1) It’s been an interesting discussion, and I’m glad we’ve had it. And, tell-tale sign that an Internet discussion was successful — only one invocation of Hitler and/or Nazi Germany, and even that one I think was used within the bounds of responsible and appropriate debate. Thanks for all of your contributions.

2) I regret that I may have done irreparable damage to Jim Henley’s and Arthur Silber’s opinion of me. Jim says he’d “depressed” by it all. Silber says I’m “horribly wrong.”

While I do still respect both immensely, I think both severely underestimate the threat we’re up against. I think the only reason we haven’t yet lost a city is that al-Qaeda hasn’t yet gotten it’s hands on a stray suitcase nuke. And I think that when they do, we will. At some point, you have to start weighing rights and freedoms. And it seems to me, that at some point, you have to come to the understanding that the right of millions of Americans to live outweighs the rights of terrorists, or even terrorist suspects to be free from coercive questioning.

Still, I hope that Henley and Silber are right, and I’m wrong. I hope I’m drastically overestimating the threat, and that the time to resort to torturing suspected terrorist masterminds is far, far off.

3) The least convincing argument I’ve heard so far against torture:

“We’re Americans”/”it’s immoral”/”libertarians don’t support torture.”

This strikes me as the very kind symbolic demagoguing we hear from the extreme left and right.

Why shouldn’t we allow people to engage in sexual relations of their choosing without state harassment?

Conservatives: Because it’s wrong!

Why should we ensure everyone an education by means of the state, despite overwhelming evidence that the education were providing is basically worthless?

Liberals: Because it’s the right thing to do!

Why shouldn’t we torture terrorist suspects who’ve vowed death to Americans if we think doing so might save hundred or thousands or millions of American lives?

Libertarians: Because it’s wrong! UnAmerican! Immoral!

None of these arguments really says anything. Give me evidence, practical argument. Show me torture doesn’t work.

Again, if I had heard after the fact that U.S. officials had in custody a suspect who, if coerced with psychological and/or physical torture, had in him enough information to prevent 9/11, I’d be furious at my government for not extracting that information from him.

What’s more immoral — sacrificing the rights of one non-citizen captured overseas to protect millions of Americans, or letting hundreds-thousands-millions of Americans die as martyrs so we can continue to stand tall on our moral “civilized people don’t torture” perch?

4) Gene asks how I reconcile my pro-torture position with my anti-death penalty position.

First, I’d say that Gene’s right — my statement that “I don’t want the state taking lives” probably isn’t entirely consistent with my position on torture. I’d submit that most death row inmates are American citizens, and I do think there’s a difference between the state taking the lives of its own citizens vs. the state torturing non-citizens in wartime, but that’s probably not enough of a distinction to convince many people.

But that’s really not the main reason I oppose the death penalty. I oppose the death penalty mostly because it’s a punishment that is a) ultimate, and b) irreversible. If you’re going to administer punishment that’s both of those things, your system of justice had better be perfect. And as we’ve seen from recent headlines, we’re imperfect beings, and therefore incapable of perfect justice.

So shouldn’t I also oppose torture on those grounds? What if we torture an innocent suspect?

A legitimate point. But I think the repercussions of not allowing it in certain circumstances are too catastrophic to overlook.

5) This whole argument is moot. It already goes on.

I agree. It probably does. But doesn’t that make having this discussion all the more worth having? Would we rather it go on behind closed doors, where we never hear about it, and therefore never have to burden ourselves with it? Or should we have a public debate about it, and set clearer parameters? Let’s say we do capture an al-Qaeda cell with a suitcase nuke, and let’s say we find out later that a trio of CIA officials tortured KSM to get that information. What should happen to them? Should they be punished or praised? Are they criminals or heroes? Or both?

Nuclear weapons are only going to get easier and easier to come by in the coming years. Once we catch the first al-Qaeda cell with their furst nuke (hopefully before it’s detonated), I’d wager you’ll see this debate emerge on a far wider and more immediate scale.

6) Power corrupts. And the state uses power to beget more power. Once you give the state the power to torture, you won’t be able to put parameters on how its used.

I think this is the best argument against my position.

But here’s where I think the death penalty is a good counter. If we’ve already given the state the power to kill U.S. citizens as a means of protecting the rest of us against the potential harm they’d inflict, how can we say the state shouldn’t have the power to use non-lethal torture against non-citizens to protect the rest of us against the harm they might inflict?

Granted, I’m opposed to the death penalty, so this argument needs to be taken in conjunction with my position vis-a-vis the death penalty and torture outlined above.

Another response to this arugment is, again, something we’ve already covered: It probably already goes on. Indeed, it does go on — see the posts below for just two examples of where we’ve benefited from torture. Would my opponents on this issue trade those 4,000 lives saved from the Philippine plot for a clearer consience?

So if it does go on, isn’t it better to have a clear set of parameters in place — to throw a little sunshine on the practice? Would we rather continue to let it go on in private, behind closed doors, or would we rather it be done with a warrant, where it can be monitored and limited?

If torture is illegal, for example, how can we prosecute the CIA agent who behind closed doors broke the law and tortured an innocent man whom he legitimately thought was guilty, but praise the CIA agent who behind closed doors broke the law and tortured a guilty man who was guilty and, consequently, saved a city?

Perhaps one guy was more competent than the other (i.e., he better recognized the threat). But is one really more criminal than the other?

Make torture legal via a judge-issued warrant. The agent then has clear guidelines he must follow. Let a judge — on the public record — weight the costs and benefits — the likelihood of guilt vs. innocence with the number of lives at stake — make the call.

7) You say we should only torture non-citizens. That’s hypocritical/xenophobic/racist.

My distinction between citizens and non-citizens (or, rather, enemy combatants captured outside the U.S.) was more an acknowlegement of current law than a moral argument. U.S. citizens are protected by the Constitution — whether they’re al-Qaeda operatives or anti-government militia-types. Barring an amendment, we’ve no choice but to respect those rights (and I think that’s a good thing).

Enemy combatants captured in other countries have no rights under the U.S. Constitution. That’s why our government can kill them.

The whole concept of a state rests on the idea that we — American citizens — forfeit certain rights so that we might have a (limited) government to protect us from outside threats, and from one another. Noncitizens don’t factor into the equation. I don’t forfeit a certain percentage of my income to the state so that the state might then afford the same rights to noncitizen that it affords to me — especially when that noncitizen has vowed to kill me and my fellow citizens for the very fact that we’re American citizens.

My government’s job is to protect me from people who want to kill me. If the people who want to kill me are American citizens, then they’ve made the same social contract with the U.S. government I have, and therefore are tried via the criminal justice system with all the rights and privileges I have. If the people who want to kill me aren’t American citizens, my government protects me with war. There’s no Bill of Rights in war. And it certainly isn’t the job of my government to apply Bill of Rights to people from other countries (whether they’re acting on behalf of those countries, or on their own) who want to kill me.

8) The question I’ve yet to see convincingly answered:

How is torturing al-Qaeda operatives differnent from killing al-Qaeda operatives?

Most every argument against torture I’ve read over the past few days has come from someone I’m fairly sure would have no problem with an American special forces team shooting Osama between the eyes were they to find him somewhere in Kyber Pass. Why, then, is it okay to assassinate an al-Qaeda leader without trial, but it’s not okay to torture one? Especially when torture might yield the whereabouts of other leaders, or might tip us off to pending attacks, thus saving the lives of American citizens?

The only arguments I’ve seen that even address this question take a practical tactic — something along the lines of “because we’re not sure torture works,” or “what if they give us bad information?” Well, torture has worked in the past. In fact, going back to World War II, it’s track record is pretty good. And practically, what’s the difference between killing an al-Qaeda leader — in which case you get no tips — vs. torturing one into givin you bad information — in which case you bad tips? Either way, you’re not going to catch any more bad guys, and you’re not privvy to info on any future attacks. The only difference is, with option #2, there’s at least a chance you could extract some worthwhile intelligence.

9) My Bottom Line:

We’re at war with an enemy that doesn’t fear death, and that likely won’t stop until

a) they’re all dead

or

b) we are.

It’s only a matter of time before they have access to weapons that could kill thousands, millions, of us in an eyeblink.

At some point, we’ll have to decide if the rights of those potential dead to live deserve more more moral weight than the rights of our sworn enemies to some cross-border conception of the Bill of Rights, or Geneva Accords protection (which, actually, they don’t really qualify for, since they don’t abide by traditional rules of war).

I’d like to think that this is a boundary-drawing issue, that even my most pointed critics of the past few days have in their own minds a tipping point at which they’ll acknowledge that, should things get really nasty, we’re going to have to get our hands dirty.

In my mind, 3,000 dead is a pretty good tipping point. For others, it may take more — perhaps a city or two.

I’d rather not wait until then.

This entry was posted on Sunday, March 9th, 2003 at 9:10 am by Radley Balko and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.