The Volokh Conspiracy

Note the following ambiguity:

Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours.

I imagine that "forced" means something here other than "sent a stern letter on the topic."

Personally it's only fear of a "slippery slope" (to other people, not to more severe methods) that keeps me from applauding the torture of "a dozen top al Qaeda targets."

I don't begin to have problems with these techniques until we come to number six and I don't get too worked up about that one. I do think that the stakes need to be pretty high to water-board one of these guys and there should certainly be some safeguards in place (medical personnel standing by outside the view of the prisoner for example) and it should be approved a very high level (director of CIA or higher) before it is used.

The television report said that KSM held out the longest (2.5 minutes) when waterboarded. Given who he is and what he is responsible for I won't be losing any sleep or his alledged "torture".

I do agree that this sort of treatment (torture it ain't) is a slippery slope though. The agency needs to be very very careful using number 5 and 6.

I'm sure glad we're not using that inhuman panties on the head torture.

Seriously, the first four techniques are hardly "torture".

In reference to technique number 5, my only concern would be if this tactic lead to prisoners dying of pneumonia or the like. However, I have no idea if that is happening or not.

As for the last one, I believe it differs quite a bit from the practice that I think people are associating it with. If I remember correctly, the "medieval" technique involved actually drowning the individual, then pumping the water out of them and resuscitating them. This current practice falls well short of that older practice and hardly seems dangerous to their health. The cellophane is wrapped around them to prevent them from intaking too much water. They don't actually drown in this case. They AREN'T being hurt. Its just a nice little demonstration of playing mind games on them, hardly torture.

I don't begin to have problems with these techniques until we come to number six and I don't get too worked up about that one.

I certainly hope that you never find yourself in a position where "No. 6" is being applied to you, even if it's Not Really Torture. Back at the turn of the century, waterboarding was known as "the water cure" and US troops used it routinely against Filipino insurgents. This caused an awful stink in the US press - apparently they weren't as attuned to the finer points of defining "torture" back then as we are today.

Question - why is it that when the NVA or other adversaries apply these methods to US POWs or other captives, it's torture, but when we apply them to our enemies, it's "aggressive interrogation?"

Isn't it funny that the people that approved these techniques, just three or four years ago were participating in OCI, and glad-handing at Federalist Society events with forced smiles? Many of them went to TTTs (like GMU) and really needed to gladhand because they didn't have the grades for BIGLAW.

To those of you who think torture is "no big deal":

Have you read any classics on military warfare? Have you been in combat or spoken to those who have been in combat? Here's why I ask...

If I learned that those techniques noted in the story would be applied to me, I would fight to the death rather than surrender. Think about how this impacts American soldiers. Someone who thinks he will be tortured to death will be more likely to take some American soldiers with him. He will fight relentelessy since, thinking he will be tortured to death, he has nothing to lose.

Which is why I oppose torture. I don't have too much of a moral problem with using nasty techniques on people who want to detonante nukes in the city I live in. But I do have a problem with needlessly torturing people, because it means those who will be tortured, instead of surrending, will fight to the death. This puts American soldiers at risk.

Is there a link to more information about the "100 died in captivity" figure? I assume some large percentage are those who died of the wounds they suffered when they were captured on the battlefield, or from wounds they suffered when they tried to escape.

As for the idea that having Americans perform these acts will corrupt them in some way...it wasn't that long ago when lots and lots of cops probably slapped much less vicious people on a fairly regular basis. Maybe they still do. I wouldn't want to do it, but members of the military must find a way to do unpleasant things--like killing people--without breaking down all the time. Perhaps they say to themselves, this unpleasant task is necessary to ensure the security of the U.S.

As for whether it makes terrorists less likely to surrender peacefully if they fear a serious slapping upon capture...I'll leave this judgement up to the people doing the capturing.

Here's an article about 26; I'll next post an article about 108.

U.S. Military Says 26 Inmate Deaths May Be Homicide
By Douglas Jehl and Eric Schmitt
The New York Times

Wednesday 16 March 2005

Washington - At least 26 prisoners have died in American custody in Iraq and Afghanistan since 2002 in what Army and Navy investigators have concluded or suspect were acts of criminal homicide, according to military officials.

The number of confirmed or suspected cases is much higher than any accounting the military has previously reported. A Pentagon report sent to Congress last week cited only six prisoner deaths caused by abuse, but that partial tally was limited to what the author, Vice Adm. Albert T. Church III of the Navy, called "closed, substantiated abuse cases" as of last September.

The new figure of 26 was provided by the Army and Navy this week after repeated inquiries. In 18 cases reviewed by the Army and Navy, investigators have now closed their inquiries and have recommended them for prosecution or referred them to other agencies for action, Army and Navy officials said. Eight cases are still under investigation but are listed by the Army as confirmed or suspected criminal homicides, the officials said.

Only one of the deaths occurred at the Abu Ghraib prison in Iraq, officials said, showing how broadly the most violent abuses extended beyond those prison walls and contradicting early impressions that the wrongdoing was confined to a handful of members of the military police on the prison's night shift.

Among the cases are at least four involving Central Intelligence Agency employees that are being reviewed by the Justice Department for possible prosecution. They include a killing in Afghanistan in June 2003 for which David Passaro, a contract worker for the C.I.A., is now facing trial in federal court in North Carolina.

Human rights groups expressed dismay at the number of criminal homicides and renewed their call for a Sept. 11-style inquiry into detention operations and abuse in Iraq and Afghanistan. "This number to me is quite astounding," said James D. Ross, senior legal adviser for Human Rights Watch in New York. "This just reflects an overall failure to take seriously the abuses that have occurred."

Pentagon and Army officials rebutted that accusation. Lawrence Di Rita, the chief Pentagon spokesman, said that he was not aware that the Defense Department had previously accounted publicly for criminal homicides among the detainee deaths in Afghanistan and Iraq, but insisted that military authorities were vigorously pursuing each case.

"I have not seen the numbers collected in the way you described them, but obviously one criminal homicide is one too many," said Mr. Di Rita, who noted that American forces had held more than 50,000 detainees in Iraq and Afghanistan over the past three years.

Army officials said the killings took place both inside and outside detention areas, including at the point of capture in often violent battlefield conditions. "The Army will investigate every detainee death both inside and outside detention facilities," said Col. Joseph Curtin, a senior Army spokesman. "Simply put, detainee abuse is not tolerated, and the Army will hold soldiers accountable. We are taking action to prosecute those suspected of abuse while taking steps now to train soldiers how to avoid such situations in the future."

In his report last week, Admiral Church concluded that the abuse of prisoners in Iraq and Afghanistan had been the result primarily of a breakdown of discipline, not flawed policies or misguided direction from commanders or Pentagon officials. But he cautioned that his conclusions were "based primarily on the information available to us as of Sept. 30, 2004," and added, "Should additional information become available, our conclusions would have to be considered in light of that information."

In addition to the criminal homicides, 11 cases involving prisoner deaths at the hands of American troops are now listed as justifiable homicides that should not be prosecuted, Army officials said. Those cases included killings caused by soldiers in suppressing prisoner riots in Iraq, they said. Other prisoners have died in captivity of natural causes, the military has found.

An accounting by The New York Times in May 2004, based on reports from military officials and a review of Army documents, identified 16 cases of confirmed or suspected homicide involving prisoners in American custody in Iraq and Afghanistan. At that time, however, just five were listed as confirmed homicides, with 11 of the cases still under investigation.

The Army defines a homicide as "a death that results from the intentional (explicit or implied) or grossly reckless behavior of another person or persons."

"Homicide is not synonymous with murder (a legal determination) and includes both criminal actions and excusable incidents (i.e., self-defense, law enforcement, combat)," according to an Army statement.

The new total of 26 cases involving prisoner deaths confirmed or suspected of being criminal homicides includes 24 cases investigated by the Army and two by the Navy, spokesmen for those services said. Two of the Army cases have since been referred to the Navy, and one to the Justice Department. The Navy said each case included a single prisoner death, but the Army said it was possible that at least some of the cases investigated by the service involved the death of more than one prisoner.

The Marine Corps said that nine Iraqi detainees had died in Marine custody, but that none of the deaths were homicides. It is unclear if this number includes the death of an Iraqi captive shot by a marine in a mosque in Falluja last November, an incident filmed by a television crew.

Neither the Army nor the Navy would provide a precise accounting of all of the cases now regarded as confirmed or suspected homicide.

At least eight Army soldiers have now been convicted of crimes in the deaths of prisoners in American custody, including a lieutenant who pleaded guilty at Fort Hood, Tex., this month to charges that included aggravated assault and battery, obstruction of justice and dereliction of duty. A charge of involuntary manslaughter in that case was dropped.

An additional 13 Army soldiers are now being tried, according to Army officials. They include Pfc. Willie V. Brand, who is facing a hearing at Fort Bliss, Tex., next week on charges of manslaughter and maiming in the deaths of two prisoners at Bagram Control Point in Afghanistan in December 2002.

But in some of the cases, including the death of an Iraqi, Manadel al-Jamadi, in Abu Ghraib in November 2003, most of those initially charged with crimes by the military have ended up receiving only nonjudicial punishments, and neither their names nor the details of those punishments have been disclosed.

Altogether, Army criminal investigators had conducted 68 detainee death investigations with 79 possible victims as of February 2005, said Lt. Col. Pamela Hart, an Army spokeswoman. Of those investigations, 53 have been closed and 15 cases remain pending, Colonel Hart said.

In addition to the 24 Army cases listed as criminal homicides and the 11 cases listed as justifiable homicides, 28 cases are listed as confirmed or suspected deaths from accidents or natural causes. An additional five are cases in which the cause of death has not been determined, Colonel Hart said.

Over all, the Army's criminal investigators have examined 308 cases involving allegations of mistreating detainees. They include the 68 death investigations and 240 other allegations of potential misconduct, like allegations of assaults, sexual assaults and thefts, Colonel Hart said. Of the 308 cases, 201 cases are closed and 107 cases were pending as of mid-February 2005.

In addition to the number of detainee deaths, other conclusions in the Church report have drawn scrutiny. The report, for instance, also asserts that psychiatrists and psychologists advising interrogators did not have access to detainees' medical files. That is in sharp contrast to reports from the Red Cross and interrogators interviewed by The Times.

The International Committee of the Red Cross said in a confidential report last July that the detainees' medical files were open to all. The report said that was unethical and that it diminished the medical care given the detainees, because it discouraged them from seeking medical attention as they knew the information would be shared with interrogators.

One interrogator said in interviews that the files were initially open to all and that it was a regular practice for interrogators simply to go into the detainee hospital and review the records. The interrogator said that when the hospital staff became more reluctant to share the files, the interrogators found that they could ask the psychologists and psychiatrists to obtain them.

Hank – “so these six forms are obviously only the tip of the iceberg.”

I don’t see how that follows. The list of detainees who have died in custody includes those who have died of natural causes as well as those captured wounded and sick. Surely, there have been some abuses, but it is a fairly gross error in logic to look at the list of interrogation techniques, the list of those who died in custody and presume causation. It seems to me that it behooves us to be accurate in our facts when we are slinging around accusations of war crimes and capital crimes, as if the facts showed such crimes and as if it was a proved matter.

I Forgot – You say “Isn't it funny that the people that approved these techniques, just three or four years ago were participating in OCI, and glad-handing at Federalist Society events with forced smiles?” Like John Yoo? Like Jay Bybee? Like Chief Justice Alberto Gonzales? Viet Dinh? Ted Olson? Yeah. Not good enough for biglaw. Mediocrities. Second raters. Nobody smart ever came out of a second rate school like GMU, or UCLA, or Emory, or Texas, or UC Davis, or Fordham, or GWU. Not to mention those Harvard-ites and Yalies that chose government work - guys like Alito, just Federalist glad-handers, not good enough for BigLaQ. Everybody knows that anybody who doesn’t work for a big firm must be dumb. Um, that would include most law profs, but who's counting.

It seems to me, I Forgot, that “I Don’t Know” might be a better pseudonym for you. You should look into it.

They don't actually drown in this case. They AREN'T being hurt. Its just a nice little demonstration of playing mind games on them, hardly torture.

What an odd definition of "being hurt." So if I stick some guy's penis in a pair of hedge clippers and scream at him that I'm going to cut it off, it's just a mind game if I don't really intend to do so? What if we give the people a drug or stimulate their brain so they actually experience that pain (a closer analogy to the waterboarding) without the cut? Is that all right? Pain and misery are in the mind, HLS. Just because someone doesn't really get physically injured doesn't mean that it doesn't hurt and that it's not torture.

But one important question that I haven't seen addressed in these comments is whether or not the treatment, torture, or whatever, actually works. Does it get people to tell the truth rather than simply say what they think their captors want hear. Everything I've ever read on torture has said that it has a very poor record of getting those types of results. It's good at crushing one's spirit and destroying one emotionally, but it doesn't get true facts. And if that's the case, then we're just punishing people horribly without a trial, not exactly behavior to be proud of.

At least 26 have been investigated as criminal homicides involving possible abuse.

So there is a maximum of 26? While the US shouldn't kill any prisoners, spouting off about 108 seems a little inflamatory.

Seriously, what percentage of captured Americans survive? I think the people executed on Al Jazeera would have prefered #6 to decapitation. Again, we shouldn't needless torture prisoners, but I'd say we still have the moral highground.

"All of you previous posters, please keep in mind as you debate which of these six forms of abuse constitute torture, that more than 100 detainees have died in U.S. custody"

True, but incomplete. Only about 24 (if I recall correctly) required an investigation. Any prison population is going to have some deaths, people with bad hearts, etc. Some were even killed during attacks on the prison by insurgents. Some were shot during prison riots. See this link.

Please also keep in mind that these "suspects" have had no due process, with respect to either their arrest or their imprisonment.

No longer true, Combat Status Review Tribunals will get working once the Courts allow them to start again.

The Red Cross estimated that 80 to 90 percent of our Abu Ghraib prisoners were innocent.

The Red Cross's judgment in this is suspect. They can only do minimal investigation. Read "The Interrogators" which said that "They all come in pretending to be innocent goatherders" The author was dismayed to find that people he was certain were innocent, were later found to be key Al Qaeda figures, once the necessary piece of intelligence has been received. It often took a long time to find that one bit. That's why we need to keep some so long. We have good reason to believe they are bad guys, but often lack the definitive piece of evidence that proves it. Remember these are battlefield detentions, not civilian criminal detentions.

No wonder we use secret prisons that the Red Cross can't investigate.

We use Secret prisons because the Supreme Court has virtually demanded it: We were forced to keep them off US soil, lest the terrorists use the courts to constantly challenge their detentions. So we tried Guantanamo. But Hamdi / Rasul required us to give them access to the courts anyway. So we were forced to go to other nations, where the US courts can't touch them. We were then forced to keep them "secret" because we can't have open prisons on foreign soil. If we announced where they were, they would be subject to attack by Al Qaeda: They love to attack those in prison,and they will even try to kill them to keep them out of the hands of the infidels.

If any other nation were doing what the U.S. is now doing, everyone of you would be calling for an international war crimes tribunal to try the leaders of that nation.

Let's say a country, oh, let's say India, were doing the same things the U.S. is now doing. You believe there would be the same world wide outcry as there currently is against the U.S.?

Ah, but India has been routinely doing these things, (at least up until quite recently), and worse. Not a peep from the bulk of the world. From a Human Rights Watch Report:

Indian security forces, including the military, paramilitary forces, and the police, routinely abuse human rights with impunity. The Indian federal government rarely prosecutes army and paramilitary troops in a credible and transparent manner. The result has been an increase in serious violations by security forces throughout the country.

The government’s repeal of the controversial Prevention of Terrorism Act (POTA) was a major step forward for civil liberties in India. POTA empowered security forces to hold individuals for up to 180 days without filing charges, broadening the scope of the death penalty, dispensing with the presumption of innocence by placing the burden of proof on suspects, and admitting confessions into evidence despite the frequent use of torture. The law was often used against marginalized communities such as Dalits, indigenous groups, Muslims, and the political opposition

And check out other Human Rights Watch Reports. You will find India is far from alone.

No, we are still among the most civilized, protective nations on earth. The fact that we have taken serious measures against serious terrorists does not mean we have forsaken our commitment to rights.

It is fundamentally different to use these aggressive techniques when trying to save life, than when third world dictators use them to suppress their populations.
If you have pledged allegiance to a group that uses mass murder as its only real tool, your right to claim the privileges of civilization should have been
at least diminished somewhat.

There are several problems with that argument. First, you have to assume as a matter of fact that the persons denied the privileges of civilization, namely freedom from infliction of torture and inhuman and degrading treatment, are actually deserving of the treatment.
Even though I accept that inhuman and degrading treatment might be a tolerable and necessary evil in some narrowly circumscribed situations, where the factual record was clear, I am troubled by the logical implications of granting the government power to apply such techniques in secrecy and without judicial oversight.

How may we ever know that those subject to such techniques are actually guilty? Some may well be, But what we have is only the government's say-so.

Second, while your position doesn't constitute an explicit justification for torture,your reasoning doesn't provide much of a limiting principle, or explanation as to why the boundaries of the permissible should be mild distress techniques and not torture.
if your right to claim the privileges of civilization is diminished somewhat by allegiance to death and destruction, I hope that you could state whether there remains any principle rejecting more severe torture that even most defenders of stress techniques aren't willing to condone.


Third, I take issue with your cavalier characterization of protection against inhuman and degrading treatment as a privilege. Again, that argument would be equally applicable to criminals.

So the second article just repeats the first: At least 26 have been investigated as criminal homicides involving possible abuse.

The other 74 were accidents, natural causes, justifiable homicides, and deaths caused by insurgents.

Hardly something to hyperventilate about.

Here's a resolution Congress should vote on:

"Resolved,
All members of this body approving of the six interrogations listed in part II of this resolution be made to undergo each of them for a period of one week, so as to confirm with irrefutable evidence that they are not torture."

Few broken eggs for our tasty anti-terrorism omelet, eh?

This thread is disgusting.

Not one of the six techniques qualifies as torture.

Yours,
WInce

I'm so naive. I would have thought that the CIA interrogating someone by hitting them with the intent to cause physical pain and fear is torture. And yet, here I find out that is just schoolboy pranks.

Maybe I was thrown off by that notoriously anti-schoolboy Convention against Torture, which states:

"For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

Although I guess I just forgot that when they say "severe pain or suffering, whether physical or mental," they actually mean "death or major organ failure".

This whole argument is resting on a red herring.

First, No one (or at least not I) is arguing that we should be torturing or using the 6 methods listed in the article on anyone we detain. They should be reserved only for dire situations, the worst of the worst, etc.

Second, I believe just as much as the next person that if any American forces tortured to death or murdered a prisoner, they should be prosecuted.

That being said, the debate revolves around what are the acceptance methods of interrogation for our solders. All of this hyperventilating about the detainee deaths, etc. is beside the point.

Yes, I understand the argument that allowing these methods can induce our soldiers to think other forms of "torture" are acceptable. But, they aren't. The soldiers do or should know that. If they break the law, they should be punished. It is as simple as that.

As such, all of these references to the deaths etc. are just attempts to take a weak argument and bolster it by connecting it to all of these "bad things" that everyone would agree are wrong. So, please stop. It's why people dismiss your arguments out of hand.

One poster brought up a subject that is supremely relevant - the relative efficacy of such "torture" methods vs. other methods.

I'd love to hear some informed comment on that. (not that I don't already have my own uniformed opinion)

Mike,

Good, I'm glad the terrorists don't have hope. I really do pray what they undergo is worse than what I and many fraternity men go through. Otherwise, our American system really would be messed up.

For some strange reason, I have no sympathy for their "lack of hope". Maybe its just me, but I'd rather save my sympathy for their victims. But, thats just me.

Pete,

I always think that to fight Al Qaeda, we should make a point of killing large numbers of innocent civilians. After all, that is one of their favorite tactics, so obviously we should use it too.

It is really odd to see all the small government folks, go pro giving the government the right to slap people around to get them to talk.

llamasex,

you confuse "small government types" with "nakedly self-interested partisans"

its only torture if it can happen to them.

New Volokh Commenters' Motto: The United States, just as good as India. You people make me sick.

Not nearly as sickening as when they explain that "we're better than the terrorists" is a sufficient excuse. What could be sicker than using "what would terrorists do?" to draw the line between right and wrong?

A variant on this is "I'm more concerned about the victims", i.e., "as long as we're treating our prisoners better than the terrorists treated theirs, I'm not concerned". It doesn't even bother this sort of person that our prisoners sometimes turn out to include people who were entirely innocent. As long as we don't treat innocent people as badly as the terrorists treated innocent people, they can't get their conscience worked up at all.

Honest question here.

If, during the 1991 Gulf War, these 6 interrogation techniques had been used by Iraqi forces against American POWs, would our government have denounced them as "torture"?

My money says 100% YES.

And that concludes this evening's meeting of the Armchair Anti-Terrorist Brigade. Walter Mittys all, only some fresh from the front lines of Fraternity Row and Gold's Gym, but all making the hard decisions in the face of an unparalleled threat to our God-given freedoms from enemies who hate those precious freedoms and thus deserve to be treated like the subhuman scum they are.

What a disgraceful, disgusting and, yes, cowardly lot most of you are. The minute danger first comes to our own shores, you toss basic decency and much of what we pretend to stand for out the window and you become willing to let the ends justify the means. You're the very same people who condemned the Soviets and other regimes for putting ends before means under much greater threat to their system. Slippery slope? You're already well down the slope and I doubt you'll get off.

I question the efficacy of any of these techniques... The recent Red Alert in New York immediately comes to mind. While I don't know if any of these six methods were used to garner information from the terrorist we captured who provided the warning, it turned out that the information was faulty...


I think the argument that if we use torture, we increase the likelyhood that our own soldiers would be subject to torture when captured by enemy operatives is completely and totally incorrect. The fact of the matter is, it doesn't make a whit of difference how we treat captured terrorists. We could feed them the finest meals and put them up in the Hilton, or we could cut them up into pieces and bury them in pig fat, it would make absolutely NO difference in how they would treat our soldiers or civilians. They've demonstrated out in the open and on tape how they treat their captives. They start by getting their victims to beg for thier lives, and then they slit their throats from ear to ear and hold up the heads shouting Allahu Ackbar!.


The only reason to be concerned about using torture on our enemies is the concern of who we are becoming as a people. We are the good guys, and we should act like the good guys.

I can envision a few "hollywood style" scenarios in which torture may indeed be neccessary to deal with an imminent and explicit threat... but they'd be very rare, and very specific.

Walker,

Cost-benefit analysis of that kind may be a little too limited. Even on its own terms, you would have to consider all sorts of possible long-term and unintended consequences (eg, how will these policies affect the reputation of the United States? Will they undermine support for our cause? Will they increase support for the causes of those we torture? As a result of these long-term effects, could the price of preventing one attack in the short-term be more attacks in the long-term? And so on).

There are also long-standing moral theories that reject or supplement that sort of utilitarian approach. Deontologists, for example, will say that certain acts are immoral no matter what the consequences, and torture is frequently cited as an example of such an act.

There are also theories that bridge this gap, such as pragmatic traditionalists who would say that we should place great weight on the received wisdom represented in traditional norms (such as the norm against torture), even if the theories of the day suggest that torture might be OK.

And so on.

And incidentally, if someone is persuaded by one or more such considerations that we should have a blanket ban on torture, even in dire situations, then no, I don't think the blood of a future attack would be on their hands. Even if you think they made the wrong decision (and as noted, even on a pure cost-benefit basis, the success of a subsequent attack does not prove that they made the wrong decision, because we still have to consider the long term), I don't think you can automatically move from a wrong decision based on reasonable and justifiable considerations to moral responsibility for the bad consequences of that wrong decision. And that is particularly true when the bad consequences are the result of an intentional act by some other person.

You know I yet to see Zarqawi court-martial any of his people for cutting someone's head off or killing civilians with an IED.

I can see the Bush spin now:

"George W. Bush, he's less depraved than Zarqawi".

From what I read on the ABC article I think we are doing things correctly. Obviously using these techniques on the rank and file enemy combatants would be wrong and useless. However the ones reported to have been "tortured" have important information that can save lives. Remember KSM planned 9/11 well over 5 years ahead of time. Finding out what other plans are in progress will save (has saved?) American lives. I believe Congress needs to act to specify when these can be used, clarify the legality of them, and approve proper oversight. When UBL or Zarqawi is captured I hope we would do these things if nessisary to save the lives of civillians. The effectiveness of these techniques is important, but just as important is if the Terrorists believe they are effective. If an AQ cell has an attack planned and cancel because they believe it has been discovered then we win that battle.

Kim,

Yes, the logic of torture as an interrogation technique is highly suspect. The problem is one of verification. In time sensitive situations, it will often be impossible to verify the truth of the information before it is too late.

What the logic of torture really requires is enough time for a cycle of torture: you ask for information, and if they refuse to speak, you torture them until they talk. You then go and verify the information. If they have lied, you come back, confront them with the lie, and torture them again until they talk again, and then verify again. You keep repeating this until they give up and start telling the truth.

But, of course, during this time the prisoner's information is getting stale, particularly once the prisoner's associates know he is missing. Bernie tries to suggest that this is an advantage, but sophisticated parties tend to have a good sense of how long it will take to break someone with a cycle of torture, so they can complete immediate plans while changing long-run ones. This undoubtedly causes them some inconvenience, but rarely will it prove completely fatal to their cause.

Naturally, it is much better if the prisoner is willingly telling the truth. This can sometimes be accomplished through persuasion, bribery, and even trickery. Only rarely, if ever, will it be the case that torture is likely to work faster than any such techniques. And this is also why spies are much better sources of human intelligence than hostile prisoners.

On your broader point, the conversation in these comments is undoubtedly what evil looks like from the inside. In fact, I'm sure that after 9/11, there were some terrorist utilitarians making the argument that the loss of thousands of American lives was justified by the benefit to a billion Muslims. Other were likely making the argument that we Americans, by making war on Islam, had sacrificed our right to humane treatment. And so on.

I don't understand the failure to acknowledge that our torturing prisoners in effect means our soldier, when captured, will end up decapitated, hanging from minarets. No matter how righteous some of you think our cause is when compared to what you deem far more regregious than American behavior, at least they're honest about it. Hell they broadcast videos on Al Jazeera. We lie about it and ship our torture victims to be to third party coutnries to avoid our treaty obligations. As if that exonerates us morally. Give me a break. How can you seize the moral high ground when you're sleeping with the dogs?

To put things in context:

A captured senior CIA officer in Lebanon was quite literally skinned alive over the space of a week or so. It took him that long to die. Since he quickly revealed anything he knew of any intelligence value, the primary purpose of this cruelty was pure, pathological sadism. His captors made videotapes which were distributed amongst their cadres for entertainment purposes and also sent to the CIA as a taunt. The persons responsible have ties to Al Q'aida and other such groups.

Anyone who suggests that our current policies have moral equivalency with any Islamic terrorist group -- or indeed the policies of any third-world or totalitarian government -- is a moral moron or a lunatic. Anyone who thinks that current interogation techniques are in any way commensurate with the brutality of police interrogation techniques that were common and accepted in the US and everywhere else as short a time ago as the early 1950s has no knowledge of the history of the "third degree'. I quite literally don't have anything in common on this issue with anyone who is upset by the relatively mild procedures we are using in the current situation against mass-murdering criminals to obtain potentially life-saving information.

Will providing high-valued detainees with counsel, due process, and access to our criminal and civil courts deter terrorist offensives around the globe? I understand that as a member of a profession that values civil discourse to resolve disputes, torture doesn't fit neatly into our jurisprudence. Until someone however can convince me that terrorists respect our values, and will treat me with equal dignity, I will continue to argue this barbarous line of reasoning.

Let's say a detainee has valuable information, like the location of a "ticking time-bomb" (See "Why Terrorism Works" by Alan Dershowitz for an interesting analysis, and yes, I know that the Israeli Supreme Court has condemned torture). Should a detainees' discomfort outweigh the imminent death of possibly thousands of innocent citizens? Some of the posts above suggest that we are already sliding down a slippery slope (an article of which I enjoyed by Professor Volokh) and that somehow we are becoming terrorists ourselves. The argument is again absurd as we attempt to rationalize that somehow torture can be bifurcated from killing someone in combat.

Who has the moral high ground in this case: a Canadian sniper in 2002 who killed a terrorist in Afghanistan from approximately 8000 feet, a CIA agent watching a Pakistani soldier torturing a detainee, or US soldier applying the above techniques him/herself? Again, if you are serious about fighting this war, any war, all three actions are morally acceptable. If the above scenarios make you feel uncomfortable, then you should avoid war altogether. While simplistic in my judgment, I nevertheless have great admiration for those who oppose ALL forms of warfare.

Bernie,

I noted the definition in the Convention against Torture above. I think all six techniques above could count unless they were restricted to very mild forms. I might note that looking to something like the Convention against Torture is a good idea if you are concerned about long-term consequences.

Pete,

I would say only the Canadian sniper. I realize that to some people notions like rules of war, honorable conduct in war, civilized war in general, and so on, are implausible. But these are longstanding and traditional notions, and many people believe that they have served us well.

Medis, I respect your convictions. I do not agree that The Attention Grab, Attention Slap, or The Belly Slap are likely to cause us more harm than good in the long run. It is nice to be able to have a reasoned discussion about the issue. Thank you.

Good, I'm glad the terrorists don't have hope. I really do pray what they undergo is worse than what I and many fraternity men go through. Otherwise, our American system really would be messed up.

For some strange reason, I have no sympathy for their "lack of hope". Maybe its just me, but I'd rather save my sympathy for their victims. But, thats just me.

You've utterly missed Mike's point. Being hazed by a fraternity is optional. You can quit any time. It occurs over a known limited period of time. To compare prisoner treatment with hazing is moronic.

Are you really a law student? The only thing I can say is if your arguments here indicate your reasoning abilities there is little reason to expect that you will graduate. And that will be a good thing for the country, and especially for those unfortunates who might otherwise be your clients.

If, during the 1991 Gulf War, these 6 interrogation techniques had been used by Iraqi forces against American POWs, would our government have denounced them as "torture"?

Since our government insists on making the distinction between POWs (who are entitled to all the protections of the Geneva Convention) and unlawful combatants (who are entitled to bupkis), the better question would not be about American POWs, but about American commandos who might have been captured out of uniform behind Iraqi lines, where they had been sent to conduct sabotage operations to make our soldiers' advance easier. (Make them Arab-American, if you like, to make it more credible that we might imagine they could blend into the population without being noticed.)

Seamus, your argument has no logical starting point. Whether something is or is not torture is independant of who is being tortured or not tortured.

The only thing I can think of is if you are making an argument that torture if you aren't wearing a uniform, which would, congratulations, make you as morally bankrupt as the rest of your party!

Gotta wonder what the objective is. You work on a guy hard enough, he'll tell you whatever he figures you want to hear. bin Laden is attending synogogue in Los Angeles? Sure, he is! I used to drive him there, he's my brother in law. Here's a list of our next targets, uh, the Capitol, the White House, and anything else that sounds plausible. We're going to use anthrax ... oh, you thought nerve gas? Yeah, it was nerve gas, I forget these things. We've got a thousand gallons in this cave ... naw, can't take you to it, they took me there at night.

I'll take you to Amelia Earhardt's grave and give you a secret, 100% effective, cure for cancer if you just let me be.... Oh, and I'm not the real big shot you want. That's Akhmet, the guy in the cell who's been giving me a hard time. He and bin Laden were thick as thieves. They used to sit up till 2 AM playing poker and planning their next strikes against the US. Told me he'd recruited a couple of Secret Service officials, too. He called you pussies, and said you didn't have enough balls to get their names out of him.

(posted from Europe)

The comments here are disgusting.

60 years ago, the 'greatest generation' fought without 'cold chambers' and 'waterboarding' much more dangerous foes.

It's hardly torture now is it? Clearly you can't train for amputations and having your limbs systematically broken (torture) but you can 'train' for 1-6 (within proscribed limits) precisely because it is stress and no more.

So if you receive training against it, it isn't torture? That makes no sense.

Clearly you have not read any of the international treaties signed by the U.S. regarding torture. They all define it as the infliction of severe physical or psychological pain. It can be torture without having lasting damage.

One of the consequences of asymmetric warfare fought by combatants not bound by the rules of war is the skirting of the line by states that want to counter that asymmetry.

Defeating terrorists militarily is only one aspect of the struggle, and I would argue, the least difficult and least important. Terrorists will exist as long as there are human beings.

Long term, the key is to win over world opinion and Arab moderates, convincing them the United States is a force for good, and thus reducing the number of possible terrorist recruits. If we condone torture, we will lose the long-term fight against terrorism.

Good lord, our country really is barbaric, judging from these comments. I suppose the same people that joke about prison rape would tell themselves that "enhanced interrogation techniques" are now different than frat hazing.

What a foul nation we're becoming.

That than be only negative, allow me to suggest my take: Respect the Conventions. Strictly. Make torture explicitly illegal. If a situation (everyone looooves the ticking bomb) warrants it, a jury can evaluate the necessity defense and let them off.

Becoming your enemy is not the way to win. Nietzsche understood this well, as do those CIA lifers that both the left and the right seem to love to bash (at different times).

I'm sure if you asked the inmates at any American prison, at least 80-90% of them would tell you they were innocent too. The Red Cross's number is worthless as actual evidence of anything.

On the pertinent question, which is whether the 6 techniques constitute torture - i.e., do they inflict severe pain or suffering, calling numbers 1 through 3 torture is downright silly, number 4 is about ache and fatigue, not severe pain, number 5 is worrisome for the possibility of causing the recipient to contract a serious disease (mainly due to the cold water) but does not seem to rise to the level of severe suffering, and number 6 is the one with the most questions about whether it does inflict severe suffering - IMO the person it's done to is actually placed into immediate fear of his own death, which I see as a serious factor in the determination of what qualifies as torture. I see this one as a case where reasonable people may diffe