Jun 22, 2005
Torture, Evidence, and Rule of Law
Ed Brayton of Dispatches from the Culture Warswrites,
My problems begin with the first sentence of these quoted paragraphs: If coercive and abusive interrogation techniques are being used on someone who can genuinely be called a terrorist... [then] I have trouble working up much sympathy.
In reply I have a simple question: How exactly does the American system of justice determine guilt or innocence?
Americans judge guilt and innocence in an open court of law, following well-established procedures based on tradition and statute. Before anyone" can be called a terrorist," with all the legal penalties thereof, they must first pass through this system--and be found guilty. Until then, the law and its agents must treat them as though they were innocent. Nor is this treatment negotiable. It's precisely what we are (supposedly) fighting for.
Now if indeed we are abusing terrorists, then at least conceivably their crimes might merit corporal punishment. Yet these individuals have not been convicted, they have not even been tried, and, at least to my knowledge, there is no legal authorization for the punishments they have received, which sometimes include being beaten to death. I may have trouble working up sympathy for terrorists, but I have great sympathy for the rule of law--and I fear that this, too, is being beaten to death.
Now these may seem like petty, legalistic arguments, and I'd freely concede that in some sense they are. But there is another reason, far graver and more practical than these, why the United States has no business torturing detainees: Torture doesn't work.
It may be utterly satisfying to beat someone when we ourselves have been hurt. Heck, I won't lie to you here: It is satisfying. It feels wonderful. And deep down, this is exactly why people torture.
But let's take a step back from the abyss here, and consider the victims of torture. Guilty or innocent--it hardly matters--these victims eventually learn that the beatings will stop when the torturer is happy again. Now the surest way to make a torturer smile is to gratify his delusions, to give him the sense that his work has been efficacious, and to convince him that he has, through torture, defeated the plots of his enemies.
In short, the torturer happiest of all when he hears the story that he already wants to hear. Torture produces little or no useful information. Mostly it produces fantasies that are negotiated at the crack of a whip.
I don't need to tell you, Ed, that historically, torture produced the appalling show trials of Stalin and Mao, in which ordinary citizens confessed to the most absurd delusions of their captors: Russian factory hands admitted to being Lithuanian saboteurs; lifelong communists avowed that they had secret loyalties to the czar; Chinese peasants even confessed to being capitalists. And with that, the beatings stopped.
Back in my own era of expertise, torture also produced the witchcraft trials of the early modern period, in which women--and sometimes men--learned that they could go free if only they confessed to flying through the air at night and worshipping the devil. Yes, a confession quite often meant freedom, but it also perpetuated the system whereby those who refused to confess were burned at the stake. In no case did it produce any meaningful knowledge.
To the degree that we have approached these horrors, the United States has done wrong. We are not yet a Stalinist regime, but the gap between us and them has narrowed unacceptably. It's time to hold ourselves to a higher standard--if, that is, it's not too late.
[Crossposted at Positive Liberty.]
If coercive and abusive interrogation techniques are being used on someone who can genuinely be called a terrorist, someone who would fly a plane into a building full of innocent people or engage in suicide bombing, I have trouble working up much sympathy over it and I suspect most other people can't feel any at all. If those techniques used on such people are effective in getting information that may prevent such attacks, who could reasonably oppose them? But I have no way of knowing if they are effective in doing so, and neither does anyone else here.Because Ed is one of my closest blogfriends, I trust that he will not mind if I take him to task.
But I'll say this - they better be worth it. If we are not getting specific and credible information that is genuinely and directly helping prevent further attacks, then it is not worth the damage we are doing to our international standing and our ability to occupy the moral high ground. I understand that this is a catch-22 for the government to some extent - if they don't prevent attacks, they get criticized and if they act aggressively to prevent them, they get criticized. But I'm also concerned, as [Andrew] Sullivan is, about the migration of techniques whereby interrogation tactics that should be reserved only for those with real operational knowledge to be extracted are used against low-level, run of the mill detainees who don't know a thing.
My problems begin with the first sentence of these quoted paragraphs: If coercive and abusive interrogation techniques are being used on someone who can genuinely be called a terrorist... [then] I have trouble working up much sympathy.
In reply I have a simple question: How exactly does the American system of justice determine guilt or innocence?
Americans judge guilt and innocence in an open court of law, following well-established procedures based on tradition and statute. Before anyone" can be called a terrorist," with all the legal penalties thereof, they must first pass through this system--and be found guilty. Until then, the law and its agents must treat them as though they were innocent. Nor is this treatment negotiable. It's precisely what we are (supposedly) fighting for.
Now if indeed we are abusing terrorists, then at least conceivably their crimes might merit corporal punishment. Yet these individuals have not been convicted, they have not even been tried, and, at least to my knowledge, there is no legal authorization for the punishments they have received, which sometimes include being beaten to death. I may have trouble working up sympathy for terrorists, but I have great sympathy for the rule of law--and I fear that this, too, is being beaten to death.
Now these may seem like petty, legalistic arguments, and I'd freely concede that in some sense they are. But there is another reason, far graver and more practical than these, why the United States has no business torturing detainees: Torture doesn't work.
It may be utterly satisfying to beat someone when we ourselves have been hurt. Heck, I won't lie to you here: It is satisfying. It feels wonderful. And deep down, this is exactly why people torture.
But let's take a step back from the abyss here, and consider the victims of torture. Guilty or innocent--it hardly matters--these victims eventually learn that the beatings will stop when the torturer is happy again. Now the surest way to make a torturer smile is to gratify his delusions, to give him the sense that his work has been efficacious, and to convince him that he has, through torture, defeated the plots of his enemies.
In short, the torturer happiest of all when he hears the story that he already wants to hear. Torture produces little or no useful information. Mostly it produces fantasies that are negotiated at the crack of a whip.
I don't need to tell you, Ed, that historically, torture produced the appalling show trials of Stalin and Mao, in which ordinary citizens confessed to the most absurd delusions of their captors: Russian factory hands admitted to being Lithuanian saboteurs; lifelong communists avowed that they had secret loyalties to the czar; Chinese peasants even confessed to being capitalists. And with that, the beatings stopped.
Back in my own era of expertise, torture also produced the witchcraft trials of the early modern period, in which women--and sometimes men--learned that they could go free if only they confessed to flying through the air at night and worshipping the devil. Yes, a confession quite often meant freedom, but it also perpetuated the system whereby those who refused to confess were burned at the stake. In no case did it produce any meaningful knowledge.
To the degree that we have approached these horrors, the United States has done wrong. We are not yet a Stalinist regime, but the gap between us and them has narrowed unacceptably. It's time to hold ourselves to a higher standard--if, that is, it's not too late.
[Crossposted at Positive Liberty.]