The danger here is less that captured terrorists will sue for money damages concerning alleged mistreatment as that they will sue for class action injunctive relief, i.e., judicial oversight of the facilities in which they are held. The state of California’s prison system is rightly subject to such a class action federal civil rights lawsuit right now concerning its disgracefully ineffective medical care for sick and injured prisoners.
He's wrong, however, about 42 U.S.C. Section 1983, which does not apply to the federal government, among other legal details, though I think he's probably right about the dangers inherent in judicial micromanagement here, which is quite possible.
Max Boot, meanwhile, thinks that we need to work on our definitions:
I've discovered that the use of torture by the U.S. government is far more pervasive than previously believed. There are major facilities all over the country where thousands of men and women who have not committed any crime are held for prolonged periods while subjected to physical and psychological coercion that violates every tenet of the Geneva Convention.
They are routinely made to stand for long periods in uncomfortable positions. They are made to walk for hours while wearing heavy loads on their backs. They are bullied by martinets who get in their faces and yell insults at them. They are hit and often knocked down with clubs known as pugil sticks. They are denied sleep for more than a day at a time. They are forced to inhale tear gas. They are prevented from seeing friends or family. Some are traumatized by this treatment. Others are injured. A few even die. Should Amnesty International or the International Committee of the Red Cross want to investigate these human-rights abuses, they could visit Parris Island, S.C., Camp Pendleton, Calif., Ft. Benning, Ga., Ft. Jackson, S.C., and other bases where the Army and Marines train recruits.
Boot notes that quite a few people are playing fast-and-loose with definitions on torture, and I think that's right. There's true torture -- involving, as Boot says, "fingernails pulled, electric shocks applied, sharp objects put where they don't belong" -- and then there's other stuff. Complaints about U.S. forces basically involve "other stuff."
Because he's made much of those things. If he thinks they fall within the legal definition, then he's not very serious. If he doesn't think they fall within the legal definition, then -- given his repeated treatment of those subjects as "torture" -- he's not very serious.
Real torture, as I've written since way back in 2001, is wrong, and counterproductive. But the point-scoring and line-blurring hysteria with which posturing critics have addressed the topic has made things worse and -- as I've suggested before -- may account for recent polls in which majorities around the world say that torture isn't always so bad.
This is a war that has been overlawyered from the beginning -- see this piece by Tom Ricks from 2001 about how the Pentagon's requirement that lawyers approve airstrikes let leading Taliban and Al Qaeda figures escape: "The Central Command's top lawyer -- in military parlance, the judge advocate general, or JAG -- repeatedly refused to permit strikes even when the targets were unambiguously military in nature, an Air Force officer said."
I love lawyers. I am a lawyer. But there are plenty of places where the role of lawyers should be limited, and war is certainly one of them. I think the McCain Amendment is an appropriate use of Congress's authority -- and, indeed, a case of meeting, if way too late, Congress's responsibilities -- but if it's to do more good than harm it needs to be quite specific about what is permitted and what is not, and it needs to avoid creating a lawyers' full-employment act in the process. I'm not sure that we're there yet. The military is actually getting more specific in a new set of guidelines, but they're classified so I can't say much about them. But this bit is on target:
One Army officer expressed exasperation that senior military and civilian officials were failing to articulate a coherent approach toward interrogation, saying much of the confusion centered on disparate definitions of abuse.
"Everybody's talking past each other on this," the officer said. " 'Cruel, inhumane and degrading treatment' is at the crux of the problem, but we've never defined that."
Meanwhile, Michael Kinsley (a lawyer!) takes on the ticking time bomb argument and observes: "There is yet another law-school bromide: 'Hard cases make bad law.' It means that divining a general policy from statistical oddballs is a mistake. Better to have a policy that works generally and just live with a troublesome result in the oddball case." But that, of course, cuts both ways.
The question, then, for a liberal democracy is not whether torture in certain cases is effective, but whether its value is worth the negative publicity and demoralizing effect on a consensual society that believes its cause and methods must enjoy a moral high ground far above the enemy's.
Nor can opponents of torture say that it is entirely foreign to the U.S. military experience, at least from what we know of it even in so-called good wars like World War II. There were American soldiers — sometimes in furor over the loss of comrades, sometimes to obtain critical information — who executed or tortured captured Japanese and German prisoners. Those who did so operated on a de facto "don't ask, don't tell" understanding, occasionally found it effective and were rarely punished by commanding officers. Even so, G.I.s never descended to the levels of depravity common in the Wehrmacht or the Soviet and Imperial Japanese armies.
There is also not much to the argument that our employment of torture will only embolden the enemy to barbarously treat Americans held captive. What a silly idea! Captured Americans have already been filmed being beheaded — or shot or burned — and their mutilated corpses hung up for public ridicule. . . .
Our restraint will not ensure any better treatment for our own captured soldiers. Nor will our allies or the United Nations appreciate American forbearance. The terrorists themselves will probably treat our magnanimity with disdain, as if we were weak rather than good.
But all that is precisely the risk we must take in supporting the McCain amendment — because it is a public reaffirmation of our country's ideals. The United States can win this global war without employing torture. That we will not resort to what comes so naturally to Islamic terrorists also defines the nobility of our cause, reminding us that we need not and will not become anything like our enemies.