As Washington buzzes with speculation about Plamegate and the Miers withdrawal, a truly reprehensible request by Vice-President Cheney is slipping under the radar. Last week, I applauded Senator John McCain for standing up in the face of a threatened White House veto and rallying the support of 90 Senators from both parties to attach a provision to a defense spending bill that would ban torture of any detainee held by the U.S.
Standing up against torture is a good thing, right?
Not according to the VP, apparently. Cheney, along with CIA Director Porter Goss, reportedly lobbied McCain to include a broad exception to the ban that would allow CIA agents acting abroad to continue with carte blanche interrogation. No more of the legal-speak about the torture convention or the Geneva accords or even the Constitution. The Administration’s policy is not disturbingly clear: We have a right to treat prisoners inhumanely. How’s that for moral values?
A stand like this by the Administration erases any doubt that it is the leaders at the highest echelons – and not the “bad apples” being punished – that created the detention culture that led to the disgrace of Abu Ghraib. Allowing the CIA to continue inhumane interrogation practices will only further that culture. But don’t trust me. Check out what the government’s own August 2004 report on Abu Ghraib concluded:
“CIA detention and interrogation practices led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib. Speculation and resentment grew over the lack of personal responsibility, of some people being above the laws and regulations. The resentment contributed to the unhealthy environment that existed at Abu Ghraib.”
In the face of this, the Administration continues to insist that torture is a necessary, if repugnant, part of gathering intelligence in the war on terror. Yet, interrogation experts repeatedly assert that torture yields a high percentage of faulty intelligence as detainees say whatever comes to mind in order to end their suffering. This is why the McCain torture ban – authored, it should be noted, by a former POW who knows a bit more about sacrificing for his country than the Vice-President with “other priorities” – has the support of two dozen retired senior military officers, including Cheney’s everlasting thorn in the side, Colin Powell.
Torture and the outrage that accompanies its inevitable discovery actually undermines the war on terror far more than any intelligence gained through torture helps it. In other words, torture may put more American lives in danger than it protects. The imagery and resentment that emerge from Abu Ghraib and Guantanamo Bay fuel terrorist recruitment and anti-American sentiment among even the moderate Muslim community and erode any moral authority the US has in the rest of the world. Torture rallies our enemies and alienates are friends. It is not only illegal and generally immoral, but it is bad strategy.
Instead of undertaking the difficult work necessary to create global systems to gather good intelligence, the Administration continues to pursue a lazy strategy of torture. Unfortunately, this unwillingness to tackle difficult problems with thoughtful solutions is nothing new for this Administration or any other recent Administration. Politicians-in-chief look for easy solutions, like torture, rather than effective ones. Politicians, it seems, will always have other priorities.
Still, Senator McCain and his bipartisan Senate allies continue to stand firm on this issue in the face of a disgraceful and unwise, yet unsurprising proposal from Vice-President Cheney and the CIA. At least some in Washington still have their priorities right.
3 comments:
I found your blog on torture particularly interesting. Obviously, every decent person condems torture. We like to think well of urselves, so being against torture seems like a "no brainer". You also point out many other good arguements against torture ie. it usually
doesn't achieve good results, it "rallies our enemies and alienates our friends", it damages our moral standing, it conflicts with the values of our society, its downright immoral, etc.
Having said all this, I want to raise the following question. Is it really right, wise, beneficial, and even moral to create laws that will always ban
torture? David Gelenter has just written an opinion piece in the LA Times that asks this question. He uses the hypothetical example of a captured terrorist who has planted a nuclear weapon in the heart of Manhattan and will not divulge its location. As repugnant as it may sound, wouldn't it be the moral thing to torture this person in order to get the location of the bomb and save the lives of tens of thousands of innocent people?
I believe that the modification Cheney wants to make to the McCain ban on torture is that only the CIA would be permitted to use torture or rough interrogation techniques. As scary and unAmerican as this may sound, I think it is the wise and responsible thing to do. We are living in an age where our enemy wants to do us great harm and through WMDs can actually achieve this goal. This is not Czarist Russia, where the damage from anarchists bombs could only hurt a few people. I believe the existence of WMDs and the terrible damage they can inflict on us changes the dynamic of our response.
Policies that contain the language of "never" as opposed to "almost never" do not allow for the kind of flexibility that is needed today. Back in the 70's there were severe restrictions put on the type of covert operations the CIA could conduct and many believe that the poor intelligence that we had going into the Iraq war stems in part from these policies, which were well intentioned and morally grounded.
Allowing the CIA to use torture or rough interrogation techniquses is certainly scary. Will they get carried away? Will there be abuses? Can they be trusted? What checks on their activities would there be? I believe these quesrtions will need to be answered, but as scary as it is, the alternative seems worse to me.
I agree 100% that there may be a time and place where torture is in fact the moral thing to do, as pointed out in the article. Similarly though, I would argue that there may be a time and place where murder is the moral thing to do - such as when an intruder is in your home or threatening your family. However, when someone does kill an intruder, our law recognizes self-defense as an affirmative defense to the crime of murder. Notably, the law does not "legalize" murder. Instead, it recognizes that in a very few instances, murder may be right.
Here's how it works - a person is charged with murder and certain elements proved. Then, the person brings his own proof that the killing was a required act of self-defense, proving a different set of elements. Judges or juries then determine whether the killing was a murder or an act of
self-defense. If it was really self-defense, the person will not be convicted. This system balances the moral code (murder is wrong) with
the reality that murder may not always be wrong - murder is an "almost never" as referenced in the article.
I don't see why a similar standard couldn't work for torture. Is it realistic to think that in the situation where (a) we have a suspect in custody with knowledge of an imminent threat and (b) our forces tortured that person and were able to gain information to defuse that threat that (c) the personnel who tortured would be convicted of anything? I don't think so. More likely, the person would be a hero. I believe a court of law or an internal FBI or military tribunal would recognize the corrollary to the self-defense argument. The person did torture. But that torture was in
self-defense, or national self-defense. Therefore, no torture conviction.
To get this result, I do not think it is necessary to legalize torture as Cheney wants to do any more than it is necessary to legalize murder. Giving the signal from the highest offices in the land that torture is OK and putting the CIA above the law is a very dangerous thing and it leads to the embarrassments of our detention policies of the past few years. The argument that it doesn't make us any safer (an argument many experts would make, but I am not qualified to vouch for) further undermines such a policy.
I have a few questions concerning your 11/13/05 response to Phil from the wonderful California. You draw a parallel between self-defense and the use of torture to protect national security. Of course, the use of torture, in this case, would be a type of self-defense, but establishing a burden of proof remains far more difficult from doing so in a murder case.
In the case of self-defense, one may use lethal force when he/she reasonably believes that such force is necessary to prevent death or great bodily harm. Now, this "reasonably believes is, of course, the tricky issue. However, because this burden of proof is weighed and decided by juries and judges, their decisions seem justified.
However, you lay out a different burden of proof as it concerns the use of torture. You argue that torture should be overlooked, decriminalized, or allowed when "(a) we have a suspect in custody with knowledge of an imminent threat and (b) our forces tortured that person and were able to gain information to defuse that threat."
I must inquire as to whether our forces, under your provision, must (a) know that the suspect has knowledge of an imminent threat, or (b) reasonably believe that the suspect has knowledge of an imminent threat.
Firstly, if we know that the suspect has knowledge of an imminent threat, torture could be considered legally justified, just as self-defense if legally justified. However, to what degree can our forces torture? For example, suppose the suspect, who definitely has information, divulges nothing. I suppose that, as is the case with self-defense, the defender decides the level of force necessary to eliminate the risk to his/her person or the other whom the defender is defending. However, as we know, even the use of lethal force is an acceptable act when the defender deems it necessary. Is lethal force in bounds within this torture debate? Now, it may seem counter-intuitive to kill one from whom we are trying to extract information, but the question of degree remains.
Secondly, assume that all that is required as a burden of proof is a reasonable belief. When is this burden of proof considered? Must it be proven before such torture is administered (do we require, in effect, a warrant or court order for torture), or do we allow torture on the front-end and hold a hearing for every act or torture to decide whether a reasonable belief did, in fact, exist? It seems to me that while timing and docket space would be a concern of the "warrant" approach, it remains the most legally consistent choice; for, the post-torture hearings would inevitably lead to (a) the torture of many detainees who are bereft of knowledge and (b) the conviction of many members of American forces who are unable to adequately prove their burden.
In addition, suppose that post-torture hearings win out. And, suppose that torture leads to the acquisition of information that helps diffuse an imminent threat. Further suppose that a reasonable belief burden is not proven. In other words, what if a servicemember uses torture and obtains useful information without having a reasonable belief? Should this servicemember be held accountable? Is this a violation of the Fourth Amendment?
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