I’m often asked about my decision to criticize the organization in which I’ve spent most of my career, the United States military. As an eighteen-year Air Force veteran with four combat tours, I can tell you a little about military culture and how dissenters are treated – as pariahs. Ironic considering that the U.S. Air Force was started by a dissenter, General Billy Mitchell, who sacrificed his career to stand up for his beliefs. An accomplished World War I fighter pilot, Mitchell is now recognized as the father of the Air Force and one of the leading pioneers of airpower.
In 1925, Mitchell criticized senior leaders of the Army and Navy for the neglect of the Air Service which resulted in the crash of the dirigible Shenandoah that killed fourteen crew members and, in a separate incident, the crash of three seaplanes in the Pacific. The Navy had organized the flights as publicity stunts to counter Mitchell’s successful demonstration of airpower after having sunk several Navy ships using torpedoes, which Navy leaders had argued was impossible. Mitchell’s response to the crashes:
Those accidents are the result of the incompetency, the criminal negligence, and the almost treasonable administration of our national defense by the Navy and War Departments.
He was accused of insubordination and court-martialed for his statements. After being demoted from General to Colonel, Mitchell retired and continued to advocate for airpower until his death in 1936. He was later honored posthumously with the Congressional Medal of Honor. Five years after his death, the Japanese attack on Pearl Harbor and the ensuing Second World War proved all of Mitchell’s theories correct – airpower proved to be a decisive weapon of war.
Over two years ago, Mitchell’s remarks came to mind when I decided to speak out and criticize the decision by senior military leaders to use torture and abuse as methods of interrogation. As I learned in Iraq, the authorized and encouraged use of torture and abuse against Muslim detainees since 9/11 had significantly aided Al Qaida’s recruitment of foreign fighters and led to the deaths of American soldiers, as well as Iraqi civilians. Not to mention the fact that it disregarded a long held military tradition of prohibiting the torture of prisoners going all the way back to General George Washington and the Revolutionary War. Military leaders had an obligation to dissent when handed the unlawful authority to use enhanced interrogation methods against prisoners. They failed to do so, thereby forcing subordinate officers to choose between obeying or violating Geneva Conventions, U.S. and international law, and military regulations. Realizing the risks, especially under an Administration that routinely limited Whistleblower protections, few dissented.
Guidance to military officers during their initial training includes instructions on dissent. One of the key conditions required for dissent is the consideration of the difference between an unlawful order versus a difference of opinion or an alternate method of accomplishing a task. The unlawfulness of enhanced interrogation techniques is clear, despite the so-called Torture Memos which attempted to cover-up unlawful interrogations that had already taken place and to justify the use of torture. The military’s own Law of Armed Conflict training, required to be completed by military members annually, instructs soldiers to follow Geneva Conventions and treat detainees humanely, regardless of status. These instructions are repeated in military regulations with warnings that failing to do so will result in advantages for the enemy. The regulations also remind soldiers that they can be subject to punishment under the Uniformed Code of Military Justice if they fail to obey or to report violations. It was with these thoughts in mind that I objected to the use of enhanced interrogation techniques in Iraq and why I decided to speak out after I returned.
I support the call for an independent commission to investigate the authorized and encouraged use of torture and abuse against detainees. That investigation should also examine the protections given to military members who face retaliation for having dissented, objecting to the use of enhanced interrogation techniques. Unfortunately in the case of Billy Mitchell, dissent took a decade and a half to be heard. We cannot afford to wait that long.
Posted in: Rights & Justice, United States
Topics: international law, interrogation, Iraq, Matthew Alexander, Muslims, torture, US military
Stay Informed
Dear Mr. Alexander:
I read your opinion piece with interest; however, I think you might want to take a bit more care with some of your claims, even though I very much appreciate both your sentiments and the courage you've shown in standing up when it was not popular to do so. I've done the same and have suffered both professionally and personally as a result. Yet I disagree with your analysis for the following reasons.
First, as a lawyer who has reviewed the Torture Memos, I can tell you that the legal reasoning of Mr. John Yoo was appallingly poor. I was actually shocked that this was the quality of the analysis put out by the Office of Legal Counsel, one of the most prestigious legal postings imaginable--at least it had been prior to Mr. Yoo's tenure and performance.
The problem from a legal point of view, however, is that the analysis in the Torture Memo--while of extremely poor quality--is not, as you described it, clearly wrong--or at least not so wrong that it would support your stance in refusing an otherwise valid military order. Consider just the following: Al Qaeda was not a state actor; did not wear uniforms; did not agree to abide by the laws of war; did not adhere to a formal command structure. You would like the Geneva Conventions to apply to this group, but they plainly do not under the written terms of those conventions.
You cite military training (a manual), military regulation, and the Uniform Code of Military Justice (a set of federal regulations). None of those legally trumps a formal legal opinion delivered by the Attorney General of the United States, which effectively Yoo's opinion became after the Atty. Gen. delegated the analytical task to him and after the opinion was signed off on. What was clear is that this legal opinion was the formal position of the United States Government. Your appeal to lower authority (regulations, etc.), while emotionally appealing today, just does not answer the legal question of how a military officer should have acted in real time. I personally question the wisdom of the order on any number of grounds, both legal and strategic. Yet the correct answer as a legal matter (at least for anything short of waterboarding) was actually to salute and carry out the order.
Notice that I'm not saying that that was necessarily the correct moral answer for one and all. One is always free to say, "This is getting a little rich for my blood. Throw me in jail, because I'm not doing that." That might be the correct course of action--akin to Mohandas Gandhi saying "You must find me guilty." But that's a different matter than saying that the law itself must be disobeyed as it was facially defective, or that the long term interests of justice require violation of the law. I don't think that that was the case at all with waterboarding (which actually heightens the moral struggle).
Second, your argument on strategic grounds is first rate: torture back-fired as a practical matter, and it remains a stain on our honor--a fundamental breach of international norms of conduct. Would that that constituted an automatic violation of international law: it currently does not, nor has it ever, regardless of what your heart tells you. You are welcome to investigate the laws of war at and prior to 1789 when the U.S. Constitution was ratified, but you will find nothing that prohibits a technique such as waterboarding, at least if the President puts his stamp of approval on it--which Bush obviously did.
Third, as one who has nearly died by drowning, I can tell you first-hand that while it is a terrifying experience, it is not an especially painful one. "Torture" it may be in the hands of an interrogator, but again, that's not as obvious or as compelling a conclusion as you make it out to be. I personally think that waterboarding is as rough a technique as is humanly imaginable, but I'm also uncomfortable automatically applying the term "torture" to it. I can do so easily to reach the conclusion my heart tells me to reach, given peace-time norms. The question on which the issue pivots, however, is "Given our methods of legal analysis, is it fundamentally like, or unlike, other practices that we deem to be torture?" The troubling fact is that due to the relative lack of physical pain, waterboarding may be seen as more different than similar. That some responsible official, under a democratic form of government, characterizes it as just short of torture may well be wrong factually. But again, unless you indulge a strawman argument, you'll not be able to convince me--who has involuntarily experienced something very similar to waterboarding-- that a legal order reviewed by the Vice President and perhaps by the President, is so obviously wrong that it was legally invalid when issued.
Before you reject this argument out of hand, consider the fire-bombing of Japan, an act that my father took part in as a tail-gunner on a B-29 crew. That horrifying set of bombings took place under truly harrowing circumstances for all involved--including the flyers. Was the military order obviously valid as a legal matter or obviously invalid? Easy conclusions cannot be drawn in that case, at least if one is honest with the facts, but even with hindsight bias it would appear to have been a lawful order. I think that many years from now, people will view the waterboarding issue in a similar light.
Lastly, the army is doing some interesting work on dissent as applied to military decision-making. You may wish to look into CACD (Commander's Appreciation and Campaign Design) at Ft. Leavenworth. A small team is trying to integrate dissent into the military decision-making process itself in real time, and to sensitize officers as to the important role that dissent can play in strengthening a commander's decision. Would that we had had such a method in use in the USG generally in the run up to the latest Gulf War.
A number of researchers are doing interesting work on dissent in small group dynamics. I would be happy to trade notes on some of the research I've found useful on the issue, particularly as you may not run into these kinds of sources (business, psychology), depending on your search methods. (I had started to write a grant to study this matter at Ft. Leavenworth, but got side-tracked).
I respect your work and your stance, and I wish you luck in the future. As a dissenter myself, it pains me a bit to dissent from what is obviously a serious, heartfelt position (yours), but I feel compelled, at least so as to strengthen our collective understanding of the issues.
Best regards,
Cato [not keen to publish under my name--I'm currently teaching at a university in Saudi Arabia]
To Cato (I admire your use of a pseudonym),
I don't know the circumstances of your dissent, but if you did so in good faith then I applaud it. Let me address your comments.
First, unless you take a John Yoo draconian view of Presidential prerogative, then certainly you admit that unlawful orders exist. Would an order to shoot an innocent child be an unlawful order? If you agree that unlawful orders do exist, then I would ask what is your standard for evaluating whether or not it is unlawful? It must by definition violate the law. There are very clear laws against not only torture, but against even lesser forms of abuse (see the Convention Against Torture or read the UCMJ article for Assault, for just two examples).
You are incorrect that a Department of Justice legal opinion supersedes UCMJ or International Law. Memos are not law. They are interpretations of law. You are also incorrect that there isn't precedent for declaring waterboarding torture. There is precedent from WWII and a case of a sheriff and his deputies in Texas. Any first year law student with access to LexisNexis can find that case by searching "torture." So the Torture Memos were a deliberate attempt to circumvent the law and aid in a crime, which makes the legal advice itself not only incompetent, but also unlawful. A lie of omission is in fact a lie. It also makes the Memo authors accomplices in a crime. This is especially true now that we know that the torture and abuse of Abu Zubaydah preceded the authoring of the Torture Memos and that they were written as part of a cover-up.
Comparing your drowning experience to waterboarding is a ludicrous argument. Just because nearly drowning wasn't painful to you doesn't mean that waterboarding isn't torture to someone else. If you need more justification, please read Malcolm Nance's recent interview by Scott Horton on the Harper's website (Nance was a SERE instructor and waterboarded numerous military personnel). Also, as my friend Darius Rejali would say, you can't compare pain. I suggest you read his book, Torture and Democracy.
In my opinion, the comparison fails when you remove consent. It's why all sex isn't rape. Once you take away consent, then it's coercive. Waterboarding is not only painful, physically and psychologically, it's a threat of death. It's no different than putting a gun to someone's head without telling them that it isn't loaded. There's no pain, but still it's torture.
I don't think future generations will compare waterboarding to fire bombing in World War II because the law was very clear prior to 9/11 and our use of waterboarding. Would you justify WWII veterans having used chemical weapons against our enemies even though they were outlawed after WWI? Or should we return to Medieval laws of armed conflict? Would you advocate internment for Muslim-Americans? Can we throw away the laws of armed conflict like necessity and proportionality because they didn't apply a hundred years ago?
The laws of war, and law in general, evolves because societies want humans rights to progress, not regress. Hence, comparing actions of soldiers in WWII to what we should be doing today is a false comparison.
I'll take a look at your suggestions regarding military dissent. I find the topic interesting. For me there was never a question when it came to unlawful interrogation techniques. My oath didn't stop when my interrogation duty began.
Regards,
Matthew Alexander
Dear Mr. Alexander:
Dear Mr. Alexander:
Thanks for the courtesy of a reply. I think I better understand the nature of our disagreement. If I understand you right, you would appear to view the waterboarding order as facially unlawful, both under statute and international law. You also believe in an evolving system of law, and presumably--if I read between the lines correctly--a role for dissenting attorneys who view an order as unlawful. My views differ in small but material ways.
First, though, a disclaimer (and to clearly set the record straight, especially as you brought up innocent kids and characterized one part of my discussions as "ludicrous.") We both view wholesale acts of torture and brutality (e.g., Bagram airbase beatings, in some cases beating a detainee to death) as unlawful and completely unacceptable. I'm not here to advocate for the grotesque. At the same time, however, I think you've moved too quickly over some important matters that strike me as legitimate, and at the core of what lawyers do. It might profit both of us to discuss those areas.
You asked me what my standard was for evaluating an unlawful order. Before we get to that stage, however, we need to decide who the decision-maker is. I think that this is an area in which we have a profound, legitimate, legal disagreement. Prior to the Hamdan case, it was not at all clear that Geneva Common Article 3 would be applicable to all prisoners in what was then referred to as the GWOT. In fact--and though I'm not an expert in this area of the law--I believe that the standard, hornbook understanding of the laws of war was that the laws of war did not even apply to persons such as spies and terrorists.
In terms of "customary" international law, nation-states routinely acted as if the laws of war did not apply to such persons. I know that you can make an argument that under an evolving understanding of the law, it would be better if that body of law did apply to such persons. But I think that your understanding of actual custom is factually incorrect. So I'm not comfortable with your argument that there was a clear international custom arising from the laws of war that should have informed a soldier--clearly--that he had to act humanely toward a terrorist, especially in the face of a contrary order.
Moreover, it's not as though breaches of international law are never countenanced. In fact, one of the long accepted, prescribed remedies for an actual breach of the laws of war is a responsive act that also violates the laws of war: the reprisal. This follows both logically and practically from the fact that the main guarantor of international, personal security in times of heightened tension, and over the long run, is not the judiciary but the executive, wielding the sword. In this conception of law and justice, a group like Al Qaeda may strike military targets such as the Pentagon. In that case, they arguably begin to fall under the rules, and under the corresponding protections, of the laws of war. When, however, they voluntarily choose to dress without uniforms and attack civilian targets, such as the World Trade Center, they forego such protections.
The United States of America may lawfully engage in a reprisal for Al Qaeda's violation of the laws of war. It is conceivably proportionate for a combatant commander, or for the commander in chief, to issue a waterboarding order for a KSM. After all, these same commanders may lawfully issue orders to kill under combat circumstances. Where the way has been cleared, so to speak, by Al Qaeda's initial refusal to abide by the laws of war, a proportionate, even though harsh, response by the Executive is in no way unlawful as a reprisal simply because it looks to be a violation of international law-- particularly in KSM's case, where he was the architect of 9/11 and no one knew if follow-on strikes were coming.
Furthermore, Congress authorized, on Sept. 18, 2001, "all necessary and appropriate force against nations, organizations, or persons...in order to prevent any future acts of international terrorism against the United States...." A soldier not versed in constitutional theory, or privy to the future decisions of the Supreme Court, might well look at that law and simply ask: "Does the Theater Commander have a colorable factual and legal basis for treating KSM in an exceptionally harsh manner so as to prevent a future strike?" If there's not a genuine question as to the identity of KSM, or of his role in 9/11, then the question of legal authority is quite strong: the Congress left it to the Executive to decide what was necessary and appropriate under the circumstances. You act as if there was no possible way for the waterboarding order to be lawful. The painful truth is just the opposite: if you don't assume your conclusion, there's nearly no way for it to be seen as unlawful.
You can always make an argument for humane treatment and for the wisdom of humane treatment, and I'm not the guy to try to talk you out of it. My gripe with you is different. It's that from a purely legal point of view soldiers cannot be and should not be placed in a situation where the legality of military orders are up for interpretation--at least for anything but the most extreme orders. That's a very slippery slope. I certainly don't want a soldier in real time to be divining whether harsh treatment is "appropriate" as a constitutional matter.
What authority does the Executive have with respect to determining the appropriateness of a punishment or a reprisal? Here's where our philosophical differences really become clear. I have a more tragic view of law, politics, and war than you would appear to have. I believe that to the extent that international legal developments occur--especially in the laws of war--that they come about more as a result of a nation following its own self-interest than as a result of some kind of enlightened legal evolution. Kellog-Briand didn't work, but a nuclear stand-off during the Cold War did: Al Qaeda fighters are not about to follow the laws of war. We should make the alternative worse for them.
Presidents from George H.W. Bush to Clinton to Bush II initiated hostilities on their own constitutional authority. The practice today, and in recent decades, like it or not, is that the Executive is legally authorized to take some truly harsh, violent actions so as to discharge its constitutional obligations. As the O'Connor case made clear in 2003, we can all hold differing opinions about the wisdom of what the President does in time of conflict, but most of the decisions can justly be characterized as "nonjusticiable political questions." (from the opinion: "there are no judicially discoverable standards that would permit a court to determine whether the intentions of the President in prosecuting a war are proper.")
Similarly, there just are no discernible, objective standards by which, in real-time, one could authoritatively and with precision calibrate the act of waterboarding as clearly outside the realm of lawful orders. A simple exercise makes the legal case easy to understand. Could a Commander in Chief order that KSM be called foul names? (Remember, it could be degrading.) Could he order that KSM be slapped, moderately hard, just once? (This, the mastermind of 9/11, guilty of mass murder, and the object--remember--of an internationally lawful reprisal.) Can he be dunked in a bucket of cold water for thirty second, just to remind him of all of the kids who were killed on 9/11? I'm not about to walk the plank all the way out to "Can we lop off limbs if he angers us with an answer?", but I am willing to say that a soldier has no legal right to enter this discussion until there is a LEGAL basis to do so, i.e., an objective, internationally recognized basis for claiming that there is no way that the order could be valid. In other words, most military orders are not up for moral renegotiation by subordinates.
Of course, as a matter of conscience, as I've argued in the post above, one can--at one's own legal peril--opt out any time one wants to and refuse an order, but that does not necessarily, primarily, or uniquely result from legal analysis or argumentation.
The Hamdan case did clarify applicable international law and the law itself may well be "evolving." But a soldier in 2001 or 2002 cannot be expected to predict where the U.S. Supreme Court will come down on the issue in the future. I don't think it's wise policy to ignore the practical consequences of encouraging refusals of orders that are supported by a reasonable interpretation of Presidential power. That way lies the politicization of the military, a circumstance we have thankfully avoided for over two hundred years.
You cite to legal research and you may well be ahead of me here--I have no access to a legal database here in the Middle East. Yet I don't feel comfortable with the argument that the Office of Legal Counsel's Memo was just a memo. I know its history, and so do you, and you are as factually as right as can be--those clowns were involved in a half-baked cover-up, and a sloppily reasoned one at that. But as I've indicated, I think a far more principled, and a far stronger argument could have been made. Where the President is clear--and Bush II was clear--that he considered his power to be constitutionally based, any refusal to comply with an order requires a serious constitutional response. I haven't seen one that grapples with the specific facts and the relevant constitutional history.
In the end, you may be right that we'll all evolve and the world will be a better place if we are guided by the angels of our better nature. Yet history is opaque enough that the opposite might well be as true or truer: that these sorts of non-state, terrorist actors will cease to be effective, and will wither, precisely to the extent that we adhere scrupulously to the rules of international armed conflict when they do, and proportionately but vigorously depart from those rules when they depart first.
Given the chance, I would personally and unhesitatingly waterboard KSM if given a facially valid order to do so. Perhaps not so ironically, I would also refuse to engage in the kind of beatings administered at Bagram. I would like to think that if I were a witness to that sort of crime that I would have the guts to pull my side arm and say to the guy delivering the beating, "What you are doing is unlawful and I'm not going to stand by while you do it. If you continue, I will shoot you."
If I'm an advocate for anything, it's that there's a difference between these two cases. My experience in almost drowning is not beside the point: it informs my legal judgment as to what constitutes an objective, justiciable standard for determining an unlawful order (the lack of extreme pain or permanent damage from waterboarding means that there's a colorable claim that it's a proportionate response). Differentiating these two cases preserves the distinction between the liberty protected by the Executive and that protected by the Courts. Beating a low-level suspect nearly to death at Bagram (and inflicting unimaginable pain and likely permanent damage) is in no way proportionate, in no way lawful. That's why I'd be willing to kill someone who sadistically tried to administer a near-death beating.
Your position, by contrast, would justify a soldier in refusing an order from Curtis Lemay prior to the firebombings, as the General was about to take innocent life, but had too fuzzy a conception of evolving standards of international morality. Talk about a volunteer army: : anytime a soldier didn't want to participate in a mission, he'd just refuse, then claim an ethical basis for doing so. Not workable.
I've represented an Islamic extremist in the past (one accused of complicity in a terrorist plot). I've lived, now, among both peaceful Muslims and among those who would certainly kill me if they could get away with it. I do not underestimate the nature of the problem, nor do I dismiss the importance of the ethical object we are trying to safeguard. We may differ in our judgment, but I'm not at all convinced that it's because I can't see or understand a "clear" legal argument, or that I'm less evolved morally. The complex relationships between law, politics, justice, and war allow for multiple legitimate positions. That makes the refusal of a colorable order particularly ill-advised as a policy matter.
Let the generals--and the attorneys--hash this out, both in real time and over time. But let's not indulge the fiction that Presidentially-ordered (and Congressionally sanctioned) harsh treatment presents an easy legal case, and that if everyone were just more evolved, the legal issues would simply dissolve.
Best regards,
Cato
Cato,
Unfortunately, no matter how much Yoo-ism you apply to justify torture, it still holds that even in war there exist unlawful orders.
In your lengthy response you fail again to address two arguments. First, that torture and abuse of detainees as authorized by the Executive branch led to the deaths of U.S. soldiers in Iraq (the use of the word 'harsh' has no value except to disguise the fact that's it is torture and abuse; that's what we call distancing in the criminal investigative world and a common way to identify deception). The authorization of such torture and abuse by the Executive branch was actually worse than the rogue cases, because it was state-sponsored.
Secondly, you don't address the other argument, that torture is always wrong, as our own Executive has preached to many other countries.
Disobeying an order to torture is not extreme. It is exactly the type of situation in which we were taught to dissent, when orders are unlawful and obviously violate US law, international law, or UCMJ. Torture and abuse of detainees violates all three.
The fact that you would unhesitatingly waterboard KSM only shows that you know nothing about interrogations (I'm assuming you've never done one), because it would be not only ineffective, as it proved to be 183 times with KSM, but would also aid our enemies in numerous ways, as confirmed by leaders like Gen Petraeus and Sen McCain, among others.
This is why we shouldn't entrust interrogations to non-interrogators, like CIA contract psychologists or bureaucrats or lawyers. If you can find an experienced interrogator who supports the use of torture and abuse, considering both short and long term effects, then I'd be happy to hear the arguments. Otherwise, I'll stick to the law and my obligation to refuse to follow unlawful orders.
Also, you may want to read the Nuremberg principles regarding the idea that Executive privilege can supersede the law.
Regards,
Matthew
Dear Mr. Alexander:
I did address those two arguments: I specifically noted the deaths at Bagram, stating that I not only thought that it was torture, and was unlawful, but that I would shoot anyone attempting to engage in such conduct. I'm kind of surprised that you missed that.
I've never denied that unlawful orders exist. Rather, I've argued that a waterboarding order can be distinguished from such an order on principled legal and factual grounds. I see that you didn't address that point.
I also directly addressed the second point: waterboarding, which you characterize as torture, is in my judgment a justified reprisal under international law. I specifically argued that it was not unlawful simply because it might appear to violate international law. I noted that such violations, in rare circumstances (such as, specifically 9/11), are lawful, and have been lawful for hundreds of years. I also noted the very real and serious policy reasons for their being characterized as lawful, especially as applied to a group like Al Qaeda.
You've misread my position on KSM. I didn't say that waterboarding would be, as a practical matter, the best technique to elicit information. I said that I thought it was legal on the basis of specific, articulated grounds. I then said that I would carry out an order to waterboard him were I an interrogator.
I did say that I would do it "unhesitatingly" and that was wrong of me. Given its exceptional harshness, I should never have said that. In retrospect, I should have said, and I believe, that in the face of an order to carry out such an act under the circumstances, I would carry it out.
You repeat the contention that one must refuse an order that is "obviously" unlawful. But the reason my response was lengthy is that there is a principled argument as to why such an order is NOT obviously unlawful. It is you who have failed to respond to that argument, or to the deeper philosophical and policy reasons that divide us, and cause us to have differing opinions on this issue.
You can always cite to the Nurenberg trials, but they are completely inapposite to the issue of reprisals.
I cited to federal statute passed on Sept. 18, 2001, legally authorizing the Executive to exercise whatever force it deemed necessary against PERSONS in order to prevent another attack. We all may have differing views on the breadth or wisdom of this law in hindsight, but it was the law at the time. An order in compliance with that law is, by definition, not unlawful.
I cited to a U.S. Supreme Court case indicating a serious issue regarding the existence of justiciable standards by which to judge the legality of an order. By analogy to the case just cited, one could then ask whether the courts have any better view of what constitutes "appropriate" force than does the executive. I didn't make this law up, I'm just asking the questions that come to me after reading the case.
The one final problem with your position is, ironically, its nobility. It's easy to ride in on a white horse; it's much harder to explain yourself in the face of a reasoned objection.
If you are inclined to address these questions, please do. If not, then the conversation fails to advance, and there's really no point in posting it on a site dedicated to the open society.
Regards,
Cato
And herein lies the perfect proof of what my friend Darius Rejali would say. That those who want to torture will always find a way. The French in Algeria, The Inquisition, the dictators of Latin America, and now us. There's always a justification...savings our souls, protecting the innocent, executive prerogative, eliminating the infectious elements of society. Hence the reason the international community has made it very clear -- torture is never justified.
I've addressed your points but the failure to advance the conversation hinges on the fact that I believe torture is never justified. Your John Yoo theory of presedential power falls flat on its face in light of the the CAT or the executives own speeches (again, refer to George Washington, for one, or George Bush).
The disturbing part is the inability of torturers and torture supporters to admit that the reasons they want to torture go beyond efficacy or legality. You support it for Muslims and Arabs after 9/11 so it's safe to assume you would have used it on white supremicists after the Oklahoma City bombing? Or today on illegal immigrants? What group will be next? The only justification you need is not presidential power...just that our enemies are different.
If history teaches us anything about torture it's that it will always exist as long as we don't hold those who use it accountable.
Torturers will always find a justification.
Mr. Alexander:
Respectfully, I note that you've not addressed my specific legal points. Given your position, I understand why (torture is prohibited, Q.E.D.), but it's still the case that you've not grappled with the specific legal arguments that I raised, so we shouldn't pretend that you have.
I understand that your basic position is grounded in a kind of Kantian categorical imperative: once captured, one cannot be treated harshly. That position has obvious appeal. Yet if the harsh treatment of another human were truly prohibited under all circumstances, we'd never go to war. The issue isn't the existence of some imperative, it's whether there exists a bright line standard separating ethical wartime behavior from more normal standards of behavior during peacetime.
You argue that the line between the two is bright and admits of no exception. Where belligerents abide by the laws of war, I agree with you as to the brightness and wisdom of the line. When they depart from the accepted war-time norms, however, I think that the line may not be so bright (and international law recognizes this). In part, this can be seen as an inducement to the enemy to abide by the laws of war in the first place. That position is embodied in the notion of a reprisal--an issue you've not addressed.
Again, I don't stake out this position as the best way to conduct foreign policy, though it might be. I want to point out, however, that if conduct such as waterboarding can be seen as representing a legitimate legal position, then many a post-9/11 order was not as facially invalid as might at first blush appear.
Scientists use the idea of type 1 and type 2 errors to describe the different ways in which a medical test, for example, can either overshoot or undershoot a problem. We lawyers have a similar concept in the overinclusive/underinclusive distinction. One of the benefits of this type of analysis is that it makes explicit that fact that one never wholly eliminates error: one just chooses the nature and extent of the error that one can live with.
As applied to the post-capture treatment of a man like KSM--who bragged that he personally slit the throat of Danny Pearl--we can always, as you do, lay down a rule that prohibits any kind of harsh treatment, or even any kind of treatment that might offend (foul language, for example). That's a tradeoff. You can advocate for that tradeoff on ethical grounds, but you can never make the case that you are doing so as anything other than a tradeoff. If KSM knows of a follow-on strike and he is not forced to give up that information, real consequences may flow. Your position just abandons any attempt to deal with that risk. You can take such a position, but you'll never convince me that you've successfully managed the risk at issue.
There are many kinds of justice. We go to war not because we want to justify violent behavior, but because we believe in the ethical nature of the object we seek. We believe in that object to such an extent that the brutal costs of conducting war appear to be warranted under the circumstances. That's the theory behind a just war. There's no reason to think that the same process of reasoning cannot be applied to post-capture treatment, i.e., we choose to treat a very limited number of terrorists in a different, exceptionally harsh, way because we believe that it is in our long-term interests to do so. I'm suggesting that that may be as ethical a position as a war-time decision to engage in a firebombing. Neither position is easy to think through; each should leave one uncomfortable. Yet both may, under certain circumstances, be necessary and moral. (And they are certainly not immoral just because you characterize them that way.)
We began this dialog around the issue of the legality of certain military orders. I've read your position with care, but I've come to the conclusion that it represents an assumption, rather than a process of reasoning, and that it largely exists outside of any factual context. It's also an easy position to take socially.
War demands much of us, including intellectually, especially if we take the potential of future attack seriously. Harsh actions that shorten it (cf Hiroshima and Nagasaki) have always had an independent moral justification that you have not adequately addressed. As the son of a tail-gunner on a B-29 crew, I learned this lesson from the stories that my father told me. For him, there was nothing abstract about shortening the war, even if the actions taken were exceptionally harsh and ethically difficult to make. The same process of reasoning can be applied to post-capture treatment.
Cato
Cato,
Upon your first response I wrote a note to myself on a piece of paper -- "Find out why he really wants to torture."
I normally wouldn't engage in this type of debate in a forum, but I thought it would be interesting for our readers to observe two things: 1) That people who use legality or efficacy as an excuse for torture always have other underlying reasons for wanting to torture (prejudice against Muslims or Arabs or basic criminal sadism are two examples) and 2) That a skilled interrogator can draw out those reasons just as he or she can successfully interrogate a detainee without torture and abuse.
Interrogators who read this exchange will note that I used an Emotional Approach and also Drifting (yes, please teach me about the law and in the process let's talk about your personal situation and why you believe in torture). It's hard not to get emotional in such a debate and it works the same way with detainees. And once you start talking about something innocuous of your choosing, it's very difficult not to want to keep talking about other things (Note to readers: This is why we should eliminate Appendix M from the Army Field Manual -- solitary confinement reverses this advantage for the interrogator).
We come to your last post in which I think we're getting close to the real reasons you want to torture. Your reasons are so parallel to Marc Thiessen that I almost suspect a wolf in sheep's clothing.
First, your father supports it and he was a tailgunner in WWII so by default he has legitimacy in making the argument that it helps to shorten a war based on the logic that firebombing in WWII and the atomic bomb did the same. But we didn't torture Japanese POWs, which is quite curious given your reasoning. Why not? Certainly they had information about future attacks and according to your logic it could have shortened the war and would have been justified. Perhaps because it was against the law? Or because it was immoral? You have your WWII veteran, but there are plenty of others (I talk to them weekly) who interrogated Japanese and Germans without using torture and abuse and cited the same justification George Washington gave during the Revolutionary War and Abraham Lincoln gave during the Civil War -- it's immoral. Those two Presidents certainly would have had good reason to want to shorten war.
There's an important lesson here for all of us. That our parents' opinions about the laws of war, despite their experiences, are not absolute. There's a reason why human rights law has progressed and it's because the international community has rejected that notion (and America, in particular, has been a leader in this arena). We believe that we know better than our parents and we've codified that into Geneva Conventions and the CAT.
Secondly, we've also ferreted out another possible reason why you would torture from this statement: "KSM--who bragged that he personally slit the throat of Danny Pearl." Your choice to point out Al Qaida's crimes as a justification for torture suggests that you want revenge, not information. You argue that we should be allowed to lower ourselves to the level of the very type of behavior that we are fighting. Why would you want to model our ethics on Al Qaida's? It baffles me (General Finnegan, the dean of West Point, said the same in a speech last week). But I suspect revenge as one of your true motivators.
Thirdly, your frequent referring to past wars (if only we had a time machine) makes it clear that you hold disdain for the progress of international human rights law and wish to reverse treaties like the CAT and Geneva Conventions. You believe that these laws create more suffering by limiting the ability of the military to finish a war quicker. Which is what you should have just said in the first place.
But the international community created the laws of war for exactly the opposite reason, which is that we believe that they limit civilian suffering during war. Hence the reason you wouldn't be able to firebomb today because of the laws of necessity and proportionality and other provision of Geneva Conventions. Your contempt for human rights law in particular inches you closer to the heart of why you would torture. The next step is that you don't believe our enemies deserve human rights protections because they are not humans based on their behavior and, hence, it's okay to torture them. When you toed up to that line in your last post with a legal argument it became clear to me that you don't believe our enemies are human. What will your next post hold? Will you fall for the Emotional Approach twice? It's a Catch-22 because you want to respond and it will be difficult now to recede. I used this technique frequently in Iraq on detainees and it worked over and over to discover an individual's true motivations. Apparently the Emotional Approach is cross-cultural.
Lastly, your argument also suggests that you believe American POWs can be tortured. First, because they hold information about future attacks and, secondly, because we have violated the laws of armed conflict. You might want to rethink that.
There are two lessons here for our readers. One, that torturers will always find a reason to torture. They can disguise it in legality or efficacy, but there's a deeper reason, usually prejudice or criminality. The only way to eliminate torture completely is through accountability. Even then, there will always be criminals.
The second lesson is that a good interrogator can do his or her job without torture and abuse, as they've done successfully through many wars and they have through this one. Just read through this exchange and note how in a matter of four posts on a blog I was able to discover the real reasons why one individual wants to torture, which are so cleverly hidden in legal arguments. Two simple non-coercive techniques that I could teach to any one of you. If you don't think they'd work against Al Qaida then read How to Break a Terrorist and you'll see that they do...time and time again. The same techniques you just witnessed here are the ones I used to convince the detainee to cooperate who handed us Zarqawi.
Enjoy,
Matthew
Dear Mr. Alexander:
Your response purports to get a little personal, which these blog exchanges seem almost to encourage. I assure you, however, that I'm not as bad as you'd assume.
I think that rather than focusing on amateur psychoanalysis, you and I both might profit if you address a number of legal arguments that I had raised earlier, including the reprisal argument; the Congressional authorization of Sept. 18; and the policy considerations arising from the fact that the Courts may indeed lack "justiciable standards" regarding some of the Executive's actions, i.e., that some of these issues present wholly "political questions." Please do respond if you have something to say on the merits regarding any or all of those points, especially if you have something of a legal nature to say.
My perception of the psychoanalysis (which you dwell on) is that you've discovered only the strawman that you usually face in such arguments. I, the real person, by contrast, have no desire to torture; am not drawn to criminality; do not follow my father's opinions slavishly; and think that lessons from the past can inform, as well as be distinguished. I'm rational and think for myself. In short, I think you're jumping the gun a bit (as well as demonizing). Simply addressing some of the specific legal arguments I've raised would be more than adequate.
If you'll re-read the posts carefully, you'll find that you're in part fighting a shadow (a bit ironic, don't you think?). You keep insisting that there's a dark motive. In as reasoned a passage as I'm capable of in short prose delivered in a short time frame, I've indicated clearly that we have a substantive disagreement, in part based on legal theory and in part based on policy. That's hardly earth-shaking news for two lawyers who are interested in a subject.
For proof that I'm not hell bent on force as a primary technique, just re-read my argument on Bagram: I stated that that specific use of force should never have happened and that it remains a stain on our national honor and a strategic mistake. That doesn't sound psychopathic to me. Even sounds like we might have some common ground.
You claim that the Geneva Conventions reflect an evolution of international law. I suppose that depends on whether they are effective in conforming the conduct of all parties. Where Al Qaeda does not conform, your argument looks a bit like a unilateral disarmament argument. I disagree with that approach. I think that these human rights conventions work best when they induce change that otherwise would not have taken place. As you know, I think that they are wholly ineffective against a small portion of our enemies. To me, that's a problem to be managed, not ignored.
Regarding my Danny Pearl reference, you've got it factually backward: I would want information, not revenge. The reference only indicates the basis for a legal argument: that KSM's despicable conduct warrants our stripping him of some of the protections of international law (remember, 1) Pearl was a journalist, not a soldier; and 2) for many years, a reprisal has been deemed to be just under international law. KSM brought that international legal status upon himself, through his own voluntary actions. I've already indicated that I'd not raise the same argument had they worn uniforms and struck the Pentagon only. I think that that's a measured and principled position, and have heard nothing from you as to legal argument to the contrary.
Your hypothetical regarding U.S. P.O.W.'s fails to persuade: they shouldn't be treated in the same manner as a KSM where the U.S. follows international law. Departure from such law, as at Bagram, however, exposes our service men and women to reprisals, so that's an additional reason to respect international law where it's applicable. That's not, however, a reason to adhere to its norms where it's not applicable (AQ striking WTC).
You're the expert here on interrogation, so if information can be gained without violence, I'm all for it. (And not incidentally--and I mean this--I appreciate what you've done for our country). Where we part company, however, is very simply this: if it turns out that necessary information cannot be obtained in an operationally reasonable amount of time, I would, with respect to a very few number of Al Qaeda detainees, take very harsh action, and you would not. We can disagree on that point without name calling. War sometimes entails harsh action and people's ethical judgments can legitimately differ.
You've asserted that I have "disdain" for the progress of human rights law. That's just invented by you--that's not at all a correct reading of what I've written (for example, I'd never take the time to discuss "reprisals" under international law if I held international law in contempt). Our views conflict because I believe that human rights progress along a variety of fronts, one of which might be through the use of force by the Executive under certain prescribed, limited circumstances (especially by taking actions that allow polities to flourish that respect the rule of law.) Again, go back and read what I've said about reprisals. I never came close to saying that we should just jettison international legal standards because it's inherently easier or superior or more effective to do so. That's a strawman argument. I made a much narrower claim: when the enemy abandons such standards first, then we're LEGALLY JUSTIFIED UNDER INTERNATIONAL LAW TO TAKE A PROPORTIONATE RESPONSE, WHICH MAY INCLUDE SOME VERY HARSH ACTIONS AGAINST A FEW INDIVIDUALS. I hardly think that that's a broad claim, or morally out of proportion with the kinds of decisions taken routinely in a war: drone strikes sometimes kill innocents as well, but we don't completely stop them solely on the ground that an innocent might die, though we do, of course, try to limit that loss of life. It's a matter of judgment.
The only person who has raised the Al Qaeda-aren't-human argument is you. I think that they are definitely as human as I am. I even understand, and have some measure of sympathy for, the way that they view some of their grievances, even if I reject both their world-view and their methods. So a salivating, neo-con nut-job darkly seeking revenge I'm not.
Nor am I prejudiced. I've dated inter-racially; I've lived all over the world; I have many Saudi and Arab friends--you've just misread me. (Again, I think, responding to a strawman.)
There's a terrific exchange in Witt Stillman's movie "Barcelona," where the naval character says, "You know, they're always talking about the 'subtext,' but what is it when you're just reading the book itself? You know, when you're just reading the lines on the page? What's that called?" To which his friend replies, "The text."
We've become intoxicated with the notion that there's always something more meaningful lurking just underneath the surface. Certainly that's true sometimes, but it's also sometimes false. The truth, Mr. Alexander, might be staring you in the face, i.e., my position might be just the one I've stated, and I might believe it because I believe it's right, or as right as can be, after due consideration of a number of factors.
If you want to engage in a meaningful conversation, then engage. Tell me what you think of the reprisal argument as a lawyer; tell me why you think the courts are always superior to the executive as the one whose judgment can sustain our liberty over the long run in the face of violent challenges; address the substantive ethical issue of judging matters inductively and as a result of discriminating judgment based on the real facts, and not just deductively (e.g., why do you think that deductive reasoning on this subject is always so superior? Does history really so clearly bear you out?) Do that, and you won't have to resort to the ad hominem so much.
My thoughts are not born of ill-considered rage. I've stood on a street corner in Tokyo and have seen the good that can come from some awfully hard decisions. I'm not afraid of that recognition. The people incinerated in the firebombings died tragic deaths and I wish that they could have escaped that fate. But Lemay's decision, to me, was the right one. I admire the clarity of his thought, his commitment to his men, and his ability and willingness to lead under extraordinary circumstances. That he later was not popular troubles me not.
No one's asking for a time machine. But I am asking you to look directly at the issue of waterboarding in particular and to respond to some specific--and I think well-put--questions. That's what I think these blogs are about. If you insist that there's just one ethical rule ("never harm a human" or maybe "never harm a human who has been captured, no matter the context"), then there's really no point in the discussion and there's certainly no point in your being an OSI fellow: there's no research to do and nothing you could possibly learn. Yet Popper's whole point in proposing and developing this concept of the open society (which George Soros has picked up) was to encourage a process of conjecture and refutation by reasonable people (people who might refrain from jumping too soon to the conclusion of prejudice or criminality in one's interlocutor). What if I'm neither? What if I just think that your legal arguments are a little self-serving, and a little thin?
Popper's insight is most useful precisely when it most maddens. I'm not saying that you'll learn from me, or that I'll change my mind and learn from you, but it's always possible.
I'll definitely buy and read your book. I'm heartened to hear that there's a better, more humane, more effective way. I've never been against that. I'd only reserve for ourselves the option, difficult thought it is, if it proved necessary under the circumstances, to use really harsh force on a few individuals who have brought it on themselves legally (and only if I thought that it would ultimately lessen violence in the world). I'd also follow military orders that appeared to fall within the President's, or the commander's, power, even if I disagreed with them, as long as they could be lawful. Hence, my continual reference to WWII and the ethical decisions surrounding the firebombings, which I think are either on point or very, very informative, both legally and morally.
I hope to learn something about your legal views in any response.
Regards,
Cato
http://www.latimes.com/news/opinion/commentary/la-oe-sachs-20100516,0,1727062.storylatimes.com
[Your answer about the 1% doctrine and legal arguments from a lawyer.]
For what it's worth, Popper's idea of an Open Society was not the debate over whether or not we should torture people. And it's no great virtue to not torture 99% of detainees. Murderers aren't acquitted because they don't murder 99% of us. Your inability to recognize the difference between prisoners, who are unarmed, and collateral damage is notable. I'll let you ask a military JAG about that. You might try Professor Gary Solis, a retired Marine, at Georgetown University to explain the difference.
The argument should be personal. Sitting back out of harm's way and advocating for torture isn't a classroom exercise without consequences. It's what gives legitimacy to elected officials who put in place a policy that not only tortured guilty, but also innocent people, and led to the deaths of U.S. soldiers, some of whom I served with in Iraq. I do take it personal as should every American. The decision to support torture should weigh heavy on those who advocate for it and they should realize fully the cost of that advocacy. The harsh reality is that they are complicit in the deaths of Americans and have prolonged the war.
I'd like to continue this conversation but, alas, the discussion does grow tiresome. There are plenty of resources on why torture is always wrong and my suggestion would be to start with Darius Rejali's Torture and Democracy.
As for me, you incorrectly labeled my interrogation research. It's not to research whether or not it's okay to torture people, an argument long ago settled, it's to advance the non-coercive techniques. Torture advocates have seriously hampered our ability to advance our interrogation methods and corrupted the interrogator corps. I'm focused on adopting a multidisciplinary approach to interrogations borrowing techniques from sales, negotiation, psychology, and other fields. And so I'm returning to my book on the psychology of influence.
Enjoy,
Matthew
Dear Mr. Alexander:
It is a virtue if 8,000 prisoners at Bagram are protected and three high level AQ are subjected to a reprisal that is not especially painful and that leaves them without lasting damage. Policies sometimes don't work out cleanly enough to satisfy the purist, but as a practical matter--and for those whose lives it would have saved at Bagram--I think that it's a productive tradeoff, especially if it results in information from a KSM that otherwise would not have been produced.
You can always cite to your Zarqawi example, but the sample size is admittedly small. Like a Wall Street trader in the early 2000's, you should be careful with the claim that outcomes are always, necessarily, delivered in only one way. I'm not willing to bank on that, even if it's sometimes, or mostly, or even overwhelmingly correct. If 9/11 instilled anything in us, it should be a healthy respect for black swans.
I'm glad that you're conducting your research. However, that's beside the point when you've still not addressed the legal or moral arguments that I raised. Ducking these arguments isn't the same thing as addressing them.
Your link above is broken.
I'm not concerned in my example of an innocent killed in a firebombing with differentiating that person from the unarmed prisoner. The whole point of the reference was to probe an ethical similarity between the two underlying military decisions and the possible long-term outcomes (i.e., long-term justice can sometimes be served by an ethically tough and troublesome decision). I was noting a similarity, not a difference.
Perhaps this exchange has become tiresome because you've taken a condescending and hectoring tone, rather than responding to specific arguments, even after being invited to do so. I guarantee that you won't be bored at all if you try to answer those arguments.
Cato
http://articles.latimes.com/2010/may/16/opinion/la-oe-sachs-20100516
The correct link.
I've answered your questions but you won't be satisfied until you have a legal or moral justification for torture. You won't get either from me.
And for what it's worth, Zarqawi was only one of numerous examples I cited. What is it with torture supporters that they refuse to acknowledge experienced interrogators and their successes? (For our readers, you may want to watch Taxi to the Dark Side and listen to the opinion of just one WWII interrogator at the end.) Goes back to that same old line. Those that want to torture will always find an excuse.
But if the interrogation that led to Zarqawi was the only example I'd provided, it'd still be one more interrogation than you or the torture supporters have conducted. I'll stick with my experience and those of professional interrogators over those far removed from the battlefield.
Mr. Alexander:
I'll be satisfied in this conversation if it's something other than a one way street. You have not addressed:
--the lawfulness of orders based on the Sept. 18th legislation;
--the lawfulness of orders based on the international law of reprisal; or
--the lawfulness of orders based on the inherent authority of the executive branch to respond to terrorists as the long-term interests of the United States dictate, and in the face of the political consequences that flow from that political decision.
You also continue to conflate waterboarding with terrorism, but without responding to the objection that it's fundamentally unlike terrorism because it results in neither significant, lasting pain or any lasting physical damage. (Just claiming that people respond differently and that another might experience pain from waterboarding is no response: assume for the sake of argument that there's no pain (or lasting damage), then respond, if you can.)
Mr. Alexander, it's customary in a serious conversation to respond to reasoned questions. You are the one who claimed that the military orders were "obviously" invalid. I cited reasons why that might not be so (and as an experienced lawyer, those objections should be taken seriously). You have completely failed to address any of these points.
What's the real policy implication of your bright line prohibiting harsh treatment or torture? In the past, after 9/11, the executive gave inconsistent signals as to what it wanted in these interrogations and what it expected in terms of conduct. Congress rushed to authorize all necessary force to prevent a follow-on strike. The President and the SecDef said that we dont' torture. This was to be expected: this is how people act under pressure. Yet this set of policies and pronouncements actually led to people being beaten to death at Bagram. I'm not so sure that the "We don't torture" policy is as effective as you suggest--it certainly wasn't in the past, and I doubt its efficacy in the future.
I believe that that policy failed, in part, because responsible officials were not intellectually comfortable defending the use of harsh interrogation techniques against a very limited group of terrorists. It's at least plausible that a different and explicit policy could both preserve the human rights of thousands (say, at a Bagram) while subjecting only the tiniest percentage of our enemy to harsher treatment, and then only when they had violated international law first. That may prove to be a better deal--and a safer deal for the vast majority-- over the long run.
I would prefer your non-violent methods always and think that they should be our first attempt when seeking information (and the only methods for 99.9% of all detainees). But ultimately, if a harsher policy is needed for terrorist commanders and strategic planners, I can see how it could be legally and morally justified.
You can have a simple, clean notion of ethics and then beat people with a little moral stick anytime they suggest actions beyond the socially-acceptable norm and the simple rule that seems to you to apply. But in my judgment, the commanders of determined groups like AQ should continue to face ambiguity as to their fate. They should worry, 24/7, that a drone may be hunting them. If captured, they should fear their fate, not breathe a sigh of relief.
For those who know of further operational plans, but refuse to disclose them, they should expect, and receive, extraordinarily rough treatment. The notion that this might prompt their similar response is ridiculous: they have repeatedly demonstrated that they will respond harshly on their own--they need no prompting or justification from us.
If they decide to abide by the laws of war, we should then apply Geneva to all and not lay a glove on them. But until then, at least for a very few, harsh treatment should no more be taken off the table than a nuclear response is taken off the table. Both should leave us uncomfortable; both should leave them uncomfortable; both should be within the range of our possible responses.
Cato
And there you have it. The perfect example of how torturers will always find a reason torture. It's only 1% (we know for a fact it was much more than 1% and that we often got that 1% wrong); they have knowledge of future plans (every prisoner does, including American POWs); it was the President's orders and if the President orders it then it can't be unlawful (I'm sure you'd crush a child's testicles as Yoo would); it serves the long term interests of the U.S. (except for the fact that it recruited more terrorists who killed hundreds or thousands of Americans, not to mention Iraqis, Afghans, and others, as well as numerous other adverse affects).
Your constant use of euphemisms is called distancing and is common of the criminal mind. Let me be clear that I'm not calling you a criminal because you've never tortured anyone, but you would be a war criminal if given the chance. Call it "harsh" or "extraordinarily rough" but the bottom line is that it's torture and abuse and your own fear of calling it that is telling.
When you answer why George Washington and Abraham Lincoln forbade it as did our commanders and Presidents in WWII facing a much graver threat, then you'll have a conversation that answers questions, not a legal partition that allows you to do what you want based on your desire for revenge (which is quite obvious again, from your emotional language).
Here I thought I stopped interrogating, but instead I find that just as I had to extract the reasons why Iraqis joined Al Qaida and the locations of those behind the suicide bombings, now I have to extract the real reasons why Americans want to torture and explain why it's always wrong. But if there's one truism in this argument, it's again that people who want to torture will always find a way.
George Washington was wrong according to them. If only he had tortured a few Brits (only the worst, mind you, with knowledge of future attacks) then the war would have been shortened. Of course, then we would not have become America just as Washington said. We would have become the very thing we were fighting. And by torturing today, Cato wants us to become Al Qaida and has no problem with lowering our morality to their level.
Cato wants our readers to believe that you can justify torture for just a very few people. I don't think you're going to find any converts over here. You can find some over at Marc Thiessen's blog.
Ironically, given your chosen screen name (Cato), I was at the CATO Institute where there was agreement that torture is always wrong and where your intellectual compatriot Thiessen refused to debate me after being afforded an invitation. But I'm glad you had the guts to step up to the plate and admit you would commit war crimes, if only for just a few people. Fortunately, Libertarians like Ron Paul have been extraordinarily vocal about a 100% opposition to torture.
A couple posts ago you called me Kantian. You are correct. I join Washington, Lincoln, Petraeus, and a host of others in that group. It's great company.
You on the other hand consider yourself a Realist, apparently. Like many others who you would be appalled to be categorized with but who also found justifications for torture -- Pol Pot, to name one.
Dear Mr. Alexander:
You can scold me all you want; you can surround yourself with impressive intellectual companions. Apparently the only thing you can't do is articulate responses to the questions I raised.
It's a little bit like talking to a pacifist. A pacifist can lambast me all day long on my "insistence" to "find a way" to use violence. My response would simply be that I judge the use of that violence, under very limited circumstances and however unfortunate, as actually reducing the overall level of violence in the world over time. (I think that the Westfalian system--in which we've lived for 360 years--largely works.) We can disagree on the morality of the use of violence, surely, but as rational people in a mature discussion, we can also, at a minimum, identify both the empirical questions to be addressed and the rationale behind each of our respective decisions.
In this dialog, you've taken a position akin to the pacifist in that you claim that only your position is right, and that I'm a lesser man for thinking differently. I don't buy that--I don't buy it any more than I buy the arguments of the pacifist.
In the U.S., we live in a diverse community and, thankfully, a democratic one. While our passions may run high on certain issues, such as the treatment of terrorists, we have a process for sorting out differences of opinion. One of those ways is a mechanism that runs its course over time, i.e., the push and pull between the Executive and the Congress. In our system, the branch that guesses wrong (as to the people's truest wishes) pays the price. That's a kind of justice that has served us well in the protection of liberty.
This blog exchange began with a discussion of the legality of certain military orders. Because of my view of constitutional authority, and how it's divided in the U.S., I suggested--based on the structure of the constitution, the applicable legislation, and selected Supreme Court cases--that those orders were not "obviously" unlawful, and therefore should have been obeyed by military subordinates. You have failed to address my very specific concerns.
You keep repeating that you hold the moral high-ground--the truth--and that anyone who disagrees with you is a monster. Yet in a democracy, it's not uncommon for people to disagree on such matters (abortion, torture, the right to die, gay marriage, the right to bear arms, etc.) It doesn't advance the conversation to just keep screaming, "You're wrong! You don't know what you're talking about. You're immoral!" That's a dialog of the deaf.
Answer the specific questions I've raised; respond to the troubling analogy between yourself and the pacifist (regarding the justification for the use of force--as one would do in defending the "just war," for example); refrain, if you can, from raising the strawman or demonizing one who would ask you questions about your position.
I'm well aware of the company in which you view yourself (Washington, et al.). It's not that I hold disrespect for that company--not at all. I just that I have a few questions for you guys.
BTW--I have no idea who this Marc Thiessen is; I don't follow this area of law and policy; I have no dog in the fight. I do, however, continue to have some questions.
Cato