgusted but have no vote in the matter.
December 24, 2009, 5:16 pm11-B.2O/B4 says:
Couple points from the pointy end of the stick.
1: Official policy may not have changed, but at the platoon and squad level, the trials of US troops for idiotic bullshit definitely changed our Standard Operating Procedure. For instance, sniper teams in the field are not authorized to take prisoners. If discovered, a team has two “textbook” options: A – Kill/ B – Run. In practice, many of us had taken prisoners who discovered our hides or were somehow a threat, tied them up, gagged them and let them go when the mission ended. Then we prosecuted a sniper team for killing a “prisoner” during a struggle (they claimed he was trying to grab his weapon). That brought a swift end to the “touchy-feely” bullcrap, and my SOP was “extract if possible, interdict otherwise”. Killing anyone you can WITHIN the guidelines of your Rules of Engagement is definitely the best policy for a soldier, legally speaking. Of course, there’s not many soldiers who would follow such a psychotic plan, but thats the safest, legally speaking. I wouldn’t say that we kill “everyone” by any stretch, but there are definitely situations where human mercy might have sent a guy off for detention before that is simply too risky now. People, even soldiers, don’t like to kill, and avoid it if they can. Putting us on trial for trying to be merciful teaches us a necessary, if perverse, message.
2: People will always have more revulsion for human-contact violence than for distant, mechanical violence. This is why any fool can drop a bomb or pilot a Predator drone, but it takes a ton of training and a certain personality to be say, a sniper, or Specops. People can identify, imagine torturing (not going to argue the torture thing here) someone and how it must feel, but dropping a bomb from 15k feet or pushing a button on a ship 300 miles away seems very easy. Who is a bigger monster, John Wayne Gacy or the guy who pulled the lever at Hiroshima? Not one in ten thousand of us could imagine doing what Gacy did, but almost any of us could have pulled that lever, therefore, Gacy’s crimes horrify us, while Hiroshima is merely tragic. This is a simple rule: the closer the physical distance between two people, the more horrific we consider the violence. Choking someone to death will always be considered more horrible than shooting someone.
Lastly, a reply to this:
“This idea that U.S. soldiers are at real risk is probably more false than it is true (bearing in mind that risk is a relative term)”
This is a technically true but wildly misleading statement. Are soldiers today safer than they were in WWI? Certainly, we aren’t sent charging at machine gun nests as often, body armor is better, and we’re far better trained than our opponents. But “real risk”??? You bet your sweet ass we experience real risk. Every goddamn day. My last deployment, out of a 19-man platoon, we had 4 KIA and received 23 purple hearts. That is well over the average, but crunch those numbers a second. That’s a 21% chance of death, and a 121% chance of injury, on just one deployment. You want in my team? You name me another occupation that provides that level of risk. You have to understand that out of the million or so people in the military, only about fifty thousand actually fight, and that job is dangerous. No offense meant to any of the very necessary MOS out there, but being a radar officer on a battleship ain’t quite the same thing as kicking doors with 5th group or the 173rd. The guys who would be sent to capture a high-value target in a foreign country have one of the most dangerous occupations on the planet, so don’t say imbecilic shit like the above, please.
December 24, 2009, 5:19 pmMark Field says:
The Bush Administration admitted to three. It’s unclear if they were the only three.
I’m not sure what this means. Does it mean we shoot people waving a white flag? Or that we don’t put commandos at risk anymore and use drones instead?
December 24, 2009, 5:20 pmCornellian says:
The presence of the wife and kids in the house makes for an interesting wrinkle. I think the default assumption the public will make is that the wife knows and approves of her husband’s actions, as do the children at least if they’re old enough. So no one will care if they’re collateral damage, regardless of whether they’re innocent of actually engaging in terrorism. They’re pretty much per se accomplices and that assumption will be nearly impossible to dispel in the public mind.
The more interesting situation would be if the terrorist had just walked into a public building containing a dozen Americans who didn’t even realize who he was. How would the public react to a decision to blow up the building then? I suspect they wouldn’t be willing to write of a bunch of dead Americans as collateral damage because they understand those people were completely innocent.
The middle situation would be a building full of innocent, non-Americans unrelated to the terrorist, let’s say a few Chinese, a couple of Brits, two South Africans and a Russian. I suspect even there we’d have a particularly negative reaction to the decision to bomb rather than capture.
December 24, 2009, 5:21 pmTatil says:
I guess in your ideal world, we actually have specific intel about particular people and eventually capture them instead of offering money to people who bring in anybody that they claim are suspected terrorists, then we don’t simply abuse some of them, torture some of the others, send them off to some prison once they confess under torture and organize with fake trials where the assigned defense lawyers don’t even bring up evidence that shows the accused was not even in the same continent as the location of the supposed crime and the “lefty, liberal, evil, misguided or treasonous” media does not fail to cover any of these stories beyond a couple waterboarding cases.
{
How about many documented cases of innocent people who got tortured by using different methods and got released years later? How about the dragnets that brought in thousands of Iragis into our military prisons, where they were interrogated in an “enhanced” manner or abused or killed. Sure, mainstream American media does not bother covering them, but do you really believe people who gets worked up about torture is making a lot of noise only about these three people? It is partly about the numbers. Drone attacks are fairly rare. Compare that to the tens of thousands we had in custody at one time or another, a good portion of whom are said to be mistreated or tortured. I am pretty sure if a similar number of people were simply carpet bombed indiscriminately there would be an even bigger outcry.
December 24, 2009, 5:23 pmCornellian says:
In summary, I have no idea what I’m talking about, and neither do you, gentle reader.
That is undoubtedly true for the vast range of public issues, not just this one. But in a democracy we’re forced to make decisions about those issues on the basis of limited information because we have to choose for whom to vote from among candidates with a range of positions on those issues. It’s the system working as intended and not necessarily a bad thing, if you buy a “wisdom of crowds” type of theory of how democracies work.
December 24, 2009, 5:26 pmresh says:
There are some false propositions in this equation. To say that folks wouldn’t mind the blowing up of or blowing to smithereens the wife and kids (as a secondary effect) is not correct. Of course we’d mind. We’d mind each and every time, and few would prefer that action, especially as a guiding war doctrine, to that of an individualized torture instantiation.
But your scenario subtly employs the use of an acknowledged moral proscription in general-the elongation of pain via torture (contra the immediacy of “painless” incidental death)-and attempts to extend it to a particular instance that shifts the moral metrics. This is lawyer speak at its finest.
What is morally objected to is torture, ceteris paribus. That principle stands alone. Torture is less objected to and would not have the same moral repugnance when necessarily juxtaposed with the wanton slaughter of innocent kids and relatives as the reasoned alternative.
December 24, 2009, 5:39 pmGEORGE LARSON says:
nevadausa:
December 24, 2009, 5:45 pmMalmedy Massacre
None of the accused were ever executed.
From your Wikipedia Citiation:
“The Tribunal tried more than 70 persons and pronounced 43 death sentences (none of which was carried out) and 22 life sentences. Eight other men were sentenced to shorter prison sentences.”
Leo Marvin says:
Orin said,
Aren’t you conflating notions of personal self-defense in a criminal law context with those of national self-defense in wartime? Didn’t we have a right of self-defense to attack al Qaeda after 9/11, even though the attack was over and there wasn’t another on the way?
[OK Chimes In: Leo, I agree, but I am just assessing the analogy given, not making it myself. If you take the broader self-defense claim as to national interest, then presumably it applies to interrogation and detention as well.]
December 24, 2009, 5:51 pmArkady says:
I’m not sure about that under the hypothetical you presented.
So, if we decide to call in the airstrike, we intend to kill the woman and the children. That intention, of course, colors the act, and, I think, would cause problems for a lot of us. This is a different situation from the one in which our intelligence indicates, incorrectly, that only the man is in the house. Later, we find out otherwise. In this latter case, we had no intention of killing the woman and the children, and I think that would make a difference in the moral evaluation.
December 24, 2009, 5:54 pmChris Travers says:
Is there any doubt that these would be considered war crimes today?
Iirc, several of the charges of war crimes. such as not rescuing victims of submarine attacks, for which German Admiral Karl Doenitz (Hitler’s successor and the man who negotiated the German surrender) was convicted of were excluded from sentencing due to parallel Allied war crimes.
December 24, 2009, 5:59 pmtroll_dc2 says:
Orin, I hope that we commenters are supplying questions, observations, and answers that meet your expectation as to what you wanted us to provide. Given the material that has been submitted, please consider taking on anew the issue that you raised and show us to what extent, if any, our comments have caused you to adjust your thinking.
[OK Chimes in: Troll, the comments have been terrific. The next post is already written in my mind, although I may wait given the low traffic of a holiday night.]
December 24, 2009, 6:02 pmChris Travers says:
For those who accept Orin’s distinction without geographical considerations, do you think that there would be less of an outcry if 10 people were arrested, held without trial, and turtured than there would be if a drone blew up a house containing a suspected terrorist and his family, and that house was, say, just outside Las Vegas?
What if we were conducting drone attacks against targets in Canada, the UK, or Germany?
I think the fact that these attacks generally occur in places which are largely outside of the control of any state with strong law enforcement/criminal justice systems is a huge factor, and it makes the issue FUNDAMENTALLY different than mistreating individuals in US custody.
December 24, 2009, 6:05 pmpot meet kettle says:
why would you think that given the current form of drone warfare, which is constantly being expanded, and kills 100 innocent civilians for every presumed (whose word do you have on this save the same entity that is doing the killings?) terrorist?
December 24, 2009, 6:11 pmpot meet kettle says:
last i checked, the constitution didn’t prohibit cruel and unusual punishment except in the case of serious bad guys.
i am with leo marvin on his position, except that nobody has been able to demonstrate a single instance of a legitimate ticking time bomb scenario, which all but reduces this to a gotcha hypothetical to morally compromise one’s discussion opponent.
December 24, 2009, 6:16 pmpot meet kettle says:
troll — pot misused statistics, and you didn’t catch it. Success rate of 1–5% does not mean that 95–99% of the people killed are innocents; rather, it means that only 1–5% of the bombs take out their intended targets. Bombs that go off target into vacant land, don’t explode, or hit empty buildings count against the success rate.
sorry, i used success rate to specifically indicate the number of innocent civilians killed for every presumed terrorist. if you want you can call it the false positive rate or effectiveness or whatever, but the killing of 20-100 innocents for every presumed terrorist has been documented by statistics from a variety of sources.
also, why do you think that bombs that miss have a special propensity to go into vacant land or hit empty buildings?
December 24, 2009, 6:18 pmpot meet kettle says:
i will not respond to your comment, except to note that it is plain ad hominem.
December 24, 2009, 6:19 pmricky says:
Interesting question. Perhaps related, why do we constantly wring our hands over the plight of the descendants of African slaves, while mostly ignoring the plight of the descendants of the Apaches, the Cherokees, the Seminoles et al? And why don’t Arabs feel any guilt over having enslaved Africans? And why isn’t there a big Israel Lobby in Germany?
December 24, 2009, 6:28 pmGaltish bus driver says:
This has been an incredibly useful and insightful discussion! Great question by Orin, and a number of really thoughtful comments have been added with genuinely useful rationales for why there might be an analytical distinction between the two courses of action — with only a few trolls.
There would seem to be the seeds here for a really interesting scholarly paper in the various rationales offered here for the question Orin asked. If anyone writes such an article, I hope OK will tell us all when it is published, or posted on SRN.
Great work. Great blog!
[OK Chimes in: I agree, the comments here have been among the best comments I can remember in any VC Thread. Great stuff -- very thoughtful and rich.]
December 24, 2009, 6:30 pmSteve says:
OK Chimes In: My recollection is that only three people were waterboarded: KSM and two others. That was a lot of public outcry for three people, especially given that (as far as I recall) no one questions that all three people were serious bad guys.
Even if we assume that’s true, I don’t think it was well-known until long after the issue had become controversial. Regardless, waterboarding is pretty far at the extreme end of “detaining and interrogating” (as shown, I guess, by the fact that we did it to only three people), and so it would make no sense for US forces to decide “well, if we can’t waterboard any more due to the public outcry, we might as well just take no prisoners.”
December 24, 2009, 6:39 pmJohn Moore says:
Orin,
I think the whole question rests on a faulty premise. You write:
This is confusing “the public” with those who make a lot of noise, and especially those who have a public podium.
“The public,” presented with that question, is likely to have quite a different response. Most people I know consider killing worse than torture, and killing of innocents (even as a side effect) worse than water-boarding a terrorist for the purpose of saving lives.
Those who object to torture but not collateral killing seem to value procedure and rules over fundamental morality and common sense. They are modern intellectuals – more attached to ideas than reality. Since “torture is evil” is international law, it over-rules the obviously (to others) greater harm of killing innocents.
There is also a very, very strong political effect here. Just as Afghanistan was framed as “the good [not Bush's] war,” so killing with UAVs is accepted (as part of that war) to be acceptable.
“Torture” became a huge club with which to beat Bush, and that has greatly colored the discussion. The power of the leftist media to frame an issue, and then convince the chattering classes to accept that framing, is evident here.
December 24, 2009, 6:46 pmChris Travers says:
Purpose vs. effect. The drone attacks pose different questions.
The whole purpose of firebombing Dresden and Tokyo was to kill civilians. Same with Hiroshima, and Nagasaki (given that a conditional surrender occurred prior to Nagasaki which was substantially identical to the eventual “unconditional” surrender agreement). There was no colorable argument that the civilians were just collateral damage– they were the main targets.
With the drones, you have questions about how much force is too much given the value of the target, but they are a far cry from carpet bombing cities with the sole purpose of killing as many civilians as possible.
December 24, 2009, 6:48 pmChris Travers says:
As I pointed out before death is inevitable to each of us. Sooner or later we all die. The same is not true for torture. There are also issues of how much control we have over something, etc. Sure we should try to minimize collateral deaths. That only makes good sense. However the extent to which we can reduce collateral deaths is substantially less than we can reduce torture. We can decide not to torture at all and instead use the tried-and-true interrogation methods which have been the mainstays of US interrogations since WWII. However, as long as we are at war, people will die.
I would object if we were targetting highrise appartment buildings full of people, carpet bombing cities, etc. However, until I see evidence of such strikes, I will simply withhold judgement.
December 24, 2009, 6:55 pmreadery says:
On a moral level, it’s similar to the pro-slavery argument. Surely enslaving a person is better than killing him, so if killing is the alternative slavery is the lesser evil. In essence, we made a moral decision that slavery is not in fact the lesser evil. Therefore, we accept as a matter of course that we can kill people but we can’t enslave them. Killing is part of the ordinary course of war, while slavery involves a special wrong.
What’s the difference here?
The consitition may not require us to implement conceptions of morality in war outside U.S. territory, but it certainly permits it.
December 24, 2009, 6:56 pmBill Harshaw says:
I’ll mangle this, but I think there’s a relationship with an ethical problem I’ve seen posed a few times. Suppose you’re looking down at train tracks, a train is approaching, there’s one switch currently set to have the train go down track A. On track A a family of five people are tied up, helpless. On track B is a man, also tied up and helpless. You’re standing by the control to the switch. Almost all people would hit the control to divert the train to track B.
Now the variation is–the family is still there, helpless, but now to save the family you have to push the man onto the track to derail the train. Most people refuse.
I think the gut feelings work similarly in Orin’s case. As JohnF says, bombing is remote and quickly over. Detention is closer and more of a continuing relationship.
(As a diversion, 11B…’s comments remind me of the discussion on Tom Ricks blog, The Best Defense, on whether the medals we give to the military encourage/reward bad actions.
December 24, 2009, 7:14 pmClayton E. Cramer says:
I think the real point has been made repeatedly: the immorality of the torture was only a concern because:
1. It appears to have gathered usable intelligence that saved American lives.
2. It was done on a Republican president’s watch. As others have pointed out above, leftists didn’t seem too upset about extraordinary rendition on Clinton’s watch, and they aren’t terribly upset about the indiscriminate killing done on Obama’s watch.
The CPUSA and their counterparts in Western nations were terribly concerned about abuse of prisoners, due process, etc. in the West–and full of excuses for what the Soviet Union was doing at the same time in the Gulag–and on a far larger scale, and often more abusive.
December 24, 2009, 7:15 pmClayton E. Cramer says:
Unfortunately, the Bush Administration at times seemed to be their own worst enemies. Had they explained when this issue first came up: “Look, we have used extreme techniques on three people, clear-cut bad guys–one of whom planned the 9/11 attacks–to get intelligence to prevent future attacks”: this might have helped a bit. But the core problem is that much of the moralizing from the left was really about partisan politics. There’s a lot of looting to do of the public purse, and you can’t do that so effectively if you aren’t in control of Congress and the White House.
December 24, 2009, 7:19 pmtroll_dc2 says:
“Nor (contrary to assertion elsewhere in this thread) were the Japanese anywhere near to surrendering prior to the atomic bombings.”
In fact, Tojo did not want to surrender even after Nagasaki. But the bombings caused the emperor to act to stop the war.
December 24, 2009, 7:44 pmRyan Waxx says:
[Deleted By OK. Ryan, your comments have been repeatedly in violation of our comment policy. I have warned you before, but you continue to be negative, sarcastic, dismissive, and insulting to other commenters. In light of that, I am banning you from our comment threads. If you think you can begin to comply with our comment policy, send me an e-mail or give me a call and we can discuss our status.]
December 24, 2009, 7:46 pmgeokstr says:
Doesn’t this imply that waterboarding would, at worst, also be at the extreme near end of “torture”?
Yet when asked to compare the evil of waterboarding, as used by us on three of the top planners of terror, a technique so (relatively) mild that even our captives know that there is no death or even harmful after effects, those on the left see no apparent moral or ethical difference between it and what our enemies do to those that they capture. Beheading (slowly, with a sawing motion), chopping off limbs, breaking limbs, non-stop beatings, et al, are not done to high level prisoners to obtain information on future attacks, since they never capture anyone with that level of intel anyway, but to journalists, women, children, and other innocents. And they are routinely inflicted for no other purpose than because their religion says they can, or as vengeance for thousand year old grudges, or maybe even because they just enjoy doing it.
In my opinion, this whole controversy over “torture” is totally political. It would be interesting to see what those condemning it now would be willing to do to a Timothy McVeigh if they thought he had knowledge of plans to blow up other buildings, perhaps in their own home towns.
As someone else above noted, there didn’t seem to be any condemnation of Bill Clinton for his policies of rendition. That only started when Bush did it.
December 24, 2009, 8:02 pmMark Field says:
I wasn’t aware of the practice of rendition when Clinton was President. Now that I am, I do condemn him for it.
Cold comfort, I suppose for the victims.
December 24, 2009, 8:24 pmArthurKirkland says:
Torture is a shabby shortcut favored by overmatched cowards (and, outside a brief period, shunned by the United States).
Drone bombing (apparently characterized by high collateral damage, relatively low accountability and limited verifiability), is another shortcut favored by cowards willing to increase their safety at the expense of victims who are faceless (to them).
Ignoring blowback and morality seems to make both tactics attractive in some quarters, though.
December 24, 2009, 8:35 pmJohn Moore says:
Irrelevant. Let’s put you on a waterboard, and then give you the choice: do you want to die, right now, or be waterboarded?
December 24, 2009, 8:44 pmKen Arromdee says:
Benefiting in any way from punishing the person, aside from the benefit we get just by taking him out of commission, is a conflict of interest.
December 24, 2009, 8:47 pmJohn Moore says:
AuthurKirkland:
Err, what’s cowardly about waterboarding KSM?
So you are volunteering to be in a snatch team that will go into Pakistan (or Yemen) and grab an AQ guy, Miranidze him, and then bring him to New York for trial?
December 24, 2009, 8:49 pmsteve s says:
”
I think the real point has been made repeatedly: the immorality of the torture was only a concern because:
1. It appears to have gathered usable intelligence that saved American lives.”
There is no direct evidence that we got actionable intel from torture. Those tortured have admitted that they lied to stop the torture. There is substantiated evidence that we got actionable intel from traditional FBI techniques. We will not know if we got good intel from torture until they open the records. Ever wonder why they destroyed those tapes?
December 24, 2009, 8:58 pmpot meet kettle says:
ryan, you are arguing in bad faith with unnecessary attacks – calling me a liar with no justification. if you cared, you would know that this information is just a simple google search away and is not uncommon knowledge. your kneejerk attacks seem to indicate needless belligerence without an interest in facts. anyway, for your perusal, i will give you but one doc which cites a couple of studies from all sides of the spectrum.
even if you count people labeled by the us government (which has a vested interest in this) as low-level militants, arguably people who shouldnt be killed, the most favorable estimate says that about 40% of the casualties caused by drones are civilian. of course, this study severely lowballs numbers from some big events, and the number increases when those are corrected. you can see a few citations here: http://www.allvoices.com/s/event-4800148/aHR0cDovL3d3dy56bWFnLm9yZy96bmV0L3ZpZXdBcnRpY2xlLzIzMzQ2
have a great christmas.
December 24, 2009, 9:03 pmChris Travers says:
But how many might consider jumping on the track themselves?
I probably wouldn’t for strangers. I would certainly do so for loved ones.
December 24, 2009, 9:19 pmChris Travers says:
It’s not clear to me that it is that much more risky for an F-22 to be sent in or that collateral damage would be less. The fundamental question is how much force is too much force in an air strike. A lot of this has to do with the value of the target.
Dropping a 1T bomb on an apartment building to kill one operative would be different than trying to kill an operative in a one-family residence (even if it was the home of an extended family) with a similar ordinance. And certainly carpet bombing Islamabad to kill any militants who happen to be within the city is out of the question.
These aren’t questions with clear-cut answers. I don’t think that one can categorically rule out drone-based strikes any more than one can categorically rule out the use of army commandos. However that doesn’t mean that serious questions don’t remain.
December 24, 2009, 9:26 pmreadery says:
Bill Harshaw
In the specific case I would do nothing.
i would not take an action that would deliberately kill a known innocent person. if i divert the train I have taken an action. if i don’t divert the train, i have not caused any consequences.
That said, I would quite likely divert a nuclear bomb or an airplane from striking a city and cause it to go down in a rural field, even though its quite likely i would kill someone by doing this. There are two reasons for this. One is that in the city i am certain of death while not certain about the rural area. The second is, while i’m quite comfortable doing nothing if the ratio is one death versus 5, I would be less comfortable with this approach if the ratio were one death verses a million or more. That is, my serenity at following the Hipocratic rule has a breaking point. This is not necessarily an ethical contradiction. Truly mass death implicates the survival of whole societies and perhaps the human species as a whole in ways that a small number of deaths does not. To me, it is very clear that human life involves infinities, and hence it is clear to me that 5 times infinity is not necessarily greater than one infinity. Because of this, for these small numbers I would feel comfortable not touching the switch and not judging between the two. But death on a scale threatening whole societies is in a sense transfinite, a higher order of infinity than ordinary infinity. I’m only using a metaphor, it is not a matter of precise calculation.
December 24, 2009, 11:50 pmreadery says:
I’ll point out that diverting the train or doing nothing aren’t my only options. I might be able to do something to stop or slow or divert the train, or at least attempt to. i don’t have to stay inside the box dictated by the artificial problem: indeed, it would be my clear ethical duty to get out of the box if i possibly could. That is, it would be my duty not to accept the options dictated to me but to attempt to discover and implement new options. i would consider myself to have done my duty even if an attempted out-of-the-box third option had a small chance of success.
December 24, 2009, 11:57 pmOliver says:
As one of those people who objects more strenuously to detain-and-torture than to just-kill, my reasoning is: torture is NEVER justified, while killing sometimes is (eg. self defense) (ie. torture-in-self-defense is a non sequiter) I guess this validates OK’s inferrence (see later post), but it shouldn’t–you see, I think OK infers that I am taking too little of the picture into account, where I think the premise of the question assumes torture CAN be justified. If OK does believe that, we have a disagreement in principle, not just in evaluation.
December 25, 2009, 12:35 amClayton E. Cramer says:
I expect that they destroyed the tapes to make it more difficult for the ACLU to obtain them to use for them to bankrupt American military and civilian personnel who were doing what they were told to do, to prevent another disaster like 9/11.
December 25, 2009, 12:53 amClayton E. Cramer says:
I understand that there were people taken in custody in Afghanistan who may have not been our enemies–just someone seized by warlords eager for some quick bucks. But are you really suggesting that the people who were subject to rendition in the Clinton Administration were “victims”? I don’t doubt that if there were thousands of people subject to rendition back then, that the law of averages would mean that at least a few of them were probably “wrong place, wrong time.” I think you are going to have to present some real evidence to support your “victim” claim.
Governments make mistakes, no question. They are even known to sometimes intentionally pick on people for domestic political considerations. But I have yet to see evidence that the Clinton era renditions were were widespread, or driven by political nastiness.
December 25, 2009, 12:58 amClayton E. Cramer says:
Mr. Kirkland needs to stop thinking in bumper sticker slogans.
There are circumstances where extraordinary situations require extraordinary actions.
I cringe at waterboarding. But KSM was unquestionably an evil person, and there was good reason to believe that additional attacks were planned, of which he had operational knowledge.
There are big and serious problems with the use of torture for interrogation. One is that the reliability of data so obtained is often quite weak. (It would not take much torture to get me to confess to assassinating John Kennedy with a bazooka.) There needs to be some way to verify that the information that you have obtained is accurate. If you can’t verify the information, then you are not just engaging in a reprehensible practice–you are wasting time and demoralizing those who are doing the torture.
I’ll put this back on Mr. Kirkland’s shoulders to show his moral superiority. Some years back, in Florida, there was a child kidnapped, and buried underground in a coffin with limited air supply by the kidnapper, for ransom. The kidnapper was grabbed during the ransom pickup. If you have no other method of finding out where that child is located, is it permissible to rough up the kidnapper to get information from him on where the victim is located?
Situations like this happen with more regularity than you seem to think. The kidnappers who hijacked a school bus in Chowchilla, California, some years back, locked all of their victims in an underground storage tank where they might well have died of thirst if left their for weeks on end, and again held them for ransom. Assuming that you arrested those picking up the ransom, what level of interrogation are you prepared to use to get information? Remember that if the bodies are never found, you can’t successfully prosecute the kidnappers for murder–and you may not even be able to successfully prosecute them for kidnapping–just extortion, because they are trying to get money for a kidnapping that they will claim someone else did.
I certainly would not want to see torture legalized. But I do recognize that there are exigent circumstances that may require some extraordinary methods of obtaining information. The right solution is to leave it illegal–and have those put in these difficult circumstance having to justify their actions to the President or Governor (depending on jurisdiction) for a pardon. I am disappointed that President Bush didn’t issue such pardons before leaving office.
December 25, 2009, 1:12 amRicardo says:
You are adopting the consequentialist mindset and implying that it is somehow “obvious” or more in touch with reality. Note that with this mindset, it goes without saying that it is a horrific crime for people in wealthy countries to stand by while poor people die of malnutrition or treatable illnesses. Is part of your morality a massive increase in aid to poor countries?
If not then you are willing to consider not just the effects of particular actions but to consider a system of rules and the actions and effects it tends to generate.
And I’m not sure where you got the idea that “torture is bad” was somehow invented by international law types. William Blackstone said as much in his treatise on common law and the English Bill of Rights contained a passage prohibiting “cruel and illegal punishments” which was understood to aim squarely at royally sanctioned torture. This same passage, of course, was incorporated into the 8th Amendment of the U.S. Constitution with the [redundant] word “illegal” changed to “unusual.”
December 25, 2009, 2:48 amRichard Aubrey says:
[Deleted By OK. Readers, please do not respond to Richard Aubrey. He is a long-banned commenter who keeps changing his IP address and commenting again despite the ban, leaving his trademark obnoxious and dismissive comments. Please do not respond to him: I'll delete the comment soon, and I'll probably just delete your comment responding to him. Thanks, OK.]
December 25, 2009, 10:34 amSteverino says:
This is part and parcel of the whole confusion that Orin Kerr is wondering about.
Number 1, we don’t use waterboarding as a “punishment.” We use it to extract information to protect lives.
Number 2, I and thousands of other service members who’ve undergone the procedure in training have been surprised to learn, from those who aren’t familiar with it, that we’ve been “tortured” by our own government.
I’m not going to bother researching the issue now, but if memory serves I can recall Eric Holder admitting that he’d have a very difficult time prosecuting anybody who’s participated in waterboarding detainees for violating US statutes against torture.
It just isn’t that clearcut.
I know I’m on safe ground when I say that the waterboarding-is-torture crowd has no intention of ever letting any of this see the light of day in a courtroom where their pet theory can be shot down. It is much better to try it in the court of public opinion where they can assert their aesthetic preferences as if they were natural laws or established facts. After relieving themselves of the responsibility to establish them.
Consequently, I view the juxtaposition as simply more evidence that human beings are incoherent beings. They may acknowledge the necessity of an act in circumstances where time does not allow their emotions to lead them astray, as in the case of a drone strike on a terrorist compound. When they learn of it, it’s a done deal.
But in other circumstances, i.e. detention, their emotions have a lengthier period of play. The same necessity may exist; you don’t necessarily have “all the time in the world” if you learn by other means that a terrorist strike may be about to occur and you are holding a detainee who may have information that can prevent it.
The same necessity exists; a lot of people can rationalize that necessity away.
A distasteful act becomes harder to condone the more personal it becomes.
We invaded Iraq every day for 12 years following desert storm. But as far as most disinterested citizens were concerned, it was a battle of machines. An F-15 and an anti-aircraft battery exchanged fire. Ho hum. But send infantry across the border and all of a sudden they’re against invading Iraq.
Killing by remote control just doesn’t sieze the imagination. Recall another juxtaposition: the “Cheney assassination squads.” People were up in arms over the possibility the CIA may have considered setting up hit teams to go after high value targets in Afghanistan and Pakistan. People were concocting all sorts of arguments that such a thing would be illegal. The fact that the same arguments would make the drone strikes illegal never occurred to them. The fact that we were blowing away hundreds of individuals in south Waziristan while they were making those arguments never dawned on them.
It is simply easier to launch the cruise missile than to pull a trigger on somebody you can see in your rifle sights. And it’s easier to shoot someone than to kill them with a knife. For most people.
And political opportunists can take advantage of the different emotional reactions to not only the act but even the idea. The opportunists know that, when push comes to shove, most people will prefer to hold beliefs that the majority emotionally reacts to as “good” rather than be logically consistent.
December 25, 2009, 4:24 pmTatil says:
Do you mean if the administration actually used “extreme techniques on only three people”? Unfortunately, torture was much more widespread and many innocents were swept up.
December 25, 2009, 8:16 pmeyesay says:
Those aren’t supposed to be the choices. It is against U.S. law and the Geneva Convention, which the U.S. has signed, to torture, and waterboarding is torture, so we’re not supposed to do it. The theoretical justification for waterboarding is to coax the prisoner to reveal secrets in exchange for the waterboarding to stop. As a practical matter, this theoretical justification is a hoax. The CIA admits that statements made by prisoners to get torture to stop are not reliable. For example, The prisoner may say “The plan is to strike city A in 15 days” when the real plan is to strike city B in 10 days, or the prisoner may name someone from his own country whom he wants eliminated as the plotter of an attack against the United States.
But even assuming arguendo that torture were acceptable morally, under U.S. law, and under treaties which the U.S. has signed, and were effective at gaining useful information (four untrue assumptions) it would still be unacceptable here because as Orin Kerr has framed the question, the purpose of waterboarding doesn’t even seem to be to gain useful information. It seems to be only for the purpose of punishment and retribution.
December 26, 2009, 5:20 amJon says:
if it is now legal and expectable for America to deliberately kill the wives and children of their enemies would not be expectable for America’s enemy to deliberately kill American women and children ?
December 26, 2009, 3:52 pmJohn Moore says:
As for this “consequentialist” mindset, it is indeed obvious to a huge number of Americans – as polls have shown. Evaluating the consequences of acts is usually prudent – often more prudent than worry about who would approve or disapprove, or which procedure or law can be twisted to allow or disallow the act.
Non sequitur re poor people, etc.
December 26, 2009, 5:31 pmPatriot Henry says:
The govt controlled mass media spent a great deal of resources covering waterboarding, thus many people are opposed to waterboarding. Very few resources covered the evidence of much less savory forms of torture, and thus very few people are opposed to it. The same applies to targeted murders – very little coverage and none opposed to it. Those who control the news control people’s views.
December 27, 2009, 4:01 pm