A bed of nails or a bed of roses

It's not fucking the goat to ask the question. It's fucking the goat to fail to answer the question in the unambiguous negative -- the moral, ethical, legal, and pragmatic arguments against torture are comprehensive and centuries old.

It's damn sure fucking the goat to assert that there are cases where torture is an acceptable thing to do, and to suggest a system where we would have legally permitted torture in the interests of accountability. That is what Dershowitz has done.

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xiphias.livejournal.com

Can you get me a link with context for that? Because, y'know, if the next line AFTER that one is, "Is that torture? Of COURSE it is, you dipshit!" then I'd be cool with it.

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Here's one where Dershowitz says the U.S. should legalize torture in order to have accountability.

Here's the one where he pulls the Gonzalez, 3:47 - 4:10. "Is that torture?" is the last sentence of the quote. It is clear from context that he is using the needle-under-the-nails as an example of something that should be permissible.

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The accountability question is a very important one.

The arugument goes like this: One "legalizes" it in the same way that self-defense is a defense to murder 2. Right now, it's wrong under all circumstances, making it always hidden. Make it a defense to the crime that there is a ticking bomb and that you were both right about the ticking bomb and STOPPED it as a result of the information obtained; otherwise, go to jail. Much like using deadly force in self-defense. The argument goes, make it like that, and you may get accountability.

The counter argument is that by doing the above, you create a slippery slope in which questions like Dershowitz posed could be asked, and the boundaries of torture pushed slowly back. The first camp argues that the slippery slope in the second camp happens anyway -- in secret -- so best to make it open to public scrutiny.

I think you may be mistaking AD asking the question as approbation, when he may well be illustrating that last point.

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The flaw in the argument you describe is that it rests on a supposition that it is an acceptable thing to do to torture a prisoner in order to prevent a ticking bomb from going off. Rule number 2 applies.

If there is a ticking bomb, and someone tortures a prisoner to prevent that ticking bomb from going off, and stops it as a result of torturing a prisoner, I want that someone to be hanged for the crime of torturing a prisoner. Acquitting him is not accountability, it is the opposite of accountability.

It's possible that I'm mistaking AD, but I'm pretty sure I heard him say that the ticking bomb scenario is one where torture should be used. I'm open to hearing him clarify his position.

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Well, the counterargument is that the person responsible for the bomb will not get tortured and, say, 200 people will die. But if the LEO deciding to use extreme force is wrong, the LEO goes to jail, do not collect $200. As it stands today, it means the suspect gets disappeared and nothing is known about what happened.

I'm presenting the dilemma, and it is a dilemma. Don't you think?

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I do recognize that you're presenting the dilema rather than staking one position or the other out as one you're advocating. I'm sorry if I wasn't clear about that.

I think it's a dilema with a premise that ranges between unrealistic and outright false. I don't think it's very likely that a circumstance will come about where someone knows there's a ticking bomb, knows that this specific prisoner has information that will lead to finding the bomb, knows that torturing the prisoner will yield up the information needed to find the bomb, and knows there is no other way to get the information needed to find the bomb.

Even if I grant all those premises for the sake of argument, I still want the LEO who decides to use extreme force to go to jail, do not collect $200 -- even if torturing the prisoner got him to give information that prevented the bomb from going off and saving 200 lives. I specificly don't want the legal system saying, "Well, that's OK then."

It might be that all that happens is that the prisoner disappears and nothing is known about what happens, but it may also be that someone finds out and a prosecution takes place a la Abu Graihb, which is what got Dershowitz talking about torture in the first place.

Even if I grant that there may be such a thing as a circumstance where torture is ever acceptable, there's still the slippery slope you alluded to. (For those who aren't familiar with the argument, the slope goes something like this: If you accept the premise that it's OK to torture one guy you know has the information needed to find the bomb, is it OK to torture 2 guys if you know one of them has the information needed to find the bomb? 10 guys? 100? What if you only know that someone's conspiring to put a ticking bomb someplace?

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Right. I think you sum up one aspect of the slippery slope well -- the other aspect of the slope is the question of what constitutes torture, which Dershowitz alludes to. That's maybe as or more important, since if saving lives becomes a defense to the crime of torture, the question of what "really is" torture will come up a lot, and will become the subject of court line-drawing, and legislative fiat. Possibly that will have the result of making officially permissible what we today would find horrific.

The counterargument remains that that torture is routinely taking place and the organizations doing it are so self-protecting that only amateur operations like at Abu Graihb ever get caught (no one could think that mess was even vaguely pro-grade cloak and dagger work). If we make torture the subject of court line-drawing and legislative fiat, possibly that will have the result of dragging this dirty laundry of routine and normal, but hidden, torture into the light. Possibly not. It may also make us as a society stop pretending it isn't routinely taking place.

As for likelihood of the ticking bomb scenario, the allegation is that it already has happened many times in mid-east tension zone around Israel (with Israel, the PA, Saudis, Jordanians, and Egyptians allegedly all having had the circumstance). I have no idea; but it's pretty clear that forms of torture remain even in the countries that outright ban it.

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If we make torture the subject of court line-drawing and legislative fiat, possibly that will have the result of dragging this dirty laundry of routine and normal, but hidden, torture into the light. Possibly not. It may also make us as a society stop pretending it isn't routinely taking place.

I'm not sure how that works. Even if we define this narrow case wherein torture is to be permitted, there is a range wherein torture is forbidden, that the people who are committing that torture aren't going to start getting warrants for what they know will still be illegal. So torture will still routinely be taking place and organizations doing it will still be self-protecting. It seems to me that the inital problem remains unsolved.

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I still think you are making a straw man out of Dershowitz's position -- he plainly thinks torture is wrong and wants to see the incidence of such abuse reduced. But he also recognizes that countries regularly make quiet excuses to torture, creating a culture of disdain for human rights treaties. The question he's asking is how to reduce the incidence of torture in "civilized" countries.

The absolute ban position is important, consistent, and on its face the moral stance. As such, it is the dominant position in the world -- embodied in the Treaty, although almost every signatory has been shown to violate it. A pretty good quick debate on the issues is at http://edition.cnn.com/2003/LAW/03/03/cnna.Dershowitz/ . Unless some teeth get put into the Treaty, I think the issue of how to address torture will remain a very real one. And I doubt the Treaty will get teeth as long as every country seems to think it might need to violate the absolute ban in the Treaty some day.

It reminds me of the debates in which one has to weigh dishing out justice for human rights violations vs. ensuring peace in a post-civil-war country. The absolute justice position usually results in ongoing war and more HR violations. A less moral seeming position of "truth and reconciliation" has resulted in a fast track to a lasting peace. It makes one ask, when is an absolute moral position actually absolutely moral in the ends it brings about?

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It is clear that Dershowitz has stated general opposition to torture. It has also seemed clear to me that in his viewthe "ticking bomb" scenario is one in which it is acceptable, desirable, and even constitutional to use torture. That's what's got him in hot water with me. It's possible that he thinks it's none of these things, but that the law should permit this unacceptable, undesirable, and unconstitutional thing in the interests of accountability. It's even possible that he intends this as a "modest proposal." I'll say again that I'm open to seeing him clarify his position.

It's not clear to me that Dershowtiz is viewing the "torture warrant" as a
method of reducing torture. This is because I think he's a pretty smart
guy, and it shouldn't be too hard to recognize that permitting some torture
doesn't do anything to reduce the torture that remains forbidden. The
link you cited underscores this -- Ken Roth pointed out that Israel's
attempt at implementing a "some torture in some cases" policy was a disaster leading to 90% of the Palestinian security detainees being tortured.

Predictably.

Given the amount of Israeli-perpetated torture that's taken place since the practice was nominally banned in '99, I'd even suggest that permitting torture creates a cultural acceptance of torture, making it harder to eradicate afterwards. Roth pointed out "you can't open the door a little bit," I'd add it's a very hard door to close.

I don't think "torture warrants" and "truth and reconciliation" comparable. T&R is a way of achiving closure that works on a model of amnesty if someone makes a full and public confession of crimes. It doesn't theorize cases in which those crimes are or should be legal, legalize them, or give them the societal approval that a "torture warrant" would.

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I don't think "torture warrants" and "truth and reconciliation" comparable.

Good. I'm certainly not comparing them. The comparison is between two cases where one must make the hard decision about whether to pardon (not to pre-authorize) horrible acts in the interest of greater good. That greater good in the torture case isn't "saving lives" -- it's "reducing torture" in the same respect the T&R is to "bring about lasting peace and prevent ongoing HR violations." In a T&R, one drops the moral stance that human rights violations should be punished without fail in the interest of overall preventing significantly more HR atrocities.

In the case under discussion, it boils down to whether it constitutes an appropriate situation for "saving lives as a defense to a criminal charge." Dershowtiz ("AD") is in effect calling to set up a legal regime akin to the one we have for murder -- the self/other life-saving defense to the charge of murder. If one uses deadly force to save one's own or another's life, it's a defense to second degree murder. One has still committed a crime, but being right serves as a defense. Being mistaken -- even if one truly thought one was doing the right thing -- faces one with at least the more serious manslaughter charges, still a felony, and possibly still with second degree murder. We as a society make that decision not because we want people to feel free to use deadly force, but because we recognize that acting *without mistake* to stop an intentional murderer is a just use of force, and we leave the consequences of being mistaken on the actor. We never excuse the erroneous deadly act even if the intent was good (though the charge may be lessened sometimes in some jurisdictions, it always remains a serious felony; often it remains one of murder).

Will that work? Is it appropriate morally? I don't know and I don't really agree with DR. But I sure don't think it's "fucking the goat" and an act worthy of disbarment to propose ways to and call for debate on how to reduce the incidence of torture and force accountability on government.

And that is the idea AD is putting forward -- the top court or exec (SC or Pres) must issue the order; AD very clearly states that in several papers and interviews. If they turn out to be right and it finds out lifesaving information, it's a defense to the charge of torture; if mistaken, no matter how honestly, said person gets to see some criminal charges without a defense. No doubt many of these cases would end up in court over whether it DID find out 'lifesaving' information -- and AD is probably fine with that, since it would make the whole process that much more open to the light, he asserts.

In that respect, it's "a modest proposal" as you say, because those top officials hate accountability. But then the chain of command would have little excuse left for "thinking it was ordered" when there is a clear process for so ordering... and that process didn't happen.

That's the real question. A normal-style warrant issued in the ordinary course (the Israeli move that so predictably blew up and may well have tainted the attitude of the IDF for decades) isn't, as far as I can see, being advocated by anyone, including AD. It's pretty clear that AD thinks any "warrant" must be issued from the top, a publicly-viewable move alleging "self/other defense" that, if it turns out to be mistaken, means the person saying "do it" gets to be up on charges. The idea is that it would remove the "we need to do it in secret because there is no other way" excuse that is right now seeing our torturers *who get found out* going scott free. And helping to create a government that is increasingly unconcerned with lawful behavior.

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rmjwell.livejournal.com

No permanent physical damage.

Of course, mental damage doesn't mean jack.

Yeah, Dersh definitely joins the FTG Hall of Shame.

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While I'm at it, let's answer "Needles" Dershowitz' question:

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

(Article I of the 1985 U.N. Convention Against Torture)

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I'm still a little lost as to how one expects behaviors as uncivilized as war to be held to civilized standards.

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We're not talking about war. We're talking about how prisoners are treated.

In any event, we've tried to hold war to civilized standards for as long as we've had civilized standards. It's the standard that's evolved, not the notion that "we're at war" doesn't excuse everything.

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But the notion "we're at war" DOES excuse everything.

At some point, the size and reason for the war may, indeed, change which Rules of Engagement one will attempt to follow.

Different wars call for different rules. Treatment of prisoners should very well depend on what type of war one is engaged, as well as attempt to set a standard for how one wishes their own prisoners to be treated if such a case may arise.

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But the notion "we're at war" DOES excuse everything.

Philosophically, I think we have a disagreement from first principals here.

Legally, the laws and treaties of the United States define a number of things that are not excused by our being at war, formally or otherwise. Torturing prisoners is one of them.

Nor can I think of a situation where it should be regarded as acceptable to torture prisoners.

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First principals?

I seem to be having trouble putting my thoughts into words for this one, so I'll just ask one simple question:

Is there anything or anyone you love so much that you would put your ethics to the side if it was the only thing standing between what you love and its safety?

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First principals?

My typo -- first principles. It's an irreducable belief of mine that there are things that are simply never justified. It seems to be an irreducable belief of yours that there are cause that can justify anything. It's not something we'll come to agreement on, we each think our position is fundamental and manifestly obvious.

My ethic takes into account the lengths I would go to in such a circumstance. It also takes into account what is effective. In the case of torturing prisoners, it doesn't work. Torture's a great way to get someone to tell you want you want to hear, and a lousy way to get someone to tell you what you need to know. I'm more likely to get the information I need through divine revelation than I am to be in a situation where the only thing standing between me and the safety of anything I love is torturing a prisoner.

And if a principle isn't worth sticking to even if it would cost me everything, it isn't worth being a fundamental part of my ethic.

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