Monday, 19 October 2009

'...sliced with a scalpel'

I'm provoked to post on the British Government's potential complicity in torture for quite selfish reasons. I don't subscribe to the human rights agenda and I don't have very strong feelings about detention at Guantanamo: both give me pause for thought but I wouldn't feel provoked into writing about them. I do think torture should be illegal always and anywhere (in any event, it hasn't been necessary in the securing of a number of significant convictions in the UK). But what really concerns me about these stories is that it concerns my government, the British government, on the one hand, and British residents and British citizens, on the other. If this isn't enough to alarm you, I'm not sure what would.

I also have to admit the element of hypocrisy enrages me: should our human rights-touting Labour government be involved in torture in any way, it would be beyond satire.

The picture is getting clearer. Due to a High Court ruling last week it looks as if information will be made public - subject to one more appeal that's apparently unlikely to succeed - that confirms Binyam Mohammed, a Guantanamo detainee who'd also been subject to extraordinary rendition, was tortured in ways far worse than being waterboarded. I blanched from including the full details in the title to this post: his genitals were sliced with a scalpel. This piece of extremely 'enhanced interrogation' was conducted whilst he was in American custody either directly with the CIA or indirectly via rendition to co-operative (and unscrupulous) foreign intelligence agencies.

The British government's position is that it doesn't engage in or condone torture. However, evidence is building that MI6 and MI5 have been making indirect but distinct use of torture by others: allegedly interviewing suspects following or during their torture by foreign agencies (see here); allegedly supplying questions to foreign agencies to be asked to prisoners who they must have known were going to be tortured (see here and here). It seems likely that Binyam Mohammed's case might fall into both these categories. There are other instances, in addition to the ones enumerated here: David Davis's Commons statement provides a summary. There's also an excellent recap of the Binyam case to date here (h/t Andrew Sullivan).

The Foreign Office has been trying to suppress the High Court's revelations throughout the course of this year. Understandably so, with regard of the self-preservation of its ministers, past and present. We could well be looking at a despicable crime walking arm-in-arm with a dark hypocrisy, all cloaked in a determined cover-up. This should be enough to bring down a government, and certainly more than enough to warrant the resignation of David Miliband.

We need a judicial review. But somehow I struggle to imagine justice being done: slipperiness has trumped accountability at almost every juncture in recent years.

51 comments:

Gadjo Dilo said...

Utterly sickening. And counter-productive, I'd have thought: you don't necessarily get more truth the more you torture, surely medieval witch trials amongst other things proved that.

worm said...

fark me, that made my eyes water :(

they could have just made them watch Kingdom or something

Brit said...

Yes, I'm pretty sure that ballbag-slicing counts as "torture" under any definition, so perhaps we can avoid that endless debate this time.

Hey Skipper said...

Yes, I'm pretty sure that ballbag-slicing counts as "torture" ...

Of course it does.

That still doesn't remove the requirement to say what is, and is not, torture.

Because until you do that, then I do think torture should be illegal always and anywhere is an empty statement: its subject is a nullity.

And that is long before you get to "always" and "anywhere".

Gadjo:

The point of military interrogation is not the "truth", it is information.

If you have a couple of detainees each of whom have information, some of which you know, some you don't, and they don't which is which, or what the other is saying, then coercive techniques work.

Gaw said...

Hang on a minute, haven't we been this way before? Please forgive me, Skipper, if I don't enter those thickets again! I refer you to one or two previous posts and comments, and probably a good bit of the rest of the blogiverse around these parts too.

Hey Skipper said...

Please forgive me, Skipper, if I don't enter those thickets again!.

You never entered them the first time.

The subject of your primary assertion remains a complete nullity, as does context.

In order to make your point, you should be able to reason from basic principles: what is war, why do we engage in war, what is the point of war, what is the most moral way to engage in war, what are the principles of war.

As I said above, this clearly constitutes torture, and there is never a need for torture in order to obtain information.

But I can say that because I have defined the distinction between torture and coercion.

Gaw said...

Looks like we can't even agree on whether we've already had this argument...

As I don't want to end up cutting and pasting large parts of previous posts and entire comments associated with them I'm going to pass on this one.

Hey Skipper said...

I trust you don't mean this.

Gaw said...

Yes, and this as well as sets of comments on at least one post on each of Think of England and Thought Experiments. Done to death, so to speak.

Hey Skipper said...

Except your position never amounted to more than enhanced condemnation.

I gave you an analytical argument to rebut; you just sidestepped the whole thing.

Gaw said...

Skipper: The tack you're taking now brings to mind a series of debates conducted by two eminent historians that sadly didn't really get anywhere. Here's one of them.

Hey Skipper said...

Gosh, thanks for that ad hominem.

You, and Appleyard, and Brit (which means you are in good company), have made a moral judgment without taking a moral position.

My contention is that if you took a moral position, you would not arrive at your judgment.

Gaw said...

If you really believe my arguments have consisted of 'enhanced condemnation' and 'sidestepping' then you either haven't been understanding them or have decided to play the man rather than the ball. Hence my (failed) attempt at a humorous intervention.

I find it rather bizarre that you think I haven't taken a moral position. Just because I don't approach such a position using the same essentialist approach as you doesn't mean it hasn't been happening. I think your approach fails as it's trying to find a foundation that isn't there and it over-problematises something that has been resolved through, if you like, 'the wisdom of the ages'.

As an aside, I believe this means I'm taking up a classically conservative position on this issue. Your approach is that of, what Burke described as, the 'refining speculator'. You look to grind a moral practice down so that you can arrive at its essence, but in doing so you destroy it.

Brit said...

Or to put it another way, Skipper: no reasoning from first principles please, we're British.

Hey Skipper said...

I find it rather bizarre that you think I haven't taken a moral position.

By using the phrase "illegal always and anywhere" is a judgment without having taken a stand. Never mind not shouldering the burden of what constitutes torture, you have shrugged aside the whole problem of the consequences of not coercing information.

That is why I say your position is a nullity, because it is not with respect to anything.

You look to grind a moral practice down so that you can arrive at its essence, but in doing so you destroy it.

You need to re-look at what I have written, then. Within the context of war, torture (or enhanced interrogation) is an act of war. Elevating it to some exclusive, absolute, moral plane, above blowing things up, or mowing people down, puts you (and Appleyard, Dahlia Lithwick, et al) in the position of proving a negative.

You can't do it.

Further, you compound the problem by attributing some unique moral blindness to a caricature of Cheney without apparently considering how the nature of this war is different from any other I can think of off hand: a conspiratorial, cellular, non-state entity as an opponent with existential goals.

The means of obtaining information from such an opponent, as opposed to a centralized bureaucratic state, are entirely different, as are the consequences of not obtaining it.

As it happens, I think there is a very clear line between coercion and torture, that intense coercion (e.g., waterboarding) is rarely justified, and torture practically never.

But there are no absolutes, and no moral stands without considering the alternatives. That means addressing the nature and principles of war. All acts of war are immoral. Torture or coercion of captives is immoral. But that doesn't mean doing so is always more immoral than not.

... no reasoning from first principles please, we're British.

Newton, Hume, Burke, Turing are ...?

Gaw said...

Murder should be illegal always and everywhere. Rape should be illegal always and everywhere. I won't ask here whether I'm making a 'judgement without taking a stand', as I've no idea what that means. But I will ask whether these judgements are a 'nullity'?

Murder can be justified and rape can be difficult to define - in both cases just like torture. But we still make them illegal as do most countries and cultures, in the same way as us. Is my support for this a 'nullity'?

There are other rules of war that we might regard as inconvenient but which I would argue we should adhere to: prohibitions on rape and pillage of civilians, murder of prisoners of war, and mutilation of the dead. If I said I was against these would you describe my position as a 'nullity'?

When you state that this war is 'different from any other I can think of' you reveal why we're in this pickle. A lot of this is new to Americans who don't appear to have much awareness of what happens outside of their country or before in history. This accounts for the over-reaction (well, that and the fact that Cheney is a dangerous man to have in a postition of power).

There have been a variety of terrorist groups who have waged a campaign similar to this one:

- In 19th century Russia, the People's Will who assassinated the Czar.

- In Sri Lanka, The Tamil Tigers, who invented suicide bombing.

- In the UK, the IRA who repeatedly murdered groups of innocent civilians (cf. Spain's ETA, Italy's Red Brigades, Germany's Baader Meinhof gang.

These are a very small sample; there are many more. Each of these groups has been 'a conspiratorial, cellular, non-state entity as an opponent with existential goals'. (Existential: again not sure what you mean. I assume 'unrealistic or unachievable').

This sort of grouping could be described as having established characteristics by the beginning of the 20th century: read Conrad's 'The Secret Agent' and Dosoevsky's 'The Devils'.

I would need to do some work on this, but my initial feeling is that torture, where it was used and it was used perhaps surprisingly infrequently, didn't increase the chances of defeating these groups.

But what is this increasingly ridiculous effort to make something straightforward complicated, to make something ordinary exceptional, to turn a settled legal solution into a muddied moral problem? It's looking more and more like special pleading with the aim of covering up deep shame. And on the part of Cheney's gang, to avoid being tried as war criminals.

A perversion of American exceptionalism. Testament to which, I would advise Cheney et al to avoid making trips to countries, such as Spain, which treat international law with some seriousness. Dick in a Madrid jail would be uncomfortable for all concerned.

Brit said...

Burke, Skipper? Our approach is classic Burke - that's the whole point.

Gaw said...

Newton and Turing were scientists, not moralists or philosophers. Burke: are you kidding?

Hume. Well, how about this:

"Morals excite passions, and produce or prevent actions. Reason itself is utterly impotent in this particular. The rules of morality, therefore, are not conclusions of our reason."

Sound familiar?

Hey Skipper said...

Gaw:

Murder and killing are two different things.

The laws of war only have meaning with respect to barring gratuitous violence; that is, violence that does not contribute to obtaining the goals of the war.

Further, you still haven't touched the central moral problem. War is a complete negation of morality, yet you would deny in toto measures (completely undefined) that could hasten the end of that negation.

So that is why I say your position is a nullity: the consequences of not coercing information are ... well ... ummm ...

When you state that this war is 'different from any other I can think of' you reveal why we're in this pickle. A lot of this is new to Americans ...

All of the examples you cited are familiar to me, and demonstrate my point.

None of them constitute non-state entities with universalist, existential goals. Now, in the fullness of time we may well conclude that those goals will forever remain well beyond Islamists' reach, but no matter. Neither the People's Will, the Tamil Tigers*, IRA, ETA, nor Puerto Rican nationalists, et al, had goals beyond their own locality.

(*The Divine Wind rather predated the Tamil Tigers.)

To restate, I can't think of another war where the opponent was non-state, extra-territorial, and with existentialist goals.

The nature of the enemy also changes the nature, and importance, of certain kinds of information. Funding, logistics, lines of communication are all vastly different for a bureaucratic state than a non-state enemy. For the former, they are easy to determine, but difficult to attack; for the latter, exactly the opposite.

Which further exposes the nullity of your position: presume you have a couple highly placed captives with such information, some of which you know, some you don't, they don't know which.

How much coercion are you willing to inflict in order to add to your store of information? None, some? What are the consequences if your captives know the answer is the former?

That is why I insist you, Appleyard, that Spanish judge, Lithwick, etc, are making a judgment without taking a stand. It is all about feelings, and has nothing to do with analysis.

Against an opponent whose every action is a violation of the Law of Armed Conflict, how many additional things blown up, or people mowed down, does it take before intensive coercion is less immoral than its absence?

Burke, Skipper? Our approach is classic Burke - that's the whole point.

Your statement, no doubt off the cuff, to which I was responding, was that Brits don't reason from first principles.

Are Newton, Hume, Burke, Turing Brits? Did they reason from basic principles?

Gaw said...

War isn't a complete 'negation of morality'. How can you possibly claim that? Do you deny the possibility of committing a war crime?

You believe torture can be justified on grounds of expediency. Prohibitions on rape and pillage of civilians, murder of prisoners of war, and mutilation of the dead, along with God knows what else, could all be justified in particular situations as means to bring the end of a war nearer. Do you think they are justifiable?

So far, your reasoning would justify, for instance, Stalin in his committing acts of genocide on Soviet populations whose loyalty he found questionable during WWII. And lots more.

Re the terrorist groups: you defined Al Qaida as unique because they were:

'a conspiratorial, cellular, non-state entity as an opponent with existential goals'.

You've now added in the extra quality of their being 'extra-territorial' in order to draw a distinction between them and the groups I cited. This is a bit desperate and anyway isn't a relevant factor in making their threat unprecedented.

In any event, the IRA were all the above: conspiratorial, cellular and extra-territorial. Their goals were and are unachievable in any imaginable world. They murdered hundreds of innocent civilians. They blew up iconic buildings, such as the Baltic Exchange. (I happen to have been not a million miles away from being blown up by them in Canary Wharf).

I'm not saying the British didn't overstep the mark at times - but when illegal acts occurred enquiries and then, if practicable or justified, prosecutions were launched. Torture was never official UK policy unlike in the US under Bush and Cheney.

The US never extradited a single IRA terrorist to face justice in the UK and American citizens were the largest funders of the IRA. To hear parts of the US polity justifying all means at their disposal, including torture, in order to face what they wrongly describe as an unprecedented threat is pretty sickening.

Hey Skipper said...

I forgot this:

There are other rules of war that we might regard as inconvenient but which I would argue we should adhere to: prohibitions ... murder of prisoners of war .... If I said I was against these would you describe my position as a 'nullity'?

Assume you are leading a special forces team, and stumble on a shepherd. You have two choices, kill him, or let him go and run the risk of having him disclose your presence.

Which do you do?

NB: this is not a hypothetical.

Gaw said...

In military law is such an act illegal? I would go with whatever the law said. (This has been my position forever).

In any event, something could be illegal but nevertheless justified.

Hey Skipper said...

According to the Law of Armed Conflict, executing prisoners is prohibited.

The Special Forces patrol leader, cognizant of this, released the guy.

Who then promptly ran to the Taliban.

Who then attacked the SF team, with the ultimate result being 18 of our guys killed.

The patrol leader, who survived, characterized his decision as a horrific mistake.

So if your answer to which would you do is along the lines of "it depends", then you have just perfectly illustrated the paucity of your position on intensive coercion.

Gaw said...

No, you've consistently misunderstood my position. Whilst torture, as well as executing prisoners, should be illegal, I can imagine both being justifiable in certain situations. I would rely on the system of justice to work out how things are resolved.

I'm really not clear what your concrete proposal would be. All you seem to want to prove is that it's all terribly complicated. To which my answer is 'yes, and it's the law's job to work out the best way to resolve these complications'. You're just problematising a situation which already has ready established procedures to arrive at a solution. All this philosophical reasoning is a lot of obfuscation.

Hey Skipper said...

Do you deny the possibility of committing a war crime?

Heck no. Gratuitous violence during the conduct of a war is always a war crime. Raping, pillaging, murder of POWs does not serve to advance a war's goals, and will often act to negate them. (See Nazi Germany and the Ukraine, for example). Where war is between states, murder or mistreatment of POWs is always gratuitous.

Back in the day, a senior officer flying with my squadron had a sequenced release malfunction. He, despite ROE to the contrary, chose to release the weapons manually: he scattered bombs well beyond the target area. In my eyes, and many other guys in the squadron, he was a war criminal. The violence was gratuitous, violated a principle of war (economy of force), and could only have consequences antagonistic to our war aims.

So far, your reasoning would justify, for instance, Stalin in his committing acts of genocide on Soviet populations whose loyalty he found questionable during WWII.

No, it doesn't. First, I have implicitly taken it as a given that the war is just; after all, every act of an unjust war is a crime. The question of weather the Bush administration was engaged in a just war is beside the point here.

And that is beside the point whether Stalin's actions were gratuitous or self-defeating.

You've now added in the extra quality of their being 'extra-territorial' in order to draw a distinction between them and the groups I cited. This is a bit desperate and anyway isn't a relevant factor in making their threat unprecedented.

It is completely relevant. Spain, to take one example cannot pursue al Qaeda (which is making existentialist claims wrt Spain) in anything like the same manner it can pursue the ETA. And what is particularly relevant here is that the ability to obtain information is entirely different within a country's borders as opposed to outside.

BTW, I said the nature of the opponent, not the threat, is essentially unprecedented.

The US never extradited a single IRA terrorist to face justice in the UK and American citizens were the largest funders of the IRA.

Undisputed, completely shameful, facts.

Torture was never official UK policy unlike in the US under Bush and Cheney.

Again, without answering why the Bush administration authorized intensive coercion, you are standing on a null.

The enemy stands completely outside the Law of Armed Conflict. The nature of the conflict is entirely different than that envisioned under the LOAC and its precedents. The enemy's vulnerabilities are entirely different than a nation state's.

Which brings me right back to what would you do?

Gaw said...

Your posting is multi-part so ours are crossing a bit.

How do you define gratuitous? One person's gratuitousness is another's necessity. For instance, why wouldn't murder of PoWs advance a war's aims in some hypothetical situation? If you couldn't imprison them and if you let them go they'd fight you..

'War is just' and also 'a complete negation of morality'. Contradictory and confused.

Your argument that Al Qaida is exceptional simply doesn't hold water. I don't think you know enough about other terrorist groups. One of the reasons, historically, that Spain hasn't been able to go after ETA is that it based itself, in part, in the Basque areas of France. Ditto Britain, the IRA and Ireland (funded by Americans and armed by Libya). Sri Lanka, Tigers and Tamil India.

None of these groups observed the Law of Armed Conflict! The IRA's setting off bombs in market places or shopping centres with no warning, killing and maiming dozens - is that sufficiently beyond the pale for you?

What would I do? You are the one proposing (I think) innovation. But what I would do is what governments have done at least since the Geneva Conventions were signed. Keep torture illegal!

Hey Skipper said...

How do you define gratuitous?

The best way of looking at this is via one of the principles of war: economy of force. Any instance of violence that does not advance the war's aims is gratuitous, because it is a waste of force that could be better used elsewhere, or not at all.


For instance, why wouldn't murder of PoWs advance a war's aims in some hypothetical situation? If you couldn't imprison them and if you let them go they'd fight you..

In some real situations, with a fluid line of contact between forces, the choice is between killing a captive or fighting them again. Since all of our opponents in the ongoing war are always violating every bit of the LOAC, our forces are off the hook with summary executions.

'War is just' and also 'a complete negation of morality'. Contradictory and confused.

I didn't make my meaning clear. Destroying things and killing people are acts that are never "moral", but can be excused in the pursuit of a just war. Killing women and children is never moral, but as collateral damage attending eliminating a war criminal hiding among the civilian population, must be allowable.

That is why the violating the LOAC is important (although somewhat peripheral to this discussion). Allowing LOAC violations to provide sanctuary to the violators is to cede the entire conflict to violations. See also why all arguments for pacifism are amoral.

Your argument that Al Qaida is exceptional simply doesn't hold water.

Don't forget, part of my assertion that al Qaeda is exceptional is that it, and all other Islamist organizations, are making existentialist claims. The ETA, IRA, and the Tamil Tigers, were making nationalist, not existentialist, claims on their respective countries. Yes, most, if not all non-state opponents have an extraterritorial sanctuary or funding source.

The combination of claims and number of opponents puts Islamist organizations in a class of their own.

What would I do? You are the one proposing (I think) innovation.

You have sidestepped the problem. By your own assertion, you left that patrol leader stuck between the devil and the deep blue sea: leaving himself open to trial on murder charges, or having many of his own guys get killed.

Your position -- the prohibition against intensive coercion is absolute -- puts you, Appleyard, etc in that dilemma.

My position is that within the context of war, one can only make that decision based upon the cost of the alternative. In general summarily killing captives is wrong, because in general it is gratuitous violence. But sometimes it is not.

Just so with coercion.

Coercion is an act of war. I haven't yet seen a coherent argument to elevate that particular act of war above all the others, which an absolutist argument does.

Just to be clear, I am placing a line between coercion and torture. If it doesn't cause physical injury, it is not torture. In that light, torture is always gratuitous, because there are effective means to obtain valid information that don't involve physical injury.

Unfortunately, in addition to making a moral judgment without taking a stand, you still leave the core subject a void: without saying what torture is, you also can't say what it is not.

Then, what is the effect on our opponents? What is the chance we will get important information from captives who know in advance that they won't suffer even fluffy cushions?

To summarize, the absolutist position leaves the subject undefined, the alternatives unconsidered, and the consequences untouched.

Gaw said...

You're defending new ground, I'm standing on where we've been for at least sixty years...

So come on, now. Put up or shut up. Would you change the law and if so how?

Hey Skipper said...

Define torture.

Gaw said...

I'm sure there's a definition in the Geneva Conventions. I'll use that.

Gaw said...

Or you could try this one, signed up to by that notorious softy Ronald Reagan:

Inter-American Convention

The Inter-American Convention to Prevent and Punish Torture, currently ratified by 17 nations of the Americas and in force since 28 February 1987, defines torture more expansively than the United Nations Convention Against Torture.

"For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.

The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article."

Hey Skipper said...

For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose.

So the UK has stopped putting people in maximum security prisons, then?

One of the problems I have mentioned about your approach is that it would invalidate a whole raft of things you take for granted.

Just so here.

Gaw said...

That's your inference. But it obviously isn't that of the lawyers, judges, politicians, soldiers ,etc who drew up the Convention and adhered to it over the years.

Hey Skipper said...

The words are very clear: based on them there is no rational basis upon which you could distinguish maximum security imprisonment from waterboarding.

Yet you are presumably happy with the former -- because of the consequences -- and absolutely repudiate the latter, no matter the consequences.

Gaw said...

I think we can agree that 'ballbag-slicing' falls on the torture side of the line.

Anyway here's a tighter definition from Article 1 of UNCAT:

"1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

I think waterboarding, or drowning as it's otherwise known, is 'severe suffering'. You don't I guess.

I hope your approach isn't adopted more widely and waterboarding isn't substituted for maximum security imprisonment (which it just as well be, according to your definition) for any number of recalcitrant or deviant US citizens. But I'm sure you feel you can trust your government not to abuse this precedent given how much I'm sure you trust them in other areas of life (health care, financial regulation, construction, etc)...

Hey Skipper said...

That definition still leaves you with all your work undone. Confinement to a maximum security prison does, in fact, impose severe mental suffering as punishment. The threat of such confinement -- which itself imposes mental suffering -- is routinely used by law enforcement to elicit confessions, or information against another party.

Yet we routinely tolerate these acts because of the consequences of not doing them.

I think waterboarding, or drowning as it's otherwise known, is 'severe suffering'.

No, waterboarding is not drowning, unless the dictionary has changed since I learned the meaning of that word. Does it impose extreme mental suffering? Of course it does.

It is well worth keeping in mind that person being waterboarded can, at any time (completely unlike imprisonment), stop it.

I hope your approach isn't adopted more widely and waterboarding isn't substituted for maximum security imprisonment.

Huh? I never said it was a substitute -- any more than a bird is a substitute for a cow -- only that there is no way that the definition allows distinguishing torture from acts that we do not consider torture, any more than one can distinguish a bird from a cow given only the definition for the word "animal".

But I'm sure you feel you can trust your government not to abuse this precedent given how much I'm sure you trust them in other areas of life (health care, financial regulation, construction, etc)…

Huh? I have had two points here: that the subject is completely undefined, and, because the consequences of not coercing information are completely ignored, the absolutist argument is amoral.

Gaw said...

You still haven't told me what you propose. It's all very well pontificating on the moral content of this and the definitional inexactitude of that but what's your practical objective?

Whilst you're cooking something up, check out this (looks like your law enforcement authorities have a working definition of torture, even if it is applied selectively).

Hey Skipper said...

What do I propose?

First, promiscuous use of the word "torture" is self-defeating.

Second, elevating coercion as uniquely unjustifiable compared to all other acts of war is to lose all sense of proportion.

Third, that the various things we call the Law of Armed Conflict were developed around the notion of nation states and avoiding gratuitous violence. But that our opponent is neither a nation state, nor a nationalistic group hoping to become one. The LOAC simply does not apply to the nature of the enemy, or the conflict.

Fourth, a priori condemnation of all forms of coercion is, like pacifism, an amoral position. Andrew Sullivan typifies this perfectly: waterboarding Khalid Sheik Mohammed 183 times is evil. Compared to what? Were we able to obtain information we could corroborate about funding, lines of communication, etc that we would not have gotten otherwise? How much were Islamist operations disrupted by our getting that information? (I find it curious that Mr. Sullivan could not bring himself to utter KSMs name, nor the role he played prior to his capture. He did use "Khmer Rouge technique" -- right up there with Nazi for promoting rational argument. Well, the Khmer Rouge killed people. The US kills people. Morally equivalent? Somehow, I don't think so.)

Now, if the Bush administration encouraged gratuitous coercion (by that I mean any amount beyond that required to obtain information, or information that did not justify the coercion) against prisoners, then that is morally wrong, even if the coercion did not amount to what I would consider torture.

But Mr. Sullivan burdens himself with no such worries. No need to consider how much Islamist communications were disrupted, or funding stopped, or plans suspended, or …

That is what I mean by amoral: a complete inability, or unwillingness, of considering the consequences of not doing something.

The remedy? Define torture so the word means something: any treatment that does not result in physical harm is not torture.

Because coercive techniques exist that will produce the same results, torture is always wrong because it is always gratuitous.

The intensity of coercion must be proportional to the amount and value of obtainable information.

Having done that, one can perhaps (depending on the truth of the charges) that the Bush administration in fact acted immorally: killing captives (outside a combat zone, where extenuating circumstances may apply) is always wrong; keeping someone awake for 960 hours is wrong, if that was done purely as a fishing expedition.

How long are you willing to keep someone awake to discover the means and methods Islamist cells use to communicate?

Gaw said...

First point: self-defeating, why?

Second point: I don't elevate coercion above all other acts of war. I maintain, along with the rest of the world living under a Western-style rule of law, that torture is illegal.

Third point: We disagree about the unique status of the enemy. The threat on mainland USA might be unprecedented but it's not elsewhere.

Fourth point: I don't share your understanding of the word 'moral'. As far as I'm concerned (along with every dictionary) broadly and simply speaking morality is a code governing what's right and wrong. By what measure a pacifist can be described as amoral is beyond everyday comprehension. You occasionally disappear into a realm of abstract philosophising that seems pretty meaningless to me.

Re weighing up the net effects of a decision - i.e. not torturing versus information that might be gleaned from torture - you seem to think this is an observation that is quite particular to the dilemmas presented by the issue of torture.

But moral choices always contain what Isaiah Berlin called the 'tragic'. What you regard as a huge problem specific to torture is therefore common to all moral choices, and yet we manage. Torture is wrong; we sacrifice certain potential benefits in making this choice. So what?

So in summary I think you're problematising something that is adequately governed by law at the present time. You are doing so based on a misunderstanding of the meaning of the word 'moral'.

Hey Skipper said...

First point: [promiscuous use of the word torture is] self-defeating, why?

I think I already demonstrated that above. Undefined and tossed all about the place, torture includes practices you of which you, presumably, approve. By your (I am speaking inclusively here, not just you) definition, torture includes putting someone in a maximum security prison. Well, does it?

Second point: I don't elevate coercion above all other acts of war. I maintain, along with the rest of the world living under a Western-style rule of law, that torture is illegal.

You just did, in the space of two sentences. Within Western-style rule of law, every act of war is illegal. Yet coercion, of completely indeterminate degree, is to be completely avoided for reasons unknown, when other acts of war are not. Why? By what chain of reasoning is blowing things up and mowing people down okay, but sleep depriving them is not?

By what measure a pacifist can be described as amoral is beyond everyday comprehension.


Here is how.

Which returns me to my question: How long are you willing to keep someone awake to discover the means and methods Islamist cells use to communicate?

I don't see how you can disagree about the unique nature of the enemy. Name one other that is non-state and totalitarian. If you can't -- and I am betting that is the answer, then the Islamists, by the very nature of its demands, are unique.

Torture is wrong; we sacrifice certain potential benefits in making this choice. So what?

Those potential benefits could well be people's lives. For me, "So what?" seems a little dismissive.

Gaw said...

I would refer all your definitional queries to a court of law to sort out. Torture is illegal, I'm happy with that and I don't really care if you can pick holes in the meaning of 'torture', 'is' and 'illegal'.

I say 'so what?' as, to repeat myself, you persist in finding what you appear to believe are unique philosophical problems where there already exist commonplace legal solutions.

Hey Skipper said...

How long are you willing to keep someone awake to discover the means and methods Islamist cells use to communicate?

Gaw said...

I refer you to my previous response: I'm happy for that question to be determined via the existing law.

Hey Skipper said...

Well, first of all, my question was directed at you.

Secondly, how does existing law answer that question?

Gaw said...

I've never seen this problem as one that needs solving through reference to first principles and the establishment of definitions.

There are established legal definitions of torture and my point is I rely on them. There are grey areas in all part of law and clarity is arrived at when necessary through legal deliberation, which will in serious cases involve the use of a jury. I trust in this process of arriving at justice, not because it's perfect but because it intermediates between established general legal principles and the relevant facts of the particular case. It's the best 'answer' to your questions that we've got, certainly better than my engaging in simplistic hypotheticals.

Hey Skipper said...

I simply cannot grasp declining to knowing what we are talking about, or what the words mean. Heck, I give a kitchen recipe more attention than that.

Besides, I am not talking about hypotheticals. Take the Goldstone Report on Operation Cast Lead as a perfect example of the perils of the legalistic approach.

But never mind all that, I have finally buckled down and done what I should have done months ago: write my own damn post on the subject.

Gaw said...

But Skipper, to extend your cooking metaphor, you're proposing we don't use recipes - that, instead, we invent dishes from scratch every time we eat them.

As I said the law isn't perfect. But it's better than allowing people to decide how to behave solely on the basis of their own moral code, which they cobble together using whatever philosophical principles came to hand!

Hey Skipper said...

No, Gaw, I am not.

I am insisting that our recipes -- and your judgments -- be based on something more than what feels good. More fundamentally, because this is war we are talking about, "moral code" really doesn't enter into it.

There is absolutely nothing "moral" about a late-middle aged mild mannered blogger having once had license to destroy things and vaporize anyone unfortunate enough to be in the cross hairs.

There is nothing "moral" about coercion, either.

There is nothing "moral" about war.

But there is no point repeating myself -- it is all in the link above.

Gaw said...

Your judgments [need to] be based on something more than what feels good.

My judgement is based on what is legal. Do you think the law has been put together on the basis of what felt good to generations of legislators and jurists?

This absence of morality that you refer to would come as a surprise to moralists from the Greeks onwards. But I guess you just can't stop innovating in revolutionary fashion.

ghostofelberry said...

A team of British Special Forces were also seen by a shepherd in the Stan - they weren't entirely sure if he'd seen them, as they were partly concealed and he just continued, whistling merrily. They decided to let him go.

As it happens, he had seen them but didn't tell the Taliban. Their mission was to do a recce of a target the Americans were going to bomb - it turned out to be a regular village, not remotely military as far as they could see, and not fond of the Taliban. With some difficulty the team persuaded the Americans not to bomb the village.

i draw no conclusion from this except that each situation tends to be different and it's a real bugger trying to generalise; unfortunately civilization rests upon generalisations, laws.

Gaw said...

Curiously 'hearts and minds' doesn't get much of a look in with the advocates of torture. But it seems to be the one common factor in defeating insurgencies (at least absent killing everyone).