Saturday, October 27, 2007


I've had a few conversations with a rather liberal co-worker on the topic of torture. I seem to constantly make the assumption that those involved in interrogations are under control of their superiors and there is a level of control within the ranks of the intelligence community. He on the other hand assumes since it's not all in the public view it must involve constant violations of law. Personally I think he's brain damaged, but it's fun to argue with him.

Last Sunday this article by Stuart Herrington goes into details of how he views interrogation should be performed. He clearly denies that there could possibly be a situation where a source's information could be needed in a short time. Most of his techniques require very long periods of time. My co-worker adversary loves to try this type of logic.
It also tells us that our young soldiers take away lessons from today's pop culture. Self-styled "experts" on interrogation frequently cite the "ticking bomb scenario" (featured on shows like "24") to justify the Jack Bauer-like tormenting of a prisoner. According to this construct, it is necessary and acceptable to torture in the name of saving an American city from "the next 9-11." This has a magnetic appeal to legions of Americans, among them future soldiers.
I'll concede that this scenario is probably quite improbable. I won't concede that it can't happen. I remain of the opinion that one should always be prepared. (Si vis pacem, para bellum) It's no doubt nice to be able to use the soft approach, but if someone is stabbing you, you don't discuss why they shouldn't, you stop them.

In any case, Herrington's article is informative in it shows what really happens with the vast majority of interrogations. No doubt the methods that he discusses are more effective than the rougher interrogations methods. Though I still disagree with the contention that torture doesn't work. I'd say the interrogator needs only get sufficient evidence to work with and not the whole truth. Again, this argument would seem to assume that those performing or overseeing the rougher methods are complete morons. I'd say that is categorically improbable.

Andrew McCarthy has an article related to the discussion of water boarding that came up during Michael Mukasey's AG hearings. There is some interesting perspective relating to the constitutionality argument that I found funny since I'd used a similar argument against my adversarial co-worker.
udge Mukasey’s testimony should actually be heartening to human- rights advocates. He has said he believes torture is forbidden under the Constitution — specifically under the Fifth, Eighth, and Fourteenth Amendments. There is no question that torture and lesser forms of brutality are illegal; but the conceit that this prohibition is of constitutional pedigree is debatable.

The Eighth Amendment to the Constitution prohibits cruel and unusual punishments. One might think that means torture, in all instances, is barred. Yet, as Harvard’s Professor Alan Dershowitz pointed out in his excellent book, Why Terrorism Works, our jurisprudence limits the Eighth Amendment’s application to punishments resulting from convictions in the civilian criminal-justice system. As the Supreme Court explained in Ingraham v. Wright (1977), “An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes. We adhere to this long-standing limitation.”

Similarly, the due-process guarantees of the Fifth and Fourteenth Amendments have been construed, based on the Supreme Court’s 1952 ruling in Rochin v. California, to bar evidence-gathering methods that “shock the conscience.” This fuzzy standard, however, has also been limited to criminal prosecutions. Justice Frankfurter, moreover, recognized that “hypothetical situations can be conjured up, shading imperceptibly from the circumstances of this case and by gradations producing practical differences despite seemingly logical extensions.” To be less dense, this suggests that waterboarding a top al Qaeda terrorist who has knowledge of an imminent weapons-of-mass-destruction attack against an American city might be different from coercing a suspect to submit to warrantless stomach-pumping just so we can use the couple of pills he emits to try him for narcotics violations, as happened in Rochin.

In any event, the Constitution has generally been held not to apply outside the United States. To be sure, the Supreme Court will be considering that proposition this term in a case involving enemy combatants held at Guantanamo Bay. There is clearly a chance five justices will decide otherwise. (The Court’s four solidly liberal justices would surely favor extraterritorial application; and in the 1994 Verdugo-Urquidez case, Justice Kennedy suggested that the question would turn on the right at issue and the circumstances.) Still, even assuming for argument’s sake that the cited amendments bar torture, it is anything but clear right now that the Constitution bars torture by American operatives overseas.

It would be preferable morally to always treat others as you would be treated. But that axe swings in an interesting manner when you're addressing someone who is actively trying to kill you or worse enslave you. Sooner of later you always have to face the possibility that things will reach the worst-case scenario. When the enemy drops the gloves, you have been released from the requirement that you not do the same. You can choose to take the high ground and keep your highest standards. But at some point you may have to lower your standards to survive. I think this is the thing that people in the US have forgotten. 9/11 stirred a lot of people. It apparently didn't stir enough and it apparently didn't stir most out of their general complacency.

So, has there been any additional clarity gained in the legality of torture even at coming to some definition?
Clarification was imperative for this confused landscape. Congress endeavored to provide it in 2006 when it passed the Military Commissions Act. The MCA made clear that issues of detention and interrogation would be controlled not by Common Article 3 but by American law: specifically, the McCain Amendment.

Furthermore, recognizing that our intelligence officers needed guidelines more precise than the vaporous injunction to avoid “cruel, inhuman and degrading” treatment, Congress amended the War Crimes Act (Section 2441 of Title 18, U.S. Code) to specify which “grave breaches” of international law could give rise to criminal prosecution. The list is long but once again (and despite the specter of waterboarding that hung over the debate) Congress elected to include “torture” and “cruel or inhumane treatment,” but not simulated drowning — or, in fact, degrading treatment, even though it, of course, is illegal under the McCain amendment.

So is waterboarding illegal? It is ironic, and quite typical Washington fare, that the same elected officials now demanding a definitive answer from Judge Mukasey have failed to give us one themselves — though some of them, unlike Mukasey, are aware of classified details. Alas and alack, it is all too familiar that chatterers who should know better, like Prof. Turley, are so quick to caricature and demagogue a complex issue in order to call attention to themselves.
That's a no. Also, those who screech the loudest on the topic continue to waffle in making anything clear to anyone. That would be a great drawback of legalese. It just doesn't say anything that is self-evident without a lawyer, and even he doesn't know.

Read the articles. You should know at least this much information when talking about the topic.

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