Tuesday, February 17, 2009

"If torture works..." and another thing

On reflection on my earlier post on the essay by Michael Ignatieff: "If torture works..." there were two additional points that I regretted not including.

These are:

-The following statement:
As Posner and others have tartly pointed out, if torture and coercion are both as useless as critics pretend, why are they used so much? While some abuse and outright torture can be attributed to individual sadism, poor supervision and so on, it must be the case that other acts of torture occur because interrogators believe, in good faith, that torture is the only way to extract information in a timely fashion. It must also be the case that if experienced interrogators come to this conclusion, they do so on the basis of experience. The argument that torture and coercion do not work is contradicted by the dire frequency with which both practices occur.
can be refuted by a few easy searches. This seems to reflect a willingness to accept conventional wisdoms upon which can form the basis of travesties.  This, as I will dicsuu in a review of Ignatieff's support for the Iraq invasion, is a troubling tendency of Ignatieff.

-And the notion of mitigation of the sentence for an interrogator convicted of torture: 
An outright ban on torture and coercive interrogation leave a conscientious security officer with little choice but to disobey the ban. In this event, as the Israeli supreme court has said, even a conscientious agent acting in good faith to save lives should be charged with a criminal offence and be required to stand trial. At trial, a defence of necessity could be entered in mitigation of sentence, but not to absolve or acquit. 
Again a little research and thought on the results would have found the fallacy of this approach.  From 

International Law and Political Reality

 By Anthony A. D'Amato:
Under international customary law, a plea that the defendant was merely carrying out the orders of a military superior has rarely if ever been allowed as a defense to the commision of an international crime.  At the same time, it has almost always been allowed in the mitigation of punishment.
So technically Ignatieff is correct.  But that is for the actual person holding the waterboard.  Somewhere along the line someone has to accept responsibility.  It is better to maintain the absolute ban with strong enforecement so that the buck is stopped early on.
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Ted said...

I read both your posts on this so far and look forward to your third. I think this is the first comprehensive and honest and objective attempt among Canadian bloggers to review and discuss his commentary on coercive interrogation and torture, unlike some who prefer to extract quotes out of context for political gain. So thank you for this.

This update though, I have to confess, left me more questions than answers.

1. On the effectiveness of torture

The links you provided were very weak in disproving that torture works (eg. the first proof from the Washington Post article was simply that the Nazis got most of their information from other means, which hardly disproves that torture doesn't work). The two links are arguments against torture but they don't really refute that torture may sometimes or many times work. Obviously torture works. Whether it is the most effective or the most reliable or if, in fact, the information can always be trusted are the real questions that to me make torture pointless as well as objectionable. But it is more than just simple conventional wisdom to conclude that sometimes maybe oftentimes a person subjected to torture will divulge information he or she did not divulge under ordinary questioning. Especially when you have such a broad definition of torture.

But it seems to me that one of Ignatieff's points is not only that but also whether in the mind of the torturer they will work in the given circumstances, that the interrogators "believe, in good faith, that torture is the only way".

2. Conviction vs Sentencing

You lost me on what your objection is on the second point. It seems to me that Ignatieff is saying exactly the same thing as Damato there. i.e. that the torturer must always be convicted, not acquitted, regardless of how justified he or she may or may not have been in the circumstances; but that the circumstances may be a factor in mitigating the sentence rendered upon conviction. You must take responsibility for deciding to torture and then the court will decide how much punishment should be rendered for having taken that decision. I don't see where your disagreement with this is.

Constant Vigilance said...

Hi Ted,

Thanks for the comments.

I picked a few links that I hoped made the case. If they do not, I suppose that is a result of lunch hour blogging. I will look for more definitive statements and post a follow-up or mea culpa to buttress my point.

With regards your second question, I agree that there is a broad similarity in the foundation of their positions but I believe that at some point someone has to take responsibility that lies beyond a mitigation defence. Perhaps, one might say, the person at the lowest level can ask for mitigation but where does it stop?

To me the only way to solve this is to remove that "out". To paraphrase MI, that is the best I can do.

Constant Vigilance said...
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