Saturday, December 06, 2003

The West Case and the Politics of Torture 
I have written on this page that loyalty to your troops and loyalty to your boss isn’t enough: "You also owe loyalty to your mission, to your boss’s mission, to the theatre commander’s mission, and to the democratic principles of the republic you are sworn to defend.”

That last point wasn't a throwaway.

Enter lieutenant colonel Allen B. West, a former battalion commander with the 4th Infantry Division, which operates in and around Tikrit. LTC West is facing court martial on charges of using threats or psychological torture while interrogating an Iraqi police officer suspected of conspiring with others to assassinate LTC West and his personal escort.

Details here.

What surprises me is that all the media stories about this incident I’ve read seem to be treating the incident as though the use of force or threat of force to extract information from prisoners is a novel issue. It is not. Tyrannies need not bother with navel-gazing on the subject, but among free societies, the ethics of torture have been a knotty problem for military, intelligence, and law enforcement for years.

The first thing to bear in mind is a matter of pure pragmatism: Information provided under torture is historically unreliable, because the prisoners under torture are liable to say anything it takes to get the torture to stop. In West’s case, the suspect did, in fact, name his alleged co-conspirators. But I’ve found no mention of any physical evidence corroborating the coerced testimony of the suspect.

That’s not to say no corroborating physical evidence exists—I just haven’t seen the press push the Army to present it.

Torture Warrants?

Alan Dershowitz—who’s got a lot of credibility as a powerful advocate of defendant’s rights, has floated the idea of ‘torture warrants.’
They’d work like this: investigators who believe that a suspect has information which will save the lives of innocent people could apply for a warrant to a judge to apply some sort of coercion in order to force the information. The officials would have to convince a judge that a ‘ticking time bomb scenario’ exists, and that the state’s interest in protecting innocent lives trumps the prohibition of torture.
Although the federal judiciary branch is, by design, not immediately accountable to the electorate, torture warrants would preserve the separation of powers, preserve the flexibility of the state to defend its citizens against the ticking time bomb, and provide a useful check on the power of law enforcement or intelligence officials.

It would also put a thin veneer of due process on a monstrous practice.

The Command Climate

George Bush’s guidance is extremely clear. The use of torture and the abuse of detainees will not be tolerated.

The President has not, at least publicly, made any exceptions for the ‘ticking time bomb’ scenario.

I’ve got a secret clearance, but I can tell you that I’m not aware that there’s been any behind-the-scenes exceptions to the policy, either, with the possible exception of sleep deprivation protocols.**

It’s already been reported that the US has made a practice of transferring Al Qaeda suspects to Jordanian and Egyptian officials—in full knowledge that their government’s policies concerning coercion are nowhere near as restrictive--and letting them handle interrogations on our behalf.

The Geneva and Hague conventions make no exception for the ticking time bomb, but as the Attorney General has been careful to establish, they also do not provide the same level protections to terrorists, spies, or criminals as they do to captured uniformed service members.

**When we first arrived in Iraq in May, some of our soldiers were temporarily detailed as guards at the prisoner detention facility at Al Asad. They were under orders not to let the detainees sleep—if any detainees fell asleep, our troops were instructed to wake them every half an hour by pounding the pavement near their heads with a sledgehammer.

The Army of the Republic

Enter the military justice system. West himself admits that he knew his actions were in violation of the laws of land warfare. But that’s why we have juries. Juries provide the final line of defense against poorly crafted or unrealistic laws or guidelines. When West’s case is presented in a court martial, the jury is going to have to consider everything that our politicians won’t, or can’t.

 Does this case warrant consideration as a ‘ticking bomb scenario?’
 Should we consider a ‘ticking bomb’ to be a mitigating factor?
 Since the conspiracy was against LTC West personally, should we consider his actions as taken in self defense?
 If we allow killing in self-defense, does it then follow that we should allow otherwise illegal actions short of killing?
 Does ‘self-defense’ extend to the protection of soldiers under the accused’s command? If so, can we extend this without awarding higher ranking soldiers a ‘blank check’ to commit other acts of torture or coercion?

It’s pretty clear to me that LTC West’s actions should not go unexamined, and we need a formal and deliberate process to do that. A court martial seems reasonable in the short term. But now that we confront the spectre of weapons of mass destruction in the hands of unaccountable terrorist organizations such as Al Qaeda, it is time for us to take a long, hard look at our policy.
This is not a question that should be left to civil service and law enforcement careerists and policy wonks. Nor is it a question that should simply be left up to commanders in the field without clear guidance about what the people of the United States are willing to sanction. Our Army serves a democratic republic, and is subordinate to its civilian leadership, which itself is subordinate to the people.
In the end, question of coercion, the question of torture, is a question for all of us.

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