Wednesday, May 6, 2009

...By Any Other Name

Student: So I read a recent report recently, that said that you did a memo. You were the one who authorized torture to the—

Condoleezza Rice: Is that what you read?

Student: I'm sorry. Not torture. I'm sorry.

Rice: Thanks.

Student: Waterboarding. Waterboarding.

Rice: Uh huh.

Student: Is waterboarding torture?

Rice: The president instructed us that nothing we would do would be outside of our obligations—legal obligations—under the convention against torture. So that's —And by the way, I didn't authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization subject to the Justice Department's clearance. That's what I did.

Student: OK. Is waterboarding torture in your opinion?

Rice: And I just said, The United States was told, we were told nothing that violates our obligations on the convention against torture. And so, by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.

Knowing that the word "torture" is a sure way to surrender the charity of public opinion, Rice takes a legal path to the technical censure of its applicability. Does such censure end the argument? Let's say it's true, that presidential approval is sufficient to keep something from being called torture. Does that mean that a severed finger isn't technically torture, and that any argument that calls it torture is using a slick tactic?

The use of torture in the argument is not a dirty trick or a cheap shot. Because anyone who disagrees with the label can simply choose to ignore the conclusions and focus on the terms, as Casey has done on the last post. But regardless of the term I use, even Casey isn't confused about the techniques I'm talking about. If he's read the Bybee memo and followed the discussions, he knows that I'm talking about certain techniques, and because he's a smart guy I'm sure he can figure that I'm focusing mostly on facial slaps, walling, sleep deprivation, and waterboarding. Those are techniques that are approved on paper. There's no doubt that other techniques as distasteful as sexual debasement, religious affronts, and techniques as violent as beating to the point of injury and even death took place. The death of Dilawar at the Bagram Air Base was not just the result of a careless interrogator. It was the result of a system that valued information from broken individuals, even questionable information from innocent individuals.

As we evaluate an administration we have to take into account those fruits of its philosophy, when we can see where that philosophy has encouraged disregard for certain values.

Is waterboarding torture? When the very techniques suggested are those that are used because they push an individual to the limits of surrender, then my use of the word is irrelevant. The US Code defines torture as severe physical or mental pain and suffering, and trials have proceeded on the premise that waterboarding is torture.

Alain Grignard serving with the Organization for Security and Cooperation in Europe, called Guantánamo model facility, but added that any indeterminate incarceration without informing them of their status or fate is "mental torture."*

The International Committee of the Red Cross in the Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody, categorizes the relevant treatment of detainees comprising the following "Methods of Ill-treatment" in individual sections under the following headings: Suffocation by water; Prolonged stress standing; Beatings by use of a collar; Beating and kicking; Confinement in a box; Prolonged nudity; Sleep deprivation and use of loud music; Exposure to cold temperature/cold water; Prolonged use of handcuffs and shackles; Threats; Forced shaving; Deprivation/restricted provision of solid food.

And the same ICRC report while referring to the treatment of Guantánamo detainees torture, says regarding the terminology:

The general term “ill-treatment” has been used throughout the following section, however, it should in no way be understood as minimising the severity of the conditions and treatment to which the detainees were subjected. Indeed, as outlined in Section 4below, and as concluded by this report, the ICRC clearly considers that the allegations of the fourteen include descriptions of treatment and interrogation techniques—singly or in combination—that amounted to torture and/or cruel, inhuman or degrading treatment.

That's the policy being defended. Those techniques, Michael Scheuer is willing to defend as appropriate even when they're not a last resort. If I don't get to call that torture, fine. I don't think I need to.

Whether or not the defenders of the techniques are comfortable with the use of the word torture, they have argued that techniques that are effective because they are unbearable should be allowed. I'm using torture to refer to any technique that is unbearable and is repeatedly employed with no attempt to attenuate that discomfort.

We are not talking about punishment for crimes that have been tried. These are not criminals in the legal sense. These are detainees who we expect can something for the United States: give information. Yes, my stance might be criticized as resting on "idealistic pacifist foundations." And yes, I am in many ways a pacifist. But I'm no more an idealist than those who would like us to believe that pain is the most effective way to get the information that will help us. I've heard both arguments. I have seen no convincing moral or pragmatic defense of such imposed suffering. Even tho Casey sees a possible defense because Inflicting discomfort obviously can be an effective measure, I don't see a defense available there. Call me an idealist. But even if I believed that an imminent threat was a reasonably relevant consideration, I hope I wouldn't view the evidence differently. And why should I?

If prisoners of war are to be held accountable for their actions, then make the claim and prove that they are criminals. But when they are off the battle field. When they are away from their resources. When they are under control, unarmed and removed from every institutional and affiliative power they have, there is one power that we can never take away from them: the power to remain silent. That is a power that we have to accept, no matter how frightening it is that their silence is not in our interest. The idealists are those who believe we can we control their values.

So what do we do to convince them not to be silent? Right now the debate has two parts. Those who are in disagreement have to navigate two courses:

1) Arguing for the proper reaction to what is done/has happened

2) Arguing for/against the defense of what is done/has happened.

The second course is absolutely necessary because in combination with the first, it is an argument for what we are willing to let happen.

* Imprisonment is not a single thing. So we would have to argue against different experiences with prison. Torture takes place in prison. And it takes place because of the system's accommodation of it, and disregard for the suffering of inmates. Honestly, that's another issue. If I was to address that, I would have to address corruption, public attention, politics then the death penalty, solitary confinement, the difference between punishment and excision. Simply put: I'm against the death penalty and I don't believe that imprisonment should have anything to do with punishment.


Casey said...

Good essay. Sorry if you felt like I "made" you be so explicit about all of this... but I appreciate it. This is much clearer than anything I've seen in the news lately. The definition involving "unbearability" seems very relevant to me, and sort of makes the entire case for me.

I still maintain, however, that I wouldn't want to be the ethical commander in chief, on the phone with an interogater who has a "ringleader" type sitting in a chair outside of Kabul in early 2002. I've read too much Machiavelli and Sun Tzu, I guess, to feel perfectly comfortable risking the lives of thousands of my innocent citizens for the sake of ethical principle.

I guess I'm just saying that if that wasn't a difficult decision, we wouldn't find it so compelling when we see it played out in thriller movies, 24 style. Fortunately, literature professors rarely have to make this kind of decision.

Justin said...

I'm glad you added the post note, because earlier comments and posts seemed to indicate that it would be a different matter if someone was convicted of something. And it is not necessarily a disconnected matter, that arrangement could lead to a railroad court for war criminals to convict them of something... anything... to justify mistreatment in pursuit of information. And it could be done, war crimes trials are not jury trials.

And I do agree that punishment shouldn't be part of incarceration, and shouldn't be the goal of sentencing. However, I do belief death should be a possibility. It is currently severely overused I would agree. But there are cases where the mere possibility of a convicted murderer ever escaping, or even communicating with the outside world, is simply to great a risk. If the extraordinary convicted murderer had escaped and committed murder again in the world, there should be a death penalty available. If convict involved in organized crime has been caught requesting murders from behind bars... the alternative is either violating their rights taking measures to disallow all outside communication... or... So my perspective is that it shouldn't be removed, but strictly reserved for situations where incarceration is insufficient to protect others and alternatives involve massive and continuous violations of other human rights.

The Ridger, FCD said...

You certainly are willing to toss ethics for survival. As long as you are upfront about that, I guess it's tolerable.

But anyone willing to do that has lost all claim to the moral high ground. He's put himself down on the level of the enemy, and therefore rendered it purely a struggle between metaphorical beasts.

I like to think my country is better than that. That some things are in fact worth dying for. And that torturing for them kills them as well.

The Ridger, FCD said...

Ummm. That was to Casey, by the way, in case it wasn't clear.