Torture and Nuclear War:

As I've noted before, there are lots of things I don't blog about because I know little about them, I find them difficult, and they're quite important. Since I know little about them, I'm not sure I have much to add (but I have lots of opportunities to screw up). Since they're difficult, I don't think I can just give a quick answer from general principles. And since they're important, there's a good deal at stake in getting it right: An off-hand comment that might be right or might be wrong might cut it for a trivia question, but not for important issues. That's one reason that I've blogged very little about torture as a means of extracting information from suspected terrorists; the chief exceptions are here, here, and here.

A lot of comments criticizing my (and others') not talking about the subject respond by challenging the "difficulty" element: Torture -- often defined to include a wide range of harsh interrogation techniques -- is just patently depraved, the argument goes; the ends don't justify the means; any decent person should be able to see that and denounce provisions that allow such techniques; end of story.

But for me, this easy moralism just doesn't cut it. Perhaps after a great deal of thinking and research I might come around to this view. But I'm not prepared to accept it as a categorical, supposedly obvious moral assertion. (The theory that the means are sure to be ineffective is a separate matter. For reasons I noted in the posts linked to above, I'm unpersuaded of that as an empirical matter.)

Here's what I keep coming back to in my head. I still remember, as I'm sure most of you do, the nuclear balance of terror. (It still exists today, but it's a less prominent issue than it was when I first started noticing the world.) The Soviets had nuclear weapons pointed at us, which included both our military installations and our cities. We had nuclear weapons pointed at their military installations and their cities. It was understood that if they annihilated one of our cities, we'd annihilate one of theirs.

There was none of the carefully calibrated attack-only-military-targets approaches that we likely can afford to use in small wars. There was no serious provision for minimizing civilian casualties. One can come up with some defenses about most cities containing at least some militarily significant targets and the like, but let's face it: The real mechanism of deterrence was "you kill our people, we'll kill your people," both as to all-out nuclear attack and as to a more controlled "take out one city at a time until the other guy blinks" strategy. It was understood -- by Carter as well as by Reagan, by Kennedy as well as by Nixon -- that to keep the peace, we had to be prepared to slaughter millions of Soviet civilians.

A few people did talk about unilateral disarmament, the only real way of avoiding the commitment to mass-butchery-should-the-need-arise. I don't think most of us took them seriously, for obvious reasons. Reagan, as I recall, did push missile defense as a means of avoiding the balance of terror, but even if you think that missile defense might work, the Reagan Administration certainly supported the balance of terror as acceptable doctrine until missile defense could be created. One can imagine some alternative tactics, such as a pure counterforce rather than countervalue strategy -- if you bomb us, including our civilians, we'll only bomb your military targets. But I highly doubt that it would have worked.

Would you say: Look, killing millions of civilians is just patently depraved, the ends don't justify the means, any decent person should be able to see that and denounce strategies that rely on the commitment to use such techniques; end of story? I know I didn't. Maybe I should have. Maybe after a good deal of reflection and research I would conclude that such a strategy should have been abandoned. But, boy, I'm not prepared to just say that as a matter of general moral principles, no matter how obviously heinous nuclear bombing of civilian targets might be.

Now I don't want to overstate the analogy: The U.S.-Soviet balance of terror involved the willingness to do a vastly horrific act, in order to deter a vast harm, though fortunately a willingness that didn't have to be acted on. Harsh interrogation of detainees involves the actual doing of many bad things, in order to prevent a lesser harm, but the bad things are much less horrific than a retaliatory nuclear bombing.

There are, I'm sure, lots of other differences. It may be that careful study would lead one to different answers in these two cases. But once our innocence is lost by our willingness to at least contemplate the balance of terror, it becomes very hard for me to just operate on a hard-line "I don't need to hear a lot of facts or arguments, the ends don't justify the means and that's that" approach.

Greedy Clerk (mail):
It's an extremely unique argument, and one that certainly pushes you to think. Perhaps for that reason, you shoud blog about these issues more often.
9.29.2006 2:54pm
Thanks, Eugene.
9.29.2006 3:00pm
Daniel Chapman (mail):
Blog about what you like, when you like. I think if I tried to take the comments in these boards to heart, I'd go nuts and quit. No one wants that. (I think)
9.29.2006 3:02pm
I have not been reading the prior threads, but this assertion:

"As I've noted before, there are lots of things I don't blog about because I know little about them, I find them difficult, and they're quite important."

seems to me to beg the question as to why you do blog about other important things that you know little about, or why you blog excessively about things that are unimportant but coincidentally support the arguments of the extreme right wing. For at least this reader, you are not entitled to the presumption of innocence when it comes whether your choice to blog or not blog about something is primarily affected by your political preferences.

As for the cold war analogy, it is overstated. Is a policy (or at least a posture) of willingness to kill millions of civilians appropriate when the alternative is destruction of one's entire civilization, if not civilization itself? Yes. The cost is zero unless the policy needs to be acted upon. We will never know how serious either side was about this, because neither was willing to test the other. The thought experiment where one side refuses to even consider using nuclear weapons is a nonstarter.

Torture is entirely different.
9.29.2006 3:03pm
Gabriel Malor (mail):
"The cost is zero unless the policy needs to be acted upon."

Actually the cost in lives is zero. The financial costs were great enough to destroy a nation.
9.29.2006 3:07pm
Charlie (Colorado) (mail):

A lot of comments criticizing my (and others') not talking about the subject respond by challenging the "difficulty" element: Torture -- often defined to include a wide range of harsh interrogation techniques -- is just patently depraved, the argument goes; the ends don't justify the means; any decent person should be able to see that and denounce provisions that allow such techniques; end of story.

The problem with the whole line of argument is that it basically becomes a red herring. Andy Sullivan is a big offender on this: he says torture is bad; he finds an example of something that's frankly torture (driving people into risky levels of hypothermia, sleep deprevation and forced standing for weeks); he extends that to any instance of any severity of any behavior that can be said to be somehow "the same" (air conditioning too high, forced standing for several hours) and calls it torture, and therefore bad, unacceptable, ineffective, patently depaved.

This quickly leads to absurdity: loud rock music and sexually suggestive gestures from attractive women become "torture", when people not under interrogation pay substantial cover charges and tip heavily for the same experience.

Unfortunately, there seems to be no solution for the underlying intellectual dishonesty than continuing to challenge it.
9.29.2006 3:11pm
Seamus (mail):

Would you say: Look, killing millions of civilians is just patently depraved, the ends don't justify the means, any decent person should be able to see that and denounce strategies that rely on the commitment to use such techniques; end of story?

Well, that's what I said. I remember getting into a debate on the point with former Secretary of State Dean Rusk on the point when he spoke once at my college in the early 70s.

The real mechanism of deterrence was "you kill our people, we'll kill your people," both as to all-out nuclear attack and as to a more controlled "take out one city at a time until the other guy blinks" strategy. It was understood -- by Carter as well as by Reagan, by Kennedy as well as by Nixon -- that to keep the peace, we had to be prepared to slaughter millions of Soviet civilians.

I can't provide a cite, but I recall being very heartened to read news reports that President Reagan (probably, though the article may not have said so explicitly, because of the intrinsic immorality of targeting civilians qua civilians) had ordered that our nukes be retargeted at genuine military targets rather than at population centers as such.
9.29.2006 3:16pm
plunge (mail):
Its one thing to face a ticking timebomb and break the rules.

But what proponents of torture and universal rendition are arguing is that we treat everything like a ticking timebomb at the discretion of those in power with little serious, uncompropmised oversight.
9.29.2006 3:24pm
Chris 24601 (mail):
FWIW, in 1987, Finnis, Boyle &Grisez devoted a pretty big book to a moral condemnation of the nuclear deterrent. I don't think they regarded it as an easy question, though.
9.29.2006 3:33pm
Duncan Frissell (mail):
And to further note the complexity of these issues for libertarins, there is nothing in pure libertarian theory that prohibits the execution of prinsoners or torture. The non-aggression principle covers initiation of force but not the morality of most specific tactics.

Since libertarians can kill their enemies, they can do lesser things to them.

In particular, in wars between nation states and anarchist 'zones' the anarchist forces are not bound by the Conventions (nor do such forces seek protection by the Conventions). Libertarian bands that lack the assets to maintain a prison system for POWs can ethically kill them under both libertarian theory and the traditional laws of war. [Now if the POWs have enough cash to pay for their own accomodation...]

Certainly, arms control represents a major human rights violation to libertartians who reserve the right to personally possess weapons of mass destruction.

Such issues are a challange for libertarians suince libertarianism qua libertarianism lacks a full theory of ethics. It only covers the subset of ethics dealing with coerced and particularly state action.

Our hosts expertise in libertarian theory would allow them to discuss these sorts of minutiae, however. But it wouldn't be of general interest.
9.29.2006 3:44pm
Grover Gardner (mail):
I'm having trouble seeing the analogy. The threat of nuclear retaliation was a safeguard, not an action in and of itself. Yes, we were prepared to retaliate in kind, but how else could we maintain parity and thus ensure the deterrent effect?

Torture and detainment are an entirely one-sided affair. We suspect X may have been planning a crime against us, therefore we detain and torture X in order to find out if this is true.

I guess one could argue that a policy of torture and detainment could have a deterrent effect, but in the meantime we're still doing it, not just threatening to do it. Am I way off base?
9.29.2006 3:47pm
Anon. Lib.:
This is a very interesting (and revealing) response and one that would have been worthwhile making when this debate had some greater importance.

Frankly though, this post strikes me as a dodge or maybe a rationalization. First, there is whole Chewbacca discussion of MAD---which is evocative and serious sounding but too far removed from the reality of detention and interrogation to provide useful insights. The questions: what is torture? are the techniques we're employing torture? are they moral? are they ever appropriate? in extreme circumstances only? what about as a government policy? is this particular government policy a good torture policy---i.e., does it reasonably ensure that torture is used when the ends justify the means. Your musing: massive retaliation against the soviets would have been much worse than Abu Ghraib.

Second, you raise a distinction that could have been the focus of an interesting discussion---is torture intrinsically wrong or is it only wrong on utilitarian grounds---and then you throw out a BS reason for not blogging about it. You think because its very important and very difficult you can't blog about it? Come on. Whats the blogosphere for if not to try to solicit information and argument from others about your own half-formed thoughts and intuitions? Especially when those issues are "very important." Its not like someone is going to be tortured based on what you say.
9.29.2006 3:50pm
Arvin (mail) (www):
I think the reason many commenters feel upset or accuse the conspirators of bias is that the conspirators are usually thought of (at least by me) as objective people (as objective as people can be) who would not hesitate to speak out against or speak up for something, regardless of which political party or trend was propounding the idea.

In my very possibly wrong recollection, there have been posts on this blog supporting the Iraqi war and this Administration's handling of it, both before and after the invasion. This would mean either that the conspirators had enough expertise in this subject area to feel comfortable commenting on it, or they felt it wasn't a topic that required particular expertise. But when the Iraqi war started going badly, I do not recall reading condemnations from the same conspirators. Their expertise (or feeling that expertise was not required) couldn't have vanished. So where was the condemnation?

No, they have no obligation to blog about it. And there may be benign reasons for their silence. And I may be wrong -- I may be confusing this blog with another, or perhaps there were condemnations that I didn't see. But if I'm not wrong, then I think it's incidents like this that cause certain people to wonder about the objectivity of the conspirators, and if their silence is more because they don't like that "their" team has fumbled, and they don't want to comment on it. In other words, had the Democrats come up with this bill or this war or whatever, would they still be silent?
9.29.2006 4:02pm
Eugene Volokh (www):
Arvin: I can say that I've posted very little about the Administration's handling of the war, precisely because it's a difficult and important subject on which I have no real knowledge. I posted a bit, but not much, about the case for the Iraq war in the first instance, because as I recall I thought I had a few, but only a few, helpful things to add that didn't require a good deal of knowledge.

I certainly would not have condemned out of hand any hypothetical proposals that the Democrats might have made about torture, just as I didn't (in the pre-blog era, of course) condemn the Clinton Administration's actions in Kosovo, or for that matter in Waco, another subject that I've stayed away from because it requires a lot of factual knowledge to grasp. Of course, people can make what conjectures they like about what I would have said had things been not the way they are.
9.29.2006 4:10pm
Jason Robitaille (mail):
The "balance of terror" analogy is interesting, but I think it's flawed. As Prof. Volokh points out, there's a difference between threatening to do something and actually doing it. That difference becomes even greater when the whole point of the threat is to avoid the need to actually carry it out. MAD was intended to deter nuclear war; the detainee bill is intended to facilitate coercive interrogation. Even if both are treated as means to an end, our moral positions with respect to those means aren't analogous.

Regarding the side-debate about the derth of posts on this topic, I understand the reluctance to put forward inexpert opinions on a complex and controversial subject, but I find that rationale...disappointing in this case. Prof. Volokh and his colleagues may not be true "experts" in this area, but they undoubtedly possess the training and intellect to understand and evaluate the various issues and arguments involved. Given the importance of the debate and the unique forum this blog provides, I think humble silence would be inappropriate.
9.29.2006 4:11pm
Guest J:
Any thoughts on the whole habeas corpus issue and the (potential) application of enemy combatant status to US citizens? Do you think this is a big hard issue, big easy issue, little issue, or what? Do you find it at all troubling or rather A-OK?
9.29.2006 4:13pm
strategichamlet (mail):
"loud rock music and sexually suggestive gestures from attractive women become "torture", when people not under interrogation pay substantial cover charges and tip heavily for the same experience."

I agree that the examples you give are obviously not torture, but we need to dispense with the idea that anything someone is willing to pay for is catagorically not torture. Anyone who has talked with a professional dominatrix knows that there are a great deal of people in this country who are willing to pay to be rather brutally tortured.
9.29.2006 4:22pm
Elliot Reed:
One enormous difference between MAD and torture that hasn't been mentioned directly: MAD, to be effective, didn't require an actual willingness to murder millions of innocent people. All it required was willingness to threaten to do it and put effort into sounding convincing. And the stakes - the destruction of civilization - were so different as not to be remotely comparable. We're talking about using torture in the normal course of business, not as an extraordinary measure to be reserved for ticking nuclear weapons.
9.29.2006 4:24pm
MnZ (mail):

Maybe they don't have the same view on things as you. For example, if they supported the Iraq War, why would they now condemn it now that it has gone badly? I suppose that they could condemn the execution or the current strategy, but why would they condemn the war itself?
9.29.2006 4:28pm
MnZ (mail):
Any thoughts on the whole habeas corpus issue and the (potential) application of enemy combatant status to US citizens?

Do you realize that those are separate issues?
9.29.2006 4:30pm
Anderson (mail) (www):
The MAD/torture analogy is evidently a weak one.

That said, nuclear retaliation for a nuclear attack is pretty much unavoidable, since failing to do so would invite future attacks. It's a terrible position to have to take -- I think our carpet bombing of Axis cities was a war crime, pure &simple, just like Curtis LeMay said -- but failing to incinerate the other side's women and children would invite the incineration of one's own women and children.

Scenarios where such a dilemma applies to the torture of suspects, by contrast, are difficult to imagine outside of Hollywood.
9.29.2006 4:32pm
Anonymous Reader:
I would like to recommend that those folks concerned about the lack of interest by the VC Conspirators to blog about the issue on their own blogs and email VC a link for them to show on their site.

Anonymous Reader
9.29.2006 4:37pm
Daniel Chapman (mail):
"Evidently?" It's great how you insist that people write and then casually disregard their opinions out of hand.
9.29.2006 4:39pm
Katherine (mail):

Why do you insist on dealing with this as abstract hypothetical, instead of dealing with the actual evidence about what actually has happened and is likely to actually continuing to happen?
9.29.2006 4:42pm
MnZ (mail):
One enormous difference between MAD and torture that hasn't been mentioned directly: MAD, to be effective, didn't require an actual willingness to murder millions of innocent people. All it required was willingness to threaten to do it and put effort into sounding convincing. And the stakes - the destruction of civilization - were so different as not to be remotely comparable.

You are incorrect. MAD precisely required an actual willingness to murder millions of innocent people. On numerous occasions, the USSR and the US prepared for nuclear war based on false warnings. This included several actions behind the scenes that were unnecessary for a good show. The US and USSR invested a great deal in early warning systems as well. Since the US and USSR had thousands of missiles bunkers and submarines that would survive a first strike, these early warning systems were only useful as a hair-trigger mechanism (e.g., a willingness to murder millions of innocent people).

MAD does not work if one side comes to doubt the other sides commitment to retaliation.
9.29.2006 4:44pm
Add to all of this that Al-Qaeda and affiliated groups have a publically stated intent to gain nuclear weapons (to the point that they publically advertise for scientists). When acquired, it is their intent to immediately use them because they cannot suffer any particular nuclear retaliation specific to them - they are too diffuse.
The longer they are left unchecked to go about this process, the greater their likelihood (thankfully small now) of getting their hands on one.
The more of their leaders and trainers that we kill, the ones capable of operational skills and training others to have operational skills, the smaller this likelihood becomes and the less organized they are until the point at which they cannot really be called an organization.

The point becomes, when do we use what level of force based on what knowledge, when do we trust people to make that decision (as someone alluded above) and what safeguards do we give people whom we've told that we trusted to make that decision?
One of the big problems that Clinton had in his 'hunts for bin Laden' is that his orders were filled with wiggle words that would let him deny any culpability if things went wrong and totally hang up to dry the person given the order. Given that obviousness, the commanders on the ground weren't willing to risk themselves with the full knowledge that they were getting no command support.
9.29.2006 4:48pm
Pray tell, what else but an end, could possibly justify a means?
9.29.2006 4:52pm
Greedy Clerk (mail):
Katherine hits the nail on the head with a lot of comments about torture from the "right." Almost all of their justifications are based on hypotheticals and not actual facts that have happenned. President Bush himself when asked to justify the extreme changes in law he proposed (and now looks like he got) consistently refuses to answer what information we have gotten and what methods he has used to get that information, saying that "national security" concerns preclude him from doing so. The fact that Congress, including many Democrats, has accepted this is extremely disappointing. If we are going to seriously change the law as President Bush proposed, and Congress did, we should know (a) what methods the President has already used which he seeks to ratify, and (b) how effetive those methods have been.

As I noted in my first comment, I think Eugene added a thoughtful analogy --- while flawed for certain reasons in my opinion --- but I do not think he or anyone else is obligated to express his opinions on these matters. I do note that the almost deafening silence on such grave changes in the legal structure of our country (e.g., repeal of habeas in certain cases, ratification of torture, etc.) from a legal blog is noteworthy. Furthermore, I think it is fair for commenters and readers to assume that the bloggers here, for the most part, agree with the changes based on their silence in face of, inter alia, the many strong criticisms of it from other legal bloggers. It is their blog, though, and they don't have to write about anythign they do not want. And I am sure they know that many will interpret their silence as I do, but that's their choice and their right, and I do not think people should criticize them for not talking about it.
9.29.2006 4:52pm
Arvin (mail) (www):

I suppose that they could condemn the execution or the current strategy, but why would they condemn the war itself?

They could condemn the strategy that does not appear to be working. The under / misestimations. The intelligence failures. The failure of this Administration to be all that truthful about how it's going and the misdirection / misrepresentation that occurs. I didn't mean they had to say "going into Iraq was a bad idea" (even though I believe it was). But I would imagine even the most ardent hawk couldn't be pleased with how things are going, and could see places where our strategy could be or could have been improved. I think the one thing that hawks and doves agree on is that we want to eventually come home with as few lives lost as possible, or at least American lives anyway. So the question was, if they had been expert enough to evaluate tactics or goals or predictions or representations before, why not now? I stress again that I AM GOING OFF RECOLLECTION here, and have NOT had time to search the archives for who said what (and so this is not meant to be addressed specifically to Eugene, even though it is in his comment thread). And I would like to repeat I could be wrong about the whole thing: perhaps it was another blog that had more analysis and support for the Administration's role back when we invaded.
9.29.2006 4:57pm
Greedy Clerk (mail):
One of the big problems that Clinton had in his 'hunts for bin Laden' is that his orders were filled with wiggle words that would let him deny any culpability if things went wrong and totally hang up to dry the person given the order.

I'd love to see some citation for that. President Clinton ordered Bin Laden to be killed and authorized every request to have him killed. He had battle plans drawn up after the USS Cole, and when the FBI certified that Bin Laden was behind it just before Bush took office, the Clinton administration informed the Bush people about all of this. The Bush people did NOTHING from January until September 11. In August, President Bush himself was informed that Al Qaeda was determined to attack inside the United States, he was informed about suspicious activity, including the fact that many Arab men were taking flight lessons. Bush's response: NOTHING.

Your attempt to blame Clinton is silly, and slanderous. Clinton did more than Bush did, i.e., he did SOMETHING. Bush did NOTHING from January until September 11. His administration's failure was criminally negligent and he, along with Cheney, Rice, Rumsfeld and Powell, ought to have resigned in the wake of revelations of their refusal to take the Clinton Administration's warnings seriously, and the very express August 2001 warnings seriously. History will be the judge of this and Bush's presidency and his inactions between January 20, 2001 and September 11, 2001, vis-a-vis al Qaeda and Bin Laden will be looked at as one of the most tremendous failures in the history of this great nation.
9.29.2006 5:00pm
Anderson (mail) (www):
Chapman: "Evidently?" It's great how you insist that people write and then casually disregard their opinions out of hand.

This, from the guy who was criticizing my comments without reading them?

Anyway, I was several comments down on the thread, &the disanalogies were pretty thick on the ground by then. Or did you not read this thread, either?
9.29.2006 5:03pm
byomtov (mail):
But the criticism was not directed solely at failure to discuss torture. There are important, and to my mind quite terrible, provisions in the detainee bill that have nothing to do with torture, and a great deal to do with plain detention:

The basis for detention; its length; the detainee's right, or lack thereof, to challenge the detention; the procedures used, etc.

What you are saying is that you are not blogging on torture because you have reached no firm conclusions. OK. But I find it hard to believe that you have no opinions as to what the basic rules governing these detentions ought to be. Even if you can't be precise, surely there are some minimum standards you think should be complied with. I'd be very interested to know what you think those minimums are.
9.29.2006 5:06pm
Humble Law Student (mail):

Thanks for that moment of truth. Many times "the means" is given moral force through its service to some end. The constant banter of "the ends don't (or shouldn't) justify the means" is overly simplistic and just flat out wrong at times.
9.29.2006 5:07pm
Grover Gardner (mail):
"The longer they are left unchecked to go about this process, the greater their likelihood (thankfully small now) of getting their hands on one."

True. How does this relate to the debate over the current legislation?

"The more of their leaders and trainers that we kill, the ones capable of operational skills and training others to have operational skills, the smaller this likelihood becomes and the less organized they are until the point at which they cannot really be called an organization."

Again, no doubt true, but what's the relationship?

"One of the big problems that Clinton had in his 'hunts for bin Laden' is that his orders were filled with wiggle words that would let him deny any culpability if things went wrong and totally hang up to dry the person given the order."

Am I mistaken in thinking that the current legislation absolves our leadership from any culpability whatsoever?
9.29.2006 5:10pm
Anonymous Reader:
And by the way, we are not talking about torture as a "normal course of business". Of course "Torture" itself must be defined in order to argue about it. If standing for long periods of time in one spot is torture, then in my opinion, you are defining down what torture is. Have you ever spoken to the servicemen who stand behind the President in those press conferences? Those guys stand for hours!! But that's "torture" right? Right off the bat, a common definition of torture must be established before you can effectively argue about it.

Secondly, can someone please point out to me what the Geneva Convention says about people who violate the laws of war?

Anonymous Reader
9.29.2006 5:11pm
Humble Law Student (mail):
Greedy Clerk,

Stop just repeating what Clinton says. There isn't any hard evidence that Clinton actually ordered the military or CIA to kill him.
9.29.2006 5:11pm
Katherine (mail):
byomtov makes a good point.

Do you think LPRs accused of being enemy combatants should be able to be imprisoned without habeas corpus?

Pretty easy question, it seems to me.
9.29.2006 5:15pm
Greedy Clerk (mail):
Stop just repeating what Clinton says. There isn't any hard evidence that Clinton actually ordered the military or CIA to kill him.

Everything I said was in the 9/11 Commission Report, which I read from beginning to end. Furthermore, perhaps you may recall that in August 1998, President Clinton ordered a cruise missile attack on Bin Laden's camps in Afghanistan in an effor to "kill" him. Bin Laden, according the 9/11 Commission Report, was at that location only days (if not hours) before the attack. That is "hard evidence" that Clinton "ordered the military or CIA to kill" Bin Laden. Where do you get your information?

Furthermore, do not even attempt to lecture me about my knowledge -- I was employed by the Pentagon and worked in the building from August 2001 until December 2001, including on September 11. Please. Humble Law Student -- I pity your future clients and how you advise them on the definition of what constitutes "evidence" and on attempting to state things that you have no idea about. I again implore you to read the 9/11 Commission Report.
9.29.2006 5:27pm
Mark Field (mail):

Secondly, can someone please point out to me what the Geneva Convention says about people who violate the laws of war?

Your question is too vague. There are 4 relevant treaties for this discussion. In addition, the phrase "violate the laws of war" is not clear. There is a war crimes statute (18 USC Sec. 2441); perhaps that answers your question.

"Torture" itself must be defined in order to argue about it.

The US Code contains a definition: 18 USC Sec. 2340.

If standing for long periods of time in one spot is torture, then in my opinion, you are defining down what torture is. Have you ever spoken to the servicemen who stand behind the President in those press conferences? Those guys stand for hours!! But that's "torture" right?

This argument doesn't work. Things can be torture if done repeatedly or for a long time or under restraint, even if they aren't torture if done once or for a short period of time or voluntarily. Think "Chinese Water Torture".
9.29.2006 5:33pm
Greedy Clerk (mail):
Katherine asks "Do you think LPRs accused of being enemy combatants should be able to be imprisoned without habeas corpus?" To the extent that this question is addressed to Professor Volokh, he has answered that admittedly simple question. He posted on this during the time Rasul was argued and stated that he did not think that those in Guantanamo should be entitled to bring writs of habeas corpus. So, to the extent the criticism is directed against him, it is unfair as he has answered the question, and provided reasoning for it. I disagree with it, but Professor Volokh did offer an answer, which is available to anyone who wants to critique it on its merits.
9.29.2006 5:34pm
Katherine (mail):
Sorry, I should have been clearer. LPRs = lawful permanent residents of the United States, in the United States.
9.29.2006 5:35pm
Anderson (mail) (www):
That is "hard evidence" that Clinton "ordered the military or CIA to kill" Bin Laden. Where do you get your information?

Ouch. And if you don't believe the 9/11 Comm'n, see Steve Coll's Ghost Wars, a book which is certainly not generous to Clinton.
9.29.2006 5:36pm
Guest J:
"Do you realize that those are separate issues?"

Well, they're separate but connected as well, so what? They are connected by recent legislation, all undertaken as part of the same broad agenda, and by recent discussion here. It one thread of that discussion that sparked contemplation about Conspirators concerning when it may or may not be wise to comment on issues without expert knowledge. Since Mr. Volokh saw fit to explain some of his feelings about one such issue, I decided to try to sound him out about another prominent one.
9.29.2006 5:39pm
Katherine (mail):
Also, Volokh's famous "lawfare " post speaks about people captured on a battlefield. So evidence that some Guantanamo prisoners were captured in, say, a *$#^@^^$^@ Taliban prison (see above link) might warrant revisiting that. If "battlefield" means "earth," saying someone was captured on the battlefield is meaningless and no justification for anything. So I wonder if he was misled.
9.29.2006 5:40pm
Greedy Clerk (mail):
Sorry, I should have been clearer. LPRs = lawful permanent residents of the United States, in the United States.

Actually, I should have read your comment more carefully.
9.29.2006 5:41pm
Henry679 (mail):
The concept that since you might be justified in killing someone--such as an "enemey combatant" on a "battlefield"-- somehow magically and automtically blesses supposedly "lesser included acts" (such as torture) against them is just bizarre.

You can kill uniformed enemy soldiers on the battlefield, too--that doesn't mean you can or SHOULD perform Dr. Mengele's experiments on them if you capture them (and not just for the reason that you want to deter the other side from doing likewise to your captured soldiers, or some international convention says you shouldn't).

If somebody wants to argue whether some particular technique is or is not "torture", fine--I can have that discussion. But boldfaced defenses of torture? Sorry, you are in another moral universe I choose not to go. And if you think this we lead me to perish, and you turn out to be right, at least I perish as a human being and not become the barbarians we are supposedly fighting.

We are all going to die one day. We can only choose how to live until then. I choose not to embrace torture, period.

PS: I never want to hear "conservatives" denounce "moral relativism" again, please.
9.29.2006 5:44pm
Greedy Clerk (mail):
Well, Katherine, I would say that Volokh's post does in fact agree with LPR's and US citizens being deprived of their right to habeas. It's this simple: if either is captured on the "battlefield", and sent to Guantanamo, they have no right to habeas. Thus, they cannot show that they are US citizens or LPR's in the event that their captors "conclude" that they are not.
9.29.2006 5:44pm
Grover Gardner (mail):
"Those guys stand for hours!! But that's 'torture' right?"

No. Standing for forty hours or more is torture.

"Secondly, can someone please point out to me what the Geneva Convention says about people who violate the laws of war?"

It's actually fairly complicated:
9.29.2006 5:53pm
Katherine (mail):
I mean, you're free to be silent. But "lack of expertise" doesn't fully explain your could find out, if you wanted to. You guys are smart, smart, smart people. There's plenty of information out there. If you don't think it's worth your time to go through it and come to a position, that's fine. But it's a choice, and of course people draw conclusions from that choice.
9.29.2006 5:57pm
Alex R:
One of the differences that I see between "torture" and "nuclear war" is the issue of the existence of slippery slopes.

The logic of mutual assured destruction is in part that it provides a barrier to "sliding down the slippery slope" toward nuclear war: *any* use of a nuclear weapon was understood to be answerable by massive retaliation. Indeed, many arms control advocates have fought against the development of both less powerful nuclear weapons and more powerful conventional weapons, precisely because this would lower the barrier between conventional and nuclear war.

With torture, on the other hand, we see the US adopting policies that -- even as they claim to forbid torture -- also seem to legitimize practices that move us down a slippery slope in the direction of what almost anyone would agree (at least today) is clearly torture. And for those of us who feel that the practices that seems to be allowed are already torture, the slippery slope may be in the direction of something even worse. (For some examples of criticism of this nature, see this post and others at Unqualified Offerings.)

Given that the nature of slippery slopes is an area of your expertise, I wonder if you have any comments on slippery slopes in relation to the detainee treatment or other "anti-terror" legislation.

(PS: Thank you, and your co-conspirators, for engaging on these issues.)
9.29.2006 6:01pm
byomtov (mail):
The "lawfare" argument is unconvincing to me for another reason as well.

As EV implies, the scenario he describes - 50,000 prisoners - is wildly unlikely. I think that entitles me to posit an impractical solution: appoint enough judges, possibly on some sort of temporary basis, to hear all the petitions.

Volokh argues, correctly, that the right ought not depend on the number of prisoners. But then he in effect makes it depend on our ability to process the habeas petitions. So the way to handle his 50,000 hypothetical petitioners is to appoint a lot of hypothetical lawyers and judges to deal with all those petitions.
9.29.2006 6:10pm
chris s (mail):
"President Clinton ordered Bin Laden to be killed and authorized every request to have him killed."

Greedy Clerk, your recollection of the 9/11 report and mine vary greatly. but I'll re-read those parts this weekend before assuming my memory is better than yours.

I will note, though, that while lawyers often assume saying something is the same as doing something, the two are quite distinct. and saying 'get that man' is not nearly the same as doing what's necessary to actually get him.

ps - don't read this as a Bush apology (though your 'criminal negligence' comment is silly). we seem to have had a bipartisan blind spot when it comes to Muslim terrorists since the Iran hostage crisis.
9.29.2006 6:17pm
Adam Scales (mail):
I have a partial response to Katherine.

I quite enjoyed this post; it is typical of what I have come to expect of Eugene - thought-provoking, insightful and fair. I recognize others may disagree.

One reason they may disagree is implied by Katherine's question about the "deafening silence" regarding a significant (and deleterious, in her view) change in our legal culture on issues surrounding terrorism. I have two responses to this.

First, I think Katherine significantly understates the complexity of ascertaining what the law requires on a topic that is largely shrouded in hypotheticals. There are authorities and precedent for a range of plausible answers regarding Gitmo detainees, extraordinary rendition, and the continuum of techniques that shade from "rough treatment" to "torture". International norms are of varying degrees of authority, and it is rarely necessary for courts of competent jurisdiction to decisively resolve all questions that are bound to arise. There are a lot of reasons (including Bush's own statements) that something that goes by the name of "torture" is wrong and illegal. But those reasons are not self-explicating, as some on both sides of this debate presume. Frankly, I would distrust anyone who was sure of his answer on this one, regardless of whether I liked the answer I heard.

Second, I am not sure that the legislation under consideration actually marks a profound transformation of our legal culture. If 2/3 of the Senate, the President, and the House think "ambiguous torture" is permissible, there's a good chance that they didn't reach this view suddenly, in the teeth of an obviously opposite legal culture. I also have the feeling that a solid majority of Americans will support these measures - and more. I expect to find a great range of disagreement among judges, though less so among academics.

These "pro-torture" constituencies may be wrong, or stupid. It may even be that they do not have the legal power to take these steps. I have little unique insight into these questions. But one should consider how these constitutive parts of the legal culture could so do, if the legal culture was in fact profoundly opposed to them.
9.29.2006 6:26pm
Anderson (mail) (www):
Greedy Clerk, your recollection of the 9/11 report and mine vary greatly

Oh, for pete's sake. Page 132: Clinton approves memorandum that "would allow the killing of Bin Ladin if the CIA and the tribals judged that capture was not feasible (a judgment it already seemed clear they had reached)."

Page 142:

"In July 1999 ... [Clinton] reportedly also authorized a covert action under carefully limited circumstances which, if successful, would have resulted in Bin Ladin's death."

Now, at p. 133, Clinton refuses to provide unambiguous language to that effect in a memo meant to clarify things for CIA. But that's not a rejection of a request to have him killed, and Clinton had apparently already said as much to CIA. Very murky how that got watered down en route.

The cancellations of efforts to kill OBL seem to mostly fall at George Tenet's feet.
9.29.2006 6:32pm
Sam Heldman (mail):
Anyone wishing that Prof. Volokh would speak up against torture -- even against things that are quite obviously torture -- should perhaps read this old post. While there is some difference between torturing convicted criminals and torturing suspects, one who is morally comfortable with the idea of the former is unlikely to abhor the latter with all his heart, I think.
9.29.2006 6:45pm
Jason Robitaille (mail):
Just an aside in response to a few comments above:

It may be valid to debate whether or not a particular technique constitutes torture or otherwise inhumane/immoral treatment. However, it is ridiculous and offensive to suggest that any technique at issue is even remotely similar to everyday activities like people standing at a speech, going to a rock concert, or pulling an all-nighter or two.

The techniques being used are designed to break the will of hardened terrorists. People don't break due to discomfort, inconvenience or any other run-of-the-mill experience. They break because they simply can't take any more of what is being done to them. In other words, any technique that works necessarily must cause unendurable suffering of some sort. Whether that constitutes "torture" under the law is debatable. Whether it's analogous to anything in normal life is not.
9.29.2006 6:49pm
Harry Eagar (mail):
The other side doesn't seem to have any objections to real torture, so, from the gitgo, they are excluded from objecting if we do it, right?

Without getting to the question Professor Volokh addresses, it would be useful to get our feet on the ground about many of the scattershot complaints about Abu Graib, Guantanamo etc.

1. The prisoners are in durance not so very vile with no release date. How is that different from our GIs who were imprisoned by the Japanese? (Well, we feed ours, that's one difference.)

2. Torture includes humiliation. How is that different from what our prisoners endured during, eg, the Bataan Death March?

I could go on, but you get the idea, I hope.

During the 20th and 21st centuries, Americans were held prisoner in Asia by, at least, the USSR, Japan, China, North Korea, Afghanistan, North Vietnam, Cambodia, Iran and Iraq. The Geneva Convention never protected any of those men and women from anything.

And those were all conflicts with nation-states, not with a religious gang.

Under these circumstances, as soon as I hear 'Geneva Convention,' I stop listening. Get serious.

The US Army has a manual (sorry, it's not to hand and I don't have the FM number) on keeping prisoners which begins with an historical review of what has happened to prisoners in our wars going back to the Revolution.

The lesson the Army view of history teaches is, conventions and laws do not protect your prisoners in the other side's hands. The only thing that protects them is the possibility of retaliation against their prisoners in your hands.

This, perhaps, is the better analogy than MAD to current controversies.

The US approach worked well until 1942, when we got embroiled in a continent where our enemies did not care what we did to their nationals, so were completely unrestrained in what they did to ours.

From 1942 to now, that has been our universal experience in Asia. For me, at least, every discussion starts with recognizing that as a fact.
9.29.2006 7:51pm
MnZ (mail):
As EV implies, the scenario he describes - 50,000 prisoners - is wildly unlikely.

Considering the U.S. held well over 50,000 German POWs within U.S. territory during World War II. I question how "wildly unlikely" the scenario is.

Anyway, I understand that those German POWs were deprived of the habeas corpus rights. I guess WWII wasn't such a noble struggle after all.
9.29.2006 7:54pm
MnZ (mail):
I should add. I really don't know if this bill is a good idea. (I have my doubts.) However, it does not help matters when the opponents of it are so rigid, overwrought, and divorced from the facts.

For example, I understand that until very recently war prisoners did not have habeas corpus rights. So, when people act like removing habeas corpus from enemy combatants is somehow a breach of never-before-questioned, long-standing fundamental rights, I feel that I might as well be talking to a member of the flat-earth society.
9.29.2006 8:23pm
Mark Field (mail):

If 2/3 of the Senate, the President, and the House think "ambiguous torture" is permissible, there's a good chance that they didn't reach this view suddenly, in the teeth of an obviously opposite legal culture.

If there weren't election year politics playing such an obvious role here, I might accept this as an argument. As they were, I can't give this much weight.

In any case, the Japanese internment camps operated without all that much opposition. That hardly makes them a proud chapter in our history. Nor does it mean they were fundamentally consistent with our legal culture. They were a product of fear, which overrode our better judgment. It's a lesson for us, not a precedent.
9.29.2006 8:29pm
David Walser:
Three quick comments: First, I don't think the good professor was trying to compare MAD with torture. Instead, MAD was used as an example of something that requires a great deal of thought and analysis before coming to an informed opinion. Torture, at least in the minds of those who blog at VC, falls in the same category. Many people have an opinion about torture, but that does make it an informed opinion.

Second, if MAD and torture are comparable, I think it's in the role credibility plays in both. If the USSR did not believe we would retaliate to their attack, MAD would not have worked. Much of the ability to get information from someone depends in large part on the credible fear of what might happen if the person does not talk. In The Maltese Falcon, Kasper Gutman threatens Sam Spade with torture if he does not tell where the falcon can be found. Spade points out that Gutman cannot afford to kill him and, without the threat of death, none of Gutman's techniques will be effective. (I don't believe that. I think the fear of pain can be sufficient motivation without the fear of death.) The point is that we don't know how much information is given up voluntarily because the detainees believe we might break out the rubber hoses. This well-publicized debate over what we will and won't do might lead to our using our more aggressive techniques more often than would otherwise be the case.

Lastly, we need an agreement on what is and what is not torture. The slippery slope argument slides both ways. Those who disagree with what we are doing argue that permitting technique x will lead to the use of even worse technique y. Those who agree with what we are doing point to examples of the argument going the opposite direction: since y is not permitted, neither should x be permitted. Congress needs to define what is and what is not allowed. If our elected representatives, with plenty of time for reflection, cannot determine what is and what is not permitted, I don't want someone to second guess the actions of some 1st lieutenant.
9.29.2006 8:41pm

President Clinton's response to islamofasicsm was woefully inadequate but he had plenty of company. Every President and Congress from 1979 onward shirked their responsibility to deal with a gathering threat from the Middle East. I include President Carter, President Reagan and President GHWB. The current President Bush really wasn't in office long enough to be cast with the rest but absent 9/11 he may well have joined them.

Of course President's come and go but Congressfolks are forever it seems and they performed just as miserably as the executive branch.

I'd be happy to illuminate on the failures of each if you'd like but there really is no point, the point is that this country failed to recognize the storm gathering in the Middle East and it can even be argued that they seeded the storm by failing to act forcefully against islamic terrorists for a quarter of a century.

On the upside though, it seems you are OK with POTUS ordering the deaths of certain folks absent due process, as long as that POTUS is Bill Clinton at any rate.
9.29.2006 8:42pm
Anderson (mail) (www):
So, Harry Eagar, why did we insist on treating Japanese prisoners well, even after Bataan? Why did our foremost interrogators exclude coercion in favor of rapport-building? (See Atlantic article linked in Rauch thread.)

Guess they were chumps compared to you, eh?
9.29.2006 8:43pm
random passerby:
I didn't think that the analogy of MAD was the point of Eugene's post at all, which is why I think all the posts arguing that his analogy is flawed miss the point. After all, if you recall, he starts off writing about why he doesn't blog about certain issues. In bringing up extreme examples of debatably necessary torture, Eugene doesn't go the usual strawman route and say, "ALL you whiny pacifists haven't got the balls to save the human race" or something to that effect. Instead, he says essentially, "I don't know; it's a difficult issue."

I think the main difficulty is that once you've decided that torture can be justified in extremem instances, then arguments about torture automatically go into the realm of levels and gradation, and when an argument enters that realm, it's extremely difficult to form any sort of full-throated argument against evil or for good, because the difference between good and evil when it becomes a question of shades between torture and coersion, greater good and self-morality, that difference is a split-hair's width...and for those who have already decided, their "hairs" may be at different points on the various spectrums. After all, why be exercised about arguing the grey areas of torture if one hair over of certain danger then renders the torture relatively good instead of (mostly?) evil?

I'm unpersuaded by the "oh, come on, any [fill in the blank] human being should be able to become full-throated, because they should just *know* or do enough research(!) to decide if 1,000 people versus a million people versus the human race warrant torture." The real problem is nominally evil acts of torture--the same act in two very different contexts--can be morally transmogrified, and who besides absolutists can say with any surety which alchemy of circumstances will effect the switch?

The point is that deciding involves very specific knowledge, and I don't necessarily mean legal knowledge, but certainly knowledge of the scope of the evildoer's evil plans, knowledge of the people who could be saved, etc., and on top of that, one has to apply some sort of moral calculus to these very specific instances? It's a task so hard, if not impossible, that it's ridiculous.

After all, how many people who are full-throatedly against torture, but allow for the possibility of the ticking bomb scenario, are relying on their gut to tell them whether the "justifiable danger, torture no longer eviler-than" line has been crossed or not? And, absolutists, there's really no debate to be had with you then; you'll just have to harangue Eugene into seeing the light. That is to say, carry on.
9.29.2006 8:53pm
reneviht (mail) (www):
Re random passerby: I agree, though I think the MAD comment wasn't exactly an analogy. I thought he considered the idea of a merciless strike to be horrible but necessary (not just launching the strike itself, which seems to be the crux of many previous comments' objections to the MAD comment) and so it reconfigured his reaction to horrible things. Of course, I'm not nearly smart enough to deserve to comment on this blog, so I could easily be wrong.
9.29.2006 9:19pm
reneviht (mail) (www):
Hmm, in the post above, I probably should've said "threat" instead of "idea."
9.29.2006 9:37pm
Harry Eagar (mail):
Anderson, until OUR prisoners are protected, I am uninterested in protecting anybody else's prisoners.

Were we chumps to treat the Japanese prisoners well? We were chumps not to execute the emperor and most of his officers afterward.

Mistreating the Japanese prisoners we had would not have accomplished anything.

That's my point. We are competing with people who do not care about our rules. I take an extreme view about this, but that's just me. I have not said anything about how we should treat prisoners we hold. Before we can even consider this, in my view, we have to realize that it is crazy to debate an issue as if all sides were playing by the same rules when all sides are not.
9.29.2006 10:06pm
Cyn23 (mail):
Domestic killers don't "play by the same rules" but when we capture them, we have some modicum of restraint. Why?

This "eye for an eye" mentality is too crude for me.
9.29.2006 10:30pm
Daniel Nexon (www):
Congratulations Eugene! You've re-articulated Elaine Scarry's argument about torture and nuclear deterrence... and a pretty standard component of the moral debate about nuclear deterrence but, as you say, you're not an expert on this subject. But here's the important, and less snide point: Scarry is able to draw the equivalence by noting very early on that torture does not produce accurate information. Torture is a political tool used to terrorize (or, as she puts it, to destroy an individual's subjectivity) and thus is analogous with the use of terror in nuclear deterrence.

If the "utility" of torture is in its extraction of putatively reliable information, than the analogy breaks down. The threat implied by mutually assured destruction is, as you and a number of your commentators note, starkly different than the actual act of inflicting mass death on another country's population. One makes the threat so that one will never actually have to follow through on it, which is rather a different ball game. So, in a sense, I suppose you're right: torture is an act of terrorism and therefore falls in the same universe of other uses of fear to achieve political ends.
9.29.2006 11:34pm
Greedy Clerk (mail):
While there is some difference between torturing convicted criminals and torturing suspects

Some difference?? Although I am against torture in any real case (as opposed to underwear-staining right-wing bloggers' hypotheticals that never happen), I would say that my biggest problem with the torture that in which Bush has engaged in the last few years (and no matter what any right wing apologist says, water-boarding, etc. is torture; a torture perfected by the Khmer Rouge moreover) is that it is very, very clear that innocents have been tortured -- see, e.g., Katherine's post which all the righties are ignoring. I would still oppose torturing those we know were behind 9/11, but my problem with it would be on "slippery slope" grounds and not on the grounds as to which I object (object being an understatement) to this President's actions in the last few years: the grounds being that the President has basically stuck his thumb in the face of the Constitution (you know, among other things, that part about the President taking care that the laws (statutes, treaties, constitutional provisions (e.g. 5th Amendment prohibition on torture) are executed), the Congress (with their blind eye however), the people, the press, and just about anyone who dares even question what the hell he is doing in our names.
9.29.2006 11:49pm
Greedy Clerk (mail):
From 1942 to now, that has been our universal experience in Asia. For me, at least, every discussion starts with recognizing that as a fact.

Nothing like a little racism to finish the thread -- and racism that based on complete and utter bullsh!t. As some may recall, before 1942, there was this little continent called Europe -- where white people come from -- that perfected torture in a way that would make the torturers of Asia envious. Indeed, after 1942, there was still this little continent called Europe where some Europeans -- read: not Asians -- gassed a whole bunch of "prisoners" to death. But, hey, keep pretending that everyone acted all "civilized" before the darkie Asians came along and it is those darkies that forced us to have to torture people. . . . Now, go back to reading PowerLine, listening to Rush and watching Fox News all day (while wetting your pants every time a dark "Asian" comes along).
9.29.2006 11:55pm
Harry Eagar (mail):
Cyn23, the majority of 'domestic killers' do play by the same rules. They may break them, but they acknowledge them, by, for example, confessing or expressing remorse. And by killing for 'reasons' rather than for 'no reason.'

A small fraction do not recognize the rules even to that extent, and we label them sociopaths and treat them, on average, much more harshly than those who kill in hot blood.

You jump to 'eye for an eye,' which I never advocated. What, other than feeling all warm and runny inside, is the purpose of 'laws of war'? If not all sides play by the rules, how, if at all, does that change the rules?

In World War II, the Germans treated their US and UK prisoners by something approximating the way we treated our German prisoners. The same Germans treated their Russian prisoners as bad as the Japanese treated their American prisoners (which was not as bad as the Japanese treated their CIVILIAN Javanese prisoners).

A discussion in a vacuum tends to turn vacuous. Professor Volokh's temptation to avoid the subject because he admits he doesn't know much about it does him more credit than people who rant about it and, only too obviously, have not studied the way prisoners have actually been treated.
9.29.2006 11:58pm
Eugene's point seems to be that in order to avoid nuclear holocaust, America was ready -- not too long ago -- to commit the morally unthinkable. Ergo, the unthinkable must sometimes be thinkable because the fact is that the deterrance model of "if you kill our people, we'll kill your people" has been shown by the Cold War to be effective.

But how does this eye for an eye strategy apply to the war on terror?

As far as I can see, the terrorists don't care if you kill their people. They kill them by the thousands themselves. In fact, if you kill their people, they love it because they can turn that into propoganda for their cause.

So is this why we then turn to torture? Is the thinking that if we can't deter them with death, we'll deter them with pain?

So our new MAD is this: You kill our people, we'll hang you from a ceiling in a cold air conditioned room with loud music and women's underwear on your head?

While I admit to finding the idea comically appealing in a way, what evidence is there that this is an effective deterrant in the way that MAD was and not simply a blind expression of impotent rage?

Again I come back to the question of whether the terrorists give a damn about what happens to their people? I see no evidence of this.

Doesn't torturing their people just give them all the more incentive not to be taken alive (that is to be suicide bombers)? It would seem to me that anyone sent to be a suicide bomber is less likely to have second thoughts about it if they think capture means torture than if they think it means humane treatment.

No doubt conservatives will argue that you can't appease suicide bombers with incentives to have second thoughts. Perhaps that's true. But likewise it seems just as unlikely that you can deter them with the threat of pain.

And can we also agree that the only hope of deterance or even of intelligence gathering -- if such a hope exists -- comes from torturing actual terrorists not innocent civilians?

Would we all agree, in fact, that torturing innocent civilians is pointless and immoral regardless of how restrained the techniques, and is in fact likely to inspire more people to join the fight against us?

We would all agree, wouldn't we, that even just throwing an innocent civilian in jail for months at a time is not justifiable, even in war, correct?

And can we also agree that a system whereby the government can pick up anyone with no evidence and no review by a court is far more likley to end up detaining and torturing innocent civilians than a system that requires the government to show substantial evidence of guilt as a condition of holding them?

Isn't the failure to require some form of due process as a condition of holding people the very reason that the majority of those detained and tortured at Abu Ghraib were completely innocent of terrorist involvement?

And can we agree that if a torturer demands that someone produce a list of names, the tortured is likely to give him a list with a lot of innocent people on it?

Isn't that in fact the very reason that dozens of innocent people ended up at Guantanamo?

There may be arguments for some of these techniques in some particular circumstances. The problem I have with the conservative argument is that it doesn't seem to seek any definition of what these circumstances might be. Rather the very narrow circumstances where it might be justified -- such as the ticking bomb scenario -- are trotted out to justify the ability to use such practices in all circumstances.

Nor is this form of argument limited to the question of torture. Rather it takes place on all questions of governmetn power in war time.

Over and over again, conservatives seem to argue that because it has been necessary in the past for Presidents to confront threats to the country with morally reprehensible or unconstitutional tactics, it should therefore always be allowable to use such tactics to confront threats. There even seems to be the suggestion that this is the preferred approach regardless of the level or nature of the threat.

Yet there is prescious little analysis as to why this should be so.

The best example of this is the constant use of the example of Lincoln suspending habeaus corpus in the Civil War.

The Civil War was the most dire threat to the future of the country we ever faced, and yet the Supreme Court ruled that what Lincoln did was unconstitutional -- three times!!!

However, given the circumstances, the country let it slide.

But does that mean the country should always let it slide?

Does it really mean in these particular circumstances, the country should tolerate suspension of habeas corpus?

Perhaps it does, but what is disturbing about the conservative argument is that it seems to suggest that the President should ALWAYS be allowed to take these clearly unconstitutional measures in time of war REGARDLESS of the circumstances, regardless of the scope and nature of the threat.

Likewise, Eugene argues that because we've successfully faced a threat in the past by being ruthless, we should therefore always be ruthless.

But why would we choose to be ruthless if there's no clear need to be to win? Why would we be ruthless if it's not clear that it helps our efforts more than it hurts them? Why would the immoral way be our first choice rather than a last resort chosen as a matter of necessity?

Eugene leaves out an important fact about MAD in this discussion and that is that it was a MORE MORAL choice than the alternative.

The alternative would have been a first strike. MAD meant that the country had to live with this threat and constantly be vigilant to keep it from being realized. A first strike would have offered the possibility of eliminating the threat, but it also would have killed millions of Soviet civilians.

If it had been possible to successfully conduct a first strike against the Russians, without getting hit back, would that have been justifiable in Eugene's view?

In this war on terror, that's exactly what we're trying to do -- eliminate the enemy once and for all instead of living with the threat and being vigilant.

Maybe we'll be successful and eliminate this threat. Will that mean no more threats to us -- no.

We're a superpower. We're in charge. There will always be people who want to kill us because of that. It goes with the territory. The question is will we let these threats define us?

The problem with the conservative point of view is that it sees this issue as being about the terrorists.

It's not about them. It's about us. It's about who we are and what kind of country we're going to have -- one that lives by American principles or one that lives by the principles of our enemies.
9.30.2006 12:14am
Hans Gruber:
Further, there are MANY more morally questionable things we do while conducting war than torturing terrorists. We accept innocent loss of life as part of the cost of war; and at least to me that is much worse than torturing somebody we are certain is a terrorist.
9.30.2006 12:27am
Consumatopia (mail):
In World War II, we were willing to kill hundreds of thousands (millions?) of civilians in mass bombings of cities with firebombs and nukes. But we weren't willing to institutionalize torture. Even though every day of that conflict was a "ticking bomb" in which the enemy had information which would save our lives and end theirs if we knew it, we weren't willing to go that far.

Yours is an impressive argument. But if your argument is just that if threatening nuclear holocaust is not obviously categorically wrong, than nothing can be categorically wrong, then that is plainly false. Genocide? Rape? Brainwashing?

Its an interesting thought experiment to figure out WHY your metaphor doesn't work, but it clearly doesn't work. Clearly, SOME things are categorically wrong.

I can think of somethings that would distinguish MAD from obvious categorically wrong things.

One is that it's a threat, not an action. Suppose the Soviets had actually fired, and the missiles were on their way to annihilate our hemisphere. It would seem, in that case, categorically wrong to actually carry out your threats. A Soviet World is morally preferrable to a Dead World, and there's no point crying over the spilt milk of deterrance. It's one thing to make your enemy THINK you're crazy, it's another to actually be crazy. It's also quite another to actually make yourself crazy because you think that makes it LESS likely for anyone to do something crazy.

But I think even that misses the point. I think to see the real point you have to go back to World War II and ask why we were more scrupulous about enemy POWs than enemy civilians. Perhaps killing someone is actually a lesser crime than dehumanizing them? Obviously, a great many people under torture would prefer death. I think that is what makes it obviously categorically wrong, even more so than nuclear deterrance. (Though, again, nuclear deterrance is not nuclear attack).
9.30.2006 12:47am
Tom Holsinger (mail):
Claims that torture is not an effective interrogation tool are often made but have no basis in fact. Rather it is an assertion of secular faith.

The real problem in use of torture for interrogation (coercion is not torture) is that torture is so effective at that, and easy to use, that there are powerful incentives to keep on using it in less and less important interrogation situations, followed by a drift to using torture for other purposes, first for intimidation and then to express personal and group power issues.

The French went all the way down that slippery slope to hell in the Algerian War of Independence. Their misuse of torture had strategic consequences.
9.30.2006 1:08am
Here's the simple pt. We've congressmen &senators with an incredible lack of law or the constitution and as readers of the VC would naturally presume ya might have some ethical insight constitutionally.
9.30.2006 1:23am
Dilan Esper (mail) (www):
One question I have for all the torture supporters. If the case for torture, even in "ticking bomb" situations, is so obvious, why did conservative administrations such as Reagan's and the first Bush's (and even the second Bush's, rhetorically) endorse international conventions that prohibit torture categorically? I know you might say 9/11 changed everything, but there was terrorism before 9/11-- indeed, the Israelis were using torture, and we condemned it (along with everyone else in the world). Further, just about every unequivocally bad regime that used it cited (often entirely truthful, if overstated and convenient) violent groups that threatened the stability of the government as a justification for torture. Again, we rejected this-- and we signed and ratified treaties that not only prohibited direct torture, but prohibited "refouler" (which the current Bush Administration calls "rendition"), defined as turning a person over to another country where it is likely that the person will be tortured.

Before the Bush Administration started torturing people (and simultaneously lying to the American public and denying they were doing it), no right winger I know of was arguing that the US should abrogate or deliberately disobey the various treaties that prohibit torture, or that exceptions needed to be carved into them for necessities, or situations where there was an urgent threat, or a possibility of serious harm, or whatever. Now maybe none of you thought about these things-- but I would at least think that the conservatives in government, who were present when the US was acceding to all these treaties and protesting torture in other countries, would have said something. Why not?

My answer for this is pretty simple. We always KNEW-- contrary to Professor Volokh's studied ambivalence-- that torture is wrong in all circumstances, that the torturer is hostis humanae generis (see Filartiga v. Pena-Irala), etc. So even conservatives had no problem with the US acceding to all these treaties. Indeed, they will continue to condemn regimes WE DON'T LIKE who torture. (E.g., Saddam's rape rooms.) But many conservatives think that the US shouldn't have to live by the rules the rest of the world lives by. That's what the torture legislation that just passed the Congress is all about. And it is shameful.
9.30.2006 1:56am

Torture is against the law. Defining torture down to the point where any mental stress is considered a violation of that law should also be against some law. Nah, we don't need any more laws.

Nuance Dilan. Between allowing terrorists to invoke a right to remain silent and ripping their tonsils out is a vast space for nuance.

And we don't need hypothetical "ticking time bomb" scenarios. We need only look at 9/11 and the fact that we had Moussaoui detained. As an exercise let's say that Moussaoui in an act of bravado announces that he knows a lot of Americans are gonna die and he knows when and how but he ain't saying nothing else.

What level of stress should be imposed on him if any and which is the moral thing to do, impose some temporary discomfort on ole Zacarias or allow three thousand Americans to be murdered and many more thousands lives ruined?
9.30.2006 2:42am
Humble Law Student (mail):
Greedy Clerk,

That's the best you can come up with? Come on. Yes, firing a few cruise missiles at some camps sure shows that Clinton tried, oh so hard. haha, right. And, yes, Clinton liked to sign memos that stated, maybe, if the stars aligned just right, Bin Laden could be killed. That Clinton took Bid Laden seriously is an utter joke - at least from the perspective of the actions he took.

Tenet is hardly an excuse. If he impeded Clinton in his crusade against Bin Laden he should have fired him, or ordered "more specifically" with less ambiguous language.

Finally, the fact that you worked in the Pentagon means nothing. You could have been the janitor for as well know. Of course, you likely weren't the janitor. But, your attempt at arguing you have some special authority because you've worked at the Pentagon is quite laughable.
9.30.2006 3:00am
byomtov (mail):

There are some important differences between Volokh's example and POW's captured in a conventional war.

Volokh postulates that the 50,000 are insurgents - not regular soldiers - captured in an allied country, who are turned over to the US, possibly because the other country lacks the ability to manage them. This is substantially less likely than taking 50,000 prisoners from a regular army.

That POW's lack habeas rights is not a compelling argument. Almost by definition, POW's are uniformed members of the enemy's armed forces who have surrendered. I think they will seldom have much basis for disputing their status.

On the other hand, whether a detainee is actually a combatant is often unclear. Many are not captured in battlefield situations. Surely a man captured in ordinary surroundings and accused of terrorism ought to have the ability to challenge the accusation. Similarly someone captured by a warlord, and sold to the US as a terrorist ought to be heard. It is a fact, after all, that the US has detained many innocent people, often for years.

You accuse me of being rigid and divorced from the facts. Well, I am rigid about this: I don't think the President should have an unchallengeable right to detain people indefinitely. What do you think about that?

And I don't think I'm divorced from the facts. I think the facts are that we have seen serious abuses of authority already, and I expect to see more.
9.30.2006 12:05pm
Andrew Hamilton (mail):
I think Prof. Volohk has mischaracterized U.S. nuclear doctrine. I also think a more accurate description could sharpen the focus on the moral issues that seem to be involved in both war fighting and "aggressive interrogation."

Any careful reading of the annual defense posture statements by U.S. secretaries of defense from as far back as Robert McNamra should make it clear that the United States sought to persuade the Soviet Union and other interested parties that its nuclear doctrine was one of "controlled escalation," not "massive retaliation" (a doctrine associated with John Foster Dulles). The Single Integrated Operations Plan (SIOP) of U.S. strategic nuclear forces evolved over time in a direction consistent with the public
description of doctrine, away from weapons whose only effective use would be the attack of large-area "high value" targets (city busters) toward ones with greater accuracy and lower yields, more tailored toward the attack of military targets. That is not to say that the collateral damage from
hundreds or thousands of such attacks would not have been massive. But an initial response could be taken without putting millions of lives at risk. One of the main points missed by the Catholic bishops in their otherwise excellent
argument against nuclear weapons in the context of "just wars" was the deliberate and costly effort by the U.S. government to achieve proportionality and restraint within the nuclear war environment. Of course, it may have been a one-sided and therefore ineffective effort to create rules of nuclear war. The best evidence available in the early 1970s, for example, suggested that the Soviet Union wanted the United States to understand that the initial use of tactical nuclear weapons in Europe, even a demonstration use at the lowest level of yield, against an advancing military unit, would be met with a theaterwide nuclear attack on rail centers, ports, military bases, etc. with hundreds of warheads. (That posture of holding Europe hostage was why the Pershing II missile was considered a necessary statement of U.S. capability to respond in kind without crossing into the unknown territory of a central nuclear exchange.)

Like Prof. Volokh, I know little empirical about the effectiveness of coercive interrogation. The possibilities of negative results -- death, impairment or the provision of false information to escape further coercion -- are obvious, and I recall that there are cases from American criminal law regarding police interrogations that provide some data. But there remains the question whether, as President Bush has asserted, valuable information can be gained by "aggressive"
interrogation techniques that stop short of doing permanent injury. I'd like to see Congress ask the Rand Corporation or
some other body to do for the CIA's interrogation program what the Strategic Bombing Survey did in assessing the effectiveness of "strategic bombing" (ie, deliberate attacks on civilian targets) during WWII.

There is an argument that strategic bombing (i.e., Hiroshima and Nagasaki) won the war against Japan at a
much more acceptable price in total loss of life than an invasion of Japan would have produced. Americans at the time were largely comfortable with that calculus. It is only in more recent years that people have come to look on the first use of nuclear weapons as immoral. It was, undoubtedly a horrific act, with long-lasting consequences, one of which may some day be a nuclear terrorist attack. But I tend to think the Hiroshima decision, both as a moral and a practical matter, should be viewed in terms of the information available to the decisionmakers at the time.

One of the lessons of Hiroshima was the need to build a force structure and doctrine that would deter nuclear attacks by making nuclear war a no-win proposition for an attacker. This at first involved the threat of massive retaliation, and it was only later, as more resources and better technology allowed, that we began the effort to introduce principles of proportionality into the doctrine.

The moral and legal justification for the nation's nuclear posture was the right of self-defense. I can foresee the arguments over aggressive interrogation, and the tools used to elicit accurate information from resistant individuals, evolving in a similar direction, from lesser to greater precision allowing more restraint in achieving the objective. It is important to watch for
evil and unintended consequences, and I'm sure there will be such. But if, on careful evaluation, the rough handling of suspects in the context of a war turns out to be an effective weapon, nations are not likely to forswear it until there is a general consensus that its adverse consequences outweigh its benefits.
9.30.2006 1:53pm
whig (www):
Excerpt from my full reply to Adam Scales

What Adam says may be partially true, there may be a substantial democratic constituency for ambiguous torture. Our culture has been so propagandized for war for so long, it has been denied a true free speech media for as long as most of us have been alive, with the present exception of the internet (though even here there are constraints on what can be said.)

If a majority of Americans supported ambiguous torture, that would not make it acceptable. This is where I will speak against democracy, in the abstract. But in the concrete, I do not believe that most Americans will support torture if they know it is happening.

Torture is unacceptable in any case, and every one of us who tortures will feel what it is like to be tortured. When you become conscious of what you have done, you will experience what you did from the other side. You will know, and you will stop doing it. That is how justice is done.

Too few perceive God anymore. God reflects us. Be Love, and God is Love.
9.30.2006 2:25pm
Harry Eagar (mail):
spock, I don't agree with much of what you think we can all agree on.

But, to take one point that should be obvious, it is incorrect to suppose that a movement that kills in the mass is composed of individuals all of whom are personally indifferent to their own fates.

It is more likely to be just the reverse. My father related his experience with cringing Japanese prisoners who had cheerfully chopped off the heads of helpless prisoners when they were on top. They were not indifferent to the prospect of losing their own heads. (My father did not chop off their heads; he should have.)

I don't particularly care for conflating the idea of MAD (or anything similar, like bombing cities) with the idea of questioning individuals. The two are not equivalent.
9.30.2006 3:24pm
The reason I brought up Clinton's use of 'wiggle words' in his orders to kill/capture/detain/nosewipe bin Laden is that they are an example of what happens when the policy is not clear.
As Lt. Col Buzz Patterson (Dreliction of Duty), Michael Scheuer, Richard Clarke, and the 9/11 Commission all make clear, Clinton's orders were issued with wording calculated for maximum deniability.
If something went wrong with the mission and there was a political fallout, Clinton could immediately claim that his orders were misconstrued and the people involved 'tragically overreached. Essentially, they could expect to be court-martialed by their own people for their attempt to follow orders if anything went wrong.

Why do I bring this up? Well, the command structure for the use of torture is just as important, and the statement of the law passed by Congress is that structure.
People put in the unenviable position of having to decide what torture should and shouldn't be used depending on what they know about the situation need that guidance, set down beforehand - both so they know what a trangression is and what isn't. So they know they won't be hung up to dry for trying to protect the country and can do their duty to the utmost, which is what we require of them.
9.30.2006 4:11pm
David W. Hess (mail):
The strategic bombing of cities in World War Two did not initially arise out of a desire to inflict casualties on civilian populations. As the war progressed, it was found that navigation under hostile conditions did not permit attacking targets smaller then cities and even occasionally countries as Switzerland discovered after the Allies accidentally bombed them. Given the weapons and technology available, it was a choice between bombing military, industrial, and economic targets with significant civilian casualties or forgoing almost all strategic bombing. Hezbollah's attacks on Israel from Lebanon and to a lesser extent Israel's responses face similar limitations on preventing civilian casualties. The shift of the United States away from targeting cities using ballistic weapons happened after improvements in accuracy made the delivery of smaller weapons against specific targets possible.

I am not qualified to accurately appraise the legal issues involved with unscrupulous rendition, torture, and detainment however on a larger scale I am concerned that the United States is too easily sacrificing being above reproach in the name of expediency. I suspect that other effective actions we might have taken were simply too politically costly.
9.30.2006 6:30pm
Mike BUSL07 (mail) (www):
Whig, you are being a bit presumptuous. I think a lot of people understand what torture entails, and possess powers of empathy no less developed than your own. They just - well - don't agree with you. Moreover, I'm pretty sure there are surveys where "tickign nuclear bomb scenarios" yield something like 60% support rates for torture - so there is your public referendum.

(Sorry, if this has all been said here. I only read the last few comments on the thread).
9.30.2006 7:10pm
MnZ (mail):

Irregular troops and non-uniformed militants are reasonably common in the Middle East and Northern Africa. I could easily imagine the US capturing tens of thousands in a hypothetical war. Extending habeas corpus rights to them would - in effect - reward them for avoiding the Geneva Conventions. Clearly, this is not something that we want to do. Furthermore, it could put our military at a distinct disadvantage against irregular, militant groups. I don't think we want to do this either.

So, what is the solution? Perhaps, we should extend quasi-habeas corpus rights that would neither reward irregular militants nor hinder the military. Your prosposal to appoint a bevy of lawyers and judges does not do this.
9.30.2006 7:21pm
whig (www):
Mike BUSL07, you are fifteen years old? I was like you once, very sure of myself while not knowing very much of anything about the real world.

Please read what I wrote again, I am not going to argue over whether or not a plebescite prefers torture. You lack belief in some things that I perceive clearly, but in time you will see more of what you are approving and hopefully reconsider your position.
9.30.2006 8:04pm
Tom Holsinger (mail):

Here's a link to a link of the poll you mention:

Majorities say torture should be safe, legal and rare.
9.30.2006 9:24pm
Tom Holsinger (mail):

Patronizing people is the ideal way to influence them, just not the way you intend.
9.30.2006 9:59pm
byomtov (mail):
Perhaps, we should extend quasi-habeas corpus rights

What are "quasi-habeas corpus rights?"

All I'm saying is that if we are going to detain people on the grounds that they are terrorists or terrorist supporters, they ought to have a fair chance to dispute that designation. That includes having a lawyer, being able to challenge the government's evidence, being able to present evidence, etc. My understanding is that under the bill the President can effectively detain individuals indefinitely on this basis, and that, at least in the case of non-citizens, they have no recourse. That's wrong.
9.30.2006 11:04pm
Tom Holsinger (mail):

Lots of things are wrong, but they continue to exist regardless of peoples' opinions about their wrongness. The world is not perfect and neither are people.

War is not peace. Things happen in war which do not happen in peacetime.

No enemy in war has had habeas corpus rights until this one when the Supreme Court violated constitutional separation of powers to give those to our enemies in Rasul v. Bush. That was statutory habeas corpus so it could be, and was, changed by legislation.

We have now returned to the situation as it was prior to Rasul v. Bush.
9.30.2006 11:49pm (mail):

You are correct in your description of Kennedy and the Whiz Kids' stance on nuclear escalation, but MAD had many more flavors than those you mention. From what I remember of my National Security class in undergrad, most policy makers that followed Kennedy's administration thought the Whiz Kids' policy was both dangerous and naive. There were numerous numerous changes in strategic nuclear policy depending upon second strike capabilities, Soviet and U.S. posturing, and asymmetries in technological developments.
9.30.2006 11:59pm
Kevin Edwards (www):
Eugene, insofar as your analogy seems valid, it reminds me of the recent Carrots and Sticks article by Rusty Shackleford. In it he argues that the Geneva Conventions are only useful to the extent that they provide contingent protections.

Thus, a nuclear-style standoff may occur if all sides of a conflict care enough about humane treatment of their own people to warrant humane treatment of their enemy. Of course, if torture actually is effective, then it will nevertheless be tempting to secretly and selectively employ it for advantage. And, as you've noted, the granularity of harm done by a single instance of torture is much smaller and difficult to detect than a nuclear bomb.
10.1.2006 12:08am
Harry Eagar (mail):
Kevin, thanks for the link to Shackleford. The Muslims, contra the other examples of violation of humane principles throughout Asia in the last century, do care about what happens to their prisoners. However, there is no evidence that they are willing to engage in the reciprocity that Shackelford writes about. (I do not think he quite understands what the conventions require, but do not feel the need to get into that here.)

Greedy, I missed your thoughtless complaint about my fear of dark people. If you'll reread the post, you might notice that the first nation listed was the USSR, the least dark people on the planet.

The underlying assumption of nearly all these posts is that a legal framework is the appropriate way to deal with Muslim prisoners. My argument is that Muslims treat themselves explicitly as outlaws to our laws and we should, too.

But if you disagree with that, let me ask you this: Islam has a legal system. If legal approaches are adquate, are you willing to trust handling prisoners to Islamic courts? If not, why not? (Hint: no habeas corpus in Islamic jurispruden ce.)
10.1.2006 2:14am
AST (mail):
I've thought a lot about this, and decided that any treatment we don't allow to be inflicted on our own troops during training is inhumane and off-limits. That allows us to use waterboarding, starvation (survival training), being harnessed into simulators of jet fighter ejection systems, wading through swamps up to their necks carrying heavy weight over their heads, etc. They've pretty much been through some rough treatment at Al Qaeda's training camps. Can't we at least force them to do calesthenics? or sit in a room of ten year olds memorizing the scriptures out loud?

These guys are willing to blow themselves or their younger associates to bits for martyrdom. Why can't they endure a cold room, or being slapped around a little?

OK, I'm being sarcastic, but this isn't the Spanish Inquisition. We don't care if they confess. All we want is reliable information, without turning our interrogators into sadists and monsters.

As for nukes, I was convinced a long time ago that no matter what the provocation, we will never launch our nuclear missiles in anger. Killing millions of innocent civilians in retaliation for the acts of a few mad men? Come on. Our media would never allow it, unless the first strike took out the offices and studios of the NYTimes, WaPo and LATimes, CBS, NBC and ABC all at once.
10.1.2006 2:19am
Dilan Esper (mail) (www):

I was talking about the right's support for actual torture, justifying it by citing the "ticking bomb" scenario (which was what Professor Volokh's post was about). This is also Charles Krauthammer's position.

I realize many OTHER conservatives claim to oppose torture, but don't feel certain things constitute torture, but that wasn't the position I was critiquing.

Since you mentioned it, though, I will tell you that prior to 9/11, there was no doubt that waterboarding would have constituted actionable torture under the Torture Victim Protection Act, 28 U.S.C. § 1350 note, or the corresponding domestic torture statute. Similarly, "long time standing" and "cold cell" would have clearly met the definition of torture. Indeed, the definition of torture has been litigated in American courts for 25 years since the Filartiga case, and internationally for much longer. We knew what it meant.

Conservatives who support Bush now PRETEND that torture is impossible to define, but it actually never was before Bush decided to start abusing detainees. But that's simply a baldfaced lie-- there are longstanding precedents on what does and doesn't constitute torture.
10.1.2006 2:52am
kentuckyliz (mail) (www):
Speaking as an immigrant and naturalized, legal permanent resident aliens do not have the same rights as US citizens. PRAs can still be deported for crimes...Americans can't.

Do not assume that because someone is a permanent resident alien with a green card, they are a safe person and not an enemy. Many of the terrorists acting on our soil were here legally.

The INS is part of the interagency counterrorism task force and a participant in the terrorist suspect database. They do not routinely check the database for name screening of those applying for resident alien status or naturalization. They recently awarded resident alien status to someone on the database.

When you apply for naturalization, you turn in your fingerprints and your information and the FBI does a screening check...but if you've not done anything *yet* to attract suspicion, you'll pass with flying colors.

When you become a naturalized citizen, you swear an oath to give up your titles of nobility and allegiances to foreign countries. The application for citizenship asks if you are a Nazi or Commie. (Our new enemies aren't listed yet.) Given that it is OK to lie to the infidel, even if we did ask about membership in and/or activities serving terrorist organizations, what, we rely on a person's honesty to be the screening check? So all resident aliens and naturalized citizens are safe?

I know too much to rest easy in that assumption.

And Geneva Convention protection for non-state actors?! Gimme a break. They are more than criminals and less than state sanctioned armies. They are a legal black hole and should stay that way. In an asymmetrical, proxy, terrorist war, to start granting rights to the enemy emboldens them...and there is NO analogy with MAD because they do not care to give up their own or their children's lives. Pigs.
10.1.2006 9:18am
Hans Gruber:
"In World War II, we were willing to kill hundreds of thousands (millions?) of civilians in mass bombings of cities with firebombs and nukes. But we weren't willing to institutionalize torture."

You are saying that nuking civilian citiies and killing hundreds of thousands of innocent civilians is preferrable morally to torturing combatants for military information. Whoa.

Are you really serious? Again, I don't like torture (but not as much as I dislike killing civilians), but I think if we are willing to accept the greater evil of loss of civilian life then torture (when reciprocity is not an issue) naturally follows. During WWII reciprocity was an issue; one of the main reasons we didn't torture is because we wanted to ensure as much as we could that our soldiers were treated humanely. Of course they weren't in many cases, especially by the Japanese, but I think it's pretty clear that at least our German experience would have been worse had we decided to torture. The same principle drives the Geneva Convention, which is why, contrary to the Supreme Court's interpretation, it was limited to uniformed soldiers of nation states.

The slippery slope argument(a favorite of Professor Volokh's) can be used here to justify the prohibition. While terrorists themselves are unlikely to be affected by our torturing or not torturing terrorists, other nation states may find it easier to torture our soldiers because of this policy. This is the strongest argument against the use of torture, but it's more of an argument for keeping our torture SECRET than for not torturing at all.
10.1.2006 12:49pm
MKL (mail):
The one thing I wish people like Andrew Sullivan would answer for me is when they talk of things like intentional sleep deprivation and playing of loud music as torture, does that mean the Clinton Administration tortured the Branch Davidians at Waco? Was it ok to torture women and children (mostly US citizens) but not illegal combantants caught on the battlefield?
10.1.2006 1:08pm
Mike BUSL07 (mail) (www):
Whig, you obviously clicked on my MySpace link. Good Stuff. The reason it says I'm "15" is that my profile stays private, showing only my picture. The fact that you can't tell a 15 year old from a 27 year old is troubling.
10.1.2006 1:30pm
Tom Holsinger (mail):

The GC deterred our enemies from torturing American prisoners in only one instance, and not much at that - the Germans in World War Two. The Japanese were not deterred at all.

Korean War - not.
Vietnam War - not.
Desert Storm - not.

What principally deters our enemies from mistreating American prisoners is the prospect of retaliation. The GC are just an excuse. The GC are useful in wars not involving Great Powers, but when those are involved they mean little relative to retaliation. This especially applies to wars involving the United States.

Consider what happened to Confederate POW's after the Fort Pillow massacre.

Claims that the GC protect American prisoners are just another exercise in lefty wish fulfillment.
10.1.2006 3:55pm
Tom Holsinger (mail):
There are two recurring untruths in the discussion of interrogation methods and torture under the Geneva Convention.

The first is that torture is ineffective in dragging the truth from uncooperative prisoners. The untruth here lies in the classic nature of interrogation - it is like everything else in that expertise is crucial.

The single most important factor in any interrogation is the skill of the interrogator, not the particular technique they use. Torture is just another tool for them. One technique can substitute for another most of the time, but there is no substitute for skill by the interrogator and that skill also entails the interrogator's familiarity with the interrogee's culture.

Claims that torture is not effective in interrogation are rarely backed up with evidence. In those instances where they are, the cited instances almost always involve lesser skilled interrogators who have already screwed up.

Torture used by a skilled interrogator is exceptionally effective in obtaining useful information, but so are many other techniques. This is very situation dependent.

Torture as an interrogation tool has been found to have the greatest relative advantages over other interrogation techniques in time-critical situations, and when prisoners are both exceptionally capable and uncooperative.

Torture has major disadvantages relative to other interrogation techniques for many of the more commonly conceived reasons - what it does to the interrogators, long-term effects on subject populations when it is over-used, etc. Ineffectiveness in obtaining information is not one of those commonly conceived reasons.

All of the real, as opposed to mythical, disadvantages of torture as an interrogation technique can be found through study of the Algerian War of Independence.

The second most recurring untruth in this discussion is that the Geneva Convention somehow protects American prisoners of war from abuse by their captors. This is flat out untrue. Any investigation of the historic record proves this.

There is a third recurring pattern in this discussion - the absolute allergy to history shown by those who denounce, or merely oppose, the United States government's actions in the war on terror.

There is a reason for this.
10.1.2006 6:01pm
Tom Holsinger (mail):
Here is a link to an on-line article about the French use of torture in Algeria. I had not read it until today, but have most of the books cited in the bibliography and have read some of its other sources.

LOSING THE MORAL COMPASS: Torture and Guerre Revolutionnaire in the Algerian War, by Lou DiMarco
10.1.2006 9:06pm
Tom Holsinger (mail):
oops, I should have included this:
"Lou DiMarco (Lieutenant Colonel, USA Ret.) is a faculty member at the US Army Command and General Staff College, Fort Leavenworth, Kansas, where he teaches military history and courses on urban warfare and warfare in the Middle East. Mr. DiMarco has written and presented lectures on a variety of topics relating to urban warfare and counterinsurgency."
10.1.2006 9:09pm
Mr. Holsinger,

I read the Lou DiMarco report you linked to and it doesn't support what you're saying. In fact, from its conclusions, it would appear that you are the one with an "absolute allergy to history" as you put it.

Far from concluding that torture is "exceptionally effective", DiMarco concludes:

The French experience revealed that torture is only marginally effective and has tremendous negative strategic consequences.

The French intelligence operation in Algeria was extremely effective, according to DiMarco, but no where does he conclude that its effectiveness was due to torture.

Quite the contrary:

The irony is that even though some tactical successes can be attributed to their use of torture, the French had numerous other effective HUMINT techniques and were far from reliant on torture for tactical success.

DiMarco does say that torture was integral to the French system of intelligence and that the system was very effective but he never says it was effective because of torture. He explains what made it effective:

The French ensured that intelligence was linked tightly to the elite mobile forces. They understood the fleeting nature of good intelligence and thus developed the ability to react to acquired intelligence quickly with their mobile strike units. The French recognized that human intelligence was most important. They built multiple, overlapping layers of HUMINT networks to provide and reference information. They also understood that the environment in which the insurgents operated was the population. The French Army therefore sought to organize that environment. This took the form of a very detailed and accurate documentation of the population. Censuses were conducted and identification cards were issued that enabled files to be established on the civilian population and gave the army the ability to track individuals within the population.

As for torture's role in this, he states:

High-stress interrogation techniques and torture were an integral part of this system—and its major defect. The failure of the French to recognize this flaw would have immense strategic consequences.

Basically, he argues that the French won the war in every way largely through a great counterinsurgency effort but then lost the loyalty of the local population and support at home because of torture and thus lost the war.

And he notes, the French, like us today, did try to be restraining in their use of "high stress" techniques. The problem is that it didn't work.

They also failed to understand that once violence is permitted to be exercised beyond the standards of legitimately recognized moral and legal bounds, it becomes exponentially more difficult to control. In Algeria, officially condoned torture quickly escalated to prolonged abuse, which resulted in permanent physical and psychological damage as well as death.

Here sir, is the evidence that you and your compatriots have failed to learn from history and therefore repeated it in Abu Ghraib and elsewhere.

And as the French lost the support of the population in Algeria in large part because of torture, we have lost much of our support in Iraq for the same reason.

I urge everyone to read the report Mr. Holsinger links to in its entirety and not take his word for what it says.
10.2.2006 12:39am
Tom Holsinger (mail):

DiMarco was talking about the effects of torture at a higher than individual level - this is why I said the French misuse of torture in Algeria had strategic consequences. It is highly effective on an individual basis, particularly when used by skilled interrogators. Read his sources as I have. I wasn't aware of DiMarco's article until this afternoon, but I started reading the sources 40+ years ago.

The problem is the "slippery slope". When torture is officially condoned, its use will not be confined to rare high-value instances. That is what happened to the French, and started happening with the Israelis until they officially banned torture. Check out Jonathan Adler's column below, about Amos Guiora, including its links and the posts.

The U.S. government's initial stab at this issue, in limiting extreme coercion aka torture to the CIA and high-value suspects, gets us a little bit pregnant. Consider the confused lines of authority during the misconduct period at Abu Ghraib - the jailers were told not to ask questions about the credentials of those who dropped prisoners off, or of some of the people who came in to question prisoners. In addition to that diffusing responsibility and thereby accountability (how could the jailers tell who was CIA and who was military intelligence of some sort?), that invited the enemy to infiltrate commando teams into Abu Ghraib Trojan-horse style.

I agree that torture should be banned, but claims that it is not effective are simply untrue. Otherwise why does its occasional use so inevitably, and rapidly, lead to excesses?
10.2.2006 1:11am
Tom Holsinger (mail):
And the French lost the war for a great variety of reasons, of which torture was only one. Study Heggoy's book in particular. They simply could not treat the Muslim Algerians as French citizens, and the means the Army used to maintain control in Algeria (Direct Action, etc.) tempted the Army to use those same means in Metropolitan France.

IMO the long-term cause was the domestic political inability to make the Muslim Algerians French citizens in fact as well as in propaganda, the medium-term cause was that the Army's political methods in Algeria made the Army a threat to civilian political supremacy in the Metropole, and the short-term causes (plural) were;

1) the political and financial strain of a nation of 45 million people maintaining 500,000 troops (400,000 conscripts) indefinitely in Algeria, in addition to the Metropolitan forces (if you think the Vietnam War was unpopular with us having 500,000 troops there of which 60% were draftees, consider how unpopular it would have been if we had to park TWO MILLION troops (90% draftees) there for twice as long);

2) the French people knew about the torture and were morally horrified about it to the point that they demanded an end to the war;

3) and the Algerian people didn't appreciate being victims of torture, though that was somewhat offet by the FLN's use of torture and more widespread use of murder. Consider the present on-going insurgency there.

Items (2) and (3) were the strategic consequences of the French misuse of torture. But the French would have lost anyway.
10.2.2006 1:24am
libertarian soldier (mail):
Mr Holsinger: You draw a distinction that did not exist. Algeria was part of Metropolitan France (From Wikipedia: Shortly after Louis Philippe's constitutional monarchy was overthrown in the revolution of 1848, the new government of the Second Republic ended Algeria's status as a colony and declared the occupied lands an integral part of France. Three "civil territories" — Algiers, Oran, and Constantine — were organized as French départements (local administrative units) under a civilian government).
The war ended not because of the French people were morally horrified by torture, but when DeGaulle was elected with an intent (which he carefully did not pronounce beforehand) to sever Algeria from France to enable France to regain its greatness. I personally wonder if he would have followed that route if Algeria's gas wealth had been better known.
I do not understand about the cost of the conscripts--their essential costs (salaries, food, uniforms, equipment) would have been the same regardless of location, since military service was mandatory. I agree that a basic failure was the inability of the French Government to force the pied noirs to accept the Arab and Kabayle populations as equal citizens.
10.2.2006 6:03am
eddiehaskel (mail):
In the lofty ivory towers of law school, one can bask in the afterglow of some purportedly difficult argument.

I am deep because I tackle the hard problems and because I have the humility to know exactly those problems that I cannot discuss.

But the giant leap from torture to mutual assured destruction . . . can anyone show me the logic?

If there are any real libertarians left, which I really doubt, can one of you tell me what is all of this sophism about? Is it merely to soothe one's soul? Or more accurately to soothe one's sense of loss having sold one's soul?

Torture is not about grand strategies nor about global politics nor about esoteric discussion of ethics. Either torture exists or it doesn't. I do not think it is that difficult. Is it justifiable to posit that the total annihilation of one's enemy is "better" than obtaining a peace with an enemy, because of the possibility that the peace will not endure. Am I not justified in insuring the peace by obliterating the possibility of retrenchmant? And the ticking bomb dilemna does not solve any problem and is merely another attempt to avoid answering the basic question. That is not what legalized torture is about. The ticking bomb question is easy, because the individual doing the wrong has made the decision to "take his medicine". And then there would only be one more innocent man in jail (get it, the guy who tortures should be willing to serve time honorably, sacrificing his legal rights for the common good). But in any event, there cannot be a moral free ride in this case. Unless we open all of morality and ethics to a slippery and undefinable relativism.

So let's just get the calculus correct:

Liberty=small government for everything except religion, sex and personal beliefs.
Survival=Ends always justify the means, otherwise we won't be there to enjoy the spoils of war.
War=Hell, but someone's got to do it all the time because we got to be fighting somewhere so we're not fighting here.
Conservatism=staying in power.

So as we wave goodbye to the great writ and give our chief executive the power to select anyone deemed a threat (of what, well if I were to take this administration at its word that would be anyone aiding the enemy, which would mean anyone who disagrees with the president and vocalizes such disagreement) and detain that person indefinitely without ever charging that person with a crime and without affording that person any right to challenge the grounds of his/her detention.

This is one of the most fundamental changes to our system of laws and its simply too hard for learned law professors to talk about.

I guess someone who insists give me liberty or give me death is now not a patriot but a self-loathing liberal.

The textualists have abandoned all rights to claiming they simply want to understand the text.

The libertarians have been exposed as worshipers in the cult of personality.

And in the end there is only one truth: Power corrupts. And its all well and good to be the last man standing in a shoot out, but don't tell me that any god, God or Messiah will save you just because you believe.

"You shall know them by their actions."

And the great thinkers at our institutions of higher education, the influencers of our youth and thus the repository of our future, have all stood around with there mouths agape and can only say that it's just too hard to draw lines in this context. It's just too too hard.

That's why they poisoned Socrates: because he made the youth of Athens think about the tough questions instead of providing glib sophisms that merely appeared to be profound arguments.
10.2.2006 3:14pm
Harry Eagar (mail):
I'm not a libertarian. On this issue, I am an indifferentist.

I don't care if Muslims get tortured or not.

I do care whether Americans get tortured. There's been a lot of that in our conflicts in Asia. It's been universal.

With the possible exception of Con Son, there have not been serious allegations that the US has used torture in previous conflicts in Asia. So, being nice has not worked in our favor.

As a purely practical matter, I suggest we be less nice in the future. Worth a try.
10.2.2006 8:00pm
Tom Holsinger (mail):

I agree DeGaulle became president of France in 1958 with the secret intent to pull out of Algeria, but his reason was that the Army's political mission in Algeria had become a threat to civilian political supremacy in France. That was his motivation, and it was my middle-term reason why the French defeat was inevitable.

DeGaulle got away with it, barely, because of the three short-term reasons I listed. The French people wanted the war to end more because of the personal and financial cost (personal = 300,000+ conscripts having to serve several years in Algeria, not the miniscule casualties) than their revulsion at widespread French torture, but the hatred the torture caused among most Muslim Algerians (excluding the Berbers, etc.) guaranteed that the war would go on indefinitely.

And I got the numbers wrong - peak French forces in Algeria numbered more like 425,000 - 450,000, not 500,000.

You don't understand the conscript issue. The proportion of each available conscript class called up was greater, and their periods of service longer, due to the war in Algeria. Instead of 150,000 of 250,000 - 300,000 available being called up annually, it was more like almost all of them, and they served three years instead of two.

French forces in the Metropole were not much lower during the Algerian War than they were after it ended. French Metropolitan ground strength increased after the Algerian War, and then gradually declined after DeGaulle left office in 1968.
10.2.2006 8:28pm
Harry Eagar (mail):
One good reason that the French in France wanted out of Algeria was that the Secret Army had brought the war home.

The war wasn't just in Algeria by 1961-2.

The French showed their usual stomach for personal attendance in a fight.
10.2.2006 10:07pm