Comments on my Torture note

As usual friends sent some interesting comments on my note
on torture. Here are two of them with a further comment from me.

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Dear Warren,

As always, I enjoy your deliberations.

It would please me no end to agree fully with you — not so
much to be in agreement with you (that’s only a bonus) but to have a firm
conclusion about a difficult and unseemly issue.

These are among my difficulties:

It doesn’t work argument: As best I can tell, a wide variety
of torture has been used, probably every year, for thousands of years. All
kinds and manner of men. Has it been used by so many and so different people,
only because they are ignorant that it doesn’t work and because they "feel
good" torturing people? That seems most unlikely. Is there any comparable
practice, that spans most cultures and civilizations over centuries, that
continues to be done despite "never working"?

Might one think that torture is a specialized case to
terrorism. The use of violence, not for its own sake, but to change the
political/psychological dynamics. One would hardly argue that "terrorism
never works" repugnant though it is.

The military: the military has another reason for avoiding
torture — the belief that their military personnel are more likely to be
tortured if they are believed to torture. This seems true in some
circumstances, but not others (depending who the opponent is), but it seems
important for them to make this part of their creed. The FBI and the military
seem pretty vocal, but the CIA seems not to share their aversion.

The Geneva Accords: It’s my understanding that it applies
primarily or exclusively to standard "wars" with disciplined military
under state control.

I am very troubled by the lost of standing the U.S. has
suffered over the past decade or more. The lack of disciplinary action after
Abu Ghraib is particularly damaging and disgusting. But I wonder, of the nearly
200 countries, which of them would not have been tempted to waterboarding three
people had that country suffered something comparable to 9/11 and had very
likely suspects in hand? That is, I suspect almost all the governments would
have done something comparable if they were in comparable circumstances. That’s
a version of the argument above that most everyone thinks it works, but also an
argument that there is a certain disingenuosness going on here.

One might, of course, argue that even if it does work, and
even if most everyone else does do it, the U.S. should not — that the U.S. is
more moral than all other countries and should conduct itself as truly
"exceptional" — even if it means risking more terrorist attacks than
would otherwise be the case. An appealing argument but considerably less
persuasive.

All this from someone who was very against the Iraq invasion
— and continues to think it arguably the biggest blunder the US has made in at
least half a century — and that the biggest costs may well be in the future.
The the Patriot Act was a terrible piece of legislation. That Yoo’s argument
for a "unitary" executive a very shoddy and self-serving concoction.

That said, I think we are still at sea, as a nation, on how
to react to the challenge of terrorism. It is distinct from simple criminality
and traditional war. Does the phenomenon need distinct institutions and
structures to accommodate it into a constitutional and rule of law framework?
Bush II worked on this but failed to engage the rest of the country which is
desperately necessary for an enduring consensus to be formed. It looks as if
the challenge of terrorism, or at least the Islamic version, may fade before we
wrestle with the larger issues. Releasing terrorists, (like sex molesters,
criminally insane and other such) seems mistaken yet holding them indefinitely
violates something very fundamental, to cite but one example. Judicial
oversight, with legislative guidance, is needed together with speed and secrecy
in many cases. Etc.

As always, my best,

Bob [Robert Schadler, former Director of the Office of
International Visitors and Chief of Staff to the Director of former U.S.
Information Agency in the Reagan Administration]

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My reply:

Dear Bob,

Thanks for your thoughtful comments. As you note, both
morality and effectiveness matter. As you imply, torture seems to works some
times or it wouldn’t have such a long history. The statements last year by Adm.
Dennis Blair (Ret), the Director of National Intelligence, are
interesting in this regard. His comments were in relation to the controversy
over the use of torture by the Bush W administration.

“High value information came from interrogations in which
those methods [“enhanced interrogation”] were used and provided a deeper
understanding of the al Qa’ida organization that was attacking this country…."

"The information gained from these techniques was
valuable in some instances, but there is no way of knowing whether the same
information could have been obtained through other means. The bottom line is
these techniques have hurt our image around the world, the damage they have
done to our interests far outweighed whatever benefit they gave us and they are
not essential to our national security," Blair concluded[1] 

Best wishes,

Warren

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Warren, A good and unfortunately still a timely message that
bears repeating for future generations.  I personally thought we as a
country had finally learned, back in my law school days in justice torn
Mississippi, that if we don’t adhere to the rule of law we can not expect
anyone else to do so.  Now we’re in the very sad situation of having other
countries in both the developed and developing world use our illegal and
counterproductive behavior in the torture arena as an excuse to engage in even
worse behavior  — all in the name of fighting terrorism and promoting
"national security." While it is one thing for us to have lost our
moral and legal standing in the world, which is something we will hopefully
eventually overcome, it is another to think about all of the additional people
now being imprisoned and "legally" tortured around the world under US
legal cover.  I would say thank you for nothing Messenger Yoo; I sincerely
hope that one day you will see the light and that you will find a way to ask
all of the detainees who have and will suffer under your own
"tortured" legal machinations for forgiveness.

Hope to see you soon!

Keith [Henderson, anticorruption consultant]