COUNTERCOLUMN: All Your Bias Are Belong to Us

An e-mail from a reader. It's long, but it's efficient and extremely well thought out, so I'm going to post it in its entirety. And I'm not going to make life more difficult than it already is than by italicizing the whole thing. So there. :)

To your two points: First, you are absolutely right that the
Geneva Convention does not apply to ragtag, non-uniformed anti-
American militia. However, it may apply to ex-members of the Iraqi
army who still see themselves as in active service. LOAC (Laws of
Armed Conflict, the updated version of what used to be called the
Law of War) is not my specialty, or I'd be able to give you a more
definite answer. In any event, though, the equivocation on the
Geneva Convention masks (intentionally and inappropriately) a
larger point. The detainees may not have POW rights, but they
still qualify for human rights (admittedly, some of them only
qualify as human on a technicality, but that's all they need).
They have the right not to be tortured, and trying to cloud the
issue by insisting they do not have POW status is wrong and harmful.

Second, I am very glad you look at the issue from a policy
perspective. What distinguishes you from many other commentators
is that you have a sense for how a certain set of rules would work
in practice, in the specific work environment that characterizes
our forces in Iraq. This is a critical perspective, and I am glad
you are drawing on it and sharing it with your readers.

I would invite you to consider, however, that a blanket ban would
not necessarily lead to decisions being made at the lowest level.
Imagine you were a very junior, inexperienced interrogator, facing
the prospect of a torture conviction if you miscalculated. Your
reaction: "If I'm going to jail, I'm taking my captain with me."
Right? Doesn't this seem like the natural reaction for an enlisted
man in that position? Enlisted personnel in a position of
uncertainty instinctively turn to their officers; having been both
a corporal and a lieutenant, I can attest to that.

So what's the captain's reaction? Consult the most grizzled,
experienced interrogator NCO he can get his paws on - someone like
Chief Wiggles. The senior interrogator will have enough decades of
experience to know when a particular method of torture might be
ineffective or unnecessary. More generally, the senior
interrogator will know how to squeeze out the maximum amount of
information with the minimum amount of hard coercion - and will
have the credibility to convince a jury of that. And both the
junior interrogator and the captain know it.

But this doesn't depend on the junior interrogator taking the
initiative to call the higher ups. The captain will be deemed to
have command responsibility - if unjustifiable torture occurs on
his watch, his freedom is on the line. So, the captain will keep a
close watch on the interrogations, probably giving a standing order
to call him in before starting any interrogation session that
includes the use of torture, so he can keep tabs personally. In
other words, the people with the ability to pull in the relevant
experts (i.e. the captain, who can send for the weathered NCO) have
an incentive to do so.

But it doesn't stop there. The lieutenant colonel in charge of the
overall interrogation facility knows that, in a trial, the SOP
folder is going to be one of the prime exhibits. So she'd better
write an SOP for torture that codifies exactly when torture can be
used, and specifies circumstances that will likely bear a striking
resemblence to the sort of circumstances that would legally qualify
as "necessity".

I could go on, but you get the point. Higher command echelons
*will* scrutinize the use of torture, not only because it is the
right thing for them to do but because the mechanics of a blanket
ban will incentivize them to do so. Procedures *will* be
developed, relevant experts *will* be consulted. Of course, the
proof of the pudding is in the eating; so, I remind you of my
earlier comment, about this being the solution adopted by the
Israeli legal system. This hasn't stopped the security services
from providing awesome HUMINT; whether it led to more rampant
torture I cannot say, but Israeli courts are considered pretty good
on human rights, so I think we'd have seen torture convictions if
there were unjustified instances of interrogation.

You suggest that adoption of such a policy would be a shirking of
leadership responsibility on the part of the President. I don't
agree. An articulation of this policy - explicitly stating that it
is expected there will be cases that qualify for the "necessity"
defense - would provide authoritative grounding for the work
echelons. Of course, if military prosecutors developed a handbook
with guidelines on what constitutes "necessity" in their view, with
examples, that would be helpful. If the President directed the JAG
Corps to develop such a handbook, that would be nice. Ditto for
civilian prosecutors (Dept of Justice). But keep in mind that
states can choose to prosecute their citizens based on state law,
regardless of what the federal level does. The idea here is that
the President can help clarify what qualifies for the necessity
defense (as far as federal prosecutors are concerned), without
disturbing the general blanket ban on torture.

Suggested Reading: This white paper entitled

My response:

This reader's points are certainly well taken. My own response remains, however, that at the policymaker's level, a ban on torture with the explicit recognition--even the expectation--that there will be certain cases where torture is "necessary" is not a ban at all.

I'm actually coming to reexamine an idea I once rejected out of hand--the suggestion Alan Dershowitz floated a few years back, in his book "Why Terrorism Works" to employ the use of "torture warrants."

I originally dismissed the idea out of hand as monstrous. But Dershowitz's solution--in which Executive Branch officials such as military or law enforcement officials are required to obtain a warrant from the judiciary prior to using a specific set of techniques--is starting to seem workable.

--It recognizes the rights of the many to go on living who would otherwise fall victim to an unthwarted terrorist attack. And thereby passes the "Doctrine of neccessity" test.

--It keeps the decision away from the hands of the most junior government officials, and the ones closest to the fight, and therefore the ones most likely to have their emotions clouding their judgement.

--It preserves the separation of powers.

--It recognizes the rights of the accused, in that he would receive some due process. The Bowden solution--in which interrogators must assume all legal responsibility for the use of these techniques--ensures that due process procedures would be essentially nil.

--It preserves the integrity of the executive branch. The president or his representative can, indeed, issue a blanket ban "except where required by law."

--It ensures the decision to press the interrogation to this level will be made by officials who have sufficient access to multiple pipes of intelligence. An interrogator in Baghdad may not have access to information coming from interrogations elsewhere in the world. What he perceives as 'neccessary' because it's damn important in Baghdad may not be deemed all that important at higher levels.

--It ensures that the Doctrine of Neccessity" is somewhat uniformly applied. Specific standards can be drawn up, and the practice will soon develop its own case law which can guide us in developing our expectations. And more importantly, setting limits.


I would suggest that the use of the torture warrant--along with a very high legal standard of neccessity--will actually decrease the likelihood of abuses. And for the vast majority of detainees, it will markedly increase their quality of life, since they will not be lumped into the same category at all as "warranted" persons.

Splash, out,

Jason

P.S., Here's a useful take on the matter, which agrees more with the reader than me:

Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience