Responding to Marty Lederman

Let me respond quickly to Marty Lederman's comment to my post re David Luban's WP article below - my numbers track his:

1. Re Professor Luban. I do not in the least mean to attack Professor Luban personally; I have followed his work for a long time and am a frank admirer. If that was the impression, my apologies. What I do mean to say is that I believe that as he lays things out by the end of that article, it has moved into a rights-absolutist discourse that, because it is absolutist, leaves out the consequences that are genuinely about life and death for potentially a lot of other people in the case of capturing Zarqawi. I don't think my language was any more harsh than Professor Luban's language was to those he criticizes, but if that was the impression, I certainly apologize to him.

2a. The question of developing a protocol for torture. In the context of Krauthammer's discussion of torture - as such, undeniably as such - then I think it is surprising that it did not come up. I think I have made pretty clear that torture as such - I realize you will think that I am merely playing games with words and what they mean - is actually prohibited. I think there is a floor below which you cannot go. However, while you I think mean that I am unacceptably lowering the floor, I think to the contrary that you are raising it. We cannot settle that without a detailed examination of actual practices, actual proposed techniques of interrogation, given that the international documents do not come with a user manual. However, the point I make remains, I think, an important one. If you are willing to consider the possibility of torture, as Krauthammer is and, albeit solely for purposes of argument against it, Professor Luban is willing to do, then the following is an important empirical possibility. It might be the case that "spontaneous" torture of someone in the ticking time bomb scenario turns out to be an ineffective means of obtaining necessary information. If your moral case - as Krauthammer's moral case appears to do - rests in part on torture being effective to obtain information - whether because you treat those exceptional circumstances as a true justification, or else something like excuse or duress - then the effectiveness of what you do is necessarily part of your consequentialist calculation. If it turns out that it would likely be much more effective to have worked a systematic protocol of torture in advance, and the likelihood of effectiveness is a necessary condition in the moral argument, then it seems important at least to consider having one in advance. I am not endorsing it, because I don't actually endorse torture in Krauthammer's sense (leaving aside whether we agree on what concretely constitutes torture). But the reason I professed puzzlement that no one had discussed is partly that other people have raised it in conversation, not to endorse it, but to consider the idea because it is relevant - Sandy Levinson, for one, in discussions over his book on torture (I don't recall whether Dershowitz, for example, addresses this directly in his discussion of torture in that book). For that matter, the first time I heard this argument made was perhaps 25 years ago in an ethics seminar by Philippa Foot, who gave it as a hypothetical about consequentialism; the possibilities it raised seemed so much more hypothetical then.

2b. I'm sure you're right that no one in the federal government is talking about torture as such. The question is whether various of the activities that they have approved constitute torture - Professor Luban plainly thinks that many of them do, and I take it that you do as well. But at that point what I was discussing was Krauthammer's argument, not the Bush administration. There is something further that I did not raise, that Professor Luban was correct to raise, viz., that approved techniques easily lead, and have lead, to unapproved ones. One of the reasons that I favor a clear, legislative response to all of this is to have it transparently on the table what is okay and what is not; the rules, particularly for line soldiers, have to be completely transparent. If that means, in fact, that things that I think are morally okay or even, as in my Zarqawi claims, morally required, have to be scaled back on prudential grounds that line soldiers need something more transparent and less discretionary, I would accept that. But that's a prudential argument about how you keep soldiers and agents within bounds, not a strictly moral one.

2c. Are we speaking the same language? I think the real issue - and this is what should constitute the real issue for Congress - is to decide what actual, concrete practices, techniques, language in manuals, etc., constitutes torture and what does not. And then what things short of that can be used with respect to what categories of detainees, based on a sliding scale of importance, culpability, and information. We have to put in place a user manual that we think satisfies the bottom line of what constitutes torture. The question of whether we are speaking the same language depends on how we would each classify actual practices in front of us, with respect to a particular detainee. If I assume that I have Zarqawi in front of me, just captured, then that represents to me the limits of what may permissibly be done. Lives, potentially many lives are in the balance, time is potentially of the essence, and, yes, it is consequentialist at that point. On the other hand, someone about whom you really have no information - someone who might simply be the poor shepherd he says he is - is in an entirely different situation - I don't think you're allowed to use very much (I'll reserve for our discussion of actual techniques what "very much" means, but I will say it probably means less than you suspect it might) if any coercion on someone in order to determine in the first place, from tabula rasa, if you think the person is a threat. For that matter, leaving aside Saddam's legal status, and leaving aside the time after the first Gulf War I spent digging up the remains of victims of his chemical weapons attacks, I don't think that you can do to Saddam what you can do to Zarqawi. Am I able to draw specific lines with specific practices? No, although I think that is actually the task. I am able to say that his information, although likely still valuable in many respects, is not immediate in the way that Zarqawi's is. This may lead you to tell me that my Zarqawi hypothetical is merely a way of doing the ticking time bomb scenario in softer edged terms, but that it is still justified by the threat to human life, and that is probably correct. I don't have any list in my head of things that go further than waterboarding but are not torture, and I'm sorry for giving that impression, but in principle - with respect to Zarqawi, I emphasize again - I certainly willing to consider them. And think they should be considered.

Again, are we speaking the same language? We disagree over waterboarding, although I am not sure how willing you are to take into account the idea that Zarqawi, not just because of the immediacy of information but also because of culpability, can be treated differently from some shepherd; this is because I don't think that waterboarding actually crosses the line to where it is absolutely prohibited because it is a simple matter of being human. Feeding him to Saddam's meatgrinder would; what else in the world you can do and can't do has to follow some casuistical basis. It is for this reason that I see no alternative but for a direct discussion of actual practices - the only principle seemingly up for grabs here is whether you can treat some people differently from others because of information and culpability, and the rest is largely how you view certain things. But note that I do not accept your claim that we would call waterboarding torture if it were done to our people - if by our people, you mean US soldiers, for example, entitled to POW treatment, then it would be a war crime, etc.; I have doubts about the equivalence you assume in referring to "us" and "them," at least if the "them" you mean (perhaps you do not) is Zarqawi. And if it were another Timothy McVeigh, captured by some foreign state and known, with the same certainty as Zarqawi, to have information about his next attack, well, waterboarding him seems perfectly okay to me. I would not be claiming that he had been tortured; there would be things you could not do to him but under the circumstnaces, waterboarding would not be one of them.

3. Gender games. Again, things matter depending on information and culpability, so what I say about people reasonably known to have AQ connections is different from someone about whom one knows nothing. But within that former category, then frankly I just don't think the stuff at Guantanamo was that big a deal, and a great deal of the big deal made of it resulted from the process of deliberately raising the stakes - deliberately psychologizing the stakes, in a peculiarly American ritual - of what is offensive and what is not. I realize of course that you deeply disagree with this, from your description of it, so I don't think we are speaking the same language with respect to this.

4. Common article 3 (skipping ahead with part of your point 3 plus 4). (I apologize for doing something that has to look as though I'm skipping the debate, but I have to get a tenure file out otherwise hell to pay with the dean and I will come back to this in more detail in a later post.) But my short answer re common article 3 is that it has to be understood in terms of its paradigm application to combatants captured in the midst of a civil war who are taken to be, in their conduct, essentially equivalent to soldiers in a regular army - they may be tried for sedition or rebellion or insurrection or treason or lots of other things - but the section was drafted with people in mind who are not systematically violating the laws of war. Now, we can, and I hope will, have a long discussion over how to treat people who not one or the other, or about whom we have no information. But to again take the extreme case, I do not think that it was ever historically understood to preclude one from doing drastic things short of torture or perhaps close equivalents to a Zarqawi, under the circumstances I have ascribed to his capture. I understand your point about its plain english words, but those words were always in a certain context and understanding of armed conflict, even internal armed conflict, and that floor, in my view, would always take into account both an absolute floor and an understanding that above that floor, there would still be differences in how you could treat people who fought within the customary rules and people who still represented a genuine threat to people. I realize that this is not a complete answer - and I don't necessarily suggest that I can give a complete answer - but I think that common article 3 is less rigid than you understand it to be, at least when dealing with certain kinds of threats - the threat represented by, in a certain sense that I realize you will find unacceptably remote, a prisoner who has not, in a certain metaphorical sense, surrendered, in the sense of no longer posing a threat to others.

(As Merlin put it to Arthur in a book I once read as a child, when Arthur worried that it was not just or merciful to slay the invaders with a magical sword - "Magnanimty," said Merlin to Arthur, "is a virtue properly shown to the defeated." There is a sense - perhaps I am wrong about this; I really mean to be tentative - in which Zarqawi, captured but watching his evil roll forward, has not been defeated, is not yet hors de combat. But I might be very wrong to argue this direction.)

4. Very quickly re Dan Golove's comment about the relativism of unilaterally deciding what's a threat and what's not. I don't think El Salvador is a good comparison here. When I was in Salvador for various human rights groups, the issue was usually made as an ideological one, in exactly the terms Dan describes - the Salvadoran military saw themselves as under threat in some abstract sense, the threat of communism, for which they were the defenders of a certain national ideal and oligarchic social order. There was also, of course, a very real and bloody civil war underway, but Dan's point of reference is to the relativism of ideals that can be taken as threats to your social order, the ability unilaterally to determine an ideological supreme emergency. But that's not what I've suggested here - I would have to go back and see what I think Krauthammer believes, I don't recall - I have suggested a real threat, real people, real lives.

Maybe the right response to that is to say that it's merely an abstract hypothetical, on a par with Mrs Foot's fat man in the mouth of the cave examples. After all, Mrs Foot herself in that same ethics class treated the ticking time bomb question as equivalent to the fat man stuck in the cave question, and suggested that it might not make any difference what one did to the terrorist if he too was in the city and would go up with the rest of us, while it might (she stressed might) make a difference if he were someplace else, just as it might make a difference whether the fat man's head was facing out or facing in as to whether we could carve him up with a knife to let ourselves out of the cave. I don't recall her coming to any conclusion about that. My point is that it no longer seems at all so hypothetical as it did in the early 1980s.

5. Or, put another way, let me ask the question of you. If I am so very wrong about this moral scheme for the treatment of Zarqawi, invoking a principle of information and culpability, then what would you in fact do? It is not a hypothetical. We know that US forces have come close to him on several occasions; his capture might happen tomorrow, next week, next year. If what I have said is so monstrous - and I would hope that you would acknowledge some difference between it and what Krauthammer has urged - then tell me what is the right treatment? You may indeed persuade me - stuff I put on this blog is not, as far as I'm concerned, written for time and eternity, it's where I stand at a certain point, and I am open to being persuaded that I'm wrong about things, in which case I'll say so as plainly as I can. I'm not thrilled with the idea of endorsing mistreatment. But in this case, the issue may become terribly, tragically concrete, and if my (more or less) concrete proposal is wrong, then what is right? Concretely right?

Thanks for your comments - I will follow up re common article 3. I really do not mean to attack Professor Luban personally in this, and will mark that in the original post. And I do hold myself out as open to persuasion that I am wrong about all or parts of this.