Professor Thomas A. Smith, USD law school, on Professor Luban's article on torture

Here is a post from Professor Thomas A. Smith, University of San Diego law school, posting on the group blog The Right Coast, December 17, 2005, on Professor David Luban's Washington Post opinion piece on torture and interrogation:

***
December 17, 2005

More on torture
By Tom Smith university of San Diego Law School
http://therightcoast.blogspot.com

I think if I were an Al Qaeda agent, I would spill my guts before consenting to listen to American academics debate torture. Here is a link to some give and take between Professor Anderson, who seems reasonable enough to me, and Professor Luban, who I gather is as distinguished as all get out, and who strikes me as being out to lunch.

Reading Professor Luban's piece from the Washington Post (scroll up from the link above) moves me to comment as below, though nothing I have to say is philosophically interesting, but so little that is useful is. I can only hope this debate is not over with the McCain Amendment; Andrew Sullivan and most academics are very pleased with themselves right now, but I suspect the debate is far from over.

In any event, Professor Luban begins his piece by making the point that the "real life" debate about torture is not about the scenarios in TV melodramas such as 24, in which a ticking nuclear bomb must be found, and only one trussed up terrorist knows where it is. Rather it is about the slow accumulation of intelligence. This betrays the almost total innocence of what military interrogators have to accomplish that one would expect of philosophers. In fact, from my several conversations with military officers who have had to deal with the problems terrorists present, which I suspect is more than most philosophers have had, it is clear that in"real life" interrogators face plenty of both needing to gather pieces of the mosaic, and the urgent need to prevent impending disasters.

A student in my contracts class, for example, is a Navy officer who was in charge of an explosives disposal unit in Iraq. This involved just the scrotum tightening job it sounds like. Somebody finds an IED by the side of the road, and he and his men were the ones sent in to disarm it, or blow it up. He told me the following story. The army or marines caught a terrorist planting an IED. They demanded to know if he had planted other bombs and if so, where they were. The terrorist was willing to talk -- I don't know why -- and so he led my student and his men around and showed them where he had planted the bombs. The Navy disposal people wore heavy protective suits, but the terrorist did not have one, and our guys did not think to give him one. As a result, several Navy service people narrowly avoided court martial, because the act of making the terrorist take them around and show them where the bombs were planted without the benefit of protective clothing was close, apparently, to being a "war crime."

Apart from the lengths to which we usually go to fight within rules the terrorists ignore, this illustrates two points. First, getting information from terrorists about the where and when of bombs that kill scores and hundreds and cumulatively thousands of people is routine in anti-terrorist operations. Intelligence in this particular war is partly about the slow accumulation of intelligence, but it is also about getting information urgently, because if you do not, US forces and civilians, such as those dozens of children a few weeks ago who were guilty of the crime of accepting candy from US soldiers, get blown to pieces. Second, I infer that Professor Luban is not really all that familiar with that on which he opines, that is how often information from terrorists is needed urgently, information that is to be had for little more than a sympathetic ear and the price of a few beers, if that. But then I am not up on the latest philosophical criticisms of torture, so perhaps that makes us even.

I am happy to concede that many of the harsh tactics that the Bush administration is reluctant to call torture, might as well be called torture, at least for purposes of the moral debate. So fine, let's call waterboarding torture. There are legal reasons for not making this concession, but for clarity in the moral argument, fine.

It is what passes for the moral argument itself that bothers me. It seems to boil down to, torture is dreadful, shocking to the conscience, awful to contemplate, it degrades us, we're above it, and therefore we should not do it, no matter what. I agree with this, except for the last three words. I give you something else awful to contemplate: what a 150 mm howitzer shell, packed in the trunk of a car with pounds of nails, bolts and scrap metal, and rigged to go off with the push of button, does to a crowd of people when you set it off in their midst. Professor Luban seems to think this happens only on TV melodramas. In fact, what happens on TV bears little relationship to the truth. The truth hardly bears thinking about. The truth is people blown to pieces, flopping around on the ground if they are so unlucky as not to die instantly, thinking whatever you think in those last moments. The truth is children, who must number in the thousands now, having to face life without hands, or legs, or eyes, or faces, or insides that work properly, and do so in a country with nothing like our medical or social services. I am so sorry if I am offending anyone's sensibilities with these unpleasant images. But I rather gathered from Professor Luban's recitals of all the unpleasant things that we do to prisoners, that the use of vivid images in argument was permitted.

Now, if I follow his argument correctly, it is that, first, intelligence never prevents these horrors from happening, which the most casual attention to the facts proves false, and that even if it did, it would still be morally wrong to torture. The first claim insults one's intelligence, and the second claim is little short of astonishing. Why exactly would it be morally wrong, as opposed to morally obligatory, to hold a wet towel over someone's face to stop him from breathing, until he told you where the bomb was or was going to be, in order to avoid the all too real horrors just mentioned? No one likes to be a crude utilitarian, but is it not actually absurd, embarassing, and ridiculous to contend that rather than to temporarily stop a terrorist from breathing, under circumstances where the worst that will happen to him is that he will pass out, we will let him or his fellow terrorists blow the limbs off of even one child, let alone kill dozens? Our philosophers must indeed have access to some dazzling truth the rest of us are blind to if they can see this when most of us, or at least I, cannot. I am quite aware that not all cases are like this one, but, contrary to what the opponents of torture under any circumstances might say, plenty are, especially at the level of the officers and men who deal with the war on the ground. I would propose a rule like this: if the responsible officer thinks it would probably save lives to torture a captive, who they are reasonably certain is a terrorist, in order to get urgently needed information, and there is no reasonable alternative, then they should do it. In other words, not torturing captives should have some priority, but saving the lives of our service people and civilians, should have a higher priority.

What about torturing captives in places like the secret CIA prisons or Guantanamo Bay? That is a harder question, because the benefits of the information gotten are murkier. But one may ask, how exactly are we supposed to get hard terrorist cases to tell us what we need to know, if we cannot credibly threaten them with something they fear? If there is some literature I am unaware of that shows that, contrary to what the layperson would think, kindness is the way to go, then that is something else. Obviously, the least cruel methods that actually work should be used. But, as it is apparently not so obvious to not need mentioning, we really do need to know what the group that killed 3000 people on September 11 have planned. I gather the professorial opponents of torture take the view that we do not need to know so much that it justifies waterboarding, cold rooms, and degrading treatment. This baffles me. I wonder if what is really go on here is not some deep philosophical insight the rest of us just can't grasp, but rather is just that professors can imagine what it would be like to be kept in a cold room, because we've all had offices like that, but how to choose between jumping and burning alive, we can't and so put from our minds.

But the horrors al Qaeda and its allies have in mind for us are all too real. There is a moral obligation to prevent them, and if torture is necessary to do it, then we should torture. I don't know whether torture really is necessary, but I am sure that its professorial opponents are not the ones who would know. Professor Luban and I think Mr. Sullivan as well are fond of the trope that torture is not "who we are." Here and in the tone generally of anti-torture academic bloggers after the McCain Amendment passed, there is the fairly stifling odor of moral self-congratulation. These self-decorations are both premature and ridiculous. They are premature because we don't yet know how much the new rules will cost. If only unnecessary or ill-advised torture is eliminated, then that is a good thing. If people die because of them, it is a very bad thing. But it probably won't be in Cambridge or Palo Alto. Whatever the pundits and philosophers say, they are probably safe. The self-congratulation is ridiculous because we live in a time when men and women are dying and getting terribly wounded so the rest of us can be secure and do things like make their jobs more difficult on the basis of our own moral confusions. And in the case of the Iraqis themselves, so they can build a democracy in a place so many American savants have said it is impossible. That is, we live in a time of real sacrifice and real heroism. The professors and pundits should get over themselves.