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.