Wednesday, August 27, 2008

I feel strongly both ways

Christopher Hitchens, clearly having decided that first-hand experience is not overrated, had himself subjected to water boarding in order to better assess whether it amounts to torture, and if it is the sort of thing in which the US should be dabbling.
You may have read by now the official lie about this treatment, which is that it “simulates” the feeling of drowning. This is not the case. You feel that you are drowning because you are drowning—or, rather, being drowned, albeit slowly and under controlled conditions and at the mercy (or otherwise) of those who are applying the pressure. The “board” is the instrument, not the method. You are not being boarded. You are being watered. This was very rapidly brought home to me when, on top of the hood, which still admitted a few flashes of random and worrying strobe light to my vision, three layers of enveloping towel were added. In this pregnant darkness, head downward, I waited for a while until I abruptly felt a slow cascade of water going up my nose. Determined to resist if only for the honor of my navy ancestors who had so often been in peril on the sea, I held my breath for a while and then had to exhale and—as you might expect—inhale in turn. The inhalation brought the damp cloths tight against my nostrils, as if a huge, wet paw had been suddenly and annihilatingly clamped over my face. Unable to determine whether I was breathing in or out, and flooded more with sheer panic than with mere water, I triggered the pre-arranged signal and felt the unbelievable relief of being pulled upright and having the soaking and stifling layers pulled off me. I find I don’t want to tell you how little time I lasted.
After the experience, Mr. Hitchens comes down on both sides of the torture issue:
a man who has been waterboarded may well emerge from the experience a bit shaky, but he is in a mood to surrender the relevant information and is unmarked and undamaged and indeed ready for another bout in quite a short time. When contrasted to actual torture, waterboarding is more like foreplay. No thumbscrew, no pincers, no electrodes, no rack. Can one say this of those who have been captured by the tormentors and murderers of (say) Daniel Pearl? On this analysis, any call to indict the United States for torture is therefore a lame and diseased attempt to arrive at a moral equivalence between those who defend civilization and those who exploit its freedoms to hollow it out, and ultimately to bring it down. I myself do not trust anybody who does not clearly understand this viewpoint.
However, he lands rather more firmly on the anti-side:
Against it, however, I call as my main witness Mr. Malcolm Nance.

I passed one of the most dramatic evenings of my life listening to his cold but enraged denunciation of the adoption of waterboarding by the United States. The argument goes like this:

1. Waterboarding is a deliberate torture technique and has been prosecuted as such by our judicial arm when perpetrated by others.

2. If we allow it and justify it, we cannot complain if it is employed in the future by other regimes on captive U.S. citizens. It is a method of putting American prisoners in harm’s way.

3. It may be a means of extracting information, but it is also a means of extracting junk information.

4. It opens a door that cannot be closed. Once you have posed the notorious “ticking bomb” question, and once you assume that you are in the right, what will you not do? Waterboarding not getting results fast enough? The terrorist’s clock still ticking? Well, then, bring on the thumbscrews and the pincers and the electrodes and the rack.
Unfortunately, Mr. Hitchens and Mr. Nance seem to have reached their destination without a starting point. Having failed to define torture, they reached their there from nowhere.

Presuming a captive possesses valuable information, there is a range of means by which to extract it, from merely asking the question, through soft cushions and comfy chairs, to thumb screws and the rack. That continuum starts with the innocuous, traverses the various provinces of unpleasant, and ends in the obviously repellent.

Clearly, we need some means to discern where the merely unpleasant ends and torture begins. Otherwise, any interrogation technique more arduous than a stay at a four-star hotel in Palm Springs steps beyond the pale.

Salim Hamdam was the driver for Osama bin Laden. Recently he was convicted of providing material support for terrorism. While at Guantanomo, according to human rights groups, he was subjected to harsh treatment:
... sleep deprivation, harassment and inappropriate touching by a female guard.
Oh, the humanity.

Suspecting inappropriate touching by a female guard and the rack are not morally equivalent, I offer this definition:
Any treatment to which a prisoner is subjected that leaves any after effects discernible by a thorough physical examination immediately after the event constitutes torture
Having been, in a previous life, subjected to stress positions, sleep deprivation, harassment and extremely close confinement -- and, no, I am not talking about modern air travel here -- I can conclusively say they are very unpleasant.

But torturous? No.

By my definition, waterboarding is in that province of unpleasantness infinitesimally close to torture.

Does that mean I think the US should "routinely" resort to waterboarding? No.

While I do not find much of Mr. Nance's counterargument very persuasive, particularly the oft repeated line of extracting junk information, so far Islamism does not pose an existential threat; preventing an outrage or rolling up a cell, though obviously to be wished for, needs to be held against the costs of doing so.

The hyperventilation of human-rights groups, or the flutterings of Andrew Sullivan, are often nearly beyond parody. However, those litanies of the merely unpleasant gain traction when the deeply unpleasant is also lurking out there.

So, while, in theory, I find the "ticking bomb" argument a compelling reason to waterboard, in practical fact no bomb this side of a nuke ticks loudly enough to offset the costs of standing too closely to the methods of the Inquisition.

6 Comments:

Blogger Harry Eagar said...

Nance's No. 2 is pure, unadulterated nonsense.

We should withdraw from the Geneva Conventions, which have never protected any American prisoners.

The Army field manual on treatment of prisoners opens with an historical treatment which accepts -- which no one who has been paying attention denies -- that the only protection prisoners have is the reluctance of their captors to see done to their own compatriots what they would like to do to their prisoners.

If the captors care nothing about their own compatriots -- the universal opinion in Asia -- then nothing has or can protect prisoners.

All those who would rather be prisoners of the Japanese or the Taliban rather than of the US, line up on the left.

August 27, 2008 10:04 PM  
Blogger David said...

Harry's certainly right that whether we waterboard makes no difference at all to how American POW's are treated -- particularly by aQ.

Also, it seems perfectly clear to me that, whatever torture is, it isn't anything that non-suicidal, non-masochistic people volunteer for.

August 28, 2008 9:33 AM  
Blogger Mike Beversluis said...

Why not make it illegal with the expectation that, if there is a ticking bomb, you would be allowed to break that law in the same way you might get a police escort to speed to the hospital during an emergency?

August 28, 2008 4:08 PM  
Blogger Hey Skipper said...

Nance's No. 2 is pure, unadulterated nonsense.

I can't believe he said it with a straight face, or that Hitchens swallowed it whole.

Why not make it illegal with the expectation that, if there is a ticking bomb ...

If I was the Head Dude What's in Charge, I would do several things:

1. Emphasize positive regulation: the rule book consists of what is allowed, not what is prohibited.

2. Put what is allowed into various categories based upon severity.

3. Each category has an approval level. Forcing a subject to listen to rap alternating with opera, for instance, would have a lower approval level than, say, sleep deprivation.

4. No coercive techniques that would leave physical signs are permitted.

This would mean that water boarding, should it make the list of permitted techniques, would be legal, but have a very high, probably presidential, approval level.

August 29, 2008 11:33 AM  
Blogger Mike Beversluis said...

Well, since I already subject myself to rap slash opera music playlists, I'm not sure what to say about item number 2.

But I think that the physical mark thing is somewhat unreliable, because if you subject someone to enough stress to cause them to betray a deeply held resistance, I think - and studies show - that it's of little matter whether you leave marks or not. Breaking their resistance requires a damaging level of stress, and the lasting effects are there if it is psychological or physical in nature.

In that case, I think it's like self-defense: Lethal force is moral if you and your compatriots are in mortal peril, and likewise for less-than-lethal coercion. Since torture is so horrible, this threshold should be very high, and so the burden of proof should be on the torturer to show that it was necessary.

FWIW, I've though about the death penalty, and I wonder if there should be liability for the judges who administer it - if there was a penalty if it was later shown to be wrong. IE, in many cases it's absolutely certain that this person did the crimes and warranted this punishment (I went to school in Walla Walla, where WA carries out its executions. There were two while I was there, and they both were clearly deserving of it) - but while there is already a requirement for "beyond a shadow of a doubt" proof, this would carry more weight if penalties like jail time was possible for miscarriages of justice. I'm not a lawyer or legal scholar, though, so I dunno.

August 29, 2008 9:59 PM  
Blogger Harry Eagar said...

It is said (with what accuracy I don't know) that an expert can beat a man near death with a rubber hose without leaving a mark.

I think the no-mark standard also fails because the torturer can (I suppose) often get results by saying, 'Talk, or I shoot your friend.'

++++++

I'd like to see a thread on the proof required for death penalty cases.

It isn't true that proof is required beyond a shadow of doubt.

Very briefly, there are three kinds of evidence: physical, circumstantial and eyewitness.

Eyewitness is very unreliable. Mike is/was at ground zero for that, because U. of W. psychologist Elizabeth Loftus has written the book on that: 'Eyewitness Testimony'

My proposal in capital cases is to require 2 lines of evidence for conviction, and not accept eyewitness as one of the lines.

That should almost(but not quite) eliminate mistaken convictions.

Well, perhaps no thread needed. I've already said everything I think about it.

August 30, 2008 12:00 PM  

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