Friday, February 13, 2009

If torture works...

One of the most damning criticisms I have read on Ignatieff is that he supports coercive interrogation and torture.  The most direct path to Ignatieff's side of the story is by reading "If Torture Works..."  Ignatieff claims to have written this to clear up some of what he claims are misconceptions that arose from "The Lesser Evil". As I read this essay, I realized I would need to approach this subject in two posts.  The first would be a review of Ignatieff's views as outlined in this paper and the second, a follow-up to investigate the claims that he is a torture supporting neo-con.  Does his in-depth exposition of his ideas and reasoning on the subject lend itself to being mis-quoted and mis-construed, perhaps even by people of good intentions, or did he say one thing at Harvard and another in Australia.

I am one of the many who would insist that there must be an outright ban on torture.  And as Ignatieff states in the opening paragraph:
"No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency," says the convention, can "be invoked as a justification of torture." That terrorists themselves torture does not change these imperatives. Our compliance does not depend on reciprocity. 
Fair enough.  But few of us have dug deeply into the implications of this stand.  Ignatieff takes this challenge on and in the end forced me to wrestle with some tough issues.

What is torture?  This is an important part of the questions since the excesses of the Bush era flowed from a manipulation of the differences between torture and coercive interrogation.  
In the now notorious memos submitted by the office of legal counsel to the White House in 2002, these definitions were stretched to the point that the threshold for torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death." Any physical abuse below that standard counted as "coercive interrogation." Some forms of coercive interrogation, the lawyers admitted, might not be torture, but they would still be defined as "inhuman and degrading treatment."
 A definition of this difference is hard to pin down.  And Ignatieff doesn't provide one.  He is against lumping both together as a work-around this problem.
Clear thinking about torture is not served by collapsing the distinction between coercive interrogation and torture. Both may be repugnant, but repugnance does not make them into the same thing.
He sees the path from coercive interrogation to torture as a continuum.
But at every ratchet of coercion, moral problems arise.
At what sort of interrogation would he draw the line?
It might be lawful to deceive a subject under interrogation, by stating that all of his associates are already in detention when they are still at large. But other forms of deception can inflict excruciating psychological anguish. Threatening a subject with the imminent death or torture of those dearest to him may not leave any physical marks, but it rightly can constitute torture, not just coercion, in even the US Senate's definition.
This leads to the region that leaves him most open to criticism.  Even if the actual meaning of the words make it clear that he does not support torture itself.
Like Elshtain, I am willing to get my hands dirty, but unlike her, I have practical difficulty enumerating a list of coercive techniques that I would be willing to have a democratic society inflict in my name. I accept, for example, that a slap is not the same thing as a beating, but I still don't want interrogators to slap detainees because I cannot see how to prevent the occasional slap deteriorating into a regular practice of beating. The issue is not, as Elshtain implies, that I care overmuch about my own moral purity but rather that I cannot see any clear way to manage coercive interrogation institutionally so that it does not degenerate into torture.
On the issue of regulation, there are those—Alan Dershowitz, for example—who believe that banning torture and coercion outright is unrealistic. Instead, the practice should be regulated by court warrants. But judicialisation of torture, and of coercive interrogation techniques involving stress and duress, physical abuse, sleep deprivation and so on, could lead to torture and coercion becoming routine rather than an exception.
It seems clear from the dire experience of Abu Ghraib that outright prohibition of both torture and coercive interrogation is the only way to proceed. Rules for interrogations, with penalties in the uniform code of military justice, should be mandatory. 
And the enunciation of his position is:
So I end up supporting an absolute and unconditional ban on both torture and those forms of coercive interrogation that involve stress and duress, and I believe that enforcement of such a ban should be up to the military justice system plus the federal courts. I also believe that the training of interrogators can be improved by executive order and that the training must rigorously exclude stress and duress methods. 
But this is where I start to have qualms about his approach.  In reviewing the most vexing facet of the issue, the ticking bomb scenario:
First of all, there is the problem of the exceptional case, one where lives can be saved by the application of physical methods that amount to 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. This is the only solution I can see that remains consistent with an absolute ban on torture and coercive interrogation. Let us not pretend that the enforcement of this rule would be easy. Where the threat could be shown to be genuine, it seems evident that few legal systems would punish such a conscientious offender.
I don't see how this method won't fall into the same trap as the regulation of torture.  It doesn't take too much imagination to see where Bush could see his way to pardoning torturers on almost any pretext.  This is too easy a loophole to leave open.

But that doesn't mean that Ignatieff's critics can sidestep the issue he raises.  Linda McQuaig, a severe critic of Ignatieff, promulgates this view in her book: Holding the Bullies Coat: Canada and the U. S. Empire.  
"Permissible duress might include forms of sleep deprivation that do not result in lasting harm to mental or physical health, together with disinformation and disorientation (like keeping prisoners in hoods) that would produce stress."

And Ignatieff's thoughts on what might constitute acceptable levels of torture are revealing.  It's hard to imagine that he would find such coercive methods of interrogation acceptable if the were, say, applied to him."
Page 242
That is a very reasonable assertion.  But in making it, one must be willing to answer the question Ignatieff poses: What if the application of torture results in saving the lives of thousands of innocent people.  I do not accept that you can seriously answer the question by saying you just wouldn't do it.  To level criticism at Ignatieff's view, you must respond to this scenario.  In Ignatieff's words:
If they are right, then those who support an absolute ban on torture had better be honest enough to admit that moral prohibition comes at a price. It is possible, at least in theory, that subjecting interrogators to rules that outlaw torture and coercive interrogation, backed up by punishment if they go too far, will create an interrogation regime that allows some interrogation subjects to resist divulging information and prevents our intelligence services from timely access to information that may save lives. 
My take on this is that people unfortunate enough to be placed in this quandary cannot expect clemency from the courts.  Ignatieff's proposal absolves those in charge of the responsibility for their actions.  As a society we must insist that the ban on torture and coercive interrogation is absolute.  This absolute ban enforced by legal sanctions will make anyone who breaks the rules fully aware of the stakes at hand.  It will also provide the maximum encouragement to find a way to get the information that does not involve torture.

This is harsh for the people at the centre of the storm.  But at times of conflict people have been placed in this awful position.  Numerous officers ordered their men over the trench parapet.  Churchill has been accused of allowing the Coventry raids to proceed to protect the cracking of the Enigma code.  An excellent example of someone acknowledging the full responsibility for the awful decision they had to make if the letter Eisenhower wrote in advance of D-Day.

In short, if I was put in that position, I would be willing to make the decision based on the facts at hand, being fully aware of the prohibition and live with the consequences of my decision.  I believe that I would, in fact, be more at peace knowing that I made my decision fully on my own values in a paradigm that discourages torture.  This would, I believe in the final result lead to a solution that would not involve torture or excessively coervice interrogation.
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