Should we torture detainees, or give them candy?

In was talking to someone today about the Gonzales hearings, I pointed out that Democrats were singling out the nominee for things he didn’t do. My interlocutor said that Gonzales “authorized torture.” I replied that Gonzales had done no such thing: he had merely given a definition of the line where torture begins; also, he repeated the plain-as-day fact that al Qaeda and Taliban detainees are illegal combatants, and cannot be considered legal under any conceivable definition of the Geneva Conventions.
I gave my personal opinion: that we should have extracted whatever information we could from the detainees, then executed them, as customary international law allows. My friend persisted: we should do no such thing. We should always treat the “prisoners,” as he called them, at the highest level of kindness. Furthermore, Judge Gonzales should never, ever have given the opinions he did, because he was “representing the United States.”
I demurred again. No, I said, the man was White House counsel. He was called upon to give legal opinions, not moral treatises. He was asked, “What treatment can these detainees receive without torturing them?” and he answered the question. He was not called up to answer whether the treatments were prudent or even moral.
Sticking to his guns, my friend repeated that Gonzales should not have said such a thing. It was completely wrong for him to do so. I said that was a recipe for either lying or making sure legal advice is delivered orally, so there is no written record of the advice. It would mean that in the back of the counsel’s mind, he would be thinking, “Should I give him my legal opinion, or the legal opinion that would look best if I’m ever up for Senate confirmation?”
My friend proceeded to connect the “condoning” of torture with the prisoner abuse at Abu Ghraib, and that all the officers in the abusers’ chain of command should have been indicted. (Hey, to me those pictures looked like a normal Saturday night party at Andrew Sullivan’s townhouse.) This seemed like a departure from the rule of law that he was just championing — since there is no evidence that the officers authorized the abuse, why should they go to jail? I mean, I’m all for humbling the mighty when they’ve done wrong, and the military should have sacked the abusers’ superiors (which they did). But to throw them in jail on the mere suspicion that they might have participated, in the absence of any proof, did seem a little unfair to me. If the low-level people had been able to implicate their superiors in exchange for lighter sentences, at least some would have. Since none of them have, it’s reasonable to conclude they were acting out their own diseased fantasies.
There are, however, many people who not only want to excuse torture, they want to see it practiced as a matter of course. John Derbyshire on NRO reports that when he wrote a column against torture, “reader response…was overwhelmingly pro-torture.” That comports with my own experience, as I have argued with people that it is inhumane to torture convicted murderers to death, and why it would not be a good idea to allow police officers to summarily execute criminal suspects.
So, on the one hand, you have people to whom cutting off a detainee’s finger is A-okay. On the other, you have people who think that raising one’s voice at a detainee is a war crime. (Don’t tell my kids!) Occasionally, for a flickering moment, I wonder why God bothered to give us an intellect and free will in the first place.

30 comments

  2. OK, to seriously answer what I think you’re driving at — why so many people (wrongly) think dismemberment fine?
    Because it’s deja vu all over again, and they’re just walking away at what they see as The Sect (the Cultural Elite, whatever) trying to impose the effete mores of the university seminar room on the one institution in society that HAS to operate on the opposite principle. Many sense or have been given occasion to realize that for the New York Times, Democratic senators, anti-American bedwetters and some pharisaical moralists, raising your voice IS torture. Those who don’t blink at fingers being cut off see this whole kerfuffle as one more step in The Sect’s bid to deligitimize force and violence as such. They also see international treaties being cited (thus international bureaucrats, with an essentially anti-American agenda, are empowered). They have a sense, from family memory and a more-realistic sense of how the world works, that this is mild stuff, by any historical standard, and that it no way reflects on the justice of the Iraq or Afghan wars (the heavy lifting it is being made to do).
    And so they tune the criticism out. This will go nowhere. Gonzales will get confirmed with 95 votes, assuming no pix of him with a dead girl or a live boy. As usual, nothing puts morality in a worse light than moralizers.

  3. It is inconceivable that any Christian, or any American, would approve of torture.
    Whatever happened to “love your enemy”?
    The taliban were the government and soldiers of Afganistan. The Geneva Conventions apply.
    And if we -had- treated them properly, they might have talked.
    Everyone who willingly participated in the torture or ordered it, should be hung at the crossroads.

  4. The taliban were the government and soldiers of Afganistan. The Geneva Conventions apply.
    There are situations when members of a real government’s army are not covered by Geneva, like when they don’t wear uniforms (thus making it impossible to tell them from local civilians until they start shooting, thus gravely endangering local civilians). I think these dubious appeals to Geneva confuse the issue, since torture is wrong regardless of whether the Geneva convention applies or not.

  5. Coward:
    But this is where the issue always gets fudged in the rush to fall over one another, proving How Good I Am By Denouncing … (hush) … “Torture” … Louder Than The Person Next To Me.
    Gonzales’ actual personally-written memo is about whether al Qaeda and Taliban are POWs, a category under Geneva (they manifestly are not, for reasons that make the world assumed in 1949 quaint). Granting them such a status entitles them to a helluva lot more than immunity from The Iron Maiden and Finger-Chopping Time.
    And given their flouting of the laws of war in the first place (uniforms, carrying weapons openly), the gloves have to come off, if for no better reason than to give governments reason to abide by the treaty in the first place. If there are no actual effectively-enforced penalties to violating it, a treaty (like an appeal to “natural law” absent specific divine providence) is a collection of ink and wood-pulp molecules signifying nothing.

  6. “Whatever happened to “love your enemy”?”
    …followed by:
    “Everyone who willingly participated in the torture or ordered it, should be hung at the crossroads.”
    Bwah-Ha-Ha-Ha!!! But presumably hanged in a humane and undistressing fashion, right?

  7. I’ll grant that the legal status of this whole situation is blown way out of proportion by the media (sorry, Victor). The detainees at Gitmo, from what I’ve read, may not be legitimate enemy combatants, but I’m still very uneasy about the idea of waiving off the Geneva Conventions.
    Just because it’s legal for us to shoot them as spys or agents provocateurs or fifth columnists or whatever, doesn’t automatically make it either wise or moral to do so.

  8. For some reason, I see an uncomfortable parallel between those who keep arguing that the captured terrorists are not under the Geneva convention, therefore anything goes, and those who argue that the fetus is not a person under the Constitution, therefore anything goes.

  9. cmatt:
    “the captured terrorists are not under the Geneva convention, therefore anything goes”
    Who, exactly, has argued that?
    Mark:
    Why apologize to me? I wholeheartedly agree with everything in that first sentence.

  10. “Just because it’s legal for us to shoot them as spys or agents provocateurs or fifth columnists or whatever, doesn’t automatically make it either wise or moral to do so.”
    No body is proposing this. Because they are unlawful combatants – in every sense of the word – they can and should be interrogated. The Geneva Conventions are designed for wars between official soldiers fighting in wars using just methods. True prisoners of war cannot be interrogated.
    There are times in military operations when unlawful combatants can and should be killed on the spot. A good example of this is the Vietnamese general who executed a Viet Cong captain as captured in the famous photo. The man was in civilian clothes and had just killed another soldier’s family.
    I wonder, though, why the Gitmo detainees are not returned to the Afgani government for safe-keeping. This would minimize our public relations problem.

  11. Actually, Charles, since our war with Afghanistan, the Taliban government as a sovereign entity, is over, if the Taliban WERE accorded POW status, that’s exactly what would happen to them. The Taliban were certainly the de facto government, but now the Northern Alliance-led coalition is at least the de jure government — the “successor regime” in international law terms and one of the provisions for POWs is that, as soon as practical (some fudge room there) after the war is over, they be returned to their country, even if it is under a successor regime allied with the victorious power.
    A little bird tells me this would not be like the Third Reich’s soldiers reintegrating into the Federal Republic in the 1950s. And that same avian creature tells me they’ll prefer Guantanamo to their fate under Islamic law. Which will more closely resemble what happened to the Balts, Croats, Ukrainians and Slovaks who fought with Nazi collaborationist regimes and were repatriated to their Communist or now-Communist homelands. But we’ll be morally clean and feel good about ourselves, and that’s what counts.

  12. I only have a moment to comment on these very fine points, so I’ll contribute a point of information:
    The Taliban were only recognized as a legitimate government by three countries — Pakistan (they helped create them), some small Gulf state that I can’t remember, and (you knew this was coming): Our Friends, The Saudis.
    Furthermore, they were not signatories to the Geneva Conventions, so we had no particular legal obligation to their combatants. We do, always and everywhere, have an obligation to respect their human dignity, but that does not preclude administering punishment according to the gravity of their crimes — among them, murdering, oppressing, and (yes) torturing the innocent.

  13. Eric:
    The third state was the United Arab Emirates.
    But no matter what, the Taliban was certainly the de facto government of Afghanistan, and that would matter in the “grant them POW status” hypothetical.
    I didn’t think of the point that since Afghanistan was not a party to the treaty, its nationals are not protected. Would that issue at all be affected by the regime change (as a legal matter; as a political matter, it obviously changes everything)?

  14. The problem in this case is that the Geneva Conventions are largely irrelevant, and Judge Gonzales’ continued referral to them is disingenous at best. According to the Department of Justice’s own recent opinion the Convention Against Torture and associated federal statutes clearly prohibited the kinds of activities the Gonzales memo approved of. These sanctions apply to any activties on US soil, or any activities carried out by US nationals anywhere in the world. It does not matter who the person being held or interrogated is.

  15. And then, there’s the moral issue … (I still don’t buy that a lawyer – be he the president’s, or a bishop’s, or anyone else – can simply prescind from that, not even in agreeing to the framing of a question.)

  17. Claude:
    But as the updated memo that you linked to sez, both US law (for good reason in my view) and the Convention Against Torture (to the extent it should exist at all, for good reason in my view) only consider something “torture” if the pain is “severe.” And CAT and US law both specifically distinguish torture and other forms of “cruel,” “inhuman” or “degrading” treatment (their adjectives). According to several legal analysts, the former is based on the role “custom” plays in international law and the (reasonable) desire to limit “torture” to things that would be illegal under most (secular, modern) domestic laws. To limit itself to things “universally abhorred,” which has the effect of immunizing custom and making the widespread fact of something its legal defense. And which does a lot less what the comfortable in the world’s richest country thinks it does.
    I’m not so sure it’s really that much of a difference from the other 2002 memo (the one Gonzales *didn’t* write) except for the first-sentence sop, and the picking over “severe” vs. “excruciating,” with fewer examples of what the terms might mean — like the organ failure language. So now what counts as “severe,” and who makes the call (based on what life experience, etc.)? According to new memo — “severe” will be given “its ordinary or natural meaning.” That’s reassuring, given the objective wisdom and veracity of judges and magistrates, both in the US and abroad. These are not simple questions like some pretend, and they become much more than moral questions when given the force of law. If you don’t want that modification “severe,” for example, you’ve essentially banned all forms of punishment and who knows what down the road when the fertile minds of the lawyer profession swarm like locusts on such language. (Why some Catholic moralists think giving that class of person more words to work with is something I will go to my grave not understanding.)
    Also, both US law and CAT still grant absolute loopholes to “lawful sanctions” and thus would legitimate torture warrants, with permanent magistrates and a due finding — like what happens now with emergency search warrants.
    Further, US law at least (and the Convention is silent on this point) seems to limit the category “mental suffering” to mind-altering substances and procedures. So garden-variety and even culturally-chosen humiliations or traumas don’t count. And again for very good reason: “mental pain” turns the crime into nothing but the victim’s potentially self-aggrandizing perception. (Remember that episode of BEAVIS & BUTTHEAD where they sue a girl for sexual harassment because she’s so hot and won’t put out for them. That was awesome. And prescient of where giving too mach latitude to “mental pain” goes.)

  18. Victor, let’s look at the text of the new memo. This is from page 2, where the significant changes from the original document are summarized:

    This memorandum supersedes the August 2002 Memorandum in its entirety. Becuase the discussion in that memorandum concerning the President’s Commander-in-Chief power and the potential defenses to liability was — and remains — unnecessary, it has been eliminated from the analysis that follows. Consideration of the bounds or any such authority would be inconsistent with the President’s unequivocal directive that United States personnel not engage in torture.

    We have also modified in some important respects our analysis of the legal standards applicable under 18 USC sections 2340-2340A. For example, we disagree with statements in the August 2002 Memorandum limiting “severe” pain under the statue to “excruciating” pain, or to pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” There are additional areas where we disagree with or modify the analysis in the August 2002 Memorandum, as identified in the discussion below. (citation apparatus removed for clarity)

    The reason why these paragraphs are in the top in the summary is that they refer to the core issues in the earier memo — the assertion of wide ranging executive power to authorize torture in spite of CAT and Geneva (the earlier memo expicitly discussed the need for an execuitve order to protect interrogators from criminal charges), and a more limited definition of torture to allow for wider scope of interrogation tactics. If you eliminate those measures, there is little point to the August 2002 memo.
    And Beavis and Butthead? Give me a break, Victor. As has been widely and well reported, between the FBI, testimony in courts-martial and the Taguba report, we are discussing, in Iraq, Afghanistan and Guantanamo:
    – repeated severe beatings and abuse including recieving burns and being dropped onto barbed wire;
    – intentional sexual humiliation, both in Iraq and at Guantanamo;
    – being threatened by unmuzzled military working dogs which included severe bite injuries in at least one case;
    – reported male rape (currenly under military investigation);
    – death while under interrogation.
    And one should note that these reports included the evaluation that the overwhelming majority of detainees, inluding those involved in these incidents, were innocent persons rounded up by mistake. (We certainly had no problem letting almost all of them out once things got embarrasing.) And, according to the FBI, this kind of questioning has not only developed little or no intelligence of any value, it probably has destroyed opportunities of gaining useful intelligence.

  19. I’m sorry, but the first cited paragraph doesn’t say much, as a matter of US law or its interpretation. “The issue has been mooted by a presidential decision to do X, so there’s no point in discussing it what could provide legal basis for him to decide to do not-X should he want to do not-X.”
    And the issues in the second cited graf, I noted what it was — severe vs. excruciating, and I see that as just window-dressing with the first-sentence cherry on top, for the reasons stated above.
    Have fun with my lowbrow citations if you like, but I think the point was clear. It had nothing to do with the actual practices of this or that holding facility, but the consequences of crafting sweeping, legally-binding definitions that sound oh-so-morally-fine that if you protest them, you’re an apostate Nazi. Without the “severe” restriction and without the immunity granted due punishment, defining “mental suffering” is damn easy.

  20. First of all, Afghanistan had an ongoing civil war. The Northern Alliance was recognized by everybody (save three countries) as the legitimate government. The fact that they were losing and had only 10-15% of the territory of Afghanistan under their control on average does not diminish their legitimacy. Heck, the KMT was the official government of China until Nixon reversed it in the 1970s.
    More importantly, the original enforcement protocol for the GC was that they were reciprocal agreements. We don’t step out of the them and you don’t either. Illegal combatants were to be treated harsher because they were, well, illegal.
    The hand wringing over torture completely ignores the problem of what rights a legal combatant has should be subtracted from an illegal combatant. To my knowledge nobody in the sympathy brigade is treating the issue seriously and those on the other side aren’t looking at it from precisely this perspective either.
    Just remember, if you don’t differentiate, you provide a bonus for perfidy in war and that gets people killed. It can get an awful lot of people killed who are complete innocents. So come up with something that the other side will fear or admit that you want more perfidy and a higher innocent body count because those are the effects of what you advocate.

  21. Claude, your verbal sleight-of-hand is an example of how difficult it is to talk about this issue. You’re confusing Iraq with Afghanistan, and morphing unauthorized prisoner abuse (which nobody defends) into legally controlled interrogations. I don’t know if this confusion is deliberate in your case, but the porcine pseudo-Catholic windbag from Massachusetts certainly should have known better, and he has been trying to do the same kind of distortion this week.
    Kevin, I not only disagree with your take on torture, I wholeheartedly disagree with your entire approach to physical force in general. While I defer to you on matters of scholarship, as I am merely a self-catechized layman, I don’t think the Catechism is saying what you want it to say. You might interpret it your way; you might have wanted the authors to say “any physical force that causes any level of pain.”
    But it doesn’t. What the Catechism condemns is “violence.” Now we’re back to defining terms: what is violence? Surely it cannot mean any use of force, as the Catechism upholds the use of force on a personal level (defending oneself from attack) and at the state level (it not only endorses military action, it accepts a state’s necessity to draft its citizens to fight on its behalf.)
    Were some of the “coercive” techniques used at Guantanamo equivalent to torture? Some may have been. I’m not endorsing everything that happened there. What I’ve been (unsuccessfully) pushing over the last year is for good Catholics to realize that just because something isn’t “nice,” or is uncharitable under most circumstances, doesn’t mean it isn’t justified.

  22. TM:
    How DARE you consider actual consequences, you … you … consequence–shalist!!! There are no “effects of what you advocate”!!! Only what you advocate, and after having performed a moral bath on myself — all the blood runs down the drain like in SICKO. Because what matters is that we follow the rules. Full stop. End of discussion.

  23. But seriously, TM, I’m not sure why this paragraph of mine …
    “And given their flouting of the laws of war in the first place (uniforms, carrying weapons openly), the gloves have to come off, if for no better reason than to give governments reason to abide by the treaty in the first place. If there are no actual effectively-enforced penalties to violating it, a treaty (like an appeal to “natural law” absent specific divine providence) is a collection of ink and wood-pulp molecules signifying nothing” …
    doesn’t say exactly what you say isn’t being said. We HAVE to treat illegal combatants worse, if only to provide advantage to fighting legally.

  25. Kevin,
    Please tell me you didn’t mean to imply in your blog article that spanking your own child is morally equivalent to torture. I misunderstood that, right?

  26. The point I’m trying to make is to make the discussion a paired one about torture and the perfidy bonus. Once you have a clear understanding that there are two wrongs to be avoided, conversation can go forward with far more productive results and far less destructive invective.
    The number of reports I’ve seen on military oriented blogs of enemy perfidy strikes me that we’ve got a much bigger problem of reducing the perfidy bonus than we do with torture, authorized or unauthorized both. In an ideal world, there would be no perfidy bonus and no torture. Maybe we can thread between Scylla and Charybdis on this one but to do that we all have to have a consensus that both exist and both are to be equally avoided.
    I’d seriously rework the headline if this was my thread.

  27. Eric, first, I’d like an example of something that causes pain but isn’t violence. Surely the tactics actually at issue in this war are violence. Furthermore, there’s a difference between “violence” and “force” – e.g., I believe the CCC speaks of using defensive “force,” not “violence.”
    Second, again, you have to read the CCC together with – e.g. – GS – which rules out “coercion” of the will, period. Otherwise, you’re artificially narrowing the Magisterium’s position.
    Fr. JP, I didn’t say that. However, I really wonder whether punishment primarily by means of pain doesn’t differ from “torture,” to the extent that it does so, by degree rather than by kind. I certainly think that what the Church teaches about the purposes and methods of punishment should challenge some of us with regard to our understanding of child-raising, as well as in our understanding of criminal justice and war and the like. In any event, my main point was that I don’t think it will at all do to suggest – as at least one commenter has suggested – that if you take the CCC seriously, it’d rule out spanking, therefore, it can’t possibly mean what it says.

  28. an example of something that causes pain but isn’t violence
    Last summer I got a filing.
    I don’t understand how we can separate inflicting pain on people from the purposes for which we might do it. The reason is that pain is not itself evil.
    I have no idea how to distinguish between torture and aggressive and aversive methods of interrogation. Some people claim to know the difference, some people think it is obvious. I am willing to assume that there is such a difference.
    We should aggressively interrogate prisoners when they have a duty to divulge certain information and when, by withholding it, they continue to cooperate actively in evil acts, which we are attempting to prevent or stop. Such interrogation should stop short of torture.

  29. Charles, I like the terms you use in your last paragraph: “they continue to cooperate actively in evil acts.” That is a far cry from a legal combatant who probably had nothing to do with a war or its overall conduct, who is certainly entitled to be left alone under the natural law, as well as international law.
    Kevin, yet again we’re right back at defining our terms, in this case “coercion.” I don’t think I have the capacity to “artificially narrow the Magisterium’s position” on anything. To say that a lawful authority cannot do anything to form someone’s will, even if the object of the formation rejects it, is to reject rehabilition as a legitimate end of incarceration. It would still be morally permissible as retributive justice, but if we take your argument to its unavoidable end, we would have to ban prisons as contrary to the dignity of the human person.
    You asked for “an example of something that causes pain but isn’t violence.” I think you must have posted your reply hurredly (something I’m frequently guilty of), because I’m not sure what you mean — interrogation tactics of the illegal combatants, or normal combat operations?
    If you’re talking about the former, then I can give you several examples. First, exposing the detainees to temperature changes. The Mideast is hot, and not much of it is air-conditioned; most of the detainees are from the Mideast, and thus they are used to hot weather. They might experience pain, but not a lot, and it stretches credulity to call it torture.
    Same deal with denying the detainees small comforts, or even food for short times (provided their health does not deteriorate.) Slightly painful? Sure. Violent? Nope. If these actions are taken in the hope that these people will rat out their “brothers,” it’s not abuse (though it would be if the guards were just indulging their sadistic pleasures, and not pursuing information about bad guys.)
    As for combat-related examples of force without violence: a sniper shooting an RPG-wielding Fedayeen in the head; an artillery battery blowing up a mortar position; and an F-16 pilot incinerating a dozen terrorists holed up in a warehouse. While any one of them have the potential for sin, if it they are undertaken with the object of restoring peace to Iraq and buttressing a nascent, vastly more just and peaceful government than its predecessor, then they are objectively righteous actions. They are not attempts to “violate” human persons, and so they are examples of force, not violence.

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