This post is the result of a long process of deliberating about the use of ‘enhanced interrogation techniques’, ‘torture’, or whatever people want to label it. Terms become important because to control the names used to describe our treatment of certain ‘detainees’/’illegal enemy combatants’/’prisoners’ is in many ways to frame the debate and control it from the very beginning. So, let me say up front my use of any particular term is simply elegant variation for ease of reading and not a choice on one particular side – until I get to the heart of the matter. It will be clear where I stand on this by the end.
I’ve had a number of conversations with other lawyers, military and civilian, and even attended two different CLE seminars for my state bar requirements on this subject. This also includes debates and discussions with current judge advocates, former prosecutors at GitMo, and having trained some of the defense attorneys currently defending OMC (Office of Military Commissions) cases. I’ve had conversations with ‘regular folks’ – i.e. non-lawyers, friends, family members, and just people with opinions. Finally, it should be stated that I’ve been on the ground in Afghanistan on a number of occasions in various roles for longer than a cup of coffee.
First, I have to say that this isn’t the “slam-dunk” that people on either side think it is. There are compelling arguments to be made on either side for any of the issues, such as (a) military commissions vs. civilian trials, (b) questions about the applicability of the Geneva conventions to guys running around a battlefield without uniforms and who have no problems harming civilians, (c) the status of those knotheads in (b) once they surrender/are captured, (d) the applicability of habeas proceedings once these folks are being held by the U.S. – either at our behest or under our direct control, and finally, (e) how intelligence is obtained from these “capturees” and how they are treated more generally once we have them in our control. When you hear Alan Dershowitz publicly arguing for “torture warrants” from judges, you know you’ve entered a very strange area, one that is not simply reducible to trite bromides or political slogans. It reminds me of one of the great lines from the movie “Fletch” – when Chevy Chase’s editor asks him about the sourcing for a story and his character – Fletch (an investigative reporter) says: “Well that’s where we get into kind of a gray area.”
“How gray, Fletch?” his editor asks with exasperation.
“Charcoal.”
We’re well into the charcoal area here.
With all of that hemming and hawing out of the way, I have to say that one of great annoyances is actually with people on the same side of the argument as I am. Those who advocate against torture – in particular the talking heads on the Sunday news shows – always start by revealing just how little they know about the subject when they drone on and on about how coerced confessions/admissions are unreliable and some bullshit, unrelated study (they claim), which shows that the information received from such tactics in unreliable, and blah blah blah… As soon as I hear that I know that the person speaking has absolutely zero fucking clue about that which they are pontificating.
First, if you are advocating against coercive interrogation techniques, you cannot cede the morality of it by arguing about the relative effectiveness of torture. It’s either right or it’s wrong – regardless of whether the information obtained is garbage or absolutely essential. Either the ends justify the means – or they do not. Arguments about effectiveness are an attempt to appeal to some kind of practical, empirical data that do not exist. For example, how “ineffective” and “unreliable” is the information? What is that metric exactly? Is it 62% unreliable (and 38% reliable)? Or is it 54.3%? And who measures that? Exactly how do they do that? How much “torture” was used in these studies? Are there some tortures that we could attempt that would be slightly more reliable (and do you want to participate in that study!)? What if the 38% that was reliable was of absolutely critical importance and saved hundreds of lives – would that justify using the torture techniques? Does it become clear just how fucking stupid statements like that are? At least as an argument against coercive tactics.
Second, it’s ab-so-lute-ly false. Anyone who has any doubt about this should read Admiral Stockdale’s memoir. Or Everett Alvarez’s amazing “Chained Eagles” about his experiences as the longest held American POW. Or even Lauren Hillenbrand’s most recent (brilliant) book “Unbroken” about Louis Zamperini, a WWII POW. Everyone can be broken (notwithstanding the title) to provide information. We’re human and have limits; human depravity does not appear to have any.
Third, consider this fact, about 98% of criminal cases never go to trial. Do you know why? because in the vast majority of criminal cases, the police obtain a confession from the accused. Complete, total, and incriminating. They do so (in almost all cases) without anything even approaching rubber hoses, water-boarding, or the methods available to military or CIA interrogators. Not even close. And that’s after they’ve advised a criminal accused (who has also doubtless watched NCIS, Law and Order, Adam-12 and every other cop show that you’ve watched) and knows (and is told) that they have an absolute right to shut their pie-holes and not talk. And get a lawyer. So, if police get confessions from these criminals all the time, every day, how hard can we imagine it is for a CIA or military interrogator, who receives a shit-ton of training in how to get information, and who has absolute control over the detainee (and with the additional “tools” of John Yoo and others at their disposal), to get useful, incriminating, factually verifiable information from some uneducated (albeit very dedicated) Pashtun tribesman? Answer: they can get usable information, cross-check it against other information, technical intercepts from NSA, previously verified info from other detainees, and they know when the detainee is lying or not with pretty good accuracy. And then they can twist his testicles on top of it. Yep – they’re going to get information. You can bet your paycheck on it. That argument fails miserably.
Having said all of that, I come out on the side – after much debate about it, internally – that we simply can’t go there. We have to be on the moral high ground. Forget arguments about what happens to our troops if caught, or honoring our treaties (because that’s a whole area of debatable international law and it’s about as clear as mud), or whatever else people are mustering against torture. John McCain (who I agree with less and less every time he opens his mouth now) got this one right: we simply cannot do it because it’s wrong and we are who we are morally as a nation. If we want to be a nation dedicated to principles, truly, we have to accept that it may mean giving an advantage to our enemies. It may mean some loss of life – more than we might otherwise lose if we tortured people to get information. But that is the price for being the light on the hill. And if we want to be able to sing the national anthem with pride when one of our athlete’s wins at the Olympics or before a hockey game, we’ve got to take the high ground on this (and related issues). And we can’t start debating about efficacy or not of torture. It is a losing argument and ducks the more important ethical issue: are we a nation that will torture our captured enemies for information – no matter how reprehensible they are – or are we not? I say we are not. Not the USA that I know, believe in, and joined up to serve. Even when our friends and loved ones are harmed domestically. Yes, we may declare war and even put bullets in the bad guys on the field of battle – that’s all legit – but once they surrender, that’s the end of it. No matter how low they are or have been, we can’t go down that path. Down there lies the corruption of our own souls (and I mean that term whether you believe in God or not), individually and as a nation. Those who hurt others professionally, repeatedly, and are unaffected by it are known in common parlance as sociopaths. It is a path to the blackening of our collective consciences and while no one wants to be self-righteous (or take a moral stand any more these days, it seems) that’s the only real, true argument against doing it.