COUNTERCOLUMN: All Your Bias Are Belong to Us

Here's a well-reasoned email from a reader:

I think your criticism of Bowden's position - based on the extracts
you have quoted - is unjustified. What Bowden appears to be doing
is arguing for substituting one sort of wiggle room for another, in
a perfectly understandable way.

Basically, there are two major lines of defense a U.S. soldier
accused of torture could use.
1) I and my victim are not covered by the Geneva Convention or any
other anti-torture laws.
2) I had to do it to avert a larger harm.

Bowden doesn't like the first type of wiggle room, and condemns the
President's "equivocations on the terms of the Geneva Convention".
He much prefers the second type. Consider that the first defense
is available regardless of the soldier's conduct; the second is
available only when the interrogation really was necessary.
Therefore, the second type of wiggle room regime will have a much
greater, and beneficial, impact on soldiers' conduct than the first.

I don't think your response reflects this point. You say, "Bowden
is trying to have it both ways. One cannot recognize a moral
imperative to torture in the reasonable certainty it will save
lives, and then criticize a leader for coming to the same
conclusion."

But actually, one can. One can recognize the applicability of the
doctrine of necessity (wiggle room type 2) while criticizing a
leader for equivocating on whether the general anti-torture
imperative applies (i.e., trying to set the ground for a wiggle
room type 1 defense).

You write:

"The President has only two reasonable choices:

1.) Allow the use of questionable techniques in certain high value
cases, either overtly or tacetly--and thereby risk compromising the
integrity of the Geneva Conventions, or...

2.) Consistently prohibit any aggressive questioning altogether,
and thereby ignore the very moral imperative to save lives that
Bowden himself recognizes."

In fact, the President doesn't have to choose. He should
consistently prohibit all torture - no equivocation about whether
this treaty or that protocol applies - and then allow defendants to
use the doctrine of necessity. (Assuming this is the President's
choice to make, which is a gross oversimplification). Note that
using the doctrine of necessity will not risk compromising the
integrity of the Geneva Conventions, any more than the doctrine of
self defense risks compromising the integrity of the laws against
murder.

As a final note, it is my understanding that the solution Bowden
suggests is hardly his own. A blanket outlawing of torture, with
the understanding that defendants will raise the defense of
necessity in court, is the solution adopted by the Israeli Supreme
Court, whose moral experience and legal competence outweigh, I dare
say, Bowden's.

...Except that 1.) The Geneva Convention does not apply to illegal combatants and conspirators in the same way it applies to those who wear uniforms, bear arms openly, are under the control of a commanding officer, and are members of an organization who conducts itself IAW the law of war. And so in noting the difference, the Bush Administration is simply stating the obvious.

2.) As a matter of policy, it is almost impossible for the President or SecDef to take the position this reader or Bowden advocates. Either he will formally recognize the moral imperative Bowded describes, or he will not. Any policy which states that "all aggressive interrogation techniques are banned under any circumstances. See me to request an exception," is not morally any different at all from embracing the neccessity--the only difference is the level at which the decision is made.

If the President does what this reader suggests--consistently prohibit torture under any and all circumstances, and yet recognize the doctrine of neccessity, then he has simply ducked his responsibilities, and ensured that the decision would be made at the lowest level, by the least experienced personnel, for the same reason that abortion rights advocates fear that an outright ban on abortion would result in the rise of 'back-alley butchers.'

Those intelligence officials who take matters into their own hands risk having to explain themselves before a jury. This is no different from a strict ban at all, since defendants will seek refuge under the claim of neccessity anyway, and try to convince a jury of the soundness of their arguments, quite independently from whether the President chooses to recognize the doctrine of neccessity.

What I am trying to get at is that there is a huge difference between dealing with a moral question in the hypothetical, dealing with it in person, and dealing with it as an executive who actually has to set policy within a bureaucracy for other people to follow, and whose every decision has ramifications of precedent for future instances which cannot be forseen.

If the President, privately understanding the moral imperative hides his head in the sand and says 'boys, you're on your own!' then his policy is liable to actually result in more torture or abuse under the discretion of low-level officials under increasingly questionable instances of Bowden's doctrine of neccessity. It's an imperative the President understands, but paradoxically cannot express. Only the defendant will be able to express it.

And meanwhile the people at the bottom of the chain of command, the youngest and least experienced, and the people who actually do have to wrestle with the moral imperative, and weigh the human rights of the prisoner against an unknown probability of an unknown number of deaths, are forced to make these calls on the spot, and are thrown to the prosecutorial wolves because their leadership refused to make the decision?

No--our thinking is not yet adequate to address the question, although Bowden makes some important steps in the right direction.

I'm just not willing to let the senior political leadership duck its own responsibilities both to public safety and to the troops who actually have to do the interrogating.

Splash, out

Jason