January 04, 2005

DON'T THROW ME INTO THAT TORTURE PATCH: Andrew Sullivan hopes for a public debate on torture, "coercive interrogation," and related issues. But I caught a few minutes of Limbaugh when I was out running errands today and my sense is that the GOP is thrilled with the idea of Congressional hearings in which Democrats can be characterized as soft on terror. It's the old "soft on criminals" routine revisited. How did that work out again?

I've been against torture since Alan Dershowitz was pushing it back in the fall of 2001. (Okay, actually I was against torture even before Dershowitz was pushing it). But I think the effort to turn this into an anti-Bush political issue is a serious mistake, and the most likely outcome will be, in essence, the ratification of torture (with today's hype becoming tomorrow's reality) and a political defeat for the Democrats. And the highly politicized way in which the issue is raised is likely to ensure that there's no useful discussion of exactly how, in terms of incarceration, etc., we should treat potentially very dangerous people who do not fall readily within the laws of war.

For more on this subject, I highly recommend this post and this post by Eugene Volokh. This post from Eve Tushnet is worth reading, too (actually, it's several posts, just keep scrolling). And for a contrary (more or less pro-torture) view, read this post by Radley Balko and this post by Oliver Willis, clarified somewhat here.

UPDATE: A reader sends a link to this post by Steven Den Beste.

Another reader suggests Sanford Levinson's new book on the subject, which I haven't read. It is, however, discussed here. Based on Levinson's other work, it's likely to be excellent, and highly useful.

ANOTHER UPDATE: Steve Sturm, who has criticized my anti-torture position in the past, is now saying bring it on regarding the torture debate, further underscoring my fears. Meanwhile reader James Somers emails:

The political reality is that the GOP would love to have a debate on this, with the New York Times, the Democratic Party, and assorted left-wing interest groups expressing deep concern about the use of harsh interrogation methods on suspected terrorists. Take a poll. How many Americans support harsh interrogation methods, including non-lethal torture, to get information from terrorists? I bet it's a majority. Oh, and for political bonus points, the debate on this issue will force the Democrats to oppose a GOP-nominated Hispanic candidate for Attorney General. Somebody get Ruy Teixeira on the phone.

That's how it looks to me. Bonus to Karl Rove if any Democrats connect Gonzales to the "Spanish Inquisition." I don't really expect that, but then nobody ever does.

MORE: A lengthy and thoughtful post at The Belmont Club:

The danger is that the confirmation hearings of Attorney General nominee Alberto Gonzales will in the end leave the entire question of interrogating prisoners undefined or stuck in the 19th century idealisms of the Geneva Convention. There must be definite guidance on whether it is permissible to require more than the name and rank and serial number of a captured terrorist; and if so how far one may go. It should be understood that any restrictions imposed must be carried out to the letter, even if these restrictions almost certainly result in the deaths of American soldiers and innocents, because that is what rules of engagement do. That realization should make policy makers craft their restrictions very thoughtfully; something alas, which they rarely do. Just as the torturer who claims that he serves a higher cause stands on false ground so too must the man who advocates gentleness with terrorists accept that the pursuit of his moral good will often be bought by the suffering of children. On every battlefield men have tried to strike a balance between saving their lives and saving themselves; and the choice though hard is before us.

Read the whole thing. And here's a post by Porphyrogenitus, that's worth reading:

Frankly, I'm against torture. But I'm not against harsh interrogation techniques, intimidation and the like. What's the degree? In some ways it's a matter of degree. It's a difference in the level of physicality. On the practical side, I'm not sure it's effective in getting accurate information - getting people to say what they know rather than just tell you what you want to hear. I'm certainly not sure it's better than other methods of getting them to talk, psychological pressure and tricks and the like. Sure, you can make anyone talk - almost anyone - and say what you want them to say. But that's not the same as getting them to tell you the truth.

Read the whole thing.

STILL MORE: So here I was feeling pretty good about the comprehensiveness and sophistication of this post, when I get this email from reader Jeff Cole that, I think, illustrates how the issue is likely to play out politically:

Leave it to a bunch of lawyers to get all tangled up in the Theory of Torture without addressing the facts on the ground. The ONLY previously proscribed interrogation techniques that have been sanctioned at the highest levels of our government post 911 are coercive in nature and specifically not intended to do bodily or psychological harm. Sleep deprivation, loud music, kneeling, withholding blankets. THIS is torture? Nowhere in any of your recent posts or links on the issue do you even qualify the many allegations of torture as being simply about these techniques of creating discomfort. Nor do you nor any of the linked legalists cite any case of actual physical torture. Abu Ghraib was an aberration. If anything, the internal memos produced during the Abu Ghraib “exposes” and erroneously cited as existence of a “smoking gun” showed that Rumsfeld et al were intent on keeping the threshold at the discomfort level. And about that Abu Ghraib “torture”, I can only hope that my Jihadi captors subject me to live sex shows while cloaking my head in a woman’s panties. Then if they would only put in solitary for a few minutes I could work out my frustrations about their horribly coercive techniques in private. If you know what I mean. And I think you do. Margaret Hassan was shot in the head, de-limbed, beheaded and disemboweled (not necessarily in that order). I think our non-Geneva captives can sustain a little Barry Manilow.

It's certainly true that many Administration critics are adopting a broad-brush view of "torture" that I think is likely to backfire. In fact, my fear -- as noted in the original post -- is that a big brouhaha will be made about torture, with various mild issues swept in to demonstrate the pervasiveness of the problem. Then, when those who raise the issue lose, as I suspect they will, we'll see people thinking that real torture has been, in essence, ratified.

And here's more evidence that the Democrats are playing into Karl Rove's hands.

MORE STILL: Sullivan replies: "The point is not 'an anti-Bush political issue.' It's about whether the United States condones torture of prisoners (many of whom have turned out to be innocent) in its care. Since president Bush shifted U.S. policy to one which allows what any sane person would call torture, any criticism of the policy, by its very nature, has to be 'anti-Bush.'"

Well, no. The tone seems to me to be quite partisan. And critics -- and I'm explicitly including Andrew in this -- don't seem very interested in outlining what conduct is appropriate and what isn't, but rather in blurring the lines. It's one thing to say -- as is correct -- that there's real torture here, not just frat-house hazing. It's another not to make the distinction between the two clear. And I fear that this will backfire, as the email quoted just above illustrates.

If members of Congress wanted to raise this sort of thing in a more constructive, less partisan, fashion, they might try introducing legislation to provide guidance on the subject. They could then discuss what sort of behavior is appropriate in what circumstances, when people deserve to be treated as "unlawful combatants," what the military should do with those who don't qualify, and so on. Doing that outside the context of a political nomination that was, for purely partisan reasons, sure to be controversial anyway would be considerably more constructive, it seems to me. This would, however, require members of Congress to take positions and draw distinctions, which they may find unappealing to do.

What would I do? Ban anything that causes injury or outright pain. I'm not so sure about sleep deprivation and things like that. I'd permit playing Barry Manilow, too.

Here are some thoughts -- going farther than I would -- on what should be in such legislation.

Nor need this be a partisan debate -- after all, the strongest proponents of torture linked above, Dershowitz, Balko, and Willis, are all anti-Bush. Which is why turning all discussion of this subject into disquisitions on the inherent degeneracy of the Bush Administration misses the mark so thoroughly.

AND EVEN MORE: Law Professor Kenneth Anderson has some useful observations:

One thing that is missing in the whole torture-interrogation debate is the question of who you are interrogating. Can you use a different level of interrogation on Zarqawi, for example - knowing it is Zarqawi - than you could on someone who might indeed turn out to be the peasant shepherd? In my view, the answer must plainly be yes. But this would require a regime that assigned different levels of possible roughness of interrogation - while remaining above an agreed-upon standard of torture - depending upon what is known about levels of involvement in terrorism. That, in turn, would really require a separate legal and intelligence regime for dealing with terrorists. Many countries have exactly such laws, and they are found extensively in Europe. I have reluctantly come to believe that the United States should enact such a regime for dealing with non-US citizens believed involved with terrorism. For the same reasons that many European states have enacted such special regimes, I believe that the United States needs such a special regime as well - although, among other limitations, I would confine it to non-US citizens.

I'm not sure whether I agree with that, though I definitely agree that if such a regime is created it should apply only to non-citizens. That removes the temptation to use it against domestic political opponents. Anderson has much more, and you should read the whole thing.

Meanwhile, a lot of readers think I'm a namby-pamby pointyhead lawprofessor type. Well, I'm at least one out of three. Here's a typical example:

I must confess, I don’t for the life of me understand your position on torture. While you are correct in saying that one must be careful not to torture someone so badly that they tell you what you want to hear, we are in a brave new world that requires re-thinking the old paradigms. The people we are talking about have no qualms about butchering innocent civilians, including women and children, in order to achieve their aims. If we have to do something that would heretofore have been considered barbaric in order to extract information that will save innocent lives, so be it. Why do you think that we should tie our hands in this regard when they operate in another universe entirely?

Should we just throw up our hands and accept the deaths of thousands, perhaps millions of innocent people because we don’t want to “descend to their level,” or out of some quaint adherence to outdated (when it applies to this issue) norms of civilized behavior? I forget which justice said that the constitution is not a suicide pact, but that sentiment is eminently applicable here.

We need to figure out that we are in a different reality, and steel ourselves to do the work that needs to be done to save our civilization from the very real threat of Islamic extremism.

I think the threat is real, but I don't think that torture is the way to deal with it. On the other hand, I don't think that turning the question into a partisan political weapon (or an opportunity for posturing) helps either -- and, what's more, I think that the people who are doing that are likely to produce an environment in which torture is more, not less, likely.

FINAL UPDATE: Greg Djerejian has thoughts on this subject which are very much worth reading. He echoes my point that the Gonzalez confirmation hearings are unlikely to be a good place to raise these points. And I have a bit more here in response to a later post from Sullivan.