Tuesday, November 29, 2005

Note re Diogenes' comment re David Luban's article

A comment from Diogenes (reposted from the comments section):

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.

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 directly 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 in my earlier post. Zarqawi is captured - and please do not tell me that it is not a live possibility or that it is somehow irrelevant - what will you do with him and how will you treat him?

1 comment:

Scott Horton said...

Like Ken, I am not an expert in interrogations, and I would leave the examining of the Zarqawis of the world to intelligence professionals. The real question, I suppose, is what are the constraints to be imposed. Krauthammer is right when he says that folks like Zarqawi are not EPWs. But he is wrong when he suggests they have no rights. Such a person has no absolute protection against coercive interrogation, but the coercion used may not encompass torture, cruel, inhuman or degrading treatment. FM 34-52 sets a GC EPW perspective and is therefore more restrictive in approach than the law, or good ethics, would require.
Does Ken understand the Zarqawi example as a "ticking bomb"? Maybe Zarqawi would have useful information about some planned attack. It would be prudent to interrogate him to the best of our ability to secure that information. But torture? Or maybe you "just" mean waterboarding (though it was held to be torture in a Vietnam era courtmartial, in 1968, and correctly so) I have no doubt that Zarqawi would want to die the death of a martyr, to suffer torture at our hands, to have his plight be used as a recruitment poster for al Qaeda throughout the Islamic world. And let's consider what such a step would say about us as a people. It would undermine our military traditions and values; in fact, it already has. Any historical study of the practice shows its contagion - reaching for torture in such a case is opening the door to corruption. As the founder of law of armed conflict studies in America wrote, "such a state of things results speedily, too; for all growth, progress, and rearing, moral or material, are slow; all destruction, relapse, and degeneracy fearfully rapid. It requires the power of the Almighty and a whole century to grow an oak tree; but only a pair of arms, an ax, and an hour or two to cut it down."
I value our traditions and am concerned about those who want to serve today and preserve a concept of honor in so doing. I mean Ian Fishback and Ted Westhusing, one a model officer, the other the Army's leading ethicist, and thousands like them. This ill-conceived attempt to break established doctrine does us great harm.