From a reader, long but thoughtful and informative:
I am opposed to torture under all circumstances, and there should be laws against it. Those who break them, should be punished.
As a former Army Counterintelligence Agent, I conducted battlefield interrogations of enemy prisoners of war as well as strategic debriefings of higher value targets, and Iโve served in bad places where bad things will happen if you donโt get the information.
On more than one occasion, I had discussions with some of our operators regarding the obtaining of information in the ticking bomb scenario. Our discussion ran along the lines of โItโs against the law. Itโs against the UCMJ. Weโd go to jail. But if we knew the bomb was ticking, and this guy had the information that could save dozens or hundreds or more people, or if the team (the operators and the unit) were going to be wiped out if we didnโt get it, Iโd whip out a hatchet and an entrenching tool and go to work on him.โ
We were comfortable with this fairly horrible ambiguity and the bad consequences that would accompany it only because the military ethos was to sacrifice ourselves for others, and the notion of incurring legal jeopardy to save others struck us as a righteous cause, but it had to be predicated on the necessity of the ticking bomb. We did not want torture legalized. We did not want a guide book. We were fine with the notion weโd be punished had we ever used it โ we never got into the neighborhood, much less seriously considering using it on anybody, BTW, we were just prepared to do what we had to do because it occurred to use that we could be in that position. There are some things that are too horrible to give a moral and legal imprimatur to, and torture is one of them, just as the law doesnโt permit cannibalism but wonโt convict shipwrecked sailors and air crashed rugby players for engaging in it. We know these taboo and downright wrong practices sometimes rear their heads for good reason, but they are animalistic behaviors that come from a bestial place in the human soul, and no civilized society can long withstand a handshake deal with such beasts. Better to keep them caged.
The real problem with the current debate is the defining of torture downwards. I donโt know that there are many out there in prisoner handling positions that object to the continuing existence of prohibitions on actual torture. I do know, for a fact, that the defining of keeping people awake for 16 hours as torture, or the turning on of the air conditioner, is being received as a horrifying witch hunting exercise which cramps legitimate coercive interrogation techniques. This cramps the debate โ on one side, Amnesty and others interpret Geneva literally, and wonder why we arenโt giving scientific equipment and sporting goods (like baseball bats and hunting knives, perhaps?) to AQ detainees, and calling it torture; at the same time, they are floating an anti-torture bill which will ban whatโฆ the denial of baseball bats, hunting knives, and biological lab equipment to AQ detainees? The terms of the debate arenโt even properly defined, such is the din. (An aside: The Geneva Conventions prohibit torture, and any form of โcoercion.โ Customary and traditional interpretations of international law are binding, insofar as any vaguely written treaty with noble intentions can provide a useful legal standard. The customary and traditional interpretation of the โno coercionโ clause is that it refers to actual torture, that you can say really really mean things to people and make them a bit physically uncomfortable, if thatโs what it takes to get useful tactical information from them. Our NATO allies all follow this doctrine; the Warsaw Pact followed a much looser version of it).
Ultimately, when you get past the advocates (many of whom can no longer be taken as Serious People) the entire debate raises the dilemma that Francis Ford Coppolaโs Colonel Kurtz raises โ you might perhaps think you need eminently moral men, capable of doing bad and immoral things, to win a war against beastly people. The problem with employing beastly methods, is that there is a moral hazard to them which corrupts, driving us either to immorality (as routine sin destroys the conscience) or to madness (much like Hitler raised mass murder to science, an insane development). I believe the role of law and societal taboo in this arena is to attach a cost to torture that makes it prohibitive, except in extremis. As Prof. Yoo noted in his memo, should somebody use torture, they had better avail themselves of the โdefense of othersโ affirmative defense. This affirmative defense does not waive the law โ it acknowledges a law was broken, and forces to defendant to prove that the breach of the law was justified. This is probably as close to a โreasonableโ balance as you will ever have in this situation. As for the workaday situations at the Gitmos, Abu Ghraibs and other places where the vast majority of low priority detainees are kept, we shouldnโt even get close to a torture situation, the moral hazard is too great. More importantly, we are in a war of ideas and we cannot afford to lose the moral and practical high ground. Our argument is that the pluralistic and tolerant western way of life is superior to the theocratic police state proposed by the New Caliphs. We cannot plausibly claim to have a better way of life to offer to Arabs and Muslims, if we are indistinguishable from the enemy. In the long run, this approach may cost us some lives, and I hate that fact, but I believe that it is probably a strategic necessity. Best to keep torture streng verboten, subject to societal approbation, and off limits, and if the operators feel itโs necessary, well, they engage in it at their own risk. Itโs not fair, and itโs hypocritical, but I donโt see any other way to preserve our social institutions and our general moral standing and fiber from the rot that would be caused by an intricate mechanism for sanctioning torture. Iโm getting a whiff of Foucault here, for some reason.
These are solely my personal opinions of course and not for quoting or attribution, but feel free to paraphrase me if you wish.






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