Congress's definition of torture in those laws - the infliction of severe mental or physical pain -
leaves room for interrogation methods that go beyond polite conversation.

- John Yoo
 

by Michael Kinsley

What if you knew for sure that the cute little baby burbling and smiling at you from his stroller in the park was going to grow up to be another Hitler, responsible for a global cataclysm and millions of deaths?  Would you be justified in picking up a rock and bashing his adorable head in?  Wouldn't you be morally depraved if you didn't?  Or what if a mad scientist developed a poison so strong that two drops in the water supply would kill everyone in Chicago and you could destroy the poison, but only by killing the scientist and 10 innocent family members - should you do it?  Or what if an international terrorist planted a nuclear bomb somewhere in Manhattan, set to go off in an hour and kill a million people.  You've got him in custody, but he won't say where the bomb is.  Is it moral to torture him until he gives up the information?

Questions like these have been pondered and disputed since the invention of the college dorm, but rarely, until the past couple of weeks, unstoned.  Now the last of these golden oldies - about the terrorist who knows where the bomb is set to go off - is in the news.  Not because it has happened, but because of Senator John McCain's proposed legislation forbidding the use of torture by the United States government.

It feels strange even to have to use the term "proposed legislation" about a subject like this.  When you think of all the things the law forbids, with varying degrees of success, it is hard to believe that torture by public officials isn't on the list.  But yes, according to the Bush administration, no law prevents our government from torturing (at the very least) nonuniformed noncitizens outside the United States.  And the Bush folks like it that way.  But others, including many congressional Republicans, don't.  That hypothetical terrorist with a nuke is central to the most (maybe the only) articulate argument against the McCain bill.  The argument, made by Charles Krauthammer in the Weekly Standard, is, in a nutshell:

1. No rational moral calculus could possibly justify sacrificing a million innocent lives in order to spare the would-be mass murderer a few minutes of pain, and
2. Once you accept that torture would be justified in one situation, avoiding the use of torture on other situations is no longer a moral imperative.  The question becomes where you draw the line.

In law school, they call this second point, "salami-slicing."  You start with a seemingly solid principle, then start slicing: If you would torture to save a million lives, would you do it for half a million?  A thousand?  Two dozen?  What if there's only a 2-out-of-3 chance that person you're torturing has the crucial information?  A 50 - 50 chance?  One chance in 10?  At what point does your moral calculus change, and why?  Slice the salami too far, and the formerly solid principle disappears.

Krauthammer stops at two slices.  In addition to the terrorist-with-a-nuke, he also would torture a high-level terrorist to get information that is needed on a "slower fuse."  When there is less urgency, he says, "the level of inhumanity" of the torture should be "proportionate to the need and value of the information."  He has sundry other requirements involving procedures for authorising torture and keeping the military out of it.  This last one is not because (based on recent experience) he doesn't trust soldiers with truncheons and electrodes, but because he believes that the military should not be tainted by the sordid business of torture.  Krauthammer's proposed rules are fairly restrictive.  That is a selling point: They are far from a wholesale endorsement of torture whenever it might prove useful.  They acknowledge the humanity, even the human rights to some degree, of torture subjects.  They aspire to no more torture than is necessary in any particular case.  If these rules were enforced as punctiliously as their author lays them out, the US Government might not find itself torturing a lot more people than it is torturing already, under various legal theories or none at all.  And let's face it, we live with what's going on now.  Most of us don't like it.  But few of us are doing much to stop it.

But where do Krauthammer's rules come from?  They have no obvious connection to the reasoning he uses to endorse torture in principle.  They are just his opinion.  This makes their careful limits more alarming than reassuring.  There is no reason to suppose that if Krauthammer's reasoning was accepted, the result would be Krauthammer's rules.  Once we are rid of the childish notion of an absolute ban on torture, there is no telling where adult minds may take us.  The trouble with salami-slicing is that it doesn't stop just because you do.  A judicious trade-off of competing considerations is vulnerable to salami-slicing from both directions.  You can calibrate the viciousness of the torture as finely as you like to make sure that it matches the urgency of the situation.  But you can't calibrate the torture candidate strapped down before you.  Once you're in the torture business, what justification is there for banning (as Krauthammer would) the torture of official prisoners of war, no matter how many innocent lives this might cost?  If you are willing to torture a "high level" terrorist in order to save innocent lives, why should you spare a low-level terrorist at the same awful cost?  What about a minor accomplice?

Or what about someone wholly innocent?  It's hard to imagine a situation where someone who refuses to supply life-saving information could be considered "innocent."  But it's not impossible.  (Suppose the terrorists have his wife. …)  In this cold, hard world, allegedly facing a challenge greater than any the civilised world has faced before, would you torture an innocent individual for five minutes in order to spare a million innocents from death?  These would be wartime deaths, many of them more painful and grotesque than the laboratory torture you are sparing one lone individual.  If you say yes, go ahead and torture an innocent person, you have pretty much abandoned the various exquisite moral distinctions that eased your previous abandonment of an absolute ban on torture.  But if you say no, my own moral hygiene, or my country's, forbids the torture of an innocent individual, even if the indirect but predictable consequence is a million human deaths, you are more or less back in the camp of the anti-torture absolutists whose simple-minded moral vanity you find so irritating.

So Krauthammer's second argument - that once you abandon an absolute rule against torture, there is no obvious moral stopping point - "proves too much" (in another lovely law-school phrase).  It can be used to discredit any nonabsolutist torture policy, including Krauthammer's own.  Torture is like almost every other issue: It involves trade-offs between the rights of individuals and the needs of society.  In his own proposed rules, Krauthammer makes some strange trade-offs.  How many lives would he give up in order to relieve the military of the onus of torture?  And where will he find morally pre-damaged patriots better suited to the task?  Do CIA agents deserve to be told that torturing people is a "monstrous evil" that is too "inhumane" for uniformed soldiers, but just perfect for them?

It is not fatal to Krauthammer's or any other person's particular set of torture rules that they draw lines more exact than evidence or reason can justify.  Drawing bright lines in foggy situations is what the law does.  But good rules need to be defensible against salami-slicing in a more general way.  The strength of an absolute ban on torture - or an absolute rule of any sort - is its relative immunity from salami-slicing, both in theory and in practice.  It is hard to explain why you would torture a teenager abducted into a terrorist gang if this would save a dozen lives, but would not torture a uniformed military officer in order to save a thousand.  It is not hard to explain why you would not torture anybody at all.  The argument may be wrong, but at least it is clear.  The policy - just don't do it - ism't hard to misunderstand, making it easier to teach and enforce.  And the principle can be consciously abandoned but it can't easily erode.

But what about Krauthammer's conundrum?  Will you eschew torture even when a few minutes of it, applied to a very bad person, would save a million lives?  One answer is that the law wouldn't really be enforced in such an extreme situation.  McCain himself has hinted at this, as Krauthammer points out, and Andrew Sullivan fleshes out the point in a reply to Krauthammer published in the New Republic.  This may well be true as a prediction, and tempting as a moral argument, but ultimately not good enough.  Surely every law should at least aspire to be enforced.  Or - an even more modest standard - a law should not depend on unenforceability for its very justification.  Furthermore, a law expresses a social norm even apart from its enforcement.  If the hypothetical situation ever arises, something will happen.  What do we want that something to be?

There is yet another law-school bromide: "Hard cases make bad law."  It means that divining a general policy from statistical oddballs is a mistake.  Better to have a policy that works generally and just live with a troublesome result in the oddball case.  And we do this in many situations.  For example, criminals go free every day because of trial rules and civil liberties designed to protect the innocent.  We live with it.  Of course a million deaths is hard to shrug off as a price worth paying for the principle that we don't torture people.  But college dorm what-ifs like this one share a flaw: They posit certainty (about what you know and what will happen if you do this or that).  And uncertainty is not only much more common in real life: It is the generally unspoken assumption behind civil liberties, rules of criminal procedure, and much else that conservatives find sentimental and irritating.

Sure, if we could know the present and predict the future with certainty, we could torture only people who deserve it.  Not just that: We could go door-to-door killing people before they kill others.  We could lock up innocent people who would otherwise be involved in fatal traffic accidents.  Civil libertarians like to believe that criminals get their Miranda warnings and dissidents enjoy freedom of speech because human rights are universal.  But if we knew for sure that a newspaper column by Charles Krauthammer would lead - even by a chain of events he never intended and bore no responsibility for - to World War II, wouldn't we be nuts not to censor it?  Universal human rights would make no sense in a world where everything was known and certain.  This is not to say that Krauthammer's killer hypothetical could never happen.  It is to say that morality does not require us to build a general policy on torture around a situation that is not merely unlikely in real life, but different in kind from the situations we are likely to face in real life.  What we would do or should do if this situation actually arose is an interesting question for bull sessions in the dorm, but not a pressing issue for the nation.

Every day American forces in Iraq and elsewhere probably inflict more pain on guilty and innocent people than officially designated American torturers would do in a year, even if Bush and company were free of any legal restriction.  That pain is not necessarily unjustified (although I believe it is).  But it makes the whole debate about officially designated "torture" artificial and symbolic, not to say deeply hypocritical.  And yet supporters of the administration, the war, and the practice of torture have not leaped to embrace this argument, for some reason.

Michael Kinsley is Slate's founding editor.

Source: wslate.com 13 December 2005

He does write well, but he's also quite wrong.  Torture is, of course, illegal, and nobody has, as far as I'm aware, proposed a law to change this.  Torture (including of illegal combatants overseas) is simply not allowed.  Full stop.

But what is torture?  Under US law, torture is the infliction of "severe pain or suffering", but that's not a vastly helpful formulation.  The Bush administration also bans "cruel, inhuman, and degrading treatment" (usually referred to as CID) - but that's no better.  How much pain is "severe", exactly?  How loud does the Madonna song have to be before its inhuman?  Does the volume limit get lower if the subject really hates Madonna?  By how much?

The only real debate here is on where to draw the line; Kinsley instead gets sucked into a ridiculous argument about whether we should even be drawing a line.  (Somewhat amusingly, by his implicit endorsement of the idea that maybe we should torture people in a "ticking bomb" case, he places himself much further on the pro-torture side of the argument than the Bush administration does.)  His description of the McCain bill is equally poor.  Contrary to what he says, there are many articulate arguments against the bill, not least of which is that the McCain bill itself is (much like Kinsley's column) confused, inarticulate, and goes out of its way to dodge all the hard questions.

For example, despite what many of the bill's supporters say, the McCain bill doesn't ban torture, but instead CID - which is already banned by US policy.  It also notably fails to define terms, leaving the debate over say, waterboarding no clearer.  How...truly helpful.

Kinsley is much too bright not too realise just how misleading his column is; I can only assume he meant it to be so.  Disappointing.  There *is* a difference between torture and coercion, and while it may well be justified to ban the latter, I have no respect for anyone who deliberately confuses the two, as Kinsley seems to do.

--
Cody Hatch
cody@chaos.net.nz www.chaos.net.nz

A society that puts equality...ahead of freedom will end up with neither equality nor freedom.

- Milton Friedman
 

Cheney Is vice President for Torture

A former CIA director has claimed that torture is condoned and even approved by the Bush government.  The devastating accusations have been made by Admiral Stansfield Turner who labelled Dick Cheney "a vice president for torture".  He said: "We have crossed the line into dangerous territory".

The American Senate says torture should be banned - whatever the justification.  But President Bush has threatened to veto their ruling.  The former spymaster claims President Bush is not telling the truth when he says that torture is not a method used by the US.  Speaking of Bush's claims that the US does not use torture, Admiral Turner, who ran the CIA from 1977 to 1981, said: "I do not believe him".

On Dick Cheney he said "I'm embarrassed the United States has a vice president for torture.  He condones torture, what else is he?"  Admiral Turner claims the secret CIA prisons used for torture are known as "black sites" - terror suspects are picked up in places like Afghanistan and Pakistan.  They are flown by CIA-controlled private aircraft to countries where there are secret interrogation centres, operating outside any country's jurisdiction.  No one will confirm their locations, but there are several possibilities: The Mihail-Kogalniceanu military airbase in Romania is believed by many to be one such facility.

Admiral Turner's remarks were echoed by Republican Senator John McCain, himself a victim of torture in Vietnam.  He said torturing to get information was immoral, was not effective and encouraged potential enemies to do the same to Americans.  Both Mr Bush and Secretary of State Condoleeza Rice have repeatedly stated that torture by US forces is not condoned.

Source: itv.com 19 November 2005

Rice to Confront CIA Prison Reports

Without confirming that any CIA detention sites exist in Europe, a State Department spokesman said the US has not violated either its own laws or international treaties.  "The United States in its actions does not break US law," spokesman Sean McCormack said.  "All its actions comply with the Constitution and we abide by our international obligations."

Concerns about alleged CIA activities in Europe have led to investigations in a half dozen countries.  The CIA has declined to comment on the investigations, and the White House and State Department have not confirmed any of the allegations.  The Council of Europe, the continent's main human rights watchdog, also is looking into the reports, and EU justice official Jonathan Faul formally raised the issue last week with the White House and State Department.  The issue is expected to dominate Secretary of State Condoleezza Rice's trip to Romania and other European countries next week, and it was a topic for a meeting Tuesday in Washington with the new German foreign minister.

"We acknowledged that this is generating interest among publics and governments and parliaments as well," McCormack said.  "We understand that these issues need to be responded to, and the secretary pledged to the foreign minister that we will respond to the EU presidency inquiry."  On Monday, the European Union's top justice official warned that EU nations could lose voting rights in the 25-nation bloc if they hosted a clandestine detention centre.  A secret jail would violate the European Convention on Human Rights, EU Justice and Home Affairs Commissioner Franco Frattini said.  Prisoner transport flights without the knowledge of local authorities would violate international aviation agreements, he said.

McCormack urged a broad view of the prison allegations that takes into account the unusual, multi-front war on terror.  "Any government needs to act to protect its own people," McCormack said.  "Ask yourself the question, if you were able to detain a terrorist responsible for the deaths of thousands of people before that act took place, absolutely a government would make every effort in order to do that."

Source: foxnews.com 29 November 2005

Excuse me?  Did I just read what I thought I did?  The government is making every effort to detail terrorists before their acts take place?  Life imitates Minority Report?

See also:

America's Gulag (further on in this section) - Rendition arrests probably began in earnest in Tirana, Albania, in July 1998 when a team of CIA operatives ran an operation with Albania's secret police.  They tracked down and tailed a group of five Egyptian Islamist militants, foiling their plan to destroy the US embassy with a truck bomb.  They were captured together and taken to police headquarters where, as the CIA waited outside, they were physically tortured.  They were then bundled into an unmarked US Gulfstream jet waiting at the airport and flown to Cairo.  After being handed over to the Egyptian government, Ahmed Osman Saleh was suspended from the ceiling and given electric shocks; he was later hanged after a trial in absentia...

US Plans Baghdad Embassy More Secure than Pentagon

by Chris Hughes

America is to spend £1 billion on an embassy in Baghdad "more secure than the Pentagon".  Plans for the hi-tech complex are being kept secret because of the terrorist threat in Iraq.  The exact location is not being released until later this year but it is likely to be built in the heavily fortified Green Zone area where the Iraqi government and US military command is based. The embassy will be guarded by 15 foot blast walls and ground-to-air missiles and the main building will have bunkers for use during air offensives.  The grounds will include as many as 300 houses for consular and military officials and a large-scale barracks will be built for Marines who will protect what will be Washington's biggest and most secure overseas building.

A US source in the Middle East said last night: "Plans for the embassy building are being kept behind closed doors because of the terrorist threat.  It will be more secure than The Pentagon because it will be under constant threat from attack."  The Green Zone is the safest part of Baghdad, surrounded by concrete blast walls and checkpoints.

The US also wants to build four massive military superbases around Iraq's capital.  The plans will fuel speculation they want to keep a firm foothold in Iraq for many years.  An Iraqi security source said last night: "The plans for the embassy building will make it the largest and best protected diplomatic building overseas for the US.  You may as well move the Pentagon to Iraq.  It will be amazingly secure but it also flies in the face of claims American is preparing to leave Iraq to be policed and governed by Iraqis.  "Plans for four superbases across the country will only reinforce the view that the US is here to stay for the duration."

The move comes despite Donald Rumsfeld revealing last week that US troop numbers in Iraq are to be reduced by 7,000 to 153,000.  Tony Blair has also predicted British troops could start pulling out this May.

Backing among the American public for President Bush's action in Iraq has fallen.  Despite the opposition a Kuwait-based construction company has already been handed £175 million ($300 million) of the building deal.  Plans for four huge military bases placed strategically around Baghdad are also being drawn up.  The superbases will be in central Iraq, close to the capital, and also to the north, west and east of Baghdad.  Several other Middle Eastern and American building firms are tendering for the remaining budget.  Funding will probably come from Iraqi oil revenues channelled into redeveloping the country.

America has a string of "secret" military bases throughout the Gulf states, including Kuwait, Bahrain and Qatar.  The huge desert complexes, including airstrips and aircraft hangars, are up to 20 miles square and are not featured on civilian maps.  They started to appear after the first Gulf War 15 years ago, infuriating Islamic extremists and the al-Qaeda terror network.

Contact Chris Hughes at c.hughes@mirror.co.uk

Source: mirror.co.uk 3 January 2006

Rushing Off a Cliff

Here’s what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans’ fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws - while actually doing nothing to protect the nation from terrorists.  Democrats betray their principles to avoid last-minute attack ads.  Our democracy is the big loser.

Republicans say Congress must act right now to create procedures for charging and trying terrorists - because the men accused of plotting the 9/11 attacks are available for trial.  That’s pure propaganda.  Those men could have been tried and convicted long ago, but President Bush chose not to.  He held them in illegal detention, had them questioned in ways that will make real trials very hard, and invented a transparently illegal system of kangaroo courts to convict them.  It was only after the Supreme Court issued the inevitable ruling striking down Mr Bush’s shadow penal system that he adopted his tone of urgency.  It serves a cynical goal: Republican strategists think they can win this fall, not by passing a good law but by forcing Democrats to vote against a bad one so they could be made to look soft on terrorism.

Last week, the White House and 3 Republican senators announced a terrible deal on this legislation that gave Mr Bush most of what he wanted, including a blanket waiver for crimes Americans may have committed in the service of his antiterrorism policies.  Then Vice President Dick Cheney and his willing lawmakers rewrote the rest of the measure so that it would give Mr Bush the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorise what normal people consider torture, and to deny justice to hundreds of men captured in error.

These are some of the bill’s biggest flaws:

	Enemy Combatants: A dangerously broad definition of "illegal enemy combatant" in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal.  The president could give the power to apply this label to anyone he wanted.
	The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr Bush to decide on his own what abusive interrogation methods he considered permissible.  And his decision could stay secret - there’s no requirement that this list be published.
	Habeas Corpus: Detainees in US military prisons would lose the basic right to challenge their imprisonment.  These cases do not clog the courts, nor coddle terrorists.  They simply give wrongly imprisoned people a chance to prove their innocence.
	Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals.  The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly.  All Mr Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.
	Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable - already a contradiction in terms - and relevant.  Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr Bush chooses.
	Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer.  But the bill as redrafted by Mr Cheney seems to weaken protections against such evidence.
	Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11.  Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex.  The bill would effectively eliminate the idea of rape as torture.

There is not enough time to fix these bills, especially since the few Republicans who call themselves moderates have been whipped into line, and the Democratic leadership in the Senate seems to have misplaced its spine.  If there was ever a moment for a filibuster, this was it.  We don’t blame the Democrats for being frightened.  The Republicans have made it clear that they’ll use any opportunity to brand anyone who votes against this bill as a terrorist enabler.  But Americans of the future won’t remember the pragmatic arguments for caving in to the administration.  They’ll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.

Source: nytimes.com 28 Sept 2006

For articles on bioterrorism, patriotism enforcers, airport security, children in war, McCarthyism, humanitarian killing, Voice of America, pipelines, truth, lessons, anthrax, hatred and pain click the "Up" button below to take you to the Index page for this War on Terrorism section.