Baseball Crank
Covering the Front and Back Pages of the Newspaper
February 14, 2005
WAR: The Torture Problem

Sebastian Holsclaw (link via Yglesias) says those of us on the Right ought to do more to denounce the use of torture by the United States in general, and the practice of "rendering" terror-related suspects to countries that have no restraint about torture in particular. (See also more links he supplies to a must-read New Yorker article here that actually quotes non-anonymous sources and here to a collection of blog links). Holsclaw also argues that now - with things going fairly well in Iraq and the presidential election behind us - is the most opportune moment to get some momentum on this subject. He's right.

Like, I think, a lot of people on the Right, I've been hesitant to wade into this issue, for a bunch of reasons. Partly it's the fact that this is a hard issue to get a factual handle on, if you want to get a realistic view of what's actually happening, why, to and by whom, and what the legal framework is; I keep putting off writing about this stuff thinking that there's another 50-page memo or 70-page court decision I ought to have read (although I did read one of the big 50+ page Gonzales memos, and honestly it just looked like typical lawyer advice to me: here's what the statutes say, here's how they've been interpreted, here's where we think the legal lines are). And partly, yes, it's the incessant bait-and-switching by the Left (including the media) - the efforts to connect the Abu Ghraib sexual and other abuses to so-called "torture memos" despite a complete absence of evidence that the prison guards involved had any knowledge of internal White House legal memoranda; the effort to stretch the word "torture" to cover nearly anything that sounded remotely unpleasant and denounce anyone who tried to make reasoned distrinctions as an apologist for terror; the inability to distinguish between moral standards and legal standards; the constant and entirely beside-the-point invocation of the Geneva Conventions; and so forth. To say nothing of the need to separate fact from, well, Seymour Hersh. But again, Holsclaw is right that at some point, we have to put our heads down and focus on what's actually going on and what should be done about it, and not use the Left as an excuse to duck the issue.

(I'm not touching here on the issue of due process and detainees, which is a whole 'nother ball of wax for another day.)

On general principles, I suspect that my own views on torture are probably not far from those of a lot of people on this issue:

1. I'd agree that there are a number of different cases against torture - a moral case against extreme mistreatment of fellow human beings, a practical case against torture as an effective means of interrogation, a legal case, a case that torture encourages our enemies to do the same to our people, and a case that any hint of torture harms our public image abroad. But I'm not so sure I'd agree that each case is coextensive - while I understand the argument that torture winds up yielding a lot of useless information, I think it's probably likely that at least in some situations, things we shouldn't do for other reasons might turn out to be effective on a practical level. And it's certainly true that, in this war at least, our enemies have no restraints on their behavior no matter how we ourselves act. And, of course, we'll get some types of bad p.r. around the world from the Seymour Hershes and Robert Fisks of the world pretty much regardless of what the actual facts are. Arguing otherwise on any of these counts really tends to gloss over some of the real trade-offs and moral dilemmas we face between the need for effective intelligence-gathering and things we can't and shouldn't try to morally justify.

2. The Geneva Conventions have nothing to do with this issue, and are perhaps the single biggest red herring in the whole argument. The Geneva Conventions are a treaty. They bind the signatory nations to grant certain types of treatment to the uniformed combatants of other signatory nations. You can find good summaries of this issue by the National Review here (part of the article is subscription-only) and here, and by Jay Tea at Wizbang here and here. Among other things, NR notes that the Geneva Conventions require that captured POWs receive "dormitories, kitchenettes, sports equipment, canteens, and a monthly pay allowance in Swiss francs"; in fact, because the Geneva Conventions are focused entirely on wartime nations' interest in taking uniformed combatants off the battlefield rather than on interrogation, "[e]ven tempting detainees who are POWs with a candy bar to answer questions beyond name, rank and serial number violates the Third Geneva Convention."

Yes, say some on the Left, but we should take the noble step of complying even if our enemies don't, so we don't become like them . . . see, this is one of the biggest divides between Right and Left: the Left tends to see treaties as gestures of American good faith and submission to multinational rules; as ends in and of themselves. But if you take treaties seriously, you have to remember what they are: agreed-upon bilateral frameworks of incentives. A treaty just formalizes a carrot-and-stick approach: if you do A we will do B; if you don't do X we won't do Y. This just keeps coming up: the Left wanted us to sign the Kyoto treaty even though we were only one of, if memory serves, either one or two of the world's six largest nations that would have been bound by it; the Left wanted Israel to have treaties with Arafat without any mechanism to punish the Palestinians for violating the treaties; the Left wanted more negotiations and more treaties with North Korea instead of any consequences for violating the last treaty; the Left successfully demanded that the U.S. do nothing when the North Vietnamese violated the treaty that ended the Vietnam War with an independent South Vietnam; the Left wanted us not to resume hostilities with Saddam Hussein when he violated the terms of the 1991 cease-fire. But if we just give away the benefits of treaties without requiring anything in return, we lose the ability to use treaties to get anything we want. (This is the same basic rule the Right applies in economic debates to reforming welfare for the poor or cutting taxes for the rich: everybody responds to incentives).

3. Of course, getting back to Sebastian's point, just because the Geneva Conventions don't and shouldn't apply, and just because practices like "extraordinary rendition" may be legal, doesn't answer the moral and policy question of whether they are the right thing to do. Sometimes, we can't let the law do all our thinking for us. We have to make our own judgments.

4. It's also true that something can be wrong without being "torture." The simplest definition of tourture is the infliction of lasting or permanent physical harm. Most of us would probably extend that definition further, to the infliction of intense physical pain, whether or not it leaves a mark.

I think a lot of what appalled people about Abu Ghraib was the psycho-sexual stuff. A lot of that really doesn't seem like "torture," things like stacking up a bunch of guys naked; humiliation, yes, torture, no. But the Right tends to get boxed in sometimes to by resisting the argument that if it's bad, it must be torture. Sexual humiliation is bad, regardless of what label you put on it.

5. On the specific subject of what are and are not acceptable practices, I don't have any problem with some of the coercive interrogation techniques that have been widely mooted about, things like sleep deprivation and "stress positions," and we can have a fair debate about some of the other stuff, where the line should be drawn. I'm probably not alone in thinking you draw the line a little further out if you are dealing with known insurgents rather than witnesses with unknown affilitions, a little further out if you're dealing with foreign fighters rather than Iraqis, a little further out yet with known hardened Al Qaeda terrorists. That said, do I know myself where the right line is? No. And I think it would be productive to give a fresh look at this issue that focuses prospectively on what we want the rules of the road to be, rather than wasting time debating existing structures like the Geneva Conventions or wallowing in efforts to play "gotcha" over who has done what up to now. That's particularly where I think Senate and House Republicans could and should lead the way in putting together at least some general guidelines for the future, even despite the obvious and sensible objection to using statutes to micromanage things like interrogation of terrorists. This link-filled Instapundit post is a great place to start in terms of examining the issue.

6. Returning to the issue of rendition, the New Yorker article undoubtedly oversimplifies the issue (if these are allies, can we refuse to hand over anyone they have a warrant out for?), and there may be legitimate needs for the program in some sense, but there's no escaping the bottom line that, whatever our rules are or should be, if there are things we wouldn't want to do to people in custody ourselves, we shouldn't hand them over to somebody else to do it, period.

UPDATE: John Cole has some detailed background on "extraordinary rendition." Like I said, I'm less concerned about demonizing the overall practice than about its specific use in routing people to foreign governments for the purpose of having them tortured.

Posted by Baseball Crank at 9:17 AM | War 2005 | Comments (11) | TrackBack (0)

Like, I think, a lot of people on the Right, I've been hesitant to wade into this issue, for a bunch of reasons.

I can think of two right off the bat:
1. An overly partisan approach to issues involving the Bush Administration precludes you from honestly addressing it, because invariably you will end up critical of the administration on a key issue (and worse, you might "come out" on the wrong/left side). This is due mostly to the bitter state of politics these days. I think in a cooler climate folks on all sides of most big issues would be more objective and honest in their judgements, and less afraid of where it landed them.

2. Only slightly different than reason one... The need to portray a "support the troops" position (admirable) and the default right-wing extension of that to "Support the President" (which is often less than synonomous) give cover to excuse behavior and decisions that deserve to be questioned, if not opposed. Patriotism requires honest assessment, not blind allegiance.

Before this starts to sound to condescending, I will confess a proporional reverse bias against the Administration. but in hindsight, I would say the facts have borne out a more skeptical approach more often than not.

Posted by: Mr Furious at February 14, 2005 2:50 PM

I should add that the reason I come here and read and comment has become a lot more for the politics than the baseball. I find you pretty insightful and open-minded and much more accessible than others on the right (like most of your links), but I would say that over the course of the Election and the last year, your tone has shifted more towards the concerns I addressed above.

In other words, here's hoping that maybe the lack of an election year and the promise of a Mets season will allow you to put down the kool-aid for some fresh air and a beer once in a while... :-)

Posted by: Mr Furious at February 14, 2005 2:55 PM

I don't deny that the partisan edge was sharper around here (and most everywhere) during the stretch run to the election.

Frankly, I'm surprised I didn't get more comments on a subject like torture.

Posted by: The Crank at February 14, 2005 3:14 PM

Finally, everything you put in boldface is a statement much closer to me than the opinions or actions of Alberto Gonzales, Rumsfeld or Bush (and for that matter, most of those voicing an opinion on the Right).

You've taken the right position on this, and seem to have given it due consideration and an honest assessment. I think you go too easy on the Administration, and gloss over the connections between their attitude and the memos and what happened in the field. But I applaud your self-reflection. I hope you can handle being in the company of a raving moonbat leftie like myself...

Posted by: Mr Furious at February 14, 2005 3:20 PM

Yes, extraditing prisoners so that others can do to them what we would not do because it is illegal or immoral is clearly wrong; it is vicariously immoral and illegal and ought to stop. Second, I agree that Congress should take the lead and set forth rules of conduct for our armed forces, and even for security agencies. Third, someone at a higher level needs to look at these practices, even the detentions, and examine their cost effectiveness. Ultimately the victim is going to say what he thinks you want to hear and his information will be useless. Ultimately our preaching about freedom is seen, rightly, as so much bullshit when we detain people and torture them. So then, what is the value of torture? Politically we are getting into the same situation that we got into with race relations. Starting about 20 years ago we stopped talking honestly about race because people feared being identified with one extreme or the other. It is getting that way now with politics. Saying you are against torture does not put you in the same camp as Zarqawi. Saying that foreign terrorists do not have to be afforded all the rights of US citizens accused in a county court does not mean that you condone torture.

Posted by: jim linnane at February 14, 2005 3:53 PM

I suggest you read Phillip Carter's "The Road to Abu Ghraib". The legalistic sophistry ("The Geneva Conventions have nothing to do with this issue") is appalling. Was Iraq a signatory to Geneva? Does it even matter? No, I don't think so. As the self-proclaimed flag-carrier for civilization -- that's what this was supposed to be about, at least in part, remember? -- we ought to treat prisoners of war in a reasonable manner.

Similarly, the attitude that suggests that connecting-the-dots can't happen because there wasn't a paper trail between the Gonzalez memo and the pile o' bodies at Abu Ghraib is nothing short of breathtaking. Please recall that the various culprits in all cases have been forbidden the defense of obeying orders. (If anything, this is even Carter's biggest failing: he's far too weak on the Bush administration because of the heat of the moment.) The neoconservative right has been utterly appalling on this issue, and I see nothing other than apologias, blank denial, or outright sophistry in support thereof, ALL of which is contrary to our Constitution and common decency. Nazis used such justifications; that should be sufficient.

Posted by: Rob McMillin at February 14, 2005 4:10 PM

So, you're a Nazi if you think we shouldn't apply a treaty to someone who didn't sign it?

Rob, your comment is a textbook example of the attitude on the Left that has, frankly, made it harder to get people to take this issue seriously. The Geneva Conventions weren't handed down on stone tablets at Mount Sinai; they're a treaty negotiated between specific signatory nations.

Like I said, we need to break out of the either/or straitjacket of applying or not applying the Geneva Conventions; the fact that the Geneva Conventions don't apply here isn't the end of the discussion, it should be the beginning, a point on which reasonable people on both sides of the aisle should agree. We as a society are perfectly capable of making our own rules that are tailored to the situation, and we should.

"[W]e ought to treat prisoners of war in a reasonable manner." I agree. But that doesn't necessarily mean "Geneva Conventions," especially where we are dealing with war criminals who don't in any way comply with the traditional rules for becoming a POW, and frankly not all of the prisoners here are similarly situated, which is one reason to have rules that take account of that.

Posted by: The Crank at February 14, 2005 4:30 PM

You're being somewhat misled here on the applicability and requirements of Geneva, but note that they're not the only or most relevant legal restriction on rendition. It's the Convention Against Torture, specifically Article 3, and two statutes passed by Congress: the 1998 Foreign Affairs Reform and Reconstruction Act, and the Anti-Torture Statute.

Geneva protection applies to civilians as well as to POWs, and some of the people have been rendered have been innocent civilians who were citizens of Canada and Germany.

Posted by: Katherine at February 14, 2005 6:53 PM

Crank -- the signing of a treaty is immaterial! The treatment of prisoners at Abu Ghraib is simply appalling, and should not have happened regardless of treaty obligations. Did the South have any signed treaties with the Union regarding treatment of prisoners? And did it matter with regard to the conditions at Andersonville?

Your responses are exactly the kind of legalistic smokescreens and nonsensical, moral vacancy that fostered this problem in the first place, and that Holsclaw decried in his essay. It's a long, dark step from using the excuse that Iraq and al Queda are not signatories to Geneva to photographing piles of naked men. The neoconservative right has stared into the abyss, and willingly jumped in.

None of this should have ever happened. It's obvious that the Bush Administration wanted as wide a latitude as possible when dealing with prisoners; hence the Gonzalez (sp?) brief. The connection is obvious and clear, and pretending it isn't is simple denial.

Posted by: Rob McMillin at February 15, 2005 11:42 AM

Rob - On your first point, I would answer that if you have a treaty, you obey it with regard to other signatories. But if you don't have an applicable treaty, you fall back on your own moral standards (which the Confederacy failed to do at Andersonville); you don't just say, "no treaty, no standards at all." You seem to assume that I'm saying precisely the opposite. The entire point of this post is that the absence of treaty obligations isn't the end of the inquiry - we still shouldn't be torturing people. What your side needs to do is decide whether partisan point-scoring is more important than preventing torture, and thus whether you really want to go on the full-bore attack against everyone who tries to meet you halfway (or more) on some of these issues.

As to #2, if the "connection is obvious and clear," perhaps you could supply evidence that it is so. From the accounts I've seen so far - and no, I don't pretend that I've read everything on the subject - there really isn't any competent evidence that anybody outside the prison knew or approved of the practices that led to the scandal, or that they really had anything to do with intelligence-gathering rather than the abuse of power by ill-supervised prison guards, some of them with histories of misbehaving as prison guards back in the States.

Posted by: The Crank at February 15, 2005 12:02 PM

Rob, I suspect you are misreading our host's comment. He is saying that the Geneva Conventions probably don't apply AND that doesn't matter because we still should enforce our moral understandings.

Posted by: Sebastian holsclaw at February 15, 2005 1:25 PM
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