Friday, January 14, 2005
Waaaaay down the page
Well, several posts down now, Jody has a post about what is and is not torture. Jody, do you consider waterboarding torture? I think it meets even the "organ failure or death" standards, and it's still happening at Gitmo. But that's not the point. Using highly coercive interrogation techniques sullies the United States' reputation. Using interrogation techniques tailored specifically for Muslims gives Islamic fundamentalists ammuntion. Both these things might be worth the cost, if our methods produced good intelligence. But in the absence of any emperical evidence showing torture or coercive interrogations to produce good intel, I don't see any reason for it. Here's something from Marty Lederman:
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The problem, which I've tried to explain in somewhat soporific detail in posts here, here, here, here, here and here, is that Congress (at the urging of Presidents Reagan and George H.W. Bush) has defined the term "torture" exceedingly narrowly--so narrowly, in fact, that OLC has concluded it does not cover techniques such as waterboarding, threats of live burial, and threats of rendition to nations that do torture. Those forms of highly coercive interrogation, going just up to the line of "torture" without going over, are generally unlawful, not because they are "torture," but because they fall within the category of conduct denominated "cruel, inhuman and degrading ("CID") treatment," i.e., conduct that "shocks the conscience" and hence would violate due process if it occurred within the U.S. Such CID treatment is categorically off limits to the military by virtue of the Uniform Code of Military Justice and the President's directive that the military treat all detainees "humanely." Such CID treatment is also categorically prohibited -- even for the CIA -- with respect to detainees protected by the Geneva Conventions; and such CID treatment would (by definition) be unconstitutional -- even for the CIA and even as applied to Al Qaeda detainees -- here in the U.S.But the Administration has concluded the CID treatment is not unlawful when the CIA interrogates Al Qaeda suspects outside U.S. jurisdiction.
But the Administration has concluded the CID treatment is not unlawful when the CIA interrogates Al Qaeda suspects outside U.S. jurisdiction.
They may be legally correct. But that doesn't make them right. And it doesn't make this any less of a shame. This isn't about "political point-scoring." This is about "we fix this right now or we lose the battle for the hearts and minds of Muslims." We can not afford to lose.
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