Tuesday, November 10, 2009

Enhanced Condemnation

No small amount of writing, and plenty of writers, have made the bold claim that torture is always, irrevocably, wrong, and that those who sanction it are, by definition, moral monsters. Oddly, they take this bold stand without coming to terms with their subject, giving a nod to context, or recognizing that the sin of commission must be assessed against the sin of omission.

What they arrive at is a position with precisely the same supposed lofty superiority of pacifism, while completely failing to understand how such blanket condemnations, just like pacifism, are completely amoral.

Brian Appleyard serves as the archetype, although Dahlia Lithwick, GAW (here, here,here), Brit and Andrew Sullivan make the same mistake of arriving at a firm conclusion in the absence of premises.

Because Appleyard's position is archetypal, I will use his name as shorthand for this position:
But the ultimate question is, of course: is torture absolutely wrong beyond all considerations of efficacy? The answer in western liberal democracies has to be yes. That answer does not require a metaphysical justification. It is just the way we are and how we define ourselves. … Torture is and will always be inevitable, it is a default human response. As John Gray has pointed out, that it should, once again have become quasi-respectable, is as clear as sign as any that ethical and moral progress is a myth. It is also as clear a sign as any that moments of respite from our fallen natures - like the moment provided by the institutions and mores of the liberal west - should be defended at all costs, not least against our own torturers.

This is facile passing of blithe moral judgment without having gone to the work of taking a stand on anything: subject, object, context, cost are all nulls. Torture is …. well, who knows, except that it includes everything that offends Appleyard. Beyond all questions of efficacy; every one of them? Why is torture rearing its ugly head in the West now, despite having been largely a non-issue (in the West) since WWII? Is it plausible defending the institutions and mores of the liberal west will absolutely never require deciding which is the lesser of two evils? (And, to risk running off topic for a sentence, never mind the astonishment that someone old enough to have witnessed the passing of Jim Crow laws and the full emancipation of women could write "… that ethical and moral progress is a myth".)

Getting to that conclusion, though, requires slogging through some basic principles. Since I have no wish to glaze anyone's eyes to any greater extent then my writing talent demands, I am going to risk sacrificing clarity at the alter of brevity, and rely on comments to fill in the gaps.

A note on terminology. Failing to come to terms with the subject, the starting point, guts analysis from the outset. To grasp that nettle, here are my definitions:

  • Torture: mistreatment of a captive that causes detectable physical injury.

  • Coercion: all other forms and degrees of captive mistreatment.


At the outset, I concede torture is always wrong. Because torture obtains nothing coercion cannot, torture amounts to gratuitous violence. As I hope to make clear below, gratuitous violence is always wrong, no matter what form it takes. Pulling fingernails is always wrong. Waterboarding might be; depends.

Further, this is not about law enforcement, assessing guilt, assigning prison sentences. The context is war, which Clausewitz memorably defined as the continuation of politics by other means. War consists of acts of war, the collective point of which is to obtain the political goal obtainable only through war, then return politics to its normal means. Acts of war include blockades, sieges and every employment of deadly force. And coercion.

There are many principles of war, one of which is pertinent here: economy of force. Every bomb, bullet, ship, plane, every act of war demands the greatest possible economy. Not only does any violence or destruction beyond that required to obtain the political goal impose unnecessary suffering, wasted force means less is available to conduct other, more effective, acts of war. Moreover, since the goal of any war is resuming politics by normal means, wasting force will often create post-war conditions that run counter to the political goals the war was intended to achieve, while leaving less capability for future conflicts.

Consequently, both self-interest and morality coincide: the most effective way to conduct a War is to obtain its political goals with the fewest possible acts of war involving the least possible violence. Which also means the most effective war is the least morally offensive. Of course, that is a Platonic ideal; but it is the ideal towards which an ethically conducted war must aim.

There is further distinction to make between wasted force and gratuitous violence. Not all wasted force results in gratuitous violence, but all gratuitous violence wastes force. The former is knowable only in hindsight; the latter is obvious from the outset. (Generally) bombing civilian populations, and mistreating or killing prisoners constitute gratuitous violence because they (generally) do not advance the war towards its goal, and (generally) make the politics following the war more difficult.

That is why the laws of war "prohibit" these things: they distinguish gratuitous from necessary violence. But there are no absolutes, and no moral stands that qualify as other than platitudes without considering the alternatives. That means addressing the nature and principles of war. All acts of war are immoral: war is a complete abnegation of morality. Blowing things up and mowing people down are immoral. Always. Torture or coercion of captives is immoral. Always. However, wars excuse these acts when the failure to perform them is the worst of two evils. All acts of war are wrong in principle, but can be right in the ethical conduct of war.

Which, to repeat, is this: the continuation of politics by other means with the least possible use of force.

This puts coercion as an act of war on equal footing with all other acts of war. The ethical pursuit of war requires using coercion to the extent, and only to the extent, that it minimizes the use of force in pursuit of the war's political goals.

Elevating coercion as a completely impermissible act of war might, considering the nature of our enemy, well delay achieving our political goals and make their purchase come at a higher price, both to ourselves and our opponents. None who prefer that elevation devote so much as a keystroke to the fundamental contradiction they face: the reason we are talking about coercion at all is because it works. Its use produces results closer to the platonic ideal of war than its absence; otherwise there is no point to its use, just like any other act of war. To say coercion is ipso facto wrong amounts to a preference for more violence over less. That is the ground that Appleyard needs to defend, but never even stands upon.

The reason coercion is suddenly a point of contention is due to the nature of the enemy. War between nation states involves, to a surprising extent, information that is relatively easy to obtain, but resources that are difficult to attack. In contrast, essential elements of information about Islamists are difficult to obtain, but, provided with sufficient information, easy to attack.

This oppositional asymmetry makes our use of coercion more likely to be a useful act of war. This does not require some farfetched Jack Bauer/24 scenario. Instead, assume a captive one hand, and our possession of some information on the other. The captive does not know what we know. Under these circumstances, it is possible to coerce verifiable information, by starting with what we know, and extending step by step towards what we don't: it is like pulling at a loose thread.

Unfortunately, the various laws of armed conflict are predicated upon nation states, where coercion would almost always be gratuitous. Compounding this problem is the fact that the laws, such as they are, repudiate all manner of things that we accept as necessary en route to arbitrary prohibition. Per Article 1 of the UNCAT (h/t to Gaw):
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
So, apparently, we can put an Islamist in a maximum security prison until death do we part, but we can't threaten the same Islamist with a lifetime in a maximum security prison in order to obtain information about that which caused us to want to put him in prison in the first place.

That is schizophrenic enough. Adding insanity to delusion, though, is the consequential preference for more violence, a longer and more costly war. This is the rock upon which all laws of war founder: no party to a war observes them, nor should they, to their detriment.

Even worse, this ignores knock-on consequences. If coercion is on the table, then every time we capture an Islamist with meaningful information, then other Islamists must act as if we obtained all that information. Disrupting their OODA loop is just as important as tightening ours.

Taking coercion off the table, however, produces the opposite result. Our opponent can continue to function unhindered; our blanket prohibition plays to our enemy's greatest strength.

This is the problem into which we run head on without understanding precisely what it is we are talking about, and why. We are left without any defendable reason to engage in actions which we accept, en route to prohibiting things which are less violent than the alternatives. Coercion as an act of war is no different than any other. Sometimes it is the least bad alternative on offer; other times it is gratuitous violence no one should tolerate. The only meaningful criteria is whether, given what was known at the time, the intent of any act of coercion and the likelihood of its outcome contributed to obtaining the political goals for which the war is being fought in the first place.

The alternative is subjecting those upon whom these decisions are forced to ex post facto judgment -- I hold the Goldstone Report on Operation Cast Lead as an excellent example -- that from the outset would condemn actions the intent of which, by definition, were undertaken as the least costly way to advance the war towards its end.

Just to be clear: the preceding in no way is a justification for any actions undertaken during the Bush administration. Perhaps some, most, or all, of what that administration authorized had no "efficacy", and was patently obvious from the outset as nothing more than pointless, gratuitous torment, and richly deserves punishment. I don't know, nor does anyone reading this.

What I do know is that a sweeping assertion that coercing information is so uniquely awful that it requires blanket prohibition requires steadfast denial of what war is about, and an unknowing preference for blowing things up and mowing people down. Illegal always and everywhere, regardless of efficacy, is not some statement of the non-obvious, it is the applying of moral blinders simply because they are comfortable to wear.

Instead, as an act of war, coercion is to be judged like any other. An ethically pursued war requires condemning gratuitous violence no matter what form it takes; equally, coming to terms with war and the nature of the enemy will inevitably mean, at least on occasion, that not coercing information is far worse than doing so.

38 Comments:

Blogger erp said...

"... that not coercing information* is far worse than doing so."

The statement above is so sensible only those steeped in a political correctness that has devolved into lunacy would dispute it. The chief of staff of our army is more concerned with backlash against Moslems than he is with protecting us, our elected officials are more concerned about the discomfort of terrorists in Guantanamo than the real danger to us releasing them would be and our media are terrified, not of terrorists, but of offending those who have publicly declared to be our enemy.

The means often do justify the ends. The frequent Jack Bauer scenario of the deranged maniac who's hidden a bomb he/she hopes will destroy a city won't reveal its whereabouts over the tea table or even over beers in the Rose Garden.

*[by any means necessary]

November 10, 2009 6:30 AM  
Blogger Harry Eagar said...

To begin with, I don't accept your definition of torture. Mental torture exists.

I do have a definition that I think fits all circumstances: torture is what you don't do to your own guys.

You didn't mention it, except in passing, but the issue of whether torture 'works' is important. We have plenty of observational evidence that it does -- sometimes.

At any rate, the contention that evidence obtained from torture is never reliable cannot be correct.

However, I am so unadvanced that I don't even buy that killing and maiming women and children are not legitimate and effective acts of war. If the modern state's power rests on it production, then anything that produces is a legitimate target.

Then it becomes merely a question of which game is worth the candle.

In the instant context, I think we would get much better results in imams and mullahs had a clear and present fear that something really bad might happen to them personally and for no better reason than that they preach offensive sermons.

It's all about identifying our opponent. The way things are going, the real objection to torture, however defined, is not that it hurts but it hurts at random.

But I think your view about the effect on the enemy about knowing what we could know is important.

November 10, 2009 5:24 PM  
Blogger Hey Skipper said...

erp:

The overweening concern with the feelings of Muslims (or any other group) is part and parcel of what I am talking about. The a priori prohibition of coercion is different in degree.

People were implicitly discouraged from taking action that would have prevented the slaughter at Ft. Hood. Similarly, considering the unlimited liability attached with coercing information, those who should, won't. The original sin, though, is wishing away the cost.

Harry:

To begin with, I don't accept your definition of torture. Mental torture exists.

All coercion is mental. Some of it qualifies as torture because there is physical damage in addition to the mental consequences.

Absent that distinction, or something close to it, then we run right into the problem of saying why it is OK to put someone into a maximum security prison -- which to most people would qualify as mentally torturous -- but not OK to deprive them of sleep for a few days.

I do have a definition that I think fits all circumstances: torture is what you don't do to your own guys.

We don't put our own guys in maximum security prisons, but we do so to their guys. Prison is torture, then?

You didn't mention it, except in passing, but the issue of whether torture 'works' is important. We have plenty of observational evidence that it does -- sometimes.

You have hit the nail on the head. When those sometimes exist, coercion is a legitimate act of war. Blowing up bridges sometimes has a point, but other times -- without a goal in mind and some notion of the likelihood of attaining it -- amounts to gratuitous violence. It is the gratuitousness of the act that is the crime. Sometimes not coercing information will result in more violence than the coercion itself. Arbitrarily prohibiting coercion is implicit acceptance of gratuitous violence.

However, I am so unadvanced that I don't even buy that killing and maiming women and children are not legitimate and effective acts of war. If the modern state's power rests on it production, then anything that produces is a legitimate target.

That is why the economy of force is so important. 65 years ago, mass bombardment was the only way to get at the means of production. As it turns out, had we focused more on the German electrical grid, we would have obtained better results -- that is, cost the Germans more lost production -- at less cost to both us and the Germans. Mass bombardment therefore wasted force, and would have been gratuitous had people known at the time that going after electrical generation was better.

Now we don't even need to destroy a power station to take it down. Economy of force means that attacking the civilian population is wrong, never mind the morality, because the same end is attainable through less violent means, which means more force is available for future use.

November 10, 2009 6:11 PM  
Blogger Brit said...

Having read back my original post, I can't think that I can add anything except to repeat it. We just take fundamentally different approaches to law-making: we're Burkean, you're Rousseau-ean; so I can't see how this debate can ever advance.

Erp: have you checked in on Charlotte's blog lately? You might be interested in a recent post...

November 11, 2009 3:29 AM  
Blogger erp said...

Brit, send me Charlotte's blog address. I've misplaced it.

November 11, 2009 6:10 AM  
Blogger Brit said...

http://charlottes-progress.blogspot.com/

You should be able to access by signing in with your blogger account.

November 11, 2009 6:16 AM  
Blogger Gaw said...

Here's a hypothetical flag I shall run up your flag-pole and expect you to salute:

A widely-dispersed group of militia nutters blows up, Timothy McVeigh-style, a couple of large federal buildings killing hundreds. There is strong reason to believe that these acts may be repeated. It's not known what the group's demands are.

The Obama administration recants its criticism of Cheney-style tactics and picks up some people known to be associated with the group, takes them to special offshore facilities and subjects them to torture ('non-physical', aka enhanced interrogation).

Interrogators get a great many leads, which are followed up. Another building is blown up. The feds start sweeping up numbers of people whose names have been provided by detainees. Soon dozens are in detention, all of them being tortured.

One militia member detainee reveals enough to contribute to the prevention of a further atrocity. Bolstered by this success, the programme is put on a more permanent footing, more suspects are arrested and it's extended into other areas but only when the end can be said to justify the means -proportionality is observed.

Soon extremely violent drug cartels are being attacked via incarceration and torture before trial. Soon the ban on 'physical' torture is circumvented by inflicting 'virtual' pain. People can be put into acute agonies using these devices and not a mark is left...

Etc.

Has any of the above become unacceptable to you yet?

November 11, 2009 6:59 AM  
Blogger erp said...

How about you Gaw? You prefer that we allow known terrorists to kill us at will rather than take pre-emptive action?

November 11, 2009 7:31 AM  
Blogger Gaw said...

I think we should take every bit of pre-emptive action we can, short of breaking the law.

What upsets me is that we're not taking enough legal pre-emptive action to counter Islamism (cf. not making arrests for breaches of the peace by Islamists protesting against returning British troops, and not responding appropriately to the Jihadist views that were apparently expressed by the Fort Hood gunman) whilst perpetrating crimes on detainees at Gitmo and prisoners held under extraordinary rendition.

I can't emphasis how important it is to adhere to the law. It's an enormously important protection for us all, and it marks our cause out as superior to our enemies.

November 11, 2009 7:50 AM  
Blogger erp said...

Gaw, did you think Major Hasan's activities prior to massacring his comrades cause for pre-emptive action? If so, what kind of action?

November 11, 2009 8:04 AM  
Blogger Gaw said...

I don't know enough about it to say, but what we've heard so far suggests a worryingly laxity.

Anyway, erp, stop turning the tables! What's your response to my hypothetical example?

November 11, 2009 8:12 AM  
Blogger erp said...

Gaw, here's where we must agree to disagree. I don't believe we are/were perpetrating crimes on detainees at Gitmo nor are prisoners held under extraordinary rendition.

Many terrorists are there because no other country will have them. Others haven't seen the error of their ways. They can't be tried in our criminal courts, nor should we put them in with our general prison population where they would most likely be treated like heroes.

As for gathering information about terrorists in the U.S. -- as I said in my original comment, "by any means necessary."

One solution I would support is to open the gates at Gitmo and shoo them all out. Sort of a thank you for Mariel. Let the compassionate Castro Bros. and the Hollywood elites deal with them. Just make sure none of them enter the U.S.

November 11, 2009 11:04 AM  
Blogger Gaw said...

Waterboarding is torture and it's a crime.

Prisoners were tortured whilst under extraordinary rendition (from US custody to, for example, Pakistan and back): sliced by scalpels, for instance.

You'd gather information on terrorists in the US by any means necessary? So Obama could request the FBI torture people it suspected of having links to terrorism? (And how widely can we define 'links to terrorism' I wonder?)

I'm impressed by your blind trust in the federal government. It certainly wasn't shared by the Founding Fathers.

November 11, 2009 11:15 AM  
Blogger Harry Eagar said...

'I can't emphasis how important it is to adhere to the law.'

Ah, a chance for me to bring up -- once again -- my favorite historical example of a time when extraordinary renditions and non-adherence to the law did not reap the kinds of condemnation from bleeding hearts that they do today. And, bonus, Gaw drags in British practice, which is decidedly less friendly to individual expression than American (search Westboro Church funeral for examples).

On the West Africa Patrol, US Navy ships that intercepted slavers were required to deliver them to the closest port with a US District Court for trial. Since the closest such courts were all in the South, jury nullification ensured that all defendants were always acquitted.

Royal Navy captains on slavery patrol were legally entitled to hang slavers summarily, and did so; so American commanders took up the practice, when British ships were nearby, of turning over their captives to the Royal Navy.

Discuss. From the perspective of a poor Muslim.

November 11, 2009 11:54 AM  
Blogger Brit said...

"Bleeding hearts"? Oh, gimme a break.

November 11, 2009 1:29 PM  
Blogger Susan's Husband said...

I can understand the concerns about the slippery slope in a torture permitting regime (as Gaw lays out). But what about the flip side of that, the ratcheting climb? If torture is always wrong, period, then what happens (as, IMHO, is happening now) when the definition of "torture" covers increasingly less abhorrent actions? For instance, sleep deprivation, loud music, non halal-food, etc. You have a mechanism for engaging in "lawfare" so as to hamstring any response to attacks. In a violent and dangerous world, is that of no concern?

P.S. Mr. Eagar's point of history is even more interesting when considered in this light.

November 11, 2009 1:34 PM  
Blogger Hey Skipper said...

Brit:

We just take fundamentally different approaches to law-making: we're Burkean, you're Rousseau-ean; so I can't see how this debate can ever advance.

Well, one way it could advance is by noting this is about war, not about law making.

The completely sidestepped questions before you are:

-- Why, a priori, is one particular act of war to be elevated above others?

-- What degree of coercion are you willing to impose in order to obtain information?

-- What cost are you willing to pay to not have that information?

-- How is it more moral to pursue a war at greater cost?

By the terms of your legalistic approach, Operation Cast Lead was essentially a war crime. Was it? If it was not, why is coercion?

November 11, 2009 2:04 PM  
Blogger Hey Skipper said...

Gaw:

The problem with your slippery slope hypothetical is that slippery slopes frequently live only in hypotheticals. Let's say we have information specifically locating a highly placed Islamist, and subsequently use targeted assassination to eliminate that Islamist. Bolstered by this success, soon extremely violent drug cartel members are being assassinated via Predators.

Now, regardless of whether any of this is acceptable to you, it should be pretty clear that this slippery slope, even more plausible than yours, simply does not exist.

Regardless, I will grant your slippery slope, even though I am talking about coercion within the context of war. To qualify as a war there must be political goals that are not achievable by political means. Is the "war" on drugs really a War? Never mind that, though. I will take as read that the conflicts with the militia nutters and drug cartels qualify as a war.

Remember economy of force. That means every act of war must have as its goal advancing the war towards its political goal AND do so with the least amount of force. Within that context, there is never any justification for using more coercion than absolutely necessary; even if it is possible to put people into acute agony without leaving a trace, it violates economy of force to impose any more pain (or blow up any more buildings, kill any more opponents, drop any more bridges, sink any more ships) than is absolutely necessary to advance towards the war's goals.

Keeping all that in mind -- that is, I will grant your hypothetical without granting it requires gratuitous violence -- the answer to your question is, It Depends. What is the cost to the government in terms of civil disorder, or the impingement upon civil liberties voters may very well demand in the face of continued attacks? Let's say that the drug cartels are Mexican, and continued successful attacks on Americans leads to demands for curtailing Mexican-American legal rights, perhaps even to the point of expulsion. At what point does the consequences of not coercing information outweigh doing so?

Just like I asked Brit above, what degree of coercion are you willing to impose to obtain that information? Keep in mind that you, as policy maker, are extremely unlikely to pay the price of failing to stop an attack, but there are no small number of people out there who will, depending upon your decision, pay the ultimate price.

When will the cost become unacceptable to you?

In Afghanistan yesterday, we managed to uncover a cache of tons of explosive materials, thousands of detonators, and 15 people who knew a great deal about both. Never mind how we obtained the information about that cache, how much coercion are you willing to apply to those fifteen to find out what they know (and if there ever was ideal situation for coercion, this is it)?

If the wars are truly serious, then serious acts of war come with the territory. I have absolutely no problem with using the minimum coercion required to obtain verifiable information. If waterboarding illegal combatants keeps people from becoming dead, then I think there is a very difficult, and unmade (perhaps because difficult really means impossible), moral case that temporary severe suffering is worse.

Finally, War is not about law. Imposing unlimited a priori legal liability -- which is your position -- upon those who are fighting it is to invite defeat. You do know why people didn't press Major Hassan, don't you?

Fear of retribution.

Just one more comment on It Depends. If we still, as we did seven years ago, consider Islamic terrorism an existential threat, I guarantee you there wouldn't be a peep about prosecuting anyone in the Bush administration.

Just as I guarantee you that should we ever lose track of where those Pakistani nuclear weapons are, no choke holds will be barred in the quest to get that information.

November 11, 2009 2:04 PM  
Blogger Harry Eagar said...

I had hoped my example would lead to a recognition that just because a law is on the books does not mean it is effective.

War should be a last resort, but if it's worth being at war, I pretty much endorse whatever it takes to win. Losing a war in a moral fashion seems difficult to justify by any standard.

Many people -- bleeding hearts all -- have declared that certain warlike behaviors are unlawful, even if the US Congress has never passed such legislation.

My reply to such people is, pfui! Either get out of the way or protect us from our enemies.

November 11, 2009 2:22 PM  
Blogger Gaw said...

Just want to be clear on a couple of things.

Firstly, my hypothetical wasn't a slippery slope, in that there was no advance on Skipper's position. It merely applied his principles to other situations to reveal how invidious you all might find them outside of this specific situation. This is surely prudent.

Secondly, there are well-established laws governing torture: what, how, when, etc. both civil and military. I'm arguing against overturning the wisdom of the ages.

I gather Skipper wants to waive existing laws primarily because of the nature of the enemy. But this sort of enemy has been encountered before elsewhere. The only difference now is that this enemy attacked America on its own soil.

Skipper likes redefining terms and approaches with reference to general principles. This is all very well on a blog. The problem is application.

His current argument is that we should use economy of force as the determining factor in what's acceptable in war. Law appears to have been excluded from his approach.

The problems arise from this on-the-hoof determination of acceptability. Who defines what a war is, where it starts and where it stops? A War on Terror can be fought anywhere and against anyone.

Who defines economy of force in each situation?

The answer is that politicians will do it in the first instance and then soldiers (just to remind you, currently, that would mean Obama and whoever he appoints to run the relevant military/homeland campaigns).

John Adams wanted a government of laws not of men. I'm rather amazed that intelligent Americans still need to learn why this is important.

November 11, 2009 2:46 PM  
Blogger Peter Burnet said...

Skipper. no matter how hard you try to tie the definition of torture to its efficiency and necessity, and no matter how scathing and shrill your voice in so doing, that isn't how the word is defined. Besides, if this was all about efficency, you would be waterboarding the Cripps and Bloods. You don't. Why not?

You are quite wrong in arguing that all acts of war are immoral, and it is offensive to make that claim in the cause of expanding the scope of "permissable immorality". Again, you are up against the full weight of philosophical, religious and legal thinking over hundreds of years. We bloggers sometimes need to be reminded that humility is a virtue.

You have missed a whole 50% of the issue at play here, which is how torture corrupts the torturer. You don't really think I believe your visceral disgust at the Inquisition after all these years is about feeling the pain of the few hundred victims, do you?

Gaw's argument isn't a slippery slope argument in the sense we are used to in our debates about law, morality and community behaviour. His projection is a near certainty as to how any large military or law-enforcement authority will act under pressure. Surely you aren't so naive as to be making an argument in favour of torture "with proper bureauctic safeguards"?

Harry:

Many people -- bleeding hearts all -- have declared that certain warlike behaviors are unlawful

Yes, because they are, and the country that had more influence than any other in so making them is the United States of America. It's not like you weren't warned. If you think the rules should be changed (and I don't deny there are some serious arguments about all this), maybe you should start by calling an international conference rather than just telling the rest of us to piss off.

November 11, 2009 2:50 PM  
Blogger Gaw said...

Harry, I recall the last time the US adopted that approach in Vietnam it didn't go so well. Anyway there's no evidence that applying some form of law to war results in defeat for the more lawful side. The opposite argument could be made.

Indeed, in this instance of the War on Terror, it may well be that an approach that disregards morality and law may result in the US not winning (I'm not sure the US can actually lose this war). This is because it's also a battle of hearts and minds, at home and abroad. If the US is seen to dispense with morality it won't win these hearts and minds.

War on Terror is a misnomer anyway. A lot of the time it's a struggle against terrorists, when typically hearts and minds become even more important. Certainly, in the UK, adherence to the law helped the British government weaken the IRA's hold on Catholic sympathies. There's no way the IRA could have been disarmed if the UK government had had a policy of torture.

I doubt this logic will cut any mustard with you, however. Your approach will drive the enemy and its host populations closer, and your attitude will drive the US and its allies further apart. A wannabe tough guy who sadly doesn't appear, in actual fact, to be a smart guy.

November 11, 2009 3:11 PM  
Blogger Harry Eagar said...

You're right. Cuts no mustard with me.

I am kicking myself for getting rid of the book, but there was a superb collection of essays on what people consider illegitimate and legitimate in warfare, and how the limits (in a European context) have never been set by laws but by convention.

The most trenchant essay was by Peter Paret, but as near as I can tell, his essays have not been collected. However, he approached the same subject in his book on the war between the French Empire and Prussia (the Napoleonic one). A reviewer wrote about that: 'Peter Paret is one of the very few scholars capable of addressing what he calls the cognitive challenge of war--the sad fact that those who wage war are often surprised by its unintended consequences and baffled by its dynamic range.'

Double down on that when the combatants are people from different and mutually unintelligible social realms. (Take a bow, Samuel Huntington.)

Being lawful -- according not to American law but to somebody else's idea -- isn't going to cut any mustard with our opponents, and, to tell you the truth, Canada and Britain have been pimples on a gnat's ass as far as help so far. Losing either or both would not be noticed.

I have, in the past, made the same point with regard to the Geneva Convention. The US has been involved in a number of wars in Asia and in not one of them has the Geneva Convention protected any Americans. The violators of the convention include the USSR, China, North Korea, North Vietnam, Japan, Afghanistan, Iraq.

So tell me: on what grounds should the US bind itself to fight (if it is going to fight at all) by those restrictions?

I hate to remind you of this, but the British government did have a policy of torture in Ireland. And arson, robbery etc.

I am disinclined to take moral advice from people with no skin in the game. I also note that, despite the allegedly superior UK policy, it is still just as much a target of Muslims as America -- and less successful in heading off actual murder.

I haven't the slightest interest in winning the hearts and minds of people who believe god has promised them domination over me. I am interested in changing their minds. Surrendering won't do that.

November 11, 2009 5:16 PM  
Blogger Gaw said...

Harry, you're ignorant: just to pick one of your statements, suggesting we have 'no skin in the game'.

232 British soldiers have been killed in Afghanistan to date versus 918 Americans (133 Canadians). The British casualties are about the same as the American relative to population.

56 civilians were killed and 700 injured in the London bombings of 7/7/05.

What you say about Ireland is easily falsifiable nonsense.

But I'm not going to argue with you further as there's no point in doing so with someone whose opinions run so far ahead of their intelligence and knowledge.

On our nightly news coffins are brought back from Afghanistan every few days and met by grieving comrades and families. You are ignorant and a disgrace.

November 12, 2009 12:09 AM  
Blogger Brit said...

No, my post WAS about law-making. Torture is always and should always be unlawful. That, in times of perceived crisis, persons in power will succumb and use torture is inevitable (and it's also inevitable that we will mitigate if torturers defend themselves on the grounds that what they were doing was a lesser evil, or that what they were doing was only 'torture' in a weak sense). But the law has to be that torture is not permitted, otherwise you end up having to explicitly sanction forms of torture, which is where the danger lies. It's exactly like murder. Murder is always unlawful; we mitigate in individual cases. Note that I'm only arguing for the status quo - Skipper is the one trying to innovate.

This has sweet FA to do with bleeding hearts, so give it a rest.

November 12, 2009 1:22 AM  
Blogger Brit said...

Actually, that last comment by Harry is the worst I've ever read from him. Absolute hateful bullshit. Count me out.

November 12, 2009 1:26 AM  
Blogger Peter Burnet said...

You chose the perfect day for that bile, Harry, especially seeing, as Gaw points out, that our Afghan war dead are proportionately higher than yours. Funny, none of their families and colleagues complain about not being allowed to torture. It's ok, we're used to watching you spit on your allies to make yourselves look good.

November 12, 2009 3:04 AM  
Blogger Hey Skipper said...

Gaw:

I gather Skipper wants to waive existing laws primarily because of the nature of the enemy. But this sort of enemy has been encountered before elsewhere.

Okay, I will grant that completely.

The nature of this enemy, and all others that are similar, is that they are not the basis for the laws of war; they are predicated upon conflict between nation states.

In this conflict, and all others that are similar, there is an oppositional asymmetry: one one side, ours, information is easy to obtain, but very difficult to do anything about. Vice versa for the Islamists. So, whether the nature of the enemy is utterly unique or garden variety is beside the point -- the asymmetry is there nonetheless. We cannot ignore that.

Skipper likes redefining terms and approaches with reference to general principles. This is all very well on a blog. The problem is application.

I applied a definition that actually excludes some things. The definitions on offer exclude nothing that is more stressful than three hots and a cot.

My argument is that the principles of war are primary, and the law, such as it is, is always secondary to effectively conducting a war.

Unless you desire to make a war worse, that is.

The problems arise from this on-the-hoof determination of acceptability. Who defines what a war is, where it starts and where it stops?

To repeat from the post: War consists of a series of acts of war intended achieve a political goal unachievable by political means.

I did not make that up -- that is what it is.

Who defines economy of force in each situation?

Reality. To the degree a given tactical or strategic goal could have been achieved with less force, it failed to observe economy of force.

November 12, 2009 10:57 PM  
Blogger Hey Skipper said...

Peter:

Skipper. no matter how hard you try to tie the definition of torture to its efficiency and necessity, and no matter how scathing and shrill your voice in so doing, that isn't how the word is defined. Besides, if this was all about efficency, you would be waterboarding the Cripps and Bloods. You don't. Why not?

First, I have gotten a little scathing because, search though you might, you will find not one syllable devoted to the certainty that failing to get information in this war will get people killed and maimed who would otherwise not have been.

There is a butcher's bill to be paid here, and the very least those who are adamantly against torture could do is at least acknowledge it exists.

Also, you will search long and hard before finding the definition tied to its efficiency and necessity. In fact, the word is defined so horribly, as AOG noted above, that it has included Islamists being taunted by scantily clad women.

NB: I explicitly confined this to acts of war, which does not include Cripps and Bloods.

NB some more. By the "definition" of torture, threatening an alleged Cripp with a life sentence if doesn't admit to the crime, and give up others involved, counts as torture.

Our legal system does that all the time. It meets the definition. Do you wish to outlaw plea bargaining?

You are quite wrong in arguing that all acts of war are immoral, and it is offensive to make that claim in the cause of expanding the scope of "permissable immorality".

Oh, for Pete's sake. In a previous life I had license to blow things up and vaporize people sufficiently unlucky to be too closely associated with those things. There is absolutely nothing moral about that, even in pursuit of a good cause. It is immoral, full stop, but gains acceptability only with respect to the alternative.

Torture, and please define it in any way you please, is no different. It is immoral, no doubt. Now, what happens if we don't obtain information from those who have it.

What degree of coercion are you willing to impose to obtain information that will make it harder for our enemy to operate, while making it easier for use?

You have missed a whole 50% of the issue at play here, which is how torture corrupts the torturer.

Like blowing things up and vaporizing people does not?

Torture is an act of war. All acts of war corrupt. My visceral disgust at the Inquisition is based upon the goals of the Inquisition. My visceral disgust at the German Army's acts of war during the Battle of the Bulge are based upon the goals of the Third Reich. My admiration of Patton's Army, conducting the same acts of war, is based upon the Allies goals in WWII.

Surely you aren't so naive as to be making an argument in favour of torture "with proper bureaucratic safeguards"?

You were presumably OK with my choosing weapons and targets that led to destruction and death. Why is torture any different?

November 12, 2009 11:19 PM  
Blogger Hey Skipper said...

Gaw:

Anyway there's no evidence that applying some form of law to war results in defeat for the more lawful side. The opposite argument could be made.

In a war between bureaucratic states, the law of war acts to avoid gratuitous violence.

However, that most certainly does not apply in other circumstances, where observing the laws of war would not only encourage there further violation, but virtually guarantee defeat. See for example Israel's last attack on southern Lebanon, and Operation Cast Lead.

Indeed, in this instance of the War on Terror, it may well be that an approach that disregards morality and law …

This is the crux of your problem. You take it as an inviolable given that torturing someone is more immoral than not doing so. We just discovered some 500,000 pounds of bomb making materials, thousands of detonators, and 15 people closely associated with both, who, you can be quite certain possess very valuable information.

How many maimed people are you willing to add to the ledger if they decline to cough it up when asked pretty please?

Your approach will drive the enemy and its host populations closer, and your attitude will drive the US and its allies further apart. A wannabe tough guy who sadly doesn't appear, in actual fact, to be a smart guy.

Successful terrorist attacks aim to separate the population from the government. So, as a matter of fact, your statement is a gross assertion that fails to consider the balance between torture conducted and attacks prevented.

Oh, and BTW, cut the condescension.

November 12, 2009 11:31 PM  
Blogger Hey Skipper said...

Gaw, Brit, Peter:

When Harry said I am disinclined to take moral advice from people with no skin in the game. he was talking about you three, not the British Army, or civilians killed in the Tube bombings.

As a practical matter that makes the "chickenhawk" error. Harry should take valid moral advice no matter the source. But that is an entirely separate matter.

November 12, 2009 11:37 PM  
Blogger Hey Skipper said...

Brit:

No, my post WAS about law-making. Torture is always and should always be unlawful.

Asked, and so far unanswered:

-- Why, a priori, is one particular act of war to be elevated above others?

-- What degree of coercion are you willing to impose in order to obtain information?

-- What cost are you willing to pay to not have that information?

-- How is it more moral to pursue a war at greater cost?

November 12, 2009 11:39 PM  
Blogger Harry Eagar said...

Bilious is the word for it.

Judge me by what makes my bile rise.

Like blaming the victim.

Let's climb down from general considerations of torture in the abstract to any (or all) particular acts of torture that the moralists want to condemn us for.

There is no doubt that the people being tortured can stop it within the next 60 seconds. All they have to do is declare peace. Finish, full stop.

November 13, 2009 7:18 PM  
Blogger David said...

My first reaction to this thread was, "How did I miss all this fun?"

But, on second thought, my reaction is, "Meh."

I'm fully on board with not torturing people but I don't understand the argument that water boarding is torture. It even fails Harry's test because it is, in fact, something we do to our own guys. I'm sure that it is awful, but how is something you get up and walk away from "torture?"

This ignores the fact that we only waterboarded a hand full of times and only with permission for high up in the government.

Focus on waterboarding, of course, leaves out some of the other things claimed to be torture, like using female interrogators (charmingly referred to by the complainers as "whores"), wrapping detainees in the Israeli flag and pretending that red ink is menstrual blood.

I have no problem with any of that. So this is basically arguing definitions, and that's no fun. There's no point arguing with the Cheshire Cat.

November 14, 2009 11:01 AM  
Blogger erp said...

One of the most horrible tortures inflicted on the poor innocents at Abu Gharib was putting women's underwear on their heads!

That happened around the same time as Daniel Pearl had his head detached from his body.

As I've said many times before, reasoned discourse requires a definition of terms.

Otherwise it's just name calling in the school yard.

November 14, 2009 12:01 PM  
Blogger Harry Eagar said...

Query: Would you rather be a prisoner of the Americans or of the Muslims?

However, I think I can offer a position worthy of David's time.

Forget particular behaviors. Here is the question behind the question:

If you are at war, is it necessary to be willing to be as ruthless as your enemy?

Not necessarily to be as ruthless but to be willing to be as ruthless.

Stated another way: Is there a risk that imposing asymmetrical limits on yourself will cause you to lose the war?

November 14, 2009 1:19 PM  
Blogger Hey Skipper said...

David:

I have no problem with any of that. So this is basically arguing definitions, and that's no fun.

At first I thought some definitional rigor was important, because existing "law" doesn't really exclude anything. But I am persuaded you are right, worrying about definitions is secondary.

Appleyard et al have taken an absolutist position, which begs these questions:

-- What degree of coercion are you willing to impose in order to obtain information?

-- If that coercion, which of course does not constitute torture, is insufficient, what cost are you willing to pay to not have that information?

So far, on those two fundamental points, echoing silence.

November 14, 2009 3:30 PM  
Blogger Harry Eagar said...

Hmmm. If there is anything to today's report out of Canada, there appears to be little room for fingerpointing out of the north on the subject of torture, however defined.

November 19, 2009 11:17 AM  

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