A truly terrific comment thread has developed in response to my post below that asked why a lot of people have less problem with just blowing up a terrorist suspect together with his family than detaining just the suspect and perhaps interrogating him. I wanted to offer a few thoughts on what the comment thread suggests, and the possible lessons to draw from the very insightful and interesting reactions of our readers.
The lesson I draw from the comments is that perceptions of necessity drive a lot of our reactions to the different policy choices. We’re okay with the government doing extremely bad things if they seem necessary, but we’re outraged by the government doing less bad things if they don’t seem necessary. In other words, our reactions are governed not by the actual extent of the harm our government inflicts but instead by the implicit moral claims made in inflicting even a much smaller harm when it isn’t needed.
Take the case of blowing up the house and killing the suspect with his family. In our minds, we imagine that there is no plausible alternative to stop the suspect. We adopt a time frame of the one instant before the U.S. officials pulled the trigger, and we figure that — at that moment — there is no real choice. If we don’t pull the trigger, the bad guy goes free and lives to plan a future attack against us. At that moment, we imagine, you gotta pull the trigger. So we’re okay when we hear that the government launched a drone attack that killed a bunch of people, some of which were civilians. We imagine that instant and remember that you gotta pull the trigger.
Now switch to the alternative in which only the suspect is detained, and he his brought to Gitmo and then at some point waterboarded. Now we adopt a new time frame. Whereas before we imagined the need for an instant decision to be made, now we have all the time we need. Whereas before we imagined the bad guy going off and killing a bunch of Americans, now we start from the premise that the detainee is a threat only if he is released and he actually does turn out to be a bad guy.
At this point our sense of necessity is quite different. The only necessity is detaining the suspect if he is actually an Al Qaeda member. The way to find out if he is really an Al Qaeda member is through Due Process and hearings with lawyers, in order to learn if the detention is necessary. And interrogation isn’t necessary unless you are quite confident that the detainee has information that will save lives that only a particular interrogation technique will yield. The more skeptical you are about particular interrogation methods, the less necessary the practice is and the more it becomes mere gratuitous infliction of pain. The necessity calculus is totally different.
Let’s assume I’m right about this, and these perceptions of necessity explain the two reactions. In that case, I think we’re overlooking the really key step: The policy choice, made ex ante, as to whether to try to detain and interrogate suspects or whether to just try to kill them. The proper time frame has to include that early decision, too. Exactly how often this choice is genuine is a good question, and it requires expertise in military affairs that I just don’t have. But my understanding is that these policies are made, and they have a very real impact on our practices. We had a lot of detainees after 9/11 because the Bush Administration decided that it could best find out about threats by detaining people and interrogating them. At some point the policy switched, and we stopped taking on new detainees in any serious number. (UPDATE: This op-ed by Jack Goldsmith, former OLC head, gives you some idea of how the policy choice looks from the government’s perspective.)
That policy choice of whether to try to detain and interrogate is critical because it manipulates our sense of necessity and yet itself seems hidden. The policy determines whether we end up in one situation or the other. It therefore determines when and whether we end up in a position to perceive our acts as necessary. But there has been little focus or attention to that policy in the press, as far as I know. If we are really concerned with necessity, I would think we need to start with that policy choice and get a sense our realistic options. We then need to decide on a policy of when to detain suspects and when to blow them (and everyone nearby) to smithereens. I suspect if we had a sense of that choice, we might have slightly different (or at least better informed) reactions to our government’s choices.
Skyywise says:
Very well articulated, OK. This should be widely cross-posted and linked-to as a starting (restarting?) point for such debate.
December 24, 2009, 8:12 pmRicky Nelson says:
What’s missing from the analysis is that the decision to detain rather than kill encompasses more than just intelligence needs. Detainees provide better theater than someone who was killed by a drone. With detainees you get a trial and a final judgment for everyone to bear witness to. A drone killing is news for a couple of days and gone in a flash. And a drone killing doesn’t give the public much comfort that the US is winning the war on terror. You always have to ask who will take the deceased’s place.
But if you detain high-profile terrorists and try them in a court for the world to see, I think it goes a lot further than drone killing in shoring up public opinion that we are winning the war. To be able to take the most revered member of an organization and cast judgment on them is quite the statement. Granted, the Bush Administration showed little interest in putting on actual trials for detainees, but I do think the BA thought detainees would provide a positive PR value–at least in the beginning.
December 25, 2009, 1:02 amDan Simon says:
Orin, could you clarify who “we” is in your argument? Are you asserting that a reasonable person might argue that firing a missile into a terrorist safe house is more urgent than torturing a terrorist detainee? That many people who oppose torture of terrorists but remain indifferent to missile strikes on terrorists do make such an argument (at least implicitly)? That most such people embrace this argument? That you embrace this argument?
(I apologize–not being formally trained in Constitutional law, I’m probably less versed than most VC readers in the conventions surrounding this sort of discussion, where hypothetical good-faith rational motives are attributed to transparently partisan political positions. I’d be interested, for example, in your trademark careful analysis of the logical basis for so many people expressing so much more outrage at Israeli missile strikes against terrorists, compared to the American variety.)
December 25, 2009, 2:44 amgeokstr says:
Professor Kerr, I think you have set up a false dichotomy, in that you believe there are only two choices – to oppose both drone killings and aggressive interrogation of prisoners, or oppose one or the other, based solely on philosophical, moral or ethical inclinations.
As many pointed out at the end of the last thread, some on the right suspect that this distinction is political, i.e., that the opposition to aggressive interrogation is at least in part driven by the fact that it is a convenient issue with which to whip Bush/Cheney.
[OK Comments: To clarify, I don't believe there are only two choices. In theory, there are an infinite number of choices. However, I am trying to accurately capture the kinds of choices that government officials of both parties feel they have to make. See the Jack Goldsmith op-ed cited above,]
December 25, 2009, 8:40 amHoward Gilbert says:
Apply this same analysis to the criminal justice system. What is the reason for imprisonment? Is it to punish the criminal, to keep him off the streets so he cannot commit more crime, or to attempt to rehabilitate him? Why do we accept imprisonment but no longer accept whipping? While philosophical musings about the nature of criminal justice may have a place in academia, in the real world judges sentence criminals according to the law and sentencing guidelines and they don’t meditate on the meaning of law every time a criminal is found guilty.
So it is with the conduct of an armed conflict. The military conducts its operations according to the laws of war and the orders from superiors. An enemy combatant may be targeted. When killing an enemy combatant raises the chance of killing civilians, those deaths must be proportionate to the military objective. While you are under no obligation to offer surrender, if an enemy surrenders to you he must be treated as a prisoner of war. These are the rules of armed conflict that you apply without a deep search for the meaning of life, just as the judge does not ask himself why one act is a Class A felony while another is Class B.
“The only necessity is detaining the suspect if he is actually an Al Qaeda member. The way to find out if he is really an Al Qaeda member is through Due Process and hearings with lawyers, in order to learn if the detention is necessary.” First, the necessity of detaining a German soldier in WWII was because he was a soldier in the Wehrmacht not because he was a member of the Nazi party. The question is whether someone is an enemy combatant, not whether he is a “member of al Qaeda” (an entity that may not have any actual members since it is technically a charitable foundation formed under Islamic law). Secondly, for over two centuries the American people have respected our military and left to them the decision about whether detention of enemy combatants is necessary. The laws of war make it clear that enemy soldiers who are no longer able to participate in combat, because of illness or injury, can be immediately repatriated on humanitarian grounds. That decision has always been made by the military, not by lawyers and courts. Now if you distrust the military you are free to express your opinion, but not to just assume without discussion that the practice of centuries has to be replaced by some new system in which the Executive can never be trusted and the lawyers (but not the rest of the people) get to second guess every decision.
December 25, 2009, 10:07 amRoger Zimmerman says:
What’s missing from this discussion is context: Are we indeed at war? If so, then the proper role of government is to define the goal of the war and then to use all available means to achieve that goal as quickly as possible, with the least practical cost to our side. If that means remote killing with concomitant collateral damage, so be it. And if it means capturing some targets and extracting useful information (i.e. information that will benefit the war effort) from them without regard for their alleged “rights”, then that is the duty of our government.
“Just war” theory is complete garbage, and has always been used to coddle thugs. The idea is to win the war as quickly as possible and in a way that completely defeats the enemy’s will to fight. If your side is “just” – which, in context, means that it is a state with institutional respect for individual rights, under attack from an enemy which has no such respect – you have all of the justification that is needed.
Of course, our anti-philosophical leadership has reneged on the first part of this duty – which is to clearly define the goal of the war. As such, it is nearly impossible to judge whether _any_ of its actions serve a legitimate purpose. It is only in this ideological vacuum that these questions of propriety of specific tactics may arise.
December 25, 2009, 10:56 amJohn Moore says:
I think Orin has hit on one of the reasons there is so much controversy about the tactics described (and others – say, Agent Orange in Vietnam): the perception of necessity.
In today’s highly polarized times, different sides have vastly different ideas of necessity, and thus castigate opponents as immoral (there wasn’t a necessity) or dangerous fools (there was a necessity and the opponent condemns the tactic).
The necessity idea thus leads to the tedious arguments about whether torture is effective. Those who think it is not necessary buttress their arguments with assertions that it is no effective, and vice versa. It could easily lead to similar arguments about targeted killings, and depending on whose political goose is to be cooked, such arguments could rise to major national controversies.
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Again, though, one must take exception to Orin’s characterization of what “we” think about policies. There’s more than one “we” in the debate, and we have strongly different ideas on this issue. Hence a polite discussion about why “we” have a particular idea is a bit mis-framed.
The press is not interested in nice debates. The press is highly partisan. Hence even Abu Ghraib (an isolated and predictable aberration) was held up as evidence of immorality on high, and waterboarding and the Clinton practice of rendition was beyond the pale. The reason: Bush was in charge.
Now that Obama is losing his left wing base, don’t be surprised if we start seeing more and more stories decrying the killings. The plot line will be familiar – they don’t work (and hence are unnecessary); they kill innocents and hence are immoral; they create more terrorists than they kill (and hence are a bad idea); they turn the drone operators into monsters (well, they tried that with torture – it may not fly here).
December 25, 2009, 12:00 pmanon says:
I don’t get this post at all (but it is true this morning I made coffee without putting a coffee cup into the machine.)
I do think you set up a false dichotomy, in that you ignored the actors involved.
On the battlefield, I give a lot of leeway to the actual soldiers and drone pilots, assuming they are being governed by the UCMJ. But when I hear how so many drone attacks kill 30 and always 30 people, I do wonder a great deal more about their leadership and what we are doing with drones. Nevertheless, it’s a huge leap to assume a drone operator has a choice of capture of a suspect.
So the populations of Gitmo and drone targets does not necessarily have a huge overlap as I think is needed in your example.
I think your analysis of why we are offended by torture at Gitmo is reasonable.
The difficulty is in not giving people who *could* reasonably capture a large incentive for killing instead. Over at FARK, where I learn law, I know there are far better outcomes to the homeowner who KILLs the home invader than there are for homeowners who merely wound invaders with a baseball bat.
It is said it’s easier for the battlefield commander to kill the terrorist than to capture him, but if we want the information, we need to capture them, and then deal with the legitimate civil liberties and human rights issues of how we treat prisoners once they are off the battlefield.
I really don’t think we should or need to water that down.
In WWII, in Europe and the Pacific we captured many prisoners and saved many US soldier’s lives because our enemy knew of our fair treatment.
December 25, 2009, 2:57 pmgeorge weiss says:
As i understand it, the question on the battlefield is
can we detain? or MUST we kill.
true, we don’t second guess that question…becuase its already a moot point. we also dont second guess it becuase we seem to have enough faith that the people killing the supposed terrorists/enemies/enablers are in immidiate danger. we might later second guess it if the family of one of the killed comes here to america and alleges their innocent family member was summarily killed by the coalition military.
but once there has been a detainment there is no longer a danger…so we (some) demand the second guessing (some kind of nutural fact finding process-as in Hamdi i guess). we also have the individuals themselves or their family members making that noise in federal court that they are innocent.
but this isnt that diffrent from the normal criminal context.
we don’t usually second guess cop decisions to kill a suspect who the cop says was pointing a gun at him…until the family files a lawsuit claiming otherwise. we do, however, prefer the cop find a way to arrest rather than kill if he can.
but regardless…if the cop does arrest..not kill…would anyone say no trial is needed at that point?
December 25, 2009, 4:19 pmgeorge weiss says:
ok just realized i essentially just repeated what you said in the post.
what about the criminal context analogy with the officer and the armed suspect?
December 25, 2009, 4:25 pmLeo Marvin says:
Orin said,
I agree that’s the priority, since wars can’t be paused for philosophical naval gazing, but if notions of necessity are driving life and death decisions I’d think we’d want the clearest consensus possible about what’s necessary. That’s why it’s so troubling that our political differences make civil discussions like the one Orin moderated last night so scarce. We need those discussions to understand each other’s thinking beyond just knowing we disagree with it. John Moore is correct that our norms differ from person to person, but I think they also have more in common than anyone would guess from all our vitriol over the differences. A better understanding of those similarities and differences might make policy battles more productive.
December 25, 2009, 5:57 pm