And Your Opinion Is....

President Bush on torture:

"A simple question," said one White House reporter during a Bush news conference last week.

"Yes?" said Bush.

"What's your definition of the word 'torture'?"

"Oh," said Bush. "That's defined in U.S. law, and we don't torture."

Asked for his personal definition, Bush replied: "Whatever the law says."

Attention law students: even when you're unprepared for a professor's question you no longer need to try to bluff or "pass" - you can simply answer, "Whatever the law says." And just think how much shorter your exam answers can be.

I am reminded of an exchange from law school in which a student kept insisting upon additional information and details before he would answer the professors's question. After about five minutes of back-and-forth, when it was obvious that no answer would ever be forthcoming, the professor gave up and expressed to the class, "Should you ever hire Mr. Jones as a lawyer you had best take a hammer to your appointment, so you can beat an opinion out of him."

Looking at answers given in response to simple questions by Bush, Mukasey and Perrino, among others, it occurs to me that the professor's comment might now be taken as a compliment - "You're highly qualified to work for the President."

A Lesson in History from Alan Dershowitz

As always, Alan Dershowitz "opposes" torture by arguing in favor of it.

This time around, Dershowitz writes,

There are some who claim that torture is a nonissue because it never works - it only produces false information. This is simply not true, as evidenced by the many decent members of the French Resistance who, under Nazi torture, disclosed the locations of their closest friends and relatives.

Well, there you go. It was good enough for the Nazis, so it’s good enough for Alan. (And we all know how important it was to the Nazis that they received accurate information such that they wouldn’t accidentally pick up and torture a confession out of an innocent Frenchman, thereby generating a list of other innocents to pick up and torture....)

But we can thank Dershowitz for this: Finally we know why the Nazis won WWII, and why we must embrace their winning tactics.

Mukasey and Petards

If being hoist on your own petard is an illustration of your bad acts coming back to haunt you, is being hoist on somebody else's petard a form of torture? You can mull on that if you wish, but don't ask Michael Mukasey - he hasn't been briefed.

Robert Farley (somewhat crudely) explores the question of whether it is necessary to be briefed before you can identify something as torture, but I saw something else in Bush's remarks:

I believe that the questions he's been asked are unfair; he's not been read into a program - he has been asked to give opinions of a program or techniques of a program on which he has not been briefed.

This comment to me says one of two things: Bush is stupid, or Bush thinks that a majority of the American people are stupid. Do you need to be briefed to know that being given a hot meal and a pillow to sit on is not torture? Do you need to be briefed to know that having your joints smashed with a sledgehammer is torture?

If Bush is trying to make the case that waterboarding falls into a nebulous middle ground, such that there are legitimate questions as to whether or not it is torture, he should make that case. Apparently even Bush's best speechwriters can't find a way to make a purse of that pig's ear. As he can't make an honest case, (like usual) he treats the American people like a herd of mindless sheep, willing to (continue to) lap up his deceptions and evasions. And many seem happy to do so.

The Washington Post, which has been squarely in the Mukasey camp since day one, argues,

It is extraordinary that a man who rightly would have been confirmed with overwhelming support had he been President Bush's first nominee for attorney general may now be denied that post in the waning months of the administration

Well, here's something to consider - does anybody think that Mukasey would have evaded the question of whether waterboarding was torture back in early 2001? If he was asked a question as to whether under his leadership the Justice Department would investigate credible allegations that a federal law enforcement agency had waterboarded suspects, would he truly have said "no", or "I have to check to see if that's an acceptable form of interrogation"? And if he had, would his nomination not have gone down in flames?

The difference, of course, is that the Bush Administration has waterboarded suspects, and thus the necessity of evasion - if Mukasey answers in a manner consistent with past American policies, legal and military precedent, and common sense, he could be categorizing those past actions as crimes. If he answers "no", even John "Let him answer that question after he's confirmed" McCain might have to break down and vote against him.

Bush's implied threat that he won't send another potential nominee to Congress if Mukasey isn't approved? That to me sounds like reason to reject Mukasey. If Bush is that confident that Mukasey, fully briefed and informed on waterboarding, will either come down on the "no, it's not torture" side of the debate, or will otherwise sweep the issue under the carpet, suggests that Mukasey is being dishonest with Congress. It also reveals a Bush litmus test for candidates - "You can't say that waterboarding is torture", as otherwise he wouldn't have much difficulty coming up with an alternate nominee. Sending a succession of people as evasive on the subject as Mukasey would simply serve to highlight the Bush Administration's mendacity on this subject. (Which, as Glenn Greenwald points out, is not to say that Congress is much better.)

If Bush were an honest man, a courageous man, or a man of integrity, he would stand behind his actions and either declare that waterboarding is not torture, or that during its period of use he believed it was necessary to use torture as part of his "War on Terror". Don't hold your breath.

Is Torture Really That Hard To Understand

Apparently so.... The inspiration for my last comment was a blog post in which the author explained why he didn't speak out on the subject of torture.

The case of torture is a good example of the limits of my knowledge. For the reasons outlined by Charles Krauthammer, I do not believe that torturing captured terrorists to obtain information is always wrong as a matter of principle. But I don't have anything original to add to his moral argument, so I haven't blogged about it. In any event, I don't think that arguments about intrinsic morality are enough to resolve the issue. To me, the crucial question is whether we can effectively confine the use of torture to the rare cases where I believe it to be justified and prevent it from "spilling over" onto non-terrorist prisoners (as probably happened at Abu Ghraib), ordinary criminals, or even innocent civilians. A second important question is that of how much valuable information can really be obtained through torture that we could not get otherwise. Because I don't know enough to give a compelling answer to these two crucial questions, I don't have anything useful to contribute to the debate over the issue.

I deem that paragraph reasonable in part, and unreasonable in part. But then, anybody who cites a demagogue like Charles Krauthammer as an authority probably shouldn't be claiming any appreciable understanding of the issue under discussion.

The Krauthammer editorial divides the world of war prisoners into three categories:

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. * * *

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.

But, Krauthammer adds, we're going to treat him pretty well anyway because we're so nice. (I'm not sure how that helps us if, say, a civilian contractor working in Iraq is captured - under Krauthammer's dichotomy as he's not an "ordinary soldier" he must be a "captured terrorist" entitled to no protections whatsoever. Does anybody recall how Krauthammer reacted to the atrocity in Fallujah?) And then Krauthammer collapses his house of cards:

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?

This is a wonderfully stupid example, evidencing perhaps only that Krauthammer watches too many action movies. If in fact you know that you have captured a terrorist who has specific knowledge that will let you save a million lives, and he won't talk, I think we're in a situation where the vast majority of people would agree that a tipping point has been reached, and we can use pretty much any means of interrogation to try to get that information. The odds of this actually occurring? Pretty much zero.

But why is it different if we suspect that an "ordinary soldier" has equivalent knowledge, which if obtained could save hundreds of thousands or millions of civilian lives? What if the soldier has information which would enable us to disable key defense systems of the enemy state, bringing a quick end to a war that would otherwise drag on for years with high levels of civilian casualties? What if the soldier has information which would enable us to disable or destroy key offensive weapons systems, such as a network of nuclear-tipped missiled which are aimed at our major cities? What if the soldier has information which would enable us to prevent an enemy military assault on one of our cities? We torture the terrorist to get that type of information, but let the "ordinary soldier" enjoy the quiet dignity of a POW camp that is in complete compliance with the applicable Geneva Conventions?

Krauthammer further explains, sure, that the nuclear aspect is fanciful - but that you should also be able to torture to find out about the terrorist's knowledge of a possible car bomb at a coffee shop. This is supposed to make his rationale for torture more sensible? Then he speaks of the valuable information that might be tortured out of somebody like Khalid Sheikh Mohammed. This is supposed to help us understand why, if captured, the Chairman of the Joint Chiefs of Staff should be excluded from torture?

Please don't get me wrong, here - I know that, despite his effort to couch his argument such that it might appear otherwise, Krauthammer is not trying to actually differentiate when torture should and should not occur. Instead, he is trying to set up a framework through which he can argue that the nation states he likes, which are embroiled in conflicts with forces not part of a state military, cannot torture our troops, but why we can torture theirs. It's a contextual argument - the U.S. in Iraq and Israel in the occupied territories. It's a legalistic argument - if you accept his interpretation of the Geneva Conventions, we're not breaking the law in torturing anybody who is not an "ordinary soldier" and are in no way hypocritical when we decry the wrongful touching of even a single hair on one of our soldier's heads. And it sidesteps moral questions about torture through this narrowing of the context in which he argues for torture to occur.

Krauthammer does propose limits on torture, but gives his full blessing to the torture of "(1) the ticking time bomb and (2) the slower-fuse high-level terrorist (such as KSM)". How do you know somebody is a ticking time bomb? You guess? You torture them a bit until they admit to being a ticking time bomb, then torture some more until they tell you where the bomb is (whether or not it exists)? And again, if we can torture their captured leaders to determine "terroristic" plans, why can't the other side torture our leaders to determine what we define as military plans?

Krauthammer's best - no, his only - example of the "ticking time bomb" relates to a Palestinian who, a dozen years ago, was tortured until he revealed the location of a single Israeli hostage, who was recovered. How exactly is this Palestinian a "ticking time bomb"? I won't argue that recovering the hostage unharmed was anything but a good thing. But is there any evidence or precedent which would have suggested that those holding him hostage had any intention to do him harm, as opposed to attempting to use him as a bargaining chip for a prisoner exchange? This is the best and only example? (Yet you would have to be pretty darn stupid to believe that this was the only incident where somebody was tortured on the suspicion that they might be a ticking time bomb.)

Moving from Krauthammer's situational sophistry to the blindingly stupid, let's take a look at the confusion of Jonah Goldberg:

I think it is a perfectly defensible and honorable position to claim that waterboarding, sleep deprivation etc. amount to torture. I don't think I agree with that view. But I certainly believe it is made in good faith. But the good faith ends when the same people then issue blanket and sweeping assertions that the people who want to legalize those actions are simply pro-torture. If the legalizers were simply pro-torture they would favor hot pokers, iron maidens, finger-nail-yanking and the rest. And the people supporting the use of waterboarding (in a tiny number of cases) aren't doing that. Not only do they think they're not in favor of torture but they objectively oppose things they consider to be torture. So even on the "anti-torture" crowds' own terms, the worst that could legitimately be said is that Bush wants to legalize "some torture" while banning most kinds of torture.

We can reasonably assert that for most people, a more accurate term than "pro-torture" would be "in favor of the minimum level of psychological and physical coercion that will cause a suspect with potentially highly valuable information to provide accurate disclosure of that information." For some, they would just as soon use the hot pokers and don't much care what the prisoner knows - they endorse torture for torture's sake - but the're peripheral to this debate.

Goldberg carefully detailed his list of "things that aren't torture" as "waterboarding, sleep deprivation etc." - I'm not sure that even the Bush Administration remains willing to share his "it's not torture" perpsective on waterboarding. But I will guarantee that I can create a context in which Mr. Goldberg will agree that sleep deprivation constitutes torture, if he's willing to undergo the type of sleep deprivation regimen we're talking about in this context. Or, for that matter, waterboarding.

Further, in a true "ticking timebomb" case - Krauthammer's nuclear bomb in NYC - I don't think that anybody is going to get into the niceties of whether or not we can use "finger-nail-yanking". If what we're really doing is drawing the outline for what constitutes reasonable interrogation of a suspect, we're doing something quite apart from determining the outer bounds of what we can or should do if we truly have a "ticking time bomb" in custody. And this implicates Krauthammer's complaint about the (now-abandoned) ban on torture once proposed by Senator McCain - it means you have to break the law in such a case. I think the Senator McCain of that time would have responded that yes, you have to break the law, but if you do so justifiably you will be protected by virtue of the President's pardon power, and that people are far less likely to cross the line if they risk prosecution. Does Goldberg truly believe that we can't use "finger-nail-yanking and the rest" to save a million civilians from nuclear incineration? If he does, what makes him different than those on the "other side" of the debate, other than his drawing a slightly different line on what constitutes permissible versus impermissible interrogation? If not, then in fact he doesn't stand by the distinctions he describes.

As for "iron maidens".... Where Krauthammer seems to get his understanding of the terrorist threat from action movies, what is Goldberg watching? Conan the Barbarian? The Beastmaster? I am at a bit of a loss as to how an iron maiden could truly be used to obtain useful information from a suspect - let's see... we inflict mortal wounds and while the subject exsanguinates we'll ask some questions. Brilliant. I can understand how somebody might be psychologically intimidated if shown an iron maiden and convinced that if he doesn't talk he'll be placed in it, but I somehow doubt that Goldberg would object to such a use.

Fundamentally, what Goldberg is arguing is that he favors methods of interrogation which are neat and clean - where you don't have to mop anything more offensive than perhaps some urine or excrement from the floor afterward, and the suspect doesn't end up with lacerations, avulsions, hematomas, puncture wounds or broken bones. Torturers of the modern world have long been aware of these western sensitivities to blood and guts, and have devised tortures which leave a prisoner looking reasonably physically sound to an outside visitor.

Sticking To the Moral High Ground

Alan Dershowitz reminds me not that he's a world-class idiot, but that he knows exactly what he is doing in making his various disingenuous arguments on U.S. foreign policy. You know what, Alan? I like coming from a nation which has, although less frequently under the current President, often chosen to take the moral high ground, sometimes at its own detriment. You make it clear enough with your tortured advocacy for torture that there is no value of this nation you won't sacrifice in the name of your personal political causes.

Israel can and does make its case that its torture qua "moderate physical pressure" of Palestinians is necessary for its defense. If it believes that, and you believe that, fine. But in the torture debate you intentionally sidestep the political aspect - dare I say motive - for your argument. Instead of presenting an honest evaluation of the issues, your contrivances offer a fig leaf to those who don't much care about the externalities of torture. To the extent that the U.S. has engaged in torture (qua "abuse" and whatever we now call such acts of "interrogation" as waterboarding) in Iraq, authorized or not, there is clear evidence that the acts have severely diminished our status internationally and substantial evidence that they have set back our cause in the Middle East and Iraq. Is that what you wanted? Or is it that you didn't care, because your real goal is to undermine the ability of the U.S. and its citizens to condemn torture?

And now you play the other side of the coin. As a world-class hypocrite you are no doubt very capable in sniffing out even the slightest hypocrisy of others. But really:

When Israel targeted the two previous heads of Hamas, the British foreign secretary said: "targeted killings of this kind are unlawful and unjustified." The same views expressed at the United Nations and by several European heads of state. It was also expressed by various Human Rights organizations.

Now Great Britain is applauding the targeted killing of a terrorist who endangered its soldiers and citizens. What is the difference, except that Israel can do no right in the eyes of many in the international community. Surely there is no real difference between Zarqawi on the one hand and terrorist leaders from Hamas and Islamic Jihad on the other hand.

But wait a minute.... you really don't see a difference? As I've previously stated, I don't believe you are a world-class idiot, which... well, sorry to say it, means that you're not telling the truth. And in presenting your distortion, I think you undermine your case.

You see, a case can actually be made for assassinating the active leaders of terrorist groups - particularly a hierarchichal terrorist group. Such assassinations have, in the past, thrown terrorst groups into disarray. This makes the case for the assassination of a Hamas leader in some ways stronger than the case for the assassination of somebody like al-Zarqawi, as Hamas is much more hierarchical (at least in its political branches) than Al Qaeda. Although we can hope it does, it isn't immediately apparent that al-Zarqawi's death will reduce violence in Iraq.

But there are counterpoints. There is a possibility that the U.S. could have launched an armed raid on al-Zarqawi's hideout, perhaps capturing him alive and taking him into custody. But apparently, in what would be a perfectly reasonable assessment of the situation, military commanders determined that it was not worth the risk to the lives of U.S. troops. What did U.S. troops do when they found al-Zarqawi alive after the bombing? They administered emergency medical care. This, Alan, was a military operation, not what you would call a "targeted assassination" - while even Bush admits his words were crude, in his parlance we wanted al-Zarqawi "Dead or Alive".

I recall reading a Ha'aretz article a few years ago about a commando raid on a Palestinian man's home. He answered the door in boxer shorts. They confirmed his name (first and last) and then shot him dead. What you would deem a "targeted killing". Ha'aretz pointed out that the raid was apparently intended to kill somebody who had the same first and last names, but a different middle name. Nobody questioned the fact that the man could have been taken into custody. Nobody claimed he was a high level operative or "head of Hamas". While Israel did exercise due care to avoid killing people other than this particular man, and deserves credit for that, it nonetheless remains the case that they could have just as easily taken him into custody where issues as to his identity could have been resolved, and where he could have been put on trial in a court of law.

An Israeli newspaper found cause to question that particular killing, Alan. Perhaps you are just as critical of Ha'aretz as you are with those in Europe or the United States who take issue with the policies behind that killing, but this fact remains: You know about this type of incident, you know that there is an enormous difference between the attack on al-Zarqawi's hide-out and Israel's policies of "targeted killing", and you are being intentionally misleading.

You mention the killing of Sheikh Ahmad Yassin by Israel, in what was a relatively clean missile strike, but you make no mention of the strike ordered by Ariel Sharon on the Hamas military leader Salah Shehada. That killing was quite comparable in many ways to what happened to al-Zarqawi - a one ton bomb dropped on his suspected hideout, as compared to the two five-hundred pound bombs dropped on al-Zarqawi's. But Shehada was in a densely occupied civilian neighborhood, and the bombing killed fourteen other people, including nine children between the ages of two months and nine years. I know you remember that one, Alan, because it had to stick in your craw when the George W. Bush White House expressed through Ari Fleischer, "this heavy-handed action does not contribute to peace."

Now before you go nuts telling me that in criticizing you and your impassioned defense of Israel, I am somehow condoning terrorism or attacking Israel, let me cut you off. I am doing nothing of the sort. The fact that you drag Israel into these discussions does not make it the fault of others that they cannot respond to you without also addressing your points of comparison. Israel's making tough choices in a tough situation - I can disagree with those choices, and even believe that some of them are counter-productive, while recognizing that my preferred alternatives may well be no more productive in terms of either ending the conflict or advancing peace. But you? Your bloated posterior is ensconsed in a leather chair in your air conditioned office at Harvard, where you devote your time to presenting disingenuous arguments based upon intentional misrepresentations of fact. Personally, I think nations are better served by having sympathetic critics who urge them to stick to the moral high ground, than to have sycophantic dissemblers pushing them down the low road.

No offense.