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.

David Luban on torture (plus links to other torture debate articles)

David Luban, Georgetown University Law Center but visiting at Stanford Law School, and a justly celebrated philospher and legal ethicist, writes about torture and detainee treatment in yesterday, Sunday, November 27, 2005, Washington Post, Outlook section, here.

(Update, Tuesday et seq., November 29, 2005. I am going to pile up here links to other articles on torture - no particular order, just articles as I come across them. So, here, this article by Andrew C. McCarthy, senior fellow at the Foundation for the Defense of Democracies, National Review Online, November 29, 2005, "Ticking Time Bombs." And this blog post by Jonah Goldberg, here. Also this blog post, dated December 17, 2005 on the The Right Coast group blog by University of San Diego law professor Thomas A. Smith. I've posted Andrew Sullivan's The New Republic response to Krauthammer separately.)

(Update, Saturday, 17 December 2005. Marty Lederman and I have another exchange of posts, here. And also my response to Diogenes, here. I also wanted to thank Professor Luban for his kind email telling me I hadn't been as rude as I'm afraid I was.)

Among the many important points Professor Luban makes is the centerpiece of his opening - that the debate over torture is not really about the "ticking time bomb" scenario. It is instead, he says, really about the slow accumulation of details that might be only obtained through cruel, inhumane, and/or degrading treatment that some, including Professor Luban although not the Bush administration, says descends to torture. He seems to have in mind - perhaps? - Charles Krauthammer's primer on torture and ethics 101 from the Weekly Standard last week, posted earlier on this blog, which indeed starts from considering the morality of torture in the ticking time bomb scenario.

Professor Luban's point is well taken. On the other hand, by identifying the ticking time bomb with TV melodramas merely, he trivializes unfairly Krauthammer's observation that the ticking time bomb scenario is already a live possibility in a world of suicide bombers in Israel. It is probably already a live one in Iraq. It might turn out to be an unfortunately live one in the United States at a moment too late to make any difference in the case of a dirty nuclear bomb in Manhattan or a biological weapon. While I agree that the central issues of abuse and torture in the current Washington environment are indeed about the long term gathering of information, rather than the ticking time bomb, it is neither a trivial scenario nor one without moral relevance for how one gains information in other circumstances, which was Krauthammer's point.

I was surprised, though, that neither Krauthammer nor Luban noted that one of the problems with making torture suddenly acceptable - as a sort of spontaneous activity either justified as the extreme emergency exception or simply as an excuse or duress in the legal sense - is the problem of effectiveness. That is, there are reasons, at least, to wonder if the kind of spontaneous mistreatment moving along into torture in the ticking bomb scenario will actually produce the needed information in time. Whereas a protocol established in advance for serious, unapologetic, and above all systematic torture might be far better calculated to produce the necessary information that spontaneous abuse that turns into torture as the clock ticks might not. I am not here arguing for such a protocol (I have genuinely mixed feelings), but it seems odd not to discuss the idea. If the justification or excuse of torture in this case is effectiveness, then one ought (in the sense of genuine moral obligation) to make the necessary advance plans to be effective, because justification or excuse or duress on the basis of effectiveness is a necessary part of the moral calculus.

I hesitate to criticize Professor Luban's piece, as I have a great deal of respect for his philosophical acuity (his excellent recent piece on preventative war, for example) and his moral sense, but I do think the latter part of the WP article falls into reciting a litany of behaviors that Professor Luban appears to think simply speak for themselves as shocking the conscience - female interrogators stradling male prisoners, presumably Muslim, and whispering that their comrades have been killed, etc. etc. Well, some of what Professor Luban cites seems to me unlikely to be effective. However, it is likely to be ineffective precisely because it's not torture - ineffective precisely because it is not rough enough to be anything other than the kind of play acting found on internet fetish sites, for example, the sort of gender games that so somehow offend our nation's multiculturalist moralistes even, or especially, when aimed at folks whose idea of justice is stoning gays and sticking women in burkas and beating them.

And when howls of protest emerge - I do not mean Professor Luban here, but rather from the multicultural lobby, from the offended Islamic rights folks, from folks supposedly interested in protecting America's "image" in the world by prohibiting these supposedly horrific psychological traumas - it all has a certain whiff to it of simply knowing how to push the American "we must never offend anyone" button. The interrogators are playing a game, the detainees are playing a game, the worldwide horrified observers are playing a game. As I've noted earlier on this blog, if you tell people that you will never offend them, but that they themselves will measure whether you've been offensive or not, you will quite naturally raise and raise and raise the sensitivity to offense. Reward behavior and you will get more of it. So call me insensitive, or a supporter of torture, or mistreatment, or humiliation, or what have you, but none of this gets remotely into the ballpark of torture.

(How does Professor Luban stand, by the way, on the use of female guards in US prisons where they routinely see male prisoners, some of them Muslim, naked and performing bodily functions in the open? So far as I recall from the talk someone gave at my law school a couple of years ago on this - and it not being my area, perhaps I simply misunderstood it - this was a matter of women's employment rights trumping prisoner privacy rights, according to court decisions, but it did not run the other way to allow male guards doing the same in female prisons - the applause was loud and resounding among my faculty. I didn't hear any wails of violations of international human rights from my faculty.)

Even with respect to genuinely physical mistreatment that Professor Luban describes in the latter part of his article, the issues here are not, it seems to me, as Professor Luban's mere recitation of treatment suggests - that he thinks the behavior simply speaks for itself. The critical issues are, rather, what he does not consider - viz., what consequences might be averted by treatment within the various statements of official guidelines and approved techniques. Yes, I am willing to accept some absolute, rights based floor in treatment - even, possibly, in the ticking bomb scenario. I can't tell you what exactly that it is - but I can tell you it is not any of the stuff, behavior within the official policies, that seems so self-evidently below that threshold to Professor Luban.

And, yes, it does seem to me to matter a great deal whether you believe on solid grounds that the person you are interrogating does have information that might lead to the avoidance of yet another 30 or 50 Iraqis being blown up by a car bomber - not the ticking bomb, but next week or next month. The moral status of that person matters - do you have good reasons to believe that the person is culpable or culpably witholding information that is life and death to people down the road? Professor Luban seems to regard all these techniques of interrogation as a matter of rights of the detained, whereas there are the issues of the lives at stake and their rights to go on living.

Maybe all those lives are too remote from how you treat this prisoner here and now to warrant putting into a moral calculus. But given what Professor Luban says about how real intelligence is gathered, with a view to protecting lives by maintaining security over a long run, that seems unlikely. What seems more likely is that Professor Luban slides in his argument from a calculus of tradeoffs, to an absolutist position of rights of the detainee, without quite telling us. He slides into a recitation of things that are supposed to be self evidently out of bounds, and they include a long list of what, in my view, the US does not do as torture, but in lieu of it.

And so let me be completely clear - if we were to capture Zarqawi tomorrow, which is far from being a mere hypothetical - then I hope that someone has prepared a protocol and regime of deliberate mistreatment and abuse that, while falling short of putting him through Saddam's meatgrinder, would go far, far beyond the methods that Professor Luban thinks are beyond the pale. There are many things beyond officially sanctioned American interrogation techniques that fall short of actual torture and which ought to be used on a Zarqawi, because other people's lives also matter, also have intrinsic moral worth, including Iraqi and Jordanian lives, and it is not a question that within the first weeks or months of holding Zarqawi, obtaining such information is proximately about saving lives. Waterboard Zarqawi? In a heartbeat - the stakes of Iraqi and Jordanian and American lives makes that, in my view, not a serious moral question - the sizable burden, rather, is on those who would say no. Such techniques would be contrary neither to justice nor to prudence. What you can permissibly do to someone depends, in part, on who the person is, and if you to a complete certainty hold Zarqawi, then what you can permissibly do is a great deal, and a great deal beyond what current American policy allows. If Professor Luban would not agree, then I would suggest that - self-evidently - he undervalues other people's lives.

[Note: I apologize to Professor Luban for getting too personal here - I should have said, and meant, that the argument he makes above has the effect, in my view, of undervaluing human lives. Also, someone asked about his preventive war piece - it is here at ssrn and well worth reading.]

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Torture, American-StyleThis Debate Comes Down to Words vs. Deeds

Washington Post
By David Luban
Sunday, November 27, 2005; B01

There are two torture debates going on in America today: One is about fantasy, and the other is about reality.

For viewers of TV shows such as "Commander in Chief" and "24," the question is about ticking bombs. To find the ticking bomb, should a conscientious public servant toss the rulebook out the window and torture the terrorist who knows where the lethal device is? Many people think the answer is yes: Supreme emergencies demand exceptions to even the best rules. Others answer no: A law is a law, and a moral absolute is a moral absolute. Period. Still others try to split the difference: We won't change the rule, but we will cross our fingers and hope that Jack Bauer, the daring counterterrorism agent on "24," will break it. Then we will figure out whether to punish Bauer, give him a medal, or both. Finally, some insist that since torture doesn't work -- that it doesn't actually unearth vital information -- the whole hypothetical rests on a false premise. Respectable arguments can be made on all sides of this debate.

Real intelligence gathering is not a made-for-TV melodrama. It consists of acquiring countless bits of information and piecing together a mosaic. So the most urgent question has nothing to do with torture and ticking bombs. It has to do with brutal tactics that fall short -- but not far short -- of torture employed on a fishing expedition for morsels of information that might prove useful but usually don't, according to people who have worked in military intelligence. After Time magazine revealed the harsh methods used at the Guantanamo Bay detention facility to interrogate Mohamed Qatani, the so-called "20th hijacker," the Pentagon replied with a memo describing the "valuable intelligence information" he had revealed. Most of it had to do with Qatani's own past and his role in the attacks of Sept. 11, 2001. Other parts concerned al Qaeda's modus operandi. But, conspicuously, the Pentagon has never claimed that anything Qatani revealed helped it prevent terrorist attacks, imminent or otherwise.

The real torture debate, therefore, isn't about whether to throw out the rulebook in the exceptional emergencies. Rather, it's about what the rulebook says about the ordinary interrogation -- about whether you can shoot up Qatani with saline solution to make him urinate on himself, or threaten him with dogs in order to find out whether he ever met Osama bin Laden. And the trouble is that this second debate is so wrapped up in legalisms, jargon and half-truths that it is truly hard to unravel.

The most recent issue is Arizona Sen. John McCain's amendment to a defense appropriations bill, designed to plug loopholes in current anti-torture law. It has passed the Senate, and the House is scheduled to vote on it sometime next month. President Bush has responded that we do not torture, we treat prisoners humanely, and we follow our legal obligations. But what, exactly, are the politicians arguing about?

The starting point is the U.N. Convention Against Torture, a treaty that the United States ratified in 1994. Under the convention, we agreed to criminalize overseas torture -- official torture was already a crime within the United States -- and to "undertake to prevent . . . other acts of cruel, inhuman or degrading treatment or punishment" (CID, for short) that "do not amount to torture." Many of the controversial U.S. methods are CID, sometimes called "torture lite." CID includes techniques used in Guantanamo: 18- to 20-hour-a-day questioning for 48 out of 54 days, blasting prisoners with strobe lights and ear-splitting rock music, menacing them with snarling dogs, threatening to hurt their mothers, and humiliations such as leading them around on leashes Pfc. Lynndie England-style, stripping them naked in front of women, or holding them down while a female interrogator straddles them and whispers that we've killed their comrades.

All of these methods were used on Qatani, and documented in the Army's Schmidt report (PDF), which was commissioned in response to FBI allegations of abuses at Guantanamo. (Most of the report, co-authored by Lt. Gen. Randall M. Schmidt, remains classified, so we do not know whether the classified portions contain worse.)

Methods like these were banned in U.S. criminal investigations years ago, because, in the Supreme Court's language, they "shock the conscience." Assaults on human dignity are not who we are or what we stand for. Given the U.S. commitment under the torture convention to "undertake to prevent" CID, why are we using it abroad in cases that have nothing to do with ticking time bombs? Why does the president still insist that we're following our legal obligations, and that we treat detainees humanely?

It depends what you mean by "legal obligations" and "humanely." A quick glossary of the unique Bush administration definitions might help.

Cruel, inhuman or degrading. In the Bush lexicon, these words have no meaning outside U.S. territory because we have no obligation to prevent such methods from being used in interrogations performed outside the United States and its possessions. That was Attorney General Alberto Gonzales's startling argument at his confirmation hearing, and it goes like this: Before the Senate ratified the torture convention, it added the reservation that CID means the cruel, inhuman or degrading treatment forbidden by our Constitution. But the Supreme Court has held, in other unrelated contexts, that the Constitution does not apply outside U.S. territory. Therefore, the administration maintains, outside U.S. territory (including the U.S. military base in Guantanamo, on the island of Cuba) anything goes except outright torture.

This was not at all what the Senate meant, according to Abraham Sofaer, the State Department's legal adviser when the Reagan administration signed the Convention Against Torture in 1988. In a letter this past January to Sen. Patrick Leahy, the Vermont Democrat, Sofaer explained that the purpose of the Senate's reservation was to ensure that the same standards for CID would apply outside the United States as apply inside -- just the opposite of Attorney General Gonzales's conclusion. The point was to define CID, not to create a gaping geographical loophole.

This is the loophole that McCain, a Republican, is trying to close. His amendment requires that the ban on CID not be "construed to impose any geographical limitation."

Humane. This month, the Pentagon issued a new directive on interrogation, requiring "humane" treatment of subjects. It came up with that terminology to replace more specific language in an early draft of its directive that had been modeled on the Geneva Conventions' ban on cruel or humiliating treatment. The reason for the change: Vice President Cheney's office vehemently objected to the initial Geneva-like phrasing.

But what does "humane" mean? Not much, it seems. Amazingly, the Army's Schmidt report declared that none of the tactics used in Guantanamo were "inhumane." Along similarly minimalist lines, Gonzales defined "humane treatment" as requiring nothing more than providing food, clothing, shelter and medical care. In the Bush lexicon, therefore, sexual humiliation, acute sleep deprivation and threats to have a detainee's mother kidnapped and imprisoned are humane.

Oddly enough, the Schmidt report also concluded that most of the Guantanamo tactics were already authorized by U.S. Army doctrine -- a conclusion that the Army never previously accepted. The basic Army doctrine on interrogations is the Golden Rule: Before using a tactic, interrogators should ask themselves whether they think it would be permitted if used by an enemy against American prisoners of war. Given our protests at the public display of downed American fliers in Iraq during the first Gulf War, it is obvious that the answer would be "no" to the sexual humiliations at Guantanamo.

The Army's manual does discuss so-called "futility" tactics -- making the prisoner believe that further resistance is futile by presenting "factual information . . . in a persuasive, logical manner." Schmidt, however, twisted this doctrine to justify blasting detainees with high-volume "futility music" (the report's phrase) by Metallica and Britney Spears, dressing a detainee in a bra, and making him do dog tricks. McCain's amendment would restrict interrogations to those authorized by the Army's manual -- but the way the Schmidt report reads the manual, this limitation amounts to very little. (In any case, the Army is rewriting the manual.)
Legal obligations. Bush declared that al Qaeda members have no Geneva Conventions rights -- not even the minimum rights against cruel and humiliating treatment that the Geneva accords guarantee to detainees who don't qualify as POWs. Although in February 2002 the president ordered the military to treat detainees according to the Geneva standards, his order conspicuously omitted any mention of non-military agencies such as the CIA. It also left a large loophole for "military necessity."

In the law of war, military necessity encompasses anything that contributes to victory, so the president's directive really forbids nothing but pointless sadism. Cheney and his new chief of staff, David Addington, have fought the McCain amendment precisely because it would prohibit CID treatment. In short, we comply with our legal obligations because, in the Bush lexicon, we hardly have any.

We don't torture. "We don't torture" means that we don't use worse tactics than CID -- except when we do. Waterboarding (in which a prisoner is made to believe he is drowning) and withholding pain medication for bullet wounds cross the line into torture -- and both have allegedly been used. So does "Palestinian hanging," where a prisoner's arms are twisted behind his back and his wrists are chained five feet above the floor.

A Nov. 18 ABC News report quoted former and current intelligence officers and supervisors as saying that the CIA has a list of acceptable interrogation methods, including soaking naked prisoners with water in 50-degree rooms and making them stand for 40 hours handcuffed and shackled to an eyebolt in the floor. ABC reported that these methods had been used on at least a dozen captured al Qaeda members. All these techniques undoubtedly inflict the "severe suffering" that our law defines as torture.

Consider the cases of Abed Hamed Mowhoush and Manadel Jamadi. Mowhoush, an Iraqi general in Saddam Hussein's army, was smothered to death in a sleeping bag by U.S. interrogators in western Iraq. Jamadi, a suspected bombmaker, whose ice-packed body was photographed at Abu Ghraib, was seized and roughed up by Navy SEALS in Iraq, then turned over to the CIA for questioning. At some point during this process, according to an account in the New Yorker magazine, someone broke his ribs; then he was hooded and underwent "Palestinian hanging" until he died. The CIA operative implicated has still not been charged, two years after Jamadi's death. And the SEAL leader was acquitted, exulting afterward that "what makes this country great is that there is a system in place and it works."

He got that right. Shamefully, it is a system that permits cruel, inhuman and degrading treatment, smudges long-standing lines about what is and is not permitted in routine interrogations -- and then expresses hypocritical horror when soldiers and interrogators cross the blurry line into torture and murder.

McCain has said that ultimately the debate is over who we are. We will never figure that out until we stop talking about ticking bombs, and stop playing games with words.

Author's e-mail:
luband@law.stanford.edu

David Luban is a professor at Georgetown University Law Center and a visiting professor this year at Stanford University Law School. He writes frequently about legal ethics and contributed a chapter to the forthcoming book "The Torture Debate" (Cambridge University Press).

Sebastian Mallaby explains it all for you - including Wal-Mart

I occasionally have disagreements with Mr. Mallaby, but not very often, and I find him one of the most refreshingly sensible newspaper columnists on international economics and development. Here he is in today's Washington Post on the rather silly Wal Mart controversy (this is one of those short articles that I will force my darling 13 year old daughter to read in order to make sure she's absorbing something of basic welfare economics):

(Update, November 28, 2005. Not everyone is convinced. For the contra argument, see this article by columnist Neal Peirce, in the Seattle Times, here.)

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Progressive Wal-Mart. Really.

By Sebastian Mallaby
Washington Post

Monday, November 28, 2005; A21

There's a comic side to the anti-Wal-Mart campaign brewing in Maryland and across the country. Only by summoning up the most naive view of corporate behavior can the critics be shocked -- shocked! -- by the giant retailer's machinations. Wal-Mart is plotting to contain health costs! But isn't that what every company does in the face of medical inflation? Wal-Mart has a war room to defend its image! Well, yeah, it's up against a hostile campaign featuring billboards, newspaper ads and a critical documentary movie. Wal-Mart aims to enrich shareholders and put rivals out of business! Hello? What business doesn't do that?

Wal-Mart's critics allege that the retailer is bad for poor Americans. This claim is backward: As Jason Furman of New York University puts it, Wal-Mart is "a progressive success story." Furman advised John "Benedict Arnold" Kerry in the 2004 campaign and has never received any payment from Wal-Mart; he is no corporate apologist. But he points out that Wal-Mart's discounting on food alone boosts the welfare of American shoppers by at least $50 billion a year. The savings are possibly five times that much if you count all of Wal-Mart's products.

These gains are especially important to poor and moderate-income families. The average Wal-Mart customer earns $35,000 a year, compared with $50,000 at Target and $74,000 at Costco. Moreover, Wal-Mart's "every day low prices" make the biggest difference to the poor, since they spend a higher proportion of income on food and other basics. As a force for poverty relief, Wal-Mart's $200 billion-plus assistance to consumers may rival many federal programs. Those programs are better targeted at the needy, but they are dramatically smaller. Food stamps were worth $33 billion in 2005, and the earned-income tax credit was worth $40 billion.

Set against these savings for consumers, Wal-Mart's alleged suppression of wages appears trivial. Arindrajit Dube of the University of California at Berkeley, a leading Wal-Mart critic, has calculated that the firm has caused a $4.7 billion annual loss of wages for workers in the retail sector. This number is disputed: Wal-Mart's pay and benefits can be made to look good or bad depending on which other firms you compare them to. When Wal-Mart opened a store in Glendale, Ariz., last year, it received 8,000 applications for 525 jobs, suggesting that not everyone believes the pay and benefits are unattractive.

But let's say we accept Dube's calculation that retail workers take home $4.7 billion less per year because Wal-Mart has busted unions and generally been ruthless. That loss to workers would still be dwarfed by the $50 billion-plus that Wal-Mart consumers save on food, never mind the much larger sums that they save altogether. Indeed, Furman points out that the wage suppression is so small that even its "victims" may be better off. Retail workers may take home less pay, but their purchasing power probably still grows thanks to Wal-Mart's low prices.

To be fair, the $4.7 billion of wage suppression in the retail sector excludes Wal-Mart's efforts to drive down wages at its suppliers. "Wal-Mart: The High Cost of Low Price," the new anti-Wal-Mart movie that's circulating among activist groups, has the requisite passage about Chinese workers getting pennies per day, sweating to keep Wal-Mart's shelves stocked with cheap clothing. But no study has shown whether Wal-Mart's tactics actually do suppress wages in China or elsewhere, and suppression seems unlikely in poor countries. The Chinese garment workers are mainly migrants from farms, where earnings are even worse than at Wal-Mart's subcontractors and where the labor is still more grueling.

Wal-Mart's critics also paint the company as a parasite on taxpayers, because 5 percent of its workers are on Medicaid. Actually that's a typical level for large retail firms, and the national average for all firms is 4 percent. Moreover, it's ironic that Wal-Mart's enemies, who are mainly progressives, should even raise this issue. In the 1990s progressives argued loudly for the reform that allowed poor Americans to keep Medicaid benefits even if they had a job. Now that this policy is helping workers at Wal-Mart, progressives shouldn't blame the company. Besides, many progressives favor a national health system. In other words, they attack Wal-Mart for having 5 percent of its workers receive health care courtesy of taxpayers when the policy that they support would increase that share to 100 percent.

Companies like Wal-Mart are not run by saints. They can treat workers and competitors roughly. They may be poor stewards of the environment. When they break the law they must be punished. Wal-Mart is at the center of the globalized, technology-driven economy that's radically increased American inequality, so it's not surprising that it has critics. But globalization and business innovation are nonetheless the engines of progress; and if that sounds too abstract, think of the $200 billion-plus that Wal-Mart consumers gain annually. If critics prevent the firm from opening new branches, they will prevent ordinary families from sharing in those gains. Poor Americans will be chief among the casualties.

mallabys@washpost.com

Marty Lederman comments on detainee treatment and Common Article 3 standard

Marty Lederman was kind enough to post a thoughtful comment, including questions for me, re a couple of posts of mine addressing the standard of detainee treatment and the issue of the application of the standard of Common Article 3 of the Geneva Conventions. I'm finishing my last two days of classes and am somewhat frantic, so I'll be a little bit getting back to this, but I will - but I wanted to make Professor Lederman's comment more visible, so here it is, along with a second thoughtful comment by K. Scott:

***
Marty Lederman writes:

Professor Anderson:

I think it's very interesting that you've now suggested several times that "we have an obligation to establish minimum standards -- standards that can usefully draw on existing minimum standards in the laws of war, such as Common Article 3 of the Geneva Conventions," but that "those minimum standards ought to be established for the particular and specific purpose of this new kind of intelligence war."

I, too, have been trying to persuade folks that the single best, simplest solution to the torture scandal -- the best start, anyway -- would be to codify the standards of Common Article 3.

But I'm curious, then, how it is that you and I can be hinting at the same solution: How could the standards of CA3 conceivably be "modified" to have new, and special, meaning for the interrogation of international terrorism suspects? Imagine, for instance, a statute that incorporated CA3, and that thus provided that "every individual in the custody or under the physical control or effective control of the United States Government, regardless of nationality or physical location, shall in all circumstances be treated humanely, and the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; and outrages upon personal dignity, in particular humiliating and degrading treatment."

I don't see any way in which these standards could be "construed" to permit the sorts of techniques that the CIA and military have been authorized to use against Al Qaeda suspects. See, e.g., http://balkin.blogspot.com/2005/11/cia-enhanced-interrogation-techniques.html.

I, for one, think that would be a good thing.

But you appear to be suggesting that "cruel treatment," "torture," "outrages upon personal dignity," and "humiliating and degrading treatment" might take on a different, much more forgiving, hue with respect to this new category of detainees. I don't see it -- not, at least, without doing real damage to the ordinary English meanings and common understandings of these words.

Am I missing something? Or would you actually have us abandon the CA3 standards?

Thanks

***
K. Scott writes:

Re 'insitutionalizing' the war on terror, I think your position suffers from several perspectives. There is every evidence to presume that the point of many if not most of the policy positions of the Bush Administration was to "insitutionalize" the Republican Party, as well as aggrandize Executive power, it most certainly was NOT first and foremost to proect the US. The tail has been wagging the dog for some time, you really think the Administration even wants to change now?

Secondly, you posit worse treatment for some detainees based on their asserted importance and foreign status: this without judicial oversight. There is little evidence that coercive interrogation yields good information, and much that it does not. In addition, the lack of judicial oversight would quickly enable the policy to descend to nightmare, as it has done already. Please review the documents from Gitmo if you believe otherwise. Lastly, I assume you would have no objection then to similar tactics - with no judicial oversight or any transparency - being used on US citizens abroad? Water boarding of CIA operatives perhaps? Or of Seals, or even army? It is simply insufficient in law or logic to suppose that such tactics be used only in 'opur just' cuase, but not theirs.

A common standard is needed, or the standard lowers to the lowest common denominator - that has been the lesson of history, and particularly of the last few years. Finally, changing the standard for some detainees but not all, in some instances but not all, smacks of conflating the jus ad bello and the jus ad bellum - if not directly, than very analagously. Doing so does more than simply confuse, it detroys the enitre edifice fo intrnational humantarian law. In summary, you trust this Administration too much, government too much, the torturer too much, and oddly enough for a professor of law, show entirely too little practical interst in the Rule of Law.

Francis Fukuyama in the WSJ on the murder of Theo Van Gogh a year ago this month, and the bankruptcy of multiculturalism

I did not want to let this very fine essay by Francis Fukuyama, A Year of Living Dangerously, Wall Street Journal, Wednesday, November 2, 2005, A14, slip by unnoted, here. An essay written to recall the murder of Theo van Gogh, murdered by European Islamofacists one year ago from the date of the article. Excerpts:

***
A Year of Living Dangerously

By FRANCIS FUKUYAMA
Wall Street Journal
November 2, 2005; Page A14

One year ago today, the Dutch filmmaker Theo van Gogh had his throat ritually slit by Mohamed Bouyeri, a Muslim born in Holland who spoke fluent Dutch. This event has totally transformed Dutch politics, leading to stepped-up police controls that have now virtually shut off new immigration there. Together with the July 7 bombings in London (also perpetrated by second generation Muslims who were British citizens), this event should also change dramatically our view of the nature of the threat from radical Islamism.

We have tended to see jihadist terrorism as something produced in dysfunctional parts of the world, such as Afghanistan, Pakistan or the Middle East, and exported to Western countries. Protecting ourselves is a matter either of walling ourselves off, or, for the Bush administration, going "over there" and trying to fix the problem at its source by promoting democracy.

There is good reason for thinking, however, that a critical source of contemporary radical Islamism lies not in the Middle East, but in Western Europe. In addition to Bouyeri and the London bombers, the March 11 Madrid bombers and ringleaders of the September 11 attacks such as Mohamed Atta were radicalized in Europe. In the Netherlands, where upwards of 6% of the population is Muslim, there is plenty of radicalism despite the fact that Holland is both modern and democratic. And there exists no option for walling the Netherlands off from this problem.

We profoundly misunderstand contemporary Islamist ideology when we see it as an assertion of traditional Muslim values or culture. In a traditional Muslim country, your religious identity is not a matter of choice; you receive it, along with your social status, customs and habits, even your future marriage partner, from your social environment. In such a society there is no confusion as to who you are, since your identity is given to you and sanctioned by all of the society's institutions, from the family to the mosque to the state.

The same is not true for a Muslim who lives as an immigrant in a suburb of Amsterdam or Paris. All of a sudden, your identity is up for grabs; you have seemingly infinite choices in deciding how far you want to try to integrate into the surrounding, non-Muslim society. In his book "Globalized Islam" (2004), the French scholar Olivier Roy argues persuasively that contemporary radicalism is precisely the product of the "deterritorialization" of Islam, which strips Muslim identity of all of the social supports it receives in a traditional Muslim society.
The identity problem is particularly severe for second- and third-generation children of immigrants. They grow up outside the traditional culture of their parents, but unlike most newcomers to the U.S., few feel truly accepted by the surrounding society.

Contemporary Europeans downplay national identity in favor of an open, tolerant, "post-national" Europeanness. But the Dutch, Germans, French and others all retain a strong sense of their national identity, and, to differing degrees, it is one that is not accessible to people coming from Turkey, Morocco or Pakistan. Integration is further inhibited by the fact that rigid European labor laws have made low-skill jobs hard to find for recent immigrants or their children. A significant proportion of immigrants are on welfare, meaning that they do not have the dignity of contributing through their labor to the surrounding society. They and their children understand themselves as outsiders.

It is in this context that someone like Osama bin Laden appears, offering young converts a universalistic, pure version of Islam that has been stripped of its local saints, customs and traditions. Radical Islamism tells them exactly who they are -- respected members of a global Muslim umma to which they can belong despite their lives in lands of unbelief. Religion is no longer supported, as in a true Muslim society, through conformity to a host of external social customs and observances; rather it is more a question of inward belief. Hence Mr. Roy's comparison of modern Islamism to the Protestant Reformation, which similarly turned religion inward and stripped it of its external rituals and social supports.

If this is in fact an accurate description of an important source of radicalism, several conclusions follow. First, the challenge that Islamism represents is not a strange and unfamiliar one. Rapid transition to modernity has long spawned radicalization; we have seen the exact same forms of alienation among those young people who in earlier generations became anarchists, Bolsheviks, fascists or members of the Bader-Meinhof gang. The ideology changes but the underlying psychology does not.

Further, radical Islamism is as much a product of modernization and globalization as it is a religious phenomenon; it would not be nearly as intense if Muslims could not travel, surf the Web, or become otherwise disconnected from their culture. This means that "fixing" the Middle East by bringing modernization and democracy to countries like Egypt and Saudi Arabia will not solve the terrorism problem, but may in the short run make the problem worse. Democracy and modernization in the Muslim world are desirable for their own sake, but we will continue to have a big problem with terrorism in Europe regardless of what happens there.

The real challenge for democracy lies in Europe, where the problem is an internal one of integrating large numbers of angry young Muslims and doing so in a way that does not provoke an even angrier backlash from right-wing populists. Two things need to happen: First, countries like Holland and Britain need to reverse the counterproductive multiculturalist policies that sheltered radicalism, and crack down on extremists. But second, they also need to reformulate their definitions of national identity to be more accepting of people from non-Western backgrounds.

The first has already begun to happen. In recent months, both the Dutch and British have in fact come to an overdue recognition that the old version of multiculturalism they formerly practiced was dangerous and counterproductive. Liberal tolerance was interpreted as respect not for the rights of individuals, but of groups, some of whom were themselves intolerant (by, for example, dictating whom their daughters could befriend or marry). Out of a misplaced sense of respect for other cultures, Muslims minorities were left to regulate their own behavior, an attitude which dovetailed with a traditional European corporatist approaches to social organization. In Holland, where the state supports separate Catholic, Protestant and socialist schools, it was easy enough to add a Muslim "pillar" that quickly turned into a ghetto disconnected from the surrounding society.

New policies to reduce the separateness of the Muslim community, like laws discouraging the importation of brides from the Middle East, have been put in place in the Netherlands. The Dutch and British police have been given new powers to monitor, detain and expel inflammatory clerics. But the much more difficult problem remains of fashioning a national identity that will connect citizens of all religions and ethnicities in a common democratic culture, as the American creed has served to unite new immigrants to the United States.

Since van Gogh's murder, the Dutch have embarked on a vigorous and often impolitic debate on what it means to be Dutch, with some demanding of immigrants not just an ability to speak Dutch, but a detailed knowledge of Dutch history and culture that many Dutch people do not have themselves. But national identity has to be a source of inclusion, not exclusion; nor can it be based, contrary to the assertion of the gay Dutch politician Pym Fortuyn who was assassinated in 2003, on endless tolerance and valuelessness. The Dutch have at least broken through the stifling barrier of political correctness that has prevented most other European countries from even beginning a discussion of the interconnected issues of identity, culture and immigration. But getting the national identity question right is a delicate and elusive task.

Many Europeans assert that the American melting pot cannot be transported to European soil. Identity there remains rooted in blood, soil and ancient shared memory. This may be true, but if so, democracy in Europe will be in big trouble in the future as Muslims become an ever larger percentage of the population. And since Europe is today one of the main battlegrounds of the war on terrorism, this reality will matter for the rest of us as well.

(Mr. Fukuyama is professor of international political economy at Johns Hopkins and chairman of the editorial board of The American Interest.)

URL for this article:http://online.wsj.com/article/SB113089516582785870.html

Abraham D. Sofaer on the McCain torture amendment

Abraham D. Sofaer, legal advisor to the State Department during the Bush senior administration, now a senior fellow of the Hoover Institution, on the absoluteness of the prohibition on torture, in the Wall Street Journal, Weekend edition, here (reg. reqd.). Mr. Sofaer argues that the Bush administration should accept the McCain admendment. Excerpts:

***
No Exceptions
By ABRAHAM D. SOFAER
November 26, 2005; Page A11
Wall Street Journal

Unquestionably the war in Iraq is now part of the war on terror. It is a pivotal battle against fascists and zealots over the right of people to govern themselves by democratic means. Essential as these objectives are, it is illegal for any official of any government to use torture, or cruel, inhuman or degrading treatment, as punishment or in interrogations. President Bush has properly ordered that those who have disgraced America with such conduct be prosecuted, and anyone who authorized such conduct should also be brought to justice.

Official U.S. policy is to abide by its commitment to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The convention was drafted and adopted with U.S. involvement, and it has been ratified by 140 States. It had the full support of Presidents Ronald Reagan and George H.W. Bush. Violations of the convention are made criminal by U.S. law.

Despite the official policy of applying the convention to all U.S. officials everywhere, the Department of Justice has issued an opinion claiming that Article 16 of the treaty applies only in the territorial U.S. This conclusion is wrong. It has created confusion in the field, and it exposes the president and the nation to criticism.

Art. 16 imposes on every State Party the obligation to prevent, not only torture, but also "cruel, inhuman, or degrading" acts in any "territory under its jurisdiction." When the convention was presented to the Senate for ratification, Sen. Jesse Helms raised several issues, including the possibility that other states or tribunals might claim that the words of Art. 16 should be construed more broadly than the "cruel or unusual punishment" clause of our Constitution. He felt that U.S. officials should not have to deal with different sets of standards where the words involved were so similar.

The Reagan and Bush administrations agreed, proposing a reservation to the treaty aimed at limiting the meaning of the term in Art. 16 -- "cruel, inhuman or degrading" -- to what is prohibited by the U.S. Constitution. Although this reservation involved the scope and meaning of treaty terms, the current Department of Justice has claimed that this reservation limits the U.S. obligation to enforce Art. 16 to the geographic territory of the U.S., on the grounds that the Supreme Court has held that the Eighth Amendment is inapplicable beyond U.S. territory. DOJ's position is untenable for several reasons.

Most fundamentally, the purpose and language of the reservation was not intended to restrict the U.S. commitment geographically, and would give the words "territory under its jurisdiction" a more limited meaning under Art. 16 than the DOJ agrees the same words have under Article 2, which requires State Parties to take measures against acts of torture. Restricting enforcement of Art. 16 to U.S. territory would fundamentally undermine the treaty's purpose of preventing "cruel, inhuman or degrading" treatment by any State in any place it has "jurisdiction."

The administration moreover claims that its proposed reading and amendment are not intended to allow U.S. officials actually to engage in "cruel, inhuman or degrading" acts outside the U.S., but only to preserve "flexibility" and protect such officials from charges that they have engaged in such acts. This is unsustainable: Any exception to the treaty's requirement is understandably seen as an effort to allow illegal acts, undermining our diplomatic initiative to change America's image abroad. Actually, a territorial limitation for Art. 16 creates risks for officials who might violate the provision. No other State Party is likely to accept the U.S. view, and all of them are obliged to enforce the treaty if the U.S. fails to do so. Meanwhile, U.S. courts could reject the Justice Department position and subject officials to the criminal statutes passed to enforce the convention.

While the administration says that the post-9/11 world demands greater flexibility to use "cruel, inhuman or degrading" pressure or punishment, the convention includes a provision that precludes this argument: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." To be sure, the treaty's terms are vague as written, but Defense Department guidelines have provided interrogators adequate guidance as to the permissibility or impropriety of all known forms of interrogation.

Congress can and should authorize a system of judicial review that ensures consistent and authoritative interpretations. The notion that the conduct of the enemies we face is so lawless that we should make exceptions to the normal rules is a formula for subjectivity and lawlessness. The rule of law allows the U.S. to punish terrorists harshly after affording them due process, and such punishment may properly generate cooperation from those seeking leniency.
In order to end the uncertainty created by the Justice Department's position, Sen. John McCain introduced an amendment to the Defense Department's authorization bill that would establish the Army Field Manual as the uniform standard for all U.S. interrogations, and would prohibit cruel, inhuman or degrading treatment of persons in U.S. custody anywhere in the world. The amendment is supported by former Secretary of State Colin Powell, and by over 30 retired generals of the U.S. armed forces. Nonetheless, the administration objects to this provision and has insisted that at least CIA officials should be exempt. If U.S. policy prohibits such conduct, however, why immunize CIA interrogators who violate U.S. policy? Despite a threatened veto, the Senate voted 90-6 to adopt the amendment.

President Bush should accept the McCain Amendment. He has repeatedly affirmed that the dignity and equality of all human beings stems from natural law that overrides the claims of particular societies and ideologies. The Torture Convention represents an effort to translate this principle into practice, through universal adoption and enforcement. The U.S. does not need to violate its provisions, anywhere, to win the war on terror.

(Mr. Sofaer, the George P. Shultz Senior Fellow at the Hoover Institution, was a legal adviser to the U.S. State Department and presented the Torture Convention to the Senate for ratification in 1990.)

URL for this article:http://online.wsj.com/article/SB113296749780207080.html

David Tell on the McCain torture amendment

David Tell, in the Weekly Standard, November 28, 2005, sorting out the tangled difficulties of the McCain amendment and its invocation of US constitutional standards on inhumane treatment, here. Excerpts:

***
Torture Logic
Where does the logic of the McCain amendment lead?

Weekly Standard
by David Tell, for the Editors
11/28/2005, Volume 011, Issue 11

THE SENATE-APPROVED VERSIONS of next year's Defense authorization and appropriations bills each contain an amendment sponsored by Arizona's John McCain that would, as the commonplace newspaper shorthand has it, "make torture illegal" at Pentagon facilities throughout the world. The House-approved versions do not contain such language, and House-Senate conferees have yet to negotiate the final, "reconciled" legislation they will eventually send to the White House. But if either measure still contains the McCain amendment when it reaches his desk, President Bush will apparently cast a veto--his first ever.

It's not entirely clear just why. The White House has been singularly uncommunicative about its objectives.

Could be the administration's objection is grounded in separation-of-powers theory: The Constitution assigns the president alone an unenumerated "executive Power," and specifically designates him the "Commander in Chief of the Army and Navy," so any congressional attempt to regulate the conduct of an ongoing war must be resisted as an encroachment by one branch of government on the prerogatives of another--that kind of thing. Media reports, at any rate, routinely attribute such thinking to Vice President Dick Cheney's office, apparently the locus delicti of West Wing opposition to the McCain anti-torture campaign. And the Office of Management and Budget, citing "the Constitution," indicates general concern among the president's "senior advisers" that the amendment in question "would restrict the president's authority to protect Americans effectively from terrorist attack and bring terrorists to justice."

But there's got to be more to it than that, doesn't there? After all, the Constitution simultaneously gives Congress, not the president, plenary authority to "make Rules for the Government and Regulation of the land and naval Forces"--rules about interrogation practices presumably among them. And a large body of uniformed-services law has been on the federal statute books since 1775, before the Constitution even existed. If the president's senior advisers are similarly concerned about the Uniform Code of Military Justice, the Washington Post has not reported it.

The Washington Post has, however, reported, among other things, that Cheney aide David Addington is the brains behind a "White House memo justifying torture of terrorism suspects." And that motive, as well, is more-or-less routinely--and matter-of-factly--advanced as an explanation for the Bush veto threat. It's a baby-with-the-bathwater problem, we're given to understand: "Torture" per se is something the administration is happy to disavow, but what if the McCain amendment's additional prohibition against "cruel, inhuman, or degrading treatment or punishment" winds up interfering with . . . some other useful stuff the Pentagon and CIA are purportedly up to? Or, as Sen. McCain himself has characterized the debate in a recent issue of Newsweek, there are

"those Americans who believe that a less rigorous application of [our] values is regrettably necessary to prevail over a uniquely abhorrent and dangerous enemy. . . . Some view more coercive interrogation tactics as something short of torture but worry that they might be subject to challenge under the "no cruel, inhuman or degrading" standard. . . . For instance, there has been considerable press attention to a tactic called "waterboarding," where a prisoner is restrained and blindfolded while an interrogator pours water on his face and into his mouth--causing the prisoner to believe he is being drowned."

Sen. McCain calls waterboarding, too, a form of torture, mind you. But there are "those Americans" who think it should count as something less, he suggests. And, by implication, it is those same Americans who are presently resisting McCain's amendment, so as to preserve the waterboard--and God knows what else--in our government's war-on-terrorism arsenal.
If this is an accurate account of things, as practically the whole rest of the world outside of 1600 Pennsylvania Avenue seems convinced it is, then the administration's position on the McCain amendment is both politically and morally unsustainable, and the president's veto threat is an embarrassment to the entire country.

And yet, we can't help wondering: What makes everybody so sure the situation isn't just a teeny bit more complicated than that? What, for example, do we suppose the practical, nitty-gritty effect will really be once the McCain amendment has become law and terror-suspect detainees, "regardless of nationality or physical location," begin to enjoy an absolute guarantee against "the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States"? Does anybody know? Has anybody even thought about it?

Will the residents of Abu Ghraib and Guantanamo Bay be entitled to conditions of confinement meeting exactly the same standards federal judges have cumulatively imposed, under the Eighth Amendment, on San Quentin and Leavenworth? Will American intelligence officers questioning captured al Qaeda operatives be required to observe the same constitutional restrictions that would apply were they talking to a drunk-driving arrestee in a stateside suburban jail? In a stateside suburban jail, government abuses sufficient to "shock the conscience"--the Supreme Court's notoriously ambiguous, 53-year-old benchmark--are an impermissible abridgment of Fourteenth Amendment due process. And in Afghanistan, Iraq, and Guantanamo, our consciences have been shocked for quite some time now.

But by what, precisely? Is it the scale and severity of the abuse involved? The United States has detained more than 83,000 foreign citizens at one time or another since September 11, 2001. According to data submitted by the State Department to the U.N. Committee Against Torture in late October, 221 substantiated cases of American abuse or misconduct have resulted from these detentions. There's no reason to assume that all these cases involved a serious injury. But let's assume it anyway, and let's also assume that vast numbers of never-reported abuses should also be charged against our troops--so that the "real" number is 2,210, fully ten times higher. U.S. war-on-terrorism detainees would still have a violent crime victimization rate dramatically lower than that experienced last year by residents of Manhattan's Mid-Town South police precinct, home of the New York Times.

More likely, we suspect, the total numbers haven't mattered all that much; it's the sensational character of certain high-profile abuse allegations that's caused the most distress. Take "Prisoner 063," for example, who's now been detained at Guantanamo for four-plus years. In late 2002, they made him the subject of a "special interrogation plan," and they treated him pretty rough. He was menaced by dogs, deprived of sleep, segregated from the general detainee population, splashed with water bottles. And--this being the part that really seems to get to people--the victim was repeatedly subjected to "gender coercion," in a manner certain to outrage his Muslim piety. On various occasions over a period of three months, female interrogators "invaded the personal space" of this gentleman, looked at him naked, made him wear a bra on his head, and massaged his back and neck in a sexually provocative manner.

Prisoner 063, incidentally, is one Mr. Mohammed al-Qahtani, who, had immigration officials not turned him away from Orlando International Airport on August 4, 2001, would a few weeks later have been the missing fifth hijacker on United Airlines Flight 93. Shortly before 9:30 a.m. on September 11, he'd have been barricaded in the cockpit along with four other al Qaeda operatives and 49-year-old United purser Debbie Welsh. It's said the surviving black box cockpit recorder captures her voice: "Please don't hurt me. Oh, dear God, I don't want to die!" A short while later on the tape there's a "gurgling sound, then silence," as Debbie Welsh's throat is cut and she drowns in her own blood. Mr. al-Qahtani's religious views governing "personal space" and appropriate contact with a female would appear to be a very tricky business, in other words.

Is it really so conscience-shocking that U.S. interrogators failed to respect those views?
There is a lot to be ambivalent about in the current controversy over torture. Better than a presidential veto, or incompletely considered legislation extending the equivalent of constitutional due process rights to murderous foreign enemies like Mohammed al-Qahtani, would be a serious, detailed, public debate about how, exactly, a civilized country is really supposed to deal with such men once it's caught them. We haven't figured it out yet, that much is clear.

--David Tell, for the Editors

Charles Krauthammer on torture

Charles Krauthammer on circumstances in which he says torture is justified, from the Weekly Standard, December 5, 2005 issue, here.

Excerpts:

***
The Truth about Torture
It's time to be honest about doing terrible things.

Weekly Standard
by Charles Krauthammer
12/05/2005, Volume 011, Issue 12

DURING THE LAST FEW WEEKS in Washington the pieties about torture have lain so thick in the air that it has been impossible to have a reasoned discussion. The McCain amendment that would ban "cruel, inhuman, or degrading" treatment of any prisoner by any agent of the United States sailed through the Senate by a vote of 90-9. The Washington establishment remains stunned that nine such retrograde, morally inert persons--let alone senators--could be found in this noble capital.

Now, John McCain has great moral authority on this issue, having heroically borne torture at the hands of the North Vietnamese. McCain has made fine arguments in defense of his position. And McCain is acting out of the deep and honorable conviction that what he is proposing is not only right but is in the best interest of the United States. His position deserves respect. But that does not mean, as seems to be the assumption in Washington today, that a critical analysis of his "no torture, ever" policy is beyond the pale.

Let's begin with a few analytic distinctions. For the purpose of torture and prisoner maltreatment, there are three kinds of war prisoners:

First, there is the ordinary soldier caught on the field of battle. There is no question that he is entitled to humane treatment. Indeed, we have no right to disturb a hair on his head. His detention has but a single purpose: to keep him hors de combat. The proof of that proposition is that if there were a better way to keep him off the battlefield that did not require his detention, we would let him go. Indeed, during one year of the Civil War, the two sides did try an alternative. They mutually "paroled" captured enemy soldiers, i.e., released them to return home on the pledge that they would not take up arms again. (The experiment failed for a foreseeable reason: cheating. Grant found that some paroled Confederates had reenlisted.)
Because the only purpose of detention in these circumstances is to prevent the prisoner from becoming a combatant again, he is entitled to all the protections and dignity of an ordinary domestic prisoner--indeed, more privileges, because, unlike the domestic prisoner, he has committed no crime. He merely had the misfortune to enlist on the other side of a legitimate war. He is therefore entitled to many of the privileges enjoyed by an ordinary citizen--the right to send correspondence, to engage in athletic activity and intellectual pursuits, to receive allowances from relatives--except, of course, for the freedom to leave the prison.

Second, there is the captured terrorist. A terrorist is by profession, indeed by definition, an unlawful combatant: He lives outside the laws of war because he does not wear a uniform, he hides among civilians, and he deliberately targets innocents. He is entitled to no protections whatsoever. People seem to think that the postwar Geneva Conventions were written only to protect detainees. In fact, their deeper purpose was to provide a deterrent to the kind of barbaric treatment of civilians that had become so horribly apparent during the first half of the 20th century, and in particular, during the Second World War. The idea was to deter the abuse of civilians by promising combatants who treated noncombatants well that they themselves would be treated according to a code of dignity if captured--and, crucially, that they would be denied the protections of that code if they broke the laws of war and abused civilians themselves.

Breaking the laws of war and abusing civilians are what, to understate the matter vastly, terrorists do for a living. They are entitled, therefore, to nothing. Anyone who blows up a car bomb in a market deserves to spend the rest of his life roasting on a spit over an open fire. But we don't do that because we do not descend to the level of our enemy. We don't do that because, unlike him, we are civilized. Even though terrorists are entitled to no humane treatment, we give it to them because it is in our nature as a moral and humane people. And when on rare occasions we fail to do that, as has occurred in several of the fronts of the war on terror, we are duly disgraced.

The norm, however, is how the majority of prisoners at Guantanamo have been treated. We give them three meals a day, superior medical care, and provision to pray five times a day. Our scrupulousness extends even to providing them with their own Korans, which is the only reason alleged abuses of the Koran at Guantanamo ever became an issue. That we should have provided those who kill innocents in the name of Islam with precisely the document that inspires their barbarism is a sign of the absurd lengths to which we often go in extending undeserved humanity to terrorist prisoners.

Third, there is the terrorist with information. Here the issue of torture gets complicated and the easy pieties don't so easily apply. Let's take the textbook case. Ethics 101: A terrorist has planted a nuclear bomb in New York City. It will go off in one hour. A million people will die. You capture the terrorist. He knows where it is. He's not talking.

Question: If you have the slightest belief that hanging this man by his thumbs will get you the information to save a million people, are you permitted to do it?

Now, on most issues regarding torture, I confess tentativeness and uncertainty. But on this issue, there can be no uncertainty: Not only is it permissible to hang this miscreant by his thumbs. It is a moral duty.

Yes, you say, but that's an extreme and very hypothetical case. Well, not as hypothetical as you think. Sure, the (nuclear) scale is hypothetical, but in the age of the car-and suicide-bomber, terrorists are often captured who have just set a car bomb to go off or sent a suicide bomber out to a coffee shop, and you only have minutes to find out where the attack is to take place. This "hypothetical" is common enough that the Israelis have a term for precisely that situation: the ticking time bomb problem.

And even if the example I gave were entirely hypothetical, the conclusion--yes, in this case even torture is permissible--is telling because it establishes the principle: Torture is not always impermissible. However rare the cases, there are circumstances in which, by any rational moral calculus, torture not only would be permissible but would be required (to acquire life-saving information). And once you've established the principle, to paraphrase George Bernard Shaw, all that's left to haggle about is the price. In the case of torture, that means that the argument is not whether torture is ever permissible, but when--i.e., under what obviously stringent circumstances: how big, how imminent, how preventable the ticking time bomb.
That is why the McCain amendment, which by mandating "torture never" refuses even to recognize the legitimacy of any moral calculus, cannot be right. There must be exceptions. The real argument should be over what constitutes a legitimate exception.

Let's Take An Example that is far from hypothetical. You capture Khalid Sheikh Mohammed in Pakistan. He not only has already killed innocents, he is deeply involved in the planning for the present and future killing of innocents. He not only was the architect of the 9/11 attack that killed nearly three thousand people in one day, most of them dying a terrible, agonizing, indeed tortured death. But as the top al Qaeda planner and logistical expert he also knows a lot about terror attacks to come. He knows plans, identities, contacts, materials, cell locations, safe houses, cased targets, etc. What do you do with him?

We have recently learned that since 9/11 the United States has maintained a series of "black sites" around the world, secret detention centers where presumably high-level terrorists like Khalid Sheikh Mohammed have been imprisoned. The world is scandalized. Black sites? Secret detention? Jimmy Carter calls this "a profound and radical change in the . . . moral values of our country." The Council of Europe demands an investigation, calling the claims "extremely worrying." Its human rights commissioner declares "such practices" to constitute "a serious human rights violation, and further proof of the crisis of values" that has engulfed the war on terror. The gnashing of teeth and rending of garments has been considerable.

I myself have not gnashed a single tooth. My garments remain entirely unrent. Indeed, I feel reassured. It would be a gross dereliction of duty for any government not to keep Khalid Sheikh Mohammed isolated, disoriented, alone, despairing, cold and sleepless, in some godforsaken hidden location in order to find out what he knew about plans for future mass murder. What are we supposed to do? Give him a nice cell in a warm Manhattan prison, complete with Miranda rights, a mellifluent lawyer, and his own website? Are not those the kinds of courtesies we extended to the 1993 World Trade Center bombers, then congratulated ourselves on how we "brought to justice" those responsible for an attack that barely failed to kill tens of thousands of Americans, only to discover a decade later that we had accomplished nothing--indeed, that some of the disclosures at the trial had helped Osama bin Laden avoid U.S. surveillance?

Have we learned nothing from 9/11? Are we prepared to go back with complete amnesia to the domestic-crime model of dealing with terrorists, which allowed us to sleepwalk through the nineties while al Qaeda incubated and grew and metastasized unmolested until on 9/11 it finished what the first World Trade Center bombers had begun?

Let's assume (and hope) that Khalid Sheikh Mohammed has been kept in one of these black sites, say, a cell somewhere in Romania, held entirely incommunicado and subjected to the kind of "coercive interrogation" that I described above. McCain has been going around praising the Israelis as the model of how to deal with terrorism and prevent terrorist attacks. He does so because in 1999 the Israeli Supreme Court outlawed all torture in the course of interrogation. But in reality, the Israeli case is far more complicated. And the complications reflect precisely the dilemmas regarding all coercive interrogation, the weighing of the lesser of two evils: the undeniable inhumanity of torture versus the abdication of the duty to protect the victims of a potentially preventable mass murder.

In a summary of Israel's policies, Glenn Frankel of the Washington Post noted that the 1999 Supreme Court ruling struck down secret guidelines established 12 years earlier that allowed interrogators to use the kind of physical and psychological pressure I described in imagining how KSM might be treated in America's "black sites."

"But after the second Palestinian uprising broke out a year later, and especially after a devastating series of suicide bombings of passenger buses, cafes and other civilian targets," writes Frankel, citing human rights lawyers and detainees, "Israel's internal security service, known as the Shin Bet or the Shabak, returned to physical coercion as a standard practice." Not only do the techniques used "command widespread support from the Israeli public," but "Israeli prime ministers and justice ministers with a variety of political views," including the most conciliatory and liberal, have defended these techniques "as a last resort in preventing terrorist attacks."

Which makes McCain's position on torture incoherent. If this kind of coercive interrogation were imposed on any inmate in the American prison system, it would immediately be declared cruel and unusual, and outlawed. How can he oppose these practices, which the Israelis use, and yet hold up Israel as a model for dealing with terrorists? Or does he countenance this kind of interrogation in extreme circumstances--in which case, what is left of his categorical opposition to inhuman treatment of any kind?

But let us push further into even more unpleasant territory, the territory that lies beyond mere coercive interrogation and beyond McCain's self-contradictions. How far are we willing to go?
This "going beyond" need not be cinematic and ghoulish. (Jay Leno once suggested "duct tape" for Khalid Sheikh Mohammed. See photo.) Consider, for example, injection with sodium pentathol. (Colloquially known as "truth serum," it is nothing of the sort. It is a barbiturate whose purpose is to sedate. Its effects are much like that of alcohol: disinhibiting the higher brain centers to make someone more likely to disclose information or thoughts that might otherwise be guarded.) Forcible sedation is a clear violation of bodily integrity. In a civilian context it would be considered assault. It is certainly impermissible under any prohibition of cruel, inhuman, or degrading treatment.

Let's posit that during the interrogation of Khalid Sheikh Mohammed, perhaps early on, we got intelligence about an imminent al Qaeda attack. And we had a very good reason to believe he knew about it. And if we knew what he knew, we could stop it. If we thought we could glean a critical piece of information by use of sodium pentathol, would we be permitted to do so?
Less hypothetically, there is waterboarding, a terrifying and deeply shocking torture technique in which the prisoner has his face exposed to water in a way that gives the feeling of drowning. According to CIA sources cited by ABC News, Khalid Sheikh Mohammed "was able to last between two and 2 1/2 minutes before begging to confess." Should we regret having done that? Should we abolish by law that practice, so that it could never be used on the next Khalid Sheikh Mohammed having thus gotten his confession?

And what if he possessed information with less imminent implications? Say we had information about a cell that he had helped found or direct, and that cell was planning some major attack and we needed information about the identity and location of its members. A rational moral calculus might not permit measures as extreme as the nuke-in-Manhattan scenario, but would surely permit measures beyond mere psychological pressure.

Such a determination would not be made with an untroubled conscience. It would be troubled because there is no denying the monstrous evil that is any form of torture. And there is no denying how corrupting it can be to the individuals and society that practice it. But elected leaders, responsible above all for the protection of their citizens, have the obligation to tolerate their own sleepless nights by doing what is necessary--and only what is necessary, nothing more--to get information that could prevent mass murder.

GIVEN THE GRAVITY OF THE DECISION, if we indeed cross the Rubicon--as we must--we need rules. The problem with the McCain amendment is that once you have gone public with a blanket ban on all forms of coercion, it is going to be very difficult to publicly carve out exceptions. The Bush administration is to be faulted for having attempted such a codification with the kind of secrecy, lack of coherence, and lack of strict enforcement that led us to the McCain reaction.

What to do at this late date? Begin, as McCain does, by banning all forms of coercion or inhuman treatment by anyone serving in the military--an absolute ban on torture by all military personnel everywhere. We do not want a private somewhere making these fine distinctions about ticking and slow-fuse time bombs. We don't even want colonels or generals making them. It would be best for the morale, discipline, and honor of the Armed Forces for the United States to maintain an absolute prohibition, both to simplify their task in making decisions and to offer them whatever reciprocal treatment they might receive from those who capture them--although I have no illusion that any anti-torture provision will soften the heart of a single jihadist holding a knife to the throat of a captured American soldier. We would impose this restriction on ourselves for our own reasons of military discipline and military honor.

Outside the military, however, I would propose, contra McCain, a ban against all forms of torture, coercive interrogation, and inhuman treatment, except in two contingencies: (1) the ticking time bomb and (2) the slower-fuse high-level terrorist (such as KSM). Each contingency would have its own set of rules. In the case of the ticking time bomb, the rules would be relatively simple: Nothing rationally related to getting accurate information would be ruled out. The case of the high-value suspect with slow-fuse information is more complicated. The principle would be that the level of inhumanity of the measures used (moral honesty is essential here--we would be using measures that are by definition inhumane) would be proportional to the need and value of the information. Interrogators would be constrained to use the least inhumane treatment necessary relative to the magnitude and imminence of the evil being prevented and the importance of the knowledge being obtained.

These exceptions to the no-torture rule would not be granted to just any nonmilitary interrogators, or anyone with CIA credentials. They would be reserved for highly specialized agents who are experts and experienced in interrogation, and who are known not to abuse it for the satisfaction of a kind of sick sadomasochism Lynndie England and her cohorts indulged in at Abu Ghraib. Nor would they be acting on their own. They would be required to obtain written permission for such interrogations from the highest political authorities in the country (cabinet level) or from a quasi-judicial body modeled on the Foreign Intelligence Surveillance Court (which permits what would ordinarily be illegal searches and seizures in the war on terror). Or, if the bomb was truly ticking and there was no time, the interrogators would be allowed to act on their own, but would require post facto authorization within, say, 24 hours of their interrogation, so that they knew that whatever they did would be subject to review by others and be justified only under the most stringent terms.

One of the purposes of these justifications would be to establish that whatever extreme measures are used are for reasons of nothing but information. Historically, the torture of prisoners has been done for a variety of reasons apart from information, most prominently reasons of justice or revenge. We do not do that. We should not do that. Ever. Khalid Sheikh Mohammed, murderer of 2,973 innocents, is surely deserving of the most extreme suffering day and night for the rest of his life. But it is neither our role nor our right to be the agents of that suffering. Vengeance is mine, sayeth the Lord. His, not ours. Torture is a terrible and monstrous thing, as degrading and morally corrupting to those who practice it as any conceivable human activity including its moral twin, capital punishment.

If Khalid Sheikh Mohammed knew nothing, or if we had reached the point where his knowledge had been exhausted, I'd be perfectly prepared to throw him into a nice, comfortable Manhattan cell and give him a trial to determine what would be fit and just punishment. But aslong as he had useful information, things would be different.

Very different. And it simply will not do to take refuge in the claim that all of the above discussion is superfluous because torture never works anyway. Would that this were true. Unfortunately, on its face, this is nonsense. Is one to believe that in the entire history of human warfare, no combatant has ever received useful information by the use of pressure, torture, or any other kind of inhuman treatment? It may indeed be true that torture is not a reliable tool. But that is very different from saying that it is never useful.

The monstrous thing about torture is that sometimes it does work. In 1994, 19-year-old Israeli corporal Nachshon Waxman was kidnapped by Palestinian terrorists. The Israelis captured the driver of the car used in the kidnapping and tortured him in order to find where Waxman was being held. Yitzhak Rabin, prime minister and peacemaker, admitted that they tortured him in a way that went even beyond the '87 guidelines for "coercive interrogation" later struck down by the Israeli Supreme Court as too harsh. The driver talked. His information was accurate. The Israelis found Waxman. "If we'd been so careful to follow the ['87] Landau Commission [which allowed coercive interrogation]," explained Rabin, "we would never have found out where Waxman was being held."

In the Waxman case, I would have done precisely what Rabin did. (The fact that Waxman's Palestinian captors killed him during the Israeli rescue raid makes the case doubly tragic, but changes nothing of the moral calculus.) Faced with a similar choice, an American president would have a similar obligation. To do otherwise--to give up the chance to find your soldier lest you sully yourself by authorizing torture of the person who possesses potentially lifesaving information--is a deeply immoral betrayal of a soldier and countryman. Not as cosmically immoral as permitting a city of one's countrymen to perish, as in the Ethics 101 case. But it remains, nonetheless, a case of moral abdication--of a kind rather parallel to that of the principled pacifist. There is much to admire in those who refuse on principle ever to take up arms under any conditions. But that does not make pure pacifism, like no-torture absolutism, any less a form of moral foolishness, tinged with moral vanity. Not reprehensible, only deeply reproachable and supremely impracticable. People who hold such beliefs are deserving of a certain respect. But they are not to be put in positions of authority. One should be grateful for the saintly among us. And one should be vigilant that they not get to make the decisions upon which the lives of others depend.

WHICH BRINGS US to the greatest irony of all in the torture debate. I have just made what will be characterized as the pro-torture case contra McCain by proposing two major exceptions carved out of any no-torture rule: the ticking time bomb and the slow-fuse high-value terrorist. McCain supposedly is being hailed for defending all that is good and right and just in America by standing foursquare against any inhuman treatment. Or is he?

According to Newsweek, in the ticking time bomb case McCain says that the president should disobey the very law that McCain seeks to pass--under the justification that "you do what you have to do. But you take responsibility for it." But if torturing the ticking time bomb suspect is "what you have to do," then why has McCain been going around arguing that such things must never be done?

As for exception number two, the high-level terrorist with slow-fuse information, Stuart Taylor, the superb legal correspondent for National Journal, argues that with appropriate legal interpretation, the "cruel, inhuman, or degrading" standard, "though vague, is said by experts to codify . . . the commonsense principle that the toughness of interrogation techniques should be calibrated to the importance and urgency of the information likely to be obtained." That would permit "some very aggressive techniques . . . on that small percentage of detainees who seem especially likely to have potentially life-saving information." Or as Evan Thomas and Michael Hirsh put it in the Newsweek report on McCain and torture, the McCain standard would "presumably allow for a sliding scale" of torture or torture-lite or other coercive techniques, thus permitting "for a very small percentage--those High Value Targets like Khalid Sheikh Mohammed--some pretty rough treatment."

But if that is the case, then McCain embraces the same exceptions I do, but prefers to pretend he does not. If that is the case, then his much-touted and endlessly repeated absolutism on inhumane treatment is merely for show. If that is the case, then the moral preening and the phony arguments can stop now, and we can all agree that in this real world of astonishingly murderous enemies, in two very circumscribed circumstances, we must all be prepared to torture. Having established that, we can then begin to work together to codify rules of interrogation for the two very unpleasant but very real cases in which we are morally permitted--indeed morally compelled--to do terrible things.

(Charles Krauthammer is a contributing editor to The Weekly Standard.)