Squaring the Culture

"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

12/28/2008 (7:47 pm)

Harsh Interrogation

An exchange that began on 12/17 or so with a progressive blogger has had me tied up with the question of whether, and how, harsh interrogation of prisoners is justified in the ongoing war on terror. There’s a lengthy discussion attached to the post entitled “Those Who Make the Hard Decisions.” I’m recounting here the final argument of that discussion, making the case that the government’s choices have been responsible and properly within the bounds of moral behavior.

Two articles are necessary to understand this part of the discussion. The first is an outstanding but occasionally snarky analysis of the ambiguity attached to deciding which interrogation techniques are appropriate and which are not, by a professor (he does not say what subject he professes) who describes himself as a liberal Democrat. I reproduce the core of his argument in my own words, but his discussion is worth reviewing.

The second recounts two instances of harsh interrogation, one by a German Police Chief who afterwards got tried by the European Court of Human Rights on a torture complaint, the other requested by CIA interrogators at Guantanamo Bay but denied by higher-ups. One important thing to notice in the article is the fact that the German policeman, while convicted on a lesser charge of “inhuman treatment,” was not punished by the Court. The fact that he applied a rough tactic to obtain in seconds the whereabouts of a boy’s body from a kidnapper who had been lying to the police for hours under less stressful questioning, apparently convinced the Court that his behavior was not the sort of thing they wanted to punish. Another important feature is the detail about the formal categories of harshness in the US’ interrogation regimen at Guantanamo, even as early as 2002. These categories will play a role in the argument, below.

When we speak of illegal acts that are immoral by their very nature, we’re talking of things that are usually pretty clearly defined. Murder, for example, is relatively simple (but still not without it’s gray areas.) The act in question is deliberate killing. The victim is either dead, or not. The person killing the victim either has a legal right to do so, or not. Most of the disputable areas can be settled by clear findings of fact.

The same is true of theft. The act in question is taking possession or ownership of an item. Either the person takes possession, or he does not. He either has a right to possession, or he does not. There are gray areas, but the act can be clearly defined, and usually clear findings of fact settle the gray areas.

When leftists speak of US interrogation techniques, they invariably use the term “torture.” Torture is not an act like murder or theft, and in fact is not even the subject of the discussion; it’s a red herring. There is such a thing as deliberate infliction of pain on, say, kidnap victims, for the sake of pain or entertainment. The act of deliberately detaining someone and causing them pain for pain’s sake is certainly torture, and is certainly illegal. Inasmuch as US military personnel practice such things (as occurred at Abu Graib,) they are prosecutable, and ought to be. I will not defend such behavior; it is indefensible.

However, most of what’s being discussed with respect to US detention of prisoners has nothing to do with such excesses. The act we’re talking about is “interrogation,” not “torture.” There is simply no question that interrogation is legal; it is. It’s also necessary. Nobody disputes this. There is a valid discussion to be held regarding what techniques are appropriate for interrogation, and in what circumstances. To speak of “torture,” in this context, does nothing but obscure the relevant questions — which is why leftists do it. People who speak of “torture” are usually attempting to co-opt reasonable debate by using emotionally-charged language, which is the opposite of sound reasoning. Calling this a discussion about “torture” actually commits the fallacy called “poisoning the well,” since much torture has nothing to do with interrogation, and most interrogation has nothing to do with torture.

To understand the issue at hand, one should imagine making a scale of interrogation techniques in order to decide which are appropriate and which are not. We can start at “1″ with seating the detainee in a comfy chair with a glass of scotch, and asking him sly questions. Something like chopping off a foot and threatening to chop off the other if the victim won’t talk lands somewhere near 90; we’ll call beating to death 100.

Now, let’s draw an arbitrary point in the middle — say, 50 — and say that higher numbers are immoral, and lower numbers are not. The reasonable question to ask is, what act would we call “49″ on this scale? No, saying “Whatever you think, waterboarding is 65 and immoral” begs the question, and the people who jump to this are deliberately trying to avoid the discussion. What, precisely, constitutes 49, and what constitutes 51, and what’s the difference? The ambiguity of the problem becomes immediately apparent to the objective observer when they consider such questions. Clearly, there’s an increasing continuum in the direction of harshness, and at some point somebody has to draw an arbitrary line and say “This is far enough.” The continuum might pass through seating the prisoner on a hard chair facing a bank of bright lights, to denying him water for two hours, to making him stand for four hours, to slapping his stomach with an open palm, to shouting dire threats into his face, to extended periods in a cold, wet room, and so on. Somebody has to decide which acts are more harsh than which; the order, like the line which constitutes the harshest permissible tactic, is arbitrary.

International treaties do make an attempt to define where these marks are, but they’re necessarily vague, using phrases like “cruel, inhuman, or degrading” to describe prohibited treatment. It’s frequently up to the court to decide whether a particular act fits the category. Moreover, the recent German case mentioned at the top of the article illustrates that there are other factors that can affect the criteria. For instance, the urgency of the situation changes the equation; techniques that are higher up the “improper interrogation” scale become more acceptable when, say, a kidnapped child’s life might be in the balance, as in the German case. Also, the importance of what’s being saved affects the equation; more violent techniques that would not be appropriate when attempting to find, say, some Wall Street broker’s secret bank account, become more appropriate if there’s a plot to murder tens of thousands of people. The fact that waterboarding probably prevented a 9/11-style attack on the Library Tower in Los Angeles obviously mitigates whatever might be said about the barbarity of waterboarding.

There are good examples of attempts to identify which acts an interrogator might use fall into which spot on the scale. One such example exists in the CIA’s interrogation regimen that they’re using on terrorists. The linked article illustrates a case where Category I and II acts are permitted, but Category III acts require special approval — and are denied. The scale that they’ve implemented traverses a whole range of increasingly rough tactics, and comes complete with levels of oversight and responsibility; the higher on the “hard interrogation” scale, the greater the degree of oversight.

The existence of the hierarchy and the oversight, as well as the clear record of a discussion within the current administration to answer the question posed by CIA interrogation experts, “What are we permitted to do, and what are we forbidden?” makes it clear that the administration has been thoroughly responsible regarding this topic, attempting to devise a balanced system that protects the rights of the prisoners but permits more stringent interrogations when demanded by the circumstances. The fact that the most extreme tactics, like waterboarding, have only been used on a few occasions demonstrates that the system works to limit harsh treatment, and testifies to a good-faith effort to remain within the bounds of humanity. The administration, far from deserving condemnation and prosecution, should be commended for holding to high standards while successfully protecting the nation.

In order to be cogent in their criticism, critics of the Bush administration must believe that they drew the line between acceptable and unacceptable questioning in the wrong place. It is entirely fair to ask them where they, the critics, believe the line should have been drawn, and then to make them explain in legal and moral terms the difference between their endpoint (let’s say, 42 on our 1-100 scale) and the CIA’s endpoint (say, 55). Of course, they seldom answer such questions, as many of them have never considered the matter as a continuum of increasingly harsh treatments, some of which are acceptable and some not.

On the contrary, they’re actually claiming something a lot more unbelievable than just “They drew the line in the wrong place.” Not only do they think the line was drawn in the wrong place, they believe there exists an absolute moral precipice between where they, the critics, would draw the line and where Cheney & Co draw it. They think that at their safe 42, they’re strolling in moral purity, earning the kudos of the moral universe, but that somewhere between that point and 55, Cheney has fallen off an immense cliff, from moral purity into the deepest depths of degradation so obviously immoral that nations cannot tolerate the very thought of it. Once we’ve taken pejorative terms like “torture” out of the picture and explained the progressive scale of interrogation we’re examining, the claim simply becomes a joke; they can’t possibly be serious, no such precipice exists. Some harsh acts are permitted, others forbidden, but the line between them is more or less arbitrary, and the differences are differences only of degree. And if the cowards among them retreat their line to an obviously safe spot — like, anything beyond the Comfy Chair and the glass of scotch is over the cliff — we snort and put them on “ignore”; again, they can’t possibly be serious, and no nation on the planet adheres to such a standard, nor should they.

What’s obvious here is that they’re not engaging in sound thinking at all, but playing some sort of game. The Back Talk blog that I linked to at the top of this article calls their position “moral exhibitionism,” asserting that they’re simply trying to buttress their own egos by asserting moral superiority. Tammy Bruce makes a similar diagnosis, calling these folks “malignant narcissists.” For many, I think, that’s all it is — they’re infants in adult bodies, playing at “I’m better than you, nyah nyah.”

But for others, it’s something a lot more sinister. These began a process about 8 years ago that said this: “The Republicans have made our Democratic President look like a moral cretin. We have to make theirs look worse.” I recall dozens of progressives saying precisely that, in writing (ignoring the simple fact that it was the Democratic President who made himself look like a moral cretin, and the Republicans were simply doing their jobs.) The process has proceeded without ceasing for the last 8 years, with a clear intent to criminalize any normal aspect of governance that could possibly be made to look criminal. Phrases like “a secret legal cabal” to describe the President’s ordinary consultation with his private attorney makes it clear that that’s what’s being done. This is not analysis, nor principled opposition (though such opposition is possible and does exist). The fact is that the Democrats in Congress were briefed more than 30 times on the interrogation regimen, and most of them approved it heartily; their moral preening on the subject today is rank hypocrisy, and an exercise in political theater aimed at fooling the voting population into voting Democrat. It’s the rot at the heart of the tree of liberty. Such people are dangerous. This, and not Cheney’s responsible governance, is an evil worth opposing.

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December 29, 2008 @ 9:43 pm #

Your thorough covering of this topic reminds me of a good, long game of chess. It’s encouraging to see and learn from. Especially after seeing so many people playing ‘skittles’ on most sites and subjects.

(Author’s note: Thanks. And in case you’re interested: 1. e4)

December 30, 2008 @ 8:46 pm #

Just a few points Phil;

First, your distinction between torture and interrogation is misplaced. Critics of the Bush administration are claiming that illegal torture was employed as a method of interrogation. Your claim that leftists are intentionally using the inflamatory word “torture” instead of the correct word “interrogation” misstates their criticism. They know that the detainees were being interrogated. Their claim is that illegal torture was the government’s method.

Second, while your analysis has some merit in terms of the morality of interrogation tactics, you scrupulously avoid the fact that, as a legal matter, waterboarding has been a recognized form of illegal torture for centuries. We’ve prosecuted Japanese commanders for engaing in the practice.

The illegality of waterboarding is neither a close legal question or an open one. It is about as settled a question of law as there is.

Third, the executive is not free to ignore settled law. Under our system of government, the only way to change setteled law is to challenge it in court or to ask congress to change it. No amount of legal analysis by the office of legal counsel can change settled law.

Fourth, the executive is bound by settled law and is not entitled to simply ignore laws that he deems unwise – or even unconstitutional. The U.S. Supreme Court confirmed this principle of our constitutional system in Hamdan v. Rumsfeld.

Fifth and finally, leaders who intentionally violate felony statutes should be prosecuted. The reasons for my stating this are so obvious that I’ll leave them unstated.

These are the reasons why I think Vice President Cheney should be prosecuted. I’m not some leftist out to discredit President Bush. I’m simply responding to the fact that Vice President Cheney has admitted taking actions that constitute legal felonies (as a matter of settled law). I think leaders who commit felonies should be prosecuted – and if any democrats assisted in a way that renders them legally culpable, they should be prosecuted with equal vigor.

I suspect that if the evidence showed that the circumstantial stakes were truly high enough, and our leaders had sound reasons for believing that the government’s need for information was critically urgent, a prosecutor could be persuaded not to bring charges and/or a jury (or judge) could be persuaded to aquit – based on the defense that waterborading was circumstantially justified. [Although I'd note that your claim that waterboarding probably prevented a terrorist attack on the Liberty Tower is the subject of significant dispute - a fact that you should have noted for your readers. I'd also note that even if that claim is true, it would only serve as a justification (on your reasoning) if the government already had reason to think that a major attack was immanent and was merely trying to discover its target].

But Cheney’s defenders are citing these claims as reasons to forego any criminal investigation at all. That would be truly unprecedented – foregoing a criminal investigation of admitted and clearly illegal conduct based on the self-serving assurances of the potential defendants.

Best wishes Phil,

Joe H.

December 31, 2008 @ 8:06 am #

Ah, Joe,

Still playing the “torture” game, I see. So let’s ask the question using your words, as the same point gets illustrated either way:

1. Describe the most abusive interrogation procedure you can imagine that you would not call “torture”;

2. Describe the least abusive interrogation procedure you can imagine that you would call “torture”;

3. Explain the essential difference between them.

I’ll guarantee you that the difference is an arbitrary assertion addressing an unmeasurable matter of degree.

That makes your initial assessment, voiced in the discussion on your blog, of “evil” — and not just any evil, but an evil so intense that to decry the moral and intellectual deterioration of the entire culture pales before it — into nothing but a quibble over an arbitrary line.

You were engaging in moral exhibitionism, and calling me “unchristian” for not engaging in it with you. I’m… unimpressed. And I rest my case.

The illegality of waterboarding is neither a close legal question or an open one. It is about as settled a question of law as there is.

So show me the statutes and case law establishing it — or stop making that claim.

Fourth, the executive is bound by settled law and is not entitled to simply ignore laws that he deems unwise – or even unconstitutional. The U.S. Supreme Court confirmed this principle of our constitutional system in Hamdan v. Rumsfeld.

This is a gross misrepresentation of the facts. There was nothing settled about the legal status of detained, non-uniformed combatants attaching to no country or legal entity but fighting in organized fashion against an armed, uniformed militia. Since they had no country, there was no treaty covering them; the existing treaties regarding treatment of prisoners applied to conflicts between signatory nations. Even if those treaties were said to apply, the fact that they hid among civilians and fought without uniform or organizing army made them either “spies” or “pirates” (and appropriately, much of the discussion attempted to draw parallels to our 19th century scuffle with the Barbary pirates,) in which case summary execution would have been justified, but neither of those definitions fit precisely. Hamdan v Rumsfeld made the absurd and legally indefensible extension that the US is forced by law to treat them as though they were uniformed combatants from a country that had signed a treaty with us. The government has followed this since the Court decided it (despite the fact that its legal reasoning is unsound), but there was nothing certain about the outcome of that case before it was decided, and I think you know that.

What you’re attempting to do here is hold Cheney legally responsible for disobeying a Supreme Court interpretation of law before they interpreted it. This is precisely the sort of tyrannical behavior the Constitution’s authors were trying to eliminate when they wrote their prohibition of ex post facto laws (Article I, section 9). No civilized person, and certainly nobody interested in maintaining American liberty, should cooperate with you in this.

January 2, 2009 @ 11:58 pm #

Very interesting debate, and well worth the time to read and try to follow and understand.

As I said before, where we draw our lines on these and similar issues will determine much of our future as a nation.

A few comments:

There will always be a logical and totally rational tension over how much power to give the government in our need to protect ourselves. I am a believer in the slippery slope when it comes to the government. While I can accept the need for say, waterboarding of someone like KSM under the circumstances, I do not want to see it used on Tony Soprano, period. And I do not have a great deal of confidence that over time, government will make sound decisions on these matters.

I cannot cite chapter and verse, but as an example, it is my perception that RICO laws started with one intention and are used in many other less compelling situations than their original intent. I seem to remember Hubert Humphrey commenting on how quotas germinating from some of the equal rights legislation would never, ever happen.

Good points about the sliding scale of “torture”. It is also my belief that this issue has been used more for political preening and partisan advantage than out of genuine outrage. I sincerely believe, in every bone of my body, that had a “D” president undertaken policies almost identical to those of George Bush with respect to the war, the debate would have a far, far different tone. This applies to much more than the torture issue.

Perhaps more to come. Incredibly relevant content and thread, Phil.

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