The President remarked offhandedly today that he thought that the practice of waterboarding constituted torture.
I’m half hoping that he was obliquely admitting that the other techniques I referred to in Part I—specifically, stress positions, sleep deprivation, and cultural degradation—might be “legit”, even given Geneva restrictions. But I doubt it.
In any case, there are other, extra-legal objections raised against the use of “torture”, or “physical pressure”. The classic objection that “it doesn’t work” is usually attributed to Cesare Beccaria, who writes in “On Crimes and Punishments:"
“Speaking the truth amid convulsions and torments is no more a free act than staving off the effects of fires and water except by fraud…it [pain] leaves him no liberty but to choose the shorters route to end the pain for the time being.”
However, one can elicit justification for our “techniques”, even in light of this argument. In cases of terror, “torture” is used to elicit information unknown to both the questioner and suspect; the “victim” might say anything to stop the pain, but he knows that if he is proven to lie or having given misinformation, the increased likelihood the torture will resume. So it might be effective. Beccaria was generally talking about religious, or religiously-influenced, torture (“Confess!”), where the torturer was looking for a specific answer, irrespective of the actual truth, and the victim usually knew what his tormentor wanted to hear. That is not the case here; having a predetermined answer doesn’t help the interrogator save lives.
In Gray v. Lucas, 710 F.2d 1048, 1061 (5th Cir 1983), “accepting as true proffer that prisoner will remain conscious for period of time that will result in some pain and terror from method of execution” was deemed “insufficient as matter of law to require a hearing.” Pain and terror do not necessarily make a punishment “cruel and unusual”; punishment is supposed to “hurt”, in one form or another. The individuals undergoing “torture” are not material witnesses; they are dangerous participants in an ongoing conspiracy.
In a similar vein, if we’ve already granted that government can take your life and liberty, it should, albeit within very limited circumstances, be able to have a lien on one’s “dignity”. If this should include a cultural or religious degradation as a psychological tactic, that method should be legitimated in warfare, particularly when the enemy has used religious justification as a rallying cry: breaking that psychological hold might prove to be the difference in the game.
(One might even say that re-institution of corporal punishment in our penal system (on an adult level—NOT a child level) might actually impact recidivism. Certainly we should consider the public shaming of proven sex offenders (which we do already in a way, via Megan’s Law) or those who commit other violent offenses against children.)
Recently a New Yorker article opined that solitary confinement is tantamount to torture. That should actually serve to recommend its more widespread use., because it might actually prevent a) inmate on inmate crime and b) serve as a deterrent if it was used in extreme cases; c) certain defendants, especially those convicted of extraordinary crimes that fall under the aforementioned “extreme cases” (e.g. terrorist masterminds, mass murderers, gang leaders, organized crime leaders) should be held completely incommunicado for life as part of their punishment.
Is there a way to distinguish between “us” and “them” in the manner in which such practices are conducted? It needs to be conducted in a clinical manner both in interrogative and corrective settings, but especially with the interrogations: only those who are expert in the various psycho-physiological elements can make it work and elicit the live saving information. One might claim this becomes an issue of "preception-as-reality" and we therfore become like "them" even in such a case; I would differ, but in any case, the cat's out of the bag, if it wasn't before, and only the complete cessation of the practice of such "black arts" will serve as a salient distinction. That will never happen, however, because a) the "black arts" are such a part and parcel of "business practice" in the intelligence community and b) our intelligence services aren't that suicidal. (I hope.)
To provide a transition to my next missive—where I proffer that the top officials in Bush Administration sit in the dock for doing what I ostensibly recommend: I will say that they specifically did NOT do this, and left it up to their legal minions (e.g. Gonzalez and Yoo) to formulate the opinions that would keep their hands clean. Just as a final thought for now: I wouldn’t hold Yoo and Gonzalez directly responsible for their opinions. They were doing what their bosses (Bush, Cheney, Rumsfeld et al) wanted, even if unspoken. But I’ll get to that in the next post.
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