Patterico's Pontifications

11/17/2007

A Response to Armed Liberal on Waterboarding

Filed under: General — Patterico @ 1:05 pm



I said I was going to move away from waterboarding hypotheticals and on to reality, but Armed Liberal’s response to me has one foot firmly planted in the world of philosophical discussions about morality. I’ll try to respond to him while firmly keeping in mind the realities we face.

I find Armed Liberal’s answer particularly interesting because he answers my original KSM hypothetical “no.” (I won’t repeat the hypothetical, but if you haven’t read it, please click the link before reading further.) Armed Liberal gives his answer without the smug self-righteousness shown by some others. And nobody can question his devotion to addressing the problem of terrorism. So his “no” answer is one that carries credibility, and deserves a serious response.

Armed Liberal says:

Let me take his hypothetical a step further, and suggest that it shouldn’t be too hard to build a helmet that could be put on someone’s head, not damaging the skin, that would – when turned on – induce incredible levels of fear – or pain – inductively, acting directly in the brain. And, having switched it off, leave the person wearing the helmet unscathed except from whatever physiological reactions they had to the perception of pain or fear.

Armed Liberal says that we should not employ a technology like that if we could. Why? He says:

First, and foremost, because – as I’ve noted – using something like this moves us into the realm of being a fear-based society; one that rules on might and terror. The corrosive impact of that stance is what drives this, and on some level it’s the violation of the integrity of the person by depriving them of all their power over themselves, and by – I’m not finding the right description, but somehow erasing the integrity of their ‘self’. Prison doesn’t do that; even Joe Arpaio – who keeps his prisoners in tents, offers them no recreation and dresses them in pink – does not violate their integrity in the ways that I’m describing – they still make choices, have some responsibility as to their behavior.

Armed Liberal’s objection to torture appears rooted in the violence it does to the concepts of personal integrity and responsibility — not simply the notion that it creates a society that rules in part by “fear” or “might.” After all, some degree of fear and might are necessary to the operation of government. The threat and reality of prison — which Armed Liberal accepts as necessary — is nothing more than a way to keep criminal elements in check through fear (of going to prison) and “might” (if fear isn’t enough to keep you from committing crimes, we’ll lock you up).

In his next passage, Armed Liberal makes it clearer that his objection is to the idea that torture removes personal integrity:

Bluntly, I’d rat[h]er shoot someone than torture them harmlessly. I believe it’s more moral; I’m violating their ‘person-ness’ less through an act of outright violence than through one that seeks to break their ownership of themselves in the ways that torture does.

And on a basic level, you can’t have a free society in which people don’t have that sense of personal integrity – that sense that they ‘own’ their own behavior and person. Once you violate that and make it clear that someone – the state – owns you, the nature of the political relationship is irrevocably changed.

I am not aware of any truly effective truth serum. But what if there were? Would administering a truth serum to a suspected terrorist be an act that breaks the terrorist’s ownership of themselves? Would it be an act that makes it clear that the state owns them?

Would Armed Liberal oppose administering an effective truth serum to a terrorist?

Or, to put it in terms of Armed Liberal’s hypothetical, what if the helmet didn’t cause pain, but just told us if the terrorist was lying? Or, more coercively, made him tell the truth?

Or, for Harry Potter fans, would administering Veritaserum to Mad Eye Moody be the sort of act we could never condone in our society?

Let’s bring this into the realm of the real world. My understanding of the efficacy of a truth serum is in the subject’s belief that he can’t tell a lie. So what about administering sodium thiopental to a terrorist and telling him that it’s a 100% effective truth serum? Could we condone that under Armed Liberal’s view?

Note that, even in the law enforcement context, courts often sanction interrogation techniques designed to fool the subject into thinking the government knows more than the suspect realizes — including when he is telling the truth and when he is lying. Police may employ trickery and deceit in interrogating a suspect, as long as they don’t do anything that would make an innocent suspect confess.

As an aside: this is the main problem I have with waterboarding and other forms of torture: it’s a technique that does often cause people to confess when they are innocent, or to give up details — any details, whether or not they are true — just to make it stop. As I have discussed here before, a threat to one’s family was enough to get Abdallah Higazy to “confess” to owning a radio he didn’t own.

That’s a problem.

But the more certainty you have that the person in question is a terrorist, and the more “checkable” his information, the less I worry about these particular aspects of coercive interrogation on a moral level. (Legal issues are a different matter.) Once you achieve near 100% certainty that the fellow you have is indeed a high-level terrorist, the “reliability” issue becomes merely a matter of whether he is going to tell you the truth. And I don’t think that the chance he could lie to you is a good enough reason, by itself, to forego a form of interrogation that you have otherwise determined is justified under the circumstances. How can the morality of waterboarding lie completely within the power of decisions made by Khalid Sheikh Mohammed to lie or tell the truth? That makes no logical sense to me.

It’s quite a different matter when you have someone as to whom you are less certain, like, say Adballah Higazy — or countless other people we have in our custody. Which is why I have said, as a general matter, that we should not permit torture.

Getting back to the main subject, Armed Liberal makes a related but slightly different argument, in quoting a commenter as saying:

Does ‘our way of life’ better survive the deaths of thousands of innocents, or ‘the adoption of a new social order which includes torture as a legitimate tool of our government’. I would argue the former less damaging.

Many have made this argument. I am used to seeing it made with an intolerable degree of smugness — e.g. John Cole commenters who say in all sincerity that I am a greater enemy to America than the planners of 9/11, because I am a “torture apologist” (actually as you can see, I’m not), and therefore I am working to undermine our whole way of life. But the fact that many make the argument with insufferable self-righteousness doesn’t automatically make it an invalid argument. And Armed Liberal and his commenter express it in a very well-stated and non-smug way.

To me, this is a judgment call. Many people make the exact same argument about capital punishment: that empowering government to take a human life degrades our society and brings us one step closer to savagery. Armed Liberal tells me in an e-mail that he supports capital punishment. So really, this is just a question of where you draw the line. I won’t mock the people who make the argument, but for me — as a purely theoretical manner — I can’t say that society would be destroyed by 2 1/2 minutes of waterboarding similar to the waterboarding that this journalist voluntarily underwent, just for a story.

My bottom line is this: I don’t have a huge moral problem with limited waterboarding in extreme circumstances. I have several practical problems with it.

It’s somewhat similar, in fact, to my feelings on capital punishment. As a moral matter, I think the death penalty is the correct penalty, morally, for the worst murderers. As a practical matter, because so many innocent people end up on Death Row (a problem I discussed at length in this post), I have serious concerns about how it is practiced in much of the country, and I would like to see much stricter limitations placed on its exercise.

That’s not completely how I feel about waterboarding, but it’s pretty close.

I’ll leave the matter there, as I think Armed Liberal will have more to say about this.

71 Responses to “A Response to Armed Liberal on Waterboarding”

  1. First, and foremost, because – as I’ve noted – using something like this moves us into the realm of being a fear-based society; one that rules on might and terror.

    So basically his argument is that the act is too corrosive to our society to be used, period.

    I don’t buy that. Bombs and bullets tear people’s arms or legs to rags, or burn off their faces, or slice their stomachs open, and I don’t see Armed Liberal saying that war is so corrosive an act to a society that he cannot countenance going to war, ever, or that we have to instantaneously kill our enemies to avoid causing horribly corrosive (to our society) pain.

    Since that seems to be his standard – if it makes it so the State “owns” your humanity – then how can you possibly support having any kind of military at all, which I assume he does? The State gives the military sanction to put our enemies through unimaginable pain and torment via combat.

    It’s okay for our government to, if needed, tear people who are trying to hurt our nation to shreds with bombs, but it’s not okay to waterboard them. Yeah, that makes sense.

    chaos (9c54c6)

  2. chaos,

    What about the draft?

    Nothing says “the government owns you” like the draft.

    Patterico (2cb96b)

  3. The point about the draft is probably worth its own post. I’ll do one later.

    Patterico (6f5a4e)

  4. The State is the apparatus through which the People govern themselves. Or at least that’s the way it should be. If a majority supports the draft in peacetime, fine. If it’s a major war, fine. Otherwise, no. If the People don’t accept compulsory service to defend the State, the shield between them and other States, then that particular State probably doesn’t deserve to continue existing.

    I don’t think the draft says “the government owns you.” I think it says that you have an obligation to defend your society if necessary whether you like it or not. The State – and this is probably the only area the State is more efficient than the free market, because of patriotism – is just the most efficient way to marshal the entirety of a society’s resources – that includes bodies – for war.

    The French enacted the levee en masse because most of the armies of Europe were about to come down on them and smother France. Governments saw how effective it was at raising huge armies not just once, but even after the defeat of previous armies. The States of Europe – and the Peoples too – couldn’t afford to put themselves at such a huge disadvantage that not having a draft would create. That situation largely ended with Vietnam, at least for Western countries.

    Drafts are created by necessity, at least in free societies. If kept too long after the need ends, they cause more trouble through unrest of the populace than they’re worth.

    chaos (9c54c6)

  5. In WWII, military troops on both sides frequently shot wounded or dangerous enemies because it was too complicated to care for, detain or interrogate them. We can always go back to that if AL wants. The deterrence value of swift action might be very valuable in fighting the war on terror but it doesn’t strike me as more moral.

    DRJ (42ad54)

  6. I think part of Armed Liberal’s response and comments supporting his post stem from the basic liberal approach of trying to manage the war against terror using a criminal law approach as opposed to the laws of war. Liberals immediatedly wanted to understand the root causes of radical Islam’s grievances against the West, assuming the West was the guilty party, rather than violence being a fundamental part of the ideology we are facing. With that outlook, it’s no wonder many liberals view terrorism as acts of civil disobedience with a little extra spice thrown in. Just look at how many of them have become apologists for Hamas and Hezbollah while conveniently ignoring continual unprovoked rocket attacks on innocent Israeli civilians.

    In my mind, international terrorists, as opposed to domestic, are not members of our society and have deliberately chosen to operate outside the norms of society. In the current conflicts they violate the laws of war in ways too numerous to list and have forfeited the right to have their personal integrity respected. Armed Liberal’s argument to respect their personhood again results from the misapplication of a criminal law approach to a military situation. Detainees following the rules of war are classified differently under the Geneva Conventions and we should treat them differently. Nevertheless, the issues over the lack of perfect information argue for a very limited use of coercive interrogation techniques.

    Domestic terrorists are another matter. If they are citizens, they should fall under our existing laws. Non-citizens, if it is possible to classify them as illegal enemy combatants, deserve no special rights.

    daleyrocks (906622)

  7. many liberals view terrorism as acts of civil disobedience with a little extra spice thrown in

    Well put.

    m (b97a54)

  8. basic liberal approach of trying to manage the war against terror using a criminal law approach as opposed to the laws of war.

    Yes, but to complicate this even further (if possible), one of the arguments by those on the Right (I include myself) has been that we have rights not because government gives them to us but because we are human. “We are endowed….” et cetera.

    Government was constituted to protect those rights; not give them to us. Whether one wants to use Natural Rights or some other description, the conservative argument has always been that we are born with these fundamental freedoms because if government can give them to us today, then they can take them away tomorrow.

    Do terrorists have any Natural Rights? I’m not talking about Geneva Conventions or positive laws; I’m talking about rights qua rights?

    SMG

    SteveMG (553abe)

  9. So you won’t, but I will mock and condemn those who argue we’re worse off as a society if we torture a terrorist who has information we need to save innocent lives than if we stand by and do nothing while our friends and family are killed.

    A society owes nothing – absolutely nothing – to those trying to destroy it and anyone who would rather see their neighbors die in an attack than take the necessary steps to keep that attack from happening because they don’t want to ‘violate the integrity of the person‘ is (insert pejorative here). No matter how much lipstick they put on their arguments against torturing terrorists, the ‘person’ whose ‘integrity’ they are so set on preserving is a lowlife terrorist, and picking the well-being of a terrorist over the rest of us… well, if that isn’t something and someone to mock, what is?

    stevesturm (d3e296)

  10. We deprive people from enjoying their rights if they commit crimes. We fine them, we don’t let them drive, we tell them to stay a certain distance away from certain people and places, we test them for drug and alcohol use, we put them under house arrest, we throw them in jail, we execute them.

    Violate the law = lose some freedom. Anyone here that disagrees with that? No? Good.

    Are there crimes so heinous that the perpetrators should be stripped of their natural rights? I’d say yes. We call people “monsters” all the time. Hitler. Pol Pot. Stalin. Osama. We recognize that there are people who reject the common humanity of all people.

    You may say that by not treating them as if they have natural rights we become what they are, that it is rejecting their humanity. I say, they’re the ones that rejected it, and we have no obligation to recognize the humanity of someone who won’t recognize it himself.

    chaos (9c54c6)

  11. Bluntly, I’d rat[h]er shoot someone than torture them harmlessly. I believe it’s more moral; I’m violating their ‘person-ness’ less through an act of outright violence than through one that seeks to break their ownership of themselves in the ways that torture does.

    Ah yes, akin to the pregnant mother-to-be who would rather abort than give her child up for adoption or subject it to some other unspecified calamity.

    Likewise, as for its corrosive effects on society, I wonder how many Andy Sullivan anti-waterboarders support jamming the sharp point of a pair of scissors into the skull of a living, unborn child and vacuuming out the brain cells. Talk about violating “personness” — meh.

    capitano (03e5ec)

  12. We deprive people from enjoying their rights if they commit crimes

    Yes, but we don’t take away all of their rights.

    And we only do so after they have been found guilty of a crime. Trials that also carry with them certain rights.

    It seems to me that if one argues from a natural rights viewpoint that you have to extend these rights even to KSM.

    These are just enormously difficult ethical and moral questions.

    How does one handle an adversary that completely ignores all norms of civilized societies? If you treat them as criminals, the process potentially (and realistically) enables them to harm you further. If you don’t extend rights to them, you debase yourself and possibly run the risk of allowing the government to use those powers against you.

    SMG

    SteveMG (553abe)

  13. Yes, but we don’t take away all of their rights.

    We take away rights proportional to the severity of the crime committed.

    Terrorism, especially with the genocidal intent al-Qaeda has concerning Jews and stuff, is pretty high up on my list of severe crimes.

    And we only do so after they have been found guilty of a crime. Trials that also carry with them certain rights.

    We’re allowed to interrogate them.

    If you want to argue that a war criminal should have all the legal rights after arrest that an American citizen does, feel free to go ahead and not convince me.

    It seems to me that if one argues from a natural rights viewpoint that you have to extend these rights even to KSM.

    I don’t see how affording rights to those who reject the existence of those rights at all is reasonable.

    How does one handle an adversary that completely ignores all norms of civilized societies?

    Killing them seems to work pretty well.

    chaos (9c54c6)

  14. #5 In WWII, military troops on both sides frequently shot wounded or dangerous enemies because it was too complicated to care for, detain or interrogate them. We can always go back to that if AL wants.

    My G.I. father-in-law told of several incidents where the Army turned captured Nazis over to the Polish troops who were to march the prisoners to detention centers. The Poles usually returned empty-handed and much earlier than it would require to march round trip; apparently they had lots of scores to settle.

    capitano (03e5ec)

  15. What is not being addressed in any of this is the desire to torture and kill.

    David Ehrenstein (5411c5)

  16. And what are you going to say to a man who has just done that, after what those Germans did to his country? Are you going to tell him he was wrong? First off, it might be a little hazardous to your health, and second, I’m not sure I’d have the moral authority to do that to those Poles. Who am I to know or pass judgment on what they had gone through?

    chaos (9c54c6)

  17. Patterico,

    I should probably give credit where it’s due. While I still don’t agree with the guts of your position, it’s more well-balanced than it appeared from your hypothetical.

    And yeah, I know it was always billed as a hypothetical, but many people use hypotheticals as, basically, trojan horses to extend the baseline of their point of view, with deniability.

    Your real opinions are apparently not directly deducible from your hypos. Well.. good.

    Nevertheless, until it becomes clear that it’s impossible to prevent regular acts of terrorism without this kind of thing, I’m never going to be convinced that your judgement call is the right one. Frankly, whether or not you can make KSM spill his guts in any one particular plot, the experiences of countries like Egypt show that brutality- mild or severe – will not be a ticket to a terror-free society.

    glasnost (b7ddae)

  18. I think part of Armed Liberal’s response and comments supporting his post stem from the basic liberal approach of trying to manage the war against terror using a criminal law approach as opposed to the laws of war. Liberals immediatedly wanted to understand the root causes of radical Islam’s grievances against the West, assuming the West was the guilty party […]

    Wait, please back up. I’ve heard this line numerous times, and I’ve never understood the reasoning. How can it be that all of the following are true:

    – Group X wants to treat group Y as a criminal justice problem.
    – Group X does so, because, presumably the actions of group Y harm group X’s interests.
    – Group X does so by treating group Y as criminals, and incarcerates them, or executes them, or whatever, via standard criminal procedure.
    – Group X does so because they believe group Y has a legitimate claim to victimhood of some sort.

    ???

    Either my college logic classes were deficient, or one or more of those statements must be false.

    One can argue that military responses to small groups of violent people are appropriate, but the explanation as to why people who think that criminal procedure and intelligence are better responses just seems invalid.

    And,

    Domestic terrorists are another matter. If they are citizens, they should fall under our existing laws. Non-citizens, if it is possible to classify them as illegal enemy combatants, deserve no special rights.

    So an abortion clinic bomber or an violent animal rights nut who was born here or naturalized should be entitled to more procedural protection than one who wasn’t?

    I think that’s where I find the disconnect. I still believe in that antiquated stuff someone once wrote that begins, “We believe that all men…”

    I do believe in equality under law, and equality under law that doesn’t have escape hatches for saying “but not for them.” Let’s not forget that unpopular people who were supposed to have supernatural powers have been burned to death because they weren’t One of Us. I can’t find the material at the moment, but special dispensation was made for extra-legal “investigation”, which tended to involve things like simulated drowning, pressing under the stone (modern refinements seem to involve sleeping bags), stress positions like scold’s bridles, and plain old beatings. I think we can all agree that that didn’t go so well, if you assume the goal was to discover real witches and stop them from harming the community.

    fishbane (1f2790)

  19. SteveMG, I do think that human beings have rights that governments should recognize and not grant. (I also think that these rights come from God, but that’s irrelevant.)

    This is the basis of all my pro-life positions: if I thought that innocent and defenseless human beings had no moral rights other than those the state created for them, I would have no moral basis to object to … pretty much anything, if judges gave it the OK.

    Two questions: one, is it possible to forfeit these rights? Two, is it possible to suspend them?

    I don’t think it’s possible to forfeit your right to be treated like a human being. I don’t think it’s possible to behave in a way that means that forever after, no matter what you do, you are nothing but a lab rat or a source of spare organs or whatever. I don’t think it’s morally possible to sell yourself into slavery.

    I think it is possible to suspend your right to be treated like a human being. In other words, I think it’s possible to behave in a way that puts any human rights you may have in abeyance for at least a while. For example, nobody was obliged to worry about the human rights of Richard Reid (also known as Abdul Raheem and as the shoe bomber) while he tried to blow up the plane he was on. But, assuming nobody kills you during that while, it would be possible to behave later in a way that gives your human rights application again.

    This is the difference between plantation slavery and slavery with a safe-word, in other words it’s not a merely technical distinction, its radical.

    It’s debatable if jihadists are embarked on a course so bad that it suspends their human rights.

    So I don’t think that what the jihadists are entitled to is the most secure basis on which to argue that we ought not to mistreat them.

    I think it’s better to argue on the basis of what actions befit us, as civilized human beings, and with reference to the solidarity to we ought to have with each other. These things apply all the time.

    David Blue (be0fd0)

  20. Either my college logic classes were deficient, or one or more of those statements must be false.

    Why? Think Tookie Williams.

    Pablo (99243e)

  21. Why? Think Tookie Williams.

    That doesn’t help your point.

    Williams was a thug that was put in jail and executed. That some rubes bought his rehabilitation schtick is just human nature (heck, some rubes still think we invaded Iraq because of bin Laden). And then what happened? … he paid for crimes of which he was convicted by a jury of his peers. You know, by the criminal justice system, in a state derided for being absurdly liberal. And if you want to concentrate on those rubes (no, not the 27%ers, the rubes that bought William’s scam), note that they all vote, go to whatever they do for a living, and generally participate in society. They didn’t get him amnesty (and AFAIKT, a bunch of them were simply anti-death penalty, not arguing that any rehab was reason to release him), but they accepted the criminal justice system’s function. As far as I know, nobody was half-drowned, burned or pressed for the system to work.

    So, again, what, exactly is the logic?

    fishbane (1f2790)

  22. David:
    Thanks for addressing my quandry. Which again was: If our rights are not given to us by government but are inherent in our being, then we must acknowledge that even terrorists have rights.

    The state cannot take away these rights because they aren’t given by the state. We are born with them.

    If one doesn’t believe in Natural Rights, then obviously we aren’t required to extend these to terrorists.

    Or anyone else.

    “Two questions: one, is it possible to forfeit these rights? Two, is it possible to suspend them?”

    I would say, “Yes” and “Yes” provided that there is a process where those rights are taken away.

    Or, as a way out of my philosophical cul-de-sac, one could argue (as Patterico has in his hypo) that in exigent circumstances that even natural rights may be suspended or withheld.

    Now, all we need to do is define exigent circumstances.

    SMG

    SteveMG (553abe)

  23. That some rubes bought his rehabilitation schtick is just human nature (heck, some rubes still think we invaded Iraq because of bin Laden).

    Let’s try this with emphasis.

    Group X does so because they believe group Y has a legitimate claim to victimhood of some sort.

    That they’re wrong doesn’t change the fact that they believe it. And the logic goes something to the effect that he was really a great guy and it was only the racist man keeping him down that made him a murderous thug, who just needs Group X’s special brand of rehabilitation.

    Pablo (99243e)

  24. The state cannot take away these rights because they aren’t given by the state. We are born with them.

    If these rights are really ours, then we can do what we wish with them. We can consent to waive our rights if we wish. Consent to a search without a warrant, for example.

    I don’t see how waterboarding denies anyone any of their natural rights, but let’s assume it does.

    You have a man in your custody. He is a war criminal. He believes in an ideology where the only rights are the ones God says are okay, and He doesn’t think people should have too many. In other words, he thinks “natural rights” are a bunch of crap. He expresses this ideology by hiding amongst the innocent people he plans to kill. There is no doubt that he knows of attacks that haven’t been attempted yet but the plots are moving forward. You waterboard him. He gives up information that stops some plots. On the grand scale of things, is your waterboarding him for 150 seconds worse than his being responsible for the deprivation of the ultimate “natural right” to hundreds or thousands of innocents and his knowledge of continued attempts to do more?

    I just can’t get my head around the idea that two and a half minutes of waterboarding on Khalid Shaikh Mohammed is something so reprehensible that would inspire so much shrill emotion. Whatever, you have fun with that.

    chaos (9c54c6)

  25. That they’re wrong doesn’t change the fact that they believe it. And the logic goes something to the effect that he was really a great guy and it was only the racist man keeping him down that made him a murderous thug, who just needs Group X’s special brand of rehabilitation.

    You’re missing the part about the supporting the legal system and the legal wrangling. It worked. The rubes didn’t desire to go extralegal, as some are encouraging here. So the logic issue remains: protesting, even wrong-headed protesting, while supporting the fundamental result is consistent. Insisting that some people (you know, those liberals, over there, somewhere) really want to accommodate killers sounds like… well, sounds a more than a little like Ramesh Ponnuru, who is making a career talking about how They Hate Us For The Homos.

    Not to mention that enlisting Tookie as a reason to support torture makes about as much sense as enlisting motor oil to support ice cream. But, hey, probably someone out there likes the combination, and can be used to support the notion that motor oil sundaes are threatening our children, so we need to support waterboarding for oil execs.

    fishbane (1f2790)

  26. Just to keep things on the square, consider Stan Brubaker’s argument in the Weekly Standard that a “first clause dominant” reading of the Fourth Amendment is appropriate because it preserves (for all concerned) the “robust issue of reasonableness.” Granted, torture is a different issue than search and seizure, but it still is concerned with the acquisition of information by the government. I think what Patterico is saying is that the argument concerning torture has a tendency to drift in the direction of absolutes, and Stan’s cogent logic suggests that this isn’t necessarily constitutionally or ethically sound.

    Demosophist (070129)

  27. I just can’t get my head around the idea that two and a half minutes of waterboarding on Khalid Shaikh Mohammed is something so reprehensible that would inspire so much shrill emotion.

    Either you believe that some truths are self evident, or you don’t. I’m not going to convince you on that front. But don’t pretend that hundreds of years of human history finds controlled drowning repellent, that the notion that it must be humane, because even though it will make a person so miserable that he’ll babble anything, true or not, because it doesn’t leave physical marks, or that extralegal exegeses don’t trickle down, leading us to the routine use of the practice. It has happened over and over again throughout history, and we’ve plenty of evidence to suggest it happened here. Or do you want to argue that mistakes were made by a few bad apples, but it will really, totally, not happen again?

    fishbane (1f2790)

  28. I’m violating their ‘person-ness’ less through an act of outright violence than through one that seeks to break their ownership of themselves in the ways that torture does.

    I guess I don’t get this. The “act of outright violence” is to kill them, right? Like, all dead, not just “mostly dead”? How is that less than anything that leaves them alive? With no permanent physical damage? Sorry, this sounds like so much sophistry. If killing someone is not the ultimate act of depriving that person of “ownership of themselves”(whatever that means), then I guess we live in different universes.

    they still make choices, have some responsibility as to their behavior.

    And I guess I don’t get why it’s ok to deprive someone of the choice of whether to sleep in their own bed, of what to have for dinner, etc., but depriving them of the choice of whether to lie or not, that’s beyond the pale.

    Linus (fb8167)

  29. David Blue #17,

    I generally agree with you. My next step is that, when the government captures someone who it considers *especially* dangerous or knowledgeable about terrorist threats, I (unlike Katherine and Armed Liberal) am willing to give it the authority to take measures like waterboarding to protect innocent citizens.

    It’s certainly possible that someone in the government will make a mistake or misuse that power. I’d rather take my chance with the government than with the threat posed by terrorists, but I’m sure many people on the other side of this issue feel the threat from government is a greater threat. From my largely pragmatic viewpoint, the bottom line is we’re always trying to find a good balance between those two views. But saying we will never use techniques like waterboarding is as ludicrous to me as saying we will torture everyone we catch.

    DRJ (42ad54)

  30. I apologize, I commented before reading AL’s full original post. But after reading it, I have another question. AL said:

    And to an extent, that – more than anything is the point I’m trying to make. Not treating KSM with kid gloves isn’t torture. Reacting to abuse or bad behavior from him – even sometimes violence – isn’t torture.

    Calmly sitting him down and saying you’ll put him into excruciating pain unless he talks to you is. Because you are denying him his ownership of himself, in some moral way.

    What about calmly sitting him down and saying that you’ll lock him up for the rest of his life unless he talks to you? That, unless he talks to you, he’ll never see the sun again? I know pain is a bad thing, but why is it a special class of bad thing? Telling him exactly which room he’ll occupy for every second of the rest of his life doesn’t “deny him his ownership of himself”?

    Linus (fb8167)

  31. You’re missing the part about the supporting the legal system and the legal wrangling. It worked. The rubes didn’t desire to go extralegal, as some are encouraging here.

    I didn’t hear any suggestion that he be set free, or that his conviction thrown out. But there was plenty about him being a victim.

    Pablo (99243e)

  32. My problem with AL’s reasoning is the notion that what we do to our enemies, in the course of war, will necessarily flow into our society. I see no evidence of this, or any likelihood of this occurring due to the actions of a few spooks and their treatment of dirtbags like KSM. We’ve been doing all sorts of black ops, some of which we’ll likely never know about, for decades. And society has not collapsed into a wretched police state.

    Our enemies should fear us, and waterboarding should be pretty low on the things they’re afraid of.

    Pablo (99243e)

  33. Armed Liberal is equating torture or “agressive interrogation” of a person that “erases the integrity of their ’self’”… to a deliberate and controlled rape.

    How morally or practically justified people think it is to allow the rape of another person seems to hinge a lot on how certain they are of who they have captured and what they can get out of that person.

    Some of the commenters above keep referring to “terrorists” that have given up their rights and all the things we should be allowed to do to “terrorists”. They keep talking about “terrorists” as if we KNOW who the terrorists are.

    The problem is that most of the time we don’t know who the terrorists are. If we knew who they all were we could destroyed their ability to fight in a couple of years. In reality the bad guys look and dress and act like the people who just want to be left the hell alone.

    It seems to me that treating terrorists like criminals (which they literally often are, adding extortion and kidnapping to the crimes committed for the “cause”) is a practical matter, not some fault of idealogy. It stems from uncertainty and wanting to nail the real bad guy instead of some good person’s loud mouthed teenage son who hadn’t done anything but be a loudmouth.

    That is why I thought that although the hypotheticals were all interesting, the most realistic hypos would have include uncertainty as a feature.

    It’s at least partly that uncertainty that causes people to carefully question (as Patterico does above) what should and should not be allowed in interrogation and under what circumstances.

    EdWood (ff48e0)

  34. EdWood,

    Granted there are hundreds if not thousands of people who may or may not be terrorists but who fall under government scrutiny. However, surely by this point we have identified people that we know are terrorists (people like KSM). Those are the people who should be subject to special interrogation techniques.

    DRJ (42ad54)

  35. Ed Wood,

    That is why I thought that although the hypotheticals were all interesting, the most realistic hypos would have include uncertainty as a feature.

    Of course, there’s very little in life that’s 100% certain. But uncertainty can be mitigated, often to a large degree. I have the same problem you refer to with the death penalty. The idea that we might execute an innocent man is abhorrent. But with that said, we can and should get beyond all but the most unreasonable of doubts in many instances. I think we did that with KSM. We knew who and what he was.

    Pablo (99243e)

  36. DRJ,
    I was in the yes it was worth it group for Patterico’s hypo. I agree with you that we are going to waterboard and do other things to people if neccesity dictates. And there are peole that we know are terrorists. Even with those people I think many people’s desire to submit these prisoners to “enhanced interrogation” would depend on how certain they were that they knew any really valuable information.

    I think a lot of the argument on this issue revolves around the fear that use of “enhanced interrogation” will become policy or de-facto policy if certain techniques are defined out of the realm of “torture”.

    EdWood (ff48e0)

  37. I think we did that with KSM. We knew who and what he was.

    Would you care to speculate about the hundreds of Gitmo detainees being released after years of (as DRJ seemed to imply) good old family-style rearning? How about the hundreds to thousands elsewhere?

    The argument, as far as I can make it out, seems to be:

    – Terrorists are evil, so we can’t take torture off the table, because some wildly unlikely hypothetical might happen.
    – It is good that the government we elected lie to us about the things it is doing to protect us from things we have no way of knowing how likely they are of occurring. (“Look! That D&D player might have a suitcase nuke!”)
    – Given the above, certain people, for certain amounts of uncertainty, are fair game for just about any treatment (just ask Pablo). After all, “we can and should get beyond all but the most unreasonable of doubts in many instances”. Only we can’t know what those amounts or people are, otherwise The Terrorists might be able to plan for it. And since we can’t know because The Terrorists Might Find Out, apparently those making this argument are just fine and dandy with Hillary Clinton shuffling folks of to Sudan or wherever on a nod. Any methods used against them need to be classified, you see. And if mistakes were made, well, those were a few bad apples. She’ll keep us safe, though, so long as you trust your Commander in Chief. And clap loud enough. And the Washington Post should be firebombed if they tell us otherwise.

    Wait, folks here aren’t making those last few points? I thought I had the narrative down.

    fishbane (1f2790)

  38. “The idea that we might execute an innocent man is abhorrent. But with that said, we can and should get beyond all but the most unreasonable of doubts in many instances. I think we did that with KSM. We knew who and what he was.”

    The death penalty example bring in lots of interesting points. Adversarial processes, legal representation, due process, appeals, a neutral arbitrer, oversight, openness.

    whitd (10527e)

  39. Can someone nudge Patterico? He seems stuck on waterboarding.

    Kevin (4890ef)

  40. Fishbane #37,

    You missed my narrative by a long shot because I don’t think waterboarding is torture nor do I know how many times waterboarding or any other coercive technique has been used by the US. Finally, I don’t want the government to lie to me but I accept that government secrets are necessary for national security purposes.

    DRJ (42ad54)

  41. Comment 32 by Pablo: “My problem with AL’s reasoning is the notion that what we do to our enemies, in the course of war, will necessarily flow into our society. I see no evidence of this, or any likelihood of this occurring due to the actions of a few spooks and their treatment of dirtbags like KSM.”

    I’m not inclined to dispute this with Armed Liberal, because we persistently define enemies such as the Saudis as friends.

    If we were treating our enemies as enemies and friends as friends in a way that made sense to me, I could argue with a straight face that treatment we mete out to our enemies should not contaminate how we treat our friends.

    But that’s not the situation we’re looking at. We seem to be deeply confused in our friend vs. foe identification. And there is no indication that we are going to get this sorted out any time soon. (Which to put it very mildly is a shame.)

    David Blue (68f9c6)

  42. Would you care to speculate about the hundreds of Gitmo detainees being released after years of (as DRJ seemed to imply) good old family-style rearning?

    Explain “rearning” to me and I’ll give it a whirl.

    – Given the above, certain people, for certain amounts of uncertainty, are fair game for just about any treatment (just ask Pablo).

    Don’t ask me about that, because that’s not what I said.

    Only we can’t know what those amounts or people are, otherwise The Terrorists might be able to plan for it.

    That observation is patently ridiculous.

    Pablo (99243e)

  43. Thanks for the kind words, Steve, :)

    I asked: “Two questions: one, is it possible to forfeit these rights? Two, is it possible to suspend them?”

    SteveMG: “I would say, “Yes” and “Yes” provided that there is a process where those rights are taken away.

    Or, as a way out of my philosophical cul-de-sac, one could argue (as Patterico has in his hypo) that in exigent circumstances that even natural rights may be suspended or withheld.

    Now, all we need to do is define exigent circumstances.”

    I’m not up to providing such a definition on a lazy Sunday afternoon. :)

    David Blue (68f9c6)

  44. Ed – “I think a lot of the argument on this issue revolves around the fear that use of “enhanced interrogation” will become policy or de-facto policy if certain techniques are defined out of the realm of “torture”.”

    I think you hit it on the head here along with the fear that we will “torture” the wrong people even if we come up with some sort of limiting criteria.

    Fishbane similarly claims that ” or that extralegal exegeses don’t trickle down, leading us to the routine use of the practice. It has happened over and over again throughout history, and we’ve plenty of evidence to suggest it happened here. Fishbane, however, isn’t big on providing examples for his specific claims or broader historic claims, also made by others on these threads.

    With respect to claims of it happening elsewhere, were those countries democracies, dictatorships or some other form of totalitarian government? Has Israel succumbed yet? Did France succumb to these pressures after it’s activities in Algeria? What are the left’s examples?

    daleyrocks (906622)

  45. Re: comment 29 by DRJ: fair enough.

    David Blue (68f9c6)

  46. If we were treating our enemies as enemies and friends as friends in a way that made sense to me, I could argue with a straight face that treatment we mete out to our enemies should not contaminate how we treat our friends.

    I’m not talking about our friends, David. Nor am I talking about realpolitic in foreign policy. I’m talking about our domestic policies and practices.

    Pablo (99243e)

  47. whitd,

    The death penalty example bring in lots of interesting points. Adversarial processes, legal representation, due process, appeals, a neutral arbitrer, oversight, openness.

    All of which derive from Constitutional protections, which we do not afford those with whom we are at war. Otherwise, the Constitution would indeed be a suicide pact. It is not.

    Pablo (99243e)

  48. “All of which derive from Constitutional protections, which we do not afford those with whom we are at war.”

    Of course something in our system of government comes from the constitution. I didn’t mention other things like separation of powers, limitations on punishment, the fourth amendment, etc… Also didn’t mention that some of these aren’t really constitutional protections to afford a person, but rather how our government is structured and makes decisions. Also didn’t mention how others of these features are protections designed for the innocent, not the guilty.

    I just mentioned it because bringing in the death penalty as an example of how uncertainty is mitigated also brings in those features which do that mitigation. Features which are, as you know, quite lacking in the torture context. So the comparison to the death penalty may in fact show what is lacking in the torture situation, not show how to strengthen it.

    whitd (10527e)

  49. A completely different context, whitd, and I think you know that.

    Pablo (99243e)

  50. So the comparison to the death penalty may in fact show what is lacking in the torture situation, not show how to strengthen it.

    Yes, that’s true. Criminal justice is lacking, because it doesn’t belong there. It’s a good thing.

    And it may seem pedantic, but I’ll note that waterboarding isn’t torture, IMO.

    Pablo (99243e)

  51. “A completely different context, whitd, and I think you know that.”

    Exactly. The death penalty context you brought up brings up all the differences in how we mitigate uncertainties between the two completely different contexts.

    whitd (10527e)

  52. I don’t need to be told about self-evident truths SteveMG.

    I don’t think your position is supported by any.

    If we accept that you can’t be stripped of your natural rights even if you personally reject the concept in its entirety, then waterboarding in my opinion doesn’t violate your natural rights. Torture has been defined down so far that now sleep deprivation and playing the Red Hot Chili Peppers real loud is considered “torture” by some. In that regard I would be much more concerned about putting people in solitary confinement with no human contact for 23 and a half hours a day, which beyond a shadow of a doubt makes plenty of people go insane. We do that to American citizens at that ADX Florence super super max prison in Colorado. Just where does the line get drawn? Are you not allowed to cause the prisoner any discomfort whatsoever in an interrogation? Are their natural rights so important that they should be treated with a level of softness that most Americans who find themselves behind bars don’t receive?

    I just don’t get all this bitching. We’ve shown, by any standard of comparison, great restraint in using waterboarding. I highly doubt that we’ve waterboarded more than a few hundred people, when there are tens of thousands in our custody we could be doing this to. What we could be doing to them, what we have done in the past, what others have done in the past that is just so much worse, I look at that, and then I look at Khalid Shaikh Mohammed, war criminal, mass murderer, anti-semite, xenophobic misogynist genocidal theocratic fascist nut, who had information about future planned mass murders that we got out of him with waterboarding.

    What he deserves is to face a firing squad. Instead he’ll probably either live out his natural life in some cell somewhere, or live at least another decade before we execute him while his victims lie mouldering in their graves.

    The government’s duty to protect the lives of its citizens is paramount of those duties. “Provide for the common defence” appears head of “secure the Blessings of Liberty” in the Preamble to the Constitution. I don’t think you’d find any of the writers of that document who would say that two and a half minutes of waterboarding of a non-citizen war criminal is a grand travesty. They would undoubtedly be shocked by it, yes, as undoubtedly as they would be shocked by plenty of things in this country.

    And did the interrogation of KSM provide good intelligence or not?

    chaos (9c54c6)

  53. The death penalty context you brought up brings up all the differences in how we mitigate uncertainties between the two completely different contexts.

    Actually, it brings up the similarities. The differences are irrelevant because they simply don’t apply to the context of war. We don’t have to prove anything about an enemy prisoner before interrogating him, enhanced techniques or not, nor should we. That’s not the case with punishing a citizen accused of a crime, nor should it be. Apples and oranges, whitd. One is a legal process, the other is war.

    Pablo (99243e)

  54. The pain helmet might be less hypothetical than you’d think.

    no time to write more at the moment.

    joe (c0e4f8)

  55. “The differences are irrelevant because they simply don’t apply to the context of war.”

    The fact that its a different context is why they don’t apply. Some of them, at least. But they’re still differences and they show different ways of mitigating uncertainty.

    “We don’t have to prove anything about an enemy prisoner before interrogating him, enhanced techniques or not, nor should we.”

    Don’t we have to at least determine that they in fact are not a civilian or a lawful combatant? Or that the other legal regimes don’t apply (say, to an enemy that is an american captured in a chicago airport)?

    whitd (10527e)

  56. But they’re still differences and they show different ways of mitigating uncertainty.

    I don’t see what your point is here.

    Don’t we have to at least determine that they in fact are not a civilian or a lawful combatant?

    Determine, yes. Prove, no.

    Pablo (99243e)

  57. Fishbane, however, isn’t big on providing examples for his specific claims or broader historic claims, also made by others on these threads.

    Absence of evidence is not evidence of absence, and someone without an agenda can easily find it. Try Ireland, for starters. Or Texas.

    The game of go fetch examples so I can pick nits is boring, so I’m going to stop there (although you may have a point about Texas not being a democracy). Anyone with an education can look at the use of torture in societies ranging from Thailand to England to the U.S. and see how they always fall down the slippery slope. Patterico noted as much himself, when he said that this was a “line drawing” question, and that reasonable people could disagree on where to draw the line. It should come as little surprise that some will draw it pretty low. And when thinking low, think Joe Arpaio.

    DRJ,
    You missed my narrative by a long shot because I don’t think waterboarding is torture […]

    Too bad the U.S. legal system and most non-despots worldwide disagree with you on that point. You’re apparently unconvinced by all of the redundant interlocking legislation and treaties that have been talked about so much. So look up Fisher v. State, 110 So. 361, 362 (Miss. 1926) and White v. State, 182, 91 So. 903, 904 (Miss. 1922) (hat tip to the good folks at >a href=”http://www.isthatlegal.org/archives/2007/11/if_it_was_tortu.html”>Is That Legal). I’d hardly consider judges in Mississippi in the 1920’s, when considering black men killing white men to be a bunch of wooly headed pansies. Yet they found “that they had the appellant down upon the floor, tied, and were administering the water cure, a specie of torture well known to the bench and bar of the country.”

    Hm, well known to the bench and the bar… 80-odd years ago. In Mississippi. On a racially charged case. I think DRJ has a bit of catching up to do.

    fishbane (1f2790)

  58. A.L. believes that waterboarding takes us “closer to a fear-based society”.

    Isn’t that what terrorism does, try to instill fear in every quarter of society?

    The terrorists determined the playing field, and A.L. dances around this point, wanting us to bring less to the contest than our enemies do. We should bring more.

    Harry Bergeron (e4f466)

  59. Not even mildly amusing fishbane. Are you claiming to have an education? Does that education tell you to equate domestic criminal statutes to the UCMJ or conventions governing the conduct of war? I would ask for a refund it it did?

    Does your agenda also ignore the examples of France or Israel that I threw out? How does the U.S. prison system differ significantly from other prison systems around the world? Is it more or less violent fishbane? It makes no sense to throw that information out there in a vacuum.

    I think we need to start calling you fish for brains around here. It doesn’t seem like you any any real brains in there at all.

    Thanks for playing.

    daleyrocks (906622)

  60. Pablo: “I’m not talking about our friends, David. Nor am I talking about realpolitic in foreign policy. I’m talking about our domestic policies and practices.”

    I go to the Jihad Watch school of what we’re up against. This means: I think we’re deeply confused about what we’re up against, and this can’t be separated from our unfortunate domestic policies and practices.

    David Blue (aabb9d)

  61. Harry Bergeron: “A.L. believes that waterboarding takes us “closer to a fear-based society”.”

    Right.

    Harry Bergeron: “Isn’t that what terrorism does, try to instill fear in every quarter of society?”

    What we’re really up against is Islam (or jihad) not generic “terrorism”, but yes a key aim is to impose fear of the right sort on us. (The fear that makes people shut up and submit, not the fear than makes sleepers awake and fight back.)

    Harry Bergeron: “The terrorists determined the playing field, and A.L. dances around this point, wanting us to bring less to the contest than our enemies do. We should bring more.”

    I agree that we should bring more to the fight than our enemies do, but it’s still reasonable to exercise discrimination on the content of this “more”.

    You can sensibly say, for example “more economic war, to neutralize the oil weapon” or “more demographic defense, to neutralize the war of settlement and expansion”, but not “more torture than the enemy”.

    David Blue (aabb9d)

  62. I go to the Jihad Watch school of what we’re up against. This means: I think we’re deeply confused about what we’re up against, and this can’t be separated from our unfortunate domestic policies and practices.

    What “unfortunate domestic policies and practices” are you referring to? Is waterboarding among them?

    Pablo (99243e)

  63. You can sensibly say, for example “more economic war, to neutralize the oil weapon” or “more demographic defense, to neutralize the war of settlement and expansion”, but not “more torture than the enemy”.

    Is anyone actually suggesting that we’re there? That would be news to pretty much everyone, I think.

    Pablo (99243e)

  64. Can we fashion a hypothetical about this?

    http://www.isthatlegal.org/archives/2007/11/if_it_was_tortu.html

    whitd (10527e)

  65. whitd point to a state court ruling, which says:

    In a case called Fisher v. State, 110 So. 361, 362 (Miss. 1926), Mississippi’s highest court ordered the retrial of a convicted murderer because his confession was secured by a local sheriff’s use of the water cure.

    The finding, as opposed to the narrative, was that the confession was illegitimately obtained. There are lots of similar rulings concerned with police misleading, or lying to, a defendant, in such a way as to provoke a “confession.” The issue is whether or not the deception insinuated the confession, therefore undermining its reliability. In the majority of instances it does not, so the confession stands.

    This is not a finding that’s concerned with the legitimacy of waterboarding as an interrogation technique in extremis, but with the entirely understandable concept that a confession induced in this manner can’t be counted upon as the sole evidence of guilt. This is obvious to anyone who’s still on the turnip truck.

    Demosophist (070129)

  66. whitd – fishbane tried that post in 57 above. Try to keep up. It’s a lame attempt to bootstrap state criminal law into applicability to the UCMJ and the laws of war.

    Are you and fishbane and alphie ever seen in the same place at the same time together?

    daleyrocks (906622)

  67. Or, with proper html and editing:

    whitd points to a state court ruling, which says:

    In a case called Fisher v. State, 110 So. 361, 362 (Miss. 1926), Mississippi’s highest court ordered the retrial of a convicted murderer because his confession was secured by a local sheriff’s use of the water cure.

    The finding, as opposed to the narrative, was that the confession was illegitimately obtained. There are lots of similar rulings concerned with police misleading, or lying to, a defendant, in such a way as to provoke a “confession.” The issue is whether or not the deception insinuated the confession, therefore undermining its reliability. In the majority of instances it does not, so the confession stands.

    This is not a finding that’s concerned with the legitimacy of waterboarding as an interrogation technique in extremis, but with the entirely understandable concept that a confession induced in this manner can’t be counted upon as the sole evidence of guilt. This is obvious to anyone who’s still on the turnip truck.

    What can I say… it’s late.

    Demosophist (070129)

  68. Demosophist – Thanks for reading the finding. I didn’t find it necessary, but your comment just adds more fuel to the fire. These people don’t read their source material.

    daleyrocks (906622)

  69. “This is not a finding that’s concerned with the legitimacy of waterboarding as an interrogation technique in extremis”

    But it is a jim crow court calling it torture and barbarous to do this to a black man convicted of murdering a white man.

    and after all, lets just treat it as a hypothetical. Was that waterboarding “worth it” to find the real killer?

    whitd (10527e)

  70. Whatever you say alphie.

    daleyrocks (906622)

  71. “My bottom line is this: I don’t have a huge moral problem with limited waterboarding in extreme circumstances. I have several practical problems with it.”

    -Patterico

    That’s pretty close to my own feeling on the subject. I’m glad to hear you put it so succinctly.

    Leviticus (b987b0)


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