TORTURE MAIL: I promise I will blog about something else soon. In the meantime:

Radley Balko, at this site, posts an important point in the comments section, and I apologize if I took his words out of context: “My argument [that only non-citizens should be tortured] was a legal one, not a moral one. The fact is, we could never torture U.S. citizens because they’re protected by the U.S. Constitution.

“Foreign combatants captured outside the U.S. are not.

“If you’re going to make an argument for torture, you have to exempt the U.S. citizens, unless you want to first amend the U.S. Constitution.

“Read the whole post, not just someone else’s excerpt of it.”

Eugene Volokh’s response. UPDATE: More.

Pundit Tree responds–permalinks on fritz, scroll to “Torture.”

Larry Bell: I feel about torture as I do about Civil Rights. It is a wrong, but sometimes it can prevent a greater wrong. Violations of ones civil rights by the authorities (police, etc,) are also wrong, however the current thinking about the “Fruit of the Forbidden Tree” is (in my opinion only) incorrect. If You think that the use of torture IS necessary, to stop or mitigate a greater harm, use it, and pay the legal consequences later. If police conduct an illegal search, use the evidence, but then they go to jail for breaking the law. Probably a very naïve outlook, but…..

Edward Nutter: Lost in the discussion of whether or not to torture, and if so how and how much, is why anyone would want to do such a thing. In the case of Ali Sheik Mohammed we (the U.S.) want information in order to prevent continuing terrorist attacks. Getting accurate and timely information is key. As it happens, there are chemical and psychological means of interrogation that are more reliable and sometimes quicker than

physical torture. From the few public accounts that have leaked out, these are the methods that we are using, even though we’ve got ASM located in a nation that would allow more horrendous techniques.

Timely information is less important than accurate. Acting on bogus but quick intel is usually worse than doing nothing. Information extracted by torture tends to be false. Fortunately our nation has been able to garner that knowledge through the efforts of others (notably the French and Germans) rather than by its own research. That makes much of this discussion moot. There is no reason to torture people like ASM.

Anyone who does engage in torture, of ANYONE for ANY reason puts themselves in the same catagory as ASM and deserves the same treatment. I do support the notion of capital punishment, but wouldn’t object to locking him up until he forgets what he would do with his 72 virgins if he had the opportunity and no longer cares.

For truly time critical information there are some effective truth serums and tranquilizers available. If one has a few weeks, messing with their head is more effective in that it yields more accurate information.

I’m grateful that humans are created in such a way that interrogation by torture is unnecessary. It avoids the reality of the ethical dilema posed by Radley Balko and others on the use of torture. If torture actually were more effective then we would be truly faced with a terrible choice.

(Emma responds): I don’t think it a moot point. On the practical level, there are limits to what chemical/psychological methods can do; for example, I have a friend who once was put under pentathol. He babbled nonsense for about fifteen minutes then had an intense allergic reaction. Ended up in the hospital. I also know that there are methods of training people to resist torture…

But the practicalities of the matter are not the answer. My opposition to torture springs from serious moral and religious beliefs. I believe that destroying someone’s spirit fits the formal definition of sin: an offense against God. I am not entitled to destroy what God creates in his own image.

I am able to consider killing only in matters of self-defense or defending others. I am still struggling with death penalty issues, as I can see where a case could be made that society is defending itself in putting someone to death. But it’s hard to draw the line somewhere.

Lord, human issues are messy, aren’t they?

Howard Sklar: My take is this. And it’s something you didn’t quite cover. The rationale of using torture (and I’m still forming my opinions on this, as well) is strongest, I think, not in relation to the guilt of the tortured, or for any reason of Pat Robertson’s, but can be justified in relation to the importance of the information sought to be extracted.

In the example of the soon-to-be-gone Buffalo, I have a hard time saying that you can’t torture the person who knows when and where the bomb will explode. Because that information is specific. I’m not talking about using

torture to get someone to implicate themselves. But when there’s a specific piece of information, and the person definitely has it, and the information will save lives, and the person being tortured deserves it, I have a hard time

saying no. Now, that “and the person deserves it” line I’m sure will raise some eyebrows, and I know that the various standards of proof necessary for these might be elusive, but the whole area is a moral quagmire.

Harry Gross: Here is an interesting sidelight on torture. It may be just a smokescreen. As a means of extracting in formation, it is pretty useless for quick reaction. To a large extent torture has been a means of enforced self-confession, not information. Think about it. These characters are so computer dependent that the seizure of a hard drive is far more useful than torture. It can spew its guts faster than anybody. This is is the real data source, especially when there is a lag between its seizure and knowledge of the same. However, if the terrorists think that torture is how info is extracted, then the real source of information remains more hidden, at least for a while.

Jed Skillman: The problem of torture is the problem of dehumanization. It is a practice usually engaged in under the guise of getting cooperation but it is actually a means of desecration. Think of the victim as a giant “voodoo doll.” Instead of sticking pins into an inanimate object the torturer has a real body, a real effigy, and inflict real pain.

I truly believe that the questioning that the recently captured #2 is in line with getting answers. The prisoner has the choice between cooperating the easy way or the hard way, but the fact that he will cooperate is not an

option. I therefore suspect that he hasn’t had a moment of sleep in the last ten days that hasn’t been purchased with answers. After four or five days someone said that if he states the date of his birth, or some other trivial

and easily verified question he’ll be given an hour of sleep. They start with the simple stuff and then move to the meat and potatoes. He may be able to go without sleep for days, but not for weeks. I do not think there are

burning coals being used. The intelligence officers know how to ask questions and get answers and I think, I hope, they know how to maintain their own human decency.

My father was in WWII and mentioned being addressed by an officer to the effect that “Men, when this is over we’ll all want to go home. We will conduct ourselves accordingly.” Those few words say a lot.

Gene Humphreys: On the “better to die like a man than live like a beast” point, I think that’s what Vatican II essentially said in Gaudium et Spes para.27 (emphasis added):

Furthermore, whatever is opposed to life itself, such as any type of murder, genocide, abortion, euthanasia or wilful self-destruction, whatever violates the integrity of the human person, such as mutilation, torments inflicted on body or mind, attempts to coerce the will itself; whatever insults human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children; as well as disgraceful working conditions, where men are treated as mere tools for profit, rather than as free and responsible persons; all these things and others of their like are infamies indeed. They poison human society, but they do more harm to those who practice them than those who suffer from the injury. Moreover, they are

supreme dishonor to the Creator.

Dan Duff: The argument over torture is best examined in the context of human rights. We can find in our fundamental social contract a right to life and liberty, and within these a right to not be tortured, an act of removal of liberty and life at its core.

These rights do not spring from any divine grant, or inherent condition of the nature of man. They are formed in the basic fabric of our social contract. The right to life and liberty is only guaranteed by remaining in compliance

with the social contract. The obvious example of the ability of society to withdraw these rights from an individual is the case of the criminal.

The convicted thief will lose (temporarily) his right to liberty by being placed in prison. In some societies, the convicted murderer will lose his right to life. How is it that this right, which we take as the fundamental basis of

our society, can be taken? The individual who breaks the contract loses all rights under the contract, for he has filed to live under the rules imposed by society.

Still, society respects certain limits on the withdrawal of rights. Even the most heinous murderers of out time–the serial killers who prey on the weakest members of the society, the innocent who most need the protections

afforded by the contract–are not tortured. Why?

The answer is that even in their violation of the contract, the killers still are meeting many of their obligations to society. Even in prison, there are rules that they agree to follow. Although segregated, the prisoner is still acting in society, and by and large obeys the rules of society, even if under a more apparent coercion than free individuals experience. The prisoners as a rule do not kill each other, they obey the rules propagated by the prison administration, and therefore retain an abbreviated form of their rights as were held when members of the free society.

The case of the terrorist differs wholly from this however. The terrorist has not only renounced the social contract, he has acted to destroy the society. The common (and even uncommon) criminal may have violated the

contract, but they have undertaken to destroy individuals, or increase their own wealth, but not to destroy the contract itself. The terrorist has placed himself outside of the contract totally by his actions, and therefore has forfeited all the protections of human rights, which spring ONLY from that contract.

Should the society torture? This is a different question from whether the society has a right to torture. Since the terrorist has renounced all human rights, he has no protection. But a society must choose whether it will torture.

The primary obligation of society under the contact is to preserve itself in order to preserve the life and liberty of its members. This must be accomplished without the destruction of the social contract itself to accomplish that goal. Given this, I believe that a society has a moral obligation to torture the terrorist in order to protect itself. The goal of the terrorist is not to take the lives of thousands of the members of a society. The loss of life is the means, not the end. The end is the destruction of the society itself. Society has the right, and the obligation, to act to preserve itself by extraordinary means when threatened with destruction. By the use of torture on those who have forfeited all human right through their actions, society is undertaking to preserve not just the lives of the thousands would die by a terrorist act, but he fundamental human rights of the millions who live in the society.

Paul Donnelly: Two points on torture which I think you missed: One, raised from “Alice Marshall” on Orcinus’s blog, is simple: Gee, whiz, what if the FBI had some guy in custody who was part of some terrorist

plot to do something awful and couldn’t get him to give up information? Why not yank out his fingernails, or something?

She observes that this already happened. Massoui was in custody on a visa violation, and a career FBI official asked for authority to search his hard drive. Not hook him up to jumper cables, not kidnap his kids — just basic

law enforcement. And Bush administration political appointees (who? why? nobody asks – the LIBERAL media, my elbow) refused.

No need for torture there. But there is a need for an explanation, don’t ya think? Try Grover Norquist and the guys he got Bush administration jobs. Come up with some NAMES.

Second, my own: the Patriot II act proposes that membership in organizations certified by the AG as terrorist will be sufficient to strip citizenship from an American, so that the guy can be deported: for torture, presumably,

because nobody can come up with any OTHER reason to deport a guy like that. (He can be arrested, interrogated, incarcerated, and even executed here: what other reason to deport him could there be, but to torture him?)

But that’s not the really important issue. The really important one is: since when does the U.S. government have any authority AT ALL to strip citizenship from anybody?

Think about it.

[He later added:] The relevant case is “Afroyim vs. Rusk” — in 1968, if memory serves. Congress has enacted a whole series of “expatriating acts” — things that if you do them, you are considered to have given up your citizenship: voting in another country’s elections, serving in another nation’s armed forces or government, etc. The courts finally vacated all of ’em, with the Supremes finally ruling that Mr. Afroyim could, too, vote in Israel’s elections AND retain his U.S. citizenship: Congress has no power to take lawfully acquired citizenship away from anybody. (a 5-4 vote, though)

That’s another reason why this is such a big deal: if Ashcroft had his way (and who knows by this Court might back him), it would reverse the whole core idea that in THIS country, the individual is sovereign, not the

government.

(There is also a provision for a citizen voluntarily giving up his citizenship — hell, the State Department even has a form for it. But Meir Kahane, the guy who founded the JDL, tested that all the way through the appeals process, and was still winning when he was assassinated.)

And someone who may wish to remain anonymous: Torture does not always work. There are two components to this truth.

1.) There are some people who — hard as it may be to believe in this soft age — are resistant to physical pain. There is nothing more demoralizing to the torturer, or more inspiring to the enemy he seeks to torture, than the sight of the tortured dying with a smile or even a blessing, physically broken but mentally unvanquished. “By God’s grace, Mr Ridley” said Latimer as they were led to the stake, “we shall this day light such a fire in England as I trust shall never be extinguished.”

Torture creates martyrs. Does the survival of Christianity under torture (in Rome, in Japan, in the Soviet Union) not prove that simple truth?

2.) Torture does NOT always succeed in extracting reliable information even when it does work, i.e. when it persuades people to “confess”. Some people under torture will say ANYTHING to make it stop: make things up;

confess to things they have not done, etc.

Think of the Soviet Union; think of the Inquisition; think of the witch hunts. Did the torturers in these instances succeed in extracting usable truths? Widespread judicial torture creates panic and hysteria and leads to many false confessions. Once upon a time, thanks to the use of torture and the crazy stories it extracted, otherwise reasonable people actually came to believe that there was a widespread witch-conspiracy afoot in Europe, determined to bring down Christendom. I realise the present situation is not identical to that of sixteenth-century Germany in the throes of the witch hunts, but some of the lessons learned there surely apply.

I know you dislike utilitarian arguments; so do I, usually, but I think in this case the two I offer might be a useful corrective against those who would use torture.