His post is here, replying to my piece from yesterday, here. It is more thoughtful than his original post, which prompted me to write. I’ve already said plenty so there’s not much point belaboring this. On whether to recognize in the law the dire circumstances in which we both agree that torture would be acceptable, I think we simply have a good-faith policy disagreement. (I appreciate his apprising me of his views on the ticking bomb scenario, about which I was previously unaware.) But on the Geneva Conventions in general, we are like two ships passing in the night because whenever I say Geneva’s POW protections do not apply, Andrew reads that to mean torture has been green-lighted.
Even allowing that we probably have different views (although, I’d bet, not that different) of what constitutes torture, I respectfully suggest that Andrew is missing a crucial distinction. There is a wide gulf between the non-application of Geneva’s POW protections (which apply only to lawful combatants) and the extremely narrow circumstances in which torture might be acceptable — whether or not it were permissible under the law (as now it is not). Yet, Andrew argues: “I do not believe that restoring America’s long refusal to torture would ‘shut down intelligence completely,’ as Andy would have it. In fact, I think that argument is absurd.”
I agree that such an argument would be absurd, and I haven’t advanced it – not even close. What I have contended is that giving unlawful enemy combatants in the war on terror the privileges of honorable combatants would shut down intelligence from interrogations — which intelligence is more important in this war than in previous wars. I didn’t say, no full-fledged Geneva protections because you have to be able to torture them — again, like Andrew, I would permit torture only in the direst of emergencies. But you do have to be able to ask them more than name, rank and serial number, which is all they’d be required to tell you if you gave them full-fledged Geneva rights.
There’s a lot of patently permissible, non-forcible interrogation techniques between name, rank and serial number, on the one hand, and plucking out someone’s fingernails, on the other. And the fact that there have been abuses is an execution of policy problem, not a what-should-our-policy-be problem. You deal with poor execution by targeting the culprits for discipline, not changing the law. Rogues are going to be rogues no matter what the rules are; by changing the law, all you do is hamstring the people who honor the rules, including the law against torture and abuse — i.e., you regulate only the people you needn’t have worried about in the first place.