Law and Policy
When I saw Ivo had a post titled "Banning Torture -- Matter of Policy, Not Law", I thought he was going to make a different point from the one he wound up making, so I'll make it instead. While it would certainly be better to pass the McCain Amendment than not to pass it, here's the problem: At the end of the day, it's not as if all this torturing has really been going on because torture is legal and so if we change the law it all comes to an end.
The issue, with regard to torture, has always been that despite its denials the administration is, as a matter of policy, engaging in a lot of torture and torture-esque behaviors. Considering that the activities we're talking about concern covert agencies and tend to take place abroad, it's hard to see how you can erect an airtight legal seal around this policy area. It's clear that the administration won't hesitate to engage in strained legal reasoning and venue-shopping to try to do whatever it thinks it needs to do. Better laws would be nice, but some of us thought we covered those bases already with the Geneva Convention, and the reason that wound up not working is that the people in charge didn't want it to work. An administration staffed by people committed to human rights wouldn't let this stuff go on. Given an administration lacking such commitments, the abuses are all-but-inevitable irrespective of the law.
This is true, but begs the question of what exactly we as the populace are to do.
Other than be ashamed, of course.
December 14, 2005 1:22 AM | Reply | Permalink
If abuse of prisoners is to curbed it needs a multi-pronged approach.
First, we have the moral argument. "Do unto others..." covers a lot of ground.
Second, we have the pragmatic argument. Abuse produces bad intelligence.
Third, we have the argument by example. The Iraq invasion was partially based upon known false information obtained under torture. It thus had the reverse effect, thousands died unnecessarily. Quite a contrast to the "ticking bomb" analogy that is usually put forth.
Fourth, it produces evidence that is not usable in court as the watered down prosecutions of our own domestic "terrorists" illustrates.
Fifth, it encourages fighters to resist more or try suicide attacks since they may believe they will be tortured on capture so they have nothing to lose.
Finally, it encourages those capturing our soldiers to abuse them as "payback".
The use of torture and allied abuses is a sign that the war has been lost and those in power have run out of options. It is a sign of desperation and must be shown to be such. Conflating 9/11 and Iraq reveals the crumbling of the foundations of the neo-con world view and their inability to respond ever since. That's why we have had other ineffective policies: the PATRIOT act, searching little old ladies at airports, bag searches in subways, etc.
They have no idea how to proceed.
December 14, 2005 6:33 AM | Reply | Permalink
What does the populace do?
I think it is pretty clear. Administrations that support torture and torture-esque policies should be subjected to impeachment, criminal prosecutions and civil litigation.
I think it is about time that some Democratic Senator or congressperson stand up and say that if the administration had a policy of encouraging or condoning torture, that amounts to a high crime and misdemeanor. The news reports suggest that there is a prima facie case, and the facts should be investigated.
December 14, 2005 7:02 AM | Reply | Permalink
The mistaken assumption in Matt's argument is that the "people in charge" have absolute control over the situation. The point of the legislation is to clearly state what American values are according to Americans today. It closes up several semantic loopholes that are being used to justify the behavior. More importantly, it changes the tone of the debate for those in the torture loop. Many on the business end of this torture policy are not all that pleased to be in that position (a la Fishback), and would love to have some moral/legal backing for following their conscience.
A clear statement that is a) from the USA, not some international org and b) is drafted post 9/11 and thus fully cognizant of the all WoT arguments, would make it clear to those people that whatever it is they're being asked to do, they're being asked to do it against the will of the country they serve. There would still be "strained legal reasoning" to try and avoid it, but one can even this Administration can only strain it so far. Plus, they would be aware that there is a higher chance of being held to account. That's why they're opposing it.
You may not create an "airtight seal", but you can move from "leaky as hell" to "watertight" in a hurry, and that makes it a very good and important thing.
December 14, 2005 7:14 AM | Reply | Permalink
The administration and the people in congress who have facilitated the policies must be held accountable. Our current interrogation policies go against everything this country stands for, are morally reprehensible and (to quote General Pace) must be stopped. More important then our safety is our freedoms and respect for the rule of law. I will never accept a policy that is so morally reprehensible even if it is framed in terms of being done for my own protection. I would prefer to die free then to live less then free. And the American people can stop it if they want to...at the voting booths in '06 and '08. How much the dems push this as a campaign issue is the key.
December 14, 2005 9:39 AM | Reply | Permalink
Matt Yglesias is wrong to assume that the Bush Administration's position that torture is not currently illegal is correct. Torture is prohibited in all circumstances (including the unlikely "ticking bomb" scenario that we keep hearing about but which has nothing to do with our actual torture practices) by the Convention Against Torture. (The treaty specifically prohibits justification defenses.) That treaty was duly signed by the President and ratified by Congress and is the Supreme Law of the Land under Article VI of the US Constitution.
Further, we were required to report to the UN, under the treaty, that we had passed statutes prohibiting torture. And indeed we have-- and these statutes, in order to be treaty-compliant, must apply to all persons acting on the US government's behalf. The treaty also prohibits "outsourcing" torture to other countries-- which the treaty refers to as "refouler". The Department of Justice has adopted regulations to comply with the refouler clause that prohibit the government from deporting anyone to a country where he or she is likely to be tortured.
The Bush Administration-- through the memos of Jay Bybee, John Yoo, and Alberto Gonzales, has come up with a bunch of make-weight arguments as to why these laws don't mean what they obviously say. (For example, they say that the President is not bound by treaties, which would be news to everyone who negotiates treaties and expects state parties to them to obey their terms.) As a result, it is necessary to pass the McCain Amendment to make clear that we know to be illegal is, in fact, illegal. But it is illegal now too, and liberals should not be snowed by the phony and dishonest arguments of the Bush Administration to the contrary.
December 14, 2005 11:14 AM | Reply | Permalink
The real problem here, as Juliette pointed out, is that even with the McCain amendment, the Administration has tried to set things up so that there is a right without a remedy (as the lawyers say).
Every time legal issues have been raised around the Administration's treatment of detainees, the strategy has been something like this: argue that the courts have no authority to constrain the president in these matters (either because it's his right as Commander-in-Chief, or because they lack jurisdiction to hear the cases of the detainees); stonewall as much as possible (by keeping things tied up in the courts, refusing to produce information or make arguments based on national security); and try to get cases mooted before the SCOTUS hears them.
What we need are not good arguments against torture, we need good lawsuits that bring the issues persuasively back into the courts. The government's treatment of detainees violates multiple laws (UN Convention Against Torture, Geneva Conventions, implementing laws for international treaties, the 8th Amendment perhaps), and they need to be held accountable under the law. You can argue till your last breath about why the U.S. shouldn't do this; nobody who matters will be convinced. We need our Checks and Balances back.
December 14, 2005 11:29 AM | Reply | Permalink