Monday, November 28, 2005

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.]

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:

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).


Marty Lederman said...

Prof. Anderson:

A few quick reactions.

1. Most importantly, I can unequivocally and without the slightest reservation assure you and your readers that not only is it not "self-evident" that David Luban "undervalues other people's lives"; nothing -- nothing -- could be further from the truth. Indeed, it would take some doing to identify a serious academic who is more concerned and serious than David with the matter of valuing of people's lives. And that is true despite the fact that David would prohibit waterboarding of Zarqawi -- and would, obviously, prohibit "a great deal beyond" waterboarding, as well.

2. I find it very odd that on this blog, devoted to international laws of war, you would suggest -- even if short of proposing -- that we take seriously the possibility of developing "a protocol established in advance for serious, unapologetic, and above all systematic torture." For of course you know that torture, as such (and putting aside hard questions about what's included in that term on the margins) is absolutely prohibited not only as a matter of CIL, but as a matter of jus cogens and, most importantly, as a treaty obligation to which we are bound.

*There is not a single person in the federal government -- none; not Cheney, not Addington, not Duncan Hunter, not Ted Stevens, not Boykin or Cambone, etc. -- who would even consider for a second, let alone propose, a torture protocol. The U.S. will not, under any circumstances, announce that it is violating the CAT. So this is a nonstarter, period -- and the only real debate is about techniques short of torture, i.e., about waterboarding *at the outside.*

You suggest that "[t]here are many things beyond officially sanctioned American interrogation techniques that fall short of actual torture and which ought to be used on a Zarqawi." If this is so, then I'm afraid we simply aren't speaking the same language. *Perhaps* a case can be made that waterboarding, and cold cell, etc., are not torture (although I think that if our enemies used such techniques on us, *everyone* would consider it torture, and we would prosecute it as such). But even if that case could be made, I can't imagine that there's a great deal of breathing space, if any (sorry about the unfortunate metaphor) between waterboarding and "torture."

3. As for what you so indelicately call "gender games": What we're talking about here is deliberate religious humiliation and degradation, i.e., specifically attempting to have the detainee be blasphemed. Perhaps it wouldn't "shock the conscience" in a due process sense. (But perhaps it would.) But it is grotesque, inconsistent with the spirit, and perhaps the letter, of the First Amendment (it would certainly violate the Religion Clauses if it occurred in a U.S. detention facility), and, frankly, unworthy of a humane democratic nation.

But more to the point: These techniques would obviously violate Common Article 3, on *any* reading of that provision, for they are *designed* as "outrages upon personal dignity, in particular humiliating and degrading treatment." Common Article 3 might well apply to Zarqawi as a matter of treaty obligation (I haven't thought through the question sufficiently); but in any case, you have repeatedly proposed that we incorporate CA3 by statute. Such a statute would prohibit the very techniques that now appear not to trouble you.

4. This leads to my most fundamental puzzlement. A torture protocol? Waterboard Zarqawi "in a heartbeat"? And a "great deal beyond"? It's odd, on this site, to see such proposals pitched in all apparent sincerity, with nary even a nod to the serious international ramifications of such proposals, let alone the manifest international law constraints.

Please permit me to quote my friend David Golove, from an e-mail he wrote yesterday w/r/t Krauthammer: "If we reserve to ourselves the right, as Krauthammer would have it, to decide when torture is justified, balancing the inhumanity of the act against the benefits it may bring, then what will be left of the general norm on an international basis? Why would other states, faced with what they believe to be equally compelling circumstances, not feel free to torture? The El Salvadoran military certainly believed that the survival of their social order was at stake in an ongoing and brutal civil war. Surely, under Krauthammer's approach, they were justified in torturing suspects that they believed might have important information about rebel cells and so on. Even if the suspects had no information, perhaps the military believed that torturing them brutally enough would discourage others from joining their cause. In Krauthammerian terms, wouldn't they
have been justified, if they honestly applied the consequentialist balancing test that he suggests is good enough for us? More generally, isn't it a powerful argument against this approach that, if generalized (in the Kantian sense), the consequences would so obviously be disastrously bad from a general moral perspective?"

Katherine said...

On exactly what theory, other than "it's not torture if we do it because torture is bad and we're good", is waterboarding well short of torture? It's a mock execution. It's a particularly cruel form of mock execution. You don't experience the physical sensation of a bullet entering your skull when your captor plays Russian Roulette with you,

Scott Horton said...

David Luban's piece in the Washington Post is an exercise in refocusing the debate, away from the trivial and towards the serious. He succeeds in this very well, and his work is an important contribution to the dialogue. While I am not sympathetic to Charles Krauthammer and his recent Weekly Standard piece, I consider it far more serious than any of the other defenses of the Cheney-Addington viewpoint that have been published in the last year - certainly compared with Andrew McCarthy's and Heather Mac Donald's work for instance. But Ken Anderson's comments here are very disappointing. Rather than engage in debate on legal, ethical or intelligence policy grounds, they consist of cheap political rhetoric of the sort I am used to hearing from the mouth of the Rush Limbaughs of the world. This isn't scholarship. It isn't even serious argument. And Ken's line about valuing human life is the cheapest shot of all. I've been a follower of Ken's work for some time, but I have to say this marks a real low point.

KA said...

Re Diogenes comment above - well, I've apologized to Professor Luban for getting too personal. As for the rest of it, I'm sorry that Diogenes does not find that it engages even as an ethics argument. Possibly not persuasive as an ethics argument, but that it does not engage on that ground? Really? I think I've proposed at least one important ethical principle that is not captured or well captured by existing discussions of torture and mistreatment, viz., the moral status of the person you are dealing with. I've suggested that there is not an alternative to a certain moral casuistry in dealing with actual practices - hence my insistence that legal solutions must in fact deal with actual practices that the legal texts do not address. Arguments over ethical principal, arguments from cases - what am I missing here? But if I've descended to Rush Limbaugh territory, then let me put the question back to Diogenes, same as to Marty Lederman above. Zarqawi is captured - and please do not tell me that is not a live possibility - what will you do with him and how will you treat him?