TheAgitator.com
More on Torture
Thursday, March 6th, 2003The debate was invigorated several months ago by Alan Dershowitz, who advocated “torture warrants” in his latest book on terrorism and civil liberties. Here’s an interview he did with Salon (wince through the non-torture-related-parts, read with open mind the torture-related parts). And here’s a more succinct statement of his position:
IF AMERICAN law enforcement officers were ever to confront the law school hypothetical case of the captured terrorist who knew about an imminent attack but refused to provide the information necessary to prevent it, I have absolutely no doubt that they would try to torture the terrorists into providing the information.“Moreover, the vast majority of Americans would expect the officers to engage in that time-tested technique for loosening tongues, notwithstanding our unequivocal treaty obligation never to employ torture, no matter how exigent the circumstances. The real question is not whether torture would be used … it would … but whether it would be used outside of the law or within the law.”
“In my new book, “Shouting Fire: Civil Liberties in a Turbulent Age,” I offer a controversial proposal designed to stimulate debate about this difficult issue. Under my proposal, no torture would be permitted without a “torture warrant” being issued by a judge.”
“An application for a torture warrant would have to be based on the absolute need to obtain immediate information in order to save lives coupled with probable cause that the suspect had such information and is unwilling to reveal it.”
“The suspect would be given immunity from prosecution based on information elicited by the torture. The warrant would limit the torture to nonlethal means, such as sterile needles, being inserted beneath the nails to cause excruciating pain without endangering life.”
Let me also clarify my position a bit. I support torture only in very limited circumstances. But I think our captured al-Qaeda capo presents just such a circumstance. There are questions about whether or not torture actually works. But there is at least one example where it’s known to have been effective: In 1995, we captured an al-Qaeda operative in California (San Diego, I think). We, er, “exported” him to the Phillipines — who are happy to employ creative methods of questioning suspects – where he revealed, after being tortured, a plot to simultaneously blow up eleven passenger jets over the Pacific. That plot was broken up, and several of its conspirators were arrested.
So, I ask: Are you comfortable knowing that your government knowingly handed a captured suspect over to be tortured by a foreign government, and that said torture probably saved 4,000 American lives? Would you be comfortable if it had been the U.S. government doing the torturing?
Despite the potential for abuse here (which I recognize, and believe any such system should be packed with safeguards), I’m comfortable with both.
I don’t approve of ever torturing American citizens, who are of course protected by the Constitution. But so long as we’re at war, I think there are limited circumstances — the “ticking bomb” scenario outlined by Dershowitz, for example — where the torturing of foreign national combatants hellbent on destroying us can be justified.
I’m not comfortable with either the “export” or the at-home torture, not even if it sometimes saves lives. Lots of things that sometimes save lives are nevertheless too tyrannical to allow.
My reasons:
1. Fallibilism. Without due process of law, you don’t really know that the guy they’ve arrested is actually a “combatant hellbent on destroying us”, or indeed that he’s guilty of anything. Uncorroborated statements by government officials can never be trusted; that’s why due process protections exist in the first place. Is it worth torturing *innocent* people in order to prevent terrorism?
2. The worthlessness of the citizen/noncitizen distinction. It’s morally worthless because, if you or I have a moral right not to be tortured, then so does everyone else in the world. The idea that people’s rights magically go away when the government says “we’re at war” is nonsensical, and is one of the most common excuses for tyranny.
It’s practically worthless because the government has already shown itself willing to elide the distinction. Think of Padilla and Hamdi, American citizens being held right now without any due process at all. Think of that provision in the proposed “Domestic Security Enhancement Act” that would enable the Feds to declare you a noncitizen if they think you’ve given money to some group that they’ve decreed to be Evil. Which brings me to…
3. The reality of who the government officials are. Giving government in general the power to torture means giving that power to Darth Ashcroft and his cronies at the Heimatsicherheitsdienst. Those folks remain a greater long-term threat to our lives and liberties than al-Qaeda will ever be.
4. Even if the current administration were not so bad, the power to torture is extremely corrupting and will ultimately break out of any system of safeguards you set up. Again, consider the safeguards set up around the intelligence agencies to prevent them from spying on innocent Americans, and how those safeguards are being eroded today.
Tolkien is apposite here:
Sam: “But if you’ll pardon my speaking out, I think my master was right. I wish you’d take his Ring. You’d put things to rights. You’d stop them digging up the gaffer and turning him adrift. You’d make some folks pay for their dirty work.”
Galadriel: “I would” she said. “That is how it would begin. But it would not stop with that, alas!”
While i don’t fully agree with your first 2 points, it seems that ones position on them simply depends on individual points of view, and on individual values regarding national security vs. individual rights.
point 3, however, is flawed. It certainly is true that civil liberties have been curtailed over the last 2 years, but we have remember why that is. Governments primary responsibility is to protect the safety of its citizens, without that there would be no liberties in the first place. Our country has traditionally restricted certain liberties in times of great danger, and congress, the supreme court and the american people have generally been fairly tolerant of these restrictions. the reason for this is simple…because it will NOT be for the long term. Once the threat to our national security is lower (and it will be), then all of our wonderful liberties will be restored…congress will demand it…the supreme court will demand it…and the american people will demand it. right now, our government and the majority of american people realize this, and are willing to sacrafice a bit…for now.
I don’t personally believe that anyone, even a US citizen, has the MORAL right not to be tortured, by rather in the US have the CONSTITUTIONAL right not to be tortured.
I believe this is a very important distinction. I have no problem whatsoever with the torture of ememies in extremely limited circumstances, but would never support the torture of US citizens.
I believe we have the moral obligation to engage in torture of certain enemies if it enhances our ability to protect US citizens.
Craig: the problem with the “let’s temporarily sacrifice our liberties” argument is that the sacrifices are never really temporary. At the end of a war *some* of the wartime restrictions may be repealed, but a good many always stay in place. Each of the major wars the US has fought has resulted in a larger, more intrusive federal government after the war– not as intrusive as during the war, but much more so than before the war.
Also, I don’t agree that the government actually works to protect the safety or liberty of citizens, and I don’t believe that additional restrictions on liberty actually promote safety. The US government’s imperial adventurism is a principal reason why we face these threats to our safety in the first place. When the same institution that got us into this mess through abuse of power proposes that it get us out of the mess by taking *more* power, I am skeptical to say the least.
roger: I don’t see why your distinction is germane. What is the point of Constitutional rights, if not to enshrine in law the natural moral rights of individuals?
Nicholas -
As I re-read my original post, it did seem a bit confusing, as if I was implying that US citizens have no moral rights, only Constitutional rights.
My belief is that the Constitution does enshrine in law the moral rights of individuals. My point is that those moral rights are only protected by law for US Citizens, which by definition are protected by the Constitution.
Non-citizens are not protected by the United States Constitution. They should not be subjected to unwarranted torture, but likewise should not enjoy the legal protections of OUR Constitution.
If they want the protection of the Constitution, they can become citizens.
The fact is, while I value nearly all human life, I do indeed value an American life more than any another.
As I blogged:
Whatâs truly breathtaking is that Balko is a loud voice against Total Information Awareness. Heâd sooner have John Ashcroft sticking cattle prods up peopleâs rectums than data mining emails. Perhaps Balko is the person Iâve been looking for: Someone with an email the absolute secrecy of which is worth causing thousands of American deaths.
My position: When a known war criminal has information that will likely prevent a mass casualty attack, extract that information by any means necessary. Donât use the information itself in any judicial or tribunal proceeding, unless it leads to physical evidence which confirms its veracity.
Abstaining from the all-to-human urge to use torture is an example of what makes civilized nations civilized. Delivering prisoners to more brutal countries for torture is moral equivocation. So is allowing torture of non-citizens. (And Ashcroft already has a proposal to get around that one anyway– stripping away citizenship).
Why should we expect our young soldiers to die for what this country stands for, but think “innocent civilians” must be made safe at all costs, including the cost of abandoning the very things that make us love our country? Accepting more danger from terrorism is a sacrifice I feel obligated to make if it means not having to throw away or rationalize away our founding principles.
I say bring on the red hot pokers and jumper cables.
Man, This particular blogg post is becoming torturous. I am calling amnisty…
The needs of the many outweigh the needs of the few. So if torturing a terrorist to stop other terror from happening is needed, then it should be done.
People are suppose to be moral. Governments are suppose to protect the people. Governments and people do not have the same moral absolutes. In fact, I would argue that the only “moral” imperative the government has is to protect its citizens. (although I don’t like calling it moral) Still, if torturing 100 non-citizen protects even just 1 citizen, our government has a “moral” obligation to torture those non-citizens. The citizens created the government for a purpose and the government has an obligation to succeed.
The government does not torture citizens because as citizens, torture is not a power we have given our government. Even those citizens accused of wrong doing, or those citizens who would harm other citizens are still citizens themselves and demand the government’s protection. Non-citizens have given our government no power and should expect no protection.
As long as it’s by non-lethal means, I don’t see the problem with it. You get over the pain, it heals.
What about truth agents, or at least starting with those? The Phillipine link says “The Philippine intelligence agencies, suspecting a plot, arrested and tortured a man they thought was one of the terrorists. They broke most of his ribs, burned his genitals with cigarettes and poured water into his mouth until he couldn’t breathe. After 67 days, he came up with the information which enabled the Filipinos, together with the Americans - who were provided with the fruits of the interrogation - to frustrate the plot.”
Couldn’t we eliminate some of those 67 days with truth agents, if they did work? Plus, everyone could get a little stoned, sit around and talk about terrorism plots- http://www.commondreams.org/views02/0604-06.htm - As shown, it might not work, but couldn’t hurt to try.
If it is okay, in a time of war, to kill the enemy, why isn’t it okay to torture them?
Virtually everybody here disagreed with Nicholas, just as I expected they would, and did a great job of arguing against his philosophical points, but not one person has addressed any of his practical points.
If you’ve ever wondered just how the Nazis and Communists managed to do their dirty deeds, rationalizations like Radley’s offer some excellent insight. As one commentator on liberty wrote:
all things are related to one another in our complicated social world, if one man’s freedom or private property may be violated (regardless of the justification), then every man’s freedom and property are insecure. The superior man can only be sure of his freedom if the inferior man is secure in his rights. We often forget that we can secure our liberty only by preserving it for the most despicable and obnoxious among us, lest we set precedents that can reach us.
Those sentiments are much the same as James Madison’s warning about slow, creeping encroachments upon liberty. That is how tyranny sneaks up on us. What was it that fellow said about “When they came for the …, I did not speak up because I was not one.” Well, I’m not a terrorist, but I do know one when I see it. It seems to me the US intent is not to “rid the world of terrorism.” It simply wants to eliminate some of its competitors. After all, what is government if not a monopoly of force? The US is just expaning its “jurisdiction.”
It seems to me many Americans are under the spell of ideals they have only the most pedestrian public-schooling understanding of. I tend to agree w/ J. P. Barlowe, in an intellectual sense, most Americans seem to be “pretending to be asleep” when it comes to encroachments of liberty and the necessity of war. Just as they pretend to understand the fundamental ideals of “liberty and justice for all.”
I’d like to include a snippet from an article titled:
Let It Not Be Said That I Did Not Speak Out! (1976)
“When the individuals living under the jurisdiction of the United States Government awake to political reality, they are going to find themselves living in government bondage. Every act of government brings us closer to this reality. The only logical future is to expect life in a socialized state. Henceforth, to be a citizen will mean to be a slave.”
And as Aron Russo wrote about police states in Liberty Magazine in 1995:
“In a police state, the government can legally ransack your house; they can come into your business; they can take whatever you own; they can assault you with impunity; they have no accountability. In a free society, government can’t do that. And we’re not a free society any more. People have to recognize that.”
For those harboring the mistaken belief that the primary objective of government is to protect its citizens, wake up! A state’s primary objective is to perpetuate its existence. That fact is fairly explicitly stated in the US justification of “self-defense.” That is exactly what the state is defending, itself (national-defense). Only secondarily does protecting its source of income and power (citizens) come into consideration. To see this one need only look at how willing and even eager the state is to sacrifice some of its citizen-soldiers to protect its existence. States always have, always will. To pretend otherwise seems to me more than a little absurd.
For the record, government does not grant or guarantee any freedoms. It is a control mechanism by design. In fact it is hard to find a better example of freedom’s opposite than government. Political freedom is a myth.
It is “Freedom on a Leash.”
As Charles Curley so astutely remarked, “There are a great many things from which the government cannot protect you. From some of them you may not wish to be protected. But the two on top of the list of things from which it cannot protect you are, first, yourself, and second, itself.”
Americans need to come to grips w/ the fact that what was once touted as “the freest nation on earth” is no more. The Constitution, the “rule of law” and all the other founding principles are nothing more than hollow rhetoric these days. The US did not, as Regean put it, “defeat the evil empire” so much as it coopted or became that evil empire. The saddest part is, apologists of torture like Radley, do little more than help speed the US along the road to a totalitarianism maintained by terror. Were men like Stalin and Hitler alive, they’d surely be smiling at the spectacle, comrade.
Do you guys support the rights of Iraq to torture American soldiers that they might capture in and around Iraq today? Iraq knows that the United States is an imminent threat to the safety and security of its citizens. Soldiers they capture may have information that they need to thwart an attack by the US on their country. If they were to capture one of our soldiers and torture them to within an inch of their life, would we be justified in criticizing them for doing so?
AU,
It seems to me that you are advocating anarchy…nice thought, but will never work…government is by no means perfect, but better than the alternative.
Craig,
I feel obliged to point out that better is a value judgement, and yours and mine differ.
I honestly don’t mind if you prefer to be governed.
Just because others enthusiastically embrace state-servitude, does not mean that I have to, or will.
For me, freedom is a way of life, not a trophy for the team.
As long as it’s by non-lethal means, I don’t see the problem with it. You get over the pain, it heals.
I presume, then, that you’re a generous donor to Amnesty, which supports the victims of torture during the years (often decades) that it takes to recover?
No? In which case, you’re speaking out of ignorance, and should better remain silent, lest someone apply live wires to your testicles to find out what you really think.
(and no, truth agents don’t work. that people always resort to violence shows this rather well.)
Great arguments all around. Still, this one is elementary to me. Torture away anybody who kills thousands of innocent Americans or who plans to do so. I don’t need to look into why our government was set up or ask when/if it is OK. Arguments like these lend support as to why our government keeps things from us. There will always be those who will read so deeply into an issue to find either a convenient silver lining (i.e. 9/11) or an absolute atrocity (loss of liberties). I contest that I will lose absolutely no sleep if a terrorist has his fingernails removed or is beaten within an inch of his pathetic life.
SH
I’ve read the whole post.
I’ve read your arguments. Maybe your argument is a legal one, not a moral one.
But this sentence: “I don’t approve of ever torturing American citizens, who are of course protected by the Constitution”, disgust my rational and _human_ thinking.
After 11 September all people of all countries were with American people.
But USA chose to hide itself beyond nationalism and its flag.
Your post it’s a disgusting USA-centric post.
Reallly
Torturing terrorists, and the English language
Whew! That’s a relief. As a signatory to the treaty banning torture, we’re not going to torture Khalid Sheikh Mohammed. We’re just going to slap him around, pistol-whip him, deprive him of sleep, and make him stand for hours…
Torturing pure aryan citizens is a despicable thing not even to be considered for one moment. Now others — and we know who they are — that is a different story. We know they are sub-human and capable of plotting any sort of evil against the homeland. We must not handcuff ourselves by squeamish laws against using any means neccesary to protect our true, pure citizens and our way of life. Of course, all we Germans really want is piece - a piece of Poland, a piece of Russia… Opps did I say that? Wait a minute, how do you erase this stuff? Is this right, click here? Opps, that wasn’t right. I think I just sent this thing out. Oh boy.