Wednesday, January 26, 2005
TIA Gets Results?
One of those links is to the most recent anti-torture post by the right-leaning Belgravia Dispatch (for the record, Greg Djerejian has been consistently principled in his opposition to torture and clear about this problem's parameters). In this post, Greg takes on Law Professor John Yoo's rather "expansive" definition of exactly which practices constitute "torture" under the prevailing legal definition. Greg is right to point out that Yoo was at least as involved as Jay Bybee, if not more so, in the preparation of the infamous torture memo that I criticized in my prior post. I was certainly remiss to leave Yoo out of the hall of shame that houses Gonzales and Bybee, amongst others. Greg also began probing another topic: the ticking time bomb conundrum.
This is the hypothetical scenario in which a captured terrorist knows of an impending nuclear attack, and thus the question emerges whether or not it would be right to torture the detainee in order to get information that could prevent the massive loss of life sure to follow. Leaving aside questions as to whether or not torture is likely to result in the revelation of the pertinent information (which I will take up below), Belle Waring at Crooked Timber wrote a pretty comical lampooning of this example in the extreme, and argues fairly persuasively that crafting policy to account for such exaggerated scenarios is not a process likely to yield favorable results in most real-life settings (her fictional Bruce Willis action movie montage is in itself worthy of a read).
Matthew Yglesias (via Praktike, though Greg has included a link in his update as well), takes Waring's farcical approach one step further. Yglesias posits that even in a world in which torture is strictly prohibited, the ticking time bomb scenario is not as problematic as some would make it out to be:
Knowing what we know about human behavior and the sort of people who make careers in the law enforcement and intelligence communities, it's a bit absurd to think that an interrogator would ever let, say, a nuclear bomb go off and destroy Chicago when he could have stopped it with a little torture, just because the Geneva Conventions said he shouldn't torture anyone. The world just doesn't work like that.Nothing against Chicago, but I was somewhat relieved to see that the Second City, not NYC, was the doomed municipality in Yglesias' version of events. Belle was not so New York-friendly in her rendition. Sorry jonnybutter, but as a resident of NYC, I'm just tired of all the talk about the many ways my City may be reduced to rubble in the near future. It's time you Chicagoans bore your share of the major metropolis-as-target burden. But I digress.
The real question is, what do you do after the disaster has been averted? Well, in a world where torture is illegal, your interrogator's probably going to have to be arrested. But he's also going to be a national hero, he'll plead his defense of necessity, and no jury in the country is going to unanimously convict him. And even if he somehow did wind up getting convicted, he could be pardoned. We have, in other words, several methods for making ad hoc, ex post facto exceptions to the rules in our common law system. And it's a good thing. It really would be silly to punish someone who'd just gone out and saved three million lives.
So in my opinion no real harm is done by maintaining a blanket legal rule that torture is always prohibited. No catastrophic nuclear attacks will go through thanks to this rule, and no great national heros will go to jail. Conversely, a clear rule does much good. It means that interrogators will only break the rules in the case of some genuine emergency.
Greg's post also sparked a conversation about how and where the boundaries should be established in terms of what types of treatment are deemed legal methods of coercion (perhaps loud music), and which cross the line into the realm of illegal abuse or torture (beatings, sodomy, etc.). Greg appealed to the McCain-Lieberman formula:
Ultimately, I lean towards agreeing with McCain and Lieberman, that the standard for treatment of alien detainees should be that: "No prisoner shall be subject to torture or cruel, inhumane or degrading treatment or punishment that is prohibited by the Constitution, laws or treaties of the United States."That sounds about right. RJ Eskow, offers his own slightly less formal means for deducing the existence of torture or undesirable behavior:
If you're not a fan of international law, you can always conduct this simple experiment: How would you feel if you saw American soldiers being subjected to the practice? Would you consider it "abuse"? Would "waterboarding" be OK? How about being tormented with the threat of bites from a vicious dog, after which the dog was released and shredded a human leg? Would you be happy if you heard American Christians forced to thank Allah, or Buddha, or Shiva that they are still alive? When you heard that dozens of our men and women tried to kill themselves in captivity, would you feel anything? What would you think of a government that condones or encourages such practices? Now, take those feelings and imagine if you knew that many of the people being subjected to these practices are innocent civilians.Both of these concepts provide useful guidance. By applying the standards of the Constitution, US laws and the treaties that we are a party to, we can establish that any interrogation tactic outside of our own legal framework is unacceptable, and this in turn would satisfy Eskow's standard by insuring that our techniques never exceed what we are comfortable with in our own prisons and police houses (note: this is not to say that many horrific abuses do not occur in our own prisons and in interrogations, but they are not legal per se, even if their practice is too common for comfort).
The conversation eventually turned to questions about the efficacy of torture as a means of gathering information. In response to questions regarding torture's utility, one of that site's smartest commenters, posting under the name "J Thomas," offered this seemingly informed and balanced explanation (J Thomas, a self described "radical centrist" also has a blog, though it is somewhat neglected - hey JT, why don't you write some of this stuff down in a post!?):
So, according to the J Thomas explanation, torture has varying degrees of success and failure depending on the nature of the detainee, and the perceptions of that prisoner vis-a-vis his or her captors. That sounds about right. It would be hard to imagine someone contending that torture always works in every context, but it is also implausible to claim that torture never works in terms of information gathering. But, as J Thomas points out in this next excerpt, the overall success rate of information acquisition is far from the only factor to consider....I haven't seen any academic studies about what interrogation methods work. The CIA publishes such things inhouse but I haven't read them. A collection of people who claim to be experts say it doesn't work. But then a collection of people claim to have made it work....
I've listened to people who do that sort of thing though I haven't done it myself, and here's my understanding of what they say:
1. Two classes of prisoners [exist], those who'll say something and those who'll clam up and not say anything at all. If they refuse to say anything at all they can be persuaded to say something using either positive or negative reinforcement. Get them to talk about something -- anything -- and you have a start. If you torture them for not saying anything, they're likely to consider it a big defeat to say anything. It turns into a contest of wills at the start. So it's better to just do a little poking in the middle of other methods, keep them off balance and not sure what you'll do, and if possible get them interested in talking about something innocuous. If it's a contest of wills, every hour they say nothing is a victory for them and you feel like you're making no progress until they say something, so it's likely to be discouraging.
2. Prisoners who talk have an almost-infinite amount of garbage available to talk about. Ideally you want them to sort it out for you and tell you the things you're interested in. Drugs can eliminate their resistance to telling you stuff, but will also eliminate their ability to organise it for you. So if you know exactly what to ask, you can get something that way among a lot of garbage. It isn't a good way to get them to tell you things you don't already know to ask about. Similarly, if you get them exhausted enough and sleepless enough etc, you can basicly get them deranged to the point they lose all judgement and will tell you anything including whatever garbage they hallucinate. That can work if you already know precisely what to ask, just like the drugs.
3. If they're aware, they might tell you stuff for one reason or another, and they might lie. Ideally you'd like to know whether they're lying. Trained interrogators claim they can tell whether the interrogatee is thinking or remembering. If they just tell you what they remember without much thought then it's probably the truth. Torture that doesn't reduce them to babbling might persuade some people to tell the truth. The ones it's especially good for are the ones who'd like to talk to you but who need a good excuse. If you torture them enough that they think it's a good excuse then they'll talk.
4. People who believe that you'll kill them after they've told you all you want to know, have an incentive not to talk. If you torture them to the point they want to die, then they may talk to get you to go ahead and kill them. But they may find some crafty way to kill themselves too. For example, in one Russian prison each prisoner slept on a heavy oak shelf that was hinged to fold up against the wall. Suicidal prisoners found they could arrange things so the shelf would fall down and crush their skulls. In another prison the washbasins were a size and shape that let prisoners stick their heads in and slump to break their necks. Suicidal people can be very inventive.
5. Apparently people who did statistics found that they got results at least as often and as quickly by sitting the prisoner down and starting out "The war is over for you." If the prisoner accepts that the war is over for him, he's likely to talk about old campaigns as if it's 10 years later and the war is over and he's talking with a veteran from the other side. He might avoid recent stuff and stuff he thinks would help get people caught, but he might slip up and the old stuff is useful too.Torture on average does no better and typically worse. But people who believe in torture only count the successes. I can't quote you the studies but it makes sense to me, and I hope the way I described it makes sense to you too.
There's another issue. Whatever you do, word will get out to the enemy and also to the civilians. Possibly you can arrange that tortured prisoners get kept in solitary and nobody ever sees them before they're dead and buried, but that will get out too. What effect will torture have on the ones who haven't been caught? When I was a boy scout the scoutmaster was an old man who'd fought in Korea. Once he started to talk about it, and then he remembered some things he didn't want to talk about and he said "If you're fighting the Reds, whatever you do don't let them take you alive." If I ever fought the Reds I'd have followed his advice.In addition to the effect this has on the psyche of potential combatants, and their willingness to surrender, the use of torture will also impact the perception that the target population as a whole will have of the occupier/aggressor. In the case of Iraq and the broader Muslim world, this perception is of supreme importance. We cannot win over hearts and minds, and convince people to make radical changes in their political, religious, and societal structures if we are not held in high regard - or at least not openly reviled. The use of torture undermines our status and moral authority, especially when so many of the victims were innocent civilians released back into the population to tell their tales of horror. Therefore, torture has transactional costs in terms of democracy promotion as well, which must be included as a variable in any cost-benefit analysis of the utility of the use of torture. This of course says nothing about our own moral and ethical imperatives, and what affect it would have on American ideals if we so willingly cast off prohibitions on torture as "quaintisms," obsolete in their relevance.
People who absolutely refuse to surrender even when they can't get away are a lot more trouble than people who'll surrender. They're likely to try to sucker some of you in close so they can take you with them. So you stand back and blow it up first, and you have a big mess -- when if they thought you'd treat them right and it would just be "The war is over for you" they'd surrender and maybe you'd have a building still standing and civilians alive and so on.
There was a time we said we were going to "kill or capture" Muqtada al Sadr, after Abu Ghraib had gotten publicised. What's the chance he'd surrender even if we had him surrounded? And yet if he thought we were honestly interested in giving him a fair trial for a crime he knew he was innocent of, he might possibly have set a good example and turned himself in.
Torture has to give results a lot better if it's going to balance out the problems it causes. Some experts say the statistics show it doesn't, that for a good interrogator it's no better than just talking, but I haven't heard of them making their data public.
